Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 1065/06

1066/06

1067/06

1068/06

CLAIMANTS: James Duffy

Robert Glynn Brown

Thomas Andrew Jameson

Markus Lewis

RESPONDENT: POA

DECISION

The unanimous decision of the tribunal is that it has jurisdiction to deal with the cases under Article 38 of the Trade Union and Labour Relations (Northern Ireland) Order 1995 despite the fact that the Certification Officer is simultaneously exercising his jurisdiction under Article 90A of said Order.

Constitution of Tribunal:

Chairman: Mr S A Crothers

Panel Members: Mr A Crawford

Mr J Hampton

Appearances:

The claimants were represented by Mr Dickson.

The respondent was represented by Mr Henry QC, instructed by Lees Lloyd Whitley, Solicitors.

1. The correct respondent is POA and not the Prison Officers Association and the title is amended accordingly.
2. The claimants were claiming that they had been unlawfully expelled from the POA contrary to Article 38 of the Trade Union and Labour Relations (Northern Ireland) Order 1995 ("the Order"), which allegation was denied by the respondent.
3. At the outset of the hearing there was a dispute between the parties as to whether the Tribunal had jurisdiction to hear the case in light of the fact that the cases had already been referred to the Certification Officer under Article 90A of the Order. Both parties gave limited oral submissions on the matter. However, the Tribunal was unanimously of the view that, given the complexity of the issue, written submissions were required from both parties. These submissions, which had to be amended, were ultimately finalised pursuant to a final communication to the Tribunal Office by the respondent's solicitors on 30 April 2007. Ferguson & Co Solicitors are now on record for the claimants.
4. The issue before the Tribunal is as to whether it has jurisdiction to hear the cases under Article 38 of the Order in light of the provisions of Article 90A of the Order.
5. The relevant provisions of Article 38 of the Order are as follows:-

"Right not to be expelled from union

6. - (1) An individual shall not be expelled from a trade union unless the

expulsion is permitted by this Article.

(2) The expulsion of an individual from a trade union is permitted by this

Article if (and only if) -

…

(d) the expulsion is entirely attributable to his conduct.

……

(4) For the purposes of paragraph 2(d) "conduct", in relation to an

individual, does not include -

(a) his being or ceasing to be, or having been or ceased to be -

(i) a member of another trade union,

(ii) employed by a particular employer or at a particular

place, or

(iii) a member of a political party, or

(b) conduct of which Article 32 (conduct for which an individual

may not be disciplined by a trade union) applies or would apply

if the references in that Article to the trade union which is relevant for the purposes for that Article were references to any trade union.

(5) An individual who claims that he has been expelled from a trade union in contravention of this Article may present a complaint to an industrial tribunal".

Article 41 of the Order states (insofar as it is relevant to the issue before the Tribunal)

"Interpretation and Other Supplementary Provisions -

7. - …

(2) For the purposes of Articles 38-40 an individual who under the rules of a trade union ceases to be a member of a union on the happening of an event specified in the rules shall be treated as having been expelled from the union.

(3) The remedy of an individual for infringement of the right confirmed by Article 38 is by way of a complaint to an industrial tribunal in accordance with that Article, Articles 39 and 40 and this Article, and not otherwise.

(4) Where a complaint relating to an expulsion which is presented under Article 38 is declared to be well founded, no complaint in respect of the expulsion shall be presented and proceeded with under Article 33 (complaint of infringement of right not to be unjustifiably disciplined).

(5) The right conferred by Article 38 is in addition to, and not a substitution for, any right which exists apart from that Article; and, subject to paragraph (4), nothing in that Article, Article 39 or 40 or this Article affects any remedy for infringement of any such right".

Article 90A of the Order deals with the right to apply to the Certification Officer. The relevant portions of that Article state as follows:-

"90A. - (1) A person who claims that there has been a breach or threatened breach of the rules of a trade union relating to any of the matters mentioned in paragraph (2) may apply to the Certification Officer for a declaration to that effect, subject to paragraphs (3) - (7).

(2) The matters are -

(a) the appointment or election of a person to, or the removal of a person from, any office;

(b) disciplinary proceedings by the union (including expulsion);

(c) the balloting of members on any issue other than industrial action;

(d) the constitution or proceedings of any executive committee or if any decision-making meeting;

(e) such other matters as may be specified in an Order made by the Department.

(3) The applicant must be a member of the union, or have been one at the time of the alleged breach or threatened breach.

(4) A person may not apply under paragraph (1) in relation to a claim if he is entitled to apply under Article 55 in relation to the claim.

(5) No application may be made regarding -

(a) the dismissal of an employee of the union;

(b) disciplinary proceedings against an employee of the union;

…….

(14) If a person applies to the Certification Officer under this Article in relation to an alleged breach or threatened breach he may not apply to the High Court in relation to the breach or threatened breach; but nothing in this paragraph shall prevent such a person from exercising any right to appeal against or challenge the Certification Officer's decision on the application to him.

(15) If -

(a) a person applies to the High Court in relation to an alleged breach or threatened breach, and

(b) the breach or threatened breach is one in relation to which he could have made an application to the Certification Officer under this Article, he may not apply to the Certification Officer under this Article in relation to the breach or threatened breach".

8. The Tribunal has carefully considered the provisions in the legislation together with the oral and detailed written submissions from both parties and concludes as follows:-

(i) Article 41(3) makes it clear that the remedy for infringement of the right conferred by Article 38 is by way of a complaint to an industrial tribunal and not otherwise. Paragraph (4) is clear in stating that where a complaint under Article 38 is declared to be well-founded no complaint in respect of the expulsion shall be presented or proceeded with under Article 33, which relates to a complaint of infringement of the right not to be unjustifiably disciplined. Crucially, from the Tribunal's point of view, paragraph (5) states explicitly that the right conferred by Article 38 is in addition to, and not in substitution for, any right which exists apart from the Article and that subject to paragraph (4) nothing in that Article, Article 39 or 40 or Article 41 affects any remedy for infringement of any such right.

(ii) Whereas in the context of this case, the claimants are alleging that they have been unlawfully expelled from the respondent union in contravention of Article 38 of the Order, under Article 90A the Certification Officer can deal with "a breach or threatened breach of the rules of a trade union relating to any of the matters mentioned in paragraph (2)". Although paragraph (2) deals inter alia with "disciplinary proceedings by the union (including expulsion)", the dismissal of an employee of the union and disciplinary proceedings against an employee of the union are excluded under paragraph (5). Furthermore, Article 90A(4) prevents a person applying to the Certification Officer under paragraph (1) if he is entitled to apply under Article 55 of the Order in relation to the claim and, according to paragraphs (14) and (15) if an application has already been made to the Certification Officer no application can be made to the High Court in relation to the breach or threatened breach and conversely if an individual has already applied to the High Court in relation to such a matter which could otherwise have been brought before the Certification Officer, he is prevented from applying to the Certification Officer.

(iii) In light of these provisions and the case of Egan -v- NASUWT [27 June 2006] referred to in the claimants submissions, the Tribunal concludes that there is nothing in the statutory provisions to prevent it from dealing with the cases at the same time as the Certification Officer is exercising his jurisdiction under Article 90A of the Order. The Tribunal will require evidence in relation to the other aspect covered by the written submissions relating to whether certain conduct justified expulsion under Article 38 of the Order. The cases will therefore be re-listed to deal with the substantive matters under Article 38 of the Order.

Chairman:

Date and place of hearing: 11 January 2007, Belfast.

Date decision recorded in register and issued to parties: