Industrial Tribunals Northern Ireland Decisions

 


McClenaghan v Simpson & Anor (Application for Costs) [2002] NIIT 01132_00 (28 May 2002)

THE INDUSTRIAL TRIBUNALS

CASE REF: 01132/00

APPLICANT: Elaine McClenaghan

RESPONDENTS: 1. K Simpson

2. University of Ulster

DECISION

The unanimous decision of the tribunal is that the respondents' application for costs was misconceived and is hereby dismissed.

Appearances:

The applicant was represented by Mr J Donaghy of UNISON.

The respondents were represented by Mr O McCullough on behalf of the University of Ulster.

1. This application came in front of the tribunal as a consequence of its earlier decision recorded in the register and issued to the parties on 23 April 2001. In that decision the tribunal found that the applicant did not receive treatment amounting to action short of dismissal within the meaning of Article 73 of the Employment Rights (NI) Order 1996.
2. The respondents' basis for their application was that they had indicated that they would intend to seek an award of costs. It was further argued that the applicant did not exhaust the internal grievance process and under the Employment Rights Bill that was currently under discussion in the legislative process this is a factor to be taken into account. A further basis was that the University had tried to settle the case without success, and various findings of the tribunal in the decision were read out, allegedly as further bases for a finding to be made against the applicant.
3. Perhaps the most interesting ground was the respondents' contention that Mr Donaghy ought to have known that the case was without merit, and in those circumstances the costs should be borne by the trade union who supported the case.
4. Mr Donaghy argued that costs should only be awarded in the case if it was brought frivolously and vexatiously. Perhaps the most powerful argument that Mr Donaghy made was that if the respondents really considered that the case was frivolous and vexatious they could have taken action at an early stage to apply for a pre-hearing assessment, and they did not.
5. Mr Donaghy agreed that he was the senior trade union official, and he would not take on a case if he did not consider there was a fair and reasonable chance of success.
6. Mr McCullough did not dispute that costs were awarded in the industrial tribunal on the basis of the authority of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (NI) 1996 Rule 12. This is a decision for the tribunal, and if it considers that either party has in bringing or conducting the proceedings acted frivolously, vexatiously, abusively or otherwise unreasonably, it has the power to make an award of costs up to a statutory maximum of £500.
7. The tribunal unanimously finds that there was nothing in the applicant's either bringing or conducting of her case which would entitle it to find that costs should be awarded against her (or against the trade union which supported her). The industrial tribunal cannot take account of legislation which is currently in discussion in the legislative process and may or may not eventually reach the statute book. Neither has the tribunal any right to take account of pre-proceedings negotiations between the parties. The tribunal finds that the applicant behaved reasonably in the conduct and bringing of her case and therefore dismisses the respondent's application for costs.
8. The tribunal has noted that the reason why this application was not made at the close of the hearing of the case, was that Mrs Larkin, Barrister-at-Law, forgot to do so.

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Date and place of hearing: 20 May 2002, Belfast

Date decision recorded in register and issued to parties: 28 May 2002