THE INDUSTRIAL TRIBUNALS

CASE REF:	1375/17IT

CLAIMANT:			Antonio Santos

RESPONDENT:		Jim Keeley Motors Ltd

DECISION 
1.	The unanimous decision of the tribunal is that the claimant was dismissed by the respondent by reason of redundancy.

2.	The unanimous decision of the tribunal is that the claimant was dismissed without notice and that he is entitled to three weeks’ notice pay.

3.	The unanimous decision of the tribunal is that the claimant was not unfairly dismissed and that claim is dismissed.

4.	The unanimous decision of the tribunal is that there was no breach of contract by the respondent and that claim is dismissed.

5.	The unanimous decision of the tribunal is that the claimant has failed to establish any entitlement to payment for holiday pay, and that claim is dismissed.

6.  	The claimant is ordered to supply to the respondent a schedule of loss within fourteen days of the issue of this decision.  If the figures contained therein cannot be agreed between the parties within fourteen days of being supplied to the respondent, a date will be fixed by the tribunal to conduct a remedy hearing.

Constitution of Tribunal:
Employment Judge:		Employment Judge Browne
Members:				Ms D Adams
Mr R Hanna

Appearances:
The claimant appeared and represented himself.
The respondent was represented by Mr Padraig O’Connor.
ISSUES AND EVIDENCE

1.	The tribunal was required to determine if the claimant had been dismissed; and, if so, whether or not his dismissal was on the ground of redundancy.

2.	The claimant also made claims that he was owed holiday pay and notice pay; that he was unfairly dismissed and that there was a breach of contract by the respondent.

3.	Article 171 of the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”) defines dismissal as follows:

“171.—(1) Subject to the provisions of this Article and Articles 172 and 173, for the purposes of this Part an employee is dismissed by his employer if (and only if) —

(a)	the contract under which he is employed by the employer is terminated by the employer (whether with or without notice),

(b)	he is employed under a limited-term contract and that contract terminates by virtue of the limiting event without being renewed, or,

(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. 

Article 174 of the 1996 Order applies to redundancy situations:

“Redundancy

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.

(2) For the purposes of paragraph (1) the business of the employer together with the business or businesses of his associated employers shall be treated as one (unless either of the conditions specified in sub-paragraphs (a) and (b) of that paragraph would be satisfied without so treating them).

(3) Where —

(a)	the contract under which a person is employed is treated by Article 171(5) as terminated by his employer by reason of an act or event, and

(b)	the employee's contract is not renewed and he is not re-engaged under a new contract of employment, he shall be taken for the purposes of this Order to be dismissed by reason of redundancy if the circumstances in which his contract is not renewed, and he is not re-engaged, are wholly or mainly attributable to either of the facts stated in sub-paragraphs (a) and (b) of paragraph (1).

(4) In its application to a case within paragraph (3), sub-paragraph (a)(i) of 
paragraph (1) has effect as if the reference in that paragraph to the employer included a reference to any person to whom, in consequence of the act or event, power to dispose of the business has passed.

(5) In paragraph (1) “cease” and “diminish” mean cease and diminish either permanently or temporarily and for whatever reason.”

4.	The claimant worked for the respondent as a mechanic at the respondent’s car sales business from October 2013 until 1 December 2016. 

5.	On 1 December 2016, the claimant was not at work.  He received a telephone call from his brother-in-law, who worked with him and Mr Anthony Smalls in the servicing and repair workshop at the respondent’s premises, which is primarily a car sales business.  His brother-in-law informed him that the business owner, Mr Jim Keeley, had come in to the workshop and asked the claimant’s brother-in-law and Mr Smalls why it was still operating.  It was also relayed to the claimant that Mr Keeley’s wife, whom they all regarded as being involved in running the business, later told them that this was the last day the workshop would be open, and that they should collect their tools and leave.  It was this information which prompted the claimant’s brother-in-law to contact him.  No other part of the respondent’s business closed at that time or subsequently.  The respondent had only taken over the business as a going concern earlier in 2016.

6.	Unfortunately, on the same date, Mr Keeley was admitted to a psychiatric hospital due to a mental breakdown; he has still not sufficiently recovered from his illness to resume work.

7.	On 2 December the claimant and the other two employees affected, namely his brother-in-law and Mr Smalls, went to see Mr Padraig O’Connor, the company’s accountant, to ask for their P45s.  Mr O’Connor told them that he was completely in the dark about what was happening, and asked them to wait until he had more information before taking their P45s.  Only Mr Smalls decided to wait, although he collected his about two weeks later.  Mr O’Connor accepted in his evidence that he had not issued any more payslips to Mr Smalls in that period.

8.	The claimant gave evidence that he was told by his brother-in-law that he needed his P45 in order to be able to claim benefits.  On 22 December 2016, he sent a letter to the respondent, which included the assertions regarding what Mr and Mrs Keeley were alleged to have said on 1 December.  He also queried therein what his employment status was.  He received no response to that letter, and consequently no contradiction of what he alleged had been said.  Mrs Keeley attended the tribunal, but did not give evidence.  The respondent claimed never to have received the letter, but it was sent by recorded delivery, and there was documentary evidence that it was signed for by someone unknown at the respondent’s premises.

9.	The respondent’s case was that the claimant had resigned of his own accord, and that he was not made redundant, as there were no plans to close the workshop.  Mr O’Connor claimed that the only person entitled to make decisions was Mr Keeley, and that he had been too mentally unwell at that time to make a rational decision.  The respondent therefore contended that there was no redundancy situation and that the claimant had simply resigned.

10.	Mr O’Connor accepted in his evidence that a car servicing and repair workshop had re-opened in January 2017 in the same premises, but rented out by the respondent to a self-employed mechanic, whose work included, but was not confined to, looking after vehicles dealt with by the respondent.  He stated that the respondent’s workshop had had to close because the claimant, his brother-in-law and Mr Smalls had left.  He accepted in evidence that no attempt had been made by the respondent either to contact the three men to re-engage them to keep the workshop open; nor had the respondent made any attempt to advertise for or to seek replacements.

CONCLUSIONS

11. 	The tribunal unanimously concluded that the claimant and his two colleagues had been informed by the respondent that their area of work, namely the workshop, was going to close.  Whilst Mr Keeley was clearly mentally unwell, he nevertheless made it clear that his plans moving forward did not include the workshop.  He only a few months before had taken over the business, and would appear to have made the decision to close that function. 

12.	The taking of that decision was in the view of the tribunal reinforced by the unchallenged assertion by the claimant in his letter of 22 December that Mrs Keeley had told the claimant’s brother-in-law and Mr Smalls that 1 December was the last day the workshop would be open, and that they should collect their tools and leave.  Mrs Keeley attended the tribunal but did not give evidence.  Whilst there was no legal obligation on her to do so, there was no other evidence on this point other than that of the claimant and the contents of his letter of 22 December.  The tribunal unanimously concluded that the claimant was telling the truth about what he had been told by his brother-in-law, and that the respondent took no steps to refute or correct the claimant’s letter of 22 December.  The tribunal is satisfied from the signed acknowledgement of receipt that the respondent received the claimant’s letter of 22 December.

13. 	The tribunal also concluded that, whilst Mr Keeley was genuinely unwell, decisions about the workshop were subsequently taken by Mrs Keeley which contradicted the respondent’s case that Mr Keeley was the only person qualified to do so.  This included what must have been a prompt decision to let out the workshop; not to contact the three men, asking them to come back; not to advertise for replacements; and not to seek, for example, the services of a recruitment agency to do so. 

14. 	Whilst Mr Keeley's illness might have prompted him to speak out tactlessly about closing the workshop, it does not necessarily mean that what he said was untrue, especially when considered in light of the respondent’s actions subsequent to his confinement to hospital.  The tribunal is not required to decide whether or not such a decision was commercially sound.  The tribunal is satisfied that the respondent probably had decided, after assessing it since earlier in the year after taking over the whole business, that the workshop was not commercially viable.  That decision was in the view of the tribunal confirmed by the fact that the business which rented the workshop premises from January 2017 conducted servicing and repairs to vehicles other than those dealt with by the respondent.

15.	The tribunal is satisfied that the respondent had decided to close the workshop, and that Mrs Keeley was aware of her husband’s intentions in that regard.  Even if she was not aware, her immediate assumption of making key business decisions consistent with and consolidating Mr Keeley’s plan to dispose of the workshop does not in the view of the tribunal lend any weight to the respondent’s defence that only he was permitted to do so, and that his incapacity rendered the respondent’s business rudderless. 

16. 	As such, the claimant was, in the view of the tribunal, entitled to regard what had been said as meaning that he was dismissed by reason of redundancy under Article 174(1) of the 1996 Order, namely:

“the dismissal is wholly or mainly attributable to —

….
	
(b)	the fact that the requirements of that business —

….

(ii)	for employees to carry out work of a particular kind 

….

have ceased or diminished or are expected to cease or diminish.”

17. 	The tribunal is satisfied that the explanation put forward by the claimant that he believed he needed his P45 is reasonable and true.  Even had he waited, as asked by Mr O’Connor, the outcome would probably have been exactly the same. 

18. 	The tribunal unanimously concludes that that the claimant was dismissed by reason of redundancy because the respondent planned to shut the workshop function of the business, and to dismiss all three of the staff working there.  As such, the claimant was not unfairly dismissed, and that claim is dismissed.

19. 	The tribunal has also concluded that the claimant has failed to establish any entitlement to outstanding holiday pay.  He had taken 30 November and 1 December as unpaid leave, as he had used up all of his annual leave entitlement.  It therefore appears to the tribunal that he had no remaining entitlement to paid holiday leave within that leave year.  His claim in that regard is therefore dismissed.

20. 	The tribunal concludes that the claimant was entitled to three weeks’ notice.

21. 	The tribunal concludes that the claimant has failed to establish a breach of contract, and that claim is dismissed.

REMEDY

22. 	The claimant at the Case Management Discussion on 25 May 2017 was ordered (at paragraph 9 of the Record of Proceedings) by the tribunal to provide a written schedule of loss by 14 July 2017.  By the time of the tribunal hearing on 27 July, he had failed to do so.  The tribunal orders the claimant to comply with paragraph 6 (above) of the Decision section in this case.

Employment Judge:

Date and place of hearing:	27 July 2017, Belfast.

Date decision recorded in register and issued to parties: