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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McVeigh v Visteon UK Limited (in adminis... [2010] NIIT 05965_09IT (06 September 2010)
URL: http://www.bailii.org/nie/cases/NIIT/2010/05965_09IT.html
Cite as: [2010] NIIT 05965_09IT, [2010] NIIT 5965_9IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 5965/09
6537/09
CLAIMANT: Ronald Reuben McVeigh
RESPONDENT: Visteon UK Limited (in administration)
REVIEW DECISION
The decision of the tribunal is that the claimant’s application for a review is refused and the original decision of the tribunal is confirmed.
Constitution of Tribunal:
Chairman (sitting alone): Mr I Wimpress
Appearances:
The claimant was unrepresented and appeared on his own behalf.
The respondent did not appear and was not represented.
1. The claimant was one of a number of employees who sadly lost their jobs when the respondent’s business failed and it was placed in administration. In common with his fellow employees the claimant was a member of the UNITE trade union. On 17 June 2009, UNITE sent a written communication to all Visteon Members which stated that an agreement signed by UNITE’s General Secretary was “in full and final settlement” and therefore it could not legally process claims for a protective award in respect of a lack of consultation. Notwithstanding this, the claimant filed two claims in respect of the matter. The first claim [5965/09], was filed on the same date and complained of unfair dismissal and the absence of a 90 day consultation period in accordance with Article 216 of the Employment Rights (Northern Ireland) Order 1996. The second claim [6537/09] was filed on 22 July 2009 and was brought in respect of unpaid holiday/lieu days and an unpaid pay increase. Neither claim form contained details of the claimant’s representatives but it is not disputed that Messrs Kevin R Winters & Co, Solicitors were instructed on behalf of the claimant and a large number of former employees of the respondent. A generic response was filed on behalf of the respondent by Clifford Chance LPP in which it was contended that the tribunal did not have jurisdiction to hear the complaint under Article 217 of the Employment Rights (Northern Ireland) Order 1996 as this could only be brought by trade union representatives and in the alternative that the claimants were bound by the terms of a settlement agreement entered into by their trade union, UNITE. In addition, the respondent denied that any of the claimants were unfairly dismissed. No specific reference was made of the claimant’s claim for unpaid holiday pay. A preliminary hearing was requested in respect of the Article 217 issue.
2. On 19 January 2010, Messrs Kevin R. Winters & Co. wrote to the tribunal office and advised that they were instructed by their clients in Burke & Others v Visteon UK Limited (in administration), Case Reference 5900/99IT & Others that it was their intention to withdraw their application before the Industrial Tribunal and requested confirmation that a Case Management Discussion listed on 21 January 2010 would be cancelled. The tribunal office contacted the claimants’ representative, Mr P Murray on 20 January 2010, and he confirmed that he was on record for all the claimants and that he was withdrawing all the claims on their behalf. As a result the Case Management Discussion was cancelled and the necessary paperwork was drawn up to facilitate dismissal of the claims. Decisions signed by me dismissing all the claims were issued to the parties on 27 January 2010.
3. On 3 February 2010, a letter was received from the claimant dated 1 February 2010 in which he sought a review of the decision to dismiss his claim for a protective award on the basis that he did not receive notice of the proceedings leading to the decision and that the decision was made in the absence of a party. The claimant stated that he wished to continue with this claim and that his last contact from the tribunal office was a letter asking him to attend a Case Management Meeting on 18 December 2009. According to the claimant he duly attended but was informed that it had been cancelled.
4. Applications for reviews of tribunal decisions are governed by Rules 33 to 37 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005. The relevant rules for the purposes of this application are as follows:
34. - (1) Parties may apply to have certain decisions made by a tribunal or a chairman reviewed under this rule, and rules 35 and 36. Those decisions are -
(a) a decision not to accept a claim, response or counterclaim;
(b) a decision which is a final determination of the proceedings or a particular issue in those proceedings (other than a default judgement but including an order for costs, allowances, preparation time or wasted costs); and
(c) a decision made under rule 5(3) of Schedule 5.
(2) In relation to a decision not to accept a claim or response, only the party against whom the decision is made may apply to have the decision reviewed.
(3) Subject to paragraph (4), decisions may be reviewed on the following grounds only -
(a) the decision was wrongly made as a result of an administrative error;
(b) a party did not receive notice of the proceedings leading to the decision;
(c) the decision was made in the absence of a party;
(d) new evidence has become available since the conclusion of the hearing to which the decision relates, provided that its existence could not have been reasonably known of or foreseen at that time; or
(e) the interests of justice require such a review.
(4) A decision not to accept a claim or response may only be reviewed on the grounds listed in paragraph (3)(a) and (e).
(5) A tribunal or chairman may on its or his own initiative review a decision made by it or him on the grounds listed in paragraph (3) or (4).
(6) In this rule, rules 35 and 36, "decision" means a decision mentioned in paragraph (1).
35. - (1) An application under rule 34 to have a decision reviewed must be made to the Office of the Tribunals within 14 days of the date on which the decision was sent to the parties. The 14 day time limit may be extended by a chairman if he considers that it is just and equitable to do so.
(2) The application must be in writing and must identify the grounds of the application in accordance with rule 34(3), but if the decision to be reviewed was made at a hearing, an application may be made orally at that hearing.
(3) The application to have a decision reviewed shall be considered (without the need to hold a hearing) by the chairman of the tribunal which made the decision or, if that is not practicable, by -
(a) any chairman nominated by the President or the Vice-President; or
(b) the President or the Vice-President,
and that person shall refuse the application if he considers that there are no grounds for the decision to be reviewed under rule 34(3) or there is no reasonable prospect of the decision being varied or revoked.
(4) If an application for a review is refused after such preliminary consideration the Secretary shall inform the party making the application in writing of the chairman's decision and his reasons for it. If the application for a review is not refused the decision shall be reviewed under rule 36.
36. - (1) Where a party has applied for a review and the application has not been refused after the preliminary consideration mentioned in rule 35, the decision shall be reviewed by the chairman or tribunal who made the original decision. If that is not practicable a different chairman or tribunal (as the case may be) shall be appointed by the President or the Vice-President.
(2) Where no application has been made by a party and the decision is being reviewed on the initiative of the tribunal or chairman, the review must be carried out by the same tribunal or chairman who made the original decision and -
(a) a notice must be sent to each of the parties explaining in summary the grounds upon which it is proposed to review the decision and giving them an opportunity to give reasons why there should be no review; and
(b) such notice must be sent before the expiry of 14 days from the date on which the original decision was sent to the parties.
(3) A tribunal or chairman who reviews a decision under paragraph (1) or (2) may confirm, vary or revoke the decision. If the decision is revoked, the tribunal or chairman must order the decision to be taken again. When an order is made that the original decision be taken again, if the original decision was taken by a chairman without a hearing, the new decision may be taken without hearing the parties and if the original decision was taken at a hearing a new hearing must be held.
5. Having considered the claimant’s letter of 1 February 2010, I determined not to refuse the application for a review under Rule 35(3). Arrangements were therefore made for the listing of the application for a review.
6. On 20 April 2010, Messrs Kevin R. Winters & Co wrote to the tribunal office and advised that at a consultation with Senior Counsel on 5 January 2010 it was decided by the former employees of the respondent that they wanted to withdraw their application to the tribunal and that they specifically requested confirmation from the representatives for Visteon employees whether they represented all claimants in the case of Burke & Others v Visteon UK Ltd and it was confirmed that they represented all claimants. Since then they had received no further instructions from representatives of former employees of the respondent.
7. On 1 June 2010, the respondent’s legal representatives sent a letter by fax to the tribunal office in which they indicated that the respondent business was now in liquidation as of 1 April 2010 and that rather than attend the review hearing it had been decided to make short written representations. The letter went on to make those representations. In relation to the suggestion that Messrs Kevin R Winters & Co were acting without proper instructions from the claimant when the claims were withdrawn, it was submitted firstly that if the claimant did provide instructions it was not open to him to change his mind and secondly that if his solicitors had not acted in accordance with the claimant’s instructions, it was a matter to be dealt with between the claimant and his solicitors in which the tribunal had no role. In relation to the Article 216 issue, it was submitted that the claimant had no standing to bring a claim under Article 216 and that UNITE had disassociated itself from the claimants. Accordingly, the claim had no reasonable prospect of success and there was no prejudice to the claimant if it was not re-opened. With regard to the claim for unpaid holiday/lieu days and unpaid pay increase, it was submitted that this claim was brought outside the three month time limit and again the claimant enjoyed no reasonable prospect of success and thereby incurred no prejudice.
8. The claimant was a member of the UNITE trade union. The respondent’s premises had been occupied by employees including the claimant from March to June 2009. The claimant had no contact with UNITE after he left the plant in June 2009. In his evidence to the tribunal the claimant confirmed that the only matter that he wished to pursue was the claim for a protective award under Article 216. He was not pursuing the claim for unfair dismissal contained in the first claim. Nor did he take any issue in respect of the second claim as he had received his unpaid holiday pay from the administrator. The claimant was aware that UNITE was not supporting the proceedings and was not happy as he believed that he still had a case. The claimant was not aware that Messrs Kevin R. Winters & Co had been instructed on his behalf, had signed no retainer and had no dealings with them.
9. The employer’s duty to consult about proposed redundancies is set out at Article 216 of the 1996 Order the material portions of which are as follows:
“(1) Where an employer is proposing to dismiss as redundant 20 or more employees at one establishment within a period of 90 days or less, the employer shall consult about the dismissals all the persons who are appropriate representatives of any of the employees who may be affected by the proposed dismissals or may be affected by measures taken in connection with those dismissals;
(2) The consultation shall begin in good time and in any event—
(a) where the employer is proposing to dismiss 100 or more employees as mentioned in paragraph (1), at least 90 days, and
(b) otherwise, at least 30 days,
before the first of the dismissals takes effect.
(3) For the purposes of this Article the appropriate representatives of any affected employees are—
(a) if the employees are of a description in respect of which an independent trade union is recognised by their employer, representatives of the trade union, or
(b) in any other case, whichever of the following employee representatives the employer chooses—
(i) employee representatives appointed or elected by the affected employees otherwise than for the purposes of this Article, who (having regard to the purposes for and the method by which they were appointed or elected) have authority from those employees to receive information and to be consulted about the proposed dismissals on their behalf;
(ii) employee representatives elected by the affected employees, for the purposes of this Article, in an election satisfying the requirements of Article 216A(1).
(4) The consultation shall include consultation about ways of—
(a) avoiding the dismissals,
(b) reducing the numbers of employees to be dismissed, and
(c) mitigating the consequences of the dismissals, and shall be undertaken by the employer with a view to reaching agreement with the appropriate representatives.
(6) For the purposes of the consultation the employer shall disclose in writing to the appropriate representatives—
(a) the reasons for his proposals,
(b) the numbers and descriptions of employees whom it is proposed to dismiss as redundant,
(c) the total number of employees of any such description employed by the employer at the establishment in question,
(d) the proposed method of selecting the employees who may be dismissed,
(e) the proposed method of carrying out the dismissals, with due regard to any agreed procedure, including the period over which the dismissals are to take effect,
(f) the proposed method of calculating the amount of any redundancy payments to be made (otherwise than in compliance with an obligation imposed by or by virtue of any statutory provision) to employees who may be dismissed.
(7) That information shall be given to each of the appropriate representatives by being delivered to them, or sent by post to an address notified by them to the employer, or (in the case of representatives of a trade union) sent by post to the union at the address of its head or main office.
(8) The employer shall allow the appropriate representatives access to the affected employees and shall afford to those representatives such accommodation and other facilities as may be appropriate.
(9) If in any case there are special circumstances which render it not reasonably practicable for the employer to comply with a requirement of paragraph (2), (4) or (6), the employer shall take all such steps towards compliance with that requirement as are reasonably practicable in those circumstances.
(11) Where—
(a) the employer has invited any of the affected employees to elect employees representatives, and
(b) the invitation was issued long enough before the time when the consultation is required by paragraph (2)(a) or (b) to begin to allow them to elect representatives by that time,
the employer shall be treated as complying with the requirements of this Article in relation to those employees if he complies with those requirements as soon as is reasonably practicable after the election of the representatives.
(11A) If, after the employer has invited affected employees to elect representatives, the affected employees have failed to do so within a reasonable time, he shall give to each affected employee the information set out in paragraph (6).
(12) This Article does not confer any rights on a trade union, a representative or an employee except as provided by Articles 217 to 220.
Article 216A makes provision for the election of employee representatives.
Article 217, insofar as relevant, provides as follows:
(1) Where an employer has failed to comply with a requirement of Article 216 or Article 216A, a complaint may be presented to an industrial tribunal on that ground—
(a) in the case of a failure relating to the election of employee representatives, by any of the affected employees or by any of the employees who have been dismissed as redundant,
(b) in the case of any other failure relating to employee representatives, by any of the employee representatives to whom the failure related,
(c) in the case of failure relating to representatives of a trade union, by the trade union, and
(d) in any other case, by any of the affected employees or by any of the employees who have been dismissed as redundant.
(1A) If on a complaint under paragraph (1) a question arises as to whether or not any employee representative was an appropriate representative for the purposes of Article 216, it shall be for the employer to show that the employee representative had the authority to represent the affected employees.
(1B) On a complaint under paragraph (1)(a) it shall be for the employer to show that the requirements in Article 216A have been satisfied.
Conclusions
10. It is clear that the claimant had no standing to bring a claim under Article 216 of the 1996 Order as this lies with the appropriate representatives of the workforce. Accordingly, even if the claimant’s complaints about the handling of his claim are valid there is no proper basis for reviewing the tribunal’s decision to dismiss his claims. Turning to the grounds on which the review is sought, on the basis of the correspondence, I am satisfied that the claimant’s representative, namely Messrs Kevin R. Winters & Co, received notice of the proceedings leading to the decision. While the decision to dismiss the claims was made in the absence of the claimant, I am not satisfied that it would be appropriate to revoke the decision in view of the fact that the claimant’s solicitors were engaged to act on his behalf in relation to these proceedings. The claimant may well be dissatisfied as to how his claims were handled by his solicitors. I am not prepared however to express any view on this matter as this tribunal is not an appropriate forum to adjudicate on any of the issues that arise from the actions of his solicitors. In these circumstances, I am satisfied that the appropriate course is to refuse the application for a review and the original decision of the tribunal is confirmed.
Chairman:
Date and place of hearing: 6 August 2010, Belfast.
Date decision recorded in register and issued to parties: