THE INDUSTRIAL TRIBUNALS 

CASE REF:	734/02

APPLICANT:		Maurice Smyth

RESPONDENT:		Composite Dynamics Limited

DECISION

SUMMARY FORM

The unanimous decision of the Tribunal is that the applicant was unfairly dismissed and it is ordered that the respondent shall pay to the applicant the sum of £6,318.00 as compensation for unfair dismissal.  
Appearances:
The applicant in person.
The respondent Mr Stephen Elliott, BL, instructed by McIvor Magill, Solicitors.

1.	It was noted that the correct title of the respondent to these proceedings is Composite Dynamics Limited and the Tribunal ordered accordingly.

2.	This is a complaint by Maurice Smyth that he was unfairly dismissed by the respondent, Composite Dynamics Limited.  Mr Smyth had been employed by the respondent from March 1999 until 25 February 2002.  The respondent’s case was that the applicant had been dismissed as redundant because of a genuine redundancy situation; that he had been fairly selected for redundancy; that no suitable alternative employment was available for him; and that there the consultation with him was adequate in all the circumstances.  The applicant’s case was that there had not been a genuine redundancy situation; that the applicant had been unfairly selected for redundancy; that there had been inadequate consultation with him; and that suitable alternative employment should have been offered to him.

Issues on Liability

3.	In relation to the question of whether this dismissal was fair or unfair, two main issues arise:-

(1)	Was the applicant dismissed because he was redundant?

(2)	If so:-

(a)	Was the selection of the applicant (for redundancy) fair?

(b)	Was there adequate pre-dismissal consultation with the applicant?

(c)	Did the employer make any, or any adequate, efforts to see whether, instead of dismissing the applicant, he could be alternative employment?

Conclusions on Liability

4.	The Tribunal notes that, for a considerable period prior to the termination of his employment, the applicant, and only the applicant, had been mainly concerned, during his working hours, in carrying out duties as a store-man.  Because the respondent decided to change its store arrangements, it no longer needed an employee to be mainly concerned with carrying out duties as a store-man.  In those circumstances, the Tribunal is satisfied that there was a redundancy situation and the applicant was redundant, however the dismissal was nevertheless an unfair dismissal, for three reasons:-

(1)	The respondent selected the applicant for redundancy at a time when it did not have any redundancy selection criteria.  The respondent jumped to the conclusion that the applicant should be dismissed, without considering the possibility of selecting someone else for redundancy.

(2)	The Tribunal finds that there was no worthwhile pre-dismissal consultation with the applicant personally.  Because of the absence of any proper selection criteria, it was particularly important that there should be adequate pre-dismissal consultation with the applicant.  That did not happen, when the issue was first brought to the applicant’s attention (on 28 January 2002), the respondent was not, in reality, open to discussion on the question of who should be selected for redundancy.

(3)	The respondent did not seek to see whether, instead of dismissing the applicant, it could offer him alternative employment.  All the respondents did in this connection was to inform the applicant of the fact that there was a vacancy in the relevant factory, the implication being that he was free to apply for that vacancy, alongside all other candidates from the general public.

5.	For those three reasons, the dismissal is unfair within the meaning of Article 130 of the Employment Rights (Northern Ireland) Order 1996 (‘the Order’).

Conclusions and Compensation

6.	The applicant accepts and the Tribunal finds that he is not entitled to a basic award, because the respondent had made to him a redundancy payment equal to the amount of the basic award; see Article 156(4) of the Order.

7.	Accordingly, the remaining question on liability relates to the amount of the compensatory award due to the applicant.  Article 157 of the Order provides that, subject to certain statutory maxima, and subject also to certain other statutory provisions, the amount of the compensatory award shall be such amount as the Tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal, in so far as that loss is attributable to action taken by the employer.

8.	We are satisfied that, if the respondent had made adequate efforts to seek to see whether, instead of dismissing the applicant, they could offer him alternative employment, they would have found that there was alternative employment available for him, which he was capable of carrying out, and which he would accepted.  (By 25 February, the date of termination of the applicant's employment, the respondent was already advertising vacancy for an operative in the ‘hand-lay’ department at the relevant factory; new operatives were in fact taken on at that factory in March 2002.)

9.	We have some doubts as to whether the applicant has mitigated his loss (by making adequate efforts to seek employment elsewhere, after the termination of his employment with the respondent).  However, we are not satisfied on the balance of probabilities that the applicant has failed to mitigate his loss.

10.	If the applicant had been retained to the employment of the respondent – as he should have been – he would have been employed, for the future, as a laminator/operative.  In such post, he would have earned less, by way of basic salary, than he was earning in his capacity as the person responsible for store-keeping.  However, there would have been more opportunities for overtime, opportunities which he would probably have taken, in his new post.  In those circumstances, we are satisfied that it is right to calculate the applicant’s loss at the rate of £162.00 per week (the applicant’s weekly nett salary at the time of his dismissal).  

11.	We calculate the applicant’s compensatory award as follows:-

26 weeks loss of salary from date of termination of employment to date of hearing (£4,212.00)

13 weeks of future loss (£2,106.00)

Sum in respect of loss of statutory rights (£200.00)

The sum of all those elements amounts to £6,518.00.

Recoupment of benefit from awards

12.	The Recoupment Regulations apply.  Attention is drawn to the notice below which forms part of the decision of the Tribunal.  The prescribed element is £4,212.00.  The prescribed period is the period from 25 February 2002 until 28 August 2002.  The amount by which the monetary award exceeds the prescribed element is £2,306.00.  

Interest on Industrial Tribunal Awards

13.	This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

Chairman:

Date and place of hearing:   28 August 2002 at Belfast

Date decision recorded in register and issued to parties: