Killen v SMTEK Europe Ltd & Anor [2004] NIIT 3980_03 (19 April 2004)

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URL: http://www.bailii.org/nie/cases/NIIT/2004/3980_03.html
Cite as: [2004] NIIT 3980_03, [2004] NIIT 3980_3

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    THE INDUSTRIAL TRIBUNALS

    CASE REF: 3980/03

    APPLICANT: Cathy Killen

    RESPONDENTS: 1. SMTEK Europe Limited

    2. Dr Richard Corbett

    DECISION

    The unanimous decision of the tribunal is that the applicant was unfairly dismissed from her employment and is entitled to compensation of £4,320.00. Further it is ordered with the agreement of the parties that the second named respondent be dismissed from the proceedings.

    Appearances:

    The applicant represented herself at hearing.

    The respondent was represented by Ms L Toolan from the Engineering Employers' Federation.

    SUMMARY REASONS

  1. This is a complaint by the applicant that the respondent unfairly dismissed her from her employment as a Training Instructor with notice of termination given to her in May 2003. The respondent asserted that the applicant was dismissed with notice on the grounds of redundancy and that the dismissal was fair in all the circumstances.

  2. The tribunal after considering the whole of the evidence, both oral and documentary, and after considering the submissions made on behalf of the parties found on the balance of probabilities the following facts:-

  3. The respondent employed the applicant from September 1991 until 29 July 2003 being the effective date of termination of the applicant's employment. The applicant was 25 years old when she commenced employment with the respondent. The applicant was initially employed as an Assembly Operative. She gained promotion to the position of Team Leader and then to Supervisor. From 1998 to 2003 she was employed in the capacity of Training Instructor. At the time of her dismissal the applicant earned £12,500 per annum. It was agreed that the weekly gross wage was £242.31.

  4. At the commencement of the applicant's employment the respondent had approximately 250-270 staff. By April/May 2003 the workforce had reduced to 90 employees due to the general decline in the electronic market. The future forecast for new orders was poor. A need for redundancies on the management/non production side was identified.

  5. The applicant was responsible for induction training of new employees and refresher training for current employees as well as training on new products. The need for these services had diminished in 2003. The respondent anticipated a need for a dedicated training instructor was unlikely within the immediate future.

  6. No selection criteria were applied, as the applicant was the only person carrying out that function. The respondent had no written or agreed redundancy policy.

  7. In July 2003 the respondent received new orders of work. Between August to October 2003 the company took on approximately twenty employees including four operatives on 4 August 2003. Two of those operatives were former employees re-employed as assembly operatives by the company. They had been made redundant about the same time as the applicant. The respondent accepted it contacted a number of employees who had formerly been made redundant regarding re-employment. This appeared to have been done outside any formalised criteria or policy. The respondent made no effort to discuss alternative employment with the applicant.

  8. The applicant did not retain any records of attempts to find alternative employment made between May to August 2003. Between September 2003 and January 2004 she made five applications but none in December 2003. In February and March 2004 she made eleven applications for employment. The applicant did not register with an Employment Agency as a source of seeking alternative employment.

  9. It was submitted on the applicant's behalf that the applicant did not accept that her position was redundant in July 2003 as the respondent took on new employees on 4 August 2003.

  10. It was asserted on behalf of the respondent that the applicant's dismissal was by reason of redundancy. The respondent's decision to dismiss was reasonable and had a sound foundation in fact. The respondent did not address the tribunal regarding the question raised by the evidence of alternative suitable employment arising as a result of new customer orders in July 2003. The respondent submitted that the applicant had not made adequate efforts to find alternative employment over the eleven months following her dismissal.

  11. This was a case where the respondent accepted that the applicant had been dismissed. The respondent contended that the dismissal had been for reason of redundancy, which is a potentially fair reason for dismissal under Article 130(2) of the Employment Rights (Northern Ireland) Order 1996 (hereafter referred to as the 1996 Order). This tribunal concluded in light of the facts set out above that the need for the applicant to carry out work of a particular kind in the place where she was employed had diminished. Accordingly the tribunal was of the view that the applicant was initially given notice of dismissal from her position as Training Instructor, by reason of redundancy within the meaning of Article 174 of the 1996 Order.

  12. The essential question is whether in all the circumstances the respondent acted reasonably in treating the diminished need for a Training Instructor as a sufficient reason for dismissing the applicant. Although the applicant was given notice of termination of her employment in May 2003, in accordance with the provisions of Article 129(1)(a) of the 1996 Order the tribunal determined that the effective date of termination of the applicant's employment occurred on 29 July 2003. Additional work came on board in July 2003 and the respondent commenced a number of new employees on 4 August 2003. The tribunal concluded those persons had to be recruited at least one to two weeks previous to that date. The respondent conceded it approached a number of former Team Leaders to return to their employment yet did not approach the applicant whose termination had not taken effect to offer her similar alternative employment.

  13. The tribunal concluded there was available for the applicant alternative employment but no details were provided to the applicant. The tribunal determined that while the respondent may have had a genuine need to make redundancies in May 2003, as the redundancies were made with notice, once the situation changed the decision to terminate the applicant's employment should have been reviewed in light of the prevailing circumstances. This tribunal could not accept that in all the circumstances the respondent had acted reasonably in treating redundancy as a sufficient reason for dismissing the applicant in July 2003.

  14. The applicant sought compensation only. This tribunal concluded that the applicant made little genuine effort immediately after the termination of her employment to find alternative work. Accordingly the tribunal considered in all the circumstances that a sum reflecting a loss of seventeen weeks pay up to 25 November, was just and equitable within the terms of Article 157 of the 1996 Order.

  15. It was clear that the respondent had paid to the applicant the sum of monies as a statutory redundancy payment that she would have been entitled to as an award under Article 152(1)(a) of the 1996 Order. The tribunal is required to set off that payment against the applicant's basic award.

  16. The applicant made a claim for benefits and accordingly the Employment (Recoupment of Jobseeker's Allowance and Income Support) Regulations (Northern Ireland) 1996 apply.

  17. The tribunal therefore assesses the sum of £4,320.00 as the compensatory award. This sum reflects a loss of pay from 29 July 2003 to 25 November 2003 and a sum of £200.00 for loss of statutory employment rights. The Prescribed Element of the award is £4,120 and the period of the prescribed element is 29 July 2003 to 25 November 2003. Accordingly the excess of monetary award over prescribed element is £200.00.

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

    19. Chairman:

    Date and place of hearing: 19 April 2004, Belfast.

    Date decision recorded in register and issued to parties:

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