Industrial Tribunals Northern Ireland Decisions

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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Johnston v Ministry of Defence [2009] NIIT 1984_06IT (13 January 2009)
URL: http://www.bailii.org/nie/cases/NIIT/2009/01984.html
Cite as: [2009] NIIT 1984_06IT, [2009] NIIT 1984_6IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1984/06

CLAIMANT: Thomas Gary Johnston

RESPONDENT: Ministry of Defence

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that the tribunal does not have jurisdiction to determine the claimant’s claims by the reason of the failure of the claimant to make complaints in respect of the said matters under the Service Redress Procedures, referred to in Section 180 of the Army Act 1955. In the circumstances, the claimant’s claims to this tribunal are therefore dismissed.

Constitution of Tribunal:

Chairman (sitting alone): Mr N Drennan QC

Appearances:

The claimant was represented by Mr M Wolfe, Barrister-at-Law, instructed by McCartan Turkington & Breen, Solicitors.

The respondent was represented by Ms S Bradley, Barrister-at-Law, instructed by The Treasury Solicitors.

1. This hearing was arranged to consider:-

“Whether the tribunal had jurisdiction to determine the claimant’s claims by reason of the failure of the claimant to make a complaint in respect of the said matters under the Service Redress Procedures referred to in Section 180 of the Army Act 1955.”

The claimant had made, in his claim form, a complaint under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2000 (‘2000 Regulations’) and the Working Time Regulations (Northern Ireland) 1998 (‘1998 Regulations’).

2. It is provided under Regulation 13(3) of the 2000 Regulations as follows:-

“No complaint concerning the service of any person as a member of the armed forces may be presented to an industrial tribunal under Regulation 8 unless –

1. that person has made a complaint in respect of the same matter to an officer under the Service Redress Procedures; and

2. that complaint has not been withdrawn.

It is provided under Regulation 37(2) of the 1998 Regulations as follows:-

“No complaint concerning the service of any person as a member of the armed forces may be presented to an industrial tribunal under Regulation 30 unless –

1. that person has made a complaint in respect of the same matter to an officer under the Service Redress Procedures; and

2. that complaint has not been withdrawn.”

Section 180(1) of the Army Act 1955 refers to the said Service Redress Procedures referred in the above Regulations:-

“(i) If an officer thinks himself wronged in any matter by a superior officer or authority and on application to his commanding officer does not obtain the redress to which he thinks he is entitled, he may make a complaint with respect to that matter to the Army Council.

2. On receiving any such complaint it shall be the duty of the Army Council to investigate the complaint and to grant any redress which appears to them to be necessary or, if the complainant so requires, the Army Council shall through the Secretary of State make their report on the complaint to Her Majesty in order to receive the directions of Her Majesty thereon.”

3. There was no dispute between the representatives of the parties that, for the tribunal to have jurisdiction to hear the claimant’s complaints under the 2000 Regulations and/or the 1998 Regulations, the tribunal had to be satisfied that the claimant, as a member, at the relevant time, of 3 Royal Irish Regiment, had made a complaint in respect of each of the said matters, the subject-matter of his complaint to the tribunal, under the said Service Redress Procedures.

4. The claimant, who was represented at the hearing, as set out above, did not appear, nor give any evidence nor was any evidence called on his behalf at the hearing. Major Paul Cousins (now retired) gave evidence on behalf of the respondent.

5. Having heard the evidence of Major Cousins, I was satisfied that no complaint from the claimant under the said Service Redress Procedures had been received by him. At the relevant time he was the Staff Officer at 39 Infantry Brigade, of which 3 Royal Irish Regiment was part, who collated all such complaints made under the Service Redress Procedures and who also had placed on a computer database all such complaints received by him. He confirmed, in evidence, that having searched the said database but also manually all relevant written paper files/records, there was no record of any such complaint having been received by him from the claimant.

6. In the absence of any other evidence, I was satisfied that the claimant had not made a complaint, in respect of either his complaint under the 2000 Regulations and/or the 1998 Regulations, under the said Service Redress Procedures. In the circumstances, the tribunal does not have jurisdiction to hear the claimant’s complaints to the tribunal under the 2000 Regulations and/or the 1998 Regulations; and the claimant’s claims must therefore be dismissed.

Chairman:

Date and place of hearing: 8 December 2008, Belfast

Date decision recorded in register and issued to parties: