THE INDUSTRIAL TRIBUNALS
CASE REF: 334/05
CLAIMANT: Richard Egan
RESPONDENT: NASUWT
DECISION ON A PRE-HEARING REVIEW
The decision of the tribunal is that the claimant is entitled to pursue his complaint under Article 31 of the Trade Union and Labour Relations (Northern Ireland) Order 1995. The doctrine of estoppel per rem judicatam applies in the sense of "decided issue estoppel" to those matters relevant to this complaint which have already been raised before and determined by the Certification Officer in his decision issued in June 2006, reference D/6 – 7/2006 which concerned this claimant and respondent. The tribunal has determined that it is not appropriate in light of the provisions of the Human Rights Act 1998 for this tribunal to decide whether an order should be made under Rule 20 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005.
Constitution of Tribunal:
Chairman: Ms M Sheehan
Appearances:
The claimant appeared in person.
The respondent was represented by Mr J O'Neill of Thompson McClure, Solicitors, who appeared on behalf of the respondent.
The Issues
- The pre-hearing review was arranged pursuant to a Case Management Discussion. The issues for determination was
(i) whether the proceedings before the tribunal are res judicata in view of the factual findings of the Certification Officer in his decision D/6 – 7/2006 issued in June 2006 involving the claimant and the respondent; and
(ii) whether the claimant should be ordered to make a deposit of £500 as the claim before the tribunal had little reasonable prospect of success. The tribunal also considered whether the claimant's complaint had been submitted within the time prescribed by Article 33 of the Trade Union and Labour Relations (Northern Ireland) Order 1995.
Sources of Evidence
- The tribunal heard submissions from the claimant and from Mr O'Neill on behalf of the respondent. In addition the tribunal was referred to a bundle of documents numbering 248 pages as well as a written submission from the respondent, identified as "R1".
The Contentions of the Parties
- The respondent contended at hearing "res judicata" in the sense of "issue estoppel" applies to the decision of the Certification Officer and a number of the conclusions he made on the evidence placed before him to reach his decision that the claimant's removal from office as Secretary for South Down/South Armagh was not a disciplinary sanction. The relevant facts or conclusions raised at the hearing are found at paragraphs 34, 36, 53, 64, 67, 68, 72, 73, 75 and 92 of the decision. The decision of the Certification Officer concluded that the National Officers at the time they affirmed the removal of the claimant as Secretary of South Down/South Armagh branch believed that the claimant was registered as a member of Armagh/Craigavon branch; that the claimant did not reply to questions about his employing authority and in failing to do so the claimant "deliberately withheld information he was asked to supply"; that being in the wrong association is not a disciplinary offence under rule 26 (1) and the claimant was not debarred from holding office in the union. The Certification Officer did not "accept the claimant's claim that the national officer's decision was a disciplinary one" and concluded as a matter of fact that the Union and its officers did not discipline the claimant outside the rules of the union. The nature of the matters highlighted in the claimant's complaint before the tribunal raise the same issues which have been determined by the Certification Officer. The Certification Officer had determined that for him to adjudicate whether there was a breach of the union rules he had to identify what action had been taken by the union against the claimant and the reason why that action was taken before he could determine whether it was "disciplinary" or not. The matters that fell to be determined in the application to the Certification Officer lead to the respondent's submission that "res judicata" by way of issue estoppel now applies to this complaint. The respondent accepts that the removal from office is a "detriment" to the claimant.
- The claimant contended that the Certification Officer had already determined that the issue of "unjustifiable discipline" was a separate complaint to the one that he was required to determine. The respondent accepted at the time the Certification Officer's jurisdiction and his ruling that there were separate issues to be handled by the Industrial Tribunal and Certification Officer. The respondent made a conscious decision not to judicially review the Certification Officer's ruling in December 2005 that there were 2 separate jurisdictions provided by Article 31 and Article 90A of the Trade Union and Labour Relations (Northern Ireland) Order 1995. The claimant contended the respondent should be estopped from raising the issue of "res judicata".
- The claimant contended that the findings of fact in the Certification Officers decision are limited to those found at paragraphs 3 to 26. The findings of fact are not the same as the surmising that the Certification Officer makes in other paragraphs of his decision. The roles of the Certification Officer under Article 90A and the Industrial Tribunal under Article 31 are parallel but separate. The tribunal was referred to the decision in Friend v Civil Aviation Authority [2001] EWCA Civ 1204 which held the Certification Officer could not look at aspects of unjustifiable discipline because his remit was whether there was a breach of rules or breach of procedure. "Detriment" within the meaning of Article 31 is wider than the removal from office. Causation for that detriment falls for the tribunal to decide. The claimant contended that the Certification Officer didn't and couldn't deal with causation because his remit under Article 90A was restricted to determining whether the action taken was "disciplinary" and in accordance with the relevant union rules.
The Facts
- The tribunal having heard the submissions and considering the documentation before it found the facts as detailed in the paragraphs below.
- The claimant on the 11 February 2005 presented to the Office of the Industrial Tribunals and Fair Employment Tribunal a complaint that he had been subjected to "unjustifiable discipline" contrary to Article 31 of the 1995 Order. His complaint was summarised as "he had been expelled from a Union Branch and office of the Union contrary to the Rules thereby suffering a deprivation of the benefits and services available to other members". The reason advanced in his complaint for this treatment was "because I have asserted that the NASUWT and some of its officials and others (representing the Union) have broken requirements imposed by the Union Rule and the Law. …I believe that my removal from a branch and Office was directly linked to my appearance as a witness at the Northern Ireland Certification Officer Hearing where I made assertions about the Union". The Certification Officer Hearing referred to in the claimant's complaint was the Jim Arbuckle hearing.
- The respondent lodged a response to the claimant's complaint denying that the claimant had been disciplined "unjustifiably or otherwise". The respondent contended that the claimant was the secretary of a branch of the Union to which he was not entitled to be a member of by virtue of his place of employment. The respondent contended the claimant's membership of the Union was reallocated to the appropriate branch for his place of employment and he had been subsequently elected to office on behalf of that branch. The claimant's membership of the NASUWT was not interfered with at any time. There was no deprivation of the benefits and services available to members. The respondent denied any connection between the claimant's reallocation to the appropriate local branch of the Union and the claimant's involvement in the Jim Arbuckle hearing. The respondent contented that the complaint was frivolous and vexatious.
- The claimant on the 2 December 2004 lodged with the Certification Officer an application for a declaration that his removal from elected office, namely Secretary of the South Down/South Armagh local association of the respondent trade union contravened a number of the rules of the respondent union, the National Association of Schoolmasters Union of Woman Teachers (NASUWT). Breaches of various rules of the National Rules, the Northern Ireland Executive Council (NIEC) Rules and Model Rules for Local Associations were detailed in the application to the Certification Officer. The manner in which they were broken related to the claimant's "removal from office as Secretary of the South Down/South Armagh local association without regard to the rules, by imposing a disciplinary sanction without using disciplinary process, by failing to handle complaints of a formal nature, by discriminating against me and preventing me to have equal opportunities and rights, privileges and benefits of membership". This action was specified in the application to have been taken on or before 15 September 2005 and at a number of unknown dates since going up to 18 November 2005. At paragraph 19 of the claimant's application to the Certification Officer he stated that he believed "the actions of the NASUWT form a pattern of victimisation arising because I have been a witness for Jim Arbuckle of NASUWT at a hearing of the NI Certification Officer. This whole case arises out of assertions and complaints made by me as a member of the NASUWT".
- The rules allegedly breached were Rule 3, 4, 18, 26 and Rule 26. Rule 4 concerned terms and conditions of eligibility for "Membership" and Rule 26 governed "Internal Association Discipline". His application was accepted by the Certification Officer as coming within his jurisdiction by virtue of Article 90A(2)(a), (b) and (d) of the Trade Union and Labour Relations (Northern Ireland) Order 1995 (as amended) which will be referred to as "the 1995 Order".
- Correspondence between the parties placed in the bundle identified as "R1" disclosed that the relevant resolutions regarding the removal of the claimant from membership of the branch for South Down/South Armagh and his reallocation to the Armagh/Craigavon branch were passed and then approved between May and September 2004. There then passed a series of letters between the claimant and certain office holders of the respondent up to and including the 28 November 2004. The claimant in this correspondence was challenging and querying his removal from office and the respondent's proposal to conduct new elections for a Secretary to the South Down/South Armagh branch. It appears that election was first proposed to take place on 16 December 2004.
- Hearings took place before the Certification Officer in Northern Ireland on the 6 December 2005, 1 and 2 March 2006. Prior to the hearing taking place on 6 December 2005, the respondents wrote to the Certification Officer by letter dated 1 December 2005 stating that in light of information received in respect of the claimant's employment in the South Down/South Armagh association area the respondent union now accepted that they had erred in removing the claimant from membership of the South Down/South Armagh branch and reallocating him to Armagh/Craigavon branch. The situation with regard to the claimant's eligibility to be a member of and hold office in the South Down/South Armagh local association arose from his employment in a school based in Lurgan and his involvement with the Open University from his home address in County Down. However the respondent made it clear to the Certification Officer in this letter dated 1 December 2005 that they still disputed that this action constituted disciplinary action within Rule 26 of the national rules of the Union.
- At the hearing on the 1 December 2005 the respondent alleged before the Certification Officer there was duplication between the two complaints lodged by the claimant. The respondent argued before the Certification Officer that the application under Article 90A (2) (a) of the 1995 Order had been conceded and the Certification Officer could make the required declaration. However the second complaint lodged by the claimant was the same as the complaint presented to the Industrial Tribunal in accordance with Article 33 of the 1995 Order. The complaint related to alleged disciplinary action and the reason for it. The alleged duplication arose from the fact the tribunal complaint concerned the alleged motivation for the claimant's removal from office while the remit of the Certification Officer under Article 90A(2) (b) concerned alleged breaches of the disciplinary rules of the Union. It was argued that the latter was irrelevant as the respondent Union had never purported to take disciplinary action against the claimant. The claimant contended before the Certification Officer in response to the respondent's arguments detailed above that the two complaints while concerning discipline were different and recourse on them had been given to different bodies by the legislation and he could use both to "get his rights". The claimant contended that he had been removed from membership of a local association and thereby from an office he had held for some years without good reason, but because he had supported Jim Arbuckle. His removal he alleged was a sanction that was mentioned only in the disciplinary rules. Case law he suggested established that question of motive was within the Certification Officer's jurisdiction.
- The Certification Officer concluded on 1 December 2005 that he did have jurisdiction to consider the Article 90A (2) (b) complaint as the wrongful removal of the claimant had been detrimental to him, might on the evidence available been done with a disciplinary motivation and it should therefore be examined from that point of view. In particular it appears that the Certification Officer was swayed by the wording of Article 31 (5) of the 1995 Order which he read as permitting the claimant to bring complaints on different aspects of the same matter separately to the Certification Officer and the Tribunals. The reasons for this December 2005 ruling are found at paragraph 36 of the decision issued on 27 June 2006.
- The December hearing was adjourned at the request of the respondent to consider whether they would judicially review the ruling in December 2005 of the Certification Officer. In late December 2005 the respondent decided not to apply for a judicial review and the hearing before the Certification Officer was reconvened on the 1 and 2 March 2006.
- The hearing in March 2006 involved evidence heard from Mr Scott, Mr Bartlett, Ms Rogers, Mr Morgan, Mr Arbuckle and Mr Egan. The Certification Officer summarised the complaint before him under Article 90A(2) (b) as "when union officers decided on the 18 May 2004 that he (Mr Egan – my italics added) could not hold office in South Down/South Armagh and re-affirmed that decision on or about 15 September 2004, they did so in order to discipline him for assertions he made at Mr Arbuckle's internal hearings and the hearing before the Certification Officer for Northern Ireland; and that they did so without following the disciplinary procedures laid down in the union's rules".
- The claimant during the hearing before the Certification Officer asserted that the reasons for the decision to remove him were: the union was angry over his actions and assertions on behalf of Mr Arbuckle and wished to punish him for these; it had formal complaints made by two South Down/South Armagh members; it had a formal complaint from Mr Scott about his membership; and it regarded complaints to the Certification Officer, such as the one by Mr Arbuckle as a disciplinary offence. The Certification Officer considered that the first reason put forward by the claimant "is to be taken as the union's motive for the action, and the others perhaps as separate grounds for the action, even if not put forward as such by the Union".
- The reasons contended by the claimant, before the Certification Officer, that the removal from office and the South Down/South Armagh Branch was "disciplinary" were (a) that formal complaints were matters coming under the disciplinary rule (rule 26), (b) that the union held the view about complaints to the Certification Officer mentioned above, and (c) that the action taken against him (removal from office) was an action mentioned only in rule 26. As rule 26 procedures had not been applied then the claimant argued he was entitled to a declaration there had been a breach of disciplinary rules under Article 90A (2) (b) of the 1995 Order.
- The relevant conclusions of the Certification Officer to the complaint before the tribunal are mainly found at pages 26 to 37 of the decision. In those paragraphs the Certification Officer details the reasons for his conclusion that the claimant's removal from office as Secretary for South Down/South Armagh was not a disciplinary sanction. In order to reach that conclusion the Certification Officer had to consider and refute the evidence the claimant called and placed before him to link his removal from office to the claimant's conduct in relation to the Union's actions taken with regard to Mr Arbuckle.
The evidence placed before the Certification Officer with regard to the dealings between the parties regarding the claimant's eligibility for membership of the South Down/South Armagh association and his removal from office as secretary was wide ranging and covered incidents that spanned between 1999 to 2005. The Certification Officer examined the many matters of fact; arguments and assertions claimed to have a bearing on the union's actions and reached conclusions under a number of headings.
- The most relevant conclusions to the Article 33 complaint of the claimant concerned (1) the information the national officers had on their records in May 2004 and September 2004 was that the claimant was a member of the Armagh/Craigavon association; (2) the question about the discrepancy between his membership and the office he held was legitimately raised by Mr Scott and (3) the claimant deliberately withheld from the respondent union information sought as to his "employing authority".
- The Certification Officer considered how the union's wrongful interpretation of the membership rules, in particular rule 4 (a) (iii) arose. The Certification Officer concluded that the conclusions of the union officials as to the claimant's eligibility for membership or office in South Down/South Armagh when the issue was raised by Mr Scott was resolved by reference to "the computer record as to his workplace and its matching of the workplace with the local association to which he must therefore belong". In reaching that conclusion the Certification Officer sets out in paragraphs 79 and 80 of his decision the counter arguments of the claimant that he found unconvincing and untenable.
- The Certification Officer's conclusions and summary of the evidence placed before him as to the nature of the decision of 18 May 2004 to remove the claimant from membership and office of the South Down/South Armagh association are found at paragraphs 81 to 86 of the decision dated June 2006. In summary the Certification Officer concluded that there were no formal complaints made by South Down/South Armagh members; that the action of Mr Scott in raising the claimant's membership was not a formal or a "disciplinary" complaint since being in the wrong association is not a disciplinary offence under rule 26 (1) of the national rules of the union; that the evidence adduced by the claimant to support his contention that the Union regarded complaints to the Certification Officer such as the one by Mr Arbuckle in which the claimant was involved as a disciplinary offence was "quite inadequate to support it" and that the decision to remove him from membership and office of the South Down/South Armagh association was not a "disciplinary" sanction within the rules of the union but was "administrative". These are matters that are also raised in the complaint before the tribunal.
- The Certification Officer also considered the claimant's allegation of a conspiracy to "punish him for the things he had said about the union and its leadership during the Arbuckle proceedings". This is a matter also contended in the claimant's complaint before the tribunal. The decision of 27 June 2006 records that "Mr Egan did not offer evidence as to any specific personal reason that Ms Keates or Mr Scott or three of the five National Officers might have had for wanting to punish him…It is possible, perhaps probable, that some officers and officials felt an abiding anger towards or with Mr Egan for the reasons he gave, but that is not the same thing as saying that they gave expression to their anger by taking unlawful action against him. In my judgement, Mr Egan failed to show that they took that step…I do not consider that Mr Egan has shown with any acceptable degree of probability that there was an illegal conspiracy to remove him from office".
- It is clear from the lengthy portions of the Certification Officers decision of June 2006 quoted in the paragraphs above that the Certification Officer did not consider the claimant's complaint with regard to the alleged deprivation of benefits and services, his removal as a delegate to Northern Ireland Executive Council and Member of the Secondary Schools Consultative Committee of the Southern Education and Library Boards. Equally the refusal at a meeting of the Northern Ireland Executive Council held on 6 November 2004 to allow the claimant the right to speak at that meeting does not appear to have been considered by the Certification Officer.
Applicable Law
The relevant statutory provisions of the 1995 Order to this complaint are
Right not to be unjustifiably disciplined
- -
(1) An individual who is or has been a member of a trade union has the right not to be unjustifiably disciplined by the union.
(2) For this purpose an individual is "disciplined" by a trade union if a determination is made, or purportedly made, under the rules of the union or by an official of the union or a number of persons including an official that –
a. he should be expelled from the union or a branch or section of the union,
b. he should pay a sum to the union, to a branch or section of the union or to any other person,
c. sums tendered by him in respect of an obligation to pay subscriptions or other sums to the union, or to a branch or section of the union, should be treated as unpaid or paid for a different purpose,
d. he should be deprived to any extent of, or of access to, any benefits, services or facilities which would otherwise be provided or made available to him by virtue of his membership of the union, or a branch or section of the union,
e. another trade union, or a branch or section of it, should be encouraged or advised not to accept him as a member, or
f. he should be subjected to some other detriment;
and whether an individual is "unjustifiably disciplined" shall be determined in accordance with Article 32.
(3)………………
(4) Subject to that, the remedies for infringement of the right conferred by this Article are as provided by Articles 33 and 34 and not otherwise.
(5) The right not to be unjustifiably disciplined is in addition to (and not in substitution for) any right which exists apart from this Article: and, subject to Article 33 (4), nothing in this Article or Articles 33 to 34 affects any remedy for infringement of any such right.
Meaning of "unjustifiably disciplined"
32
(1) An individual is unjustifiably disciplined by a trade union if the actual or supposed conduct which constitutes the reason, or one of the reasons, for disciplining him is –
(a) conduct to which the Article applies, or
(b) something which is believed by the union to amount to such conduct; but subject to paragraph (6) (cases of bad faith in relation to assertion of wrongdoing).
(2) This Article applies to conduct which consists in –
(a) …………….
(b) …………….
(c) asserting (whether by bringing proceedings or otherwise) that the union, any official or representative of it or a trustee of its property has contravened, or is proposing to contravene, a requirement which is, or is thought to be, imposed by or under the rules of the union or any other agreement or by or under any statutory provision or any rule of law;
(d) ………………
(3) This Article applies to conduct which involves the Northern Ireland Commissioner for the Rights of Trade Union Members or the Certification Officer being consulted or asked to provide advice or assistance with respect to any matter whatever, or which involves any person being consulted or asked to provide advice or assistance with respect to a matter which forms, or might form, the subject matter of any such assertion as is mentioned in paragraph (2) (c).
(4) This Article also applies to conduct which consists in proposing to engage in, or doing anything preparatory or incidental to, conduct falling within paragraph (2) or (3).
(5)……………..
(6)……………….
(7) In this Article-- ………..
"representative", in relation to a union, means a person acting or purporting to act –
(a) in his capacity as a member of the union, or
(b) on the instructions or advice of a person acting or purporting to act in that capacity or in the capacity of an official of the union…
Complaint of infringement of right
- ----(1) An individual who claims that he has been unjustifiably disciplined by a trade
union may present a complaint against the union to an industrial tribunal.
(2) The tribunal shall not entertain such a complaint unless it is presented---
(a) before the end of the period of three months beginning with the date of the making of the determination claimed to infringe the right, or
(b) where the tribunal is satisfied ---
(i) that it was not reasonably practicable for the complaint to be presented before the end of that period, or
(ii) that any delay in making the complaint is wholly or partly attributable to a reasonable attempt to appeal against the determination or to have it reconsidered or reviewed,
within such further period as the tribunal considers reasonable.
(3) Where the tribunal finds the complaint well founded, it shall make a declaration to that effect.
(4) Where a complaint relating to an expulsion which is presented under this Article is declared to be well-founded, no complaint in respect of the expulsion shall be presented or proceeded with under Article 38 (right not to be expelled from trade union).
Article 90A deals with the right to apply to Certification Officer.
90A.-
(1) A person who claims there has been a breach or threatened breach of the rules of a trade union relating to any of the matters mentioned in paragraph (2) may apply to the Certification Officer for a declaration to that effect, subject to paragraphs (3) to (7).
(2) The matters are –
a. the removal of a person from, any office;
b. disciplinary proceedings by the union (including expulsion);
c. ………
d. the constitution or proceedings of any executive committee or of any decision making meeting;
The Relevant Legal Principles
- The concept of res judicata in simplified terms is a doctrine established by case law as opposed to statute. It is usually used to describe the situation where an issue has already come before a court or tribunal and has been decided or an issue could have been brought before a court or tribunal in previous proceedings but was not. A party who seeks to open or try such an issue in subsequent proceedings before a different court or tribunal can be barred, or "estopped" from so doing if the opposing party successfully pleads the defence of "res judicata".
- The principles upon which cause of action estoppel are often stated to be based are found in the maxims "nemo debet bis vexari pro una et eadem causa" and "interest rei publicae ut finis sit litium". These maxims respectively translate as "no-one ought twice to litigate one and the same cause" and "it is in the public interest there be an end of law suits".
- Lord Keith of Kinkel in Arnold and others v National Westminster Bank PLC [1991] described the term "res judicata" as "signifying two associated but different doctrines. The first is estoppel per rem judicatam: under this doctrine parties to a judicial decision are estopped from disputing the correctness of the decision in law and fact. It is an estoppel so called because it prevents an unsuccessful party from contradicting a proposition of law or a finding of fact expressly declared by the earlier judgement. The second is merger of the cause of action in the judgement, or transit in rem judicatam; this doctrine prevents a successful plaintiff from reasserting in a second proceeding the cause of action which had been made the subject of a judgement in the first. It has nothing to do with estoppel…There are however four situations where in second proceedings between the same parties the doctrine of estoppel per rem judicatam may be invoked: (i) cause of action estoppel, where the entirety of a decided cause of action, is sought to be relitigated; (ii) issue estoppel or "decided issue estoppel", where an issue is sought to be relitigated which has been raised and decided as a fundamental step in arriving at the earlier judicial decision; (iii) extended res judicata or "unraised issue estoppel" where an issue is sought to be litigated, which could and should have been raised in a previous action but was not raised (commonly referred to as the rule in Henderson v Henderson [1843] 3 Hare 100); (iv) a further extension of (iii) to points not raised in relation to the decision itself.
- The Court of Appeal in Divine –Bortey v Brent London Borough Council [1998] ICR 886 identified three categories of estoppel falling within the doctrine of res judicata:- "cause of action" estoppel – which prevents a party pursuing a cause of action which has been dealt with in earlier proceedings involving the same parties; "issue estoppel" – which prevents a party reopening an issue which has been decided in earlier proceedings involving the same parties; and "issue estoppel as falls within the rule in Henderson v Henderson – in effect if a party fails to raise an issue in proceedings that, if he or she had exercised due diligence, he or she would have been able to raise, he or she will be estopped from raising that issue in the future.
- The House of Lords in Arnold and others v National Westminster Bank PLC [1991] held that although issue estoppel constituted a complete bar to relitigation between the same parties of a decided point, its operation could be prevented in "special", in the words of Lord Keith of Kinkel, or "exceptional" in the words of Lord Lowry, circumstances. Examples of special circumstances given in that case were where further material became available which was relevant to the correct determination of a point involved in earlier proceedings but could not, by reasonable diligence, have been brought forward in those proceedings; whether or not that point had been specifically raised and decided; that such material was not confined to matters of fact but that where a judge made a mistake and a higher court overruled him in a subsequent case, justice required that the party who suffered from the mistake should not be prevented from reopening that issue in later proceedings.
- Lord Keith of Kinkel in the Arnold case in obiter dicta stated "Issue estoppel may arise where a particular issue forming a necessary ingredient in a cause of action has been litigated and decided and in subsequent proceedings between the same parties involving a different cause of action to which the same issue is relevant one of the parties seeks to re-open that issue. If in litigation upon one such course of action any of such separate issues as to whether a particular condition has been fulfilled is determined by a court of competent jurisdiction, neither party can, in subsequent litigation between one another upon any cause of action which depends upon the fulfilment of the identical condition assert that the condition was fulfilled if the court has in the first litigation determined that it was not, or deny that it was fulfilled if the court in the first litigation determined that it was".
- In Sajid v Sussex Muslim Society [2002] IRLR 113 the Court of Appeal for England and Wales set out the underlying policy behind estoppel as follows:-
"The underlying policy of cause of action estoppel and related doctrines, usually classified under the heading of res judicata, is that the finality of litigation and the avoidance of multiplicity of proceedings on the same issue. Save in special circumstances, it is contrary to public policy and may be an abuse of the process of the Court to attempt to re-open in new proceedings a case which has already been litigated and finally determined by a Court or tribunal in proceedings between the same parties, or issues which could have been litigated properly between the parties in relation to the subject matter of the earlier litigation. This doctrine embodies a principle of justice, not just policy. In the absence of special circumstances, it is unjust for a party who has spent time and money in obtaining a final determination of a claim or an issue in a claim to be faced with fresh proceedings from the other party seeking to re-litigate the same cause of action or the same issue".
Conclusions in light of the facts and law.
- The provisions of Article 31 to 33 of the 1995 Order govern whether the tribunal has jurisdiction to determine the complaint of the claimant presented in February 2005. While neither of the parties raised an issue at hearing as to whether the claimant had presented his complaint within the time prescribed by Article 33 (2) of the 1995 Order, the tribunal noted that in the Case Management Discussion on 25 January 2007, Mr O'Neill had raised a further issue in relation to the claim being out of time but on reflection proposed that the case remain listed for the two preliminary issues namely: - whether the proceedings before the tribunal are res judicata in view of the factual findings of the Certification Officer and whether there is little prospect of success. It appears to the tribunal, for the avoidance of any doubt at future hearings that it is necessary that the issue of whether the complaint was presented in time, as it is a matter that goes to whether the tribunal has jurisdiction to determine any other issue between the parties, should be determined.
- The tribunal was satisfied that the determination to remove the claimant from his position as Secretary of the South Down/South Armagh branch was made by 15 September 2004. Once the claimant had been notified of the determination made by 15 September 2004, there followed a series of letters between the parties. The decision did not appear to be effected until sometime in November 2004, most likely when the officials of the union determined to write the letter dated 18 November 2004 to all the members of the South Down/South Armagh association. The letter dated 18 November 2004 was sent to all members of the South Down/South Armagh branch advising that the post of Secretary of that branch was vacant and inviting members to a special general meeting on 16 December 2004 for the purposes of an election to fill that post. That letter was not sent to the claimant.
- The claimant sent a letter to national officials of the respondent on 20 November in response to the letter dated 18 November. In his letter he asserted that his circumstances had not changed since 2002 when the union accepted that he was a member of South Down/South Armagh, and that he considered this action was happening because of the assertions he had made at meetings and because he had been a witness for Mr Arbuckle. The claimant wrote again to union officials on 28 November 2004. No response was received to the claimant's November letters. At a meeting on 16 December 2004 Mr Morgan was elected to the office of Secretary of South Down/South Armagh association.
- The tribunal considered the provisions of Article 33 (2) (a) of the 1995 Order and was satisfied that while the period specified in Article 33 (2) (a) expired by 15 December 2004, any delay in making the complaint was partly attributable to the claimant's reasonable attempt to have the determination of 15 September 2004 reviewed or reconsidered as evidenced by the correspondence detailed in the paragraph above. The tribunal was satisfied that the presentation of the complaint by the 11 February 2005 was "within such further period as it considered reasonable".
- The tribunal then considered whether the provisions of Article 31 (5) of the 1995 Order prevents the doctrine of "res judicata" in the sense of cause or issue estoppel applying to the matters to be determined by the tribunal given the decision of the Certification Officer in June 2006.
- The complaint presented to the tribunal asserts not only that the claimant's removal from office was disciplinary action without due process and outside the rules. It also contends that he had been expelled from a union branch, thereby suffering a deprivation of the benefits and services available to other members. The complaint asserts that his removal from a branch and offices he held was directly linked to his appearance and assertions made by him as a representative at Mr Arbuckle's internal union disciplinary procedure and as a witness at Mr Arbuckle's hearing before the Certification Officer. The union branch from which he alleged he was expelled was South Down/South Armagh. The offices the claimant contended he was removed from were not only the office of Secretary of South Down/South Armagh Association but also his positions as an elected delegate to the Northern Ireland Executive Council and a member of the Secondary Schools Consultative Committee of the Southern Education and Library Boards. He also complains that on 6 November 2004 he was denied the right to speak a meeting of the Northern Ireland Executive Council.
- It appeared to this tribunal that the actions complained of by the claimant in his complaint lodged in February 2005 fell under Article 30(2) (d), (e) and/or (f) of the 1995 Order. However there clearly are matters raised in the Article 33 complaint that have not been determined by the Certification Officer in particular (a) the alleged deprivation of loss and benefits, (b) removal of the claimant as a member of the Secondary Schools Consultative Committee of the Southern Education and Library Boards, as well as (c) the denial of any right to speak at a meeting of the Northern Ireland Executive Council in November 2004 and the reason such action was taken by the respondent. It is not clear to the tribunal if the claimant was asserting that all of those actions were taken against him because of his involvement in the Jim Arbuckle hearings and for no other reason.
- On a number of issues contained in the complaint the Certification Officer made clear findings of fact relevant to this complaint. A close reading of the Certification Officer's decision in particular paragraphs 77 to 80 makes clear that some matters did puzzle the Certification Officer and on those no finding was made. It is clear the Certification Officer ruled that the claimant's expulsion from the South Down/South Armagh branch and transfer to another branch was an administrative and not disciplinary action within the rules of the Union. Further the claimant's assertion that that action was taken against him because he had asserted the Union and some of its officials broke the requirements imposed by union rules and law as well as his representation for Mr Arbuckle and his appearance as a witness before the Certification Officer was determined by the Certification Officer in the negative. The decision to remove the claimant from office and the branch was held by the Certification Officer not to be related to the claimant's involvement in the Jim Arbuckle case. Further the Certification Officer having heard evidence from the claimant and his witnesses on the alleged conspiracy to remove the claimant from office ruled that he did not consider that "Mr Egan has shown with any acceptable degree of probability that there was an illegal conspiracy to remove him from office".
- The tribunal considered the provisions in Part IV of the 1995 Order, which provide jurisdiction to a single judicial body. There are parts of the 1995 Order, which provide a dual jurisdiction to the High Court and the Certification Officer. Article 29 states that the High Court is the relevant competent jurisdiction for a breach of the requirement to a ballot before industrial action. Article 31(4) expressly provides that the remedy for an alleged complaint of unjustifiable discipline lies with the Industrial Tribunal. In particular Article 31 (5) provides that the right protected by Article 31 is in addition to "any right, which exists apart from this Article".
- The tribunal had little success in researching details of the underlying policy for the variations of jurisdictions provided in this legislation. The tribunal determined to be led in its conclusions by the maxim "Absoluta sentential expositore non indigent" which translates, as "When you have plain words capable of only one interpretation, no explanation of them is required". Article 31 (5) of the 1995 Order was clear and specific in its wording. Accordingly as the legislation is so clear in its provisions the tribunal concluded that the argument of the respondent that "res judicatam" in the sense of "cause or issue estoppel" could or should prevent the claimant proceeding with his complaint under Article 33 of the 1995 Order cannot be supported by the express wording of Article 31 (5) of the 1995 Order. Accordingly the claimant's complaint is entitled to proceed to hearing before a tribunal not only on those matters not determined by the Certification Officer but also on the matters determined by the Certification Officer. However the question arises as to whether "res judicata" in the sense of "issue estoppel" applies and if so, to what it applies and the impact of such application on the claimant pursuing this complaint to a hearing before the tribunal.
- It is clear from reading many of the other provisions in the 1995 Order that a dual source of remedy is provided for certain alleged breaches of provisions of this Order. Article 3 (6) in Part II of the 1995 Order states "The remedy for failure to comply with the requirements of this Article is by way of application under Article 5 (to the Certification Officer) or Article 6 (to the High Court). Article 5 provides the right to apply to the Certification Officer for a declaration for a failure to comply with any of the requirements imposed by Article 3 or 4 of the Order. Article 6 provides a right to apply to the High Court for a declaration and or enforcement order for the same alleged failure. Article 6 (2) states "if an application in respect of the same matter has been made to the Certification Officer, the High Court shall have due regard to any declaration, reasons or observations of his which are brought to its notice".
- Similarly provisions found in Part III of the 1995 Order at Articles 22 and 23 of the Order provide a dual source of remedy for breaches of those provisions. Article 21 (1) provides "The remedy for a failure on the part of a trade union to comply with the requirements of this Part is by way of application under Article 22 (to the Certification Officer) or Article 23 (to the High Court). The making of an application to the Certification Officer does not prevent the applicant, or any other person, from making an application to the High Court in respect of the same matter". Article 23 (2), like Article 6 (2) requires the High Court to have due regard (emphasis added) to any declaration, reasons or observations of the Certification Officer which are brought to its notice in the event that an application was made to both the Certification Officer and the High Court, whether by the same applicant or not".
- It is clear to the tribunal on reading the decision of the Certification Officer dated June 2006 that in determining the issue under Article 90A (2) (b) he had felt it necessary to consider whether the claimant's removal from office and membership of the South Down/South Armagh branch by the National Officials was as a response to the claimant's conduct in relation to the Union's actions taken with regard to Mr Arbuckle. The Certification Officer heard two days evidence on this and other matters. That issue and the other matters detailed at paragraphs 38 and 39 of this decision were determined in the negative by the Certification Officer.
- It was said by Lord Keith of Kinkel in Arnold that "Issue estoppel may arise where a particular issue forming a necessary ingredient in a cause of action has been litigated and decided and in subsequent proceedings between the same parties involving a different cause of action to which the same issue is relevant one of the parties seeks to re-open that issue". Is the decision of the Certification Officer, that the claimant's removal from office and membership of the South Down/South Armagh branch was not related to the claimant's conduct with regard to Mr Arbuckle's dealings with the respondent union and the Certification Officer, a determination of those issues which the claimant now seeks to relitigate, they having been raised and determined as a fundamental step in arriving at the earlier judicial decision by a court of competent jurisdiction?
- The Certification Officer is clearly a body established by statute to determine in a judicial manner those matters devolved to his jurisdiction. The only source of appeal from the decision of the Certification Officer lies to the Court of Appeal on a point of law by virtue of Article 69 of the 1995 Order. The role of the Certification Officer was described in the House of Commons during debate on 16 February 1993 as "the independent certification officer who polices the relevant legislation and to whom complaints about breaches of union law must be brought…" In Crown Estate Commissioners v Dorset County Council [1990] 1 All ER 19 the High Court held that there was no reason, subject to certain safeguards, why the decision of an inferior tribunal, with limited jurisdiction and a strictly limited function, should not be capable of creating estoppel in proceedings before a superior court. The decision of the Certification Officer was fully reasoned and set within the context of the judicial powers devolved to him. The tribunal was satisfied that the decision of the Certification Officer on the issues placed before him was a decision of a court of competent jurisdiction as set out by Lord Keith of Kinkel in Arnold.
- The various decisions on the application of the doctrine of "issue estoppel" in particular that enunciated by Lord Keith of Kinkel in the Arnold case would support the contention that while the claimant is not prevented from proceeding with his complaint under Article 33, so far as a particular issue forming a necessary ingredient in a cause of action has been litigated and decided and the same issue is relevant to the subsequent proceedings then unless there is exceptional circumstances neither party can, in the subsequent litigation between one another assert evidence to the contrary of the decision of the earlier court of competent jurisdiction. The tribunal considered whether special circumstances apply in this complaint.
- The tribunal considered whether the provisions of the legislation at Article 30(5) itself could be considered special circumstances. The tribunal noted that where the 1995 Order, provides a multiple source of remedy for a breach of certain rights, such as in Part II and Part III of the Order, the High Court is required by specific statutory provision to "have due regard to any declaration, reasons or observations" of the Certification Officer "which are brought to his notice". The tribunal considered what "due regard" could mean. The Oxford Dictionary would suggest it means, "give appropriate weight". The words "due regard" are clearly not as strong as asserting that the High Court was bound by "any declaration, reasons or observations" of the Certification Officer. It appeared to this tribunal had the policy makers or the legislative draftsman intended that the doctrine of "issue estoppel" was to apply in such circumstances, such provision would clearly be made.
- The tribunal was unsuccessful in its search to ascertain the rationale behind the wording of the various provisions in Parts II, III and IV of the 1995 Order. It was clearly policy in Parts II and III that there could be multiplicity of proceedings on the same issue, whether by the same or different parties. That rationale itself is in direct contradiction of the rationale behind the doctrine of "issue estoppel". It appeared to the tribunal that to have the doctrine of issue estoppel apply to any subsequent proceedings in the High Court would nullify the reason for the provision of similar proceedings in the High Court as well as before the Certification Officer. Instead this tribunal concluded that the insertion of such a provision where duality of jurisdiction is provided by the statute leads to the conclusion that it was not intended that "issue estoppel" would apply in a subsequent High Court application, where an earlier application had been made to the Certification Officer but it could apply where the High Court considered it appropriate.
- Jurisdiction for "unjustified discipline" lies only with the Industrial Tribunal. There is no additional jurisdiction provided for by the 1995 Order to the Certification Officer or to the High Court for an alleged breach of the right not to be subjected to unjustified discipline. Lord Keith of Kinkel in Arnold quoted from Wigram V – C in Henderson v Henderson, 3 Hare 100 at page 947 "All estoppels are not odious but must be applied so as to work justice and not injustice and I think the principle of issue estoppel must be applied to the circumstances of the subsequent case with this overriding consideration in mind".
- Examples of special circumstances which have been referred to in the past include "there become available to a party further material relevant to the correct determination of a point involved in the earlier proceedings, whether or not that point was specifically raised and decided, being material which could not by reasonable diligence have been adduced in those proceedings" – Lord Keith of Kinkel in Arnold. Lord Lowry in the same case appeared to consider that the circumstances of the case would have to be "special and indeed exceptional" to prevent the doctrine of issue estoppel applying where the decided issue was crucial in the first action and remained crucial in the second…it was therefore equivalent to the decision itself and was an equally great obstacle to a claim in the second action". In Sheriff v Klyne Tugs (Lowestoft) Ltd 1999 IRLR 481 the Court of Appeal held that the differences between alternative jurisdictions for alleged loss suffered arising from termination of employment could not constitute special circumstances. Special circumstances may arise if a party has made a genuine mistake of fact – Bezant v Tertiary Enterprises EAT 0348/04.
- The tribunal considered the contentions of the parties at the hearing on 6 December 2005 before the Certification Officer as recorded by him in the decision dated June 2006. The tribunal noted that the claimant submitted that the decisions of Dennison v Unison and Ryan v Unison, showed that the question of motive for the actions of the respondent in removing him from office and membership of the South Down/South Armagh Association was within the Certification Officers jurisdiction and that Article 90A (2) (b) was not relevant only where disciplinary procedures had been wrongly applied. It appears to the tribunal that the claimant actively sought the consideration by the Certification Officer of the question whether the claimant's removal from membership and office of the South Down/South Armagh association was related to his assertions and actions as a representative and a witness in the disciplinary and Certification Officer hearings regarding Mr Arbuckle. The Certification Officer heard two days evidence on this and the other matters.
- The Court of Appeal stated in Sajid v Sussex Muslim Society [2002] IRLR 113 :- "In the absence of special circumstances, it is unjust for a party who has spent time and money in obtaining a final determination of a claim or an issue in a claim to be faced with fresh proceedings from the other party seeking to re-litigate the same cause of action or the same issue".
- In Friend v Civil Aviation Authority & Others [2001] EWCA 1204 Lord Justice Simon Brown highlights "as has been said in earlier authority, the concept of issue estoppel is a useful tool, to which the court can have recourse in order to prevent issues being relitigated in circumstances in which to relitigate them would be abusive. But it is a tool, which must be used with caution. It is essential that, before a claimant is prevented from bringing his claim before the court on the ground of issue estoppel, the court must be satisfied after careful examination of all the circumstances that the issue on which he has to succeed in the claim which he seeks to bring is indeed the same issue as that which has been considered and decided in earlier proceedings".
- This tribunal is satisfied that Article 30 (5) is not "special circumstances" that rules out the doctrine of issue estoppel applying where the conditions set out in the case law apply. The tribunal concludes that there is no legislative provision contained in the 1995 Order, which prevents the doctrine of issue estoppel applying in a complaint presented before a tribunal when an issue, which has been decided in earlier proceedings involving the same parties, arises in the subsequent hearing of that complaint.
- To summarise the tribunal concludes that the claimant can proceed to a hearing with regard to his complaint under Article 30 (5) but so far as certain issues relevant to this complaint have been determined in the earlier proceedings before the Certification Officer, then to that extent the tribunal will be bound by those findings of the Certification Officer. The matters which appear from the complaint and submissions of the parties that have not been determined by the Certification Officer are (a) the alleged deprivation of loss and benefits, (b) removal of the claimant as a member of the Secondary Schools Consultative Committee of the Southern Education and Library Boards, and (c) the denial of any right to speak at a meeting of the Northern Ireland Executive Council in November 2004. It was not clear to the tribunal whether all or any of these matters would be linked to the matters already determined by the Certification Officer.
- The main issues which appear to this tribunal to arise in the complaint which have been determined by the Certification Officer and which could be relevant to the matters to be determined by a future tribunal are (a) that the claimant's expulsion from the South Down/South Armagh branch and transfer to another branch was an administrative and not disciplinary action within the rules of the Union, (b) the decision to remove the claimant from office and the branch was held by the Certification Officer not to be related to the claimant's involvement in the Jim Arbuckle case, (c) that the action in relation to branch membership and his removal from office was taken against the claimant because he had asserted the Union and some of its officials broke the requirements imposed by union rules and law was determined by the Certification Officer in the negative and lastly the Certification Officer having heard evidence from the claimant and his witnesses on the alleged conspiracy to remove the claimant from office ruled that he did not consider that "Mr Egan has shown with any acceptable degree of probability that there was an illegal conspiracy to remove him from office".
- Against the background of this decision detailed above the tribunal then considered the application of the respondent that an order should be made under Rule 20 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005. Article 20 (1) states that if a Chairman at a pre-hearing review considers that the contentions put forward by any party in relation to a matter required to be determined by a tribunal have little reasonable prospect of success, the chairman may make an order against that party requiring the party to pay a deposit of an amount not exceeding £500 as a condition of being permitted to continue to take part in the proceedings relating to that matter. However the Human Rights Act 1998 enshrines in domestic law the right of a litigant in the determination of any issue in respect of his civil rights or obligations to a hearing and determination of the issue by an independent and impartial tribunal. It appears to this tribunal that the decision of the tribunal that the doctrine of issue estoppel will apply in any future hearing of the complaint between these two parties can logically lead this tribunal only to the conclusion that such a decision will impact adversely on the prospects of a successful complaint by the claimant. In those circumstances the tribunal considered that it was not possible to determine in an independent and impartial manner the issue of whether or not the claimant's complaint had "little reasonable prospect of success". It appears to this tribunal the issue of whether or not a deposit order should be made under rule 20 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 should be referred to a differently constituted tribunal for a pre-hearing review on that issue alone. Accordingly this tribunal refuses to determine the second issue placed
before it on the ground that it would not be judicially appropriate for this tribunal to determine that issue.
Chairman:
Date and place of hearing: 26 March 2007, Belfast
Date decision recorded in register and issued to parties:
