THE INDUSTRIAL TRIBUNALS 

CASE REF:	162/03

APPLICANT:	Neil Allan Jones

RESPONDENTS:	1.	Lieutenant Colonel Roberts
			2.	Ministry of Defence

DECISION ON A PRELIMINARY ISSUE

The unanimous decision of the tribunal is that it did not have jurisdiction to entertain the applicant’s complaint of unfair dismissal having regard to the provisions of Articles 236 and 237 and Schedule 2 Part 2 Paragraph 12 of the Employment Rights (Northern Ireland) Order 1996.

Appearances:
The applicant did not appear and was not represented.
The respondents were represented by Mr Peter Caul, Barrister-at-Law instructed by The Crown Solicitor.

1.	The decision of the tribunal is given in summary form.

2.	The applicant was employed by The Ministry of Defence as an army chef and was dismissed from his employment as an army chef.

3.	The respondents referred the tribunal to Articles 236 and 237 of the Employment Rights (Northern Ireland) Order 1996 (hereinafter called “the 1996 Order”).  Article 236 gives Crown employees rights under the various parts of the 1996 Order including Part XI being the part dealing with unfair dismissal.

4.	Article 237 states that the aforesaid Article 236 shall apply to persons serving as members of the naval, military or airforces of The Crown but subject to certain further provisions of the 1996 Order.  Again Part XI with certain exceptions is brought into effect for naval, military or airforce members of The Crown.  However, these Articles must be read in conjunction with Schedule 2, Part 2 of the 1996 Order where in Paragraph 12 it is stated :-

“(1)	If Article 10 of the Industrial Relations (Northern Ireland) Order 1993 has not come in to operation before they come in to operation of this Order this Order shall have effect until the relevant commencement date as if for Article 237 there were substituted -

	“Armed forces
237.  Article 236 -

(a)	does not apply to services as a member of the naval, military or airforces of the Crown, but

(b)	does apply to employment by an association established for the purposes of Part VI of the Reserve Forces Act 1980.”

5.	The reference in sub-paragraph (1) above to the relevant commencement date refers to any Order appointing a commencement date for Article 10 of the 1993 Order.  No such commencement date has ever been ordered.  In the event of no such commencement date having been ordered then the reference to the relevant commencement date in (1) above is under Part (2) of Article 12 to be such date as The Department of Economic Development (defined in the 1996 Order) shall appoint.  Again no commencement date has been so appointed and therefore Part XI of the 1996 Order does not apply to a member of the armed forces.  When eventually such commencement Order is passed then the relevant provisions will fall in to place automatically.  At the present time however these statutory revisions are not in place and therefore a member of the armed forces has no rights to compensation for unfair dismissal under Part XI of the 1996 Order. 

6.	Although the applicant did not raise the matter in his application to the tribunal there was a hint that the reason for dismissal was a disability that affected the applicant’s ability to perform his duties.  The tribunal considered the applicant’s position under the Disability Discrimination Act 1995 and holds that the applicant would have no claim under the Disability Discrimination Act as Section 64(7) states “it is hereby declared (for the avoidance of doubt) that Part II does not apply to service in any of the naval, military or airforces of the Crown.”  Part II of the Disability Discrimination Act 1995 is the part dealing with discrimination in employment.

The tribunal holds that the applicant is precluded by the legislation from bringing proceedings in the tribunal for unfair dismissal or for disability discrimination.

7.	The tribunal were informed by the respondents that the respondents had written to the applicant’s solicitors informing the applicant of the legislation relating to the applicant’s claims and the applicant’s solicitors had replied to the Crown Solicitor’s Office stating that they had so informed the applicant and were given no further instructions.  The solicitors had come off record and the applicant proceeded in person.  Despite the fact that the applicant was informed that he had no case due to the state of the legislation he persisted in his application to the tribunal.  The tribunal therefore under Regulation 14 of the Industrial Tribunal (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2004 hold that the applicant in conducting the proceedings and continuing with them in the light of the information given to his solicitor, acted unreasonably in proceeding with this claim and hold that the applicant should pay the sum of £150.00 towards the costs incurred by the respondents.

Chairman:

Date and place of hearing:	4 May 2004, Belfast.

Date decision recorded in register and issued to parties: