Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2011/02680_10IT.html
Cite as: [2011] NIIT 2680_10IT, [2011] NIIT 02680_10IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 2680/10

CLAIMANT: Philip Garvin Calvin

RESPONDENT: Mark McMurdie Electrics

DECISION

The unanimous decision of the tribunal is that the claimant was not unfairly dismissed by the respondent and that he is not entitled to a sum in respect of unauthorised deductions from wages or to a payment in respect of one week’s notice and recovery of bank charges.

Constitution of Tribunal:

Chairman: Mr U A Crothers

Members: Mrs S Doran

Dr D Mercer

Appearances:

The claimant was present and represented himself.

The respondent was present and represented himself.

The Claim

(a) The claimant claimed that he had been unfairly dismissed by the respondent, that he was entitled to a sum in respect of unauthorised deductions from wages and a payment of one week’s notice pay. He also claimed an amount for bank charges. The respondent denied the claimant’s allegations. The claimant withdrew his claim for a redundancy payment from before the Tribunal.

(b) The title of the respondent is amended to that shown above.

The Issues

The issues were as follows:-

Whether the claimant was unfairly dismissed by the respondent.
Whether the claimant is entitled to a sum in respect of unauthorised deductions from wages.
Whether the claimant is entitled to a payment in respect of lieu of notice, and an amount in respect of bank charges.

Sources of Evidence

The Tribunal heard evidence from the claimant and from the respondent and was presented with agreed bundles of documentation.

Findings of Fact

Having considered the evidence insofar as same related to the issues before, the Tribunal made the following findings of fact on the balance of probabilities:-

The claimant was employed as an electrician’s assistant from August 2006 until the effective date of termination of his employment on 30 September 2010. He subsequently received a redundancy payment in the amount of £1,097.60. His case was that he had been unfairly selected for redundancy and was therefore unfairly dismissed. Both the claimant and the respondent had had the benefit of legal advice prior to the Tribunal hearing. The Tribunal also afforded them time to consult with the Labour Relations Agency.
The respondent forwarded correspondence to the claimant on 9 September 2010 as follows:-

“9 September 2010

Dear Philip

Re: Termination of Employment

Further to our meeting on Thursday 9^th September 2010, I confirm that your employment with McMurdie Electrical & Mechanical Services is terminated with effect from Thursday 9^th September 2010.

As stated in our meeting the reason for termination of your employment is due to the downturn of work – As you are aware the project you are working on is coming to an end and unfortunately I am not in a position to offer you work on an alternative project.

Due to your length of service I am providing you with a 3 week notice period which takes your actual leaving date to Thursday 30^th September 2010.

Unfortunately I have no other option than to take this action. I would like to take this opportunity to thank you for the contribution you have made to the company and wish you every success in the future.

Yours sincerely

Mark McMurdie”

The claimant appealed the respondent’s decision to terminate his employment by correspondence dated 14 September 2010. The Tribunal

finds it useful to set out this correspondence in full as it articulates the claimant’s case at that time:-

“14^th September 2010

Dear Mr [Mc]Murdie

In accordance with the Dispute Resolution Regulations 2004, I am writing to you with regard to the following:

I was employed as an electrician with your company and held continuous service for over 4 years. Hitherto there had been no issues regarding my employment and I had not received any verbal or written warnings. I was informed on 9^th September 2010 of your decision to terminate my employment with one week’s notice. I was advised this was due to redundancy.

SHAM REDUNDANCY

Firstly, I believe this is a sham redundancy. I do not accept there has been a reduction in the work needing to be done for the following reasons.

You have recently taken on another employee; this employee continues to work in the workplace and has not been affected by any redundancy situation.
I am the one of only two employees in a team of approximately 13 electricians to have been made redundant. I strongly believe that the demand for electricians in your company continues to exist and do not accept any suggestion by you that there has been a drop in demand.
Furthermore, I would refer to previous disagreements which have occurred regarding the 15% pay reduction introduced in February of this year. I believe that this has led to a strain on our working relationship, and this would indicate that I have been dismissed for a reason other than redundancy.

I do not accept redundancy as the real reason for my dismissal. I wish to appeal against my dismissal. I do not believe that my dismissal was justified and I believe that I have been treated unfairly for the following reasons:

FAILURE TO ENGAGE IN PROCESS OF FAIR SELECTION

You have informed me that I have been made redundant. However, I believe you have failed to demonstrate that my selection for redundancy was fair. You failed to follow a procedure which was fair, objective and non-discriminatory, using objective criteria.

I understand I am one of only two people to have been selected for redundancy. I was never given any reason why I was selected above all other eligible candidates – I am aware that other electricians continue to be employed by the company and, at no point, were ever selected for redundancy or even consulted regarding redundancy.

I understand in typical redundancy situations, when assessing selection for redundancy, employers use a points scoring method with a selection matrix normally including factors such as: length of service, productivity, timekeeping, attendance records, efficiency, employee’s adaptability.

I believe no such method was used by you. I believe, had such a method been used, I, as one of the longest serving electricians, would have amassed more points that other candidates in a pool and sufficient points to have avoided redundancy.

FAILURE TO PROVIDE ALTERNATIVE EMPLOYMENT

I believe you gave no consideration to positions available in other areas when you decided to find me redundant.

I was employed for over 4 years as an electrician. I have always been flexible and I have performed other duties where and when required.

You state that no work is currently available. I unreservedly dispute this. There are people who continue in the present day to be employed as electricians with your company. They are performing the same duties as I had done.

I fail to understand why I, unlike them, was the only person to have been selected for redundancy. You have never established reasons for this.

FAILURE TO PROVIDE NOTICE

I had a statutory right to 3 weeks’ notice and my employment was terminated with one week’s notice. I am therefore owed the remaining 2 weeks’ pay in lieu of notice.

OUTSTANDING WAGES

I would also refer you to the outstanding wages which are currently owed to me. As previously discussed, my pay cheque of 27 August 2010 bounced when lodged at the bank, and to date I have not received the money owed. Furthermore, I did not receive a pay cheque on 10 September 2010, as was owed to me.

I understand that you will arrange an appeal meeting with me to discuss all these points. I am entitled, if I wish, to be accompanied by another work colleague or my trade union representative. Please reply within 14 days of the date of this letter.

I look forward to hearing from you within 14 days.

Yours sincerely

Philip Calvin”

The Tribunal also considered the minutes of the redundancy appeal meeting held on 1 October 2010 which was attended by the respondent and the claimant together with an employee representative, Hamilton Kee. The claimant made the case at the appeal and before the Tribunal that a qualified electrician, who had been employed by the respondent some six to eight weeks prior to the termination of the claimant’s employment, should have been selected for redundancy instead of him. The claimant was not a qualified electrician although he did possess what are known in the trade as “17^th edition” exams entitling him to do electrical work, but not as a qualified electrician. At the material time, the claimant together with a qualified electrician were made redundant. The tribunal is satisfied that the project on which both were working at the Savoy Hotel in Bangor, Co Down was coming to an end imminently. Furthermore, the Tribunal is satisfied that although the claimant did have a labouring component in his job, he was properly not offered a labouring post at a lesser salary by way of suitable alternative employment - apart from the fact that a labourer would have had to be made redundant in order for this to take place.

(iv) The Tribunal is satisfied that the respondent was operating under difficult trading conditions and that bad debts had accumulated to some £130,000.00 between August 2009 and March 2010. The respondent commenced an individual voluntary arrangement on 30 June 2010. In this context, the respondent found himself with little option other than to propose a 15% reduction in the salaries of all employees apart from those on the minimum wage, with effect from 24 February 2010. Subsequently, on 30 April 2010 the respondent forwarded to all relevant employees the following memorandum:-

“MEMORANDUM

To: All Electricians, Apprentices

Date: Friday 30 April 2010

Subject: Hourly Rate

As you are aware all hourly rates were reduced by 15% on 24 February this year. It had been the intention only to implement this measure until the start of the new financial year.

Unfortunately due to ongoing economic climate your hourly rate will remain as it stands and the situation will be reviewed again in the near future.

Thank you for your patience and understanding.”

The claimant consented in writing to the variation in his contractual terms, albeit, in his terms, “under protest”. The Tribunal is satisfied, however, that the respondent would have been in greater difficulties and would have had to accelerate redundancies had the relevant employees not accepted the 15% reduction in their hourly rates. The Tribunal accepts that the tensions arising between the claimant and the respondent following this reduction did not contribute to the respondent’s decision to make him redundant.

(v) The claimant was due four weeks notice pay, and he maintained that he had not been paid for the fourth week. The respondent asserted that the claimant had been paid for the four weeks, and documentary evidence was produced for consideration by the Tribunal in this regard.

(vi) The Tribunal also considered the evidence in relation to the claimant’s alleged loss. He also contended that he was due an amount for bank charges.

The Law

5. (1) Article 130 of the Employment Rights (Northern Ireland) Order 1996 (“the Order”) provides as follows:-

“130. –

(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show –

(a) the reason (or, if more than one, the principle reason) for the dismissal, and

(b) that it is either a reason falling within paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

A reason falls within this paragraph if it - …

(3) Where the employer has fulfilled the requirements at paragraph (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) -

(a) depends on whether in the circumstances (including the size and administrative resources of the employers undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

(b) shall be determined in accordance with equity and the substantial merits of the case”.

(4) In relation to unauthorised deductions from wages, Article 45 of the Order provides as follows:-

“45 - (1) An employer shall not make a deduction from wages of a worker employed by him unless -

(a) the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the workers contract,

(b) the worker has previously signified in writing his agreement or consent to the making of the deduction”.

(5) Article 3 of the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 enables an employee to claim for the recovery of a sum which arises or is outstanding on the termination of the employee’s employment. This includes a claim for notice pay.

Submissions

6. Neither the claimant nor the respondent made any submissions to the Tribunal.

Conclusions

7. The tribunal, having carefully considered the evidence and applied the principles of law to the facts as found concludes as follows:-

(i) The reason for the dismissal was redundancy. The Tribunal is further satisfied that the claimant was not unfairly selected for redundancy and is satisfied that in all the circumstances the selection was one that a reasonable employer, acting reasonably, could have made. The Tribunal is therefore satisfied that the respondent’s approach fell within the band of reasonable responses and that the claimant was fairly dismissed.

(ii) The Tribunal is satisfied that the claimant consented to a variation in his contract relating to the 15% deduction in his hourly rate, albeit under protest. His claim therefore fails under Article 45 of the Order and under the provisions of the Industrial Tribunal’s Extension of Jurisdiction (Northern Ireland) Order 1994.

(iii) In relation to notice pay, the Tribunal is not satisfied on the evidence placed before it, that the claimant is entitled to a week’s notice pay. It also concludes that the claimant is not entitled to recovery of bank charges.

Chairman:

Date and place of hearing: 9 March 2011, Belfast.

Date decision recorded in register and issued to parties: