DECISIONS OF THE CERTIFICATION OFFICER ON APPLICATIONS MADE
UNDER SECTION 108A OF THE TRADE UNION AND LABOUR
RELATIONS (CONSOLIDATION) ACT 1992
IN THE MATTER OF COMPLAINTS MADE AGAINST THE
MANUFACTURING SCIENCE AND FINANCE UNION
APPLICANT MS S MICHIE
Date of Decisions: 14 March 2001
DECISIONS
1.1 Under section
108A(1) of Part I of the Trade Union and Labour Relations (Consolidation)
Act 1992 (as
amended) ("the 1992 Act") a person who claims that there has been a
breach
or threatened
breach of the rules of a trade union relating to any of the matters mentioned
in
subsection (2) may
apply to me for a declaration to that effect.
1.2 Section 108B of the
Act empowers me to make such enquiries as I think fit and, after giving
the applicant and
the union an opportunity to be heard, to make or refuse to make the
declaration asked
for. Whether or not I make the declaration sought, I am required to give
the reasons for my
decision in writing.
1.3 Where I make a declaration under section
108B I am required, unless I consider to do so
would be
inappropriate, to make an enforcement order on the union. My enforcement order
is required to
impose on the union one or both of the following requirements -
(a) to take such steps to remedy the breach,
or withdraw the threat of a breach,
as
may be specified in the order;
(b) to abstain from such acts as may be
specified with a view to securing that a
breach or threat of the same or a similar kind does not occur in future.
1.4 On 8 May 2000 I
received complaints from Ms Michie, a member of the Manufacturing
Science and Finance
Union ("MSF"/"the union"). Ms Michie was President of the
London
Region of MSF. She
had been suspended from that office in November 1999 and
subsequently, in
April 2000, from the offices of National Executive Council member,
Regional Council
delegate. Branch Chair, workplace representative and Annual Conference
delegate. Ms Michie
alleged that "...in suspending her from the office of President of the
London Region of MSF
and subsequently from all offices within the union, MSF had
breached the union's
disciplinary rules."
1.5 Ms Michie's
allegations were accepted, by me, as complaints under section 108A( 1) of the
1992 Act that the
rules of the union had been breached relating to matters mentioned in
subsection
108A(2)(b) of the Act, namely disciplinary proceedings by the union. It was
agreed by the
parties concerned that Ms Michie's complaints covered five areas as follows: -
(1) That her suspension from all offices of
the union was beyond the powers of the
union;
(2) That there was a breach of rule in that
during an investigation she was not informed
of any
charges made against her;
(3) That her appeal against her suspension
should have been dealt with in accordance
with rule
and should not have been held in abeyance;
(4) That the union failed to comply with a
Conference Motion in its disciplinary
proceedings
against her;
(5) That the union did not have sufficient
evidence to warrant the disciplinary action that
it took
against her.
1.6 I investigated the complaints in
correspondence and, on 19 December 2000, held a formal
hearing of argument
on the complaints. The union was represented by Mr C Ettinger oflrwin
Mitchell
Solicitors. Mr Ettinger called Mr C Crane, a member of the National Executive
Council ofMSF as a
witness. Ms Michie attended the hearing and was represented by Mr
B Todman. Mr Todman
had acted as Ms Michie's representative at meetings of the union's
disciplinary panel.
1.7 After careful
consideration of the documents, evidence, arguments put to me and the relevant
rules of the union:
-
"I
declare that the Manufacturing, Science and Finance Union was in breach of Rule
14(c) and
Rule 17 in that the union failed to allow Ms Michie's appeal against her
suspension to
be dealt with under rule."
The reasons for my
decision are set out below.
1.8 Also for the
reasons set out below I refuse to make declarations sought in respect of the
other
alleged breaches of
union rules.
1.9 I believe that, in view
of the denial of Ms Michie's right to appeal against her suspension
and, in accordance
with the requirements of section 108B of the Act, I should issue an
enforcement order.
So by agreement with the parties (but such agreement being without
prejudice to the
right of appeal to the Employment Appeal Tribunal), I issue the following
order to the
Manufacturing, Science and Finance Union;
"That
all suspensions in respect of Ms Michie be lifted from the date of this
decision
until such
time as an Appeals Court has considered the question of these suspensions
under Rule
17. Such an Appeals Court should be properly constituted under rule to
hear Ms
Michie's appeal within two months."
For avoidance of
any doubt the above order should not be taken to require that the
disciplinary
proceedings already commenced should be deferred until after the Appeals Court
has dealt with Ms Michie's appeal against
suspension. For the further avoidance of doubt the
material to be
regarded as relevant to the Appeals Court hearing shall be confined to material
available at the
time the appeal was lodged.
disciplinary
proceedings. Therefore by the time of the first hearing of the Investigation
Committee on 21
January 2000, I am satisfied that Ms Michie had been given sufficient
information to
allow the investigation to proceed. It is a pity that none of the officers
concerned availed
themselves of the opportunity to meet with the Investigation Committee
but, in. any event,
I find that the union has not breached any rules in not setting out charges
at the time of the
investigation.
3.6 I now deal with the
complaint that the union failed to deal with Ms Michie's appeal under
Rule 17 against her
suspension. I have to determine whether the NEC' s decision to defer her
appeal was
reasonable. The union's rules set out a detailed procedure to be followed in
disciplinary
procedures. Rule 17 b) provides the right of appeal in respect of allegations
that
the NEC has acted
ultra vires the rules. Ms Michie made such an appeal and, in accordance
with the rule, the
NEC considered it. However the NEC, using Rule 3 d), decided to hold all
such appeals in
abeyance until the disciplinary procedures had been completed. The
argument being that
there was a possibility that the union procedures, if the appeal was
heard, would be
prejudicial to the applicant's rights.
3.7 I am satisfied that the rules of the union
clearly provide for the right of appeal and that right
of appeal, in the
matters of suspension, are set out in both Rule 14 c) and Rule 17. The union
have accepted that
Rule 3 d) did not permit the NEC to override clear provisions in the rule
book (para. 2.36).
The rules on appeal are quite clear. The right provided by those rules is
meaningless if the
union has a right to overrule it sine die. In deferring the appeal the NEC
were effectively
rejecting that appeal. Once the disciplinary procedures had been completed,
the individuals
would either be cleared or would face a penalty. In either instance an appeal
against the
original suspension during the investigation would be academic.
3.9 The right of appeal
against suspension is set out in Rule 14 c) and Rule 17 and neither of
these rights have
been permitted. Both rules dealing with suspension envisage a right of
appeal to a body
consisting of lay members. Those members would be better positioned to
judge whether, in
the context of the union's overall practice, suspension was a reasonable
response. The
decision of the NEC to defer the appeal was in effect a decision not to allow
the appeal to
proceed. I therefore find against the union in that, by postponing Ms Michie's
appeal until all
relevance of that appeal had been lost, the union effectively denied her the
right of appeal.
3.10 One further point
arises for my consideration. I have stated that at the time the decision to
suspend was made
there was no breach of rule. However a suspension is a continuing action
and part of its
ongoing validity is by reference to the rule book as a whole and the right of
appeal. Indeed rule
14(c) specifically refers to appeal and describes suspension as "pending
an appeal".
The rule book further states that an appeal shall normally be heard within two
months. By denying that appeal the
suspension can no longer be regarded as being
legitimately within
rule.
3.11 It is for these
reasons I find MSF has breached Rule 14(c) and Rule 17(b) of its rule book.
3.12 I have given this
matter careful consideration and, in view of the denial of what I believe is
Ms Michie's clear
right to an appeal against her suspension, I have made the enforcement
order on the union.
At the hearing Mr Ettinger indicated that the MSF would respond
positively should I make a declaration and
issue an enforcement order.
Certification Officer