CASE REF: 102/06FET
CLAIMANT: Kevin Francis Kennedy
RESPONDENT: Department for Social Development
The decision of the Tribunal is that it does not have jurisdiction to consider the claimant's complaint, as he failed to issue a grievance to the respondent about his complaint, contrary to Article 20 of the Employment (Northern Ireland) Order 2003. Accordingly I order that the claimant's complaint is dismissed.
Constitution of Tribunal:
Chairman: Miss E McCaffrey (sitting alone)
The claimant appeared in person and represented himself.
The respondent was represented by Mr M Wolfe, Barrister-at-Law, instructed by Mr O'Lone of the Departmental Solicitor's Office
1. The Issues
2. The Facts
"I would like to know which of my communication examples was the poor example. There were three examples given in the application. The panel's comment on communication is given in the singular".
"In relation to your queries about the examples you provided under the communication criteria – in the opinion of the panel, all the examples given were poor."
"46(1) Subject to paragraph (5), the Tribunal shall not consider a complaint under Article 38 unless it is brought before whichever is the earlier of –
(a) the end of the period of 3 months beginning on the day on which the claimant first had knowledge, or might reasonably be expected first to have had knowledge, of the act complained of; or
(b) the end of the period of 6 months beginning with the day on which the act was done ……"
(5) A Court or the Tribunal may nevertheless consider any such complaint, claim or application which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so."
"(38)(1) A complaint by any person ("the complainant") that another person ("the respondent") –
(a) has committed an act of discrimination against the complainant which is unlawful by virtue of any provision Part III; or
(b) by virtue of Article 35 or 36 is to be treated as having committed such an act of discrimination against the complainant,
may be presented to the Tribunal."
"20–(1) An employee shall not present a complaint to the Fair Employment Tribunal under Article 38 of the Fair Employment and Treatment Order if –
(a) it concerns a matter in relation to which the requirement in paragraph 6 or 9 of Schedule 1 applies and,
(b) the requirement has not been complied with.
"(2) An employee shall not present a complaint if –
(a) it concerns a matter in relation to which the requirement in paragraph 6 or 9 of Schedule 1 has been complied with and
(b) less than 28 days have past since the day in which the requirement was complied with."
"(3) An employee shall not present such a complaint if
(a) it concerns a matter in relation to which the requirement in paragraph 6 or 9 of Schedule 1 has been complied with, and
(b) the day on which the requirement was complied with was more than one month after the end of the original time limit for making the complaint."
"We agree with the submission of the respondent that the grievance in question must relate to the subsequent claim, and the claim must relate to the earlier grievance, if the relevant statutory provision is to be complied with. It is clearly no compliance with the requirement there must be a grievance in writing before the proceedings if the grievance in writing relates, for example, to unpaid holiday pay and proceedings, which are then sought to be issued are based upon race discrimination or sex discrimination with no relevance to any question or holiday pay…………… But that does not begin to mean that the wording of the simple grievance in writing required under paragraph 6, and the likely much fuller expatiation of the case set out in proceedings, must be anywhere near identical; not least, as we have described, because, at any rate where the Standard Procedure is concerned, the basis of the grievance does not have to be set out in the first instance". (See paragraph 35 and 36 of the Judgment).
"As we have noted, there is no obligation to set out the basis of the claim. It is enough, therefore, that the employee identifies the complaint. The need to substantiate that with some evidence to justify the right arises under the Standard Procedure at the second stage where the employee has to inform the employer what is the basis of the grievance. The only requirement as Section 32 (2) makes plain, is that the complaint to the employer must be essentially the same complaint that is subsequently advanced before the Tribunal [Section 32(2) is the equivalent of Article 20 in the 2003 Order]."
extend the time limit for the presentation of the claim, as it is not open to me to grant such an extension, given that the Tribunal does not have jurisdiction under Article 20 of the 2003 Order. I therefore order that the claim will be dismissed.
Date and place of hearing: 16 March 2007, Belfast