THE INDUSTRIAL TRIBUNALS

CASE REF:  04333/09

CLAIMANT:			David Wilson Houston

RESPONDENT:		Bricon Ltd

DECISION
It is the unanimous decision of the tribunal that the claimant was not unfairly dismissed on either procedural or substantive grounds.  Any failure to complete the statutory dismissal procedure was attributable to the claimant.  
The claimant withdrew his claims for a redundancy payment and holiday pay.  The other breach of contract claims were conciliated and subsequently withdrawn.

Constitution of Tribunal:
Chairman:		Ms Crooke
Panel Members:	Mr J Nicholl
			Mr J Boyd

Appearances:	
The claimant appeared in person and represented himself.
The respondent was represented by Mr Shields, Barrister-at-Law, instructed by Macaulay & Ritchie, Solicitors.

SOURCES OF EVIDENCE

 1.	The tribunal heard evidence from the claimant on his own behalf and from Mr Brian Shields on behalf of the respondent.  There was also an agreed book of documents before the tribunal.

THE CLAIM AND THE DEFENCE

 2.	The claimant claimed that he was unfairly dismissed by the respondent, that he was entitled to a redundancy payment and to wages in arrears and holiday pay.

 3.	The respondent denied all these claims.

THE RELEVANT LAW

 4.	The relevant law:-

	(a)	In respect of unauthorised deductions this is found in Article 45 of the Employment Rights (NI) Order 1996;

(b)	in respect of unfair dismissal this is found in Article 130 of the Employment Rights (NI) Order 1996; and

(c)	in respect of the right to a redundancy payment this is found in Article 170 of the Employment Rights (NI) Order 1996.

THE FACTS

 5.	The tribunal found the following facts on the balance of probabilities:-

(a)	The claimant was employed as a direct operative/labourer by the respondent and had two completed years of service with the respondent.

(b)	The claimant was made redundant by the respondent on 16 January 2009.  From 26 March 2008 the respondent’s managing director Mr Brian Shields wrote periodically to his workforce to give information on the situation of the company.  We find the letter of 26 March 2008 to be an early warning from him of an impending redundancy situation.  This crystallised with a letter of 2 June 2008 from the managing director Mr Shields to the workforce by which he made the workforce redundant.  By a letter dated 10 June 2008, Mr Shields informed the claimant that he would keep him employed along with the site manager Mr Alan Barclay.  

(c)	Mr Shields suggested to his workforce on more than one occasion that they should consider becoming self-employed contractors.  One worker, Mr Patrick Devlin, actually took up this option and has worked for the respondent as a self-employed contractor.

(d)	The claimant’s claim was largely grounded on a letter from Mr Shields to the workforce dated 4 January 2009 in which he said that the respondent would receive fifty Vodafone sites per year to work on for the next three years.  He also said that Mr Shields had told him he would be the “last to go”, and that he regarded him as a supervisor and just could not afford to pay him as such.

CONCLUSIONS

 6.	(a)	The tribunal accepts there was a genuine redundancy situation affecting this respondent.  The evidence of Mr Shields that the company had made a loss every year since its inception was confirmed by the respondent’s accounts.  To try to keep trading Mr Shields decided to cut his labour costs and employ sub-contractors.  This meant he did not have to pay employees when they were idle and there was no work.  His evidence that of the fifty sites promised, only eight actually materialised was not challenged by the claimant, and the tribunal accepts it as more likely than not to be true.  This respondent faced a severe downturn in work.

	(b)	Was it unfair to keep on Mr Alan Barclay who was a qualified site manager with construction industry certification rather than the claimant who might have acted as a supervisor but did not have this certification?  We do not think so.  By his contract, his rate of pay and lack of certification the claimant was a labourer and all persons in that category were made redundant.  There was no unfair selection.  Mr Barclay was industry–qualified to run sites, and hence was retained to keep the respondent going.

	(c)	(1)	Neither do we consider this dismissal to be generally procedurally unfair.  We have noted that the respondent suggested that the labourers become self-employed in an attempt to keep them with the respondent.  The claimant did not wish to do this.  When the redundancy became unavoidable, the managing director Mr Shields went to the claimant’s house and again floated the option of becoming a self-employed sub-contractor.  When the claimant refused, Mr Shields handed him a letter dated 23 January 2009 making him redundant.  The claimant saw this as being procedurally unfair.  We do not consider that it was.  Mr Shields faced up to a difficult responsibility.  Many business owners do not even do this.  The claimant received a calculation of his redundancy entitlement and the sum due to him.

		(2)	However we also do consider that there was compliance by the respondent with the statutory disciplinary procedure.  The letter of 23 January 2009 outlined the situation, and although it did declare all persons in the claimant’s class of employees to be redundant, it offered a hearing.  The claimant did not request a hearing, although the letter was handed over to him in his house by Mr Shields personally.  The non-completion of the procedure arose because the claimant did not complete the statutory procedure.

	(d)	In summary, we consider:-

(i)	there was a genuine redundancy situation;

(ii)	the claimant was not unfairly selected for redundancy; 
		
(iii)	the claimant’s dismissal was not generally procedurally unfair;

(iv)	there was compliance by the respondent with the statutory dismissal procedure; and

(v)	the failure to complete the procedure was due to the failure by claimant to request a hearing.

Chairman:

Date and place of hearing:	8 September 2009, Belfast.

Date decision recorded in register and issued to parties: