Industrial Tribunals Northern Ireland Decisions

Busteed v Short Brothers plc (Jurisdiction) [2003] NIIT 2639_02 (30 January 2003)

THE INDUSTRIAL TRIBUNALS

CASE REF NOS: 2639/02

APPLICANT: Terry Busteed

RESPONDENT: Short Brothers plc

DECISION ON A PRELIMINARY ISSUE

The unanimous decision of the Tribunal is that it has jurisdiction to entertain a claim for interim relief.

APPEARANCES:

APPLICANT: Mr F O'Donaghue, Barrister-at-Law, instructed by Francis Hanna, Solicitors.

RESPONDENT: Mr P Coll, Barrister-at-Law, instructed by Elliott, Duffy, Garrett.

1. The case had been listed for interim relief. The parties agreed that all the conditions for presenting such a claim had been fulfilled and the point at issue between the parties was the entitlement of the applicant to bring a claim for interim relief in any event.
2. Both parties had asked the Tribunal to rule on this point although the Tribunal was sitting and willing to consider the total claim as one of interim relief. However, as both parties have urged the Tribunal that this is a point of importance for this and other cases, the Tribunal has made it's determination accordingly.
3. Counsel for the applicant stated that although he did not formally concede that the applicant was dismissed in a declared redundancy about which the respondent called evidence, he would not be calling evidence to contradict. The Tribunal did hear evidence from the respondent and in particular Mr Guy Crawford who was the Human Resources Director. The Tribunal accepted as fact that following the terrorist attack in New York on 11 September 2001 there had been a significant downturn in the demand for aircraft and related parts manufactured by the respondent in Belfast. As a result, the Department of Employment and Learning was notified on 26 September 2001 that there were likely to be up to 2,000 redundancies out of a total workforce of 7,000. The company consulted trade union representatives, including AMICUS (formerly MSF) which was the applicant's union. It was agreed that the applicant was a shop steward in the quality laboratory section with Michael McClean as his supervisor. It was also agreed that there were three persons working in the non-destructive testing department of the quality laboratory and the applicant was assessed for redundancy with Brian McGinley who was the same level operative. The supervisor, Mr McClean, gave evidence and stated that there was a 35% downturn in output from the composite department which in turn reduced the volume of work for quality assessment and as such a need for redundancy was highlighted. He stated that all employees were assessed as the company realised that there were going to be possible redundancies throughout the whole company and in nearly all the departments. Mr McClean stated that the x-ray work is now being done by two people instead of three and the applicant has not been replaced.

4. The Tribunal accepted the evidence from the respondent in relation to the situation at Shorts and accepted that in December 2002 there was a good commercial reason which led to further redundancies being made in the respondent's premises see Hollister -v- National Farmers' Union [1979] IRLR 238 and that the applicant had been dismissed.

Relevant Law

5. The Tribunal were referred to the following sections of the Employment Rights (Northern Ireland) Order 1996 and for the purposes of this decision the Tribunal has set out the section.

Section 174

Redundancy

174(1) For the purposes of this Order an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to

(a) …………………………

(b) the fact that the requirements of that business

1. for employees to carry out work of a particular kind, or

2. 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.

Section 163 which is concerned with interim relief states as follows -

(1) an employee who presents a complaint to an Industrial Tribunal -

(a) that he has been unfairly dismissed by his employer, and

(b) that the reason (or if more than one, the principle reason) for the dismissal is one of those specified in Article 132, etc. to 136(i).

Article 136(i) covers the situation of "an employee who is dismissed shall be regarded for the purposes of this part as unfairly dismissed if the reason for his dismissal is that the employee (a) was or proposed to become a member of an independent trade union, or (b) had taken part of proposed to take part in the activities of an independent trade union at an appropriate time ….."

Under 163(i)(b) the applicant may apply to the Tribunal for interim relief.

Respondent's Submission

6. The respondent has submitted that because it has shown by evidence that there was a redundancy situation a claim for interim relief under Article 163 must fail because it would fall under Article 174 which does not provide for interim relief. The respondent also submitted that if a claim is brought under Article 163 it does not include a claim for redundancy under Article 137. Counsel for the respondent stated that because Parliament had drafted two specific paragraphs and in particular Article 137 allowed for trade union membership/activities to be included, then a person who is claiming under that ground is limited and is not entitled to claim interim relief which is specifically provided for other types of dismissal. The respondent relied on two authorities, the first being Harvey on Industrial Relations and Employment Law, Volume 3 N para 575.01. The commentator there stated that -

(i) the fact that an employee is redundant is in principle a fair reason for dismissing him.

(ii) if it is shown that the reason, or principle reason, for selecting him for redundancy (rather than any other employees in a similar position within the same undertaking) was any of the union grounds specified in Trade Union and Labour Relations Consolidation (Act) 1992 (see Employment Rights (Northern Ireland) Order 1996) then that dismissal is automatically unfair.

(iii) in those circumstances an employee may complain of unfair dismissal even if he has not completed the usual qualifying period of one year's continuous employment.

(iv) an employee unfairly selected for redundancy on union grounds may be entitled to a minimum basic award.

(v) he is not however entitled to apply for an order continuing his contract of employment by way of interim relief (Trade Union and Labour Relations Consolidation (Act) 1992 Section 161 is equivalent to Article 163 of Employment Rights Order 1996). Similarly the Tribunal was referred to 1992 Current Law Statutes annotated. Under Section 161 of the Trade Union and Labour Relations Consolidation (Act) 1992 (interim relief section), the commentator stated that "the aim of an order of interim relief is to secure the position of the employee pending the hearing by ensuring that the employee remains in employment until the final determination of his complaint by the Industrial Tribunal. Originally introduced to protect those dismissed for their trade union membership or activities interim relief was extended by the Employment Act 1982 to applicants alleging dismissal for non-membership. It does not however extend to employees unfairly selected for redundancy for trade union reasons within Section 153."

7. It should be noted that neither party could highlight any case law on this point to the Tribunal and the Tribunal of its own researches has not been able to find a case on point.
8. Counsel for the respondent stated that in a redundancy situation the applicant's post has gone. The job is no longer there so there is not a contract to be reinstated. He highlighted that the applicant still had a remedy at a full hearing for unfair selection on trade union grounds but that he did not have that remedy available under interim relief.

Applicant's Submissions

9. Counsel for the applicant drew our attention to the originating application presented by the applicant on 12 December 2002 in which he described at paragraph 13 that he believed he had been unfairly dismissed as "he believed his employer's decision to dismiss was based primarily on his involvement with the trade union". Counsel stated that nowhere in that application had the applicant referred to redundancy as the reason for his dismissal.
10. Counsel for the applicant relied on Article 145 of the Employment Rights Order 1996 which provides for a complaint to be presented against an employer by any person that he was unfairly dismissed by the employer. He then stated that the section for interim relief at Article 163 states that "an employee who presents a complaint to an Industrial Tribunal that he has been unfairly dismissed by his employer has a right to apply for interim relief". He was succinct in his submission but if an applicant has lodged a claim of unfair dismissal he has a valid right to apply for interim relief and there is not an exclusion of jurisdiction.

Tribunal Findings

11. As noted at the outset of this decision the Tribunal was constituted and prepared to hear the interim relief application and to make a determination as to whether it was likely to find that the reason for the applicant's dismissal related to trade union membership/activities, but both parties were adamant that the entitlement of the applicant to bring these proceedings was the issue to be determined first. The Tribunal has considered the learned commentators in Harvey and in the current law texts which have been put before us. It is interesting that neither of those commentators gives reasons for their statement that an applicant is not entitled to apply for an order continuing the contract of employment by way of interim relief. The Tribunal is satisfied that the applicant did present a claim for unfair dismissal and it may fall within the ground of trade union activities/membership. Although we have heard evidence which we accept for the purposes of this hearing that there was a redundancy situation in the applicant's department, the situation of a potentially fair dismissal under Article 174 does operate to exclude a complaint under Article 163. To do so would mean that any employer who declared a redundancy situation could have the means open to him to dismiss trade union members knowing that they could not avail of the right to interim relief. There is always the question of whether the employees would be likely to succeed at a full hearing but that is still a function for the Tribunal to determine. We do not accept that the jurisdiction of interim relief is excluded because of Articles 137 or 174 in relation to redundancy.

____________________________________

M P PRICE

Vice President

Date and place of hearing: 30 January 2003, Belfast

Date decision recorded in register and issued to parties: