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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Anderson v McWhirter [2007] NIIT 1241_07 (17 August 2007) URL: http://www.bailii.org/nie/cases/NIIT/2007/1241_07.html Cite as: [2007] NIIT 1241_07, [2007] NIIT 1241_7

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1241/07

CLAIMANT: Robert Terence Anderson

RESPONDENTS: 1. Mr Paul McWhirter

2. Beth's Home Bakery

DECISION ON A PRE-HEARING REVIEW

The tribunal finds that the claimant has sent a grievance that complies with the statutory requirements and has waited 28 days before presenting his claim to the tribunal and therefore the tribunal is entitled to consider his claim. The preliminary issue is answered in the affirmative.

Constitution of Tribunal:

Chairman (Sitting Alone): Mr B Greene

Appearances:

The claimant appeared in person and was accompanied by his wife.

The respondents were represented by Mr Paul McWhirter and his sister Miss McWilliams.

SOURCES OF EVIDENCE

The tribunal heard evidence from the claimant. The respondents did not adduce any evidence. The tribunal also had regard to the originating claim, the response, and a copy of the grievance letter submitted on behalf of the claimant.

THE CLAIM AND DEFENCE

1. The claimant claims a redundancy payment and notice pay. The respondents resist the claimant's claims. The respondents further assert that the claimant's grievance letter was not received by them.

THE ISSUES

2. This matter was listed to deal with the following issue;-

(I) whether the claimant is entitled to present a claim to the Industrial Tribunals in view of the provisions of Article 19(2) and (3) of the Employment (Northern Ireland) Order 2003 regarding the requirement to send a grievance in writing to the employer and to wait 28 days before presenting a claim to the tribunal.

FINDINGS OF FACT

4. (1) The claimant claims a redundancy payment and notice pay from the respondents. In his claim form he said that he sent a grievance in writing to his employer on 28 April 2007. He did not lodge his claim until 31 May 2007.

(2) The respondents seek to resist the claimant's claim for a redundancy payment and notice pay and assert that they did not receive any grievance in writing.

(3) The respondents indicated to the tribunal that the first-named respondent is currently exploring the possibility of having himself adjudicated bankrupt. Whilst the respondents hope to make such an application nothing has been done as yet. Accordingly, the tribunal considers it appropriate to continue with the pre-hearing review.

(4) The claimant delivered his grievance in writing to the first-named respondent's home address at 12 Forthill Grove, Ballyduff. No one was in the first-named respondent's home at the time and the letter was put through the letterbox.

(5) The claimant produced a copy of the letter that he had posted through the letterbox of the respondent's home address. In that letter it sets out his claim for a redundancy payment and notice pay.

(6) The respondents indicated to the tribunal that they did not dispute that the claimant had sent the grievance to the respondents. They merely indicated that they had not received it.

(7) In the light of the respondents concession no further evidence was adduced.

THE LAW

5. (1) An employee shall not present a complaint to an industrial tribunal were the statutory grievance procedure applies and that has not been complied with (Article 19(2) of the Employment (Northern Ireland) Order 2003).

(2) The statutory grievance procedure requires an employee to set out the grievance in writing and send the statement or a copy of it to the employer (Schedule 1, Part II of the Employment (Northern Ireland) Order 2003).

APPLICATION OF THE LAW AND FINDINGS OF FACT TO THE ISSUES

6. (1) The claimant hand-delivered a written grievance to the employer at his home address on 28 April 2007. The written grievance sets out the claimant's claim for a redundancy payment and notice pay.

(2) The claimant presented his claim to the Office of the Tribunals on 31 May 2007.

(3) The tribunal is satisfied that the claimant sent a copy of the written grievance to his employer. In so concluding the tribunal took into account the following matters;-

(a) the claimant gave evidence of having done so.

(b) The claimant produced a copy of the grievance letter which had been produced on his home computer.

(c) The respondents do not dispute that the claimant sent the letter.

(4) In the light of the findings above and the respondent's concession the tribunal is satisfied that the claimant has sent a grievance in writing to the employer and waited 28 days before presenting his claim to the tribunal.

(5) Accordingly the claimant is entitled to present his claim to an industrial tribunal. The preliminary issue is therefore answered in the affirmative.

(6) The claim can now proceed to hearing of the substantive issues.

Chairman:

Date and place of hearing: 17 August 2007, Belfast.

Date decision recorded in register and issued to parties: