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INDUSTRIAL RELATIONS (NORTHERN IRELAND) ORDER 1976 - SECT 39

39.(1) An employee who presents a complaint to an industrial tribunal that he
has been unfairly dismissed by his employer and that the reason for the
dismissal (or, if more than one, the principal reason) was that the employee

(a)was, or proposed to become, a member of a particular independent trade
union, or

(b)had taken, or proposed to take, part at any appropriate time in the
activities of a particular independent trade union of which he was or proposed
to become a member;

(2) An industrial tribunal shall not entertain an application under this
Article unless

(a)it is presented to the tribunal before the end of the period of seven days
immediately following the effective date of termination (whether before, on or
after that date); and

(b)before the end of that period there is also presented a certificate in
writing signed by an authorised official of the independent trade union of
which the employee was or had proposed to become a member stating that on the
date of the dismissal the employee was or had proposed to become a member of
the union and that there appear to be reasonable grounds for supposing that
the reason for his dismissal (or, if more than one, the principal reason) was
one alleged in the complaint.

(3) An industrial tribunal shall determine an application under this Article
as soon as practicable after receiving the application and the relevant
certificate, but shall, at least seven days before the date of the hearing,
give the employer a copy of the application and certificate, together with
notice of the date, time and place of the hearing.

(4) An industrial tribunal shall not exercise any power it has of postponing
the hearing in the case of an application under this Article except where the
tribunal is satisfied that special circumstances exist which justify it in
doing so.

(5) If on hearing an application under this Article it appears to an
industrial tribunal that it is likely that on determining the complaint to
which the application relates the tribunal will find that the complainant was
unfairly dismissed and that the reason for the dismissal (or if more than one,
the principal reason) was a reason mentioned in paragraph (1), the tribunal
shall announce its findings and explain to both parties (if present) what
powers the tribunal may exercise on an application under this Article and in
what circumstances it may exercise them, and shall ask the employer (if
present) whether he is willing, pending the determination or settlement of the
complaint

(a)to reinstate the employee, that is to say, to treat the employee in all
respects as if he had not been dismissed; or

(b)if not, to re-engage him in another job on terms and conditions not less
favourable than those which would have been applicable to him if he had not
been dismissed.

(6) In paragraph (5) "terms and conditions not less favourable than those
which would have been applicable to him if he had not been dismissed" means,
as regards seniority, pension rights and other similar rights, that the period
prior to the dismissal shall be regarded as continuous with his employment
following the dismissal.

(7) If the employer states that he is willing to reinstate the employee, the
tribunal shall make an order to that effect.

(8) If the employer states that he is willing to re-engage the employee in
another job and specifies the terms and conditions on which he is willing to
do so, the tribunal shall ask the employee whether he is willing to accept the
job on those terms and conditions, and

(a)if the employee is willing to accept the job on those terms and conditions,
the tribunal shall make an order to that effect; and

(b)if the employee is unwilling to accept the job on those terms and
conditions, then, if the tribunal is of the opinion that the refusal is
reasonable, the tribunal shall make an order for the continuation of his
contract of employment, but otherwise the tribunal shall make no order under
this Article.

(9) If on the hearing of an application under this Article the employer fails
to attend before the tribunal or he states that he is unwilling either to
reinstate the employee or re-engage him as mentioned in paragraph (5) the
tribunal shall make an order for the continuation of the employee's contract
of employment.

(10) In this Article

"appropriate time" has the meaning assigned to it by Article 22(5);

"authorised official", in relation to a trade union, means an official of the
union authorised by the union to act for the purposes of this Article;

(a)where the employee's contract of employment was terminated by notice
(whether given by his employer or by him), to the date on which the employer's
notice was given; and

(b)in any other case, to the effective date of termination.

(11) A document purporting to be an authorisation of an official by a trade
union to act for the purposes of this Article and to be signed on behalf of
the union shall be taken to be such an authorisation unless the contrary is
proved, and a document purporting to be a certificate signed by such an
official shall be taken to be signed by him unless the contrary is proved.

© 1976 Crown Copyright

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