Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 276/07

CLAIMANT: Dermot Murray

RESPONDENT: Department of Education

DECISION ON A PRE HEARING REVIEW

The Tribunal finds that;-

1. it has jurisdiction to entertain the claimant's claim under Article 74(2) of the Employment Rights (Northern Ireland) Order 1996, and
2. the claimant has satisfied the requirements of Article 19(2) and (3) of the Employment (Northern Ireland) Order 2003 and is entitled to present a claim to the industrial tribunal, and
3. the claimant's claim may proceed to hearing.

Constitution of the Tribunal

Chairman: Mr B Greene (sitting alone)

Appearances:

CLAIMANT: The claimant appeared in person.

RESPONDENT: The respondent was represented by Mr P Coll, of counsel, instructed by the Departmental Solicitor's Office.

Sources of Evidence

4. The Tribunal heard evidence from the claimant. The respondent did not call any witnesses. The Tribunal also had regard to the originating claim, the response, two bundles of agreed documents of some four hundred pages.

The Claim and Defence

5. The claimant claims that he suffered discrimination and victimisation as a result of trade union membership and lawful activity during properly constituted industrial action. The respondent resists the claimant's claims. It further asserted that many of the matters raised by the claimant were out of time and the claimant has not sent a written grievance to the respondent and waited 28 days.

The Issues

6. This matter was listed to deal with the following issues;-

(a) Whether the Tribunal has jurisdiction to entertain the claimant's claim of detriment in relation to trade union membership and activities in view of the provisions of Article 74(2) of the Employment Rights (Northern Ireland) Order 1996 and Regulation 15 of the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004, if applicable, regarding the time limit for presenting the said claim.

(b) Whether the claimant is entitled to present a claim to the Industrial Tribunal in view of the provisions of Article 19(2) and (3) of the Employment (Northern Ireland) Order 2003 regarding the requirement to send a grievance in writing to the employer and to wait 28 days before presenting a claim to the Tribunal.

Findings of Fact

7. (a) The respondent employed the claimant as an Executive Officer 1 from 13 June 1977 to October 2006 when he was moved, on loan, to the Department for Social Development where he remains employed.

(b) The claimant was a member of NIPSA Branch 61 from 1977. He subsequently became a committee member of the branch and in 2002 he became the assistant-secretary of the branch.

(c) The detriment, of which the claimant complains, began on the 6 September 2004.  On that morning he was brought to a management meeting.  He was told, despite his objection, that he was getting new responsibilities and would be moving his place of work. The move involved physical changes.

In the afternoon of the same day management recalled the claimant to an interview room and told him that he was being transferred to another branch within the respondent, within the same building.  He was advised that the reason for the move was career development, although no consultation had taken place with him. The transfer was effective from 13 September 2004.

(d) On the 6 September 2004 the respondent also notified another prominent trade unionist of a transfer of his place of work.

(e) The claimant believes that he was transferred by reason of his trade union activities i.e. his involvement in and support for NIPSA's strike action and work to rule in 2004. The transfer humiliated and embarrassed him, he stated, because the perception among staff was that he had been "kicked out of the branch".

(f) The claimant had an informal discussion with the harassment contact officer in Waterside House and in November 2004 the latter formally noted the claimant's complaint.

However the claimant attempted, unsuccessfully, to have his complaint resolved informally by being reinstated to his former post. 

(g) In December 2004 the claimant made a formal request for transfer back to his post.  In January 2005 the claimant became unwell through stress by reason of this matter.  He sought assistance from Jeanette McNulty, a more senior member of NIPSA, who advised management that the claimant was stressed and felt discriminated against on the ground of his trade union activities.

(h) On 6 April 2005 Jeanette McNulty, on behalf of the claimant, invoked the internal grievance procedure complaining about his transfer by reason of his trade union activities.

(i) A Stage 2 grievance meeting was arranged for 18 May 2005. The claimant outlined his grievance to the meeting. His grievance was not upheld and the matter moved to Stage 3 of the grievance procedure at the claimant's request on 8 June 2005.

(j) A Stage 3 grievance meeting was held at Rathgael House with Donal Moran from Personnel on 22 July 2005. The claimant was notified on 21 September 2005 that his grievance had not been upheld.

(k) The claimant was off work with work-related stress from February to June 2005. In July 2005 when he returned to work a couple of comments were made to him by a superior which he viewed as further examples of harassment.

(l) The claimant stated to the Tribunal that by July 2005 he had three complaints; the original transfer; the delay in dealing with his grievance; and the comments made in July 2005 by a superior.

(m) Nothing changed as the end of 2005 approached and the claimant decided to put the whole matter in writing as he was considering withdrawing the grievance by reason of the adverse effect it was having on his health. He decided that he would do that in January 2006 but before doing so he would seek the records held by the respondent, under the Data Protection Act, which he did on 2 December 2005.

(n) The claimant received documents in January 2006 under the Data Protection Act. He considered that the records, which included alternative records of three managers to the official agreed minute and e-mail memos, amounted to a false account of how the meeting of 18 May 2005 had gone with pretty shocking statements about his behaviour and how the meeting went. There were allegations that the claimant was aggressive and that people at the meeting were going to be victims of an assault by the claimant.

The claimant regarded these comments as further incidents of harassment and victimisation.

(o) On 31 January 2006 Jeanette McNulty contacted Personnel, in writing, to arrange a meeting to discuss what had emerged from the records obtained under the Data Protection Act.

A meeting was not held until 28 March 2006 which the claimant regarded as another example of delay. Earlier in March 2006 the meeting with Personnel was delayed owing to the non-availability of Jeannette McNulty.

(p) By letter of 2 June 2006 Stephen Corbett informed the claimant that his grievance had not been upheld although there were short-comings in how management handled his transfer.  He further stated that he would ask that the managers' unofficial notes of the meeting would be destroyed.

The claimant regarded the unexplained delay in giving a response was further evidence of victimisation and that Mr Corbett should have investigated how the unofficial notes came into being.  He therefore put on hold his decision to withdraw his grievance.  As the claimant remained unsatisfied with the outcome he decided to lodge an appeal with the Permanent Secretary.

(q) Jeanette McNulty initiated an appeal to the Permanent Secretary, in writing, on 19 July 2006, on the claimant's behalf.  In the letter she complained inter alia about; the original transfer; the unofficial records of the meeting of 18 May 2005; and delay in processing the grievance.

On 17 August 2006 the claimant and Jeanette McNulty met with Maura McCusker from the permanent secretary's office. The claimant explained his grievance to her. It was agreed she would investigate the matter and would meet again with the claimant.

(r) The claimant returned to work in September 2006 but found it stressful as he was working alongside those of whom he was complaining. Maura McCusker authorised special paid leave for the claimant until October 2006.

(s) On 13 September 2006 the claimant met with Maura McCusker for the second time. The meeting did not resolve the claimant's complaints. He did, however, agree to a period of secondment to another department as he was unwell.

(t) The claimant and Jeanette McNulty met with the Permanent Secretary and Maura McCusker on 13 November 2006 to deal with the entire story back to the original transfer. The Permanent Secretary answered the claimant in writing on 6 December 2006. He did not uphold the claimant's original grievance. He acknowledged there were shortcomings in the transfer process; apologised for the delay in dealing with the grievance by not adhering to the proper timescales; and how it was handled. He ordered the removal and destruction from all files of the unofficial records of meetings, save one retained until the matter is resolved.  He also dealt with other matters pertaining to the claimant's sickness absence, annual report marking and his future placement.

(u) On 13 February 2007 the claimant wrote to the Permanent Secretary acknowledging conclusion of the grievance procedure through the Permanent Secretary's letter of 6 December 2006.  On 15 February 2007 he lodged his claim with the Office of the Tribunals.

The Law

8. (a) A Tribunal cannot consider a complaint of detriment on grounds related to trade union activities unless it is brought within three months from the date of the act or failure to act of which the complainant complains or where such acts or failures to act are part of a series the last of them (Article 74(2)(a) The Employment Rights (Northern Ireland) Order 1996).

(b) If a claimant wishes to rely on Article 74(2)(a) of the 1996 Order he must show first that the several acts complained of may fairly be described as a series of acts, and second that those several acts may fairly be described as similar.  The several acts need not be of an inherently similar nature, but the claimant must be able to demonstrate a sufficient link between apparently discreet acts to make it reasonable to describe them as 'similar acts'.  He may, for example be able to demonstrate that he was subjected to a concerted campaign of victimisation, manifested by different kinds of acts done by different people at different times. (see Harvey on Industrial Relations and Employment Law NI [736.01])

(c) It is for the employer to show the purpose for which he acted or failed to act (Article 75(1) The Employment Rights (Northern Ireland) Order 1996).

(d) Where a complaint is out of time the Tribunal may consider the complaint where it is satisfied that it was not reasonably practicable to present the complaint within the three months and where the complaint was brought within a further reasonable period (Article 74(2)(b) The Employment Rights (Northern Ireland) Order 1996).

(e) Where a complaint of detriment, on the ground of trade union activities is made, and the statutory grievance procedure is applicable the normal three month time limit for presenting the complaint is extended for three months where either the claim is in time but a proper grievance has not been presented or where the complaint is presented after the normal three month time limit provided the grievance was presented within four months from the time for making the complaint (Regulation 15(1)(b), (3) Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004).

Application of the Law and Findings of Fact to the Issues

9. (a) In this claim the claimant makes three complaints; that he was transferred from his post by reason of his trade union activities; that in relation to the grievance meeting on 18 May 2005 a number of records of the meeting, independent of the official minute, were made, retained and circulated and those records contained comments about the claimant which were critical of the claimant and of which he was unaware (see 4(n) above); and that the respondent delayed in dealing with his grievance.

(b) The earliest written complaint about the transfer on the ground of trade union activities is 6 April 2005.

(c) The earliest written complaint about the unofficial records and comments, about the meeting of 18 May 2005, is 31 January 2006.  The written complaint does not specifically allege that this was done because of the claimant's trade union activities.

(d) The earliest written complaint about delay is 19 July 2006.  The written complaint does not specifically allege that this was done because of the claimant's trade union activities.

(e) The claimant argues that all three complaints are linked and were due to his trade union activities.  The respondent argues that they can only amount to three separate complaints each of which is subject to scrutiny from the point of view of time limits.

(f) The Tribunal is satisfied that the claimant has demonstrated a sufficient link between the three acts, of which he complains, so as to regard them as a series of similar acts. In so concluding the Tribunal took into account the following matters;-

(i) his original complaint of a transfer, he alleges, was done on the ground of his trade union activities, and

(ii) the second complaint arises from a grievance hearing related to his original complaint, and

(iii) his third complaint arises from the delay he alleges occurred in dealing with his original grievance, and

(iv) all three complaints were dealt with together, and

(v) the respondent did not adduce any evidence to show the purpose for which these three acts were taken.

(g) If the three acts are viewed as a series, as the Tribunal has found for the purpose of this application, then the series only ended on receipt of the letter from the Permanent Secretary of 6 December 2006.

(h) The claimant's claim is dated 15 February 2007 and falls within the normal three months for presenting a claim.

(i) The claimant's claim for detriment on the ground of his trade union activities was brought within the statutory time limit and therefore the Tribunal does have jurisdiction to entertain the claimant's claim and the first preliminary issue is answered in the affirmative.

(j) Clearly the claimant has put his three complaints to his employer in writing and waited 28 days before presenting his claim.

The respondent submits that the claimant has not specifically related his second and third complaints to his trade union activities.

In considering the contents necessary for a proper grievance Harvey on Industrial Relations and Employment Law stated at T [309.01];-

"(iv) As to the content of the statement, the requirement imposed by para 6 is 'minimal' and does not require formality or technicality (Shergold, per Burton J, at para 30; Canary Wharf at para 23). It is enough that the employee identifies the complaint. There is no need for him to set out the basis of the claim (unlike the position in para 9 under the modified procedure). All that is required is that the complaint to the employer is essentially the same complaint that is subsequently made to the tribunal. The determination of this question is not, however, to be approached in a technical way. It is not necessary for the grievance statement to specify every instance that may be subsequently raised at the tribunal. It is not even necessary for the employee to indicate that he wants or expects the complaint to be dealt with; nor is he required to invoke a grievance procedure, statutory or contractual (Canary Wharf at para 22; Shergold at para 33).

(v) In determining whether a grievance has been made, Elias J postulated the appropriate test as being whether 'the employers, on a fair reading of the statement and having regard to the particular context in which it is made, can be expected to appreciate that the relevant complaint is being raised' (Canary Wharf at para 25). As to the consequences of the employee not surmounting this hurdle, Elias J stated: 'If the statement cannot in context be read even in a non-technical and unsophisticated way as raising the grievance which is the subject matter of the tribunal complaint, then the tribunal cannot hear the claim. There is no overriding interest of justice which can be invoked to save it' (ibid at para31)."

(k) The context of the consideration of the claimant's second and third complaints is at the very meeting, arranged to deal with the claimant's original grievance of being transferred on the ground of his trade union activities and the second and third complaints are clearly linked to the original complaint.

The Tribunal is satisfied that the respondent on a fair reading of the written second and third complaints and in the particular context in which they were made could be expected to have appreciated that the claimant was raising his second and third complaints as further acts of detriment on the ground of his trade union activities.

(l) The claimant is entitled to present his claim to the industrial tribunal in view of the provisions of Article 19(2) and (3) of the Employment (Northern Ireland) Order 2003.  The second preliminary issue is also answered in the affirmative.

(m) The Tribunal directs that the claimant's claim can now proceed to hearing.

Chairman:

Date and place of hearing: 21 June 2007 Belfast

Date decision recorded and issued to parties: