Faulkner,Giboney vs Victim Support Northern
| Jurisdiction | Northern Ireland |
| Judgment Date | 20 November 2007 |
| Respondent | Victim Support Northern |
| Docket Number | 00879/06IT |
| Court | Industrial Tribunal (NI) |
THE INDUSTRIAL TRIBUNALS
CASE REF: 879/06
1033/06
1363/06
CLAIMANTS: Brenda Faulkner & Marilyn Giboney
RESPONDENT: Victim Support Northern Ireland
DECISION
The unanimous decision of the tribunal is that both of the claimants were unfairly dismissed by the respondent. The tribunal will now reconvene at the request of the parties to determine, firstly the matter of the respondent’s counterclaim against the second-named claimant, Mrs Giboney and, secondly, the matter of remedy in the case.
Constitution of Tribunal:
Chairman: Mr J V Leonard
Members: Ms McAuley and Mr Hall
Appearances:
The claimants were represented by Mr Bernard, Barrister-at-Law, instructed by Bogue & McNulty, Solicitors
The respondent was represented by Mr Sheridan of Peninsula Business Services
1. By claim form dated 7 July 2006 and received by the Office of the Tribunals on 14 July 2006 the first claimant, Ms Faulkner, claimed against the respondent unfair dismissal, victimisation on grounds of Trade Union membership and infringement of statutory rights. By response to that claim received by the Office of the Tribunals on 21 August 2006, the respondent confirmed that the claimant was an employee, that the claimant had been dismissed, and that an appeal hearing was then pending. It was indicated that the claim would be resisted. The details of the response further contended that the tribunal had no jurisdiction to hear the claim as the claimant had been dismissed whilst participating in unauthorised industrial action.
2. By claim form dated 9 August 2006 and received by the Office of the Tribunals on 11 August 2006 the second claimant, Mrs Giboney, claimed unfair dismissal, victimisation on grounds of the right to belong to a Trade Union and infringement of statutory rights. By response to that claim received by the Office of the Tribunals on 22 September 2006, the respondent confirmed that the claimant was an employee, that the claimant had been dismissed and that the matter was then subject to a pending appeal. In the further details of the response, the respondent contended that the tribunal had no jurisdiction to hear the claim as the claimant had been dismissed for participating in unlawful industrial action.
3. In addition to the foregoing, in the response to the second claimant’s claim, the respondent indicated a counterclaim against the second claimant in respect of overpaid salary. By response to that counterclaim, received by the Office of Tribunals on 14 November 2006, the second claimant, Mrs Giboney, requested the tribunal to strike out the counterclaim as she was still in correspondence with the respondent in relation to a number of issues and contended that the amounts quoted bore no relevance to the actual monies, if any, owed.
4. There had been a claim to the Fair Employment Tribunal which was dismissed following withdrawal and the tribunal does not need to further concern itself with that matter in this decision. By Order of the tribunal dated 23 February 2007, the tribunal ordered that the respective claims of the first and second claimants (and presumably the counterclaim on the part of the respondent against Mrs Giboney) should be considered and heard together.
5. At the outset of the hearing, a number of issues were raised regarding management of the case. It was agreed that the issue in respect of whether or not the claimants were engaged in unlawful industrial action at the time of their respective dismissals would be the subject of a preliminary determination by the tribunal as that related to the issue of whether the tribunal did or did not have jurisdiction to deal with the respective complaints of unfair dismissal. It was confirmed by both parties that if the tribunal were to determine that it did have jurisdiction (as neither of the claimants was deemed to be engaged in unauthorised industrial action at the time of each dismissal) the tribunal might then proceed to hear and to determine the substantive complaints in each case. Accordingly it was agreed that the tribunal would deal with the determination of that preliminary issue in respect of unauthorised industrial action. Then, as necessary, the tribunal might proceed to hear evidence and to reach a determination on the unfair dismissal complaints. As the case proceeded at hearing, it was clear that certain aspects of the evidence regarding the matter of remedy could not be placed before the tribunal in the time allocated for hearing. The matter of the respondent’s counterclaim is potentially connected with that. The tribunal in this decision therefore intends only to determine the issue of unfair dismissal in each case.
6. The tribunal had before it an agreed bundle of documents. Additional documents were adduced in evidence in the course of the proceedings. This was by agreement, save for a number of copy e-mails where admissibility in respect of such documentation was a significant issue raised in the course of argument on the part of the claimants’ representative. After some discussion, it was conceded by the claimants’ representative that the tribunal could have sight of these copy e-mails and no significant point was taken as to admissibility; rather it was submitted that the tribunal ought to attach no significant weight to these documents. In addition to this documentary evidence, the tribunal heard oral evidence from each of the respective claimants, and also from Ms Susan Reid, Ms Lisa Garvey and Mr Joe Dunne.
THE TRIBUNAL’S DETERMINATIONS OF FACT
7. In consequence of the oral and documentary evidence before it, the tribunal determined the following matters of fact, material to the issues in the case, on the balance of probabilities:-
GENERAL MATTERS OF FACT AND FINDINGS OF FACT IN RESPECT OF MS FAULKNER
(a) The respondent, Victim Support Northern Ireland (“VSNI”), is a government-funded organisation providing support services for victims of crime in Northern Ireland. The organisation’s headquarters is based in Anne Street, Belfast, and there are a number of Branches of VSNI throughout the Province, including Branches in Omagh and Lisburn. The Chief Executive Officer of VSNI is and was at the material time, Ms Susan Reid. At the material time the first claimant, Ms Faulkner, was Branch Manager of the Lisburn Branch of VSNI; the second claimant, Mrs Giboney, was Branch Manager of the Omagh Branch. The Chairperson of the Board of Directors of VSNI for part of the time that concerns the tribunal was Mrs Greta Mahood, that is to say up until late 2006 at which time Mr Joe Dunne was appointed as Chairperson of VSNI.
(b) In early Autumn of 2005, VSNI’s Branch Managers appear to have been, or to have become at that time, dissatisfied with a number of aspects of the organisation and the workload and these persons were concerned with the matter of general staff morale at Branch level. Coinciding with these concerns, there appears to have been a level of central management concern on the part of VSNI at what was seen to be inadequate adherence to standards of service. This matter, for example, appears had caused missed deadlines for criminal injuries compensation claims work. There was concern that this might cause a risk of exposure of VSNI to legal claims. At that time the VSNI Operations Manager was Ms Joanne McKenna. Ms McKenna at the time wrote to the Branch Managers, including the claimants, regarding applicable standards of service in respect of reporting and audits. She indicated that any failure in that regard might lead to disciplinary action being taken against individuals.
(c) In response to that, the AMICUS Trade Union entered into correspondence with Ms McKenna. At that time AMICUS was representing, it appears, a number of the Branch Managers. However, towards the end of 2005 the Trade Union, NIPSA, appears to have assumed responsibility for representation of a number of Branch Managers. By letter dated 29 December 2005, Mr Philip Boomer of NIPSA wrote to the VSNI Chairperson, Mrs Mahood, indicating that NIPSA represented a group of Branch Managers and alluded to the Branch Managers encountering problems due to what the letter referred to as being the Chief Executive’s, “high handed and dismissive management”. It was stated in the letter that in September 2005 the Branch...
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