Industrial Tribunals Northern Ireland Decisions

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Cite as: [2004] NIIT 630_3, [2004] NIIT 630_03

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INDUSTRIAL TRIBUNALS

CASE REF: 630/03

APPLICANT: Barry Paul Smylie

RESPONDENT: Franklin's International

DECISION

The unanimous decision of the tribunal is that the applicant was not unfairly dismissed.

Appearances:

The applicant was represented by Mr D Henderson of the A.T.G.W.U.

The respondent was represented by Mr P Bloch of Engineering Employers' Federation.

SUMMARY REASONS

The tribunal found the following facts:-

The applicant was employed by the respondent for the substantial period of thirty-three years.

The applicant was a skilled employee who took care of the day-to-day running of the weaving department. He carried out a number of functions including maintenance of machinery, what he called personnel functions but which transpired upon investigation to be direction of labour, and he also ordered yarn.

The respondent company was in severe financial difficulties. It had a profit of £30,000.00 or 1% of turnover and stock of £500,000.00. There had been a previous redundancy of a manager in an attempt to de-layer the business structure, and in the Christmas holidays of 2002, the respondent's Mr Christopher Bauer met with his fellow directors to work out a proposal for further redundancies. They identified the applicant's position as being a candidate for redundancy. The proposal and the reasoning behind it was set out on page 9 of the agreed bundle before the panel. The tribunal finds that the reasoning as set out on page 9 is logical. The downturn in work was cited and also the fact that staffing levels had not kept pace with the downturn in work. The economic climate was a factor following the

events of 11 September 2001 and the foot and mouth epidemic. Additionally, there was a lower requirement for maintenance as generally less than 50% of the available looms were running. Effectively, the applicant's maintenance function was largely going to be out-sourced and Mr Dawson, his manager, would take over the yarn ordering and the monitoring of statistics and work scheduling and personnel management was also going to be re-allocated within the management team. It is settled law that the tribunal cannot look behind the respondent's decision on financial grounds to categorise a situation as being a redundancy situation. The tribunal is not able to substitute its decision for the respondent's decision. Here, the tribunal finds that there was a genuine redundancy situation and the respondent decided to make do with less people carrying out its functions.

The applicant contended that this was not a genuine redundancy situation that he was already a member of management and that he was the candidate for dismissal because he had been disciplined for failure to carry out a work instruction in November 2002 by Mr Christopher Bauer. The applicant did not bring any evidence to challenge the genuineness of the redundancy situation. The question of the applicant's status within the company is not a relevant question for the tribunal. Whether the applicant was a supervisor or whether he was a manager is not relevant to the question of a re-allocation or a re-distribution of his tasks. Whatever may have been the job title of the applicant, his position was redundant and his tasks were to be re-distributed as set out above.

The applicant appealed the decision to make him redundant and his appeal was heard by

Mr Dawson who was the manager of the weaving department. The reason why Mr Dawson heard the appeal rather than the directors was that all the directors of the company had been involved in the decision to make the applicant redundant. They regarded it as more procedurally satisfactory for the appeal to be heard by a manager who had no involvement in either the disciplinary process in November 2002 or in the decision to declare the applicant redundant. The tribunal finds that Mr Dawson was given the authority to make the decision on the appeal without having to take account of the views of his board. The tribunal finds that Mr Dawson went back to the board to put to them the allegation that the decision to dismiss was in fact based upon the disciplinary incident in November and not as a result of the applicant being genuinely redundant. The tribunal also finds that Mr Dawson investigated with the board whether they would offer an enhancement redundancy payment. The tribunal finds that Mr Dawson's reverting to the board on the question of the enhanced redundancy payment and to put to them the allegations made by the applicant was not indicative of his lack of power to make a decision. If Mr Dawson had not reverted to the board to put the allegations to them concerning the disciplinary incident in November 2002 or to ask for an enhanced redundancy payment, then the tribunal finds that the applicant would also have been critical of his failure to do so. On the balance of probabilities the fact that Mr Dawson did make the further enquiries discussed above and did take the step of looking at the disciplinary file and the directors rationale for the redundancy, is more likely than not to be indicative of his unfettered power to make the decision.

The applicant contended that it would have been procedurally satisfactory for a director to have kept himself free from the decision making process in connection with the redundancy so that he could be held in reserve as a director to hear the appeal. The tribunal has taken account of the fact that the company was in financial crisis and that this was not a large company. The tribunal finds that the respondent did its best within the means available to it to provide as fair a procedure as possible.

For all of the foregoing reasons the tribunal finds unanimously that the applicant was not unfairly dismissed, that the termination of his employment arose by reason of redundancy and that in so far as it is necessary for the tribunal to so find, the redundancy situation is genuine.

Chairman:

Date and place of hearing: 15 January 2004, Belfast.

Date decision recorded in register and issued to parties: