Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: PAR 65/05

CLAIMANT: Kyle Mervyn White

RESPONDENT: Kennedy Quarries Limited

DECISION ON A REVIEW

The tribunal confirmed the decision of 8 June 2005 not to accept the claimant's claim, and refuses the application for a review.

Appearances:

The claimant was represented by Ms J Flanagan, Barrister-at-Law, instructed by Thomas Taggart & Sons, Solicitors.

1. The claimant, Mr White, by a claim form presented to the Office of the Tribunals on 31 May 2005, alleged that he had been unfairly (constructively) dismissed by the respondent company. He also alleged that he had suffered unlawful discrimination on the grounds of both religious belief and political opinion, and by way of victimisation.
2. By letter issued from the Office of the Tribunals on 8 June 2005 the claimant was informed that his claim form had been referred to a Chairman who had decided that the claim would not be accepted, as the claimant had not indicated if he had raised the subject matter of the claim with the respondent in writing at least 28 days prior to presenting the claim to the Office of the Tribunals, or if he had not done so, why he had not done so, as required by Rules 1(4)(j) and (k) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005.
3. The claimant's claim failed to be accepted because he had not put the claim in writing. It is clear from the papers that he had gone through a grievance procedure with his employers, that a detailed response had been received from them, and that there had been meetings between both sides in an attempt to resolve matters. On 25 March 2005 the respondent wrote to the claimant. They did not uphold his grievance, and informed him of his right of appeal within five days.

He left his employment on 26 April 2005, and did not invoke the right of appeal.

4.	(i)	By letter of 15 June 2005 addressed to the Secretary of the Tribunals, the claimant's solicitors requested a review of the decision not to accept his claim. They pointed out, with justification, that the claimant had substantially complied with the respondent's grievance procedure and that the only matter which was unclear was whether he had raised the grievance in writing. They further pointed out that the claimant had left his employment by 26 April 2005, and that it was reasonable for him not to prolong the grievance procedure, especially in a context where he had come to realise that his continuance in the employment of the respondent was proving a danger to his physical and psychological health.
	(ii)	They did indicate, however, that the claimant, in order to protect his position, would be submitting a grievance in writing to the respondent.
5.	(i)	The arguments put forward at Paragraph 4(ii) above were relied upon and developed by Ms Flanagan BL, counsel for the claimant, at the Review Hearing.
	(ii)	The tribunal has considered her arguments having regard to the provisions of the Employment (Northern Ireland) Order 2003, Article 19 and Schedules 1 and 3, and the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004, particularly Rules 6(4) and (7) and Regulation 11. It has considerable sympathy with the claimant, whose claim fell on the hurdle of a requirement to put his grievance in writing.
	(iii)	His grievance was given due consideration by the respondent company, and notwithstanding the nature of his allegations there is nothing to show that anyone in management of the respondent company has behaved, or would behave, in such a way as to bring into play Rules 11(3)(a) and (b) (giving reasonable grounds for the claimant to believe that putting a grievance in writing would result in significant threat to him or his property, or in his being harassed further). This is to some extent confirmed by the claimant's preparedness, as indicated in his solicitor's letter of 15 June 2005, to re-submit his grievance to the employer. Nor am I satisfied, in the circumstances, that it can be said that it is not now practicable for him to commence the procedure or comply with the subsequent requirement within a reasonable time [Regulations 11(3)(c)], or that since he had ceased to be employed it has ceased to be reasonably practicable for him to comply with Paragraphs 6 and 9 of Schedule 1 [Regulation 6(4)].

4. I therefore, reluctantly, confirm the decision communicated on 8 June 2005 not to accept the claimant's claim, and to refuse the review. However, if the claimant has re-submitted his grievance in writing and he complies with the applicable time limits, which have been extended, he can present his claim again.

Chairman:

Date and place of hearing: 4 August 2005, Belfast

Date decision recorded in register and issued to parties: