Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2006/59_06.html
Cite as: [2006] NIIT 59_06, [2006] NIIT 59_6

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THE INDUSTRIAL TRIBUNALS

CASE REF: 59/06

CLAIMANT: Brendan Morgan

RESPONDENT: NASUWT

DECISION ON A PRE-HEARING REVIEW

It is the decision of the tribunal is that it does have jurisdiction to hear the claimant's claim in view of the time limits set out in Article 33 of the Trade Union and Labour Relations (Northern Ireland) Order 1995 because the tribunal is satisfied that any delay in making the complaint was wholly or partly attributable to a reasonable attempt by the claimant to appeal against the determination or to have it reconsidered or reviewed in the circumstances set out in the decision.

Constitution of Tribunal:

Chairman (sitting alone): Ms Crooke

Appearances:

The claimant appeared in person and represented himself.

The respondent was represented by Mr J O'Neill, Solicitor, of Thompsons McClure, Solicitors.

Sources of evidence

The tribunal heard evidence from the claimant on his own behalf and also had an agreed bundle of documents before it.

The issue

Whether the tribunal has jurisdiction to hear the claimant's claim in view of the time limits set out in Article 33 of the Trade Union and Labour Relations (Northern Ireland) Order 1995.

This provision provides for the presentation of a complaint "before the end of the period of three months beginning with the date of the making of the determination claimed to infringe the right … ".

Facts found

(a) The claimant was the Secretary of the South Down and South Armagh Association of the Union.

(b) In or around 24 January 2005 the Branch received a letter from the General Secretary of the Union which set out a series of directions imposed upon the claimant and the local Association members in the Branch to which he belonged.

(c) The claimant contended that these directions had the effect of imposing restrictions on the legal activities of the Branch Executive and upon him as Secretary of the Branch and that the effects of these restrictions were disciplinary in nature.

(d) This view was expressed in the course of correspondence by the claimant with the General Secretary, but the General Secretary and Union Executive never admitted that the directions were disciplinary in nature.

(e) By Article 33(1) of the Trade Union and Labour Relations (Northern Ireland) Order, "an individual who claims that he has been unjustifiably disciplined by a trade union may present a complaint against the Union to an industrial tribunal".

There is a time period of three months beginning with the date of the making of the determination claimed to infringe the right or where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period within such further period as the tribunal considers reasonable. If the tribunal considers that the delay in making the complaint is wholly or partly attributable to a reasonable attempt to appeal against the determination or to have it reconsidered or reviewed the complaint can also be made within such further period as the tribunal considers reasonable.

(f) It is not the function of this tribunal to consider whether the restrictions imposed were disciplinary in nature but rather to consider whether it would have been reasonably practicable to present the complaint in time or to consider whether the delay was due to an attempt to have the restrictions reconsidered or reviewed.

(g) There were two basic reasons advanced by the claimant as an explanation why he had not lodged his claim in time:-

(i) Although he believed the sanctions were disciplinary in nature, he had not received confirmation of this from the General Secretary and did not believe that he could lodge his claim until he had evidence that the sanctions were disciplinary in nature. It was only whenever the claimant had access to documents and minutes in another case brought by another member of the Union, which seemed to be supporting his view that he in fact lodged his complaint to the tribunal.

(ii) The claimant contended that many of the restrictions only took effect after the three month period and that was a further reason why it was not reasonably practicable for the claim to be brought within this period.

(h) The tribunal does not accept either argument made by the claimant. It is not a requirement of instituting proceedings in the tribunal that the claimant first has incontestable proof of what he alleges. If the position were to be taken that proceedings could only be lodged once incontestable proof was in hand, then it is possible that proceedings might not be issued for a very long time in a whole variety of cases and there would be no finality of litigation. In this case it would have been reasonably feasible for the claim to have been made to the tribunal and then reviewed after the discovery process. If it had proved after the discovery process to be a claim that was not likely to be capable of being proved on the balance of probabilities, then it would have been open to the claimant to have withdrawn his claim, with presumably, little risk as to an award of costs being made against him. Neither does the tribunal consider that it was necessary for the claimant to wait to see what the results of sanctions were. It was the belief of the claimant that the results were disciplinary in effect and some of the sanctions had an effect almost at once. This being the case, the tribunal does not understand there to be any value in waiting (again presumably for further proof to become available). Given the belief of the claimant that the sanctions were disciplinary in nature upon receipt of the letter of 24 January 2005, the tribunal considers that it would have been reasonably feasible for him to have lodged his claim within the period of three months from the date of the alleged sanctions.

(i) Where the tribunal satisfied that any delay in making the complaint is wholly or partly attributable to a reasonable attempt to appeal against the determination or to have it reconsidered or reviewed, the claim can be lodged within such further period as the tribunal considers reasonable.

In the agreed bundle there was a series of correspondence between the claimant and the Union between 13 June 2005 to 5 January 2006 which the tribunal considers is an attempt on the part of the claimant to have the Union reconsider and review its action and try to set up a process of mediation between the Union and the Branch. Given that the correspondence continued on after the point which the claim was lodged (4 January 2006) and by 31 January 2006 the claimant was still trying to organise a meeting, the tribunal considers that the claim was lodged within a further reasonable period of time.

Chairman:

Date and place of hearing: 7 December 2006, Belfast

Date decision recorded in register and issued to parties: