Mr T W Dickinson v Ford Centre Ltd and Mr Enzo Cornacchia: 2303511/2018
JUDGMENT
[1]The Claimant’s claims were presented out of time, but it was not reasonably practicable to have presented the claims for unfair dismissal and unpaid wages within time. I extend jurisdiction and the claim can proceed.[2]The Claimant’s claim for disability discrimination was presented out of time, but time is extended on the basis that it would be just and equitable to do so. The claim can proceed.REASONS
[1]The Claimant presented a claim on 11 September 2018 for unfair dismissal, breach of contract (notice pay), unpaid holiday pay and unpaid wages as well as disability discrimination. The Claimant had contacted ACAS via early conciliation with Day A being 14 June 2018. Day B was 9 July 2018. There was a significant dispute between the parties about the effective date of termination. The Respondent says it was 18 April 2018 and alleges the Claimant was summarily dismissed (verbally) after the Respondent says the Claimant was caught smoking marijuana. The Claimant said on his ET1 that he considered his last day to be 7 June 2018. This was the date it transpired that he received his P45.[2]I heard evidence from Mr Cornacchia on behalf of the Respondent and the Claimant, although there was no written witness statement from the Claimant. It should be noted the Claimant says he has severe dyslexia and I took evidence in chief from his claim form and oral evidence.The Law
[3]The time limit for presenting a claim for unfair dismissal is set out in Section 111 of the Employment Rights Act 1996 (“ERA”) and Section 123 ERA for the unpaid wages, notice pay and holiday claim. A claim must be presented before the end of three months beginning with the effective date of termination, or such period as the Tribunal considers reasonable if this is not reasonably practicable. There is a different test for the discrimination claim, set out in Section 123 of the Equality Act 2010 (“EQA”). This provides that proceedings may not be brought after the end of the period of three months starting with the date of the act to which the complaint relates, or such other period as the employment tribunal thinks just and equitable.Findings of fact
[4]I make the following findings of fact on the balance of probabilities. I am not making any findings about whether or not the Claimant was caught by Mr Cornacchia smoking marijuana on any given date; that is a matter for the substantive Tribunal that will hear all of the evidence in the case at a full merits hearing.[5]Prior to the dismissal there was a deteriorating relationship between Mr Cornacchia and the Claimant. Mr Cornacchia accepted that he had contacted another garage about finding the Claimant work.[6]Events on 18 April 2018. Mr Cornacchia’s account was that on that particular day he had gone to the bank, but on the way there realised he had not enough time to reach there before closing time at 5pm and so returned to the garage at approximately 4.50pm where he had met a customer and gone into the workshop. At this point Mr Cornacchia says he discovered he and the customer discovered the Claimant smoking marijuana and sacked him immediately, saying words to the effect of “you are smoking dope you cannot do that, you are sacked leave the premises” and that the Claimant gathered his tools and left.[7]Mr Cornacchia’s evidence was shortly after he dismissed the Claimant, he asked someone called Mr Dan (Mr Cornacchia was unsure of this individual’s surname so was referred to as Mr Dan) to write a letter on his behalf to the Claimant, which he dictated to him over the phone. Mr Dan then brought the letter to the garage and Mr Cornacchia went to the post box and posted the letter to the Claimant himself first class, he did not keep a copy of that letter and had been unable to produce a copy of the letter from Mr Dan’s computer.[8]This account was disputed in its entirety by the Claimant, he simply says it did not happen, he left work as usual on that day and he was not dismissed by Mr Cornacchia on that day.[9]On 19 April 2018, the Claimant says he phoned in sick, he was feeling very stressed and subsequent to that it was common ground that the Claimant’s wife brought in sick notes and presented them to Mr Cornacchia who accepted them. Mr Cornacchia was unable to give an explanation as to why he would have accepted the sick notes and not challenge the Claimant’s wife for bringing him sick notes or make any comment to her. I find it unlikely that if an employer had dismissed someone for smoking marijuana and was then presented with a sick note, that the employer would not have made some comment to the person presenting that note, along the lines of I will not be paying this person’s sick pay as I have sacked them for smoking marijuana. Mr Cornacchia gave an explanation that the sick notes may have been presented to him in an envelope, but he accepted this was speculation. He also accepted that he did not later challenge the provision of these sick notes by writing to the Claimant soon after being given the sick notes to say that he would not be paid sick pay.[10]The Claimant was paid as normal until the end of April 2018 the sum of £1600.00.[11]Thereafter, on 10 May 2018 the Claimant says he received a telephone call from Mr Cornacchia and the Claimant himself says he was dismissed during that call.[12]On 2 June 2018, the Claimant sent a letter to the Respondent, this is a detailed letter which the Claimant accepted he had assistance to write and it does reference several potential legal claims. The letter refers to the telephone call that the Claimant says he received from Mr Cornacchia on 10 May 2018. The Claimant says in the letter he was informed during that call of Mr Cornacchia’s intention (my emphasis) to dismiss, but I find from the rest of the letter it is evident that the Claimant considered himself dismissed by that point. He refers to not receiving reasons for dismissal, not receiving notice and redundancy pay and so on. Therefore, at the point that that letter was written (and Mr Cornacchia had accepted that he had received that letter), the Claimant had certainly been dismissed at that stage. It should also be added that a P45 dated 30 May 2018 was received by the Claimant on 7 June 2018.[13]The Claimant wrote a further letter to the Respondent dated 16 June 2018 concerning the return of his tools. Thereafter, the Respondent sent a letter which they say was a duplicate of the letter that they had written to the Claimant on 18 April 2018, typed by Mr Dan. The letter makes no attempt to hide the fact that it is a duplicate and I have taken that into account, it clearly indicates it was a duplicate and was dated 18 July 2018. However, there is no evidence that the Respondent had replied to the Claimant’s letters of 2 June 2018 or the 16 June 2018 regarding the return of tools.[14]I have decided on the balance of probabilities that I prefer the Claimant’s account about the date of dismissal and that the effective date of termination was 10 May 2018 when the Claimant was informed he was dismissed during the telephone call between the Claimant and Respondent.[15]The reasons I have preferred the Claimant’s account are as follow. If the Respondent had dismissed the Claimant on 18 April 2018, I find it implausible that he would not have responded to the letters that the Claimant had written to him, particularly the one on 2 June 2018, asserting he had been dismissed during a telephone call on 10 May, and challenged the letter. The Claimant clearly set out that he regarded that he had been unfairly dismissed and did not receive any reason for dismissal. Had the Respondent sent the letter on 18 April 2018 saying that he had been dismissed for smoking marijuana, it is likely the Respondent would have challenged the content of the Claimant’s letter of 2 June 2018. Further, the Respondent accepted the sick notes and there was no original copy of the Respondent’s letter of 18 April 2018.[16]As I found the 10th May 2018 was the effective date of termination, I also find this is the last date on the evidence before me that could have amounted to any discriminatory act as there were no allegations of discrimination after this date.[17]Thereafter, on 28 July 2018, the Claimant with his partner assisting him, sent a claim form ET1 to what he considered to be the Employment Tribunal Service, but mistakenly sent it to the Immigration and Asylum Tribunal in Leicester by recorded delivery. This was signed for but after that no-one is able to say what happened to the claim. Nobody contacted the Claimant to inform him he had made a mistake nor was it sent on to the Employment Tribunal Service. The Claimant, having been reassured the ET1 had arrived safely from the recorded delivery signature, assumed that he would need to wait to hear from the Tribunal and that this would take at least a month. I called the Claimant back to clarify his evidence on this point and he explained that after about a month he telephoned the Tribunal to check that they record of the claim. He could not remember when exactly this was but believes it was approximately a month after submitting the claim incorrectly to the Immigration and Asylum Tribunal. When he was advised there was no record of his claim he re-submitted his ET1 on 11 September 2018. Taking the date the Claimant was informed there was no record of his claim to be at the end of August, the Claimant submitted his claim to the correct Tribunal within 11 or so days thereafter. It should also be added whilst we had no evidence about what the advice was from the solicitor, the Claimant did seek legal advice from a solicitor after 30 May 2018.[18]My conclusions are as follows. Given that I found the effective date of termination was 10 May 2018, all claims should have been lodged by 3 September 2018 and therefore they were lodged 8 days out of time. I find that the reason that the ET1 was presented late was that the Claimant mistakenly sent the claim form to the wrong Tribunal. I have carefully considered that the Claimant says he has severe dyslexia with the fact that he had assistance from his partner and had taken legal advice. I have concluded that the reason the claim was not presented in time was due to an unforeseen circumstance in sending it to the wrong Tribunal. For these reasons I find that the Claimant had reasonably understood that he had submitted his claim. Sending it to the wrong Tribunal office was a genuine mistake, he then went onto present the claim within a further period of time once he had realised his error. For these reasons both in terms of reasonably practicable and just and equitable, I extend time for the claims.