Industrial Tribunals Northern Ireland Decisions

 


Cupples v 4/5 Rangers & Anor (Unfair Dismissal) [2002] NIIT 03398_99 (16 September 2002)

THE INDUSTRIAL TRIBUNALS

CASE REF: 03398/99UD

3399/99SD

04374/99SD

01208/00

APPLICANT: Alison Cupples

RESPONDENT: 4/5 Rangers and Ministry of Defence

DECISION

The unanimous decision of the tribunal is as follows:

(i) The applicant's complaint of unfair dismissal is dismissed because the tribunal does not have jurisdiction to entertain that complaint.

(ii) All the applicant's other complaints are dismissed because they are not well founded.

Appearances:

The applicant was not present and was not represented.

The respondent was represented by Mr S Ritchie, instructed by the Crown Solicitor.

REASONS

1. These reasons are given in extended form.

Procedural matters

2. The Applicant failed to attend or to be represented at the time and place fixed for the hearing of these complaints.
3. In a letter dated 11th September, which the Applicant sent to the Office of the Industrial Tribunals, the Applicant stated that she had recently been advised by the Equality Commission that they were no longer able to "assist" her case. She added that she was unable to afford legal representation and that she had approached the Law Centre "who may be in a position to help me if I can have my case postponed to enable them to consider it". In the same letter, the Applicant asked for a postponement. She pointed out that she had considered representing herself but believed that this would be too stressful for her.
4. The Applicant knew that her written application for postponement had not been granted. Nevertheless, she was not present on the date, and at the time, fixed for the hearing. In those circumstances, the tribunal had no adequate evidence on the question of whether or not the Applicant was making proportionate efforts to obtain alternative free legal representation, or whether there was any real prospect of such representation being obtained. The tribunal was aware of the fact that, if indeed the Applicant did have good grounds for her absence, it would be open to her to apply for review of this Decision.
5. The tribunal was aware of the fact that a number of witnesses were present on behalf of the Respondent and that all of those witnesses would have had to rearrange their diaries for the week's hearing which had been planned for16-20 September 2002.
6. Against that background, the tribunal decided not to postpone the proceedings. Instead, pursuant to Rule 9(3) of the Industrial Tribunals Rules of Procedure 1996 ("the Rules"), the tribunal decided to dispose of the applications in the absence of the Applicant.
7. Before doing so, the tribunal considered the various originating applications which were the subject of this hearing. (No representations in writing were presented by the Applicant in pursuance of Rule 8 (4). No written answer was furnished to the Tribunal pursuant to Rule 4(3) of the Rules).
8. The purpose of this hearing was to adjudicate in respect of the various originating applications which had been presented, against the same Respondent, by the Applicant.
9. By Order dated 23rd January 2001, it was ordered, pursuant to Rule 18 of the Rules, that all of the relevant originating applications were to be considered together.

Background

10. For some years, until 6 April 2000, the Applicant was a part-time soldier in the Territorial Army, although, for a lengthy part of her period of service in the TA, she was, in reality, carrying out duties as an Orderly Room Clerk on a full-time basis.

The complaints

11. The relevant originating applications are as follows:

Firstly, there is an application which was presented on 4th August 1999. (We refer to that application as "Application A").

Secondly, an application was presented on 28th October 1999. ("We refer to that application as "Application B").

Thirdly, an application was presented on 14th June 2000. (We refer to that application as "Application C").

12. We consider that the three originating applications, when read together, contain the following complaints:

(1) A complaint that the Applicant was subjected to various instances of ill-treatment while she was serving in the Territorial Army and an assertion that the respondent was, by virtue of that mistreatment, legally responsible for acts of sex discrimination against the applicant, contrary to Article 3(1)(a) of the Sex Discrimination (Northern Ireland) Order 1976 ("the 1976 Order").

(2) An allegation that, contrary to the provisions of Part XI of the Employment Rights (Northern Ireland) Order 1996 ("the 1996 Order"), the Applicant was unfairly dismissed by the Respondent.

(3) An allegation that the Applicant was the subject of various acts of victimisation discrimination contrary to Article 6 of the 1976 Order, in that her hours of service in the TA were reduced; she was prevented from re-engaging in the TA; and she was deliberately obstructed in connection with such re-engagement.

The evidence

13. We heard evidence from the following:

(1) Lt. Colonel John Rollins

(2) Captain David Gracie

(3) Major Richard Morphew

14. We were shown copies of correspondence which had passed between the Applicant and the TA during a period which began in February 2000 and ended in May 2000. We also saw copies of an Application to Re-engage signed by the Applicant in 1997; a full-time reserve commitment form signed by the applicant in 1998; and Posting Orders made in 1998 and 1999.
15. As already noted above, we considered the Applicant's various Originating Applications before disposing of those applications.

Findings of fact

16. The tribunal made the following findings of fact:

(1) The tribunal is not satisfied that the applicant was subjected to any of the acts of ill-treatment mentioned by her in her Originating Applications.

(2) The tribunal is not satisfied that any of the Applicant's superiors in the Territorial Army treated her less favourably than they treated or would treat a man in the same, or similar, circumstances.

(3) The tribunal is not satisfied that the treatment accorded to the Applicant was affected in any way by the Applicant's gender, or by the fact that she had made complaints, or by the fact that she had asserted her rights.

(4) The tribunal is not satisfied that the Applicant was treated less favourably, by any person for whose actions or omissions the Respondent is responsible, than the relevant individual had treated or would treat a person who had not made any complaint, or invoked any rights, in connection with the 1976 Order.

(5) We are satisfied that the TA ceased to require the Applicant to work full-time hours only because of funding cuts.

(6) We are satisfied that nobody prevented the Applicant from re-engaging with the TA in the year 2000 and that nobody obstructed her in that connection.

The law on Unfair Dismissal and our conclusions

17. For the Respondent, Mr Ritchie argued that the tribunal had no jurisdiction to entertain the Applicant's Unfair Dismissal complaint, because of the effect of Article 237 of the 1996 Order, as substituted by paragraph 12 of the Second Schedule of the 1996 Order.
18. The effect of the substituted Article 237 is to provide that the unfair dismissal provisions of the 1996 Order are not to apply to service as a member of the military forces of the Crown (subject to certain exemptions from that exclusion which are immaterial in the present context).
19. Having carefully considered Mr Ritchie's submission in this connection, we accept that submission and therefore conclude that, in the circumstances of this case, this tribunal has no jurisdiction to entertain the Applicant's complaint of unfair dismissal.

The law on sex discrimination and our conclusions

20. An Applicant who complains of direct sex discrimination, must prove, on the balance of probabilities, that the factual allegations upon which the complaint is based are, in substance, true, and that, in according the relevant treatment to the Applicant, the Respondent, or a person for whose actions the Respondent is legally responsible, has treated the Applicant less favourably than the Respondent treated, or would treat, a man if the relevant circumstances were the same, or similar; and must also show that her gender was an operative or effective cause of that treatment. In these proceedings, the complaint of sex discrimination fails to meet any of those requirements.
21. The Applicant's complaints of victimisation discrimination must fail because the tribunal is not satisfied that the Applicant was mistreated in any of the ways specified by her in Applications B and C. Furthermore, the victimisation complaints fail because the relevant treatment was not accorded to the applicant for any reason connected with any knowledge or belief, on the part of any alleged discriminator, that she had or would carry out any act which is a "protected" act under the 1976 Order.

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Date and place of hearing: 16 September 2002, Belfast

Date decision recorded in register and issued to parties: