Fair Employment Tribunal Northern Ireland Decisions

 
FAIR EMPLOYMENT TRIBUNAL

CASE REF: 337/02FET & 1861/02

(See attached list)

APPLICANTS: Victor Atkinson & Others

(See attached list)

RESPONDENT: ICTS (UK) Limited

INTERIM DECISION

The unanimous decision of the Tribunal is that the industrial action undertaken by the applicants on 14 May 2002 was lawful.

This decision is given in extended form because the Tribunal considers that reasons given in summary form would not sufficiently explain the grounds for its decision.

Appearances:

The applicants, with the exception of Amanda Logan, were represented by Mr D McBrien, Barrister-at-Law, instructed by Breslin McCormick & Co Solicitors.

The respondent was represented by Ms M Anderson of Peninsula Business Services Limited.

The Tribunal found the following facts proved on the balance of probabilities.

1. The applicants were employed by the respondent as aviation security agents. They were members of the Amalgamated Transport and General Workers Union.
2. The union through the shop-stewards and the regional industrial organiser Mr McCusker had been in negotiation with the respondent with regard to increasing the applicants' wages to £6.00 per hour from November 2001.
3. The respondent made two offers to increase the hourly rate. These offers were rejected by the membership as falling far short of what the trade union members were looking for.
4. The members were dissatisfied and eventually a lawful ballot took place where the members agreed by a substantial majority to take industrial action.
5. The respondent was notified by letter dated 18 April 2002 of the result of the ballot for industrial action.
6. A letter dated 30 April 2002 was sent from J McCusker to the respondent giving the appropriate notice for discontinuous stoppages. It set out the dates and times on which the stoppages were to occur as follows:

Wednesday 8 May From 4am to 6am (Nightshift)

From 6am to 8am (Crew 1)

From 6pm to 8pm (Crew 2)

Thursday 9 May From 4am to 6am (Nightshift)

From 6am to 8am (Crew 1)

From 6pm to 8pm (Crew 2)

Friday 10 May From 4am to 6am (Nightshift)

From 6am to 8am (Crew 1)

From 6pm to 8pm (Crew 2)

Saturday 11 May From 4am to 6am (Nightshift)

From 6am to 8am (Crew 1)

From 6pm to 8pm (Crew 2)

Monday 13 May From 4am to 6am (Nightshift)

From 6am to 8am (Crew 1)

From 6pm to 8pm (Crew 2)

Tuesday 14 May From 4am to 6am (Nightshift)

From 6am to 8am (Crew 1)

From 6pm to 8pm (Crew 2)

Friday 17 May From 4am to 6am (Nightshift)

From 6am to 8am (Crew 1)

From 6pm to 8pm (Crew 2)

Saturday 18 May From 4am to 6am (Nightshift)

From 6am to 8am (Crew 1)

From 6pm to 8pm (Crew 2)

7. Stoppages as notified took place on Wednesday 8 May 2002 from 4.00 am until 8.00 am. Later that day the Labour Relations Agency offered their conciliation services to the parties and in consequence the industrial action which had been notified to take place from 6.00 pm to 8.00 pm on that day was suspended.
8. Two shop-stewards, Gordon McNeill and Madan Gupta together with the union's regional industrial organiser Joseph McCusker attended at the Labour Relations Agency that afternoon. The respondent was not present or represented.
9. It was agreed at that meeting to suspend the industrial action up until 13 May 2002 and Mr McCusker sent a fax to Jim Finnegan, the respondent's regional manager, which read:

"Our members are prepared to defer the industrial action until 13 May 2002, to accommodate negotiations under the auspices of the Labour Relations Agency".

10. Mr McCusker subsequently after telephone calls sent two more faxes to Mr Finnegan – one saying:

"Please ignore the date of 13 May 2002. However I would stress that the industrial action is suspended.

A further fax from Mr McCusker on the same day was sent saying:

"Following an inquiry from Liam Trainor of the Labour Relations Agency, I confirm that the last day of suspension of the industrial action is Tuesday 14 May 2002.

This is clearly on the understanding that the company enters into meaningful negotiations in good faith."

11. The shop-stewards who were present with Mr McCusker on 8 May 2002 at the Labour Relations Agency were unaware of the three faxes and their content as sent by Mr McCusker. The shop-stewards believed that the industrial action was suspended up to and including 13 May 2002.
12. A further meeting took place on Thursday 9 May at the Labour Relations Agency which was attended by Ben Lewis the respondent's Company Secretary/Financial Director, Jayne Thorpe the respondent's Human Resources Director, Jim Finnegan, Mr W Condit who was at that time a regional industrial organiser for the union, Mr McNeill and Mr Gupta. Mr McCusker was unavailable.
13. Mr Lewis set out the respondent's difficulties in meeting the union's requested increase but no constructive offer was made. Mr Condit pointed out that if matters did not progress industrial action would be resumed on Tuesday 14 May 2004.
14. A further meeting took place at the Labour Relations Agency on Friday 10 May 2002. Present on that occasion were Mr McCusker, Mr McNeill, Mr Gupta, Mr Lewis, Mr Finnegan and Ms Thorpe. Mr Lewis said he had no further offer and that he would have to consult the English Board of Directors and the respondent's European Board.
15. Mr McCusker said that the respondent's representatives were not entering into meaningful discussions and that unless a reasonable offer was made by Monday 13 May 2002 industrial action would be resumed. It was agreed however to suspend the industrial action which was due to take place on Saturday 11 May 2002 and Monday 13 May 2002.
16. Mr Lewis took no steps over the weekend to advance the matter. On Monday 13 May 2002 he consulted with his Managing Director Mr G Vago whose office was beside his at the respondent's London office. He also did some work on his computer by way of projections. There was no Board of Directors in England apart from Mr Vago and Mr Lewis did not personally consult with the European Board.
17. By Monday 13 May 2002 no further offer had been made by the respondent whereas the industrial action had been suspended on 8, 9, 10, 11 and 13 May 2002.
18. On 13 May 2002 Mr Gupta and Mr McNeill both contacted Mr McCusker by telephone emphasising that if an offer was not received that day from the respondent the industrial action would go ahead the next day, 14 May 2002 as previously notified.
19. Mr Gupta asked Mr McCusker to confirm that if the industrial action resumed on Tuesday 14 May that it was official industrial action. Mr McCusker did not come back to Mr Gupta in relation to this query.
20. Also on Monday 13 May 2002 Mr McNeill contacted Fergus Whitty, the legal officer for the Transport and General Workers' Union in London, with the same query as to whether the resumption of industrial action on 14 May 2002 would be official. Mr Whitty asked for time to research this and asked Mr McNeill to telephone him back. When Mr McNeill telephoned him back Mr Whitty told Mr McNeill that he considered resumption would be official and instructed Mr McNeill that in future he should deal with such queries through the regional industrial organiser.
21. After 4.00 pm on 13 May 2002 Mr Gupta spoke to Mr McCusker and told him that Mr McNeill had told him that Mr Whitty had said that the resumption of the industrial action the next day would be official and Mr McCusker told Mr Gupta that he had informed Ben Lewis that the industrial action would resume on 14 May 2002.
22. The industrial action resumed at 4.00 am on Tuesday 14 May 2002.
23. At approximately 5.30-5.45 am Clifford Duncan the respondent's Station Manager informed the shop-stewards that the respondent regarded the industrial action as not official and Mr McNeill and Mr Gupta told him the opinions of Mr Whitty and Mr McCusker.
24. Sometime in the morning of 14 May 2002 Mr McNeill was given a letter from the respondent signed by Jane Thorpe, headed "illegal stoppages 0400-0800 Tuesday 14 May 2002" which informed Mr McNeill that the respondent regarded the stoppage as unofficial illegal action.
25. Mr McNeill tried to contact Mr McCusker on receipt of this letter by telephone but was unable to do so. He subsequently arranged for a copy of the letter to be faxed to Mr McCusker from the Ballymena Office of the union that day. He was not contacted by Mr McCusker for the rest of that day or on 15 May 2002. He felt he should not get in touch with Mr Whitty again in view of his instruction to communicate through the regional industrial organiser.
26. Mr McNeill and Mr Gupta were concerned at their inability to contact Mr McCusker particularly in view of the letter received by Mr McNeill and so they called off the industrial action which was due to take place from 6.00 pm to 8.00 pm on 14 May 2002 as they were concerned about the effect of the respondent's view that the strike was illegal could have on the members' jobs.
27. The 15 and 16 May were normal working days at the airport as industrial action had never been notified for those days.
28. When Mr McNeill reported for work on Thursday 16 May 2002 at 6.00 am he was met by Mr Finnegan and Ms Thorpe who handed him a letter and told him he was suspended pending disciplinary action and he was escorted to his car and told not to contact witnesses or enter the airport.
29. When Mr McNeill returned home on 16 May 2002 he received a letter from Mr McCusker dated 15 May 2002 informing him that the union had repudiated the call for industrial action. That letter also requested Mr McNeill to bring the letter to the attention of the members.
30. Meanwhile on 15 May in the afternoon Mr McCusker had met with Mr Lewis and Ms Thorpe in a public house close to the airport where he handed to them a copy or copies of the letters from the union dated 15 May 2002 which were addressed to Mr McNeill and Mr Gupta repudiating the industrial action. This was the only notification the respondent was given by the union of the repudiation.
31. None of the members of the union who took part in the industrial action ever received formal notification of the repudiation from the union.
32. The representatives were invited to provide written submissions to the Tribunal and these are attached to this decision and are intended to form part of it. In addition Mr McBrien in particular expanded on his skeleton argument.
33. This interim decision in relation to whether the industrial action on 14 May 2002 was lawful is part of the wider case as to whether the applicants were unlawfully discriminated against on grounds of religious belief/political opinion under the Fair Employment and Treatment (Northern Ireland) Order 1998 and/or whether they were unfairly dismissed under the Employment Rights (Northern Ireland) Order 1996.
34. Article 143 of the Employment Rights (Northern Ireland) Order 1996 headed "Dismissal of those taking part in unofficial industrial action" provides:-

"(1) Article 126 does not apply to the dismissal of an employee if at the time of dismissal he was taking part in an unofficial strike or other unofficial industrial action.

(3) A strike or other industrial action is unofficial in relation to an employee unless-

(a) he is a member of a trade union and the action is authorised or endorsed by that union, or

(b) he is not a member of a trade union but there are among those taking part in the industrial action members of a trade union by which the action has been authorised or endorsed,

but a strike or other industrial action shall not be regarded as unofficial if none of those taking part in it are members of a trade union.

(4) The provisions of Article 21(2) of the 1992 Order apply for the purpose of determining whether industrial action is to be taken to have been authorised or endorsed by a trade union.

(5) The question whether industrial action is to be so taken in any case shall be determined by reference to the facts as at the time of dismissal; but where an act is repudiated as mentioned in Article 21A of the 1992 Order, industrial action shall not thereby be treated as unofficial before the end of the next working day after the day on which the repudiation takes place.

35. It was common case that the industrial action was properly balloted for and notified to the respondent as discontinuous industrial action to take place on specified dates. It is well established that where discontinuous industrial action has been notified there is no requirement for the union to give new notice after every stop and before every start.
36. It is well established that shop-stewards such as Mr McNeill and Mr Gupta are officials of the union as referred to in Article 21(2)(c) of the Industrial Relations (Northern Ireland) Order 1992 and have the authority to authorise or endorse an act including organising or co-ordinating industrial action on behalf of the union.
37. Article 21(2)(c) and (3) of the Trade Union and Labour Relations (Northern Ireland) Order 1992 provides:

(2) An act shall be taken to have been authorised or endorsed by a trade union if it was or done, or was authorised or endorsed -

(a) by a person empowered by the rules to do, authorise or endorse acts of the kind in question or

(b) …………………………………………………………………………

(c) by any other committee of the union or any other official of the union (whether employed by it or not).

(3) For the purposes of sub-paragraph (c) of paragraph

(a) any group of persons constituted in accordance with the rules of the union is a committee of the union; and

(b) an act shall be taken to have been done, authorised or endorsed by an official if it was done, authorised or endorsed by, or by an member of, any group of persons of which he was at the material time a member, the purposes of which included organising or co-ordinating industrial action.

(4) The provisions of sub-paragraphs (b) and (c) of paragraph 2 apply notwithstanding anything in the rules of the union, or in any contract or rule of law, but subject to the provisions of Article 21A (repudiation by union of certain acts).

38. The Tribunal accepts that it was agreed at the meetings during the previous week that the suspension would include 14 May 2002. This was however subject to the negotiations being conducted in good faith as set out in the third fax sent by Mr McCusker on 8 May and reiterated at the meetings on 9 and 10 May 2002. The Tribunal also accepted that the shop-stewards had never been happy with the inclusion of 14 May in the suspension because they knew this would create difficulties in organising a further ballot with regard to continuing the industrial action because three days were needed to complete the ballot on account of the applicants' shift patterns.
39. The Tribunal also accepts that when it became clear on 13 May that there was no increased offer coming from the respondent the shop-stewards concluded that the negotiations were not being conducted in good faith and having discussed the matter with Mr McCusker and Mr Whitty they decided to withdraw the agreement with regard to the suspension and resume the previously notified industrial action from 4.00 am on 14 May. The shop-stewards Mr McNeill and Mr Gupta did this with the knowledge and acquiescence of Mr McCusker and Mr Whitty and Mr McCusker informed Mr Lewis on 13 May 2002 that the industrial action would recommence the following day.
40. In these circumstances the Tribunal accepts that the shop-stewards had the authority to take this step in view of Article 21(2)(c) and (3) and that it was authorised and/or endorsed by Mr McCusker who knowing that it was going to take place took no steps at that stage or at any time on 14 May to advise the applicants or the shop-stewards to desist from the industrial action.
41. The Tribunal then considered the union's purported repudiation of the act of resuming the industrial action on 14 May 2002.
42. Article 21A of the Industrial Relations (Northern Ireland) Order 1992 provides that:

Repudiation by union of certain acts

21A – (1) An act shall not be taken to have been authorised or endorsed by a trade union by virtue only of sub-paragraph (c) of Article 21(2) if it was repudiated by the executive, president or general secretary as soon as reasonably practicable after coming to the knowledge of any of them.

(2) Where an act is repudiated -

(a) written notice of the repudiation must be given to the committee or official in question, without delay, and

(b) the union must do its best to give individual written notice of the fact and date of repudiation, without delay-

(i) to every member of the union who the union has reason to believe is taking part, or might otherwise take part, in industrial action as a result of the act, and

(ii) to the employer of every such member.

(3) The notice given to members in accordance with sub-paragraph (b)(i) and paragraph (2) must contain the following statement-

"Your union has repudiated the call (or calls) for industrial action to which this notice relates and will give no support to unofficial industrial action taken in response to it (or them). If you are dismissed while taking unofficial industrial action, you will have no right to complaint of unfair dismissal."

(4) If paragraph (2) or (3) is not complied with, the repudiation shall be treated as ineffective

43. The Tribunal is satisfied that the union in the form of Mr McCusker and Mr Whitty in London knew on 13 May that the industrial action was going to be reimposed on 14 May and it knew by 5.45 am on 14 May that it was taking place because Mr McNeill telephoned Mr McCusker and informed him that the industrial action had recommenced. The union also knew or ought to have known that by the time of its purported repudiation the industrial action had been called off in relation to the period 4.00 am to 6.00 am on 14 May.
44. The Tribunal had doubts as to whether the handing over to Mr Lewis and Ms Thorpe by Mr McCusker of a copy or copies of the letters sent to Mr McNeill and Mr Gupta was sufficient to comply with the requirement in Article 21A 2 (b )(ii) for the union to do its best to give individual written notice of the fact of repudiation to the employer.
45. The Tribunal noted that in the letter of repudiation dated 15 May 2002 sent to Mr McNeill and Mr Gupta by Mr McCusker there was a request at the bottom which read:

"NB. Please bring this letter to the attention of our members."

In the Tribunal's view this was not sufficient to comply with the union's obligation to do its best to give individual written notice to its members of the repudiation. The Tribunal was satisfied that the written notification required under Article 21A 2(b) (i) was never given to the members of the union who had taken part in the industrial action and the Tribunal in accordance with Article 21A (4) concluded that the repudiation therefore was ineffective.

46. Having found that the repudiation was ineffective the Tribunal concluded that the industrial action which took place on 14 May 2002 from 4.00 am to 8.00 am was not unofficial industrial action. The Tribunal therefore concluded that because the shop-stewards had the authority to call off the suspension of the industrial action and to call for the resumption of the industrial action and because the union's repudiation of the industrial action was ineffective the industrial action taken on 14 May 2004 from 4.00 am to 8.00 am was lawful.
47. These matters will now be listed in the Fair Employment Tribunal for consideration of the substantive matters in relation to the complaints of unlawful discrimination on grounds of religious belief/political opinion and unfair dismissal. Mr McNeill and Mr McAuley's complaints of unfair dismissal and discrimination on grounds of disability will be dealt with by an Industrial Tribunal.

Chairman:_____________________________________

Date and place of hearing: 29, 30 November 2004, 1, 2 & 3 December 2004, Belfast.

Date decision recorded in register and issued to parties: