Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 5874/09

CLAIMANT: Tracey Mulgrew

RESPONDENT: Stopwatch Ireland Limited

DECISION

The decision of the tribunal is that the application for interim relief is granted and a continuation order is made in the terms set out in this decision.

Constitution of Tribunal:

Chairman: Mr Kelly (sitting alone)

Appearances:

The claimant was represented by Mr Neil Gillam of Donnelly & Kinder, Solicitors.

The respondent did not appear and was not represented.

Relevant Law

1. Article 136 of the Employment Rights (Northern Ireland) Order 1996 ("the 1996 Order") provides, in material part:-

"(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for his dismissal is that the employee:-

(a) was, or proposed to become, a member of an independent trade union,"

2. Article 163 of the 1996 Order provides, in material part:-

"163 (1) An employee who presents a complaint to an industrial tribunal –

(a) that he has been unfairly dismissed by his employer, and

(b) that the reason (or, if more than one, the principal reason) for the dismissal is one of those specified in – Article 136(1),

may apply to the tribunal for interim relief.

(2) The tribunal shall not entertain an application for interim relief unless it is presented to the tribunal before the end of the period of seven days immediately following the effective of determination (whether before, on or after that date).

(3) In a case where the employee relies on Article 136(1)(a) – the tribunal shall not entertain an application for interim relief unless before the end of that period there is also so presented a certificate in writing, signed by an authorised official of the independent trade union of which the employee was or proposed to become a member stating –

(a) that on the date of the dismissal the employee was or proposed to become a member of the union, and

(b) that there appeared to be reasonable grounds for supposing that the reason for his dismissal (or, if more than one, the principal reason) was one alleged in the complaint."

3. Article 164 (1) of the 1996 Order provides:-

"This Article applies where, on hearing an employee's application for interim relief, it appears to the tribunal that it is likely that on determining the complaint to which the application relates the tribunal will find that the reason (or, if more than one, the principal reason) for his dismissal is one of those specified in Article 136 (1) –"

4. Article 164(9) of the 1996 Order provides, in material part, that:-

"(9) If on the hearing of an application for interim relief the employer –

(a) fails to attend before the tribunal, -

the tribunal shall make an order for the continuation of the employee's contract of employment."

5. Article 165 of the 1996 Order provides:-

"(1) An order under Article 164 for the continuation of a contract of employment is an order that the contract of employment continue in force –

(a) for the purposes of pay or any other benefit derived from the

employment, seniority, pension rights and other similar matters, and

(b) for the purposes of determining for any purpose the period for which the employee has been continuously employed,

from the date of its termination (whether before or after the making of the order) until the determination or settlement of the complaint.

(2) Where the tribunal makes such an order it shall specify in the order the amount which is to be paid by the employer to the employee by way of pay in respect of each normal pay period, or part of any such period, falling between the date of dismissal and the determination or settlement of the complaint.

(3) Subject to the following provisions, the amount so specified shall be that which the employee could reasonably have been expected to earn during that period, or part, and shall be paid –

(a) in the case of a payment for any such period falling wholly or partly after the making of the order, on the normal pay for that period, and

(b) in the case of a payment for any past period, within such time as may be specified in the order.

(7) For the purposes of this Article, the amount which an employee could reasonably have been expected to earn, his normal pay period and the normal pay day for each such period shall be determined as if he had not been dismissed."

6. In the case of Taplin –v- C Shippam Limited [1978] IRLR 450, the EAT considered the GB equivalent to Article 164(1) of the 1996 Order. They stated:-

"Having considered all these matters which have been urged before us we are unanimously of the view that the test proposed by Mr Hands of a "reasonable prospect of success" is not one which should be adapted. The phrase can have different shades of emphasis, the lowest of which we do not think is sufficient. We do not consider that Parliament intended that an employee should be able to obtain an order under this section unless he achieved a higher degree of certainty in the mind of the Tribunal and that of showing that he just had a "reasonable" prospect of success. The employee begins with a certificate from the trade union official certifying that there appear to be reasonable grounds for supposing that the reason for his dismissal was the one alleged. We consider that the Tribunal is required to be satisfied of more than that before it can appear "that it is likely" that a tribunal will find that a complainant was unfairly dismissed for one of the stated reasons.

On the other hand we are not persuaded that there is a dichotomy between "probable" and "likely" as expressed by the Chairman of the Industrial Tribunal. We find it difficult to envisage something which is likely but improbable or probable but unlikely and we observe that the Oxford Dictionary definition does define "likely" as "probable". Nor do we think that it is right in a case of this kind to ask whether the applicant has proved his case on a balance of probabilities in the sense that he has established a 51% probability of succeeding in his application, as has at one stage been contended before us. Nor do we find Mr Hands' alternative suggestion of a real possibility of success to be a satisfactory approach. This again can have different shades of emphasis. It seems to us that the section requires that the employee shall establish more clearly that he is likely to succeed than that phrase is capable of suggesting on one meaning. On the other hand it is clear that the tribunal does not have to be satisfied that the applicant will succeed at the trial. It may be undesirable to find a single synonym for the word "likely" but equally, we think it is wrong to assess the degree of proof which has to be established in terms of a percentage as we have been invited to do.

We think that the right approach is expressed in a colloquial phrase suggested by Mr White. The tribunal should ask itself whether the applicant has established that he has a "pretty good" chance of succeeding in the final application to the tribunal."

7. The EAT in Derby Daily Telegraph Limited –v- Foss EAT/631/91 (transcript) put forward an alternative formulation when it stated:-

"One perhaps might have said that her case "looks like a winner".

Relevant Findings of Fact

8. There is a dispute between the claimant and the respondent as to the date on which the claimant commenced employment with the respondent company. That is not an issue which I have to determine for the purposes of this application. There is no qualifying period of continuing service if the claim is that a dismissal is automatically unfair under Article 136(1) of the 1996 Order.
9. The claimant's duties involved checking CCTV footage from customers' premises in the UK and Ireland, dealing with customers, conducting till fraud investigations and dealing with staff rotas.
10. In July 2008, a Philip Atkinson joined the company. In December 2008 a Lorraine Henderson also joined.
11. On 14 May 2009, Philip Atkinson was on the shift after the claimant's shift. He had frequently been late turning up for work and the claimant had had to wait for him to hand over duties. He was late on this occasion also. The claimant noted the additional time she had to stay in the premises on her time sheet. That note was scored out by Lorraine Henderson. At this time Cyril Rafferty, the respondent's General Manager, was on sick leave but attended the office from time to time to deal with urgent issues.
12. On 16 May the claimant told Mr Rafferty that she wished to raise a verbal grievance about the incident. The claimant told Mr Rafferty that Ms Henderson had slammed the door in her face and had called her a bitch. Mr Rafferty said he would deal with it when he returned fully from sick leave.
13. On 17 May, Ms Henderson spoke to the claimant and denied calling her a bitch but added "but I think you are". The claimant telephoned Mr Rafferty who was in his office at that time and asked him to come in. Ms Henderson then denied to Mr Rafferty that she had said that she thought the claimant was a bitch. Mr Rafferty accepted that denial.
14. On 18 May, Mr Rafferty told the claimant that there was going to be a grievance taken against her by Ms Henderson and Mr Atkinson. He would arrange a meeting between the claimant, Mr Atkinson, Ms Henderson and himself. The claimant stated that she wanted her union representative to attend that meeting. Mr Rafferty left and shortly afterwards Mr Sean McMahon, a Director of the respondent company, entered the room. He asked the claimant what she was saying about a trade union. She stated that she wanted a trade union representative at the proposed grievance meeting. He asked her if she was a member of a union. She told him she was a member of Unite. He told her that "there was no trade union here" and "if you are in the union you are down the road", "if you are in the union, you had better look for another job" and "to stop this childishness". He concluded by saying "I mean it. There is no union".
15. On 27 May, the claimant was asked to sign a contract of employment which specified that her commencement date had been 1 July 2008. The claimant disputed that date and contended that she had commenced employment one year earlier in July 2007. The claimant spoke to Sean McKeever, the Regional Industrial Organiser of Unite. He advised her not to sign a contract and to raise a grievance alleging that she had been harassed and bullied.
16. On 18 June, the claimant told Mr Rafferty that she was taking legal advice about the contract. She then lodged a grievance on Friday 19 June against Ms Henderson, Mr Atkinson, Mr Rafferty and Mr McMahon.
17. On Monday 22 June, the claimant was called into Mr Rafferty's office. He asked her if she was signing the contract. She told him she was seeking legal advice. She queried the date given for the commencement of her employment and Mr Rafferty told her that that date would not be changed. He told her that he had spoken to the Directors and that if the contract were not signed, she would be dismissed.
18. John Coyle, who was described by the claimant as a Director of the respondent company, spoke to her later that evening. He asked her why she was not signing the contract. He also asked "what is this about a union?". He said "there is no fucking road a union is coming into this place". The claimant stated that she wanted her grievance dealt with formally and that she "wouldn't be speaking unless I had a union present". Mr Coyle replied "there is no fucking way a union is going to be in here – I am only just after paying £1,200 to those fucking bastards". He told her that out of 16 workers, 15 had signed the contract and that she was the only one being awkward. He told her to "wise up and sign it". He had had to re-mortgage his house to support his business and the claimant was not only going to cause the other workers to lose their jobs, he could lose his house. "Unions only destroy businesses". As he was leaving, he added "Did you ever wonder why union solicitors are union solicitors? – because they failed all their exams and could not get a proper job".
19. Mr Coyle advised her to think about it and to phone in before 4.00 p.m. on the following day i.e. the time when she was due to start work on Tuesday 23 June.
20. The claimant spoke to Mr McKeever who told her to sign the contract but to endorse it to the effect that she was signing it under duress.
21. She attended work at 4.00 p.m. on Tuesday 23 June. Mr Rafferty asked her into his office and asked her to sign for a letter which she was not allowed to open or read until she had left his office. That letter stated:-

"I hereby give you notice of termination of employment with Stopwatch Ireland Ltd. Your last working day would be 30 June 2009."

22. On Wednesday 24 June, she again attended work and was handed a second letter which stated:-

"The Board of Directors of Stopwatch Ireland Limited has decided to afford you paid leave for the remainder of your period of notice, as is the practice in this industry. Your wages in full will be available for collection on the appropriate dates."

23. The claimant was paid £300 gross and £243.50 nett per week and the normal pay day was Thursday. She was paid up to and including 30 June 2009.

Decision

24. The respondent failed to attend the hearing of this application. Under Rule 27(5)(6) of the Industrial Tribunal Rules of Procedure contained in Schedule 1 to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 ("the Rules"), I have decided to proceed in their absence and have considered the content of their response and the content of a letter from the respondent dated 24 July 2009. The response, in the form of a letter dated 20 July 2009, stated only that:-

"This lady has not been in the employ of Stopwatch Ireland Limited for twelve months. Therefore we are of the understanding that there is no case to answer. The Stopwatch Ireland Limited monitoring station opened on 2 July 2008. She was previously employed by Metro CCTV Unit 6, Derryloran Industrial Estate, Cookstown. The Directors and shareholders of Stopwatch Ireland Limited are Mr Sean McMahon, Mr Brian Honan and Mr Dermot McMorrow. They are not and never have been Directors or shareholders of Metro CCTV."

The letter of 24 July 2009 stated:-

"We refer to your letter of 22 July 2009 and further state that as per our original response that Ms Tracey Mulgrew was in our employ for less than twelve months. Therefore we have no case to answer. We regret that we will be unable to attend the tribunal."

It is apparent that no purpose would have been served by a further delay to enable the respondent to attend and Article 136(10) of the 1996 Order makes it plain that an application for interim relief should only be adjourned in exceptional circumstances. No such circumstances exist in the present case.

25. I am satisfied that the requirements of Article 163(1), (2) and (3) have been met.

The union certificate contains one factual error. It states that the claimant had joined Unite on 23 June 2009. The claimant gave evidence that she had in fact joined in February 2009. A copy of the claimant's union card showing that earlier date was exhibited to the tribunal and the claimant and Mr McKeever gave evidence that there had been a difficulty in collecting her union subscriptions in the period between 20 February and 23 June 2009. Mr McKeever stated that she had been a member of Unite in good standing throughout this period while the payment of a union subscription had been properly organised. He had in fact advised her during this period as a union member in his capacity as a union official. I am therefore satisfied that the claimant was a member of Unite from 20 February 2009. The error on the certificate is not material in that the certificate did state clearly that the claimant was a member of the trade union on the date of her dismissal on 30 June 2009, as required by the 1996 Order. The union certificate also contained unnecessary wording in that it said "I am of the view that there appears to be reasonable grounds for believing that the dismissal was on trade union grounds". The words "I am of the view" are unnecessary but they do not in any way obscure the meaning of the certificate. I would point out that the EAT in Bradley –v- Edward Ryde & Sons [1979] ICR488 criticised such inaccuracies and stated that "it is not a difficult task to state if a man either is or proposes to become a member of the union on the date of dismissal nor is it difficult to set out the words that there appear to be reasonable grounds for supposing that the reasons for a man's dismissal was the one alleged in the complaint." In that case the EAT was prepared to interpret a certificate by an official that stated that "in his opinion" the dismissal was on union grounds as a statement that there were "reasonable grounds" for believing that was the reason for the dismissal. I am therefore satisfied that the certificate in the present case, albeit with one factual error, is satisfactory for the purposes of Article 163(3) of the 1996 Order.

26. I now have to decide, for the purposes of Article 164(1) of the 1996 Order whether, in my view, it is likely that the complaint to which the application relates i.e. a complaint of automatic unfair dismissal on the ground of trade union membership, would be successful at the substantive hearing of the complaint. I have considered the decisions in Taplin and in Foss (above). It is clear that the burden of proof placed on the claimant in an interim relief application is greater than that faced at the full hearing where the tribunal only needs to be satisfied on the balance of probabilities. I can only reach a decision on the evidence before me. The respondent has chosen not to attend or to take any part in these proceedings beyond the response of 20 July 2009 and the letter of 24 July 2009.
27. The undisputed evidence of the claimant was both clear and credible and I accept that evidence.
28. The substance of that evidence was contained within the claim form which was served on the respondent. The respondent has failed to deny any part of those allegations and has instead limited its response to a technical point which it considers to be a complete answer to the claim. The failure of the respondent to dispute or deny any part of what amount to extremely serious allegations is a matter which I can legitimately take into account when considering whether the claimant's allegations are likely to succeed in the substantive hearing.
29. There was no evidence that the respondent had ever considered dismissing the claimant before she indicated on 22 June 2009 that she was seeking legal advice from her trade union in relation to her contract. On that date Mr Coyle was quite explicit in describing his attitude towards trade unions and in refusing to contemplate the possibility of trade union representation in relation to the grievance procedure. The notice of dismissal followed immediately thereafter on 23 June 2009.
30. I therefore conclude that it is likely that the tribunal will conclude at the substantive hearing that the principal reason for the claimant's dismissal was her membership of Unite and her wish to make use of that membership to avail of trade union services in relation to her contract and the grievance procedure. The respondent has failed to attend before the tribunal and therefore under Article 164(9) of the 1996 Order, the tribunal "shall make an order for the continuation of the employee's contract of employment". I therefore make such an order within the terms of Article 165(1). That provides for an order for the continuation of a contract of employment "for the purposes of pay or any other benefit derived from the employment" from the date of its termination i.e. in this case from 30 June 2009 until the eventual determination or settlement of the complaint.
31. For the purposes of Article 165(2) I order that the amount which is to be paid by the employer to the employee by way of pay in respect of each week shall be £243.50 i.e. the nett pay under the contract. That amount shall be paid by the respondent to the claimant on Thursday of each week i.e. the normal pay day. Those payments shall commence with immediate effect. The amount of arrears of pay, calculated from Wednesday 1 July 2009 shall, subject only to the recoupment notice attached to this decision, be paid within two weeks of the date of this decision. The arrears of pay amounts to £1,071.40 nett being four weeks and two days to the date of this hearing.
32. The provisions of the Employment Protection (Recoupment of Jobseekers Allowance and Income Support) Regulations (Northern Ireland) 1986 apply to payments due under continuation order made under Article 164 of the 1996 Order. The claimant is receiving Jobseekers Allowance processed through Cookstown Social Security Office. It is difficult to reconcile the application of these Regulations to an application for interim relief which is, of its nature, an emergency application. The recoupment procedure builds in an automatic delay. However, the tribunal has no discretion in this matter. Therefore for the purposes of the 1996 Regulations, and, in particular Regulation 4(3) the monetary award, is that amount of money accumulating with effect from 1 July 2009 (the day after the dismissal) until the date on which the substantive tribunal proceedings are either determined or settled. The amount of the prescribed element for the purposes of Regulation 4 and the Schedule to those Regulations is the sum in respect of arrears i.e. £1,071.40. The dates to which the period to which the prescribed element is attributable are from 1 July 2009 to 30 July 2009 and the monetary award as described above, will exceed the prescribed element by an amount which cannot be determined at this point.
33. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

Chairman:

Date and place of hearing: 30 July 2009, Belfast

Date decision recorded in register and issued to parties: