Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2002/3897_01.html
Cite as: [2002] NIIT 3897_1, [2002] NIIT 3897_01

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THE INDUSTRIAL TRIBUNALS

CASE REF: 3897/01

APPLICANT: Mark McLister

RESPONDENT: JCP Securite (UK) Limited

DECISION

The unanimous decision of the tribunal is that the applicant was dismissed by the respondent upon grounds of redundancy. The tribunal does not find that the dismissal of the applicant upon those grounds was unfair nor was there unfair selection of the applicant by the respondent. Therefore the applicant's complaint is dismissed by the tribunal, without further Order.

Appearances:

Mr S Kelso, Barrister-at-Law, instructed by John F Hickey & Co, Solicitors, appeared on behalf of the applicant.

Mr B Stewart of the respondent company appeared on behalf of the respondent.

This is a reserved decision in summary form.

THE ISSUE

The applicant's complaint contained in his Originating Application dated 30 November 2001 was of 'unfair selection for redundancy'. The tribunal accordingly had to decide if the applicant's complaint was substantiated.

THE TRIBUNAL'S FINDINGS

In consequence of the written and the oral evidence adduced before it the tribunal found the following facts:-

The respondent was a company of limited liability engaged in the security and guarding industry. The respondent primarily carried on such business in Greater Belfast and in Counties Down and Armagh. One exception to the general geographical distribution of the respondent's business was a contract which the respondent held with Translink to provide property security and guarding duties at Coleraine Railway and Bus Station.

The applicant, who resided in Coleraine, County Londonderry, first commenced employment with the respondent in September of 1996 and was continuously employed as a security guard by the respondent until certain events occurred in August of 2001, causing the employment to come to an end.

On the evening of the 24 August 2001 the applicant was performing his guarding duties at the Coleraine Station site. There occurred some type of an altercation between the applicant and the Station Inspector, a Mr Steele. The applicant telephoned his line manager, Mr Leonard Robinson, late that evening to report that an incident had occurred. In the early hours of the following morning, 25 August 2001, Translink's Area Manager, a Mr McCleary, arrived at the Coleraine site. A further dispute arose and Mr Robinson received a further telephone call from the applicant. The respondent then arranged for Mr Robinson to go directly to the site. Mr Robinson arrived at the station site, still in the early hours of the morning of 25 August 2001, and he spoke with Mr McCleary. He later made an accusation that the applicant had been very abusive and had used foul language and was suspected of consuming alcohol. At that stage both the applicant and another security guard who was also on duty had left the site early. The applicant's guarding duties would ordinarily have continued until 6 am. that day.

Mr Stewart, the respondent's Manager, met with Mr McCleary to discuss the matter the following Monday, 27 August 2001. Mr McCleary made it quite clear to Mr Stewart that he did not want the applicant back working at the station site. It appears to have been the practice in this employer's operations, and in the security industry generally, that a contracting party, in this case Translink, could insist that a particular guard would not be tasked to work at that party's premises. The practice was then to deploy the guard to some different location. If that were not possible, the guard would be laid off until further work became available. Some 2 to 3 weeks after these events had occurred, for whatever reason, the respondent's guarding contract with Translink in respect of the Coleraine Station site was brought to an end by Translink.

The respondent did not seek to treat these events as giving rise to any disciplinary matter. The only relevant issue emerging therefore is that Translink would not permit the applicant to return to guarding duties at the station and the guarding contract was then terminated shortly afterwards. The respondent had no similar work available in the Coleraine area. The nearest work available at that time was in Belfast and, a few days after these events, the respondent offered the applicant such further work in Belfast. The applicant declined this offer, apparently as the location and the hours were not suitable as far as he was concerned. There was also an issue raised by him regarding travelling costs. The last wages received by the applicant from the respondent were in respect of his work up to 25 August 2001. The applicant received no further wages from, nor did he perform any work for, the respondent after that date. All direct communication between the parties appears to have ceased after the offer of the Belfast work was declined by the applicant.

The applicant then engaged a solicitor. A letter dated 5 September 2001 from the respondent to the applicant's solicitor confirmed that the applicant was still regarded as being in the employment of the respondent. A further letter of 15 October 2001 from the respondent to that solicitor confirmed that, for the reasons therein stated, the respondent had no alternative but to offer the applicant redundancy. Notably, there were no direct discussions with the applicant on the issue of redundancy and indeed a remarkable absence of any communication whatsoever between the respondent and the applicant from the end of the month of August 2001 onwards.

The applicant signed on for State Benefits approximately 3 weeks after 25 August 2001 but he received no Benefits at the time, as it was unclear that the employment had terminated. In early November 2001 the applicant received from the respondent a cheque for £795.50 representing the amount of a redundancy payment due to him. No issue was taken by the applicant as to correct calculation of the payment received, as a redundancy payment.

THE TRIBUNAL'S DECISION

The tribunal found, upon the facts, that the respondent had dismissed the applicant. The respondent's stated ground for dismissal was redundancy. Redundancy is potentially a fair reason for dismissal. The tribunal then considered whether or not this dismissal was fair, taking into account the reason given. A redundancy is defined in Article 174 of the Employment Rights (Northern Ireland) Order 1996, part of which Article states:

...an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to ... the fact that his employer has ceased or intends to cease ... to carry on ... business in the place where the employee was ... employed, or... the fact that the requirements of that business ... for employees to carry out work of a particular kind in the place where the employee was employed by the employer, have ceased or diminished or are expected to cease or diminish.

There were clearly, on foot of the foregoing statutory tests, proper grounds for redundancy in respect of the applicant's post of employment with the respondent. There was an unsuccessful endeavour to re-deploy the applicant, followed by a considerable lethargy on the respondent's part in decision-taking upon the redundancy issue. However, the respondent's letter of 15 October 2001 served finally to terminate the contract. There was no evidence before the tribunal in favour of any argument that the applicant might have remained on in the existing employment consequent upon a transfer of the Coleraine Station guarding contract from the respondent to its (presumed) successor under TUPE.

In terms of the procedure employed by the respondent, there was some initial consultation in that there was an offer of alternative employment in Belfast which was declined by the applicant. Upon the facts, there appears otherwise to have been no suitable alternative employment. Communications appear to have then foundered upon some type of a mutual misunderstanding as to who was to make the next approach. The tribunal is obliged to draw its conclusions of fact upon the evidence before it. In the absence of any evidence before the tribunal and thus any findings of fact to the contrary, it appears that any further consultation on the part of the respondent would have been, possibly and indeed quite probably, entirely futile and would have made no difference to the inevitable outcome.

Taking the foregoing into account the tribunal finds that the applicant was dismissed by the respondent upon grounds of redundancy arising from a genuine redundancy situation. The tribunal does not find that the dismissal upon that ground was unfair, nor was there unfair selection of the applicant by the respondent. Therefore the applicant's claim must fail and the complaint is dismissed by the tribunal, without further Order.

Chairman:

Date:

Date and place of hearing: 20^th June 2002, Strabane

Date decision recorded in register and issued to parties: