MR J CLARKE v NATIONAL UNION OF MINEWORKERS [2002] UKEAT 0598_01_2405

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 0598_01_2405Case No Appeal No. EAT/0598/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR J CLARKEAPPELLANTNATIONAL UNION OF MINEWORKERSRESPONDENT
Before
Mr Justice LindsayDate 24 May 2002
[1]APPEARANCES For the Appellant THE APPELLANT In Person For the Respondent MR ARTHUR SCARGILL (President) National Union of Mineworkers National Union of Miners Miners' Offices Hudderfield Road Barnsley S70 2LS MR JUSTICE LINDSAY (PRESIDENT) We have before us the appeal of Mr J Clarke in the matter Clarke v The National Union of Mineworkers . It is an appeal against the decision of the Certification Officer, Mr E G Whybrew, that was handed out on 22 March 2001.[2]The complaint made that was ruled upon by the Certification Officer was a matter that he was required to deal with under Section 108(A) of the Trade Union and Labour Relations (Consolidation) Act 1992. At Sub section 6 of that Act and that section one finds this:
"An application must be made: (a) within the period of six months starting with the day on which the breach or threatened breach is alleged to have taken place or (b) if within that period any internal complaint procedure of the Union is invoked to resolve the claim within the period of six months starting with the earlier of the days specified in Sub section 7."
And then there are more particular directions in Sub section 7.

(B) Sub section 1 of that says:

"The Certification Officer may refuse to accept an application under section 108A unless he is satisfied that the applicant has taken all reasonable steps to resolve the claim by the use of any internal complaints procedure of the union"
And lastly, of the statutory provisions relevant today, is s108C:
"An appeal lies to the Employment Appeal Tribunal on any question of law arising in proceedings before or arising from any decision of the Certification Officer under this Chapter."
[3]Mr Clarke was aggrieved because in his view the Union had not complied with its own Rule 29H. That says this:
"No member of the Union shall sit as a member of the National Disciplinary Committee or preside at one of its meetings if that member is or has been personally involved in any matter giving rise to the complaint. If the application of this Rule makes it impossible to secure a quorum of the National Disciplinary Committee the NEC shall have power to nominate as many members of the Union, being eligible under paragraphs 29A and 29B of this Rule, as will create a quorum to be temporary members of the National Disciplinary Committee. Neither shall any person act as secretary to the National Disciplinary Committee if he or she is or has been personally involved in any matter giving rise to the complaint."
[4]Mr Clarke, as I say, felt aggrieved because in his view that Rule had not been complied with by the Union and he approached the office of the Certification Officer before any formal proceedings were begun and there was a degree of informal and then, perhaps, more formal discussion between him and either Mr Whybrew himself or his officers to which led to the precise complaint, as the Certification Officer understood it, being formulated. The eventual complaint that was actually ruled upon by the Certification Officer was this:
"The complaint was that the NUM had breached its rules in respect of one matter. This was that the personnel dealing with Mr Clarke's previous individual complaint to the Union and that made by his branch were also involved in the disciplinary procedure taken against him by the Union and that this was contrary to NUM Rule 29.H."
[5]There is at least a suspicion that the way that complaint was framed failed truly to encapsulate all the aspects of what Mr Clarke had intended to complain about. It could be that there was some misunderstanding between Mr Clarke on the one hand and Mr Whybrew or his officers on the other. But that was the complaint that Mr Whybrew formally ruled upon and it is therefore the only complaint as to which there is a decision and, in turn, the only complaint as to which there can be an appeal. We would be concerned that if it was the case that Mr Clarke, in his discussions with Mr Whybrew or his officers, had somehow misled himself as to the adequacy of the complaint as the Certification Officer framed it. One can see that there is a possibility, when there are formal or informal discussions as to the nature of the charge that is to be ruled upon, that a situation can arise in which, ultimately, the complainant's charges are framed other than as he would himself have wished. But, unfortunately, as it seems to us, Sub section 6 of Section 108A is absolute in its terms about the period of time of six months. There is no provision of flexibility.[6]If it is the case that the complaint as ruled upon by the Certification Officer is not exactly as Mr Clarke would have wished it to be than ordinarily one would say "Complain afresh" but here Mr Clarke would be likely to run into difficulty with the six months rule. If Mr Clarke does, indeed, wish to make a complaint that there was truly a misunderstanding between him and the Certification Officer as to exactly what the complaint he was making should have been and that the complaint as the Certification Officer ruled upon was not the complaint that Mr Clarke truly wished to have ruled upon, then, as it seems to us, on the footing that 108A Sub section 6 seems to confer no ability to have the time extended, the case would be that Mr Clarke would need (and we are certainly not giving advice but there might here be a remote possibility) to consider the possibility of seeking a judicial review of the Certification Officer's decision that the complaint that he was listening to was as he had framed it. That would not be a matter for this Tribunal and we mention it only is a possible way out of the difficulties that arise if it is truly the case that the complaint as framed by the Certification Officer was not truly the complaint which Mr Clarke wished to have ruled upon.[7]However, looking instead, therefore, at the decision of the Certification Officer on the complaint as he had framed it, he did not elect to make any declaration and to that extent Mr Clarke failed. The last paragraph of the Certification Officer's decision is:
"It is for these reasons that I find there was no breach of NUM Rule 29H and dismiss this complaint."
[8]That led to a Notice of Appeal from Mr Clarke. I should say that Mr Clarke, like the Union, has not taken legal advice or least does not appear to be legally represented before us. Mr Clarke's Notice of Appeal is conspicuously homemade and paragraph 4 says:
"The Appellant's grounds of appeal are:"
And then Mr Clarke has written in:
"The Certification Officer did not fully understand the part M Fellows and D O'Connor played in the issues please see letter enclosed which gives details of my appeal."
And then that letter, which is of 18 April, says, amongst other things, that:
"Mr Whybrew did not fully understand my complaint against the NUM under 29H. Ms Fellows should have played no part in any of the issues. It is quite clear she did see her report enclosed which she submitted to the Unions NEC from which they decided to discipline me. She should not have had anything to do with any matter arising from my complaint against the NUM's National President."
[9]So, that is part of his grounds of appeal and that concerns Ms Fellows. There is another part that concerns Mr O'Connor because he continues:
"Also Mr O'Connor dealt with the Union's complaint against me and also dealt with my individual complaint against the NUM's National President. Both Ms Fellows and Mr O'Connor under the NUM's rule 29H should not have dealt with the issues surrounding my complaint."
[10]Those are two parts of the appeal that Mr Clarke makes but before we get on to that there is a point that has been raised by Mr Scargill for the Union. He says that it is quite plain that Mr Clarke had not exhausted the internal procedures of the Union before going to the Certification Officer and therefore should not, in any event have been allowed to have had his complaint heard. However, section 108B, as we earlier cited, has in it the word 'may'. The Certification Officer may refuse to accept an application unless he is satisfied that the Applicant has taken all reasonable steps and so on. It is plainly a discretion that the Certification Officer has and it follows from the way that the statute is framed that one cannot say that simply because all internal channels have not first been used that the Certification Officer must not entertain the claim. It is a discretion and in this case, the Certification Officer specifically addressed the discretion and decided that notwithstanding that Mr Clarke had not exhausted all internal procedures, nonetheless he would hear the complaint. There is no cross appeal from the Union on that point and so it cannot exist as a point by which to attack Mr Clarke, nor does it arise on Mr Clarke's appeal.[11]But, dealing with the two separate points which the Notice of Appeal does raise, that is to say the Ms Fellows' point and the Mr O'Connor's point, Ms Fellows is referred to by the Certification Officer. He draws attention in his paragraph 2.1 to the fact that she was secretary to the National Disciplinary Committee. He says that the Barnsley Road branch wrote to Ms Fellows to indicate that it considered there would be a conflict of interest if Ms Fellows actioned the complaint because of her position as secretary to the National President and as secretary to the National Disciplinary Committee. The Certification Officer says this:
"In her response of 4 February 2000, Ms Fellows advised the Branch, via Mr Clarke, that the matter would be referred to Mr Frank Cave, National Vice-President, for him to action in accordance with the union rule."
And a little later in 2.2 the Certification Officer says this:
"On 5 April 2000, Mr Clarke wrote to Mr Scargill alleging that as Margaret Fellows had responded to his Branch's complaint in her capacity as Secretary to the National Disciplinary Committee, there would be a conflict of interest if she were to take similar action in relation to his personal complaint against him (Mr Scargill)."
[12]So far as one can see from the findings of fact the only step that Ms Fellows took of any relevance was that she passed the matter to Mr Frank Cave for him to act, recognising that she could not act herself. It seems to us that that was an appropriate step for her to have taken and we cannot see that complaint about Ms Fellows' role is open to Mr Clarke. It has to be remembered that we can only deal with points of law. So far as the fact is found that Ms Fellows passed the matter to Mr Cave and, so far as one can see from the decision, that she did nothing else of relevance, there are findings of fact which we cannot look behind. We have to accept them as they are.[13]More specifically for a moment, Mr Clarke does draw attention to a letter or, as he calls it, a report that Ms Fellows wrote on 11 May 2000. It is headed 'National Executive Committee' Thursday 11 May 2000, Complaint by Barnsley Road Transport Branch Against A Scargill, National President. Before us Mr Clarke has complained that plainly and not withstanding that Ms Fellows had said that she had passed the matter to Frank Cave, here she was doing something after 4 February 2000 was therefore infringing Rule 29H. But we have read the 1¾ pages of the so called report. It is completely untendentious and innocuous. It seems to us no more than an explanation of why it is that she was, in effect, dropping out and had passed the matter to another. We see no reason why the Certification Officer need have made any specific findings of fact about it. It plainly is a merely administrative letter setting out the brief history of the matter and cannot be said to be anything relevant to a breach of 29H.[14]So much for the Ms Fellows side of the complaint. As to the O'Connor side of the matter, the Certification Officer specifically ruled upon Mr O'Connors' position. At his paragraph 2.5 he talks about the Disciplinary Hearing on 3 July that had taken place. In addition to Mr Clarke there were eight people present. I should add that Ms Fellows was not one of them. Mr O'Connor, however, was one of them and in paragraph 2.18 the position of Mr O'Connor was set out as follows:
"The position of Mr O'Connor is less straightforward. He replaced Mr Hardman as Acting Secretary to the National Disciplinary Committee. Whether or not he took part in reaching the decision to suspend Mr Clarke is relevant. Rule 29.H is clear in that he was not qualified for this role if he had been " personally involved in any matter giving rise to the complaint"
. In the evidence before me, the only involvement of Mr O'Connor prior to the disciplinary hearing on 3 July was as the person who signed a letter to Mr Clarke on 13 June. This letter told Mr Clarke that his personal complaint against the National President would not be actioned until the NEC's complaint against Mr Clarke had been dealt with. I do not judge that action to be " involvement in any matter giving rise to the complaint ". At worst, it is involvement in decisions about the procedures to be followed in handling overlapping complaints. As such, it did not debar Mr O'Connor from acting as Secretary to the National Disciplinary Committee." That, as it seems to us, is a decision of fact and to that extent cannot be challenged. Certainly we see no error of law in that part of the decision.[15]It therefore follows as, we see it, that both limbs of Mr Clarke's appeal must fail. We are, as we mentioned earlier, disturbed that there is a possibility that the complaint ruled upon was not the complaint that Mr Clarke would have truly wished to have been ruled upon. We have no power to deal with such a possibility and, if Mr Clarke does need to consider matters further, well then, he will be well advised, if at all possible, to seek assistance from qualified lawyers. The only suggestion we can make, if it is appropriate to make any at all, is judicial review in the way that we mentioned earlier. It is quite plain that Mr Clarke feels strongly that he has not had a truly independent series of union decisions against him. But we are not concerned with that general issue; simply looking at the question which is before us - which is whether there is any error of law in the Certification Officer's decision - we have found none and, more particularly, we have found none of any category which is invoked in her informal Notice of Appeal. Accordingly we must dismiss the appeal.