THE INDUSTRIAL TRIBUNALS
CASE REF:  201/10

CLAIMANT:  			Ivan Robert Hardy    RESPONDENT:    		Turkington Engineering Limited

DECISION 
The decision of the tribunal is that the claimant was not unfairly dismissed by the respondent.  Constitution of Tribunal: Chairman: 			Mrs A WilsonPanel Members:		Mr P Killen					Mr J HughesAppearances: The claimant did not appear nor was he represented.The respondent was represented by Mr Brian O'Sullivan, Barrister-at-Law instructed by Qdos Consulting Limited.
1.	The tribunal is satisfied that the claimant received the Notice of Hearing and following a telephone conversation between the claimant and the tribunal office understands that the claimant wishes the hearing to proceed in his absence. The tribunal have considered Rule 27(5) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 and having considered the information before it decided to dispose of the proceedings in the absence of the claimant.  

The Issues
2. 	In circumstances where it is agreed that the claimant was dismissed by the respondent the issues for this tribunal are:-

(i) 	What was the reason for the dismissal and was that reason potentially fair within the meaning of Article 130 of the Employment Rights (Northern Ireland) Order 1996?
        (ii)    If the claimant was dismissed for a fair reason was that dismissal fair in all      the circumstances of the case and the relevant law?

(iii) 	If the claimant was unfairly dismissed what compensation, if any should be awarded to him?
Sources of Evidence
3.	The tribunal considered the claim form, the response, documents handed in and referred to by the respondent and the sworn testimony and demeanour of Mr Ryan Turkington and Mr Wesley Cotton together with Mr O'Sullivan's submissions on behalf of the respondent. In circumstances where there is a conflict in evidence between that contained in the claim form and the evidence of the respondent the Tribunal  give greater weight to the evidence of the latter because  it is corroborated by compelling sworn testimony consistent with the response and documentation submitted. 
Findings of Relevant Fact 
4.	The Respondent is a small company located at Tullylagan Road, Sandholes, Cookstown, Co Tyrone engaged in the manufacture of oil fired products.  It employs in or around 11 employees to include three directors, Mr Ian Turkington, Mr Ryan Turkington and Mr Wesley Cotton.  Mr Ian Turkington takes no part in the day to day running of the business.

5.		The claimant was employed by the respondent as a business unit manager from the 6 May 2008 until the 18th November 2009.  His post was 50% funded by Invest Northern Ireland. 

6.		During the course of 2009 it became clear to the company directors that the company was experiencing difficult trading conditions due to the economic downturn. For this reason a review of the company was undertaken and a decision taken by the directors that cost cutting measures would have to be implemented.

7.    At a meeting on the 12 October 2010 attended by all three directors a decision was taken to implement cost saving measures.  It was proposed as part of this exercise that the post of business unit manager was no longer required and that the claimant should be made redundant.

8.  An initial meeting was held with the claimant on the 4 November 2009. Mr Ryan Turkington and Mr Wesley Cotton were in attendance at this meeting and he [the claimant] was advised of this proposal. Following this meeting the proposal was confirmed in writing and a two week consultation period commenced.

9.    Further meetings took place as part of the consultation process on the 9, 11, 16 and 18 November 2009. The claimant was accompanied by Clifford Stewart at these further meetings and no issue was taken by him with the records of these meetings. The claimant recorded the fact that he felt that redundancy had been on the agenda for a few months and that he had become demotivated by reason of the fact that he felt that he was no longer part of the management team.

 10.   The respondent denies that the claimant was treated as other than part of the management team but accepts that he [the claimant] was routinely excluded from parts of meetings when matters of a personal nature were being discussed. The respondent also denies that redundancy had been on the agenda for a few months and in circumstances where the respondent's sworn testimony is not contradicted due to the absence of the claimant and is consistent with the response and documentation produced the tribunal find this to be the case.

11.  The claimant was informed in writing of the decision to dismiss him on the 18 November 2009 and of his right to appeal the decision. The claimant appealed the decision and at an appeal hearing on the 4 December 2009, attended by Mr Ryan Turkington and Mr Wesley Cotton, the decision to dismiss was confirmed. The effective date of dismissal is the 18 November 2009. The claimant received payment in lieu of notice.
Contentions of the Claimant
12.   The claimant contends that the respondent was not in financial difficulties having recruited four shop floor assistants in or around November 2009, a new sales executive in October 2009 and a new manager on 23 November 2009.  It is the claimant's case as outlined in his claim form that recruitment was inconsistent with his post being made redundant and that the newly recruited manager was given some of the duties previously carried out by him. It is also the claimant's case that if dismissal was genuinely by reason of redundancy then these posts should have been offered to him.

13.   The tribunal find from the evidence presented that the company was experiencing financial difficulties which necessitated some cost cutting measures and that as part of the cost cutting process, a decision was taken that the company no longer required a business unit manager. The tribunal also find that the respondent took the view based upon its knowledge of the skill set of the claimant and the needs of the business that posts which were subsequently filled were posts for which the claimant was unqualified. 

14.  The tribunal also find based upon the sworn testimony of Mr Turkington that neither the newly recruited manager nor indeed any of the newly recruited staff undertook any of the work previously carried out by the claimant. In the absence     
		of sworn testimony of the claimant and having evaluated the sworn testimony of Mr Ryan Turkington and the documentation produced the tribunal accept the respondent's evidence in this regard.

15.  It is the claimant's contention that in or around the time of his dismissal the respondent invested in new machinery and a refurbishment exercise which the claimant contends was inconsistent with a redundancy situation. It is the respondent's case that the machinery was financed rather than purchased and that it and the refurbishment exercise were necessary to keep abreast of the competition. 

16.  The tribunal have carefully evaluated the evidence and the contentions of the claimant and find the sworn testimony of the respondent compelling and consistent with the response and documentation produced.  Accordingly the tribunal accept the case advanced by the respondent that for financial reasons, following a review of the business, a decision was taken that the company no longer needed a business unit manager.

17.  It is the claimant's contention that in or around the time of his dismissal the sales figures for the company increase.  It is accepted by the respondent that there was a slight increase in sales at this time which was due to a reduction in the profit margins. 

The Law
18.	Article 126 of the Employment Rights (Northern Ireland) Order 1996 [the Order] provides the claimant with the right not to be unfairly dismissed.

19.	Article 130 of the Order in so far as is relevant to this case 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 principal 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.

    	(2)	A reason falls within this paragraph if it –	 	(a)  …………. 	 	(b)  ………….	        (c)	 is that the employee was redundant, 

		Article 174 of the Order provides the meaning of redundancy as follows:

    	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 -

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 –
        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.

20.	It is the respondent's case that the requirement for a dedicated business unit manager has ceased in accordance with Article 174 (1) (b) (ii) and for the reasons given above the tribunal accept that to be the case.
The Procedures

21.	The statutory procedures are contained in the Employment (Northern Ireland) Order 2003 ['the 2003 Order'] and the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004.  This legislation provides that an employer must follow a minimum procedure when dismissing an employee.  In this case the standard procedure applies and requires that the employer must set out the circumstances leading him to contemplate dismissal, send a copy to the employee, invite the employee to a meeting and inform the employee of the decision and of his right to appeal. If the right to appeal is exercised there must be a meeting and the outcome of that appeal must be communicated to the employee.  

22. 	The tribunal find that the respondent set out the circumstances leading it to contemplate dismissal in the letter of the 4 November 2009, a series of meetings followed and the claimant was informed of and availed of his right to appeal. In relation to the appeal it is the claimant's case that he was deprived of a fair appeal hearing because the appeal hearing was conducted by the directors involved in all previous stages of the dismissal procedure. The tribunal accept this to be the case. 

23.	The respondent contends that as a small company it lacked the personnel to conduct the appeal process involving a different panel. The tribunal do not accept this. Although Mr Ian Turkington was not involved in the day to day running of the business the tribunal find from the evidence of Mr Ryan Turkington that he [Mr Ian Turkington] was available at that time and so the tribunal conclude that he could have been used for the appeal hearing. Further and in the alternative it would have been possible and preferable for one director to be used for the first steps of the procedure and the other used for the purposes of the appeal.
 Conclusion
24.	The tribunal find from the evidence (which due to the absence of the claimant was not contradicted) that the respondent company were experiencing difficult trading conditions as part of the general economic downturn and in an effort to address this a review of the business was carried out. Following on from this review a decision was taken that the respondent no longer required a business unit manager and the claimant’s post was made redundant.

25.   A number of other posts within the company were created at the same time or shortly after the claimant was dismissed. However the tribunal in reaching it’s conclusions are mindful that it is not appropriate for it to go behind the facts and investigate how the redundancy situation arose, whether it could have been avoided or whether there were any viable alternatives.  It is not appropriate for this tribunal to go into the rights or wrongs of a declaration of redundancy. The following extract from H Goodwin v Fitzmaurice [1977 IRLR 393] is helpful:-

		“All that is required is proof to the satisfaction of the Industrial Tribunal that the case falls within the words of [article 174 of the Employment Rights (Northern Ireland) Order 1996]. Nor is there any obligation on the employer to establish the existence of some economic or accountancy state of affairs which would justify the declaration of a state of redundancy in order to establish the necessary facts to show that the dismissal was because of redundancy”

26.	It is the evidence of the respondent that the claimant lacked the skills necessary for any of the newly created posts and so these posts were not offered to him as suitable alternative employment. The tribunal having no testimony from the claimant and in circumstances where the sworn testimony of the respondent is compelling and consistent with the response and documentation furnished accept this to be the case.

27. 	For reasons given above the tribunal find that the statutory procedures were followed but the procedure on appeal was flawed in that the appeal was heard by the same two directors involved in the earlier stages of the procedure.  The tribunal have considered the case of Murray v Foyle Meats Ltd 1999 IRLR 562 referred to by Mr O’Sullivan and the case of Alexander v Brigden Enterprises 	Limited [2006] IRLR 422; Software 2000 v Andrews [2007] IRLR 568.) in this regard and find it established from the evidence that had the appeal panel been differently constituted the outcome would have been the same. 

28.	For all the above reasons the tribunal find that the claimant was dismissed by reason of redundancy and that in all the circumstances of the case including the size and administrative resources of the respondent, the respondent acted within a band of reasonable responses in dismissing the claimant.

Chairman:Date and place of hearing:  24 May 2010, OmaghDate decision recorded in register and issued to parties: