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Industrial Tribunals Northern Ireland Decisions

You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McComb v Access [2009] NIIT 1234_08IT (14 January 2009)
URL: http://www.bailii.org/nie/cases/NIIT/2009/01234.html
Cite as: [2009] NIIT 1234_8IT, [2009] NIIT 1234_08IT
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THE INDUSTRIAL TRIBUNALS



CASE REF: 1234/08IT




CLAIMANT: David Samuel McComb



RESPONDENT: Access & Support Ltd




DECISION

The Tribunal dismisses the claimant’s claim for redundancy pay.





Constitution of Tribunal:

Chairman (sitting alone): Ms Bell

Members:




Appearances:

The claimant appeared in person.

The respondent was represented by Mr David Knox, Contracts Manager of the respondent company.



  1. The claimant complained in his claim that he had not received a redundancy payment following receipt of 5 weeks notice on 19 June 2008 from the respondent to terminate his employment, due to a downturn in work, which he had accepted.


  1. The respondent resisted the claimant’s claim, having on given notice indicated to the claimant that they would review the notice given if the work situation changed and that as a result of the respondent’s work load increasing all the redundancy notices were retracted on 9 July 2008 such that the claimant was offered his old job back on the same terms but that he chose to leave in any case as he wanted a career change.


Issues for the Tribunal


  1. The issue for the Tribunal is whether the claimant is entitled to a redundancy payment.


Evidence


  1. The Tribunal considered the claim and the response and heard oral evidence from the claimant and Mr Knox and considered correspondence handed in by the parties.


Findings of Fact


  1. The claimant was employed by the respondent as a scaffolder from 13 May 2004.


  1. By letter dated 19 June 2008 the respondent gave the claimant 5 weeks notice to terminate his employment due to a downturn in the current workload but confirmed to the claimant that should the situation change in the meantime it would review his notice. Approximately one week later the claimant rang Mr Knox and indicated that he wished to accept of the notice given as he did not want to continue working as a scaffolder.


  1. On 9 July 2008 Mr Knox rang the claimant and confirmed that there had been an upturn in work and accordingly was retracting the notice given to him. The claimant stated to Mr Knox that he would still be leaving as he wanted to pursue a different less dangerous career.


  1. Mr Knox sent a letter to the claimant on 10 July 2008 confirming the upturn in work and retraction of his notice, although this letter was not received by the claimant.


  1. The claimant left employment with the respondent on 24 July 2008 despite his old job still being available to him.


Legislation


  1. Under Article 170(1)(a) of the Employment Rights (Northern Ireland) Order 1996 an employer shall pay a redundancy payment to any employee of his if the employee is dismissed by the employer by reason of redundancy. However, Article 176 states

(1) “This Article applies where an offer (whether in writing or not) is made to an employee before the end of his employment –


    1. to renew his contract of employment, or

    2. to re-engage him under a new contract of employment,

with renewal or re-engagement to take effect either immediately on, or after an interval of not more than 4 weeks after, the end of his employment.


          1. Where paragraph (3) is satisfied, the employee is not entitled to a redundancy payment if he unreasonably refuses the offer.



          1. This paragraph is satisfied where –

(a) the provisions of the contract as renewed, or of the new contract, as to –

        1. the capacity and place in which the employee would be employed, and

        2. the other terms and conditions of his employment, would not differ from the corresponding provisions of the previous contract or,

      1. those provisions of the contract as renewed, or of the new contract, would differ from the corresponding provisions of the previous contract but the offer constitutes an offer of suitable employment in relation to the employee.


Application of Law to Facts Found


  1. Whilst notice to terminate employment cannot unilaterally be withdrawn without consent, the Tribunal is satisfied that the claimant was in effect made an offer before the end of his employment by the respondent to renew his contract of employment in offering him his old job back without any change to his terms and conditions of employment to take effect immediately, which the claimant has unreasonably refused and as such under Article 176 of the 1996 Order is not entitled to a redundancy payment.



Chairman:



Date and place of hearing: 26 November 2008, Belfast



Date decision recorded in register and issued to parties


3

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