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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Unite the Union v Tyrone Crystal Giftware Limite... [2010] NIIT 1513_10IT (30 November 2010)
URL: http://www.bailii.org/nie/cases/NIIT/2010/1513_10IT.html
Cite as: [2010] NIIT 1513_10IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1513/10 and Others
CLAIMANT: Unite the Union and Others
RESPONDENT: Tyrone Crystal Giftware Limited - in administration
DECISION
The tribunal finds that:-
1. the respondent has failed to comply with its statutory duty of consultation under Article 216 of the Employment Rights (Northern Ireland) Order 1996; and
2. the first claimant is entitled to a declaration to that effect; and
3. the redundant employees that the first claimant represents are entitled to a protective award for a period of 90 days; and
4. the respondent is ordered to pay remuneration for the protected period.
Constitution of Tribunal:
Chairman: Mr Brian Greene
Members: Mrs Elizabeth Gilmartin
Mr Pearse McKenna
Appearances:
The claimants were represented by Miss Florence Smith, solicitor, of Donnelly and Kinder Solicitors.
The respondent was not in attendance nor represented.
SOURCES OF EVIDENCE
1. The tribunal heard evidence from Martin Mohan and Sean McKeever for the first claimant. The respondent did not adduce evidence. The tribunal also had regard to the originating claim, the response and a bundle of documents of some 113 pages.
THE CLAIM AND DEFENCE
2. (1) The claimants are claiming a declaration and a protective award against the respondent for its failure to consult with the claimants about redundancies of 20 or more employees.
(2) The tribunal is satisfied that the respondent was aware of the instant hearing.
(3) The claim in relation to the first claimant only proceeded. The remaining claims were adjourned pending the outcome of the first claimant’s claim.
THE ISSUES
3. The issues before the tribunal were:-
(1) Whether the respondent has discharged its statutory duty of consultation to the first claimant under Article 216 of the Employment Rights (Northern Ireland) Order 1996.
(2) If the tribunal finds well-founded the complaint that the respondent has not complied with its statutory duty to consult under Article 216 of the Employment Rights (Northern Ireland) Order 1996, whether it should make a protective award in addition to a declaration under Article 217(2) of the Employment Rights (Northern Ireland) Order 1996.
FINDINGS OF FACT
4. (1) The first claimant was a recognised trade union within the respondent. On 10 March 2010 the respondent advised Mr Martin Mohan, shop steward, and then the whole workforce that it intended to close the business and to go into administration. It was agreed that this would be effective from 12 March 2010.
(2) At the meeting on 10 March 2010 it was agreed that a small number of workers would be retained to render the premises safe and to finish any unfinished work that might be made ready for sale.
(3) Thirty-five employees were made redundant, 25 of them on 12 March 2010, one on 19 March 2010, five on 26 March 2010, one on 31 March 2010, and three on 9 April 2010.
(4) Prior to the 10 March the respondent did not indicate to the first claimant or indeed any of the workers that redundancies were likely or that the business was likely to go into administration. In fact when queries arose about voluntary redundancies the respondent denied that there was a redundancy situation.
(5) It appears that the respondent was having financial difficulties and was making various efforts to sell the business as a going concern but these efforts proved unsuccessful.
THE LAW
5. (1) An employer proposing to dismiss as redundant 20 or more employees, within a period of 90 days, must consult, at least 30 days before the first dismissal takes effect, with the representatives of a recognised trade union (Article 216 the Employment Rights (Northern Ireland) Order 1996).
(2) Where there are special circumstances, that make it not reasonably practicable for the employer to comply with requirements of consultation, the employer shall take all steps towards compliance as are reasonably practicable in the circumstances (Article 216(9) the Employment Rights (Northern Ireland) Order 1996).
(3) Where special circumstances apply, which rendered it not reasonably practicable for an employer to comply with the consultation requirements of Article 216, the onus is on the employer to show that there were such circumstances and that he complied as far as was reasonably practicable with the consultation requirements (Article 217(6) the Employment Rights (Northern Ireland) Order 1996).
(4) Where an employer has failed to comply with a requirement of Article 216 and the tribunal finds such a complaint well-founded the tribunal shall make a declaration to that effect and may in addition make a protective award (Article 217(2) the Employment Rights (Northern Ireland) Order 1996).
(5) Where a tribunal decides to make a protective award, it shall be what the tribunal considers to be just and equitable in all the circumstances, having regard to the seriousness of the employer’s default in not complying with Article 216, but the period of the protective award shall not exceed 90 days (Article 217(3) and (4) the Employment Rights (Northern Ireland) Order 1996).
(6) The length of the protected period is what the tribunal considers just and equitable (Article 217(4) of the Employment Rights (Northern Ireland) Order 1996).
(7) The English Court of Appeal in GMV v Susie Radin Limited [2004] IRLR at 400 per Peter Gibson LJ at Paragraph 45 stated that:-
“… a proper approach in a case where there has been no consultation is to start with the maximum period and reduce it only if there are mitigating circumstances justifying a reduction to an extent which the employment tribunal consider it appropriate.”
(8) A protective award is punitive in nature and designed to impose a sanction on an employer for his failure to observe his statutory duty to consult with his employees (see Harvey and Industrial Relations and Employment Law E [2739]).
APPLICATION OF THE LAW AND FINDINGS OF FACT TO THE ISSUES
6. (1) The first claimant is a recognised trade union.
(2) The respondent declared on 10 March 2010 that it was making all hourly paid employees redundant effective from 12 March 2010.
(3) The respondent was obliged to begin a consultation with the claimant at least 30 days before the first dismissal on 12 March 2010.
(4) The respondent did not comply with its statutory obligations under Article 216(2), (4) and (6) of the Employment Rights (Northern Ireland) Order 1996.
(5) The respondent does not plead that there are special circumstances in this claim which justified it not complying with the statutory obligation in relation to consultation.
(6) The tribunal finds well-founded the first claimant’s complaint that the respondent failed to comply with its statutory requirements under Article 216 of the Employment Rights (Northern Ireland) Order 1996 and makes the declaration to that effect.
(7) The tribunal finds that the first claimant is entitled to a protective award which applies to the employees that it represents.
(8) In so concluding the tribunal took into account the following matters:-
(a) The respondent did not adduce any evidence to suggest that there were special circumstances which made it not reasonably practicable to comply with the requirements of consultation.
(b) The respondent did not give notice of the redundancies until 10 March 2010, two days before the redundancies were to commence.
(c) The respondent did not discuss with the first claimant the difficulties it was experiencing prior to 10 March 2010.
(d) The respondent maintained, when asked, that it was seeking to sell the business as a going concern.
(9) The protective award is a collective award that is only for the benefit of those employees in respect of whom the respondent has failed to consult (Article 217(3) of the 1996 Order).
(10) The protected period begins on 12 March 2010 (Article 217(4) of the 1996 Order).
(11) The length of the protected period is what the tribunal considers just and equitable (Article 217(4) of the 1996 Order).
(12) There are not any mitigating circumstances here and the tribunal measures the period of the protective award at 90 days.
Chairman:
Date and place of hearing: 15 November 2010, Belfast.
Date decision recorded in register and issued to parties: