THE INDUSTRIAL TRIBUNALS

CASE REF:	2522/06	
	
CLAIMANT:			Aaron Russell			

RESPONDENT:		Cia Excel			

DECISION ON AN APPLICATION FOR A REVIEW  

The application for a review of the Tribunal’s decision, that that part of the claimant’s claim relating to his claim of breach of contract should not be accepted, is refused; and the said decision of the Tribunal is confirmed.  

Constitution of Tribunal:

Chairman (sitting alone):		Mr N Drennan QC

Appearances:

The claimant was represented by Ms M Magill, Barrister-at-Law, instructed by Keenan Solicitors.

REASONS
		
1.	The claimant presented a claim to the Tribunal on 24 October 2006 in which he made a claim of unfair dismissal relating to the termination of his contract of employment on the grounds of redundancy; together with a claim of breach of contract, which related to loss of earnings and/or loss of sick pay during the period of his employment.  By letter dated 30 November 2006, the claimant was informed that the claim of unfair dismissal had been accepted;  but that the said claim of breach of contract was not accepted, as the said claim was one to which the statutory grievance procedure applied and that such a claim could not be presented to an industrial tribunal, unless the claimant had first sent a written statement of the grievance to the respondent at least 28 days before presenting the claim.

2.	In paragraph 5.5 of the claim form, the claimant stated that he had not put his complaint in writing to the respondent.  At paragraph 5.7, the claimant set out reasons why he had not done so.  Ms Magill did not dispute that, the reasons for not doing so at paragraph 5.7 of the claim form for not doing so did not come within the exceptions outlined in the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004;  and further acknowledged that the reasons set out in paragraph 5.7 related to the claimant’s claim of unfair dismissal and not his claim of breach of contract. 	 

3.	By letter dated 4 December 2006, the claimant’s representative wrote to the Tribunal in which she stated that the statutory grievance procedure had been entered into prior to submission of the claim form;  and that, as set out in the correspondence enclosed with the said letter, it had not reached a satisfying conclusion and a claim form had therefore been lodged.  The claimant’s representative submitted that the claim should therefore be accepted in full.  The letter was accepted by the Tribunal as an application for a review on the grounds that the interests of justice required such a review and/or the decision was wrongly made as a result of an administrative error.

4.	The said letter dated 4 December 2006 enclosed, in particular, a letter sent to the respondent, on the claimant’s behalf by the claimant’s representative, and dated 20 September 2006.  Ms Magill acknowledged that no reference had been made to the said letter in the claimant’s said claim form, and, in particular, in paragraphs 5.5/5.7.  She said this was as an administrative error by the claimant.  She submitted that the said letter was the claimant’s compliance with his requirements to submit a grievance in writing to the respondent in relation to his claim of breach of contract;  and further, by presenting his claim to the Tribunal on 24 October 2006, he had thereby waited the said 28 day period from the date when he had submitted his said grievance in writing to the respondent.  In the circumstances, Ms Magill submitted that the Tribunal’s decision not to accept the claimant’s claim of breach of contract should be reviewed on the grounds that the interests of justice required such a review and/or the decision was wrongly made as a result of an administrative error and that the claimant’s claim of breach of contract should be accepted, together with his claim of unfair dismissal.  An administrative error can include an administrative error by a party (see Sodexho Ltd -v- Gibbons [2005] IRLR 836.

5.	The letter, dated 20 September 2006, stated inter alia:-

	“….

	We have been instructed that our client was informed that due to the lack of work his contract of employment will be terminated and as result he was offered redundancy which he accepted.  However it has since emerged that our client’s position has been filled within a short space of time.  

	We are putting you on notice that we are lodging a complaint under the statutory grievance procedure and we look forward to receiving your response as a matter of urgency”.

	By letter dated 21 September 2006, the Managing Director of the respondent acknowledged receipt of the letter and noted that the claimant’s representative, on behalf of the claimant, had lodged a complaint under the statutory grievance procedure.  He then proposed that the claim should be dealt with under the modified procedure, which the claimant’s representative agreed to by letter dated 27 September 2006.  By letter dated 9 October 2006, the Managing Director of the respondent informed the claimant’s representative of the circumstances in which the claimant had been dismissed on the grounds of his redundancy.  Ms Magill fairly acknowledged that the letter dated 9 October 2006, dealt only with the issue of the claimant’s redundancy and thereby his claim of unfair dismissal; but did not refer to the matters the subject matter of his said claim of breach of contract.  

6.	Ms Magill accepted that the statutory grievance procedures, which were contained in the Employment (Northern Ireland) 2003 and the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004, applied to the claimant’s said claim of breach of contract.  Pursuant to the said statutory provisions, the claimant was not able to present a complaint to the tribunal unless:-

(1)	He had set out his grievance in writing and, as the modified procedure applied, he had also set out the basis for the grievance and sent a copy of it to his employer;  and

(2) 	he had waited 28 days prior to presenting his claim to the Tribunal.

If the said letter, dated 20 September 2006, was a written grievance and also set out the basis for the grievance, then the claimant would have waited the said 28 day period before presenting his claim to the Tribunal.  	

7.1	I accepted, not without some hesitation, that the letter dated 20 September 2006 was not merely notice that a grievance was to be made.  In particular, in this context, I noted that the respondent accepted that the claimant’s representative had, by the said letter, lodged a complaint under the statutory grievance procedure.  No other document, other than this letter was produced by Ms Magill as compliance with the said procedure.

However, whilst I was satisfied that the said letter could constitute a written grievance relating to the claimant’s claim of unfair dismissal, which is not in fact required for such a claim, I was not satisfied that the letter could constitute a written grievance relating to the claimant’s said claim of breach of contract for the purposes of the statutory grievance procedure.  Such a written grievance was required if the standard grievance procedure applied to the claimant’s claim (see further paragraph 7.2)  In so holding, I took account of the decision of the Employment Appeal Tribunal in the case of Canary Wharf Management Ltd -v- Edebi [2006] IRLR 416 and, in particular, the judgment of Elias P, when he stated:-

	“The aim is to promote the use of appropriate procedures.  It would be quite wrong to require the grievance to be made in any unduly legalistic or technical manner…

	It seems to me that the objective of the statute can be fairly met if the employers, on a fair reading of the statement and having regard to the particular context in which it is made, can be expected to appreciate that the relevant complaint has been raised.  

	If the statement cannot in context fairly be read even in a non-technical and unsophisticated way as raising the grievance which is the subject matter of the tribunal claimed, then the tribunal cannot hear the claim.  There is no over-riding interest of justice which can be invoked to save it”.

	Although Ms Magill had sought to persuade me that the wording of the letter dated 20 September 2006 was broad enough to cover, not only the claimant’s claim of unfair dismissal on the grounds of redundancy, but also his said claim of breach of contract;  she frankly acknowledged the difficulty of her task in light of the said judgment in the Canary Wharf Management Ltd case.

7.2	As the modified procedure applied in this case, and not the standard grievance procedure, it was necessary for the claimant to also set out the basis for her said grievance.  This additional requirement under the modified procedure, in my opinion, required something more to be done by the claimant.

	As Elias P in the Canary Wharf Management case stated:-

	“The contrast between the standard and the modified procedure highlights an important feature of the way in which the complaint must be made under the former.  As we have noted, there is no obligation to set out the basis of the claim.  The need to substitute that with some evidence to justify it arises under the standard procedure at the second stage where the employer has to inform the employer what is the basis of the grievance”.

	In my opinion it is necessary for an employee under the modified procedure to not only identify the complaint but also set out in some detail the reasons for his complaint.  Undoubtedly the amount of detail that will be required will vary from case to case and the nature of the grievance.  However, consistent with the approach of Elias P in Canary Wharf Management, it must be sufficient to enable the employer to respond.

	Therefore, even if I am wrong that the letter, dated 20 September 2006, could be shown to have been a written grievance, I am also not satisfied that it has set out in any way, as required, the basis for the said breach of contract.

7.3	Thus, in my opinion, I was not satisfied the claimant could satisfy the requirements of the statutory grievance procedure, which applied in this case.  In such circumstances, he could not therefore show he was entitled to present to the Tribunal his said claim of breach of contract.

8.	In considering the claimant’s application for review on the grounds that the Tribunal’s decision was wrongly made as a result of an administrative error and/or the interests of justice require such a review, pursuant to Rules 34-36 of the Industrial Tribunal’s Rules of Procedure 2005, I have a discretion whether to grant such a review.  In exercising that discretion I require to take account of the terms of the over-riding objective set out in Regulation 3 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005.  This requires the Tribunal to deal with cases justly which includes saving expense, dealing with the case in ways which are proportionate to the complexity or importance of the case and ensuring it is dealt with expeditiously and fairly (see further Williams -v- Ferrosan [2004] IRLR 607 and Sodexho Ltd -v- Gibbons [2005] IRLR 836).

	Having regard to the foregoing, if I had been satisfied that the letter, dated 20 September 2006, could have been shown to have been a written grievance, relating to the claim of breach of contract, and which set out the basis of the said claim, I would have been prepared, in the exercise of my discretion, to grant the claimant’s application to review the said decision not to accept the said claim of breach of contract; to have revoked the said decision and also ordered the said claim to be accepted.  I would have done so, on the grounds that the interests of justice required such a review and/or on the grounds that an administrative error had been made, in circumstances where the said letter, dated 20 September 2006, had not been relied upon in the said claim form.  If I had done so, it would then have been for a tribunal, if required to do so at a later date, to make a determination whether in fact the said letter satisfied the said requirements of the modified grievance procedure.

	However, since I was not satisfied that the letter could satisfy the requirements of the modified grievance procedure, I came to the conclusion, in the exercise of my discretion and having regard to the terms of the over-riding objective, that in such circumstances the said decision should not be reviewed. The claimant’s application for review is therefore refused;  and the decision of the Tribunal is therefore confirmed.

	

Chairman:

Date and place of hearing:	3 January 2007, Belfast.	

Date decision recorded in register and issued to parties: