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Industrial Tribunals Northern Ireland Decisions |
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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Austin & Ors v Royal Mail [2003] NIIT 1140_02 (4 September 2003) URL: http://www.bailii.org/nie/cases/NIIT/2003/1140_02.html Cite as: [2003] NIIT 1140_02, [2003] NIIT 1140_2 |
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CASE REF: 1140/02-1152/02
APPLICANT: Austin & Others
[See attached List]
RESPONDENT: Royal Mail
The unanimous decision of the tribunal is that the tribunal dismisses all 13 applications, 4 of which had been withdrawn.
Appearances:
The applicants were represented by Mr B Mulqueen, Barrister-at-Law, instructed by Clyde & Co.
The respondents were represented by Mr F O'Reilly, Barrister-at-Law, instructed by Napier & Sons Ltd.
(a) All the applicants were postal workers though they did different jobs in different locations.
(b) On Saturday 12 January 2002, Daniel McColgan, a Catholic postal worker, was murdered as he arrived at Newtownabbey delivery office, his place of work. Later the same day the Red Hand Defenders claimed responsibility for the murder and issued a statement that all Catholic postal workers were legitimate targets.
(c) The respondent suspended collections on Sunday 13 January 2002 and deliveries on Monday 14 January 2002.
(d) Daniel McColgan's funeral took place on Tuesday 15 January 2002. The respondent decided that all its employees should return to work by 2.30 pm on 15 January 2002. It further decided that any employees who did not return could treat further absence as unpaid leave or holidays.
(e) A significant number of postal workers did not return to work by 2.30 pm on 15 January 2002. The respondent implemented its decision about recompense but the employee had the right to choose how the period of absence should be treated.
(f) Nine of the applicants suffered loss of pay or leave. The remaining 4 applicants, John Philip Brash, Brian Kelly, Patricia Manning and Jonathan McGonnell withdrew their applications.
(g) A loss of pay or holiday leave is clearly a detriment for the purposes of Article 58 of The Employment Rights (Northern Ireland) Order 1996.
By the same Article the detriment must arise from an act or deliberate failure to act. A number of steps taken by the respondent are capable of constituting an act for the purpose of Article 68 viz; it decided to deduct wages or holiday leave from employees; or it decided to deduct wages or holiday leave after 2.30 pm on 15 January 2002; or it required employees to attend work after 2.30 pm on 15 January 2002.
(h) Circumstances of danger existed for the purposes of Article 68(d) and (e) of The Employment Rights (Northern Ireland) Order 1996, by reason of the murder of Daniel McColgan and the threat to Catholic postal workers.
(i) That it does not accept that 8 of the remaining 9 applicants reasonably believed that the circumstances of danger were serious and imminent. Their behaviour and actions, as set out below, were inconsistent with such a belief.
Those applicants are Stephen Carabine, Sandra Mills, Charlie Kelly, Cathal McKarron, Kevin Houston, Gerry Rankin, Colin Agnew and Neil Austin.
Stephen Carabine, a Catholic postal worker on deliveries:
(i) He came into work at Toome Street, on 15, 16 and 17 January 2002 though he did not work.
(ii) On those 3 occasions he wore his uniform to and from work.
(iii) He lived in a Catholic area and his route to and from work was largely through a Catholic area.
(iv) He worked exclusively in a Catholic area near where he lived and felt that no other Catholic postal worker worked in a safer area.
Sandra Mills, a Protestant postal worker working in Mallusk:
(i) The Red Hand Defenders had not made any specific threat against Protestant postal workers.
(ii) She lived in a Protestant area.
(iii) Her work at Mallusk was indoors.
(iv) She attended work on 15 January 2002.
(v) She left work on 15 January 2002 when the whole workforce walked out.
(vi) She is Scottish and was afraid, which the tribunal accepts, but her fear was in the tribunal's view not justified in the circumstances.
Charles Kelly, a Catholic postal worker at Great James Street Derry working at sorting and deliveries:
(i) He reported to work as usual on 14 January 2002 at 5.15 am.
(ii) A meeting of postal workers on 14 January 2002 concluded that the workers would not return to work until after the funeral of Daniel McColgan. On foot of that decision he left work.
(iii) On 14 January 2002 the postal workers, including Charles Kelly, assembled at 8.00 am outside Great James Street sorting office. On 16 January 2002 they assembled there from 8.00 am to 5.00 pm apart from the walk which finished at 9.00 am.
(iv) Charles Kelly and many other postal workers went on a peaceful protest walk of some 2 ½ - 3 miles from Great James Street to the Guildhall and back on 14 and 16 January 2002.
Cathal McKarron, a Catholic postal worker in Derry working at sorting and deliveries:
(i) On 13 January 2002 he went to work as normal and did his duties until 5.00 am. Thereafter he attended a meeting of postal workers at work and left at 8.00 am.
(ii) On 16 January 2002 he was outside the Great James Street sorting office until 11.00 am. He missed the walk to the Guildhall but awaited its return there.
Kevin Houston, a Catholic postal worker in Derry on deliveries:
(i) He went into work as normal between 5.00 am and 5.30 am on 14 January 2002.
(ii) He attended the walks to the Guildhall and back on 14 and 16 January 2002.
(iii) He assembled outside Great James Street office on 16 January from 7.00 – 8.00am.
Gerard Rankin, a Catholic postal worker in Derry on deliveries:
(i) He attended work on 14 January 2002 at 5.30 am.
(ii) He attended the walk to the Guildhall and back on 14 January 2002.
(iii) He assembled outside the Great James Street office on 16 January 2002.
Colin George Agnew, a Protestant postal driver in Larne on deliveries:
(i) The Red Hand Defenders had not made any specific threat against Protestant postal workers.
(ii) He lived in a Protestant estate.
(iii) He came into work as usual on 14 and 15 January 2002 at 6.00 am.
Neil Austin, a Catholic postal worker in Mallusk on night duty:
(i) He lives a half mile from Mallusk and drives to and from work.
(ii) He could drive into a private car park protected by a fence and covered by CCTV.
(iii) He worked in a protected environment.
(iv) He attended meetings in Transport House and Toome Street on 15 and 16 January 2002.
Accordingly their claims are dismissed.
(j) That the applicant Dan Reddin, a Catholic driver, reasonably believed that the circumstances of danger were serious and imminent and he refused to drive to Belfast on the night of 13/14 January 2002. However, he could reasonably have averted those circumstances of danger, which he did, by not driving initially to Belfast and then avoiding going to Antrim, which he regarded as a dangerous area. He does not therefore satisfy the requirements of Article 68(d).
Nor can be benefit from Article 68(e) as he did not suffer a detriment for the appropriate steps, set out above, that he took. Accordingly his claim is dismissed.
(k) The applicants also claimed a breach of contract by the respondent. The breach of contract was that the respondent had breached the implied term and condition that employees should not be subjected to an unreasonable threat to their health and safety within the working environment and by requiring the employees to attend at such a working environment.
In the light of the tribunal's findings above it is not persuaded that the respondent breached the applicants' contracts of employment.
(l) The tribunal orders the respondent to pay to the applicant £383.00 costs in relation to the second attendance of John Keggie. The tribunal is of the opinion that the respondent acted unreasonably in its conduct of the proceedings by causing the recall of Mr Keggie to give evidence. The matters the respondent sought to put to Mr Keggie could have been put earlier. Significantly the respondent did not resist this application for costs.
The tribunal refuses costs to the respondent in relation to the 4 withdrawn applications. The respondent did not finalise discovery of the losses of applicants until the evidence had begun.
Chairman:
Date and place of hearing: 6, 7, 8, 12, 13, 14, 15 and 16 May, 1, 2, and 4 September 2003,
Belfast.
Date decision recorded in register and issued to parties: 27 November 2003.
Decision issued in extended format:
