14 Moore v Board of Trustees for the National Museums & Galleries of Northern Ireland(Unfair Dismissal/Unfair Selection for Redundancy/Redundancy) [2004] NIIT 1179_01 (3 February 2004)

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    INDUSTRIAL TRIBUNALS

    CASE REF: 1179/01

    1248/01

    APPLICANT: John Shaw Moore

    RESPONDENT: The Board of Trustees of the National

    Museums and Galleries of Northern Ireland

    DECISION

    The unanimous decision of the tribunal is that:-

    (i) The applicant's complaint numbered 1179/01 of unfair dismissal; unfair selection for redundancy; redundancy, is dismissed, without further order.

    (ii) In view of the applicant's withdrawal of his complaint numbered 1248/01 without objection, the applicant's complaint numbered 1248/01 is dismissed by the tribunal, without further order.

    Appearances:

    The applicant appeared and represented himself.

    The respondent was represented by Mr McKee, Barrister-at-Law, instructed by C & J Black, Solicitors.

    This is a reserved decision in summary form.

    THE ISSUES

  1. The applicant had two complaints. The first of these complaints, that numbered 1179/01, was comprised in an originating application dated 22 January 2001 wherein the applicant complained of "Unfair Dismissal: Unfair selection for Redundancy: Redundancy". The applicant's second complaint, that numbered 1248/01 was comprised in an originating application dated 1 February 2001 wherein the applicant complained of "Breach of Contract". At hearing, the applicant further elaborated upon that second complaint by contending that he had been given a payment in lieu of notice upon termination of employment from which Income Tax and National Insurance deductions had been taken; he stated that this was done by the respondent in breach of contract. (However, upon conclusion of the hearing, the applicant indicated that he wished to withdraw that second complaint). The respondent resisted both complaints. In respect of the first complaint, the respondent contended that the applicant had been fairly and properly dismissed on grounds of redundancy. In respect of the second complaint, the respondent indicated that the applicant had properly been paid a redundancy payment upon termination of employment and that there was no breach of contract in regard thereto. Accordingly, the tribunal had to determine these complaints.

    2. THE TRIBUNAL'S FINDINGS

    In consequence of the written and oral evidence adduced before it, the tribunal found the following facts:-

  2. The applicant commenced employment with Ulster Folk & Transport Museum in or about February 1981. His position was Keeper of Transport. The post was governed by a written contract of employment and conditions of service which incorporated certain conditions of service applicable to civil servants, materially, specific conditions in relation to early retirement and redundancy procedures contained in the Northern Ireland Civil Service Code, where applicable.

  3. In 1995 there arose an issue of dispute regarding a potential redundancy in respect of the applicant. That issue was adjudicated upon, by agreed procedure, by an independent appeals panel. The outcome was that any potential redundancy of the applicant at that time did not proceed and the applicant was then offered and accepted a post as Head of Administration at the Ulster Folk & Transport Museum on a fixed term contract appointment for 2 years commencing on 1 July 1996. The terms of appointment were entirely clear - a possible extension for one further year was available, but it was stated by the Ulster Folk & Transport Museum's then Assistant Administrator, Mr Blemings, in a letter of 28 June 1996 to the applicant that the position was not a permanent post and that it might well become redundant as a result of any recommended amalgamation of museums stemming from the 'Wilson Report', a report commissioned to deal with issues of possible rationalisation and amalgamation of a number of different museum facilities. With the post of Head of Administration came a job description which specifically dealt with the various functions of the post. Responsibility for Ulster Folk & Transport Museum came under the auspices of the National Museums and Galleries of Northern Ireland in 1998, by statutory enactment.

  4. The applicant's post of Head of Administration, the contract term in respect of which was due to expire on 30 June 1998, was thereafter subject to contract term extensions for consecutive periods continuously up to 30 September 2000. At all times it was made quite clear to the applicant that these individual contractual extensions were on the basis of the caveat contained in the original appointment of 1996; that the post might well become redundant once rationalisation was completed.

  5. As part of the rationalisation process, a number of different functions previously carried on at Ulster Folk & Transport Museum, Ulster Museum, Ulster American Folk Park and Armagh County Museum, were rationalised and centralised following the Wilson Report recommendations. The body, the National Museums and Galleries of Northern Ireland came into being. The process of rationalisation involved the initial appointment of a new Chief Executive, Mr Houlihan, whose appointment was then followed by appointments of a Director of Personnel, a Director of Finance, and appointments to other senior administrative posts, all of which posts were filled by open competition.

  6. Upon the rationalisation being implemented, the respondent took the view that the applicant's post as Head of Administration at Ulster Folk & Transport Museum was effectively redundant. The respondent wrote to the applicant by letter dated 22 September 2000 (and copied this to the applicant's trade union representative, Mr Graham of NIPSA) notifying the applicant that his contract term was to expire on 30 September 2000 and stating that the post of Head of Administration had been subsumed into another post and that the applicant was therefore unable to resume his former duties. Individual consultation was offered to the applicant with the invitation that he be appropriately accompanied (which latter offer the applicant declined) and a meeting took place with the applicant on 2 October 2000 at which it was explained that the applicant's role and job functions as Head of Administration had been subsumed into the duties of three persons: the Director of Personnel, the Director of Finance, and the Managing Director of Ulster Folk & Transport Museum.

  7. At the meeting of 2 October 2000, various alternatives were discussed with the applicant including exploration of possible re-deployment of the applicant to alternative positions. However, no suitable alternative posts appeared to be available. The applicant made a number of suggestions which he stated merited further examination but he did appear to be resigned to the fact that he would be made redundant.

  8. It must be said that the applicant for some time had been on suspension from work as a result of a disciplinary investigation conducted by the respondent. That concerned issues of alleged capability and conduct arising from the applicant's performance of his job functions. As far as the tribunal can ascertain, disciplinary proceedings were brought by the respondent after a full and independent investigation had been carried out and a disciplinary sanction was imposed, which the applicant subsequently appealed. The conclusion of those proceedings and notification of the outcome coincided with the applicant's notification contained in the letter dated 22 September 2000. The applicant contended that this disciplinary issue was a material factor in his dismissal. The letter notifying the applicant of the outcome of the disciplinary proceedings, dated 22 September 2000, was posted to the applicant together with the letter of similar date inviting the applicant to the meeting to discuss the situation arising upon the expiry of his contract.

    9. THE TRIBUNAL'S DECISION

  9. In view of the applicant's retraction of his breach of contract claim contained in his application numbered 1248/01 at the conclusion of the hearing, without objection or further application on the part of the respondent, the applicant's application under number 1248/01 is dismissed by the tribunal, without further order.

  10. The tribunal then considered the applicant's remaining complaint, that numbered 1179/01. An employee has a right not to be unfairly dismissed by his employer under Article 126(1) of the Employment Rights (Northern Ireland) Order 1996 unless the employer can show that the dismissal is fair for one of the reasons set out in Article 130 of that Order. One such potentially fair reason relates to redundancy. That was the reason stated by the respondent. In this case, having examined the facts, the tribunal determines that there was a proper and valid redundancy situation applicable to the post then occupied by the applicant, arising for apparently sound economic and organisational reasons. The reorganisation arose on foot of a commissioned report and had a statutory basis. Accordingly, the applicant's contention that there was no proper or genuine redundancy cannot be accepted by the tribunal. His post did become redundant.

  11. The tribunal cannot determine from the evidence that there is any link whatsoever between the disciplinary proceedings taken against the applicant or the disciplinary sanction imposed by the respondent and the dismissal of the applicant. The tribunal discounts that as having any connection at all with the dismissal of the applicant. The applicant argued that the timing of the conclusion of those proceedings, coinciding with the notification in the letter dated 22 September 2000, suggested a connection. The applicant contended that this was a material factor in his dismissal. However, the respondent provided to the tribunal a reasonable explanation for that coincidence - that it would have been inappropriate to have set in train the process which might have lead to the dismissal of the applicant for redundancy before the disciplinary proceedings were concluded; one had to await the other. The tribunal accepts that explanation.

  12. In regard to the applicant's allegations of procedural unfairness, it was at all times made quite clear to the applicant that his Head of Administration post might be subject to termination upon the outcome of the rationalisation process which was then in hand. The contract was for a fixed term and was extended from time to time, with the caveat expressly stated each time, leaving the applicant in no doubt as to the insecurity which attached to his position. When the rationalisation of the museums was concluded and when appropriate appointments were made to carry the respondent's activities forward, the applicant and his trade union official were notified by letter and individual consultation was arranged and attended by with the applicant. The tribunal is satisfied that, to the necessary degree, that individual consultation was fair and was appropriate. There is no evidence that suitable alternative positions might have been available which would have prevented the applicant's dismissal or that the respondent did not properly apply its mind to alternatives to dismissal. There was nothing which significantly departed from the provisions of the Civil Service Code, insofar as these were applicable and relevant, nor anything inherently unfair in the process or in the procedures employed by the respondent.

  13. That being the case, the tribunal cannot but take the view that the applicant was fairly and properly dismissed on grounds of redundancy and therefore the applicant's remaining complaint must fail and it is dismissed by the tribunal, without further order.

    14. Chairman:

    Date and place of hearing: 2 and 3 February 2004, Belfast

    Date decision recorded in register and issued to parties:

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