Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2006/1781_04.html
Cite as: [2006] NIIT 1781/04, [2006] NIIT 1781/4

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1781/04

CLAIMANT: Geoffrey Mitchell

RESPONDENT: Coleraine Chronicle Limited

DECISION

The unanimous decision of the tribunal is that:-

(a) Northern Newspaper Group be dismissed from the proceedings; and

(b) that the claimant was unfairly dismissed and that the respondent do pay to the claimant the sum of £19,542.00 by way of compensation.

Constitution of Tribunal:

Chairman: Mr M Davey

Members: Mr R McKnight

Mr J McCusker

Appearances:

The claimant was represented by Mr B McKenna, Barrister-at-Law, instructed by Francis Hanna & Company, Solicitors.

The respondent was represented by Mr A Ferguson, of Personnel & Training Services.

Reasons

It was agreed between the parties that Coleraine Chronicle Limited was the correct respondent and that Northern Newspaper Group should be dismissed from the proceedings.

The claimant in completing his claim described having been made redundant on 1 March 2004. He claimed that he had been unfairly dismissed in that there was no genuine redundancy situation at the time or, in the alternative, that his selection for redundancy was unfair. Those were the issues for the tribunal.

The claimant had worked for the respondent for many years. He had originally been employed by them and had then been made redundant during a recession. In 1984 he was re-employed by the respondent and remained in their employment until his contract was terminated with effect from 1 March 2004. During the course of 2003 the respondent company was acquired by new owners. In or about June or July 2003 there was a meeting when the new owners, represented by Mrs Mary Taylor and Mr Clive Nesbitt, interviewed representatives of the workforce including the trade union representative. Mrs Taylor gave a robust and forthright assessment of the costs and working practices prevailing and indicated the new owners' intention to introduce new technology. She stated that all employees would be retained so long as they accepted the new technology. In explaining her thinking she indicated that anyone who adopted the new technology and showed an interest in being re-trained would be able to keep their jobs.

The training was to be organised and to some extent provided by Mr Nesbitt, the production manager of the group. According to him the training was to be fitted in with the production of the newspaper and everyone at a general meeting had been informed that training would be available. They were, according to Mr Nesbitt, expected to practice on the new machinery on their own initiative and to approach either him or one of the two other members of staff who could provide training for assistance. They were to use any spare time they had in between jobs. In addition, according to the respondent's response, training was provided in a more formal way on Thursdays. Mr Nesbitt was not present for all training; there were two other members of staff who were able to give training but they did not report to him. There was no record kept of any training whether formal or informal; Mr Nesbitt relied on what he saw. As he put it to the tribunal, "If I had been in the room I would have known". According to Mr Nesbitt there was no structure to the training at all, even the more formalised training on Thursdays. According to the claimant and another member of staff, Thursday's training was more formal. They stated that Mr Nesbitt would have invited particular individuals to present themselves for training on a particular Thursday during the period that training was being provided. The tribunal accepts this evidence. It is more consistent with the description of 'formal training on a Thursday' in the respondent's response, it seems more likely that in a business the size of the respondent's there would have been some structure and Mr Nesbitt's recollection of the detail of what actually happened was, on his own admission in cross-examination, imperfect. The claimant was never invited to attend training on a Thursday.

In October 2003 the claimant was off sick for a period of some seven weeks. During that time three of his colleagues were dismissed on the grounds of redundancy. During the course of his period of sickness the claimant was invited to discuss his position with the group manager and a number of discussions took place culminating in the claimant's dismissal on the grounds of redundancy due to his failure to train or adapt. The group manager had taken up his post on the first Monday of October 2003, a few days before the claimant went on leave. The assessment or evaluation of the claimant's attitude and response to training was based on reports from Mr Nesbitt. In informing the claimant of his dismissal the tribunal noted that no mention was made of any right of appeal.

The effective date of termination of the claimant's employment was 1 March 2004. The claimant was unemployed for a period. He had previously made enquiries from the Post Office about employment and obtained a position as a part-time postman starting on 11 May 2004 at a wage of £109.00 per week. He found the hours and the lack of sleep to be a problem and left that employment on 1 June 2004. He had not found employment since. His evidence to the tribunal was that between 1 June 2004 and the end of 2004 he saw nothing in the paper that was in any way attractive to him. He was unable to state whether he had applied for any jobs during that time. During the course of 2006 he had applied unsuccessfully for a number of positions as school caretaker, school bus driver and the like.

The first question for the tribunal was whether a redundancy situation prevailed at all.

The respondent submitted that a redundancy situation arose due to the introduction of new technology and to the claimant's failure to train. The tribunal is not wholly convinced. While the introduction of new technology can result in a reduction in the requirement for staff that was not part of the business case for the new technology which was put forward by Mrs Taylor to the tribunal in response to questioning. Nor was it consistent with the very clear statement made at the time, and to the tribunal, that all the staff were to be retained so long as they showed an interest in the new technology. Indeed, Mrs Taylor stated, in cross-examination, that if the paste up section, which probably included the claimant, had adopted the new technology there would have been no redundancies since the same number of people would have been needed if not more.

In any event, whether the tribunal has to deal with a redundancy or a dismissal for conduct/capability, the reason for selection, if a redundancy, or the reason for dismissal, if a dismissal, was the claimant's failure to involve himself in training on the new technology. There was no significant suggestion of any other reason for terminating the claimant's contract. It is this reason that the tribunal finds inadequate. As has been stated above, the tribunal accepts that there was some degree of structure involved in the training in that persons were invited or selected to come for training on Thursdays. There was no suggestion from anyone on the management side that the claimant had ever been invited, or requested or selected to attend such training. To that extent therefore any failure cannot be set at the claimant's door. Furthermore the only person taking any part in the decision to terminate the claimant's contract of employment who was in a position to comment on the claimant's attitude to training was Mr Nesbitt. He only had knowledge of what he happened to see if he was in the room. Given that he had other duties as production manager of the group of companies, the amount of time he would have been able to spend observing the claimant, or, indeed, anyone else, must of necessity have been limited. On his own evidence he received no reports from the other two members of staff who provided training and could not therefore know what training they provided and to whom. There was no record kept either by management, or even on a trust basis by the employees themselves, to show what, if anything, they were doing by way of training. There was, in fact, no objective standard or benchmark against which the relative performance of different members of staff could be assessed. The judgment could only be made by Mr Nesbitt on the basis of personal impression derived from inadequate knowledge. That cannot be regarded as a satisfactory basis on which to terminate the contract of someone who had been employed in the company for the best part of 20 years without a break and, indeed, for a period before that. The lack of such objective evidence makes it impossible for the respondent to rebut the evidence given by and on behalf of the claimant that he did spend such time as he could, in familiarising himself with the new technology and that, at one period, he was able to spend almost an entire fortnight during the course of the month during which training was being conducted (according to the respondent's response) engaged in such an exercise with some success. In these circumstances the reasoning of the respondent for selecting the claimant for dismissal cannot stand and the claimant's claim must succeed. The inadequacy of the information also makes it impossible to speculate, if that became necessary, as to what the chances of the claimant being dismissed would have been if matters had been better organised.

The claimant is entitled to a basic award. He had been employed for a period of 20 years for 16 of which he had been below the age of 41 and four of which he had been above the age of 41. Accordingly he is entitled by way of a basic award to 22 weeks pay at the statutory level since his actual rate of pay was higher. This award equates to the redundancy payment which was paid to him on the termination of his contract.

The claimant is also entitled to a compensatory award. The tribunal does not find it unreasonable that it took until 9 May 2004 for the claimant to obtain alternative employment as a part-time postman. Consequently during the period 1 March to 10 May (10 weeks) he was suffering loss at a rate agreed between the parties of £283.00 per week. He was then employed by the Post Office as a part-time postman at a weekly wage of £109.00. This ceased on 1 June. The tribunal finds his reasons for so doing acceptable. During that three week period he was suffering a continuing loss of £174.00 per week. He then reverted to the agreed rate of £283.00. However, having regard to the claimant's duty to mitigate his loss the tribunal considers that within a further period of 26 weeks, ie by 1 December 2004, it should have been possible for the claimant with reasonable application to have obtained employment at a net wage of £200.00 per week. The tribunal accepts that it might well have been difficult to achieve a wage identical to that the claimant was receiving before the termination of his contract of employment with the respondent, but employment at the lesser wage of £200.00 should have been possible. Thereafter the claimant could have been expected to suffer a continuing loss of £83.00 per week for a further period but the tribunal estimates that by the end of the further two years or 104 weeks it should have become possible for the claimant's wages to have reached parity with his former wage.

In addition the claimant sought compensation for loss of statutory rights which the tribunal assesses at the figure suggested by the claimant, namely £200.00. The compensatory award can therefore be calculated as follows:-

1 March 2004 to 10 May 2005 – 10 weeks @ £283.00 per week = £2,830.00

11 May 2004 to 1 June 2004 - 3 weeks @ £174.00 per week = £ 522.00

2 June 2004 to 30 November 2004 – 26 weeks@ £283.00 per week £7,358.00

1 December 2004 to 30 November 2006 – 104 weeks @ £83.00 per week £8,632.00

Loss of Statutory Rights £ 200.00

Total £19,542.00

This sum is to be paid by the respondent to the claimant. The basic award has already been covered by the equivalent sum paid, so no order is required in that regard.

Recoupment

The recoupment provisions apply. The amount of the prescribed element is £19,342.00. The period to which the prescribed element is attributable is from 1 March 2004 to 30 November 2006.

Interest

This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

Chairman:

Date and place of hearing: 31 July 2006, Belfast

Date decision recorded in register and issued to parties:

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