THE INDUSTRIAL TRIBUNALS
CASE REF: 964/02
CLAIMANT: Paul Alan Welshman
RESPONDENT: Bombardier Shorts
DECISION
The unanimous decision of the tribunal is that the claimant was dismissed by reason of redundancy following a fair selection procedure. He therefore was not unfairly dismissed and his claim must fail. There was no evidence placed before the tribunal to support the claimant's case of breach of contract and that claim also is dismissed.
Constitution of Tribunal:
Chairman: Mr T G Browne
Members: Mr Copeland
Mrs Walker
Appearances:
The claimant did not appear and was not represented. There was nothing to suggest that the claimant had not received due notification of the proceedings, so the tribunal decided to dispose of the case by way of hearing.
The respondent was represented by Mr R Murphy, Solicitor, of the Engineering Employers' Federation.
ISSUES
The tribunal had to determine the claimant's assertions that the respondent was in breach of contract; that he had been unfairly dismissed; and that he had been unfairly selected for redundancy. In determining the issues, the tribunal had regard to the unchallenged oral evidence and written material as well as to the relevant legislation.
FINDINGS OF FACT
- It was common case that the claimant was employed by the respondent from 1985 until his dismissal in 2002; the respondent at that time gave the reason for his dismissal as being redundancy.
- The tribunal heard evidence from Mr Young, who works for the respondent as director of plant engineering. The business of the respondent is overwhelmingly dependent upon the aircraft industry.
- His unchallenged evidence was that in 2001, an initiative utilised by the respondent since the mid-1990's known as Total Productive Manufacturing (TPM) was coming to an end. TPM was a quality tool throughout the engineering industry, but at the material time was being replaced by the respondent from its Montreal headquarters by a new quality tool called 6-Sigma. This transition revealed a clear case for making redundancies inevitable.
- In order to see if the claimant, whose workload in the respondent's facilities management section was diminishing as TPM was phased out, could be found an alternative role under 6-Sigma. Over a period of 18 months, he was given the opportunity to be tested in various departments of the respondent's business, in various roles. Part of this formal assessment involved training and tests, which had to be passed in order to qualify for the 6-Sigma system, but the claimant did not get through them.
- The claimant came from an operations background, not facilities, so an attempt was made by the respondent to see if he could become supervisor of contractors, but this also was unsuccessful.
- In September 2001, the terrorist attacks on New York had a disastrous effect upon the aircraft industry, which added the probability of even more redundancies in the respondent's business. The respondent estimated that approximately 2000 people would be made redundant.
- Mr Young had to assess the managers, including the claimant, with the prospect of making eleven (10%) of them redundant. He used four criteria, namely: achievements, productivity, quality and behaviours, marking each within a range of five divisions, ranging from unacceptable to exceptional.
- The claimant's markings were two above standard and two below standard, which was substantially the same as most of his colleagues, so Mr Young assessed the group as regards their individual qualifications and skills.
- Where the claimant differed from most of the others however was the fact that he was not an engineer, which forms the core work carried out by the respondent. In addition, they had all been trained in accordance with their skills to immediately be able to carry out the mixed technology work required in the work that was available to the respondent.
- In addition to this, the claimant's own workload had been reducing and he had not been successful in adapting to the alternative forms of employment he had been allocated by the respondent in the preceding 18 months. Mr Young therefore concluded that the claimant's post was at risk of redundancy, and that there was no alternative work for him to do. Mr Young therefore informed the claimant of his decision, which understandably caused the claimant a great deal of distress, particularly as regards the assessment marks for his performance. Mr Young tried to reassure the claimant that the risk of redundancy did not arise from the markings, in which the group was all very similar, but from the fact that his job was extinguished.
- Mr Young advised the claimant of his right to appeal, which the claimant exercised before the Director of Human Resources and the Vice President of Operations. The claimant was represented at the appeal by a colleague, who was permitted to put the claimant's case fully. The appeal panel upheld the decision of Mr Young.
- After the assessment by Mr Young and the outcome of the appeal, the claimant was not actually redundant but was classified as "at risk" of redundancy. The Human Resources section of the respondent's business thereupon carried out a job-matching process, to see if any alternative work within the respondent's organisation was available, but this did not produce anything.
- The claimant then received £23,250 by way of severance pay from the respondent. Mr Young, who was very sympathetic to the claimant, made a personal approach to Invest NI, which helped the claimant to secure consultancy work. Whilst not part of the tribunal's examination of the propriety of the claimant's selection for redundancy, the tribunal regarded this as indicative of a genuine concern for the claimant which would significantly undermine any allegation of unfairness on the part of Mr Young in selecting the claimant.
LAW AND CONCLUSIONS
- Article 130 (1) of the Employment Rights (Northern Ireland) Order 1996 states:
"In determining …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.
Redundancy is a potentially fair reason under paragraph (2).
Article 174 (1) of the 1996 Order states that: "an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to…………
(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."
- The tribunal is satisfied that even before the events of September 11th 2001, the respondent had genuinely identified a potential redundancy situation affecting the claimant's job. The tribunal is further satisfied that genuine and appropriate steps were taken by the respondent to attempt to place the claimant elsewhere within its organisation, but that this was unsuccessful because the claimant proved to be unsuitable in the various roles to which he was allocated.
- The tribunal further is satisfied that the events of September 2001 had a serious adverse effect upon the aircraft industry in general, from which the respondent did not escape. The tribunal therefore concluded that the respondent made an accurate assessment of unavoidable further redundancies on a large scale.
- The tribunal considers the respondent's selection procedures to be appropriate and fair. Whilst the claimant expressed grave disquiet over his markings in the assessment, the tribunal is satisfied with the respondent's explanation, at the time and to the tribunal, that it was not the markings which caused the redundancy but the fact that his job, which was unique in the section where he worked, was extinguished.
- The tribunal finds the appeal procedure to have been appropriate and fair, and was impressed by the successful efforts of Mr Young to assist the claimant to find work after his dismissal.
- The tribunal therefore is satisfied that the respondent has discharged the burden of showing the reason for the claimant's dismissal, namely redundancy, which is a potentially fair reason. The tribunal concludes that the procedure devised and adopted by the respondent was fairly applied, and that the claimant's job was properly identified as being redundant. The tribunal therefore finds that the claimant's case that he was unfairly dismissed and that he was unfairly selected for redundancy to be without foundation.
- The tribunal found no evidence to support the claimant's assertion in his initial claim that the respondent was in breach of contract.
- The claimant's case in its entirety is therefore dismissed.
Chairman:
Date and place of hearing: 30th April 2007, Belfast.
Date decision recorded in register and issued to parties:
