Ms J McGrattan v MacArthur Leisure Ltd: 4118395/2018
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 4118395/2018Venue GlasgowHearing 20 March 2019
Between
Ms J McGrattanClaimantMacArthur Leisure LtdRespondent
Before
Employment Judge Robert GallMr J McGrattan for claimantFather for claimantMacArthur Leisure Ltd Respondents for claimantRepresented by: for claimantMr S Morris for claimantEmployment Law for claimantConsultant for claimantDate 27 March 2019
JUDGMENT
The Judgment of the Tribunal is that, in circumstances where the claim was presented late, the Tribunal was not persuaded that it was not reasonably practicable for the claim to be presented within the time period of three months specified within article 7, paragraphs (a) and (c) of the Employment Tribunals Extension of Jurisdiction (Scotland) Order 1994. The claim is accordingly dismissed.
REASONS
[1]This claim called for a Preliminary Hearing (“PH”) at Glasgow on 20 March 2019. Ms McGrattan was represented by her father. The respondents were represented by Mr Morris.[2]There had been an earlier case management PH. That took place on 18 December 2018. A note was prepared following that PH. It was dated 19 December 2018. E.T. Z4 (WR)[3]At that case management PH, it was confirmed that:-(a) The claimant did not have two years’ service and was therefore unable to bring a claim of unfair dismissal having regard to the terms of section 108 of the Employment Rights Act 1996.(b) There was no claim of discrimination advanced.(c) The respondents accepted that £400.64 was due to the claimant, with it being confirmed that this would be paid upon production of relevant bank account details to the respondents.[4]There had been reference during the PH to the health of the claimant. It had been highlighted to Mr McGrattan that if the claimant was saying that she was disabled at the relevant time, that would require to be specified. Potential amendment to the claim would be involved if the disability was said to form the basis of a claim.[5]In an attachment to an email of 7 January 2019, Mr McGrattan detailed health issues which the claimant had around the time of the disciplinary hearing on 16 May 2018. He subsequently sent on a letter from the claimant’s GP. That was done under cover of his email of 10 January 2019. The letter from the GP was dated 9 January 2019.[6]The document sent by Mr McGrattan on 7 January 2019 pertaining to the claimant’s health commenced with the following two paragraphs:- “We refer to the above and now make the following amendments. The Claimant consider (sic) her dismissal is wrongful within the provisions of The Equality Act 2010.”[7]At the outset of this PH, I clarified with Mr McGrattan what the claim comprised.[8]Mr McGrattan explained that late in the day prior to this PH, payment of the sum £400.64 had been made to the bank account of the claimant. He and the claimant were very unhappy that it had taken until that point for the payment to be made. Mr Morris confirmed that the payment had been made and apologised for the fact that it had only been paid on the eve of this PH.[9]I expressed the view that it was indeed regrettable that, in circumstances where the payment was accepted in December as being due, it had not been paid immediately thereafter or indeed before that. It was entirely unsatisfactory that the respondents had denied the claimant payment of sums accepted as being due to her until the point when the PH was set to proceed. As stated, it was accepted that the payment had now been made. This element of claim therefore is no longer insisted upon.[10]Mr McGrattan confirmed that the claim made was one of wrongful dismissal. He accepted that the claimant did not have grounds to bring a claim of unfair dismissal in terms of the Employment Rights Act 1996 as she did not have qualifying service. I explained that a claim of wrongful dismissal proceeded on the basis of breach of contract.[11]I clarified with Mr McGrattan whether any claim was made under the Equality Act 2010. The claimant was on maternity leave when dismissed. There had been reference to her health as stated above.[12]Mr McGrattan confirmed that there was no claim of discrimination made and that Ms McGrattan did not make a claim under the Equality Act 2010. I confirmed with him specifically that this was Ms McGrattan’s position. He confirmed, “without reservation”, that I could expressly note that no claim was made under the Equality Act 2010 with the claim being limited to one of breach of contract through wrongful dismissal.[13]On this footing, in circumstances where it is accepted that the claim was presented late, the issue for this PH then turned upon whether I was persuaded on any evidence led that it was not reasonably practicable for the claim to have been presented within the time permitted for bringing of such a claim, namely three months from date of dismissal.[14]Ms McGrattan was not present at Tribunal. I explained to Mr McGrattan that whilst he was aware of the circumstances, the proper course in my view was that Ms McGrattan gave evidence. This was so that she could speak under oath or affirmation about why it was that she had not presented the claim within the three month period and indeed what had prompted her to lodge the claim when did rather than, for example, that occurring at an earlier or later stage. Mr McGrattan said that he could arrange for Ms McGrattan to be present later in the day to give her evidence. Mr Morris confirmed that course was more acceptable to him than adjourning this PH and returning at a future date. The PH therefore adjourned in order that Ms McGrattan could attend to give evidence.[15]I then heard from Ms McGrattan during the afternoon of 20 March 2019.
Facts
[16]The following facts were found after the hearing of evidence from Ms McGrattan. They are the relevant and essential facts as admitted or proved. Evidence was also taken from Mr McGrattan on one matter. That was as to what had happened between the time of rejection of the claim form initially presented and its resubmission, both events happening in September 2018.
The claim
[17]The claimant was dismissed by the respondents. She had been employed by them for less than two years at time of her dismissal.[18]The claim currently proceeding before the Tribunal is one of wrongful dismissal.[19]The claimant obtained an Early Conciliation Certificate (“ECC”) from ACAS on 5 July 2018, having applied for that to ACAS on that day, 5 July 2018.[20]The claimant submitted a claim form to the Employment Tribunal, presenting that on 7 September 2018. She accepted that the claim form was presented out of time at that point.[21]By letter of 13 September 2018, it was confirmed to the claimant that the claim could not be accepted as the name of the respondent on the claim form was different to that of the respondent on the ECC. That letter was sent to the claimant’s representative as detailed on the claim form. That representative was her father, James McGrattan.[22]By letter of 25 September, submitted by email of 26 September, Mr McGrattan made an application for reconsideration of the decision to reject the claim form. He clarified the name of the respondent as being that detailed in the ECC.[23]The claim was accepted as being presented on 26 September 2018. The claim accepted as presented on that date was in the same terms as that which had been presented on 7 September 2018.[24]The claim form was completed by the claimant. It contained the following statement:- “I contacted acas and had problems getting my early consolation (sic) certificate which I know (sic) have although the date on it would be timed out. I am asking you to please allow this claim to go through she had dismissed too many people who have been too scared to come forward. I have been dealing with a sick baby, my teenager has autism and I have had to under (sic) an operation and in the middle of a divorce so I didn’t have time to chase acas now I am better I have time to fully focus on this and ask that you please take my personal circumstances into consideration so I can still go to this tribunal. Thank you for your time and assistance.” Finding in fact and law[25]The claim as presented on 26 September 2018 was out of time. This was accepted by the claimant as being the case. Claimant’s personal circumstances[26]The claimant had a daughter in December 2017. Unfortunately, her daughter was diagnosed some four weeks after birth as being affected by silent reflux. This meant that 24 hour observation of her daughter was required. The claimant relied upon support from her mother to achieve this. The claimant and her son moved into her mother’s house soon after her daughter was born so that assistance was more readily given to her. There was a real risk of her daughter dying. Intervention was necessary from time to time to ensure she continued breathing. This situation meant the claimant had very little sleep. What sleep she did get was not of good quality due to worry.[27]The claimant’s son is affected by autism. Due to that condition, he does not respond well if his routine is disturbed. The birth of his sister and the temporary move to the claimant’s mother’s house adversely affected him and meant that there were additional demands on the claimant’s time due to that.[28]Within a matter of a day or so of the birth of the claimant’s daughter, she became aware of information as to her husband which led to the breakdown of the claimant’s marriage. She found that extremely upsetting and difficult to cope with, particularly given the life threatening condition which affected her daughter.[29]The claimant was therefore affected by sleep deprivation. She was worried about her daughter’s health. She had to cope with her son’s behavioural issues and also with the very difficult position following breakdown of her marriage.[30]In addition, her son was badly affected by Australian flu in January 2018. He then was affected by glandular fever and chronic fatigue.[31]These events were all prior to June 2018.[32]In June of 2018 the claimant became aware of an issue with her own health. She required to have an operation to remove stage 3 pre-cancerous cells which were found during a smear test following upon the birth of her daughter. She postponed any operation so that she could go on holiday on 17 June. She was away for 11 nights with her children. The operation therefore took place in July 2018.[33]The claimant moved back into her own property around the time of her holiday in late June or early July 2018. Her mother moved in to stay with her given the care requirements which she had in relation to her son and daughter and her own health issues. She took medication for around a month in June or July and then came off medication. The medication was for anxiety. She adopted other holistic remedies with a view to seeking to tackle anxiety.[34]The claimant was on maternity leave from December 2017 and remained on maternity leave at time of dismissal by the respondents. Advice[35]A disciplinary hearing was arranged by the respondents for 16 May 2018. The claimant was made aware of this. Around this time, she took advice from ACAS. They spoke to her as to the possibility existing of dismissal and as to the right which she would have to appeal against dismissal. They may have mentioned to her the possibility of a Tribunal claim being made.[36]After dismissal, the claimant spoke with ACAS on the telephone seeking advice. She spoke with her father to see if he could represent her. Neither the claimant or her father had experience of making claims to an Employment Tribunal. It is unclear whether the claimant received any advice from ACAS following upon dismissal as to there being a time limit for presentation of claims to an Employment Tribunal. They may have given her such advice. She cannot recollect. By the time she presented her claim form on 7 September she was aware of the 3 month time limit for presentation of such a claim. She was also aware that she was by then outwith the 3 month period.[37]Other employees had been dismissed by the respondent. One of those employees contacted the claimant after the claimant had been dismissed. This was on 5 July 2018.[38]That employee said to the claimant that she was taking her case to a Tribunal and had taken advice from Citizens Advice Bureau. The claimant said to her that she could not talk to her about why she (the claimant) had been dismissed. The claimant said to her former colleague that the former colleague should get professional advice. There was no discussion between the claimant and her former colleague as to any time limits for bringing of a claim to a Tribunal.[39]The claimant did not herself think of obtaining legal advice. The claimant’s business[40]The claimant worked for the respondent as a manager in her training business. The claimant is a personal trainer.[41]The claimant registered her own company in June 2018 with a view to commencing work as a personal trainer. She had come to the view that rather than work for others, it would be better if she worked for herself.[42]The claimant promoted her business through Facebook from June 2018 onwards. She started working as a personal trainer based at a gym from July onwards. She ran classes in August. She worked 16 hours a week during July although ceased that, working on a “stop/start basis” as her daughter’s health dictated.[43]The letter from the Tribunal of 13 September stating that the claim submitted on 7 September could not be accepted was received by the claimant’s father as her representative upon or soon after his return from holiday in September 2018. He returned on 16 or potentially 17 September 2018. He read the letter. He was aware of the content of the claim form, although the claimant had completed that herself. He himself had spoken with ACAS in December 2017. He did not seek advice from ACAS in September 2018.[44]As stated above, the claim was accepted, being treated as being presented on 26 September 2018. The issue[45]The issue for the Tribunal was, whether time would be extended such that the claim, submitted out of time, would be permitted to proceed. This turned upon whether the Tribunal was satisfied that it was not reasonably practicable for the complaint to be presented within the three month period and, if so satisfied, whether the claim was presented within such further period as the Tribunal considered reasonable.
Applicable law
[46]The terms of regulation 7 (a) and (c) of the Employment Tribunals Extension of Jurisdiction (Scotland) Order 1994 are of relevance. Those provisions state: “An Employment Tribunal shall not entertain a complaint in respect of an employee’s contract claim unless it is presented – (a) within the period of three months beginning with the effective date of termination of the contract giving rise to the claim or… (c) where the Tribunal is satisfied that it was not reasonably practicable for the complaint to be presented within which ever of those periods is applicable, within such further period as the Tribunal considers reasonable.”[47]The Tribunal requires to consider whether it was or was not reasonably practicable to present the claim within time and also to consider the time elapsed since the deadline for presentation of the claim, determining whether delay in the presentation of a claim was reasonable or not.[48]Although the words of the regulation require to be applied, helpful guidance has been given in case law. Much of that case law relates to the same provision in section 111 of the Employment Rights Act 1996 in relation to presentation of claims of unfair dismissal.[49]Whether it was or was not reasonably practicable to present a claim is a question of fact for determination by the Tribunal considering the evidence.[50]The case of Wall’s Meat Co Ltd v Khan 1979 ICR 52 states that practical common sense is the key note. Palmer & another v Southend On Sea Borough Council 1984 ICR 372 says that “reasonably practicable” does not mean reasonable but rather means something like reasonably feasible.[51]Consideration is therefore appropriately given by a Tribunal as to what might have prevented the claim being lodged in time and whether there is any impediment to it having been presented in time.[52]It is also appropriate for a Tribunal to have regard to whether a claimant was aware or unaware of a time limit for presentation of claims to an Employment Tribunal. Being unaware of any such time limit is not however of itself enough to make it not reasonably practicable to have presented the claim in time. The ignorance must be reasonable.[53]A Tribunal properly has regard to whether advice was obtained by a claimant.[54]The health and any other relevant circumstances affecting the claimant are also properly considered by the Tribunal as they would assist in establishing whether, in the view of the Tribunal, it was or was not reasonably practicable to present the claim in time. Schultz v Esso Petroleum Co Ltd 1999 ICR 1202 (“Schultz”) confirms this.[55]The case of Asda Stores Ltd v Kauser EAT 0165/07 states that stress in itself is not a reason to extend time for presentation of a claim.[56]Schultz also confirms that a Tribunal should focus on the 3 month period and in particular the latter stages of it when considering what might have been done by a claimant in relation to lodging of a claim and whether it was or was not reasonably practicable to present a claim within the 3 month period.[57]The delay in presentation of the claim beyond the time by which it ought to have been presented is also something to be considered by the Tribunal. The Tribunal is required to come to a view as to whether it considers the period of any such further delay as reasonable. That will involve consideration of facts and circumstances around the delay.[58]The onus lies with the claimant to persuade the Tribunal that its discretion to extend time to permit a claim presented late to proceed ought to be exercised. This is confirmed in Porter v Bandridge Ltd 1978 ICR 943. Submissions Submissions for the respondents[59]Mr Morris referred to the test which the Tribunal required to apply in circumstances where a claim was presented late. He reminded the Tribunal that the burden lay with the claimant.[60]The Tribunal required to work with the information and evidence before it.[61]That evidence was that the claimant had spoken with ACAS prior to dismissal and after that. The second conversation had taken place during the summer of 2018. It was reasonable to assume, said Mr Morris, that ACAS would have mentioned a time limit for presentation of claims to an Employment Tribunal. The claimant could not recall whether they had or had not said anything to her about that.[62]Mr Morris said that he appreciated the difficult family situation which affected the claimant. It was the position for the respondents however that, despite the challenges which the claimant faced at that time, it was reasonably practicable for her to submit her claim in time.[63]Mr Morris highlighted that the claimant had been contacted by a former colleague in July 2018 who had asked for support. The claimant had been clearheaded enough to advise her former colleague to seek professional advice.[64]This demonstrated, Mr Morris submitted, that the claimant was aware of the benefits of obtaining advice. She herself however did not take that step.[65]Looking to the claimant’s circumstances, she had certainly had a difficult time. She had received good support however from her parents. In June she had moved back to her own property. Her mother had moved in to assist her. In June and certainly in July the claimant had started promoting her own business. She had returned to part time work.[66]During the summer therefore, when the clock was ticking, the claimant was able, Mr Morris said, to act and to think with sufficient clarity in organising her own life, returning to start her own business. It was therefore reasonably practicable, Mr Morris submitted, for her to present the claim or to take steps to obtain advice to do that.[67]It was accepted by Mr Morris that where a claimant was ill, it was possible for the Tribunal to exercise its discretion and extend time. The extent of illness and whether it led to exercise of this discretion were matters for consideration by the Tribunal.[68]On the evidence and looking to what the claimant had done within the three month period, the Tribunal should not extend time.[69]Ignorance of the law was not sufficient on its own. In this case, the ignorance on the part of the claimant was not reasonable.[70]The claim form, when initially submitted on 7 September, showed an awareness that it was being presented out of time. When rejected, and in the knowledge of the content of the claim form originally presented, it had then taken the claimant’s father some ten days to address the issue and to have the claim accepted. That was not a reasonable period and the second leg of the test therefore had not been met.[71]For those reasons, Mr Morris urged that the claim be ruled out of time with the extension of time not being granted. Submissions for the claimant[72]Mr McGrattan referred to the evidence from the claimant which had been obtained. He said that her evidence was quite clear as to her state of mind being at best confused. The claimant had been honest in saying that she could not recall exactly what ACAS had said to her. Due to all the pain and difficulties which she was having together with the worry in relation to her daughter, she had put to the back of her mind any issue with the claim. She had, Mr McGrattan said, a sound claim which she wished to pursue. He urged the Tribunal to exercise its discretion and to permit the claim to be advanced. Discussion and decision[73]As clarified in the case management PH and also at the outset of this PH, there is no claim of discrimination. The claim in respect of wages is not proceeding as the money due has been paid. Comments as to the unsatisfactory and inappropriate delay in making that payment are made above.[74]There may or may not be merit in the claim of wrongful dismissal. It is impossible to determine the strength or otherwise of the position of either party in that claim at present.[75]This PH proceeds on the basis of acceptance by the claimant that her claim was presented late, both on 7 and 26 September. The Tribunal therefore has to consider the circumstances which pertained during the time following dismissal and to determine whether it was or was not reasonably practicable to present the claim within that 3 month period. It is that 3 month period, and in particular the latter stages of it, which is key in considering the claimant’s health and circumstances.[76]As mentioned in the “applicable law” section of this Judgment, the onus is on a claimant to persuade the Tribunal that time should be extended as the “test” has been met.[77]The evidence I heard and accepted was plain as to the claimant having been through a traumatic time in the late part of 2017 and early part of 2018 in particular.[78]Her daughter had been born with a serious and potentially life threatening condition. That required round the clock observation and intervention from time to time. There was also time and attention required in relation to the claimant’s son due to the condition of autism by which he is affected. The breakdown of the claimant’s marriage also occurred. She moved into stay with her parents. These events appear to have occurred prior to dismissal.[79]I accepted the claimant’s evidence that she had little sleep around this time given both the time taken to observe her daughter and to ensure that she did not choke and potentially die and also given the worry over this situation. That worry also meant that she did not sleep well when she did manage to get some sleep. Also contributing to that were the factors mentioned in the preceding paragraph.[80]All of this did not cease in June, although the effects were not as intense. In addition to the foregoing elements, the claimant’s own health then became a matter of real concern for reasons other than the tiredness. She was affected by anxiety. In addition, pre-cancerous cells were discovered requiring medical attention and no doubt, understandably, causing much worry to the claimant.[81]The period with which I am concerned is that between date of dismissal and date of presentation of the claim. The information about the earlier very real problems affecting the claimant and her family and the impact of those is of relevance in that by date of dismissal these matters had not “gone away”.[82]Things had improved to a degree, however, around June. The claimant moved back into her own house, albeit that her mother joined her there. Her son was returned to his normal place of residence therefore and to a location closer to school which he attended. There would remain impact from the breakdown of the claimant’s marriage.[83]A very stark picture was painted by the claimant in her evidence. She explained all of the problems detailed and was clear as to the impact which they had upon her. It seemed to me to be the case, at conclusion of her evidence in chief, that she had had a very traumatic and draining experience in the period of date of dismissal and that her own health, together with the continuing issues with her daughter and son meant that she did not remember much about the period, with days merging one into the other. She said that she had started to feel stronger in September but that her head was still “not clear”.[84]In cross examination, however, a somewhat different picture emerged. The claimant had not mentioned in evidence any work which she was carrying out. Indeed, on her evidence, it had not crossed my mind that she would have had time or ability to become involved in any work, whether on her own behalf or as an employee.[85]Her evidence however in cross examination was that she had incorporated her company in June 2018 in preparation for work. Her work was as a personal trainer. She had undertaken promotion through Facebook postings. She had agreed that she would work out of a gym. She commenced working in July and conducted classes and had clients in August. She said that she worked 16 hours per week in July. I accepted that this was not a situation where she worked those hours each and every week. That was dependant upon her daughter’s health and involved an element of “stop and start”. The position remains however that she was able to organise herself and her time to arrange commencement of the business, premises out of which she could trade, gain clients and undertake her work. That did not sit with her evidence in chief.[86]I understood the claimant’s motivation for seeking to establish her business. She was by this point a single parent. Her efforts are to be commended. I also appreciate that work would be a priority and that it must have taken some time and effort for her to be able to work as she did at this time. This is particularly so given the background of events which occurred between January and June 2018, all of which were very physically and mentally demanding. In addition of course the claimant’s own health issues occurred in June into July.[87]The claimant had also obtained advice from ACAS both around the time of her disciplinary hearing and after her dismissal. ACAS had, she said, outlined the options. Her evidence was that there had been mention to her by ACAS of the possibility of an Employment Tribunal claim. She was candid in saying that she could not remember whether ACAS had said to her anything about a time limit for presentation of claims.[88]It does appear to me that it is likely that ACAS did mention there being a time limit. I say this partly as ACAS would normally in providing advice to an employee as to the potential for an Employment Tribunal claim, mention the need to take steps to present such a claim within the appropriate time limit. The likelihood of them having said that in this instance is underlined by the statement in the claim form when initially submitted, as set out above. The claimant makes a statement which, in my view and on the evidence, shows that she was aware of the fact that her claim was being presented late. She asks for her circumstances, in effect mitigation, to be taken into account in permitting the claim to proceed. To make those comments and to have this approach, she must have been aware of there being a time limit for presentation of claims.[89]I am therefore left with a position where the claim was presented late, notwithstanding some awareness on the part of the claimant of there being a time limit and in circumstances where the claimant had consulted with ACAS to obtain information as to presentation of claims. Given the comments in the claim form, she was in my view aware of there being a time limit for presentation of claims. She was also aware that she had “missed” that by time of presentation of her claim form.[90]If, however, it was the case that she was unaware of any time limit, I would not see that ignorance as being reasonable given the contact which she had with ACAS and the absence on her part of taking further advice, particularly given her recommendation to her former colleague that further advice be obtained.[91]Had the evidence in cross examination not been given, I would however have concluded that it was not reasonably practicable to present the claim in time. Circumstances outlined in evidence in chief persuaded me that the claimant had various very difficult issues with which to deal. On evidence in chief, those extended into the period from June to September 2018. Whilst some pressures may have eased to a degree, further difficulties had arisen by way of the claimant’s own health, in addition to the difficulties from the earlier period continuing to reverberate.[92]The evidence, however, in cross examination of the claimant making arrangements to commence business and returning to personal training led me to a different conclusion. I also had regard to the apparent awareness on the part of the claimant of time limits for presentation of a claim. These were the important elements in my reaching the decision which I have reached.[93]Weighing that evidence, and notwithstanding the evidence given in chief and detailed above, I came to the conclusion that the claimant had not persuaded me that it was not reasonably practicable for the claim to be presented in time. There was no impediment preventing the claimant presenting the claim. It was in my view reasonably feasible for the claim to be presented in time. The claimant had a lot on her plate at this stage. She demonstrated an ability to cope and focus on business however. She had advice from ACAS. From the claim form presented, she had an awareness that she was out of time in presenting the claim. Her evidence as to what had finally prompted her to lodge the claim at the time when she did was, in my view, unclear. She simply said that she felt better and stronger. She did not say, for example, that she suddenly became aware of a time limit or that she was aware of the time limit but could not address the issue due either to shortage of time or because of her work or other pressures or inability to face up to presentation of the claim.[94]I have much sympathy with the claimant and the predicament in which she found herself. It is difficult to imagine the pressures which she was under in the early part of 2018 considering her daughter’s life threatening medical condition, her son’s autism and the breakdown of her marriage. Sleep deprivation and anxiety also affected her. By June, she was, thankfully, able to return to her own home with her children. Her mother was able and good enough then to stay with her to assist. Her own health investigation and diagnosis must have been very worrying and upsetting. She was, however, able to turn her mind to organisation, obtaining and carrying out of work. It is that latter element, together with the time limit for presentation of claims being missed despite awareness of it, which persuades me that it cannot be said that it was not reasonably practicable for the claim to be lodged in time.[95]Had I been persuaded that it was not reasonably practicable for the claimant to present the claim on time, I would have permitted the claim to proceed by extending time. I did not see the delay between 16 or 17 September and 26 September as amounting to circumstances in which the claim had not been presented within a reasonable time of expiry of the time limit. It was not said by Mr Morris, for example, that there was any prejudice to the respondents through that period of delay.[96]For the reasons stated however, I was not persuaded that it was not reasonably practicable for the claim to be presented in time. The Tribunal therefore has no jurisdiction to hear this claim which is dismissed.