Fair Employment Tribunal Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIFET/2006/187_05.html
Cite as: [2006] NIFET 187_05, [2006] NIFET 187_5

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FAIR EMPLOYMENT TRIBUNAL

CASE REFS: 187/05 FET

1405/05

209/05 FET

1659/05

210/05 FET

1660/05

1422/05

CLAIMANTS: Stephen Mooney

Riccardo Cufolla

RESPONDENT: Andras House Ltd

DECISION ON A PRE-HEARING REVIEW

The decision of the Tribunal is that the claimants' letters of appeal did constitute a statutory grievance for the purposes of Article 20 of the Employment (Northern Ireland) Order 2003.

Constitution of Tribunal:

Vice President (sitting alone): Mrs M Price

Appearances:

The claimants were represented by Mr K Denvir, Barrister-at-Law, instructed by Campbell Stafford, Solicitors.

The respondent was represented by Mr P Moore, of Peninsula Business Services.

These cases were listed for a pre-hearing review to consider whether the claimants had presented a statutory grievance to their employers in relation to their claims of religious belief discrimination and in relation to failure to pay wages and notice pay.

There was considerable discussion about the status of the various claims that had been brought to the Tribunal and after considerable investigations by the parties I am satisfied that confusion had been caused because the first set of claims which were lodged, namely those by Mr Mooney and Mr Cufolla in October 2005, had been accepted in full by the office. What appears to have happened is that when the responses were received to those claims the respondent highlighted that the grievance had not been completed by the claimants and it was at this stage that the claimants' solicitors were notified of a potential problem. They then wrote to the Tribunal and entered a fresh set of claims for both claimants and these were registered in December 2005. The respondent made reference to the fact that these claims were then outside the statutory time limits.

Mr Campbell, for the claimants, wrote to the respondent on 7 November 2005 initiating a formal grievance and also re-submitted claims to the Tribunal.

There appears to have been an administrative error that resulted in Claim Reference No: 1660/05 then having written on the form 'previously rejected case re-submitted on 6 December 2005'. This was not the correct position, because the original claim had been accepted and this was an additional claim because the solicitor was concerned that there was a problem with the grievance. So this has resulted in seven claims at present accepted by the Office of the Tribunals.

The issue for consideration by me is whether the letters sent by both claimants to the Human Resources Department of the company can constitute a statutory grievance within the meaning of Article 20(1) and (2) of the Employment (Northern Ireland) Order 2003 and also Article 19(1) and (2) of the same Order. It is accepted that if the letters written by the two claimants can constitute a statutory grievance then their claims are within the relevant time limits.

Counsel for the claimants referred me to the case of Canary Wharf Management Limited v Edebi which is an Employment Appeal Tribunal decision given by the President, Mr Justice Elias, on 3 March 2006. It is a most helpful decision because it analyses the previous decisions in relation to what constitutes a statutory grievance. At Paragraph 19 of that decision the President refers to the fact that the act of raising a complaint months or years prior to lodging the Tribunal claim may or may not constitute the appropriate raising of grievance. The grievance must be extant. At Paragraph 20 he draws attention to the form of the grievance, in which he says it may be raised as a letter, it may even be raised after a dismissal has taken effect, it may be raised by a solicitor in a communication to the employer's solicitor. At Paragraph 21 he deals with the content of the grievance. He states, "it is enough therefore that the employee identifies the complaint" and further, "the only requirement is that the complaint to the employer must be essentially the same complaint that is subsequently advanced before the Tribunal".

I have considered the letters that were written by both the claimants following their letter of dismissal. These letters were for the purposes of an appeal hearing which subsequently confirmed the decision to dismiss the claimants. However they do set out in their letters the same complaints that they are raising in their claim forms and I am satisfied that the use of the word 'harassment' in the context of what had been happening in the hotel can be viewed as a claim of a religious discrimination in both cases. I am satisfied that the respondents were aware of a situation which could have been viewed as sectarian harassment of the claimants and that these letters from each of the claimants can be viewed as a letter of grievance within the meaning of the Employment (Northern Ireland) Order 2003.

Having discussed the matters with the parties' representatives, in view of this finding it would be appropriate for the claimants to withdraw some of their claims as the information provided is the same and the Tribunal would be concerned with hearing evidence in relation to one set of proceedings for each of the claimants.

Vice President:

Date and place of hearing:

Date decision recorded in register and issued to parties: