THE INDUSTRIAL TRIBUNALS

CASE REF:	3483/01

APPLICANT:		William Kennedy

RESPONDENTS:		1.	J A Humphrey, T/A Humphrey Agriculture
				2.	Nicobrand Limited

DECISION
The unanimous decision of the tribunal is that the applicant’s claims for unfair dismissal, constructive dismissal and breach of contract are dismissed.

Appearances:
The applicant appeared in person.
The respondent was represented by Ms M Anderson, Peninsula Business Services Limited.

1.	These reasons are given in extended form.

2.	The applicant claimed unfair dismissal, breach of contract and constructive dismissal.  The respondents denied the applicant’s claims.

3.	The tribunal made the following findings:-

(a)	The applicant’s employment began on 2 January 1984 with the Nicobrand Company.  In January 1998 the insecticide division was transferred to the first respondent.  He was the manager of the insecticide division.  There was not any change to the applicant’s terms and conditions of employment or interruption of his employment and his job did not change.  The second respondent did not employ the applicant and it is dismissed from these proceedings.

(b)	On 31 July 2001 the respondent notified the applicant that he was to be made redundant with his 12 weeks’ notice to commence on 1 August 2001.  The respondent did not require him to work his notice.  The effective date of termination was 24 October 2001.

The minutes of the meeting of 23 July 2001 suggest that working his notice was a live issue.  The letter of dismissal supports that construction.

(c)	Redundancy is a reason that can render a dismissal fair [Article 130 of the Employment Rights (Northern Ireland) Order 1996].

(d)	There was a redundancy situation in the insecticide division of the respondent’s business.  In so concluding the tribunal was influenced by the following matters:-

(i)	There was a reduction in the pesticide business, ie a reduction in orders.

(ii)	The applicant accepted this was the situation.

(iii)	The requirements of the business had ceased or diminished or were expected to cease or diminish [Article 174 of the Employment Rights (Northern Ireland) Order 1996].

(iv)	The dismissal of the applicant was attributable to that state of affairs (Murray  v  Foyle Meats [1999] ICR 174).

(e)	There was adequate time for consultation regarding redundancy that began on 23 July 2001 and ended on dismissal on 24 October 2001.  The respondent did engage in consultation with the applicant from 23 July 2001.

(f)	It was reasonable for the respondent to limit the pool for selection to the applicant.  The applicant was the major cost in the insecticide division.  There was only one other person employed in that division.  The other person’s redundancy would not have achieved the savings the respondent required.

(g)	Though potential other jobs were discussed with the applicant suitable alternative employment was not available.  The job as a chemical engineer with Nicobrand Limited was not available as a suitable alternative job as this was an independent company not owned by the respondent or not part of the respondent’s associated companies.  The applicant made it clear that he wanted a managerial job and not an operator’s job in the respondent’s associated companies.

(h)	The respondent’s dismissal of the applicant by reason of redundancy was not unfair.  Accordingly the applicant’s claim for unfair dismissal is dismissed.

(i)	The applicant’s claim for constructive dismissal is dismissed as the respondent dismissed the applicant for redundancy.

(j)	The applicant’s claim for breach of contract is dismissed as there was not a breach of contract in relation to the duration of the applicant’s employment.  On the applicant’s own evidence the promise of a job with the respondent was while the business remained profitable.  The insecticide business had ceased to be profitable.

Chairman:

Date and place of hearing:		8, 9 April, 30 June, 1 and 9 July 2003, Belfast

Date decision recorded in register and issued to parties: