Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 6/04

APPLICANT: Bertie Thompson

RESPONDENT: Conway Brothers Limited (in liquidation)

DECISION

The unanimous decision of the tribunal is that the applicant is not entitled to a redundancy payment and the applicant's complaint is dismissed, without further order.

Appearances:

The applicant appeared and represented himself.

The respondent did not appear and was not represented.

This is a decision in summary form:

THE ISSUE

1. The applicant's complaint was of 'redundancy payment'. In its appearance the respondent contended that the applicant had not been dismissed. At the outset the tribunal had to determine the correct identity of the respondent.

   THE TRIBUNAL'S FINDINGS:

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

2. The applicant was initially employed by a partnership, Patrick Conway and John Conway who traded as 'Conway Brothers'. The applicant commenced in that employment in the capacity of a lorry driver on or about 16 November 1992. He continued to be employed by the partnership in that capacity until in or around 2001 or perhaps 2002 when there was incorporated a company of limited liability, Conway Brothers Limited. Patrick Conway was a director of that company. The applicant's employment transferred to that limited company. The tribunal finds that Conway Brothers Limited was the applicant's employer at the material time. The tribunal believes that that limited company had gone into liquidation in or about February of 2004. Conway Brothers Limited (in Liquidation) is therefore the proper respondent in these proceedings.

3. The applicant's employment was uneventful as far as the tribunal is concerned until mid- 2003. It appears that at that time the respondent company lost a business contract resulting in a diminution of work. The vehicle which the applicant customarily drove required repairs and was at that time taken off him. That vehicle was then given to another employee and the applicant was tasked with other jobs including some driving work but also cleaning up work around the respondent's yard. However, there was no suggestion or proposal on the part of the employer that the applicant ought to be made redundant. The applicant continued to be paid his customary weekly wage and he was given work to perform by the employer.

4. On Saturday 20 September 2003 the applicant was asked by the employer to attend a safety meeting. At the conclusion of that meeting the applicant had a discussion with Patrick Conway. Mr Conway conceded that work was slack but mentioned that there was a lorry in the garage being repaired. Clearly, Mr Conway had no thought of dismissing the applicant at that time. The applicant suggested to Mr Conway that he would be made redundant by the respondent. A further discussion ensued and the applicant did not return to work on the next working day, Monday 22 September 2003, but he began driving work that day for his son and continued thereafter working for his son. The applicant was fully paid his wages up to the last day that he worked for the respondent. However he was not paid by the respondent pay in lieu of notice nor any redundancy pay. These latter formed the subject of the applicant's claim.

   THE TRIBUNAL'S DECISION

5. The applicant claimed that he had been made redundant by the respondent. A redundancy is defined in Article 174 of the Employment Rights (Northern Ireland) Order 1996, which Article states:

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

   (a) The fact that his employer has ceased or intends to cease -

   (i) to carry on the business for the purposes of which the employee was employed by him, or
   (ii) to carry on that business in the place where the employee was so employed, or

   (b) The fact that the requirements of that business -

   (i) for employees to carry out work of a particular kind, or
   (ii) 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.

6. Notwithstanding the fact that the tribunal does accept that there was a diminution in work and the nature of the work required to be performed by the applicant was different, there must have been a dismissal of the employee by the employer on that account for the test of redundancy to be satisfied. Here, the applicant was afforded work by his employer and he accepted that without difficulty, it appears, and he was paid his normal remuneration. Looking at the exchange of words which took place between the applicant and Mr Conway on 20 September 2003, the tribunal cannot determine that there was anything which would constitute a dismissal of the applicant by the respondent. A dismissal is essential for there to be a redundancy. There was rather a proposal on the part of the applicant that he might be dismissed. The tribunal is satisfied that the applicant was not dismissed by the respondent. The applicant left the employment perhaps on the understanding that he might have been paid a redundancy payment. On the facts, it was the applicant who determined the contract.

7. As there was no dismissal of the applicant by the respondent, the applicant cannot be entitled to a redundancy payment and accordingly the applicant's complaint must fail. The complaint is dismissed by the tribunal without further order.

   Chairman:

   Date and place of hearing: 3 September 2004, Enniskillen

   Date decision recorded in register and issued to parties: