THE INDUSTRIAL TRIBUNALS 

CASE REF:  96/07

CLAIMANT:			Kevin Mallon

RESPONDENT:		Bite Snack Foods Limited

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that the claimant is not entitled to present his claim of constructive dismissal to the tribunal as the provisions of Article 19(2)(3) of the Employment (Northern Ireland) Order 2003 have not been complied with regarding the requirement to send a grievance in writing to the respondent and wait 28 days before presenting a claim to the tribunal.

Constitution of Tribunal:
Chairman (Sitting Alone):	Mr S A Crothers

Appearances:
The parties did not appear and were not represented at the hearing.
1.	The claimant presented his claim to the tribunal on 3 January 2007 alleging unlawful deduction from wages and constructive dismissal.

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

 3.	Cooper Wilkinson solicitors submitted written representations to the tribunal on 18 July 2007 on behalf of the claimant and Fahy Corrigan solicitors submitted written representation by correspondence dated 23 July 2007.  Both parties requested the tribunal to decide the issue before it based on the written representations (although referred to as submissions in the correspondence).  The tribunal therefore proceeded to consider the written representations in accordance with Rule 14(5) and (6) and Rule 18(2)(b) of the Industrial Tribunal Rules of Procedure comprised in Schedule 1 to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005.

 4.	Having carefully analysed the documentary evidence insofar as same is relevant to the issue before it, the tribunal made the following findings of fact:-

(i)	The correspondence being relied on by the claimant as constituting a grievance under the standard procedure in relation to constructive dismissal is dated 4 December 2006.  It is directed to Mr Michael Keogh at the respondent’s address and states as follows:-

		“Dear Sirs

		RE: OUR CLIENT: KEVIN MALLON
		UNLAWFUL DEDUCTION FROM WAGES

	We act on behalf of our above-named client who was in your employment from August 2004 until 12 October 2006.
			
	We are instructed that from in or about February 2006 until the termination of our client’s employment in October 2006 our client received an unlawful deduction in his wages in that he was working approximately 53 hours per week however only received payment for 39 hours per week.  We would estimate the total shortfall to be in the region of £3,100 for this period.

	In the event that we do not receive settlement proposals by Friday 15 December 2006 we are instructed to issue proceedings in this matter without further notification.

	We look forward to hearing from you by return.

	Yours faithfully

	___________________
	COOPER WILKINSON”

		(ii)	The respondent’s conceded that a paper grievance has been raised in relation to the claim for unlawful deductions from wages.

 5.	In their written representations on behalf of the claimant dated 18 July 2007, Cooper Wilkinson solicitors state, inter alia “In response to the submission made by the respondent that the letter of grievance relates solely to the issue of unlawful deduction of wages and not to constructive dismissal, the claimant would respectfully submit that the basis of the constructive dismissal is by reason of the respondent’s failure to properly remunerate the claimant for his work and is therefore directly linked to the issue of unlawful deduction from wages”.  The written representations from Fahy Corrigan on behalf of the Respondent dated 23 July 2007 state, inter alia, “The submission on behalf of the Respondent would be that the Tribunal has no jurisdiction to hear the Claimant’s case for Constructive Dismissal as he has not complied with the Statutory Grievance procedure as he has not specifically raised the Constructive Dismissal grievance which he must do in accordance with the legislation and would refer the Tribunal to the Decision of Canary Wharf Management Ltd v Edebi/0708/05/DA a copy of which is enclosed”.

 6.	The law in this matter is succinctly summarised by Harvey on Industrial Relations and Employment Law at T309 et Seq. Paragraph 309.1 (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 (v) 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 issues before it together with the relevant law and the submissions by way of written representations 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 4 December 2006, in light of the authorities referred to, does not constitute a proper written grievance in relation to the claimant’s allegation of constructive dismissal.

(iii)	The claimant is therefore not entitled to present his claim of constructive dismissal to the tribunal and this claim is accordingly dismissed.

(iv)	The Tribunal agrees with Mr Justice Elias in the case of Canary Wharf Management Limited -v- EDEBI, (Supra) when he states at paragraph 41:-

“These regulations can operate in a harsh way and it gives me no pleasure to say that I find that the tribunal lacks jurisdiction to deal with the matter in this case.  But as I have said, we must bear in mind that the employers also suffer an adverse consequence if one does not read the letter fairly and assess whether in all the circumstances it can properly and reasonably be said to have raised a complaint which has subsequently been put before the employment tribunal”.

Chairman:

Date and place of hearing:	25 July 2007, Belfast.

Date decision recorded in register and issued to parties: