THE INDUSTRIAL TRIBUNALS 

CASE REF:	3332/03

APPLICANT:	Gary David Finlay

RESPONDENT:	Moira Foods Ltd

DECISION

The unanimous decision of the tribunal is that the applicant was not unfairly dismissed.

Appearances:
The applicant was represented by Mr J McMillan, Barrister-at-Law, instructed by Kenneth McKee, Solicitor.
The respondent was represented by Mr G Drain of Gallery and Campbell Solicitors.

Summary Reasons

The tribunal found the following facts:-

1.	The applicant was employed by the respondent as a van sales person.

2.	He was dismissed by reason of redundancy in or around 1 July 2003.

3.	It was contended on behalf of the applicant that this was a sham redundancy situation, and the real reason for the dismissal was that the respondent had become angry at the applicant being off for a month on paternity leave and annual leave and then being unable to come into work as a result of a sectarian incident at his home.  On the basis of the evidence before it, the tribunal finds that this was a genuine redundancy situation.  The tribunal considered in particular the sales day book and compared the years 2001/2002 and 2002/2003.  This did show a decline in the applicant’s sales.  The tribunal also had before it the accounts of the respondent for the period ended 30 June 2002 and the draft accounts for the period ended 30 June 2003.  No objection was raised by Mr McMillan in connection with these accounts.  The tribunal found that the accounts supported the respondent’s contention that there was a redundancy situation facing the respondent company.

4.	The criterion of selection used by the respondent in selecting the applicant for redundancy was “last in – first out”.  The applicant disputed that he was in fact the last in to the 

company, but did not provide any objective evidence to show that there was any merit in his contention.  Accordingly, the tribunal prefers the evidence of the respondent on this point.  This is a very small business and it appeared that upon the redundancy of the applicant the respondent re-jigged its runs so that three people could do the same runs previously undertaken by four people.

5.	The tribunal had some concerns about the implementation of the decision to dismiss the applicant.  The tribunal accepts the evidence of Mr Raymond Brown that there were difficulties stretching back to January 2003.  He said that the bank manager and his accountant were encouraging them to take action to deal with the situation.  The tribunal accepts Mr Raymond Brown’s evidence that he did discuss the situation with the applicant and indicated that it could not be allowed to go on.  The tribunal finds that there was consultation with the applicant concerning the situation generally in that Mr Brown suggested to the applicant on more than one occasion that he should go out and try to get additional business for the company.  The tribunal is supported in making this finding because the applicant admitted that he did go out and get additional business for the company in or around January 2003.  However, there was perhaps not the specific consultancy that a redundancy situation would have required.  While in general terms the tribunal found that Mr Raymond Brown had made the applicant aware of the difficulties and the decline in the company, there was nothing to suggest to the tribunal that either Mr Raymond Brown or Mr Michael Brown had informed the workforce that there was a potential redundancy situation looming, let alone inform the applicant that he was a potential candidate for redundancy.  From Mr Michael Brown's evidence, the tribunal was informed that the decision to make the applicant redundant was taken in or around late May 2003.  If this was indeed the case, the tribunal found that there was a delay in communicating the decision to Mr Finlay, the applicant.  Mr Michael Brown’s excuse for this was that Mr Finlay had been off on paternity leave and annual leave and then he himself had been off on holiday and had moved house.  This may very well have been the case.  However, the tribunal had no information before it to suggest that Mr Raymond Brown was not available and able to implement the decision taken.  It was Mr Raymond Brown’s evidence that he was being pressured by the bank manager and his accountant to take action, and he was a director of the company.

6.	There was also an issue over whether the applicant was offered alternative employment by the respondent or whether the applicant suggested that he should be given a casual position by the respondent.  The tribunal has insufficient evidence before it to make a finding on whether this was offered by the respondent and declined by the applicant or suggested by the applicant and declined by the respondent.  The tribunal does find however that the respondent did have some casual labour and that he applicant did not carry out any casual role in the business after his dismissal.  

7.	Was the decision to dismiss the applicant in its implementation procedurally unfair?  The tribunal finds that the implementation of the decision could have been handled in a much clearer and transparent fashion.  However, the tribunal is mindful that it is not every instance of procedural unfairness that will necessarily make a decision to dismiss, which was otherwise fair/unfair.  The tribunal has considered whether if the full and proper procedures have been followed, any decision to dismiss the applicant on the ground of redundancy would have been altered.  The tribunal finds that even if the full and proper procedures had been followed, it is more likely than not on the balance of probabilities that the applicant 
would still have been dismissed.  Therefore, the tribunal finds that the applicant’s dismissal was not unfair.  As the applicant has received his redundancy payment then that claim is dismissed.  Finally the tribunal finds that the proper respondent to the case is Moira Foods Ltd, as at the time of the applicant’s dismissal the former partnership of Michael Brown and Raymond Brown had become the limited company Moira Foods Ltd.

Chairman:

Date and place of hearing: 23 February 2004 and 16 March 2004, Belfast.

Date decision recorded in register and issued to parties: