Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 846/07

CLAIMANT: Sean McGranaghan

RESPONDENT: Steel Weld Fabrications Limited

DECISION ON APPLICATION OF CLAIMANT FOR INTERIM RELIEF

The unanimous decision of the tribunal given verbally to the parties after the hearing on 15^th June 2007 is that the claimant is entitled to the protection of Article 163 of The Employment Rights (Northern Ireland) Order 1996 (hereinafter called "the 1996 Order"). The chairman of the tribunal asked the respondent whether it was willing to reinstate or re-engage the claimant pending the determination or settlement of the complaint, as is required by Article 164 of the 1996 Order? The respondent informed the tribunal that it was not prepared to do so.

In these circumstances Article 164 (9) of the 1996 Order states that the tribunal shall make an order for the continuation of the employee's contract of employment. The tribunal so orders.

Constitution of Tribunal:

Chairman: Mr P Cross

Panel Members: Miss Townsley

Mr Rosbotham

Appearances:

CLAIMANT BY: The claimant was represented by Ms McManus, Solicitor in Donnelly & Kinder Solicitors.

RESPONDENT BY: The respondent was represented by Mr Potter, Barrister-at-Law, instructed by Faloon & Toal Solicitors.

Reasons

1. The Issues

The claimant, who had become a member of the Amalgamated Transport & General Workers Union ("the Union") on 12 March 2007, was subject to disciplinary proceedings arising out of an alleged failure to carry out an instruction from his line manager and from the managing director of the respondent company. The claimant alleged that his dismissal, following these proceedings, was because he had joined the union, in a workplace where there was no union membership. Such a dismissal would, if proved to be the reason or the principal reason for the dismissal, be an unfair dismissal under Article 136 (1) (a) of the 1996 Order. Furthermore if under Article 163 a person claiming dismissal because, inter alia, he was a member of a union, he has a right to apply to the tribunal for interim relief. This claimant made such a claim to this tribunal.

2. The Evidence

The tribunal heard evidence from the claimant and his union representative Mr McKeever and from Mr Crilly, Ms McKernan and Mr Young of the respondent company.

3. Finding of Facts

1. .1 The claimant, who commenced employment in March 2004, had been subject to disciplinary proceedings in February 2007, when he was disciplined for taking too many lengthy toilet breaks during the working day. It was alleged that he was not attending to his work and was reading the paper in the toilet. He received a written warning which was confirmed on appeal.
2. .2 The respondent subsequently cancelled a bonus that had been paid to the claimant for a number of months. The respondent stated that this bonus was linked to a contract with a particular customer which had recently cancelled its orders to the respondent.
3. 3 These events prompted the claimant to join the union on 12 March 2007.
4. .4 On 18 April 2007 the claimant was asked by his line manager to make a count of the number of units known as channels. The claimant failed to carry out this instruction, due to pressure of other work. After working all morning the claimant was again asked to do the count. This was at about 2.45 pm. The claimant said that he would do the job next morning. At about 3.30 that afternoon the claimant was called into the office and was told that he was going to be given a warning. The claimant then said that he wanted his union representative to be present. This was the first time that the respondent and its production manager, Dominic Young, became aware that the claimant had become a member of the union.
5. .5 It was agreed that the claimant should telephone to his union to see if someone could come to the meeting. Whilst the claimant was on the phone the managing director and owner of the respondent company, Dominic Crilly, came into the office. It transpired that the union representative Sean McKeever, could not attend till the next day. Before he left the office Mr Crilly asked the claimant to do the counting that was at the bottom of this dispute. There was a dispute as to exactly what the claimant replied to Mr Crilly, however it was a sharp response and a refusal to do the job there and then. The claimant said in evidence that he intended to do it early the next morning. However when he came in next day, 19 April he was suspended from duties on full pay, by Mr Young. He had only been in for about a half hour and did not have time to do the count.
6. .6 On 23 April a disciplinary hearing was convened at which the claimant and his union official Sean McKeever were present. The claimant made a recording of the meeting. The meeting did not go well mainly because the respondent would not allow Mr McKeever to represent the claimant as is provided for in The Employment Relations (Northern Ireland) Order 1999.
7. .7 At the meeting Mr Young made it clear to Mr McKeever and to the claimant that the respondent did not recognise Trade Unions and would not let Mr McKeever carry out his statutory right of accompanying his member.
8. .8 The meeting broke up in confusion and the claimant was advised that he was dismissed for gross misconduct in failing to carry out a reasonable work instruction. The claimant exercised his right of appeal but this was unsuccessful.

4. The Law

9. .1 The claimant, in order to show that he is entitled to the interim relief under Article 163 of the 1996 Order, must satisfy the tribunal that as follows:-
10. 1.1 That he has applied to the tribunal for such relief within seven days of the effective date of termination of his employment.
11. 1.2 That he also presents to the tribunal, within the same time limit, a certificate in writing, signed by an authorised official of the trade union of which the claimant is a member, stating that the claimant was a member of the trade union on the date that he was dismissed. Furthermore the certificate must state that there appear to be reasonable grounds for supposing that the reason for dismissal, or if there are more than one ground, then the principal reason is the claimant's membership of the trade union.
12. 1.3 The claimant must demonstrate to the tribunal that he is likely to succeed in his claim for unfair dismissal on union grounds, when the case is heard. The likelihood of success that must be demonstrated is considered in Harvey (Division 4 para 615) as to be more than 50 percent chance of success.
13. .2 If the claimant satisfies the tribunal on these points; then the tribunal will ask the respondent if it will reinstate or reengage the claimant. If the respondent refuses to do so, then the tribunal will order a continuation of the claimant's contract of employment until the final resolution of the dispute.

5. Decision of Tribunal

14. .1 The tribunal, having satisfied itself that the pre conditions set out in 4.1.1 and 4.1.2 above had been complied with, then examined the evidence surrounding the dismissal of the claimant. The tribunal is unanimous in finding, that the fact that the claimant had become a member of the union played a significant part in the respondent's handling of the complaint against him and influenced the respondent in its decision to dismiss him. The original complaint against the claimant was the type of complaint that often arises and annoys employers. The claimant was asked to do a task and because of pressure of other duties, kept putting it off. The respondent tried to discipline the claimant for this prevarication and in the normal way this might have resulted in a warning, particularly as the claimant compounded the offence with a cheeky remark to the managing director. However the whole matter took on a much more serious tone when the respondent discovered that the claimant had become a member of a trade union, in a plant that had no union membership before.
15. .2 The claimant had a right to join the union and he had the right to be accompanied at the disciplinary meeting. The conduct of the respondent's production manager at the meetings, after he became aware of the claimant's union membership, convinced the tribunal that he was carrying out an anti union policy and the tribunal find that the claimant has at least a 51 percent chance of convincing a tribunal that he was dismissed because he had joined the trade union.
16. .3 The respondents, having informed the tribunal that the claimant would not be reinstated or re-engaged, order that the claimant's contract of employment shall continue in full force and effect until this case is finally determined.
17. .4 There was some discussion concerning the bonus which had been paid to the claimant, but which had been withdrawn before the dismissal. The tribunal order that the basic wage should be paid to the claimant and if he is successful in the final determination of the case the question of whether or not the bonus comprises part of his loss can be dealt with by the tribunal that makes the final determination.

Chairman:

Date and place of hearing: 14 & 15 June 2007, Belfast

Date decision recorded in register and issued to parties: