Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REFS: 1270/03

2691/02

CLAIMANTS: Kevin Doherty

Frank Cammock

RESPONDENT: Amicus – MSF Section

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that the claimants' claims in respect of unjustifiable discipline were lodged outside the statutory time limits, it was reasonably practicable for them to be lodged within the said time limits, and in any event they were not lodged within a reasonable time after the time limits expired.

Constitution of Tribunal:

Chairman (sitting alone): Mr P Kinney

Appearances:

The claimants were represented by Mr J Bowers.

The respondent was represented by Mr G Daly, Solicitor, of Francis Hanna & Company, Solicitors.

Issues

1. The issues to be determined are as follows:-

(1) Whether the claimants' claims of unjustifiable discipline by the respondent with regard to:-

(i) the respondent's decision to suspend the claimants, on 16 November 1999, from their positions as Senior Shop Stewards within Shorts;

(ii) the respondent's decision to suspend the claimants, on 28 April 2001 from all other positions they held with the trade union; and

(iii) the respondent's delay in complying with the Order made by the Certification Officer until 14 September 2002;

have been presented within the statutory time limit set out in Article 33 of the Trade Union & Labour Relations (Northern Ireland) Order 1995.

(2) If not, whether that time limit should be extended in accordance with Article 33 of the said Order.

Sources of evidence

2. The tribunal was provided with a bundle of documents and considered those documents referred to it by the parties. The tribunal also considered the originating claims, evidence from Mr Doherty (first-named claimant), and submissions from the representatives.

The tribunal's findings

3. Both claimants are members of the MSF Union. The second-named claimant was in 1999 an MSF Senior Shop Steward and the first-named claimant at the relevant time was Deputy Shop Steward in Bombardier PLC Short Brothers Belfast.
4. At a meeting of the National Executive Council (NEC) of the respondent on 13 November 1999 consideration was given to what was described in the minutes of that meeting as 'an extremely serious situation' which had arisen at Bombardier Shorts in Belfast. Leaflets had been distributed inviting members of the respondent union to join the ATGWU.
5. The claimants were invited to and attended a meeting on 16 November 1999 with Mr John Wall, National Secretary of the respondent, Mr Tony Whiteley, Assistant General Secretary, and Mr J Shanahan, Acting National Secretary for Ireland.
6. At that meeting they were handed a letter which was previously prepared and signed by Mr Whiteley advising the claimants that the respondent believed they may be implicated in activities to encourage members of the respondent to resign from the respondent and join the ATGWU. On that basis the claimants were suspended from their positions as Senior Shop Stewards within Shorts.
7. A subsequent meeting of the NEC held on 11 December 1999 endorsed the action in respect of the suspension from office of the claimants and also warned the claimants they may face disciplinary action in accordance with Rule 16 of the respondent's disciplinary procedures.
8. On 11 January 2000 the claimants formally appealed against their suspensions by way of a jointly signed letter sent to Mr Lyons, the General Secretary of the respondent.
9. For reasons which were unclear the claimants' appeal was not brought to the attention of the NEC until April 2001. At the NEC meeting on 20 April 2001 it was agreed that the appeal submitted by the claimants against their suspension from office be held as soon as possible. It was also agreed to further suspend the claimants under Rule 16(b) of the Disciplinary Procedures from holding office or representing the union in any capacity.
10. On 24 January 2001 the claimants complained to the Northern Ireland Certification Officer under Article 19A(1) of the Trade Union and Labour Relations (Northern Ireland) Order 1995. The Certification Officer also considered the second suspension of the claimants by the respondent made on 28 April 2001.
11. The Certification Officer completed his investigation and made a number of declarations and orders which included declarations that the respondent did not have the power to authorise the suspension of the claimants on 16 November 1999 and on 28 April 2001.
12. At Paragraph 1.10 of the Certification Officer's decision he made the following Order to the respondent:-

"That the Manufacturing, Science and Finance union lift its suspensions dated 16 November 1999 and 28 April 2001, in respect of Mr F Cammock and Mr K Doherty from the date of this decision and that it reinstate them in the positions they held within the union, immediately prior to their suspensions."

The decision is dated 10 July 2002 and was received by the respondent on 17 July 2002.

13. On 2 August 2002, Mr Talbot, now the Assistant General Secretary of the respondent, wrote to the claimants. In his letter he stated:-

"The decision of the Northern Ireland Certification Officer was received too late for the NEC on 12/13 July. It will now go to the next NEC meeting on 14 September and I will write to you again after that date."

The letter also indicated to the claimants that the disciplinary proceedings against them remained outstanding.

14. The claimants wrote to Mr Talbot on 13 September 2002. In this letter they drew attention to the fact that there had been an NEC meeting on 27 July 2002, subsequent to receipt of the Certification Officer's decision and before Mr Talbot's letter of 2 August 2002.
15. The minutes of that meeting are not available and cannot be traced by any of the parties. However, it was accepted that the reference to the meeting in the claimants' letter of 13 September 2002 was accurate.
16. The relevant section of the letter of 13 September 2002 reads as follows:-

"The minute of that meeting records that you were present. It also states that the Certification Officer's decision was considered and the NEC 'agreed that the General Secretary, President and Chair of the General Purposes and Finance Committee would liaise in respect of any urgent action that was needed in responding to the report. A full report would be provided to the next NEC meeting'."

17. At the NEC meeting on 14 September 2002 the NEC accepted the Certification Officer's decision in respect of the suspension from office of the claimants and the NEC reinstated them.
18. Mr Talbot wrote to the claimants on 17 September 2002 and confirmed to the claimants that the decision of the Certification Officer in respect of Paragraph 1.10 of his report (referred to above) had been accepted.
19. Neither the letter of 17 September 2002 nor the minutes of the meeting of the NEC of 14 September 2002 dealt with the other aspects of the Certification Officer's declarations and decision.
20. The claimants had not been aware of the meeting of the NEC on 27 July 2002 until early September 2002, prompting their correspondence of 13 September 2002.
21. The claimants lodged their originating claims with the tribunal claiming discrimination of the basis of political opinion on 29 November 2002.
22. The reasons given by the claimants for not submitting their applications earlier was ignorance of their right to do so. They claimed they were entirely unaware of the legislation providing protection from unjustifiable discipline of trade union members until November 2002.
23. Neither of the claimants sought any advice or assistance regarding their legal rights until September 2002 when some guidance was given from the Office of the Certification Officer and when the first-named claimant took legal advice in relation to his rights which led to the lodging of the claims in November 2002.
24. The claimants believed that the effective date for the purposes of time limits was 14 September 2002 being the date the NEC met and partially applied the decision of the Certification Officer.
25. The claimants did not take action on foot of the Certification Officer's decision which they received in and around 17 July 2002 because they were waiting to see if the union would abide by the Certification Officer's decision. They did not take action on receipt of Mr Talbot's letter of 2 August 2002 as that letter informed them that the matter would be dealt with at the NEC meeting of 14 September 2002.
26. The claimants did not act on the failure of the NEC to deal with the Certification Officer's decision at its meeting of 27 July 2002 because it was not aware of that meeting until early September 2002.

The law

27. Article 33 of the Trade Union & Labour Relations (Northern Ireland) Order 1995 (TULRO) provides as follows:-

"Article 33(1) 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.

Article 33(2) The tribunal shall not entertain such a complaint unless it is presented –

(a) before the end of the period of three months beginning with the date of the making of the determination claimed to infringe the right, or

(b) where the tribunal is satisfied –

(i) that it was not reasonably practicable for the complaint to be presented before the end of that period, or

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

28. There is no provision in TULRO as there is in the discrimination field to construe an act extending over a period as being done at the end of that period. Each of the matters complained of by the claimants must therefore be dealt with as an individual act.
29. In fact, in giving evidence, the first-named claimant made it clear that the reason that none of the claims were made sooner was because of the ignorance of both claimants as to their rights. He stated they both were entirely unaware of the right to take a claim for unjustifiable discipline until September 2002. He told the tribunal that he had taken legal advice from a solicitor that he had engaged in proceedings against his employer and also had received some guidance in terms of an indication of relevant legislation from the Certification Officer's Office. Neither the advice nor the guidance from the Certification Office was sought until September 2002.
30. The first-named claimant stated that in his view the date of the last determination of the respondent which constituted unjustifiable discipline was the NEC meeting of 27 July 2002.
31. It is clear that none of the acts which the claimants contend constitute unjustifiable discipline therefore fall within three months of the date of the lodgement of the originating claims.
32. It is therefore for the claimants to show that either of the conditions in Article 33(2)(b) of TULRO apply.
33. The tribunal may extend the time for presenting a claim if it finds that it was not reasonably practicable to present the claim in time. The burden of proving this rests firmly on the claimant. The general intention of the legislation is that claims should be presented promptly. The tribunal should look at the circumstances of each case.
34. The tribunal was referred to Harvey on Industrial Relations and Employment Law, Division T, Paragraphs 186 FF. The question of what is or is not reasonably practicable is essentially one of fact for the tribunal to decide.
35. The tribunal was referred to the case of Walls Meats Company Limited v Khan [1978] IRLR 499 and to the quotation from Lord Dennings' judgment:-

"It is simply to ask this question:- Had the man just cause or excuse for not presenting his complaint within the prescribed time? Ignorance of his rights – or ignorance of the time limit – is not just cause or excuse unless it appears that he or his advisers could not reasonably be expected to have been aware of them. If he or his advisers could reasonably have been so expected, it was his or their fault, and he must take the consequences."

36. Harvey goes onto say at Paragraph 207:-

"So, whilst a claimant's state of mind is to be taken into account, it is clear that his mere assertion of ignorance either as to the right to claim, or the time limit, or the procedure for making the claim, is not to be treated as conclusive."

37. The tribunal does not accept that it was reasonable for the claimants to absolve themselves from taking any steps to establish either a right to make a claim or the appropriate time limits for making a claim to the tribunal. Both claimants were active members of their trade unions, being a Senior Shop Steward and Deputy Shop Steward respectively. The first-named claimant in his evidence confirmed that he had dealt with a full range of issues in the workplace from collective bargaining to individual representation and was familiar with employee and employer disputes. He had previously been involved in tribunal cases and had given evidence in industrial tribunals. Both claimants took steps to appeal the original suspension of 16 November 1999 and made application to the Certification Officer for declarations and orders in January 2001. The first-named claimant subsequently took advice but not until September 2002. The only reason advanced on behalf of the claimants for not seeking advice earlier was the potential cost of such advice.
38. Mr Daly submitted that the last decision capable of being a determination for the purposes of the legislation was the decision to suspend the claimants on 28 April 2001. There is an arguable case that the decision of the NEC of 27 July 2002 not to deal immediately with the decision of the Certification Officer could constitute a determination. For the purposes of the time issue, the claimant must only make a prima facie case that the decision could constitute a determination. However, in any event, that matter is also outside the statutory time limit of three months within which to bring a claim.
39. Although the claimants were not aware of the NEC meeting of 27 July 2002 or its outcome, until some time later, they clearly knew of it by 13 September 2002, at the latest, being the date on which they wrote to the respondent about the meeting.
40. I am not satisfied that the claimants have made a case that it was not reasonably practicable to have lodged their claims in relation to the suspension of 16 November 1999, the suspension of 28 April 2001 or the decision of the respondent of 27 July 2002 within the statutory time limits.
41. The alternative ground in Article 33(2)(b)(ii) is 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 within such further period as the tribunal considers reasonable.
42. The claimants did appeal against the original decision to suspend them of 16 November 1999. On the evidence before the tribunal they did not appeal the subsequent suspension of 28 April 2001 nor the alleged determination of 27 July 2002. The claimants seemed to have made little attempt to pursue or enforce their appeal and indeed shifted emphasis to the complaint to the Certification Officer. There was no reason why a claim could not have been made in respect of any of the matters complained of whilst the Certification Officer was exercising his jurisdiction under Article 90A of TULRO. In the circumstances, the tribunal is not satisfied that the claim was made within a further reasonable period after the expiry of the statutory time limits.

Chairman:

Date and place of hearing: 16 – 17 July 2007, Belfast

Date decision recorded in register and issued to parties: