THE INDUSTRIAL TRIBUNALS

CASE REF:	325/07
	
CLAIMANT:			Isaac Cosby			

RESPONDENT:		Blackbourne Electrical Co. Limited				

DECISION ON A PRE-HEARING REVIEW 

The decision of the tribunal is that the claimant is entitled to present his claim to the Tribunal as the provisions of Article 19(2) and (3) of the Employment (Northern Ireland) Order 2003, have been complied with regarding the requirement to send a grievance in writing to the respondent and to wait 28 days before presenting the claim to the Tribunal.  

Constitution of Tribunal:

Chairman:		Mr S A Crothers (Chairman sitting alone) 

	

Appearances:

The claimant was represented by Mr McLatchie from the Belfast Unemployed Resource Centre.

The respondent was represented by Mr D Daly, Human Resources Manager for the respondent.	

1.	The claimant presented his claim to the Tribunal alleging unauthorised deductions from wages on 5 March 2007.  According to his claim, he forwarded a grievance in writing to the respondent on 22 January 2007.  The respondent contended that the claimant’s correspondence of 22 January 2007 did not constitute a grievance under Stage 1 of the Standard Grievance Procedure.

2.	The issue before the Tribunal was whether the claimant was entitled to present a claim to the Tribunal in view of the provisions of Article 19(2) and (3) of the Employment (Northern Ireland) Order 2003 (“the Order”) regarding the requirement to send the grievance in writing to the respondent and to wait 28 days before presenting the claim to the Tribunal.

3.	The Tribunal was assisted by a bundle of documents presented to it by the respondent and by oral evidence given by Mr Daly for the respondent. 

4.	Having carefully analysed the evidence (both oral and documentary) insofar as same is relevant to the issues before it, the Tribunal made the following findings of fact:-

(1)	The claimant’s correspondence of 22 January 2007 directed to the respondent and which it is headed, “RE Wage Reduction”, states as follows:-

“I would like to request that no further deductions be taken from my wages, as I have not agreed or signed any documents agreeing for you to do so.  I believe this to be an unlawful deduction and would like to seek further advice on this matter”.

(2)	The reply by Mr Daly on behalf of the respondent dated 24 January 2007 is headed, “Overpayments”.  The main body of that letter reads as follows:-

“We are in receipt of your letter dated 22 January 2007 requesting that no further deductions be taken from my wages.  

We will continue to deduct £20 per week until the amount you owe the Company is discharged.  The law says that the overpayment of wages and/or expenses incurred by a worker carrying out their employment, including, as a result of a computational error, can be recovered.  So in these cases, there’s no problem making a deduction from pay.

I can assure you that we have the right to do this.  

If however you should wish to pay this back by some other method for example a one of payment please do not hesitate to contact us”.

Mr Daly contended in his evidence that when he received the claimant’s correspondence of 21 January 2007 he believed it was an instruction for him to carry out an act, ie., not to take any more money from the claimant’s wages.  He contended that the letter was written in such a way that the claimant no longer wished to use the grievance procedure and he relied on the claimant’s reference to seeking further advice to substantiate his contention. 

5.	The Tribunal heard brief submissions from Mr McLatchie who relied on the cases of Mark Warner Ltd -v- Aspland EAT [2006] IRLR 87, Martin -v- Class Security Installations Ltd EAT/0188/-06 and Shergold -v- Fieldway Medical Centre [2006] IRLR 76, to contend that Stage 1 of the Statutory Grievance Procedure had been met by the claimant and his grievance was mirrored by the Tribunal application.

6.	The law in this matter is succinctly summarized by Harvey on Industrial Relations & Employment Law at T309 et seq.  Paragraph 309.01 (iv) states:-

“As to the content of the statement, the requirement imposed by paragraph 6 is “minimal” and does not require formality or technicality (Shergold per Burton J, at para 30; Canary Wharf at para 23).  It is enough that the employee identifies the complaint.  There is no need for him to set out the basis of the claim (unlike the position in para 9 under the modified procedure).  All that is required is that the complaint to the employer is essentially the same complaint that is subsequently made to the tribunal.  The determination of this question is not, however, to be approached in a technical way.  It is not necessary for the grievance statement to specify every instance that may subsequently be raised before the tribunal.  It is not even necessary for the employee to indicate that he wants or expects the complaint to be dealt with; nor is he required to invoke a grievance procedure, statutory or contractual (Canary Wharf at para 22; Shergold at para 33)”.

Harvey then goes on to state at (iv) that -

“In determining whether a grievance has been made, Elias J postulated the appropriate test as being whether “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 is being raised” (Canary Wharf at para 25).  As to the consequences of the employee not surmounting this hurdle, Elias J stated:  “If the statement cannot in context be read even in a non-technical and unsophisticated way as raising the grievance which is the subject matter of the tribunal complaint, then the tribunal cannot hear the claim.  There is no overriding interest of justice which can be invoked to save it (Ibid at para 31)”. 

7.	The Tribunal, having considered the findings of fact in relation to the issue before it together with the relevant law and any submissions made concludes as follows:-

(i)	This is a case in which the relevant procedure is the standard grievance procedure referred to in Schedule 1 to the Order.

(ii)  	The correspondence of 21 January 2007, in light of the authorities referred to, does constitute a proper written grievance in relation to the allegation of unlawful deductions from wages and therefore the claimant is entitled to present such a claim to the Tribunal.  	

Chairman:

Date and place of hearing:	18 May 2007, Belfast.		

Date decision recorded in register and issued to parties: