THE INDUSTRIAL TRIBUNALS 

CASE REF:	715/06

CLAIMANT:	Gerard Duffy

RESPONDENT:	Robert Brown

DECISION

The decision of the tribunal is that the claimant is not entitled to bring a claim to the Industrial Tribunals as he did not comply with the provisions of Article19(2) and (3) of the Employment (Northern Ireland) Order 2003 (“the 2003 Order”), regarding the requirement to present a grievance in writing to the employer and waiting 28 days before presenting a claim to the tribunal.

The tribunal holds that there was a relevant transfer within the meaning of the Transfer of Undertakings (Protection of Employment) Regulations 1981 (“the TUPE regulations”).

Constitution of Tribunal

Chairman:		Mr Cross (sitting alone)

Appearances:

Mr McCormack of UNISON appeared for the claimant who did not appear at the tribunal. 

The respondent appeared at the tribunal and represented himself.

Decision of the Tribunal

1.	The Issues before this tribunal was first whether the claimant had raised a grievance with the respondent, his employer before instituting tribunal proceedings.

2.	The tribunal heard evidence from the respondent and submissions on behalf of the claimant.

Findings of fact

3.	The respondent took over the business of the Oak Bar, Grosvenor Road, Belfast from a Mr Harrison in March 2005.  The respondent informed the tribunal that the arrangement included the taking over of all the staff of the bar previously employed by Mr Harrison, including the claimant.

4.	The claimant gave to the respondent one month’s notice of resignation on 4 January to expire on 3 February 2006.

5.	The claimant’s representative stated that the claimant gave the respondent a letter of grievance dated 14 December 2005 and a copy was shown to the tribunal and to the respondent.  The respondent stated in evidence that he had never received the letter and that this was his first sight of it.  The tribunal accepts the evidence of the respondent on this matter and finds that no grievance letter was sent to the respondent before the claimant commenced the tribunal proceedings.

6.	The claimant left the respondent’s employment after working his notice, which included some overtime and he was paid his wages accruing for this period and was given his P45.

The Law

7.	The claimant’s claim, that he was constructively dismissed by the respondent, is a claim under Article 145 of The Employment Rights (Northern Ireland) Order 1996 and as such is one of the type of claims that now falls into the group of disputes that are listed in the 2003 Order that cannot proceed unless the claimant has first raised a grievance in writing and sent it, or a copy of it, to his employer.  If this action is not taken by the employee/claimant then the claimant is precluded from bringing a claim in the tribunal.

8.	The modified grievance procedure set out in Schedule 1 of the 2003 Order would have applied to this claim as it falls within the definition in Regulation 6 of The Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004, (“the 2004 Regulations”).  Regulation 6(3) states that the modified grievance procedure shall apply where:-

(a)	the employee has ceased to be employed by the employer;

(b)	the employer -
		
(1)	was unaware of the grievance before the employment ceased; or

(2)	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 to use the modified procedure in certain circumstances, not relevant in this case.

The only way that the modified procedure would not be applicable in circumstances as found in this case, is if Regulation 6(4) applied, which states that neither grievance procedure shall apply where the employee has ceased to be employed by the employer and neither procedure has been commenced and since the employee ceased to be employed, it has ceased to be reasonably practicable for him to comply with the requirement of setting out his grievance in writing.

Decision

9.	The tribunal finds that the claimant gave in his notice of resignation to the respondent on 4 January 2006 and worked out his one month notice.  The tribunal does not believe that the claimant gave the letter of grievance to the respondent on 14 December 2005 and prefers the evidence of the respondent that he first saw that letter at the hearing on 19 February 2007.  This being the case the grievance procedure was not initiated and the claimant’s claim will be dismissed.  The tribunal holds that Regulation 6(4) of the 2004 Regulations cannot assist the claimant, as clearly he was able to draft a letter of grievance but he failed to give it to the respondent.

10.	With regard to the TUPE regulations point, this will no longer be relevant as the claimant’s claim has been dismissed.  However for the sake of completeness the tribunal holds that the transfer of the Oak Bar to the respondent was a transfer of a business as a going concern and all contracts of employees were transferred to the respondent and the transfer was a relevant transfer as defined in the TUPE regulations. 

Chairman:

Date and place of hearing:	19 February 2007, Belfast.

Date decision recorded in register and issued to parties: