Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

Case Ref: 395/07

CLAIMANT: Samuel Terence Boylan

RESPONDENTS: 1. John Pollock

2. Jim McKeown

3. University and College Union

DECISION ON A PRE-HEARING REVIEW

The tribunal has concluded that the claimant's claim under Article 33 (1) of the Trade Union and Labour Relations (Northern Ireland) Order 1995 was lodged outside the statutory time limit of three months. The tribunal has further concluded that there is insufficient evidence to establish on the balance of probabilities that it was not reasonably practicable for the claimant to have lodged his claim within the appropriate time, or that any delay was wholly or partly attributable to a reasonable attempt to appeal against the determination which was the subject of his complaint or to have it reconsidered or reviewed. The claimant's case therefore must fail in its entirety. Upon application of the respondent and with the consent of the claimant, the tribunal orders that the first and second respondents be removed from this claim. Any reference to the respondent therefore relates only to the third respondent.

Constitution of Tribunal:

Chairman: Mr T Browne (Sitting Alone)

Appearances

The claimant appeared and represented himself.

The respondent was represented by Mr Mark McEvoy, Barrister-at-law, instructed by the respondent's solicitor's office.

ISSUES

1. The tribunal had to determine whether the claimant's complaint received in the Tribunals office on 15^th March 2007of being unjustifiably disciplined by a Trade Union was lodged outside the three months permitted under the provisions of the Trade Union and Labour Relations (Northern Ireland) Order 1995 ('the 1995 Order').
2. Article 33 (i) of the 1995 Order states that 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 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."

FINDINGS OF FACT

3. The claimant at the material time, namely 16^th November 2006 was, and remains, a lecturer at Limavady College.
4. On that date, the claimant drove through a picket line of colleagues conducting a one-day strike.
5. As a result, a letter dated 22^nd November was sent to the claimant from John Pollock and Andrew Hepburn, purportedly acting in accordance with their position within the Union, requesting that he resign from the Union. It was conceded by the respondent at the tribunal hearing that such action was a "determination" for the purposes of the 1995 Order, notwithstanding the fact that there is no power within the Union rules to take such action at local level.
6. That letter was received by the claimant the next day, which coincided with an

e-mail being sent by John Pollock to the claimant and all of his colleagues, the contents of which in my opinion were clearly designed to publicly humiliate him.

7. That public humiliation was continued by Mr Pollock, again in furtherance of his unauthorised disciplining of the claimant in requesting his resignation, in a further

e-mail on 7^th December 2006.

8. In response to the initial letter of 22^nd November, the claimant sent an e-mail to Jim McKeown, an official in the University and College Union, asking for his opinion about the action of Mr Pollock. It is significant that in that e-mail, the claimant's main complaint seems to me to relate to the contents and public nature of the

e-mail, rather than the letter requesting his resignation. It also is significant that, despite indicating a desire to speak to Mr McKeown, the claimant did not specify to him the nature of what he wanted to discuss; nor did he ever try to make an appointment or other contact with Mr McKeown.

9. Mr McKeown in his e-mail reply of 7^th December makes it clear from his choice of language that he is firmly behind the striking members of his union. He does however also make it clear that the claimant should set out his case for the branch committee. The claimant never did so, so the only formal step taken by him was when he lodged his claim form in the Tribunals office on 15^th March 2007.
10. The next, and last, communication from the claimant to the respondent before lodging his tribunal claim was on 19^th December, when he requested a copy of the union rulebook from Mr Pollock, who replied on 20^th December, referring the claimant to his regional official.
11. In December 2006 the claimant and his family went through a major domestic upheaval, which I unhesitatingly accept caused him to experience a significant amount of trauma. It is greatly to his credit that he managed to take on the role of a single parent and to keep his job going. He sought and received counselling through his workplace between January and March 2007, during which time he continued to work.

CONCLUSIONS

12. I am satisfied that the date of determination which formed the basis of the claimant's complaint was 22^nd November 2006, on which date the letter of Messrs Pollock and Hepburn was sent to him. The subsequent e-mails sent by Mr Pollock, whilst nothing less than bullying, for these purposes were merely a public declaration of the decision communicated to the claimant in the letter of 22^nd November.
13. In assessing whether or not there was anything which rendered it "not reasonably practicable" to present his complaint, I am not satisfied that such a practical impediment existed. In assessing this, I have had regard to the fact that the claimant was able to keep working, even with the counselling support provided by his employer. It also is of note that on 29^th January, he joined another trade union, the ATL, which he selected because it did not support strike action. Significantly, the claimant did not seek advice from his new union as to his rights regarding his complaint against the respondent.
14. I also regard the claimant's action in joining a new union as significant in that, despite being in the middle of a traumatic period of his life on the domestic and professional fronts, he was able to take appropriate action and to set aside time to do so. Such action in my opinion gravitates heavily against the contention of the claimant that he was unable to function properly.
15. I therefore find that there is insufficient evidence that it was not reasonably practicable for the claimant to lodge his complaint.
16. The other limb under which the tribunal might permit an extension of time arises under Article 33 (2) (b) (ii) of the 1995 Order, where the delay might wholly or partly be attributable to a reasonable attempt to appeal against the determination or to have it reconsidered or reviewed. In assessing this, I find it to be significant that the claimant made what I find to be only a preliminary indication of intention to challenge the determination made against him on 22^nd November.
17. He did not follow up neither his specific nor his general points to Mr McKeown, and the only firm action taken by him was when he lodged his complaint with the Office of Industrial Tribunals on 15^th March 2007.
18. I therefore conclude that his action cannot be construed as falling within the provisions of Article 33 (2) (b) (ii).
19. Having had regard to the relevant law and available evidence, I conclude that the claimant has not satisfied me on the balance of probabilities either that his complaint was presented within time or that there is any ground upon which the tribunal can properly permit an extension of time. His claim therefore is dismissed in its entirety.

Chairman:

Date and place of hearing: 6 September 2007, Belfast.

Date decision recorded in register and issued to parties: