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Industrial Tribunals Northern Ireland Decisions |
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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McGlade v Lorimer (Manager) [2007] NIIT 1013_06 (25 January 2007) URL: http://www.bailii.org/nie/cases/NIIT/2007/1013_06.html Cite as: [2007] NIIT 1013_06, [2007] NIIT 1013_6 |
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1013/06
CLAIMANT: Michelle Anne McGlade
RESPONDENTS: 1. John Lorimer (Manager)
2. Belfast Tile Company Ltd
DECISION ON A PRE-HEARING REVIEW
The decision of the tribunal is that the claimant has raised a grievance in writing to the respondent and has waited 28 days before presenting her claim to the tribunal. The tribunal therefore has jurisdiction to hear and determine her claim.
Constitution of Tribunal:
Vice President (sitting alone): Mrs Price
Appearances:
The claimant was represented by Mr J Geurin, Solicitor, of Campbell Fitzpatrick, Solicitors.
The respondents were represented by Mr C Fox, of the respondent company.
Reasons
The claimant presented a claim to the tribunal on 8 August 2006 in which she complained of:-
(i) unfair dismissal; and
(ii) sex discrimination.
On 18 September 2006 the respondents entered a response and contended that the tribunal had no jurisdiction to hear the claims because the claimant left employment on 23 May 2006 and did not contact the company until 31 May 2006. They did not accept the letter as a grievance.
The claim made by the claimant relates to unlawful sex discrimination and not a separate claim of unfair dismissal because she did not work for the respondents for a continuous period of one year. It is accepted that the claimant sent a letter to the respondents on 31 May 2006 approximately eight days after she left the company. She said in that letter:-
“I wish to state that I am unhappy at work and I wish to invoke the company's formal grievance procedure.”
This was followed with a letter from her solicitors which referred to her letter and the claimant's attempt to invoke the company's grievance procedure. That letter set out the grounds of her complaint of unlawful sex discrimination and stated that the claimant wished to invoke the modified statutory grievance procedure.
The respondent company and its manager, John Lorimer, accepted the company did not have a grievance procedure and in fact did not know about Dispute Resolution Regulations or Statutory Grievances. Their response said that the claimant had never raised any concerns while she was at work and it appeared to the tribunal that they did not understand the significance of either of the claimant's letter because they did not have a statutory grievance procedure in existence.
The legislation which applies to this case is the Employment (Northern Ireland) Order 2003, Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 and the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005. Article 19(1) of the 2003 Order and Regulation 6 of the 2004 Regulations set out the relevant statutory provisions. Regulation 6(1) to 6(3) of the 2004 Regulations requires one of two statutory grievance procedures to be followed for all jurisdictions listed in Schedules 2 and 3 of the 2003 Order unless one of the statutory exceptions set out at Regulation 6(4) to (7) exists. There are two statutory grievance procedures outlined:-
(i) the standard procedure; and
(ii) the modified procedure.
The solicitor for the claimant had said in his letter that he wished the modified grievance procedure to be invoked. The circumstances are set out in Regulations 6(3) for that procedure, namely:-
(a) the employee has ceased to be employed by the employer;
the employer –
was unaware of the grievance before the employment ceased; or
was so aware but the standard grievance procedure was not commenced or was not completed before the last day of the employee's employment; and
(c) the parties have agreed in writing in relation to the grievance whether before, on or after that day, but after the employer became aware of the grievance that the modified procedure should apply.
7. Following the reasons in the case of Catherine Carson v Brooklands Nursing Home Limited [Case Reference No: 97/06] I am satisfied that unless all three conditions set out at Regulation 6(3)(a) (b) and (c) have been met the standard grievance procedure applies. In this instance, 6(3)(c) has not been met and so therefore the standard grievance procedure would apply. This is set out in Paragraphs 6 and 7 of Schedule 1 to the 2003 Order.
8. I am also satisfied from having seen the correspondence sent by the claimant and her solicitor that the letter of 12 June 2006 amounts to a written grievance (the case of Canary Wharf Management v Edebi [2006] IRLR 416). The claimant then presented a grievance to the tribunal having waited for 28 days and without a response from the respondent company. I am therefore satisfied that she had met the relevant requirements of the Step 1 of the Standard Grievance Procedure and she is therefore entitled to progress her claim to a full hearing.
Vice President:
Date and place of hearing: 24 January 2007, Belfast
Date decision recorded in register and issued to parties:
