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Hughes v Technical Demolition Services Ltd (Preliminary Issues) [2002] NIIT 611_02 (5 August 2002)

THE INDUSTRIAL TRIBUNALS

CASE REF: 611/02

APPLICANT: Leslie John Hughes

RESPONDENT: Technical Demolition Services Ltd

DECISION ON A PRELIMINARY ISSUE

The unanimous decision of the tribunal is that it does not have jurisdiction to entertain the applicant's claim, under the provisions of Article 239 (2) of the Employment Rights (NI) Order 1996.

Appearances:

The applicant was represented by Mr Mallon, Barrister-at-Law, instructed by O'Connor Moriarty, Solicitors.

The respondent was not represented and did not appear.

1. This was a preliminary hearing on the issue of whether the Tribunal had jurisdiction to consider and determine the applicant's complaint. The issue had been raised in a letter dated 2 July 2002 from the respondent to the Tribunal Office, asking for the claim to be transferred to the Liverpool Tribunal. The basis for this request was that the applicant had for some years been employed by the respondent working on contracts solely in Great Britain and was working in Northern Ireland on a temporary basis only.
2. Mr Mallon, for the applicant, agreed that the content of the letter was correct, although he said that the applicant had not been aware that the job was due to finish in approximately six weeks, as stated in the letter of 2 July. He contended that because the applicant had been living in Northern Ireland for some 10 months working on a contract at Harland and Wolff, Belfast, the Tribunal in Belfast should hear his claim and treat the applicant as "ordinarily working"in Northern Ireland within the meaning of Article 239 of the Employment Rights (NI) Order 1996.

The Tribunal however has to take account of the legal provisions governing its jurisdiction and in particular in this case Article 239 of the Employment Rights (Northern Ireland ) Order 1996.Art. 239 (2) provides :

"The provisions to which this paragraph applies do not apply to employment where under the employee's contract of employment he ordinarily works outside Northern Ireland"

Paragraph (3) of the same article provides that the provisions of paragraph (2) apply to….."(g) (subject to paragraph (4)) Part XI …" Part XI of the Order is the Part relating to claims of unfair dismissal.

Given that both parties agreed that the applicant ordinarily worked in England under his contract of employment with the respondent and his deployment in Northern Ireland, although of ten months duration, was of a temporary nature, the finding of the Tribunal is that the applicant did not ordinarily work in Northern Ireland. Accordingly the finding of the Tribunal is that it does not have jurisdiction to hear the applicant's claim.

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Date and place of hearing: 5 August 2002, Belfast

Date decision recorded in register and issued to parties: