Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2009/5699_09IT.html
Cite as: [2009] NIIT 5699_9IT, [2009] NIIT 5699_09IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 05699/09

CLAIMANT: Pauline Rice

RESPONDENT: Dungannon and South Tyrone Borough Council

DECISION

The unanimous decision of the tribunal is that the claimant’s claim of unfair dismissal by way of redundancy is dismissed.

Constitution of Tribunal:

Chairman: Mr Wimpress

Members: Mr J Nicholl

Mrs Kennedy

Appearances:

The claimant did not appear and was not represented.

The respondent was represented by Mr Elliott, Barrister-at-Law, instructed by Simmons Meglaughlin & Orr, Solicitors.

The Claim and the Response

1. The claimant brought a claim of unfair dismissal by way of redundancy against the respondent. The claimant also raised complaints in respect of post termination grievances and discrimination in relation to redeployment, bullying and victimisation, all of which were rejected at the pre-acceptance stage of the proceedings. In its response, the respondent denied that the claimant was unfairly dismissed and contended that she was fairly selected for redundancy in accordance with the respondent's redundancy procedure.

2. When the case was called initially the claimant was not in attendance but she was subsequently contacted by tribunal staff and she advised that she had forgotten about the hearing due the hospitalisation of a family member. The claimant said that she had received notification of the hearing. She did not give any indication that she proposed attending the hearing and she did not request an adjournment of the hearing. In these circumstances the tribunal determined that it was appropriate to proceed in the absence of the claimant.

3. Mr Elliott applied for the case to be dismissed without hearing any evidence on the basis of the claimant's failure to attend and prosecute her case. Mr Elliott stated that the respondent was not surprised that the claimant had failed to attend and drew attention to her failure to reply to a notice for particulars that was sent to her. However, having regard to the fact that the respondent accepted that the claimant had been dismissed and bearing in mind that the onus was therefore on the respondent to establish that the dismissal was fair, the tribunal determined that the best course would be to hear evidence from the respondent rather than to dismiss the case on the basis of the limited material that was contained in the claim form and the response.

Sources of Evidence

4. The tribunal received a small bundle of relevant documents from the respondent and heard oral evidence from the respondent’s Head of Human Resources, Mr Currie.

The Facts

5. The claimant commenced employment with the respondent on 1 January 2001 in the post of Manager of Support Services in the Peace Factory in Dungannon. The post was one of two posts funded by an external source on a fixed term contract. The other post was a senior administrative officer and Mrs McCullough was employed in this capacity. The claimant's contract was extended on a number of occasions but the funding was ultimately withdrawn and on 22 December 2008, Mr Currie wrote to the claimant and advised that there would be no further extensions after 31 January 2009 and invited her to a meeting on 8 January 2009 to discuss her proposed redundancy.

6. The meeting went ahead as scheduled and was chaired by Mr Currie. Another member of the Human Resources staff, Mr Barratt, was also in attendance as was Mrs McCullough who was also being considered for redundancy. One of the main matters discussed at the meeting was the availability or otherwise of suitable alternative employment. Neither the respondent nor the claimant was able to identify any suitable posts. The specialist nature of the claimant's post made it difficult to find a post within the respondent's organisation. An administrative post was found for Mrs McCullough as it was easier to find an alternative post for her given the more generalised nature of her employment.

7. On 14 January 2009, Mr Currie wrote to the claimant and advised that having taken account of the representations made at the meeting, the claimant was being made redundant. Mr Currie also advised the claimant of her right of appeal and her entitlement to avail of paid leave in order to seek other work or training. The claimant did not make any response to the letter and did not seek to appeal against the decision to make her redundant.

8. On 10 February 2009, Mr Currie sent a further letter to the claimant in which he confirmed that no alternative post had been identified and set out the payments that she would receive as follows:

27 and a half days accrued annual leave £1,763.39.

12 weeks redundancy £5,401.15.

9. Mr Currie also informed the claimant that NILGOSC would be in contact with her in relation to [pension] scheme benefits. Two copies of the letter were sent to the claimant and she was asked to sign and date both copies and to return one to Mr Currie in order to indicate her understanding and acceptance of these terms. The claimant duly complied with this request on 14 February 2009.

10. Under the NILGOSC pension scheme the claimant is to receive an annual pension of £3,145.00 and a lump sum of £9,435.00.

The Law

11. 170.—(1) An employer shall pay a redundancy payment to any employee of his if the employee—

(a) is dismissed by the employer by reason of redundancy, or

(b) is eligible for a redundancy payment by reason of being laid off or kept on short-time.

174.—(1) For the purposes of this Order an employee who is dismissed shall be taken to be dismissed by reason 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.

(2) For the purposes of paragraph (1) the business of the employer together with the business or businesses of his associated employers shall be treated as one (unless either of the conditions specified in sub-paragraphs (a) and (b) of that paragraph would be satisfied without so treating them).

(3) Where—

(a) the contract under which a person is employed is treated by Article 171(5) as terminated by his employer by reason of an act or event, and

(b) the employee's contract is not renewed and he is not re-engaged under a new contract of employment, he shall be taken for the purposes of this Order to be dismissed by reason of redundancy if the circumstances in which his contract is not renewed, and he is not re-engaged, are wholly or mainly attributable to either of the facts stated in sub-paragraphs (a) and (b) of paragraph (1).

(4) In its application to a case within paragraph (3), sub-paragraph (a)(i) of paragraph (1) has effect as if the reference in that paragraph to the employer included a reference to any person to whom, in consequence of the act or event, power to dispose of the business has passed.

(5) In paragraph (1) "cease" and "diminish" mean cease and diminish either permanently or temporarily and for whatever reason.

Conclusions

12. We are entirely satisfied that the claimant was fairly dismissed by reason of redundancy. Appropriate efforts were made by the respondent to find the claimant suitable alternative employment but these were unsuccessful due to the specialised nature of her position. No case of unfair selection for redundancy has been made out and it is clear that although both the claimant and Mrs McCullough were dealt with at the same meeting they were not in any real sense up against one another either in terms of selection for redundancy or by being in competition for suitable alternative posts. The claim must therefore be dismissed.

Chairman:

Date and place of hearing: 7 October 2009, Belfast.

Date decision recorded in register and issued to parties:

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