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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Gorman v Coca-Cola HBC Northern Ireland... [2010] NIIT 235_09IT (04 January 2010)
URL: http://www.bailii.org/nie/cases/NIIT/2010/235_09IT.html
Cite as: [2010] NIIT 235_9IT, [2010] NIIT 235_09IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 235/09IT
CLAIMANT: Gerald Gorman
RESPONDENT: Coca-Cola HBC Northern Ireland Ltd
DECISION
The unanimous decision of the tribunal is that the claimant’s claims in respect of redundancy and unfair dismissal are dismissed.
Constitution of tribunal:
Chairman: Mr Wimpress
Members: Mr McAnoy
Mr Waite
Appearances:
The claimant was represented by Mr Kieran Smyth, USDAW Trade Union
The respondent was represented by Mr Conor Hamill, Barrister-at-Law, instructed by L’Estrange & Brett solicitors.
The Claim and the Response
1. In his claim form dated 9 January 2009, the claimant brought claims for a redundancy payment and unfair dismissal. The basis for the claim for a redundancy payment was stated to be that the claimant’s place of work had closed and that the respondent’s offer of employment in its new plant involved working shift patterns that would have a considerable negative impact on his marriage and cause undue distress. The claimant also contended that the respondent’s offer of employment was not a suitable alternative job. The claimant believed that everyone else who provided reasons for not accepting alternative contracts was granted redundancy. In the alternative the claimant alleged constructive dismissal based on a fundamental breach of contract.
2. In its response, the respondent provided a detailed factual history and contended that there was no redundancy situation, denied that the claimant was unfairly or constructively dismissed and denied that there was any fundamental change of contract. The respondent also contended that the move to new working patterns was reasonable and that the proposed continued employment at new premises on new work patterns constituted a continuation of the claimant’s contract or in the alternative a suitable offer of alternative employment. The respondent rejected the suggestion that the claimant would be unable to work the new shift pattern based on a review of the hours worked by him on his existing contract which included substantial elements of overtime over a considerable period.
Sources of Evidence
3. The tribunal received three bundles of documents together with a number of additional documents and heard oral evidence from the claimant, Mr Dawson and Mr Martin on behalf of the claimant and from Mr Marks, Mr Lynch and Ms McKnight on behalf of the respondent.
The Issues
4. The issues can be summarised as follows:
(i) Was the claimant entitled to a redundancy payment?
(ii) Was the respondent’s refusal to make a redundancy payment to the claimant in breach of his contract of employment?
(iii) Did the respondent’s treatment of the claimant constitute a fundamental breach of contract and thus entitle him to claim constructive dismissal?
The Facts
5. The claimant commenced employment with the respondent on 8 July 1996 and remained in its employment until 1 January 2009. The claimant was employed as a general plant operative and worked on shifts. The Union of Shop, Distributive and Allied Workers (‘USDAW’) was one of two trade unions recognised by the respondent for the purpose of collective bargaining.
6. In 1999, the claimant was issued with a principal statement of employment particulars by the respondent in accordance with the Employment Rights (Northern Ireland) Order 1996. This document was signed by the claimant on 3 October 1999 and in doing so he agreed to be employed by the respondent on the terms and conditions set out in this document and those contained in the staff handbook. Clause 1 of the document identified the claimant’s normal place of work as “Coca-Cola Bottlers (Ulster) Ltd, The Green, Lambeg Lisburn, BT27 5SS”. The document made provision for the variation to working arrangements as follows:
“Your terms and conditions of employment are subject to a collective agreement between the company and the Union of Shop, Distributive and Allied Workers. From time to time variations in your terms and conditions resulting from consultation, negotiations and agreements with the union will be separately notified to you or otherwise incorporated into documents to which you will have access within one month of change.”
The staff handbook also made provision in relation to shift patterns.
7. In 1996, the respondent announced that it was reorganising its business. This involved concentrating its bottling activities at a new plant which was to be built at Knockmore Hill, Lisburn. The bottling activities would therefore move from the Lambeg factory, which would be closed, and from a bottling plant in Dublin to the Knockmore Hill site. The main change in working arrangement was to be the introduction of 24/7 shift patterns. Protracted discussions and negotiations ensued with USDAW about pay, redundancy payments and shift patterns. The outcome of these discussions and negotiations insofar as is material to these proceedings was set out in a letter from Ms McKnight to the USDAW representative, Mr Kieran Smyth, dated 10 January 2007. This letter contained details of how day workers and shift staff would be treated under the new arrangements as follows:
“that it is accepted that day workers being asked to move to 24/7 working will be entitled to redundancy but that this will be dependent on securing a positive ballot.
that day workers who wish to avail themselves of a trial period, of up to 3 months, for full 24/7 shift working, will be allowed to do so and still be entitled to redundancy in the event that the working regime is not suitable for them.
That existing shift staff with a genuine personal, health or domestic reason for not being able to transfer to full 24/7 working will be favourably looked upon for redundancy.”
Accordingly, day workers were automatically entitled to redundancy under this agreement whereas shift workers such as the claimant had no such entitlement but would be favourably looked upon for redundancy if they had a genuine personal, health or domestic reason for not being able to transfer to full 24/7 working.
8. Staff were balloted and this resulted in USDAW’s accepting the company’s proposal. A consequence of this was that a new collective agreement would become effective as regards the claimant on his transfer to 24/7 working. On 28 March 2008, Ms McKnight wrote to the claimant and provided details of the new rates of pay and revised conditions. The main features of this were that the claimant’s basic pay would rise from £13,720 to £17,250 and that his shift allowance would rise from £3430 to £5,639.
9. Subsequently, the respondent issued forms to shift workers in relation to “Possible redundancy arrangements”. The material portion of the form read as follows:
“For staff who for personal, domestic, health or family reasons feel they cannot transfer to 24/7 working at Knockmore Hill and wish to be considered for redundancy please complete the section below and return it to Heidi Gardiner, Human Resources, before 30 April 2007. A meeting will be arranged with your Team Manager and Human Resources as soon as possible to discuss the matter further.
10. The form contained standard wording which the claimant completed on 11 April 2007 as follows:
“I do not wish to transfer to 24/7 working at Knockmore Hill and I would like a quotation regarding the amount of my Redundancy Payment should I decide to leave the company.
The main reason(s) for my decision is:
My wife works a double shift pattern in her job, earlies and lates; we would never see each other; holidays would never be together. We always attend mass together at the weekends. My marriage would suffer from the new shift pattern; hours are too long; my own health and well being would suffer, as well as my family and social life. Any time off would have to be on my own; No job is worth the above."
11. As a result of submitting this form, the claimant was interviewed by Mr Alan Marks on 15 April 2007. Mr Marks had been hired by the respondent to assist with the reorganisation. Mr Marks made a handwritten note of the meeting. Mr Lynch was present in the office that the meeting took place in but was not involved in the meeting. The main points noted by Mr Marks were that the claimant wanted to continue to work for the respondent but did not want to work 24/7 shifts and would fight tooth and nail for day work and if not successful he would avail of redundancy. The note also recorded that the claimant saying that he would be prepared to work a trial period but that Mr Marks advised him that he was not entitled to a trial period or redundancy. Mr Marks also told the claimant that he would advise him next week about the possible availability of day work. The note also recorded that the claimant was previously offered a waste management job but declined it and that he suggested that he would be prepared to work as a groundsman, janitor or bog cleaner.
12. On 7 November 2007, Ms McKnight wrote to the claimant and advised that as the respondent considered that it had a suitable alternative job for the claimant at the new plant he did not have an automatic right to redundancy but that the respondent was considering his request to be released on redundancy and that his particular circumstances would be further considered by the respondent.
13. On 12 February 2008, Mr Marks made a handwritten note on Ms McKnight’s letter of 7 November 2007 in the following terms:
"No substantial reason for redundancy other than not wishing to do the 12 hour shifts. Will fight this if application rejected."
14. Mr Marks also recorded the claimant's reasons in summary form on a spreadsheet along with other employees which read, "Wife works 2 shift pattern. Hours too long.”
15. Mr Marks subsequently met with the claimant on 24 July 2007. Mr Marks made a note of their discussion which again recorded the claimant saying that he couldn’t work 24/7 and that his wife worked two shifts and indicated that this was a problem. Similar notes were made in respect of the other employees who were interviewed by Mr Marks.
16. There was no written record of the precise shifts worked by the claimant’s wife but the claimant gave evidence that she worked from Monday to Friday only and that her shift pattern was originally 7.00 am to 3.00 pm and 3.00 pm to 11.00 pm but that the late shift had subsequently changed to 3.00 pm to 12.00 am with a 3.30 finish to the early shift on Fridays.
17. The claimant also gave evidence that he would have to work 22 weekends per year and public holidays under the new contract. In addition, at Lambeg he could take holidays when he wished subject to the agreement of his manager. The claimant would have had a problem with summer holidays but considered that public holidays would be manageable under the new contract. The claimant accepted that he did not raise the holiday issue with Mr Marks and that he did not refer to his personal problems at the meeting with Mr Marks.
18. The claimant gave evidence to the tribunal that he and his wife were trying to start a family and had been advised by a specialist that long hours and shift work was not conducive to him becoming a father. The claimant gave evidence to the tribunal that he advised Mr Marks that he and his wife were trying to conceive or that he had fertility problems and claimed that he told Mr Marks about this both during the meetings and outside the meetings but he did not really respond. In particular, the claimant alleged that he did mention these matters at the meeting on 15 April 2007. Mr Marks gave evidence that he met with the claimant a number of times between April 2007 and April 2008 and that although the claimant did refer to the effect of the new shifts on his marriage, he did not make any mention of difficulties in conceiving a child and that if he had done so, he would have asked the claimant to provide medical evidence. It is clear that other employees with medical issues were required to provide doctors’ letters. The claimant accepted that he did not produce any medical letter or evidence of this nature to Mr Marks. The claimant did not refer to these difficulties in his correspondence or at the appeal or in his claim form and it was clear from the manner in which he gave his evidence that he was most reluctant to speak about them. The claimant suggested that Mr Marks should have had a record of these problems and that he expected such records to be produced at the appeal hearing. However, Mr Marks made no record of any such problems and denied being told about them. We therefore cannot accept the claimant’s evidence on this point.
19. After Mr Marks made his assessments of the applications for redundancy, he discussed the matter with Ms McKnight who made the final decisions. On 2 May 2008, Ms McKnight wrote to the claimant and informed him that the respondent had decided not to release him on redundancy. Ms McKnight further advised that if any additional day positions became available these would be advertised on internal notice boards and that the claimant could apply for these if he met the criteria. Ms McKnight concluded by saying that no additional day-based roles were planned in the Supply Chain structure.
20. On 6 May 2008, the claimant wrote to Ms McKnight seeking to appeal the decision. The claimant stated that the new proposed working hours would be a significant change to his existing contractual agreement. The claimant also gave his reasons again as follows:
"I believe the new shift patterns would have a considerable negative impact on my marriage and cause undue stress, due to unsocial hours of work."
The claimant went on to say that he considered this to be an "unacceptable outcome". Again there was no reference to fertility problems.
In the claimant’s claim form he referred to having raised the subject matter of his complaint in writing with the respondent on the same date. We understand him to be referring to this letter. The respondent also referred to this letter in its response when commenting on whether any aspects of the claim had been raised with it in writing. Neither party raised any complaint about failure to comply with the statutory grievance procedures.
21. In response to the claimant's request for an appeal, a meeting was arranged on 31 July 2008. Mr Lynch was briefed by Ms McKnight about the matter but was not provided with a copy of the letter of 10 January 2007. The claimant attended the meeting with Mr Smyth which was chaired by Mr Michael Lynch. Ms Heidi Gardner attended as note taker. Mr Lynch told the claimant that the meeting was an opportunity for him to say why he was unable to work the shift patterns at Knockmore Hill. Mr Lynch noted that the claimant had said that it would have a detrimental effect on his home life and asked him if he could expand on why he felt that it was unreasonable. In response the claimant stated that his wife wouldn't let him go and she worked when he was off and that they would never see each other. The claimant went on to say that it was too hard and that he already did a lot of hours. The claimant explained that his wife worked two shifts, “earlies and lates” and that if he was on nights he would never see her and that she was off on public holidays and that the respondent had changed their holidays. His wife's shifts were 7.00 to 3.00 and 3.00 to 12.00. Mr Lynch asked the claimant if he had anything else to say and he replied that he couldn't do shifts and that he would have no marriage.
22. The claimant accepted that he did not mention difficulties in starting a family to Mr Lynch. His explanation for not doing so was that he believed that Mr Marks (whom he claimed to have raised this issue with) would have informed Mr Lynch about it. We do not regard this as a credible explanation and it strikes us as far more likely that the claimant simply did not wish to discuss his private life. Furthermore, it must have been clear to the claimant during the appeal hearing that no such record was available and he could easily have rectified this omission by drawing these matters to Mr Lynch's attention had he wished to do so. While his failure to do so is entirely understandable, it was clearly detrimental to his prospects of persuading Mr Lynch to overturn Ms McKnight’s decision.
23. Having heard the claimant's case, Mr Lynch set out the respondent's perspective which was in essence that the respondent had made the claimant a reasonable offer and that in any event the claimant had been doing considerable overtime over the previous eighteen months averaged fifty six and a half hours per week including weekends and that therefore he could work the shifts at Knockmore Hill as he would be working thirteen and a half hours less per week there.
24. The claimant maintained that the new shifts would mean that he wouldn't see his wife and that he would lose his wife. The claimant also stated that he was contractually required to do overtime and that the respondent had him living beyond his means. According to Mr Smyth the claimant had told him that he was doing overtime because he needed the money to act as a cushion as he was not going to Knockmore Hill. The claimant also made the point that the production manager, Mr Tully, had told him that doing overtime would not affect his redundancy. There then followed some discussion about other jobs and the meeting was closed by Mr Lynch who indicated that he would give his decision in a couple of weeks.
25. On 2 September 2008, Mr Lynch wrote to the claimant and informed him that his appeal had not been allowed. Mr Lynch advised the claimant that he did not have an automatic right to redundancy because he was being offered a suitable alternative job at the Knockmore Hill site. Mr Lynch also addressed the claimant’s “inability” to work “unsociable hours” and indicated that he did not accept that the claimant was unable to do so because he was working fifty six and a half hours per week at the Lambeg site 79% of which was at weekends as opposed to a 43 hour working week at Knockmore Hill. Mr Lynch concluded the letter by expressing the hope that the claimant would accept the outcome and would take up his new role at Knockmore Hill.
26. On 24 September 2008, Margaret Stewart the Head of Human Resources – Ireland, wrote to the claimant informing him that he would be moving to Knockmore Hill as a Technician on 27 October 2008 and advising of resulting changes to his contract, a basic annual pay of £17,974.50 per annum, a shift allowance of £5,932.59 with an average of 43 hours per week based on 24/7 shift working.
27. On 26 September 2008, the claimant responded and advised that because of major changes to his new contract, changing to a 24/7 shift pattern would cause a long term negative impact on his marriage and undue stress, he was unable to do 24/7 shifts and as of 6 October 2008, he considered himself made redundant.
28. On 30 September 2008, Mr Lynch replied to Mr Gorman’s letter. Mr Lynch rehearsed the history of the matter and advised the claimant that the respondent did not consider that he was either entitled to redundancy or had been made redundant and therefore expected him to report for work on 6 October at Knockmore Hill. Mr Lynch also warned the claimant that if he did not report for work, the respondent would have no alternative but to initiate the procedure for dealing with staff who were absent from work without authority. On a more conciliatory note, Mr Lynch went on to mention that at the request of the claimant’s trade union, the respondent had exceptionally looked at retaining the claimant at Lambeg beyond the closure of the canning line in recognition of the circumstances in his case. Mr Lynch noted that the claimant had been offered the opportunity to postpone his move to Knockmore Hill until the end of October but presumed from the claimant’s letter that he did not propose accepting that offer.
29. As appears from subsequent letters from Mr Lynch to the claimant of 16 October, 23 October and 14 November and 15 December 2008 the claimant did in fact take up the offer which was extended to 22 December 2008 with the intention on the part of the respondent that the claimant should ultimately take up work at Knockmore Hill on 2 January 2009.
30. On 22 December 2008, the claimant sent six letters in identical terms to Margaret Stewart, Katherine Strain, Heidi Gardner, Mark Haughey, Libbi McKnight and Mr Lynch, in which he stated that he was unable to do the new contract because of fundamental changes to his new contract changing to 24/7 shift patterns and holidays built into the shift rota. The claimant asserted that he was the only person who had been refused redundancy but that he believed that he was redundant due to the closure of his place of work, the long term negative impact on his marriage and the unsuitable contract that he had been offered in the new plant.
31. On 23 December 2008, Mr Lynch replied to this correspondence on behalf of all of the recipients. Mr Lynch referred back to his letter of 30 September 2008 and reiterated that the respondent did not regard him as redundant because there was a suitable alternative job at Knockmore Hill and that if the claimant did not report for work at Knockmore Hill on 2 January 2009 he would be considered to be absent without permission and that this would lead to disciplinary action.
32. The claimant did not report for work at Knockmore Hill on 2 January 2009 or on the following three days and on 6 January 2009, Mr Lynch wrote to him to advise that he would not be paid for these days and would continue to withhold pay until his return to work. Mr Lynch reiterated that that the claimant was not in a redundancy situation and noted that the claimant was due to report for work again on 9 January 2009 and reminded him again of the prospect of disciplinary proceedings if he remained absent without authority which could result in his dismissal.
33. On 9 January 2008, the claimant issued the present proceedings.
34. The claimant remained absent from work and on 12 January 2009, Mr Lynch wrote to the claimant and invited him to attend a disciplinary hearing on 16 January 2009 in respect of his absence without authority and warned him that the respondent regarded this as potentially gross misconduct which if proven could result in his dismissal.
35. On 15 January 2009, the claimant wrote to Heidi Gardner and again stated that he believed that he had been made redundant because the shift rota in the new contract was unsuitable to him. The claimant went to state that on the advice of his union he had not been absent without authority, that he had no disciplinary hearing to answer and that he would not be attending the meeting on 16 January 2009.
36. Mr Lynch responded to this letter on 16 January 2009 and re-stated the respondent's position in relation to the claimant's alleged redundancy. Mr Lynch also rehearsed the reasons for the original decision and the appeal and advised the claimant that he continued to be absent without authority and that the disciplinary hearing date would be rearranged. On the same date the plant manager, Katherine Strain, wrote to the claimant and advised that the hearing would take place on 23 January 2009 and asked him to confirm his attendance.
37. On 19 January 2009, the claimant contacted Ms Gardner by telephone and advised that he would not be attending the hearing. Ms Strain subsequently responded on 29 January 2009 to say that the respondent was considering the implications of his continued absence and would write again once she had made her decision. The matter petered out thereafter.
38. Of 17 day workers who applied for redundancy for welfare reasons, 13 were granted and 4 were refused. There were two appeals (including the claimant) against the refusal of redundancy, one of which was withdrawn.
Submissions
39. Both parties provided the tribunal with helpful written submissions which are attached to this decision and are summarised below:
Claimant’s Submissions
(1) Mr Smyth submitted that the claimant was entitled to a redundancy payment on the basis that the respondent had ceased to carry on a business at his place of work, Lambeg, on 31 December 2008.
(2) Mr Smyth further submitted that the claimant was entitled to refuse alternative employment if it was unreasonable. Mr Smyth submitted that it was unreasonable because (i) the claimant and his wife were having difficulties trying to conceive, (ii) the claimant’s wife would leave him if he took on the new contract, (iii) the new 24/7 shift patterns incorporated holidays and public holidays and the claimant would have to work 20 weekends on the new contract as opposed to no weekends at Lambeg, (iv) the fundamental importance that the claimant attached to his marriage.
(3) Mr Smyth submitted that these personal circumstances were not fully considered by Mr Marks who made few notes and that the decision had already been taken to refuse the claimant redundancy and a trial period.
(4) Mr Smyth also criticised the appeal decision by Mr Lynch on the basis that he was unaware of the collective agreement and disregarded the claimant’s reason for doing overtime in which respect he was supported by Mr Dawson. Mr Smyth also drew attention to evidence given by the claimant that a senior manager, Mr Tully, had told him that doing overtime would not affect redundancy.
(5) Mr Smyth also submitted that the respondent was in breach of the contract as amended by the collective agreement by failing to follow the agreed formula.
(6) In the alternative, Mr Smyth contended that the respondent’s failure to comply with the terms of the agreement and constituted a fundamental breach of contract as any reasonable employer would have accepted the claimant’s evidence as to the affect of the new contract on his marriage.
Respondent’s Submissions
40. Mr Hamill’s submissions on behalf of the respondent may be summarised as follows:
(1) What occurred was a lawful variation of contract rather than a redundancy situation as there was no reduction in the work which was available for all employees at the new plant at Knockmore Hill. A change of shift patterns does not of itself create a redundancy situation. The claimant’s case was not based on a change of premises.
(2) The variation of the claimant’s terms and conditions of contract was agreed by USDAW on the claimant’s behalf as part of the collective agreement. The agreement provided that day workers would be offered redundancy as of right while shift workers, such as the claimant, with genuine reasons for not transferring would be considered for redundancy. There was no suggestion that shift workers would automatically be given redundancy.
(3) In deciding against the claimant the respondent had regard to (i) the claimant’s existing hours and pattern of work, (ii) the fact that the claimant’s wife worked a two shift pattern, (iii) the new hours of work, (iv) the substantial increase in pay, (v) the consequent lack of a need for the claimant to perform overtime, (vi) an increase in days off under the new contract, (vii) that there was a continuing need for the claimant’s job and (viii) that the new site was nearer the claimant’s home. The reasons given by the claimant for not wanting to move did not include any suggestion of divorce or separation and did not make any mention of difficulties in trying to start a family.
(4) Mr Lynch was fully briefed by Mr Marks and Margaret Stewart and Mr Lynch gave detailed consideration to the claimant’s circumstances which demonstrated that he would have more contact with his wife under the new contract. The claimant was given a full opportunity to state his case and he failed to raise the fertility issue or produce any medical evidence in support of his case. This matter was only raised when the claimant gave evidence to the tribunal.
(5) Mr Hamill refuted the suggestion that applications by shift workers for redundancy were not given favourable consideration and drew attention to the evidence that 13 out of the 17 workers who applied for redundancy for welfare reasons were granted. The claimant did not make the case that there was any unfairness or disparity of treatment. Ms McKnight also gave unchallenged evidence that if she could find a way to grant redundancy she would do so.
(6) Although the claimant did not have a contractual entitlement to a trial period, it was always open to the claimant to take a trial period but he was not interested.
(7) In relation to constructive dismissal, Mr Hamill submitted firstly that there was no breach of contract as the matter was provided for in the collective agreement and secondly that if there was a breach of contract it could not be regarded as repudiatory as its purpose was to preserve and enhance the claimant’s contract of employment. Under the new contract some weekend work was required but there was a substantial increase in the number of full days off, from 143 to 230. Mr Hamill further submitted that if the breach was repudiatory, the claimant had delayed too long in acting on it. In addition, Mr Hamill submitted that the respondent was seeking the claimant’s continued performance of the contract which was the opposite of repudiation.
(8) Mr Hamill also submitted that if there was no redundancy situation, this could not give rise to a claim of constructive dismissal on the basis of an entitlement to redundancy as there was no contractual right to redundancy arising from the collective agreement but rather a right to apply for consideration for redundancy together with consideration being given by the employer to individual circumstances and an opportunity to state a case.
(9) Mr Hamill also made the case that the claimant was not seeking to rely on an actual state of affairs but on an unproven possibility and that the respondent’s reasoning on this issue was sound and objective. The claimant’s actions were also relevant and that he had turned down day work, refused to attempt to work the new shift and had produced no evidence or reasons to the respondent as to future problems.
Both parties’ written submissions addressed remedies and loss which we do not propose to summarise.
41. Both parties’ representatives also made helpful oral submissions.
The Law
42. Redundancy
The main provisions in relation to redundancy are contained in Articles 170 and 174 of the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”):
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.
(5) In paragraph (1) "cease" and "diminish" mean cease and diminish either permanently or temporarily and for whatever reason.
The authors of Harvey comment on this type of redundancy claim at Division E Redundancy in the following terms:
“(c) Varying the terms and conditions of employment
[937] Similarly, if the employer seeks to reduce costs or improve efficiency by imposing a change in the terms and conditions of employment, that may give rise to issues in relation to unfair dismissal, but there is no redundancy situation, if overall, the business still requires the same number of employees to carry out the same amount of work:
“…..if the requirement for employees to do work of a particular kind remains the same, there can be no dismissal by reason of redundancy, notwithstanding any unilateral variation to their contracts of employment….”
Rescheduling of Shifts
[939] The weight of authority is that changing shift patterns does not of itself create a redundancy situation: you must, as always, investigate whether on the evidence the business still needed as many employees to do work of the particular kind in question.”
Breach of Contract
The Industrial Tribunal Extension of Jurisdiction (Northern Ireland) Order 1994 confers jurisdiction on industrial tribunals to hear claims for breach of contract that either arise or are outstanding on the termination of a contract of employment.
Constructive Dismissal
43. Article 126 of the 1996 Order sets out the right not to be unfairly dismissed and Article 127 in so far as relevant provides as follows:-
“127(1) For the purposes of this Part an employee is dismissed by his employer if (and, subject to paragraph (2), only if) –
(c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer's conduct.”
44. The authors of Harvey at D1[403] described four conditions that an employee must meet if they are to claim constructive dismissal:-
(1) There must be a breach of contract by the employer. This may either be an actual breach or an anticipatory breach.
(2) That breach must be sufficiently important to justify the employee resigning, or else it must be the last of a series of incidents which justify his leaving. Possibly a genuine, albeit erroneous, interpretation of the contract by the employer will not be capable of constituting repudiation in law.
(3) He must leave in response to the breach and not for some other, unconnected reason.
(4) He must not delay too long in terminating the contract in response to the employer’s breach, otherwise he may be deemed to have waived the breach and agreed to vary the contract.
45. The leading case in relation to constructive dismissal is Western Excavating (ECC) Ltd v Sharp (CA) [1978] ICR 221 in which it was held that an employee’s entitlement to terminate his contract of employment by reason of his employer’s conduct was to be determined in accordance with the law of contract and not by applying a test of unreasonableness to the employer’s conduct.
Conclusions
Redundancy
46. The first matter to determine is whether the claimant is entitled to a redundancy payment. The question of whether an employee is redundant must be determined in accordance with Article 174 of the Order. It is a prerequisite that there must be a dismissal for an employee to be entitled to a redundancy payment under Article 174(1). It is not in dispute that there was no dismissal in the ordinary sense of the word. While it is clear that the plant in which the claimant was employed did indeed close, there was no business need for redundancies as the respondent was simply reorganising its workforce on a new site with a new shift pattern system. Accordingly, the claimant was not dismissed and has no statutory right to a redundancy payment. In view of our findings on the redundancy issue, Mr Smyth’s argument about the claimant’s alleged entitlement to refuse alternative employment falls away.
Breach of Contract
47. The next matter to determine is whether the claimant had any contractual entitlement to a redundancy payment. We are satisfied that the correct legal analysis is that the collective agreement negotiated between the respondent and USDAW had the effect of incorporating the terms of the letter of 10 January 2007 into the claimant's contract of employment, the relevant contractual provision being that shift workers with genuine personal, health or domestic reasons would have their applications for redundancy treated favourably. The new system meant that most of the work would be carried out by shift workers rather than day workers. For this reason the agreement negotiated with USDAW provided that day workers were automatically entitled to redundancy payments. However, existing shift workers such as the claimant had no more than an entitlement to be considered for redundancy if they had a genuine reason for not moving to the new shift patterns.
48. In the first instance Mr Marks made recommendations in relation to such applications and the final decision was then made by Ms McKnight in consultation with Mr Marks. The claimant's application was refused because the respondent was not satisfied that his reasons were genuine on the basis that it believed that he could work the shifts as he was already working a considerable amount of overtime at the Lambeg plant. The claimant's complaint about this aspect of the process was essentially that his application did not receive favourable consideration but rather it was subjected to a detailed analysis. The respondent countered that it was entitled to do this in order to satisfy itself that the application was genuine in the sense of being real as opposed to dishonest. We have some difficulty in accepting Ms McKnight’s evidence that if she could have found a way to grant redundancy she would have done so. The claimant maintained throughout the process that he had personal/domestic reasons for not wanting to move to shift work and it would have been open her to have accepted this at face value as a genuine reason.
49. Mr Lynch heard the appeal but was not provided with a copy of the letter of
10 January 2007. Mr Lynch approached the matter by seeking to determine whether or not the claimant was able to work the shift pattern at the new plant. While this approach was consistent with the first part of the formula which was to ascertain whether the claimant had a genuine reason for not being able to work the shifts, it was conducted in ignorance of the contractual requirement to treat genuine applications favourably. It is unsatisfactory that Mr Lynch did not have access to the letter of 10 January 2007 which was the key document in the process. However, it is unsurprising that Mr Lynch approached the matter in this way given that this had been the focus and methodology adopted by Mr Marks whose decision was under review and who was privy to the letter. Mr Lynch examined the evidence and concluded that the claimant could work the new shifts as he already working long hours including overtime at weekends.
50. In our view the correct approach is for the tribunal to determine whether the respondent's approach was reasonable. In answering this question the tribunal must consider only the information that the claimant provided to the respondent. We are satisfied that the claimant did not at any stage seek to make the case to the respondent that that he and his wife were trying to conceive or that he had fertility problems and the respondent could only deal with the matter on the basis of what the claimant decided to disclose.
51. While it is clear that both Mr Marks and Mr Lynch engaged in a rather forensic examination of the claimant’s hours, they were entitled to do so under the terms of the letter of 10 January 2007. In these circumstances, we cannot be satisfied that the refusal of the claimant’s application constituted a breach of the contractual terms embodied in the letter. The wording did not guarantee that such applications would be successful only that they would be considered favourably if there was a genuine reason for the employee not transferring to the new plant. Thus the wording enabled the respondent to consider whether the reason proffered was genuine or not. While we might have come to a different conclusion we cannot conclude that the respondent’s actions were in breach of the claimant’s contract.
Constructive Dismissal
52. Nor are we satisfied that that the claimant can succeed on the basis of constructive dismissal for the simple reason that we are satisfied that there has been no breach of his contract and therefore the question of whether such a breach was fundamental or otherwise does not arise. The claim must therefore be dismissed.
53. As we have made clear we have considerable sympathy for the claimant who was a hard working and loyal employee but his claim cannot succeed for the reasons given. It is regrettable that this matter was not resolved between the parties either through negotiation involving USDAW or through the grievance procedure.
Chairman:
Date and place of hearing: 29, 30 & 31 July 2009, 3 September 2009, Belfast.
Date decision recorded in register and issued to parties:
The Office of the Industrial Tribunal
Claim No: 235/09 IT
Between:
Gerald Gorman
Claimant
And
Coca-Cola HBC Northern Ireland Ltd
Respondent
Submissions for the Respondent
Facts
The Respondent asks the Tribunal to find the following:
1.1.
Following a review of its’ operations in the island of Ireland in the early
2000’s and negotiations the respondent invested in the creation of a new expanded
plant based in Northern Ireland to produce and distribute its’ products,
1.2. The construction of the Plant in NI (at a site in Lisburn) was dependent upon the operation of same on a “24/7” basis, that is effectively nonstop operation with shift work organised on a 7 day per week and 12 1/2 hour shift system.
1.3. The
move to this mode of operation was undertaken under a Collective:
agreement (“the agreement”) entered into by the respondent and two Unions, one
of whom was USDAW and whose members had voted to accept the move, new shift
system and remuneration package following negotiations and ballots which took
place through 2006 and 2007. It is important and central to the case to note
that the validity of this agreement has not been challenged. There was in this
instance a genuine bilateral agreement to vary the terms & conditions of
employment.
1
1.4. The agreement and its’ binding effect are specifically provided for in the Claimant’s Contract of Employment at “Variation to Working Arrangements”. In addition, the Contract provides for the alteration of the claimant’s hours of work at Point 9 Page 1 “Hours”. The change in working pattern was thus lawful, agreed, binding on the parties and reasonable, being made for genuine operational reasons.
1.5. The move to the new plant meant an overall increase in the number of employees and work was available for all existing employees.
1.6. In the process of the negotiation an issue arose as to the effect of the new system upon various classes of employee. Certain classes, including Day Workers, were offered Redundancy as of right, should they request same.
1.7. In addition it was indicated that should other employees with genuine reasons, which can be classed as “welfare” reasons, make application for redundancy payments rather than move this would be looked on “favourably”. In correspondence to all employees (pp 26-28) staff were invited to apply for “possible redundancy arrangements” should they “wish to be considered for redundancy” (28).
1.8. The Respondent set up a process, administered by Alan Marks, for the said consideration of individual cases. Mr. Marks did this by a series of meetings, conversations and by the gathering of appropriate information in each instance. In relation to individual medical issues he directed the applicants to acquire relevant medical reports, etc.
1.9. It has not been suggested that the Respondent ever stated such cases would automatically get redundancy as per day workers. No such evidence has been given by the Claimant or his Rep. nor was any such argument made at the time of in the claimant’s various meetings.
1.10. In
the case of the claimant there were a series of meetings and several
conversations over a period of months. The Claimant asserted that he did not
wish to transfer to the new site and system because:
-
See “Possible redundancy
arrangements” document (28)
-
“can’t work 24/7 wife works 2
shifts —probs” (54 r2)
-
“no substantial reason for
redundancy other than no wish to work 12 1/2 hour shifts will fight through TU if
rejected” (28a)
-
See meeting note of 15/4/08
(28b)
-
“(it) . . . would have a considerable negative impact
on my marriage & cause undue stress...”
-
See Appeal Hearing (32)
2
- Letter of 26/9 “….negative impact on my marriage and undue stress”. (46)
- Letter of 22/12/08 “….long term negative impact on my marriage, and cause undue stress.” (59)
NB: Please note in all these instances the Claimant did not say he faced divorce or separation but rather that he would “have no marriage” because they would not see each other, which argument was met and answered by the Respondent.
1.11. The Respondent considered these reasons and concluded they were not sufficient to allow the payment of redundancy to the claimant. In coming to this conclusion the Respondent had regard to
-
-the Claimant’s
existing hours and pattern of work
- -
his wife being on a 2 shift
system
- the hours presented by the new system
-
the new pay structure, which
would result in a substantial increase in basic pay
-the consequent lack of need for the
claimant to work any overtime in order to maintain his income
-
the marked increase in days off work the
new system afforded
-- the fact that his job continued to exist
and that there was a continuing need for the said job and duties to be carried
--
the fact that he would be
continuing to carry out his existing duties, albeit much more conveniently to
his home.
1.12. The outcome was communicated to the claimant orally on 15 April 2008 and by letter of 2” May 2008 (29).
1.13. The
respondent agreed to allow an Appeal from this decision, which it should be
noted was outside any statutory or contractual procedure: At the Appeal the
matter was re-considered by Mr. Michael Lynch, who had taken over from Mr Marks
and had been fully briefed by both Mr Marks and the Head of HR for Ireland, Margaret Stewart. Mr Lynch again had regard to the factors listed above and
conducted a detailed consideration of the Claimant’s work pattern in order to
demonstrate the differences and persuade the claimant that the new shift would
provide more time for family than his previous pattern. At the Appeal the
Respondents’ reasoning was explained to the claimant and he was given several
3
opportunities to put forward
whatever arguments and/or evidence he or
his representative wished.
1.14. At
no time did the Claimant go further in his reasoning than set out at 1.8
above. Specifically the Claimant did not advance any argument in
relation to fertility issues and, despite their common knowledge, neither
he nor his representative sought to raise the matter or obtain any medical
evidence in support of same.
1.15. At
the Appeal the claimant and his rep. repeatedly stated that he would
not move site or shift and indicated that the claimant had put money aside
to deal with same. The claimant indicated he would only move to a day
job. It is accepted there were no such jobs available at that time. It should
also be noted that the claimant appears to have previously discounted the
offer of a day job (h/w meeting note).
1.16. The
claimant continued in the Respondents’ employment thereafter.
Despite indicating by letter of 26th
September 2008 that he
considered
himself redundant as of 6th October the respondent attempted to prolong
his employment and provided repeated extensions of employment at
Lambeg until the last available date, 22 December 2008. At that point
the claimant elected to treat himself as redundant. He did not attend for
work at Knockmore Hill as expected on the 2 January 2009.
1.17. The
Respondent continued to treat him as an employee and attempted to
contact him & conduct an investigation into his absence up until 19th
January 2009 when he
complained of being “hassled”.
1.18. Subsequently,
on 9th March 2009 the claimant was informed of
opportunities, then being advertised internally only, for day work jobs.
He did not respond to this.
1.19. Since
his resignation the claimant has had two jobs, one of which he
deliberately chose not to disclose. This job was a permanent post which
he chose to resign from after one day as a result of his lack of confidence
in driving a van/trailer.
Law
The claim is brought under two headings
REDUNDANCY
4
a. It is important to note firstly that there was not a redundancy situation here as defined by law. There was no reduction in work available or the need for workers to carry it out.
b.
It is submitted that the situation was that of a variation of contract within
the lawful scope of the contract. This is evidenced by both the contracts terms
and Collective agreement as referred to at 1.4. See also Harvey:
Redundancy.6.D.9.©
“(c) Varying the terms and conditions of employment
[937]Similarly, if the
employer seeks to reduce costs or improve efficiency by imposing a change in
the terms and conditions of employment, that may give rise to issues in
relation to unfair dismissal, but there is no redundancy situation if, overall,
the business still requires the same number of employees to carry out the same
amount of work:
if the requirement for employees to do work of a particular kind remains the
same, there can be no dismissal by reason of redundancy, notwithstanding any
unilateral variation to their contracts of employment (Safeway Stores plc v Burrell [1997] IRLR 200 at 207, per the EAT, citing
Chapman v Goonvean and Rostowraclc China Clay Co Ltd [1973] 2 All ER 1063, [1973] ICR 310, CA
(para [854] above); Lesney Products & Co Ltd v Nolan [1977] IRLR 77, [1977] ICR 235, CA (para
[942] below), and Johnson v
Nottinghamshire Combined Police Authority [1974] 1 All ER 1082, [1974] IRLR 20, [1974] ICR 170,
CA (para [940] below)).”
c. From the same source on the issue of
Rescheduling of shifts (6.D.9.c):
“[939] The weight of authority is that changing shift patterns does not of itself create a redundancy situation: you must, as always, investigate whether on the evidence the business still needed as many employees to do work of the particular kind in question.
5
[940] Johnson v Nottinghamshire Combined Police Authority [1974] 1 All ER 1082, [1974] IRLR 20, [1974] ICR 170, CA: Two female (civilian) clerks were employed five. days a week 9.30 to 5 or 5.30. The employers changed the hours to two shifts of 8 to 3 and 1 to 8, six days a week, alternate weeks. The tasks to be performed remained exactly the same and therefore the tribunal, the NRC and the Court of Appeal all held unanimously that there was no redundancy situation.
[941] But both the NRC and the Court of Appeal said that the employer may not
avoid liability for redundancy payments by hiding the diminished requirements
of his business behind an artificial change in hours.
[942]Similarly in Lesney Products & Co Ltd v Nolan [1977] IRLR
77, [1977] ICR 235, CA, the employers embarked upon a major reorganisation.
They abolished the night shift, dismissed several employees and duly paid
redundancy payments. They then reorganised the day shift. Instead of one long
day shift plus overtime, they began to operate a double day shift. Some machine
setters were aggrieved. Previously, they worked 8 to 5, Mondays to Thursdays,
and 8 to 2.30 on Fridays. After the reorganisation they worked 7.30 to 3.30 or
2 till 10, Mondays to Fridays. In other words they worked a 40 hour week
instead of a 42 hour week. Some refused to accept the new arrangements and were
dismissed. Held: no redundancy situation. On the evidence, once the night shift
had gone, the output remained the same and the same number of machine setters
was still needed. There was therefore no diminution in the requirements of the
business either for machine setting or for machine sellers.
[943]See to similar effect Kykot v Smith Hartley Ltd [1975] IRLR
372, PhillzpsJ, and Daly Orr [1980] IRLR 413, EAT.”
d. As it effected the Claimant and other “welfare” requests, the
employer had agreed to consider their cases on an individual basis.
This was done “favourably”, note that 17 applied, 13 were granted, 4 were
refused of whom only 2 appealed and only 1, the claimant resigned.
6
e. Note also the evidence (unchallenged) by
the Respondents’ witnesses of the Respondents’ ethos & their attitude;
we could find a way to
justify redundancy we would do so. We were trying to find a way to be
sympathetic to individual cases.., we were not trying to exclude people...I
needed to be able to justify spending the money..” (L.McKnight)
It is submitted the validity of this explanation is self-evident and has not
been challenged.
f. It is not apparent how the Tribunal can gainsay or challenge the decision of the employer in these circumstances other than in terms of a gross unfairness/disparity of treatment. This is not a discrimination or victimisation case. It is submitted that this decision should only be examined in line with the “band of reasonable responses” test applied in dismissal cases.
g. That being so, it must be noted that there
is a substantial danger of the Tribunal substituting its’ own opinion for that
of the employer, as
Counsel has identified in discussions during the Hearing of this matter.
h. Taking into account the issues identified herein both globally (Agreement/negotiation/preservation of business, etc) and personally (the claimant’s contract/terms/discussion/reasons and reasoning), it is submitted that there are no grounds upon which the Tribunal could conclude that no reasonable employer, properly directing itself, could come to the conclusion which the Respondent did herein.
i. I wish to emphasise that in addition to the danger for the Tribunal identified at (e) above there is a further complication in that the Tribunal has been presented with different information than that available to the Respondent at the time. Specifically, no mention was made of (a) divorce and (b) infertility issues.
CONSTRUCTIVE DISMISSAL
Breach
of Contract:
2.1 BofC
in relation to the move/shift
change. Said action is provided for under
contract and the Agreement. To argue otherwise would be to disregard the
Agreement & Contractual provisions and to substitute the Tribunals’ own
7
view for the clearly expressed and implemented views of the relevant parties at the time. It was clearly nothing other than a lawful order by an employer to an employee.
2.2 If there is a breach here it cannot be regarded as repudiator)’ of the contract of employment as the purpose of the alleged Breach is the preservation and enhancement of the contract of employment therefore claim must fail. If repudiatory the claimant has delayed too long in resigning as a consequence of same.
2.3 BofC in relation to the failure to give him “redundancy”. If there is no redundancy situation it follows that there cannot be a constructive unfair dismissal about an entitlement to the said “redundancy”. No contractual right to same. Therefore not a case of refusal to grant redundancy payment as not entitled. Right to apply, which is granted. Individual circumstances considered fully, points put to him, repeated opportunities to state case given also.
2.4 It is important to note that, as distinct from those employees who were ultimately successful in their applications, the claimant was not presenting an actual state of affairs to the Respondent and identifying how this would prevent him working the shift but rather relying upon the unproven possibility of various problems in the future. The Employers reasoning was sound & was objectively justifiable. Others were also refused, therefore the Claimant was not being “singled out”. Therefore there is no evidence of individual unfairness and no consequent Breach of Contract.
2.5 It is apparent that the new shift system meant working some weekends. It is equally apparent that (a) it also meant a substantial increase in full days off over the year (approx. increase from 143 to 230 under the new system) and (b) was provided for, lawfully and contractually as specified at 1.3 & 1.4 above.
2.6 If there is a breach, how can it be repudiatory? Can an employee say “you are requiring me to continue to work under the terms of my contract as lawfully varied and are therefore repudiating the self-same contract”. The action of the
8
employer is to seek to
insist upon the continued performance of the contract.
This is the opposite of repudiation.
2.7 The Tribunal must also consider the claimant’s own actions and reasonableness. He turned down an earlier offer of day work (28b) as he “wanted to keep his chances”, refused to even attempt to work the new shifts, produced no - evidence or reason other than the perceived chance of future problems, which might or might not have occurred.
Remedy
3.1 As indicated the Claimant is not entitled to a redundancy payment as he was
not redundant.
3.2 In the event that he
succeeds in relation to constructive dismissal the remedy provided for under
statute is loss of earnings to date of Hearing. In that regard
it is submitted that
-
-The claimant has not taken sufficient steps
to minimise loss by way of mitigation by way of job applications, etc.
-
-In addition he was offered the opportunity
to obtain day work by the Respondent which opportunity he rejected. It is
submitted that was unreasonable, there being no personal animosity or valid
reason for him not seeking same, and loss should cease at that
point.
-
-any loss ceased on his decision to leave
his most recent (and hidden) employment as that act by him constituted a
“breaking of
the chain” of causation in relation to financial loss.
9
COMMENTARY ON CLAIMANT’S SUBMISSIONS
Para 1.
a. It is not accepted the place of work had
closed —creating a redundancy situation.
b. This was never the case & the Union always accepted it. It is
nonsensical to argue this now when it was not raised at the time.
c. This argument also seeks to challenge the Collective agreement & the
transfer of all other employees.
d. In any event the physical movement of premises is not the basis for the
claimant’s case.
Para2.
a. It was not argued that he had any redundancy entitlement based upon the collective agreement, either at the time or at Hearing.
Para 3.
a. It is not apparent what “agreed format for collective bargaining” is
referred to here and specifically how it was breached.
Para 4.
a. Factors 5, 6,8 & 9 are irrelevant to this case.
b. Issues (I) and (ii) were not raised at the time in question.
c. Issue (iii) in relation to holidays was not raised and is wrong.
Para 11.
a. While he did not have the letter, Mr. Lynch gave unchallenged evidence is that he was fully briefed and aware of the Respondents’ approach in this situation.
b. There was no contractual entitlement to a “trial period”, however it was always open to the claimant to undertake his own trial period, but he chose not to.
10
Industrial Tribunal Case No: 235/091T
Between
Gerald
Gorman Claimant
And
Coca-Cola HBC Northern Ireland Ltd Respondent
WRITTEN SUBMISSION
The
claim is brought by Mr Gorman under
Sections 139 -141 of the Employment Rights Act 1996. which provides the right for a redundancy payment.
A dismissed employee is only entitled to a redundancy payment if he or she has been dismissed by reason of redundancy
II is accepted that under section 139 1)a)ii) the Respondant has closed down the place of work
The Tribunal must determine whether or not the Respondent offered suitable alternative employment and whether or not the Claimant reasonably refused the offer.
It is up to the employer to show both that the the job offered was suitable and the the employees refusal of it was unreasonable.
1. We submit that the
claimant, Mr Got-man is entitled to Statutory Redundancy as his Employer,
Coca-Cola ceased to carry on the business at Mr Gorman’s place of work, Lambeg
31 December 2008
2. The Company breached Mr Got-man’s contractual redundancy payments which he was entitled to based on the Collective Agreement. The Collective Agreement redundancy calculation is on page 51 of the Bundle.
3. The Employer failed to follow the agreed format for collective bargaining with regard to the Agreement reached outlined in page 109 of the Bundle:
“that existing shift staff with a genuine personal, health or domestic reason for not being able to transfer to full 24/7 shift working will be favourably looked upon for redundancy”.
4. Under section 139(1) of the ERA an employee is entitled to a redundancy payment, Mr Gorman can reasonably refuse alternative employment under section 141(2)-(4) ERA if it is unreasonable. The tribunal should take into account the following factors in assessing the suitability and reasonableness of any alternative employment
5. Job Content
6. Pay
7. Hours
8. Workplace
9. Job Prospects
Mr Gorman contends that the alternative job offer was unreasonable due to the following personal circumstances
(i) Mr Gorman and his wife were having problems trying to conceive a baby as
given in evidence by
himself
(ii) He also indicated that his wife would divorce him if he took on the new
Contract
(iii) The shift pattern in Lambeg was Monday to Friday - 8 hour shift patterns - 7 am to 3 pm, 3 pm to 11 pm and 11 pm to 7
am. The new contract of employment offered is 24/7 with holidays and public
holidays incorporated into the shift pattern.
Mr Gorman would have to work 20 weekends plus
per year compared to none in his Lambeg Contract and would not have the same
flexibility in taking his holidays in Knockmore Hill as in Lambeg
(iv)
Mr Gorman believes that the importance of
marriage is fundamental and spending time with his
wife is of utmost importance
10. It is Mr Gormans contention that any reasonable employer would have accepted the evidence concerning his marriage and the affects it would have had on him accepting the new Contract
Mr Gormans further contends that the circumstances of his refusal were not
fully considered. The HR Manager Alan Marks had 3 meetings with Mr Gorman and
only took one bullet point of notes reference his reasons for not being able to
do the new 24 hour shift pattern including his personal circumstances regarding
his marriage. The hand written notes page 28b of the bundle dated 15/04/08 also
shows that the decision was already taken not to give Mr Gorman his redundancy
and was also refused a trial period.
11. At the Appeal, Michael Lynch did not even consider the actual
Collective Agreement and did not have same in his possession or knowledge of
the document —
see page 108-109 of the Bundle. He also took into
account previous overtime ignoring Mr Gorman’s credible and reasonable explanation
as supported in evidence by Mr Robert Dawson, Senior Shop Steward at the time.
Mr Gorman had asked the Production Manager, Stephen Tully in the presence of Mr
Dawson if doing overtime would affect his redundancy request and Mr Tully
assured him it would not.
Conclusion
In all the circumstances we ask the Tribunal to find that Mr Gorman was made
redundant and was entitled to a redundancy payment as the Respondents have
failed to show that the alternative job offer was suitable and that Mr Gormans
refusal was unreasonable in the circumstances.
In the alternative
Mr Gorman was
constructively dismissed because of a fundamental breach of contract by his
employer. The variation of contract of the Collective Agreement was subject to
an overriding term “that if existing shift staff with a genuine, personal,
health or domestic reason for not being able to transfer to full 24/7 shift
working will be favourably looked upon for redundancy” — see page 108-109 of the Bundle. Failure to
comply with is term to Mr Gorman amounts to a fundamental breach.
Any reasonable employer would have accepted Mr Gorman’s evidence concerning his
marriage and affects on it to take up the new 24/7 contract.
The Employer’s refusal is particularly unreasonable as at the Appeal, Michael
Lynch did not even know that there was a Collective Agreement reached regarding
redundancy —
see pages 108-109 of the
Bundle. Mr Gorman was even refused a trial period.
In all the circumstances we ask the tribunal to find that Mr Gorman was
unfairly dismissed.
Industrial Tribunal Case No: 235/091T
Between
Gerald
Gorman. Claimant
-
And
Coca-Cola HBC Northern Ireland Ltd Respondent
Schedule of Loss
1. Basic Award
Date
of dismissal 2 January 2009
Age at dismissal 43 years
Continuous service 13 years
Gross weekly wage £342.48
14 weeks x £320 =£4480.00
JSA not deducted ______________________________________________________________________________
2. Compensation Award
a. Past loss of earnings
Date of dismissal 2 January 2009
Date of hearing 29 July 2009
Weeks 29
Net weekly wage £267.49
29 weeks x £267.49 = £7757.21
Less earned income 4 weeks x £228.15 = - £912.60
b.
Future loss of earnings
104 weeks x £267.49 =£27,818.96
c.
Loss of statutory rights =£300.00
d. Pension loss 2 years x 3% of gross weekly wage = £1068.54
|
Total |
basic award |
= |
£4480.00 |
|
Total compensatory award |
= |
£36,944.71 |
|
|
Less |
earned income |
= |
£912.60 - |
Total compensation = £40,512.11