THE INDUSTRIAL TRIBUNALS

CASE REFS:  655/06;
1120/06

CLAIMANT:			Stephen Carabine

RESPONDENT:		Royal Mail

DECISION ON A PRE-HEARING REVIEW

1.	Was the claimant involved in industrial action during the period 31 January 2006 to 18 February 2006?  It is the decision of the tribunal that the claimant was involved in industrial action from 6 February 2006 to 18 February 2006.

 2.	If so, was the deduction from wages made on account of the claimant’s involvement in industrial action?  It is the decision of the tribunal that the deduction from wages was made on account of the claimant’s involvement in industrial action in accordance with Article 46(5) of the Employment Rights (Northern Ireland) Order 1996.

Constitution of Tribunal:

Chairman:		Ms Crooke

Appearances:

The claimant did not appear and did not instruct any representation.  However he submitted six pages of representations and incorporated these in a bundle of supporting documentation. 

The respondent was represented by Mr D Dunlop, Barrister-at-Law, instructed by Napier & Sons, Solicitors.

THE ISSUES FOR CONSIDERATION BY THE TRIBUNAL

 1.	“Was the claimant involved in industrial action during the period 31 January 2006 to 18 January 2006”?

 2.	“If so, was the deduction from wages made on account of the claimant’s involvement in industrial action”?

THE RELEVANT LAW

 3.	The relevant law is found in Article 46(5) of the Employment Rights (Northern Ireland) Order 1996 which states as follows:-

	(5)	Article 45 does not apply to a deduction from a worker’s wages made by his employer where the worker has taken part in a strike or other industrial action and his deduction is made by the employer on account of the workers having taken part in that strike or other action.

SOURCES OF EVIDENCE

 4.	The tribunal heard oral evidence from Mr Adrian Buckley of Royal Mail who is Regional Services Manager (Advice and Support) of the respondent.

 5.	The claimant did not appear but submitted a booklet as written representations which were considered in the disposal of his case in accordance with the Industrial Tribunals (Constitution Rules of Procedure) Regulations (Northern Ireland) 2005.

ANALYSIS OF EVIDENCE

 6.	In reaching its decision the tribunal preferred the evidence given by Mr Buckley orally to the tribunal to the booklet of documentation provided by the claimant.  Mr Buckley was able to provide clarification for the tribunal on a number of issues, and the tribunal found some inconsistencies, for which obviously no explanation was forthcoming, in the booklet provided by the claimant.

FACTS FOUND

 7.	Unofficial industrial action started amongst the employees of Royal Mail in or around 31 January 2006 and continued to in or around 18 February 2006.

 8.	Mr Adrian Buckley was asked to be present in Belfast during this period and was present.

 9.	The claimant was on leave and returned to work on 6 February 2006.

10.	Mr Buckley called him on 9 February 2006.  Mr Buckley identified himself to the claimant and the claimant confirmed his identity to Mr Buckley.  Mr Buckley asked the claimant to confirm whether or not he was taking part in the unofficial industrial action.  The claimant did not answer and the phone went dead.  Mr Buckley immediately phoned back but the claimant did not answer and the telephone went to voicemail, upon which Mr Buckley left a message to the same effect.

11.	Mr Buckley was present on the picket lines during this dispute.  He saw the claimant many times.

12.	Mr Buckley considered that the claimant was present as a picket on the picket lines and not in a welfare capacity.  Mr Buckley saw the claimant involved in a trade union council march in company with Communication Workers’ Union representatives who were making rousing anti Royal Mail speeches.  

13.	Mr Buckley also saw the claimant in Customs House Square and he considered that he was there to give briefings to the union, to deliver updates on the strike action.  Mr Buckley approached Mr Carabine and noticed that he fell silent on any occasion that he approached him.  Mr Buckley was provided with information from people in the crowd who indicated to him that the claimant was delivering union “rubbish”. 

14.	There was no attempt by the claimant to return Mr Buckley’s call.

15.	When Mr Buckley approached some people he knew at the trade union’s council march he saw Mr Carabine a distance of six feet away from him.  When he walked towards him he vanished into the crowd.

CONCLUSIONS

16.	If the claimant was innocently going about his union welfare duties as he contended, the tribunal on the balance of probabilities considers it more likely than not that he would have taken the opportunity to speak to Mr Buckley.  An important question had been asked of him – whether he was involved in the unofficial industrial action, and as an experienced trade union member, the tribunal has no doubt, that Mr Buckley would have been aware that the answer to this would have financial consequences for him.  The tribunal concludes that the claimant was trying strenuously to avoid speaking to Mr Buckley, as he did not wish to confirm his position.  Had his actions been solely dictated by carrying out his duties as Branch Secretary, on the balance of probabilities it is more likely than not that the claimant would have had no reason to avoid speaking to Mr Buckley.  If he was really carrying out welfare duties, would the claimant not have had occasion to enter into Royal Mail premises?  There was an inconsistency in the case of Mr Carabine whereby on the one hand he claimed never to have attended in the Tomb Street premises of Royal Mail, yet elsewhere in the same document attended that he was there to carry out welfare work.  The tribunal does not consider it likely that welfare work which must involve discussion of personal circumstances, would have been conducted in the street outside Royal Mail premises in Tomb Street.

17.	The tribunal concludes therefore that the claimant was involved in industrial action from 6 February to 18 February 2006 and accepts the contentions of the respondent that this was why a deduction was made from his wages.

COSTS

18.	The tribunal has noted that Mr Buckley has had to incur the following expenses in attending this hearing and these are as follows:-

(a)	Air ticket with Fly Be costing £295 return.
(b)	£20 in taxi fares.
(c)	£14 parking at Edinburgh airport.

19.	The tribunal was unable to make an award for costs against the claimant as it is necessary for the claimant to be given notice of the intention to make an award of costs.  The tribunal therefore orders that a separate costs hearing be convened to deal with the respondent’s application for costs in relation to the hearing of 31 August 2007.

Chairman:

Date and place of hearing:	31 August 2007, Belfast.

Date decision recorded in register and issued to parties: