Veitch Penny LLP - Exeter | Crediton, Devon

Case

Piscitelli v Zilli Fish Limited
Employment Appeal Tribunal (21st December 2005)

Issues

(1) Unfair dismissal
(2) Statutory Disciplinary Procedure
(3) Internal Appeals

Facts

Mr Piscitelli was a General Manager for Zilli Fish Limited. He was summarily dismissed on the grounds of gross misconduct following accusations of dishonesty.

He instructed Solicitors to challenge the basis for his dismissal and to pursue off-the-record discussions about settling any potential claims. When the discussions floundered, Piscitelli launched a Tribunal complaint only to find that he was 10 days outside the 3 month time limit for bringing a claim.

At first instance, the Tribunal dismissed his claim as being out of time. Mr Piscitelli appealed the decision arguing that he should have benefited from a 3 month extension period for lodging his claim in accordance with the Employment Act 2002 (Dispute Resolution) Regulations 2004.

Decision

The Employment Appeal Tribunal (EAT) rejected the Appeal. It reviewed the regulations and found that the normal 3 month time limit for bringing a Tribunal claim may be extended by a further 3 months where an employee has reasonable grounds for believing a dismissal procedure was ongoing. Piscitelli argued that his Solicitors' letter was an appeal against dismissal and that the discussions between the respective parties' lawyers gave a reasonable belief that the dismissal process was ongoing.

The EAT reviewed the correspondence noting that correspondence to his Solicitor did not specifically raise an appeal nor sought to overturn the dismissal decision. The correspondence merely dealt with negotiations for a cash settlement. Accordingly, the EAT dismissed his claim concluding that the absence of any mention of appeal was fatal.

Comments

This case contrasts against those recent cases relating to grievances where Tribunals have been willing to adopt a flexible approach to the statutory procedure. However, in this situation, a Claimant's request for an appeal must be very clearly stated as such if they are to benefit from the 3 month extension period to lodge a claim. It is interesting to note that the EAT did not rule out the fact that a letter before action could possibly trigger an appeal but, in order to do so, it must be sufficiently clear.

Rachel Billen – Associate Solicitor, Commercial Department at Veitch Penny.
Tel: 01392 278381, Fax: 01392 410247, Email: This e-mail address is being protected from spambots. You need JavaScript enabled to view it