Mr Jitender Singh Chawla Premi v Gandam Property Consortium Ltd T/a Martin and Co: 3300237/2017
JUDGMENT
[1]It was reasonably practicable for the claims to have been presented within the statutory time limits, alternatively they were not presented within a reasonable time thereafter.[2]Consequently, the tribunal does not have jurisdiction to hear and determine the claims and they are struck out. _____________________________ Employment Judge Bedeau Date: 24 September 2018…………….. Sent to the parties on: ....................... ............................................................ For the Tribunal Office Note Reasons for the judgment having been given orally at the hearing, written reasons will not be provided unless a request was made by either party at the hearing or a written request is presented by either party within 14 days of the sending of this written record of the decision. Case No: 3300237/2017 1 EMPLOYMENT TRIBUNALS Claimant Respondent Mr Jitender Singh Chawla-Premi v Gandam Property Consortium Limited t/a Martin & Co Heard at: Watford On: 14 March 2018 and 14 September 2018 Before:REASONS
[1]This case has been listed for a hearing to determine the claimant’s claims of, notice pay, commission and expenses as set out in the list of issues. The claimant presented his claim form to the tribunal on 3 February 2017 in which he gave a brief history of his employment and the barest of details of his claims. They are, however, claims notice pay; holiday pay; arrears of pay and expenses. The response was presented to the tribunal on 10 March 2017 in which the respondent asserts that the claimant was not an employee, therefore, he does not have the standing to present his claims before this tribunal. In any event the claims are denied.[2]The case was heard on 14 March 2018 but had to be adjourned to hear the respondent’s evidence. The claimant’s employment status was no longer an issue in the case.[3]During the earlier hearing, Mr Joshi, solicitor on behalf of the respondent, raised the issue of the expenses and notice claims being out of time as the claimant’s effective date of termination was 15 August 2016 and the claim form was presented on 3 February 2017. That issue was incorporated in a list of issues agreed between Mr Joshi and Mr Shah, solicitor on behalf of the claimant at the time. Case No: 3300237/2017 2[4]Unfortunately, the claimant did not give evidence at the earlier hearing on whether it was reasonably practicable for him to have presented his claims in time and, if not, was they presented within a reasonable time thereafter? Mr Joshi applied for this jurisdictional issue to be determined by way of an application to amend. His application took Ms Gilani, solicitor for the claimant, by surprise as the claimant was not given time to prepare a statement on whether the claims are out of time.[5]After a brief adjournment the claimant gave evidence in relation to this jurisdictional issue. I gave Mr Joshi the option of either cross-examining the claimant or to decide, based on the claimant’s evidence, whether there would be the need for an adjournment to take further instructions and to admit new evidence. Mr Joshi questioned the claimant and did not apply for an adjournment.The issues
[6]In the agreed list of issues, the claims I had to hear and determine are clearly set out and they are unpaid notice, unpaid expenses, and unpaid commission. The expenses claims includes, fuel, the cost of cutting keys to the place where the claimant worked, and line rental for the claimant’s use of his mobile phone. In addition, the unpaid commission is based on the construction of the claimant’s contract of employment. I had to determine whether the claims were presented in time? If not, was it reasonable practicable for the claimant to have been presented them in time? If not, were they presented within a reasonable time? The claimant argued that he was entitled to the sums claimed as at the date of his termination.Findings of fact
[7]The respondent is an estate agency engaged in selling, buying and renting of properties. The claimant commenced employment with the respondent on 1 February 2016 as a Branch Manager. At all material times he worked from the respondent’s premises at 48 High Street, Slough, Berkshire.[8]The claimant’s relationship with the respondent had deteriorated to the point that he tendered his resignation on 25 July 2016 by giving 4 weeks’ notice. Although not stated the notice, it was due to expire on 22 August 2016. On 15 August 2016, the respondent’s managers met with the claimant and terminated the employment relationship forthwith due to a breakdown of trust and confidence. This is admitted by the claimant in paragraph 44 of his witness statement.[9]The last day of work was on the 15 August 2016. Thereafter, according to the respondent, he was paid up to 31 August 2016.[10]The claimant said that on 23 November 2016, he notified and informed ACAS that he was going through a difficult period in his life: his wife was heavily pregnant; his father was suffering from a mental impairment; he had a child who was attending nursery on a part-time basis; his mother was out of the country, and he was looking for employment. The pregnancy of his wife was difficult because she was admitted to hospital for an overnight stay Case No: 3300237/2017 3 on two occasions, on the second occasion which was on 30 November 2016, the baby was delivered by caesarian section as it was overdue by one week. There were birthday celebrations as his and his first child’s birthdays took up some time in preparing. In addition, he said that there were bereavements in his extended family which were followed by extensive periods of mourning in accordance with the Sikh tradition. His belief was that his employment ended on 31 August 2016 following a conversation he had with an ACAS conciliator who enquired as to the date of his last pay. He told the conciliator that the final pay was dated 24 August 2016.[11]The claimant said during the hearing, that on 15 August 2016, he was forced to meet the respondent at a local Starbucks coffee shop when he was informed that he was not required to return to work and was prevented from picking up his belongings. He said in cross-examination that his last salary was paid in August 2016 and that the advice that he received from ACAS was that he had a month after receipt of the conciliation certificate to present his claim.[12]He was further questioned about another employment tribunal case, a claim he had made against Jaguar Platinum Ltd. That case was heard on 18 January 2017 and judgment delivered. The claims were quite similar to the claims before this tribunal and judgment was in his favour. It was put to him in cross-examination in relation to paragraph 69 of his written statement, that he stated that he had been dismissed on 15 August 2016 and that after his dismissal he had received an email from his work colleague, Mr Liam Blinco. He stated that there was correspondence following his departure from his employment with the respondent regarding his pay and belongings. He said that the respondent gave to one of the recruitment firms he signed up with, false information about him, effectively defaming his character. He said that with the assistance of the ACAS conciliator, he filled out the early conciliation notification form online. He started looking for work after he was dismissed and registered with several recruitment agents. From 10 September 2016, he worked part-time as a taxi driver. He did not provide any ante-natal reports during these proceedings as he was not required to do so previously.[13]In relation to the other employment tribunal case, on and off he contacted Mr Shah who represented him at that tribunal hearing. It was mainly by way of emails and phone calls and that by 18 January 2017, Hillingdon Law Centre were aware of his concerns about his treatment by the respondent. He had to wait a couple of weeks in January before he could meet someone to discuss his case.[14]The claimant notified ACAS on 23 November 2016, nine days after the expiration of the time limit, therefore, the early conciliation extension provisions do not apply. The certificate was issued on 6 January 2017. Submissions[15]Ms Gilani submitted that I should have regard to the claimant’s preoccupations at the time, namely the mental health of his father; his mother being abroad; his wife’s difficult pregnancy and thereafter by Case No: 3300237/2017 4 January 2017, the baby being two months old; that he also was caring for his first child who attended nursery, and there were family bereavements. She submitted that it was the ACAS conciliator who gave the claimant the wrong information that he could present his claim form by the expiry date in February. In other words, one month after the issue of the early conciliation certificate which was on 6 January 2017.[16]Ms Gilani referred to the case of DH Supplies v Versakali which held that it was not reasonably practicable to present the claim in time based on erroneous ACAS advice. Her primary position, however, is that the claimant’s employment was terminated on 31 August 2016 and taking into account the three months’ statutory time limit that would take matters to 29 November 2016. Add on ACAS conciliation, and the form was presented in time.[17]Mr Joshi submitted that the respondent relies on s.97(1)(b) Employment Rights Act 1996 that the effective date of termination was 15 August 2016 and it is consistent with what the claimant stated in his claim form and during his evidence at the earlier hearing. It was reasonably practicable for him to have presented his claim in time. He is reasonably intelligent and resourceful and was able to secure for himself earnings on a part-time basis as a taxi driver shortly after his dismissal. He is also capable of searching for information with regard to his employment rights. It was reasonably feasible to have presented his claim form in time, Mr Joshi submitted.[18]In the alternative, submitted Mr Joshi, even if it was not reasonably practicable for the claimant to have presented the claim within the statutory time limit, to have presented it by 3 February 2017, was outside a reasonable period because by 18 January 2017, the law centre became aware of his concerns about his alleged treatment by the respondent. The assertion by Ms Gilani that the 31 August 2016 is the effective dismissal date does not accord with the evidence.The law
[19]In relation to a complaint of unauthorised deductions from wages, section 23(2) Employment Rights Act 1996, provides that the time limit is three months from the deduction in question within which the claim must be presented to an employment tribunal. Where there has been a series of deductions, time runs from the last in the series of deductions, section 23(3). The tribunal could extend time if it was not reasonably practicable for the complaint to have been presented within the three months and, in doing so, has to determine what would have been a reasonable time, section 23(4). Similar provisions apply to breach of contract, article 7, Employment Tribunals Extension of (England & Wales) Order 1994 and accrued unpaid holiday, regulation 30 Working Time Regulations 1998. All of these provisions allow for extension of time following ACAS conciliation.[20]A claimant must show that it was not reasonably practicable to present his or her claim in time. The burden of proving this rests firmly on the claimant, Porter-v-Bandridge Ltd [1978] IRLR 271, CA. Case No: 3300237/2017 5[21]The question of what is or is not reasonably practicable is essentially one of fact for the employment tribunal to decide. The test of what is reasonably practicable is reasonable feasibility, Palmer and Saunders-v- Southend-on- Sea Borough Council [1984] IRLR 119 CA. May LJ said that factors which the tribunal can take into account include, amongst others, a substantial cause of the claimant's failure to comply with the time limit; whether there was any physical impediment preventing compliance, such as illness, or a postal strike; whether, and if so when, the claimant knew of his rights; whether the employer had misrepresented any relevant matter to the employee; and whether the claimant had been advised by anyone, and the nature of any advice given.[22]In the case of Walls Meat-v-Khan the Court of Appeal held that ignorance or mistaken belief before that is to be accepted, it would not be reasonable if it arises from the fault of the complainant in not making such enquiries as should reasonably, in all the circumstances, be made. In Dedman-v-British Building and Engineering Appliances Ltd [1973] IRLR 379, the Court of Appeal held that if, upon inquiry by the tribunal, the claimant was at fault in allowing the time period to pass then it could not be said to have been impracticable for the complaint to have been presented in time.[23]Section 97 ERA 1996 is the section on the effective date of termination.Conclusion
[24]I have taken into account the submissions by Ms Gilani and Mr Joshi. I have to consider whether it was reasonably feasible for the claimant to have presented his claim form in time. I do acknowledge that he is a very intelligent and resourceful person and accept that at the time he had a number of family matters to deal with: his wife’s difficult pregnancy resulting in two admissions to hospital; that they had a young child who, at the time, he was looking after; he attended more than one bereavement; and his mother was abroad.[25]He was, however, actively looking for work and had signed up with recruitment firms. He secured for himself, a month after his dismissal, parttime work as a taxi driver. He also knew that he could access Hillingdon Law Centre as they were engaged in his case against Jaguar Platinum Ltd.[26]I was satisfied that he knew that his employment had terminated on 15 August 2016 because he was told to leave and not return to his workplace and did not engage in any further gainful employment after that date with the respondent. He acknowledged in his witness statement that he was dismissed on 15 August 2016. I have come to the conclusion that the claimant was dismissed on 15 August 2016. The time limit within which to have presented his claims was from 15 August 2016 to 14 November 2016, the primary limitation period. These are contractual claims extant at the date of termination though it could be argued that the non-payment of commission is an unauthorised deduction from wages claim. It was reasonably feasible for the claimant to have enquired about time limits by contacting the law centre or by doing his own research. He ought to have been aware of the tribunal’s time limits having issued proceedings against Jaguar Platinum Ltd. The ACAS conciliation extension of time provisions do not apply. Case No: 3300237/2017 6[27]Even if it was not reasonably practicable to have presented his claim form by 14 November 2016, was it presented within a reasonable time thereafter? Having had his conversation with the ACAS conciliator he should have, in my view, prosecuted his case via the law centre, the law centre having been informed of his treatment by 18 January 2017 as that was the date his case against Jaguar Platinumn Ltd was heard at London South Employment Tribunal. BY then two months had expired since the 14 November 2016. To have delayed to 3 February 2017, I have concluded, meant that the claim form was not presented within a reasonable time. The law centre had in its position the opportunity to inform the claimant in much more detail of the importance of prosecuting this case in good time.[28]I do not accept that the ACAS conciliator had given the claimant erroneous advice. The conciliator did not give evidence before me and even if that was the advice given to the claimant, matters went beyond the realm of the conciliator when he contacted the law centre and had informed the law centre by 18 January 2017 of his concerns regarding his position with the respondent.[29]Accordingly, I have come to the unfortunate conclusion that the claim form was presented out of time and that this tribunal does not have jurisdiction to hear and determine the claims. They are struck out.