Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 1065/06

CLAIMANT: James Duffy

RESPONDENT: POA

DECISION ON REVIEW

The Claimant's application for a review of the Tribunal's decision of 25 April 2008 is dismissed following its withdrawal on 24 June 2008.

The Respondent's application for an order for costs of 24 June 2008 is adjourned until 9 October 2008 at 10.00am.

Constitution of Tribunal:

Chairman: Mr M G O'Brien

Appearances:

The Claimant did not appear and was not represented.

Mr A Marriott of Lees Lloyd Whitley appeared for the Respondent.

The Claim and the Response

1. The claim in this matter was presented on 16 August 2006. At section 3 of the claim, the Claimant indicated he was represented by William Dickson, 9 Kiloanin Crescent, Banbridge, BT32 4NU. The essence of the claim is set out in section 11.1, wherein the Claimant asserted he had been unlawfully expelled from the Prison Officers' Association Union by letter dated 13 June 2006. The Claimant thus sought a declaration from the Tribunal that he had been unlawfully expelled from the POA Union contrary to Article 38 of the Trade Union & Labour Relations (NI) Order 1995.
2. The response was presented on 28 September 2006. At section 6.2 of the response, the Respondent indicated that its correct nomenclature is POA. In section 6.2 the Respondent contended that the Claimant's expulsion from the Union was lawful.

The Background to the Review

3. This claim was one of four similar matters and which were the subject of a hearing before the Certification Officer for Northern Ireland, who issued his decision on 12 February 2008. This decision is complex and runs to some seventy pages. On foot of this decision, the POA notified each of the litigants that their expulsion from the POA had been rescinded and, where appropriate, their membership reinstated. By a letter from Mr Marriott, dated 31 March 2008, these litigants were asked to confirm their positions in respect of the claims that had been presented to the Industrial Tribunal.
4. By letter dated 16 April 2008 from Mr Dickson of 9 Kiloanin Crescent, Banbridge, BT32 4NU to the Industrial Tribunal, Mr Dickson stated that he had consulted with those whom he represented and that "as the remedy sought by the claimants was an order to reinstate them to the POA, and reinstatement has been conceded by the Respondent, the complainants wish to withdraw their complaints to the Industrial Tribunal."
5. Accordingly, by a decision signed by the Chairman dated 25 April 2008 and issued on 30 April 2008, the Claimant's claim was dismissed following its withdrawal.
6. The Claimant wrote to the Office of the Industrial Tribunals by letter dated 13 May 2008. In this correspondence, the Claimant states;

…Having received notification of a decision to inform me that my claim against the POA is dismissed following its withdrawal, I phoned the Office of the Industrial Tribunals who told me that my representative, Mr William Dickson, had withdrawn my claim via letter dated the 16/4/ 2008. I have been told that there was correspondence between your office and Mr Dickson and I am sure that he fully assumed that the POA would comply with the Enforcement Order against them.

I am unable to contact Mr Dickson as he is presently on holiday. The reason I phoned is because I was bemused to be informed that my claim was dismissed. As the POA have not carried out the Northern Ireland Certification Officer's Enforcement Order.

I respectfully request that my case is left open until the Enforcement Order is complied with. The POA is requesting that I rejoin the union as a new member. I am presently on sick leave, but Mr Jameson informed me that he was physically stopped by the Branch Secretary from attending a branch meeting in Maghaberry. I was the lead case and the decision I received applies to my other three colleagues. This is a breach of the Enforcement Order which clearly states;

I order that the Union shall forthwith treat as void the decisions of its Disciplinary Committee of 20 September 2005 that Mr Duffy be expelled from the POA.

7. The Tribunal had adduced before it a letter from June Robinson, Area Secretary of the POA, to the Claimant. This letter, dated 4 June 2008, clearly states that the decision of the Certification Officer meant that the decision to expel him from the union was void and that, as a result, he did not have to rejoin the union. It goes on to state, clearly, "please be assured that you are not being asked to rejoin the union even though the form which has been sent to you is our standard membership applications form…so that we have all the correct and up to date information in relation to you. Therefore, whilst you are being asked to complete an application form, you are not being asked to rejoin…".
8. By letter dated 5 June 2008 from Mr Marriott to the Office of Industrial Tribunals, which Mr Marriott claimed was also circulated to the Claimant on 10 June 2008, Mr Marriott clarified for the Tribunal;

As you know the Certification Officer has made a decision that the POA's decision to expel Mr Duffy from the Union was void because of procedural irregularities. As a result the POA considered all the cases and decided that as Mr Duffy's case was similar to those of [his colleagues] then the ruling in the Duffy case should be applicable in all cases. Mr Duffy and his colleagues were therefore informed that the decision to expel them had been voided, that they were still members of the Union and they were requested to complete a membership application form. The request for completion of the form was purely a procedural mechanism and not a request that they should apply to rejoin the union. They were asked to fill in the form so that the union had all the necessary information which they required for their records and had a signed check off form so that future subscriptions could be deducted by the employer and paid directly to the union.

Unfortunately, there has been some confusion as to whether Mr Duffy and his colleagues have been asked to reapply for membership. If that impression were given, then it was erroneous because the union fully accepts that the decision that the Certification Officer was that their expulsion was void.

We hope by the time you receive this letter the matter will have been resolved and that the members will have completed the application forms and their membership will have been reinstated.

If for some reason the members are not satisfied that the union has acted in accordance with the Certification Officer's decision, then in the union's view it is for the member to apply to the Court for an enforcement order as the declarations of the Certification Officer are enforceable through the Civil Courts in the usual way.

9. The Claimant's application for a review of the decision dated 25 April 2008 was listed for hearing on 24 June 2008 at 10.00am. This hearing was notified to the parties on 6 June 2008.
10. The Office of the Industrial Tribunals wrote to the Claimant on 10 June 2008 to enquire if Mr B Dickson is still his representative.
11. By letter dated 11 June 2008, the Respondent's representatives sought to have this hearing conducted by way of telephone. The reason advanced for this application was that the Respondent's representatives are based in England and they regarded it as the most cost effective way for the hearing to take place.
12. The Chairman of the Tribunal considered this application, and determined that the issues in the case were potentially complex and therefore declined to facilitate the review hearing by way of a conference call.
13. No reply was received from the Claimant to the letter from the Tribunal dated 10 June 2008.

The Sources of Evidence

14. As noted above, the Claimant did not appear and was unrepresented.
15. Mr Marriott made submissions to the Tribunal in respect of costs.

The Relevant Issues

16. The issues before the Tribunal on 24 June 2008 were;

(i) Whether the Decision dated 25 April 2008 should be reviewed, pursuant to Rule 34 of the first Schedule to the Industrial Tribunals (Constitution & Rules of Procedure) Regulations (NI) 2008 ["the 2005 Rules"]; and

(ii) Whether the Respondent was entitled to an Order for costs for 24 June 2008, pursuant to Rules 38-48 of the 2005 Rules.

The Proceedings at the Review Hearing

17. The Tribunal sat at 10.00am on 24 June 2008. The Chairman directed the clerk to the Tribunal to telephone the Claimant to enquire if he intended to appear before the Tribunal. The clerk returned to the Tribunal to advise she had been informed the Claimant was at work. A further telephone call from the clerk to the Claimant evinced the information from the Claimant that he wished to withdraw his application for a review of the decision of 25 April 2008. The Claimant added that he had emailed the Office of the Industrial Tribunals on 20 June 2006 and made this application to withdraw his request in writing.
18. The Chairman of the Tribunal then directed the clerk to check all emails received from 20 – 24 June 2008. The clerk confirmed to the Tribunal that, on checking, no such email had been received from the Claimant.
19. It is against this background that Mr Marriott then made an application for the Respondent's costs, pursuant to Rules 38-48 of the first Schedule to the Industrial Tribunals (Constitution & Rules of Procedure) Regulations (NI) 2005 ["the 2005 Rules"]. In this regard, Mr Marriott rehearsed the complex factual background to the claim and the decision of the Certification Officer for Northern Ireland dated 12 February 2008 which, in effect, contained an Enforcement Order against the Respondent. Mr Marriott then contended that the sequence of correspondence from himself and from June Robinson made clear to the Claimant that he would be fully reinstated into the POA, and that any misunderstanding to the contrary owed to the administrative arrangements necessary for such reinstatement which were necessary to ascertain the Claimant's current address, his authority to have his union dues deducted at source, and to secure his proper voting rights. Mr Marriot asserted his letter of 5 June 2008 to the Office of the Industrial Tribunals was also circulated to the Claimant.
20. Accordingly, Mr Marriott contended as follows;

(i) That the Claimant's application for a review of the decision of 25 April 2008 is misconceived, as the proper path to compel any breach of the Enforcement Order issued on 12 February 2008 was through the due process provided by legislation, and not via the Industrial Tribunal. However, Mr Marriott did concede before the Tribunal that this contention had never been put to the Claimant before 24 June 2008.

(ii) That the Claimant was aware from when he received Mr Marriott's letter of 5 June 2008, which was sent the Claimant on 10 June 2008, that effect had been given to the Enforcement Order issued by the Certification Officer. Mr Marriott contended that the Claimant now asserts he had waited from 10 June – 20 June 2008 before seeking to withdraw his application for a review of the decision of 25 April 2008. Mr Marriott contended that this was an unreasonable conduct of the proceedings by the Claimant, contrary to Rule 40(3) of the 2005 Rules.

(iii) Mr Marriott further contended that the direction of the Tribunal not to hold a tele-conference hearing did not negate his application for the Respondent's costs. He contended that that application was made by letter to the Tribunal on 11 June 2008, and that however the proceedings were heard, he had still been required to expend time and expense in preparation for the hearing.

(iv) Mr Marriott referred to Rule 38(3) of the 2005 Rules, and submitted to the Tribunal that the Respondent should be allowed a costs order against the Claimant for the fees and expenses it had incurred in or for it to be represented before this Tribunal on 24 June 2008.

(v) The Tribunal took Mr Marriott to Rule 38(9) of the 2005 Rules, which provided that no such order can be made unless the Secretary of the Industrial Tribunal has sent notice to the party against whom the order may be made giving him the opportunity to give reasons why such an order for costs should not be made. Mr Marriott conceded that Rule 38(9) required the Claimant should be given opportunity to make representations in respect of the application for the Respondent's costs of 24 June 2004.

(vi) Moreover, the Tribunal also took Mr Marriott to the provisions of Rule 41 of the 2005 Rules. In response, Mr Marriott undertook to forward a schedule of the costs incurred within seven days of 24 June 2008.

The Law

21. Rule 10 to the 2005 Rules provides that a Tribunal may regulate its own proceedings, and also provides the Tribunal with the power to make directions.
22. A Tribunal may review a decision under grounds set out in Rule 34 of the 2005 Rules.
23. A Tribunal may make an order for costs against a party under Rules 38-48 of the 2005 Rules, which provides;

General powers to make costs orders
   

38.  - (1) Subject to paragraph (2) and in the circumstances listed in rules 39, 40 and 47 a tribunal or chairman may make an order ("a costs order") that -

(a) a party ("the paying party") make a payment in respect of the costs incurred by another party ("the receiving party")…


(2) A costs order may be made under rules 39, 40 and 47 only where the receiving party has been legally represented at the hearing under rule 26 or, in proceedings which are determined without such hearing, if the receiving party is legally represented when the proceedings are determined. If the receiving party has not been so legally represented a tribunal or chairman may make a preparation time order (subject to rules 42 to 45). (See rule 46 on the restriction on making a costs order and a preparation time order in the same proceedings.)


(3) For the purposes of these Rules "costs" shall mean fees, charges or disbursements incurred by or on behalf of a party in relation to the proceedings…


(5) In these Rules "legally represented" means having the assistance of a person (including where that person is the receiving party's employee) who -

(a) has a general qualification within the meaning of section 71 of the Courts and Legal Services Act 1990[57];

(b) is an advocate or solicitor in Scotland; or

(c) is a member of the Bar of Northern Ireland or a solicitor of the Supreme Court of Northern Ireland.

(6) Any costs order made under rules 39, 40 or 47 shall be payable by the paying party and not his representative.

(7) A party may apply for a costs order to be made at any time during the proceedings. An application may be made at the end of a hearing, or in writing to the Office of the Tribunals. An application for costs which is received by the Office of the Tribunals later than 28 days from the issuing of the decision determining the claim shall not be accepted or considered by a tribunal or chairman unless it or he considers that it is in the interests of justice to do so.


(8) In paragraph (7), the date of issuing of the decision determining the claim shall be either -

(a) the date of the hearing under rule 26 if the decision was issued orally; or

(b) if the decision was reserved, the date on which the written decision was sent to the parties.

 (9) No costs order shall be made unless the Secretary has sent notice to the party against whom the order may be made giving him the opportunity to give reasons why the order should not be made. This paragraph shall not be taken to require the Secretary to send notice to that party if the party has been given an opportunity to give reasons orally to the chairman or tribunal as to why the order should not be made.


(10) Where a tribunal or chairman makes a costs order it or he shall provide written reasons for doing so if a request for written reasons is made within 14 days of the date of the costs order. The Secretary shall send a copy of the written reasons to all parties to the proceedings.


When a costs order may be made


40.  - (1) A tribunal or chairman may make a costs order when on the application of a party it or he has postponed the day or time fixed for or adjourned a hearing under rule 26 or pre-hearing review. The costs order may be against or, as the case may require, in favour of that party as respects any costs incurred or any allowances paid as a result of the postponement or adjournment.


(2) A tribunal or chairman shall consider making a costs order against a paying party where, in the opinion of the tribunal or chairman (as the case may be), any of the circumstances in paragraph (3) apply. Having so considered, the tribunal or chairman may make a costs order against the paying party if it or he considers it appropriate to do so.


(3) The circumstances referred to in paragraph (2) are where the paying party has in bringing the proceedings, or he or his representative has in conducting the proceedings, acted vexatiously, abusively, disruptively or otherwise unreasonably, or the bringing or conducting of the proceedings by the paying party has been misconceived.

(4) A tribunal or chairman may make a costs order against a party who has not complied with an order or practice direction.



The amount of a costs order

     41.  - (1) The amount of a costs order against the paying party shall be determined in any of the following ways -

(a) the tribunal may specify the sum which the paying party must pay to the receiving party, provided that sum does not exceed £10,000;

(b) the parties may agree on a sum to be paid by the paying party to the receiving party and if they do so the costs order shall be for the sum so agreed;

(c) the tribunal may order the paying party to pay the receiving party the whole or a specified part of the costs of the receiving party with the amount to be paid being determined by way of detailed assessment in a county court in accordance with such of the scales prescribed by county court rules for proceedings in the county court as shall be directed by the order.

(2) The tribunal or chairman may have regard to the paying party's ability to pay when considering whether it or he shall make a costs order or how much that order should be.


(3) For the avoidance of doubt, the amount of a costs order made under paragraph (1)(b) or (c) may exceed £10,000.

Post Review Hearing Correspondence

24. By letter dated 25 June 2008, Mr Marriott sent the Industrial Tribunal a schedule of his total of legal fees and expenses incurred in the preparation and attendance at the hearing on 24 June 2008. This overall total is in the amount of £2026.58.

The Decision of the Tribunal

25. Having considered the above issues, the correspondence laid before the Tribunal, and Mr Marriott's submissions, the Tribunal hereby determined and directed as follows;

(i) Pursuant to Rule 10 of the 2005 Rules, the title of the Respondent is amended to POA;

(ii) The Claimant's application for a review of the decision of 25 April 2008, which dismissed his claim presented on 16 August 2006, is dismissed following its withdrawal on 24 June 2008;

(iii) Neither the Claimant nor the Tribunal was notified in advance of the Respondent's intention to seek an Order for its costs against the Claimant. The Claimant has not been notified of the Respondent's application for costs, which notification is required by Rule 38(9) of Schedule 1 to the 2005 Rules. The Tribunal has set out the extent of this application for costs, for the benefit of the Claimant, who was absent the proceedings of 24 June 2008.

(iv) By Rule 38(9) of the 2005 Rules, the Tribunal is required to notify the Claimant of the application by the Respondent for an Order for costs. Accordingly, this application will be listed for hearing on 9 October 2008 at 10.00am.

(v) The Tribunal wishes to emphasise to the parties that it has to date made no decision in respect of the Respondent's application for costs.

(vi) The Tribunal draws the parties' attention to Rule 42(2) above.

(vii) Pursuant to Rule 10 to the 2005 Rules, the Tribunal directs that it will proceed to determine the outstanding issue of the application for costs on 9 October 2008 at 10.00am, and will do so whether or not either or both parties are in attendance.

(viii) With reference to Mr Marriot's letter of 25 June 2008, pursuant to Rule 10 to the 2005 Rules, the Tribunal directs that at the hearing on 9 October 2008, Mr Marriott should be in a position to specify to what extent the expenses and fees comprised in the first three items under the heading "Preparation for Hearing" were incurred in the period 10 – 24 June 2008.

(ix) No other order or direction is now made.

Chairman:

Date and place of hearing: 24 June 2008, Belfast.

Date decision recorded in register and issued to parties: