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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Haveron v Federal Electronic Security Lt... [2009] NIIT 1815_09IT (15 December 2009)
URL: http://www.bailii.org/nie/cases/NIIT/2009/1815_09IT.html
Cite as: [2009] NIIT 1815_9IT, [2009] NIIT 1815_09IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1815/09
CLAIMANT: John Haveron
RESPONDENT: Federal Electronic Security Ltd in receivership
DECISION
The decision of the tribunal is that the claimant was unfairly dismissed by the respondent and that the respondent is to pay to the claimant £6,437.50 in respect of unfair dismissal.
Constitution of Tribunal:
Chairman: Ms F Oliver
Members: Mr J Lyttle
Mr D Walls
Appearances:
The claimant appeared
The respondent did not appear and was not represented.
The claim and the response
1. The claimant lodged proceedings in the tribunal office on 20 February 2009 claiming unfair dismissal on the basis of unfair selection for redundancy and failure of the respondent to comply with redundancy dismissal procedures. The respondent filed a detailed response indicating that it had followed the correct redundancy procedures and that it did not unfairly select the claimant’s position for redundancy. By the time of hearing the respondent company was in receivership and the receiver chose not to attend the hearing nor send any representation. The tribunal decided that it would be appropriate, having regard to Rule 27 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005, to proceed with the hearing in the respondent’s absence and to determine the matter on the basis of the oral and documentary evidence presented on behalf of the claimant and the documentary evidence on behalf of the respondent.
Sources of evidence
2. The tribunal received a bundle of documents from the claimant and heard oral evidence from the claimant. The tribunal also considered the evidence contained in the Claim and Response.
The issues
3. (1) Whether the claimant was unfairly dismissed.
(2) Whether the respondent failed to comply with the statutory dismissal procedure.
Findings of facts
4. The claimant commenced employment with the respondent on 10 March 2006 as an Operations Manager. He was dismissed on the grounds of redundancy on 21 November 2008.
5. The respondent company was involved in the security business. During 2008 it made significant losses and in November 2008 it reached a decision that some positions within the company were at risk of redundancy.
6. A meeting took place on 19 November 2008 at which the claimant was informed that his position of Operations Manager was at risk of redundancy. This was followed by a letter of 19 November 2008 inviting the claimant to a meeting on 21 November 2008 to discuss the position. On 21 November the claimant was informed that he was being made redundant. We were not provided with a copy of the notice of dismissal.
7. The claimant received his statutory redundancy pay.
8. The claimant availed of the company’s appeal procedures but his dismissal on the grounds of redundancy was upheld. We were not provided with any documents relating to the appeal procedure. The claimant indicated that he based his appeal on the fact that all three of the managers’ positions should have been considered in the pool for selection for redundancy.
9. At the time of dismissal there were three managers employed by the respondent. A second manager has not been replaced after he left on 31 March 2009. The company went into receivership on 17 July 2009.
10. On the day before his dismissal on 21 November 2008 the claimant’s phone was switched off. The claimant also received an e-mail from a client of the company indicating that he had been informed that the company was restructuring. The claimant believes that this is evidence that he had been selected for redundancy prior to the meeting on 21 November 2008 and before he had been given an opportunity to put his case.
11. The claimant started employment immediately after dismissal, with another employer but earning substantially less than he had been. He is earning £1,500.00 gross less than he had been.
The law
12. By virtue of Article 126 of the 1996 Order an employee has the right not to be unfairly dismissed by his employer. Article 130 sets out how the question of whether a dismissal is fair or unfair is to be determined. However, under Article 130A(1) an employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if-
(a) one of the procedures set out in Part I of Schedule 1 to the Employment (Northern Ireland) Order 2003 (Dismissal and Disciplinary Procedures) applies in relation to the dismissal,
(b) the procedure has not been completed, and
(c) the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements.
13. The Employment (Northern Ireland) Order 2003 at Schedule 1 sets out the statutory dismissal and disciplinary procedures to be followed as a bare minimum where applicable, by an employer contemplating a dismissal.
Application of findings of fact to the law
14. We find that there was a dismissal based on the claimant's evidence and the correspondence. Once a dismissal is established the burden of proof is on the respondent to show the reason for the dismissal and the tribunal must then reach a decision on all the evidence as to whether the dismissal was fair in all the circumstances.
15. The claimant considered that the selection of his position alone out of a possible pool of three managers was unfair. We accept this contention. There appears to be merit in the claimant’s evidence that it would have been appropriate to consider the position of the three managers as the appropriate pool from which to select a redundancy. The respondent was not here to convince us otherwise and did not adequately address this argument in its response. We also find that the claimant was not offered appropriate alternative employment.
16. We therefore find that the claimant was unfairly dismissed by the respondent.
17. The tribunal then considered whether the claimant may have been dismissed even if the selection pool had been correctly identified. On the basis of the evidence provided by both parties, we believe that there was a 45% chance that the claimant would have been dismissed in any event.
18. The tribunal also noted that that a second manager left on 31 March 2009 and that the company went into receivership on 17 July 2009.
19. We consider it appropriate to restrict the claimant’s continuing loss to the 17 July 2009.
20. We consider that the evidence suggests that the statutory dismissal procedures were followed and we therefore find that the dismissal was not automatically unfair under Art 130 (A) (1) of the 1996 Order.
21. The tribunal confirms that the claimant is entitled to the following:
Basic Award
The redundancy payment awarded is set off against the basic award reducing it to nil.
Compensatory Award
£1,500.00 x 7.5 months to 17 July 2009 £11250.00
45 % reduction £ 5062.50
£ 6187.50
Future Loss
Nil as the company is now in receivership
Loss of Statutory Rights £ 250.00
Total award £6437.50
22. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 29 September 2009, Belfast
Date decision recorded in register and issued to parties: