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Court of Appeal in Northern Ireland Decisions
You are here: BAILII >> Databases >> Court of Appeal in Northern Ireland Decisions >> Bombardier Aerospace- Short Brothers Plc v McConnell & Ors [2007] NICA 27 (10 July 2007)
URL: http://www.bailii.org/nie/cases/NICA/2007/27.html
Cite as: [2007] NICA 27
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Ref: GIRF5865
BETWEEN:
Appellant;
Respondents.
GIRVAN LJ
The Respondents' claims
[1] The respondents lodged claim forms with the Office of the Industrial Tribunals and Fair Employment Tribunal on 15 February 2007. Their claims arose out of their dismissals by their employer Bombardier Aerospace / Short Brothers Plc. According to his claim form William John McConnell began employment as a fitter with the appellant in May 1997 and he was dismissed on 9 May 2007 on the grounds of redundancy. He claimed to be an active member of the Amicus Trade Union and was a shop steward. He claimed that in dismissing him by way of redundancy Shorts took improper account of his trade union activities and asserted that his selection for redundancy was influenced by unlawful discriminatory conditions. He claimed for unfair dismissal and made an application for interim relief pending determination of his unfair dismissal complaint. Glenn Larmour in his claim form stated that he was dismissed on 9 February 2007 from the position of fitter which he had held since February 2001. He claimed to be a health and safety representative in the aircraft assembly building and that he acted as a union representative for workers with an associated company. He claimed for unfair dismissal and made an application for interim relief. Andrew Stewart Gallagher in his claim form also claimed that he was unfairly dismissed and claimed interim relief. He claimed that he was an active member of Amicus Trade Union and that during the five years prior to his dismissal on 9 February 2007 he had been shop steward. He was also a health and safety representative for six years. All three respondents claimed that their roles as trade union or health and safety representatives were used against them in their dismissals for redundancy. [2] Having received interim relief claims within the prescribed period under Article 163 of the Employment Rights (Northern Ireland) Order 1996, and lodged a certificate, the tribunal was bound under Article 163(7) to determine the applications as soon as practicable after receiving them. The applications for interim relief were listed for hearing on 21 March 2007. The appellant contended that the tribunal did not have jurisdiction to hear and determine the respondents' applications for interim relief arguing that the interim relief provisions contained in Article 163 did not apply in redundancy cases involving alleged unfair selection. The tribunal accepted that this was a preliminary point and it heard submissions. It concluded that it did have jurisdiction. The tribunal did not proceed to determine whether the claimants were entitled to interim relief because the appellant, being dissatisfied on a point of law with the decision of the tribunal, by requisition on 26 March 2007 required the tribunal to state a case on the question whether it was correct in law in deciding that it had jurisdiction to consider the respondents' applications for interim relief under Article 163. [3] As is clear from the provisions of Article 163(7) the tribunal was required to proceed with dispatch to determine the interim relief claims which were intended to secure relief pending the full trial of the issues in the cases. The jurisdictional issue was, of course, a first issue that had to be addressed but there was nothing to prevent the tribunal proceeding with the whole interim application and this may well have been the most desirable course to follow to prevent the possibility of a second appeal on any other ruling(s) in the interim relief applications. Having determined that the tribunal had jurisdiction it could have gone on to hear the evidence and arguments for interim relief. Such a hearing is intended to be short and succinct. The parties would then have the benefit of a ruling on the whole application which would not have deprived the appellants of the right to challenge the legal conclusion on jurisdiction and on the substance of the decision. Tribunals should have regard to what has already been stated by this court in Cunningham v Ballylaw Foods Limited: [2007]NICA 7"Tribunals should in each individual case consider whether the course of determining a preliminary issue is the most desirable one to follow. Frequently the evidence will be short and may throw up points that themselves may indicate the possibility of an appeal. In many cases it may be quicker in the long term, more cost effective and better use of Tribunal's time to hear all issues at the same time."
The course followed by the tribunal has had the result that the respondents have not obtained the benefit of interim relief to which they may be entitled. Article 163(10) highlights the tribunal's duty to proceed to hear the application for interim relief by forbidding the tribunal to postpone the hearing of the application for interim relief except when it is satisfied that special circumstances exist which justify it in doing so.
The statutory context
[4] Article 163 of the 1996 Order provides that:"(1) An employee who presents a complaint to an industrial tribunal –
(a) that he has been unfairly dismissed by his employer, and
(b) that the reason (or if more than one, the principal reason) for the dismissal is one of those specified in Article 132(1)(a) and (b), 133(1), 134 or 136(1),
may apply to the tribunal for interim relief."
The tribunal must not entertain an application for interim relief unless it is presented to the tribunal before the end of a seven days period immediately following the effective date of termination, whether before, on or after that date. Where the employer relies on Article 136(1)(a) or (b) the Tribunal shall not entertain the application unless before the end of the relevant period there is also presented a certificate in writing signed by an authorised official of the independent trade union of which the employee was or proposed to become a member stating that on the date of the dismissal the employee was or proposed to become a member of the union and that there appeared to be reasonable grounds for supposing the reason for dismissal or more than one that the principal reason was one alleged in the complaint. Those pre-conditions to jurisdiction are satisfied in this instance. Under Article 164 if the tribunal is satisfied that it is likely that in determining the applicant's complaint it will find that the reason or, if ,more than one, the principal reason for his dismissal is one specified in the relevant articles it must announce its findings and proceed to grant the appropriate interim relief.
[5] Article 132(1)(a) and (b) treats as unfair a dismissal effected because of the employee's activities in connection with preventing or reducing risks to health and safety at work, the employee having been designated to carry out such activities or because the employee performed health and safety functions as a worker representative. [6] Article 136 treats as unfair a dismissal if the reason, or if more than one the principal reason, relates to him being or proposing to become a member of an independent trade union; to taking part at an appropriate time as defined in union activities or refusing to become or remain a member of a trade union. [7] The granting of interim relief in an employment context is an exceptional remedy. Article 163 provides for interim relief to preserve the status quo until the full hearing. As noted the statutory conditions in respect of the timing of the application and the presentation of the relevant certificate must be satisfied. The applicant must be able to convince the tribunal that he is likely to succeed in his claim for unfair dismissal and that the reason or, if more than one, the principal reason for the dismissal was one of those specified in the relevant Articles. The interim relief provisions were a response to the problem of dismissals of trade unionists which have the potential to generate suspicion of victimisation which on occasions can result in industrial unrest and industrial action. As pointed out in Harvey on Industrial Relations and Employment Law at paragraph 593 an application for interim relief is intended to head off industrial trouble before it begins or at least before it becomes too serious by allowing an employment tribunal to give a preliminary ruling at an emergency hearing.The appellant's case
[8] Mr Brangam QC on behalf of the appellant argued that there is a distinction between on the one hand what can be called "misconduct dismissals" and, on the other hand, so called "unfair selection cases" being cases where there have been redundancies and employees have claimed that they have been victimised. Any consideration of the legal meaning of Article 163 must take account of the legislative history, the presumed legislative intent and all the provisions of the Order. Mr Brangam called attention to the provisions of Article 137. This deems a redundancy dismissal to be unfair dismissal if the employee was dismissed inter alia for health and safety activities falling within Article 132 or for union activities under Article 136(1). Counsel contended that Article 163 of the Order must take account of the fact that Parliament has specifically omitted cases contemplated by Article 137. He relied in particular on a passage in Harvey (op.cit.) at paragraph 582 stating:"An employee unfairly selected for redundancy on union grounds may not claim interim relief …"
It was argued that the claim forms make clear that these cases are clearly cases of alleged unfair selection for redundancy and fall within Article 137. Their termination was not the result of misconduct dismissals but rather the result of alleged unfair selection leading to redundancy and the payment of compensation.
Previous tribunal decisions
[9] In Busteed v Short Brothers Plc Case 2639-02 the Vice President of Industrial Tribunals rejected the argument that the jurisdiction to grant interim relief was excluded because of the provisions of Article 137. She considered that to do so would mean that any employee who declared a redundancy situation would have the means open to him to dismiss trade union members knowing that they could not avail of the right to interim relief. In an earlier tribunal decision in Kelly v Polarcup Limited (04748-99K) the tribunal accepted the argument made by Mr Brangam in this case. It concluded that Article 163 when referring to the reason or principal reason for dismissal does not refer specifically to the redundancy provisions in Article 137. Unfair redundancy dismissals can be said to differ from other unfair dismissals. The tribunal did however state that while it would have been easy to make specific reference to Article 137 unfair redundancy dismissals are in any event included in unfair dismissal generally.The tribunal's decision
[10] In the present case the Tribunal considered that the critical point is the nature of the claim presented. In this instance the claimants were claiming for unfair dismissal. In paragraph 8(4) of its case stated the tribunal stated that paragraph 7 of each claim form also made reference to unfair selection for redundancy. Article 163(1)(b) does not include reference to Article 137 of the Order. It considered that where a claim as presented falls within Article 137 the tribunal does not have jurisdiction to hear or determine the application for relief. The tribunal noted, however, that each of the claims as presented did not include any contention that there were other employees in the same undertaking who held similar positions to those held by the respondents but had not been dismissed by the appellants. None of the claim forms contained references to other employees. The tribunal thus accepted that where a claim as presented falls within Article 137 of the Order the Tribunal does not have jurisdiction. It considered that as the claims as framed did not fall squarely within the scope of Article 137(1)(b) but arguably fell within the scope of Article 132 and Article 136 the tribunal had jurisdiction under Article 163 to hear and determine the respondent's application for interim relief.Conclusions
[11] The jurisdiction of the tribunal to entertain an application for interim relief is dependent on the presentation of the application within the requisite time supported by a certificate signed by an authorised official of the relevant independent trade union. The respondents had unarguably satisfied those pre-conditions. The application must be based on a complaint that the relevant employee has been unfairly dismissed. Clearly in this instance each of the respondents was making a complaint of unfair dismissal. Reading the claim forms fairly the respondents were alleging that the reasons or principal reasons for dismissal were either under Article 132(1) or under Article 136(1). Having made those cases, whether they were good or bad, they fell within the provisions of the article and were entitled to apply for interim relief. It was then a matter for each respondent to persuade the tribunal that it was likely that in determining the complaint the tribunal would find that the reason for dismissal was one of those specified in Articles 132 or 136 as the case may be. Approaching the matter in this way it is apparent that the tribunal correctly concluded that it had jurisdiction to entertain the application for interim relief. [12] In paragraph 8(4) of its case stated the tribunal expressed itself more fully than it did in paragraph 10(4) of its decision and stated that when a claim falls within Article 137 of the Order the tribunal does not have jurisdiction to hear and determine an application for interim relief. The tribunal considered that since the claims did not include a reference to other employees in the same undertaking who held similar positions but had not been dismissed the claims did not fall squarely within article 137(1)(b). It seems implicit in the tribunal's reasoning that if it had been pleaded or established that there were other employees who held similar positions to those held by the respondents but had not been dismissed the case would be an article 137 case involving unfair selection and therefore outside the interim relief provisions. The approach adopted by the tribunal was a narrow one focussing on what was in substance a pleading point. In fact the appellant's case clearly is that a significant number of persons were selected for redundancy and that this was a true article 137 case taking the respondents' cases at their height. If the case is simply remitted to the tribunal to continue with the applications without guidance on the proper approach to article 137 cases the matter is very likely to return to this court to deal with that issue. The claim forms in fact do point to an allegation of unfair selection of the applicants for redundancy and by necessary implication the respondents were asserting that they were picked out for redundancy because of their union activities when others not involved in trade union activities were not selected for redundancy. In fact if not in form the case stated raises the question whether a tribunal would be precluded from granting interim relief in a case of unfair selection for redundancy falling within Article 137. [13] Article 137 renders a dismissal unfair if the reason or principal reason for dismissal is redundancy but where the employee is discriminated against in terms of selection because of, for example, trade union or health or safety activities. A dismissal for redundancy can be found to be an unfair dismissal if a tribunal considers that the employer acted unreasonably in treating the redundancy as a sufficient reason to dismiss the employee having regard to the equity and substantial merits of the case. (See Article 130(4)). There can be some overlap between (a) dismissals that are unfair having regard to Article 130(4) because of the employer holding against the employee trade union or health and safety representation activities; (b) dismissals which are unfair under Article 132(1) and Article 136; and (c) dismissals for redundancy which are unfair if the reasons are contrary to (inter alia) Articles 132(1) and 136(1). [14] For the reasons set out in paragraphs [7] to [12] of the judgment of Campbell LJ if the principal reason for dismissal is a true redundancy rather than a fabricated redundancy designed to be used as a means to dismiss a trade union activist the case would fall within article 137 as a case of unfair selection for redundancy. I agree with Campbell LJ's analysis and conclusion that such a case would fall outwith the interim relief provisions.[15} The tribunal has not moved to the stage of considering whether the respondents have discharged the onus lying on them of showing that they are likely to succeed in establishing that they were dismissed for one of the inadmissible reasons. It will have to reach conclusions on that question and in doing so will have to consider the appellants' case that the cases fall within article 137 and that there was a genuine redundancy situation. I conclude that the tribunal was not in error in deciding that it should entertain the interim relief applications. I would answer the question posed in the case stated in the affirmative and remit the matter to the tribunal to conclude the interim relief applications taking account of the judgments in this court.