THE INDUSTRIAL TRIBUNALS

CASE REF:	2114/04

CLAIMANT:			Peter Philip Conroy

RESPONDENTS:		1.	Gerry Harkin
2.	Harkin Haulage
3.	McGeary Mushroom Compost Limited 

DECISION

The unanimous decision of the tribunal is that the Claimant was unfairly dismissed by the First Named Respondent on the 16th April 2004.  The liability for this unfair dismissal however passed to the Third Named Respondent by virtue of the Transfer of Undertakings Regulations 1981 and the Tribunal therefore orders the Third Named Respondent to pay to the Claimant the sum of £4,407.50 by way of compensation.

Constitution of Tribunal:

Chairman:		Miss E McCaffrey

Members:		Mr S Devlin 
Mr A Crawford

Appearances:

The claimant was represented by Mr S Druse of Armagh Citizens Advice Bureau

The First and Second Named Respondents did not appear and were not represented. 

The Third Respondent was represented by Mr P O’Kane BL instructed by J J Haughey and Company Solicitors.

ISSUES

The issues for the Tribunal to decide were:

(i)	Whether the business from which the Claimant was dismissed was the subject of a relevant transfer, contrary to the Transfer of Undertakings (Protection of Employment) Regulations 1981 and if so, to whom did the rights, powers, duties and liabilities for the Claimant’s contract of employment pass?

(ii)            Whether the Claimant was unfairly dismissed when his employment was
terminated  on the 16th April 2004 ? 

FACTS

(i)	The Tribunal heard evidence from the Claimant and from Mr Colm McGeary of the Third Named Respondent.  The First and Second Named Respondents did not appear and were not represented.  On the basis of the evidence heard the claim lodged by the claimant and the responses lodged by both Respondents, the Tribunal makes the following findings of fact.

(ii)	The Claimant was employed as a lorry driver by McGeary Mushroom Compost Limited starting his employment in August 1998.  In June 2001 McGeary Mushroom Compost Limited sold their haulage business to Mr Gerry Harkin, the First Named Respondent trading as Harkin Haulage, the Second Named Respondent.  At that stage all the drivers were advised that their employment passed to Mr Harkin and that their statutory rights and their contracts of employment were safeguarded under the Transfer of Undertakings Regulations 1981.  

(iii)	In April 2004 the Claimant went on holiday the week before Easter, returning on Easter Sunday.  He spoke by telephone to a colleague who advised him that the other drivers had been told on the previous Friday that McGeary Mushroom Compost Limited were taking over the haulage business again from Mr Harkin but that not all of the drivers were being transferred. The colleague said Mr Conroy, the Claimant, was one of those selected for redundancy.

(iv)	When he resumed work after the Easter break on the 13th April 2004, Mr Conroy did his day’s work as usual.  When he returned to the yard run by Gerry Harkin at the end of the working day, Mr Harkin met him in the yard and told the claimant that he (Mr Harkin) was finished as McGearys were taking over the haulage again.  Mr Harkin advised the Claimant that he, the claimant, would be finishing work the following Friday, the 16th April.  The drivers did not normally work weekends.   Mr  Harkin showed the claimant a letter with the McGeary logo on it. The letter said that McGearys would take over the haulage business again on the 19th April and also indicated the lorries and equipment which McGearys were willing to take over.  The letter also set out a list of 8 drivers who McGearys wanted to transfer to them.  At that time Mr Harkin employed 10 drivers and Mr Conroy and one other were the only drivers who were not to transfer.

(v)	The Claimant worked the rest of the week and was paid at the end of that week.
	 He asked Mr Harkin for a copy of the letter which he had shown him and Mr
	 Harkin said that he would get him a copy of the letter but failed to give it to him.

(vi) 	The following week Mr Conroy asked again for the letter when he was collecting
	 his lying week’s wages but never received it.  Mr Conroy was not consulted in
	 any way about his selection for redundancy nor was there any selection
	 process gone through as far as he was aware.  He was not given an
	 opportunity to challenge his selection.  Following the conversation with Mr
	 Harkin, Mr Conroy formed the opinion that he was dismissed from his
	 employment because Mr Harkin had been instructed by McGeary Mushroom
	 Compost Ltd that they would only take 8 drivers rather than 10 and there was
	 effectively collusion between Mr Harkin and McGeary Mushroom Compost
	 Limited as to which drivers would be retained and which would be dismissed.  

(vii) 	      There was a conflict of evidence between Mr Colm McGeary of McGeary 
Mushroom Compost Limited and Mr Conroy on this point.  The Tribunal did not hear any evidence from Mr Harkin who did not attend and so the only direct evidence which they heard of the conversation between the claimant and Mr Harkin was that given by the claimant. This evidence was not challenged by the third-named respondent.  However the letter which Mr Conroy said he was shown by Mr Harkin was never produced to Mr Conroy after that conversation.  Discovery of the letter was sought from the Third Named Respondents, but it was not produced and Mr Colm McGeary told the Tribunal that he had no knowledge of such a letter.  An Order for Discovery of the letter could not be made against the First and Second Named Respondents because they were resident outside Northern Ireland.

(viii) 	However, the Tribunal has in addition considered the content of the responses lodged on behalf of Mr Gerry Harkin trading as Harkin Haulage and also the Notice of Appearance lodged on behalf of McGeary Mushroom Compost Limited in August 2005.  

Mr Harkin’s Notice of Appearance indicates that any claim the Claimant has should be directed to McGeary Mushroom Compost Limited.  He indicated that the haulage business of McGeary Mushroom Compost was conducted for a period by Harkin Haulage.  It continues:

“By arrangement all employees of McGeary in the haulage aspect of that business were retransferred to McGeary on cessation of the arrangement between the two companies”.

(ix)  	The Appearance lodged on behalf of McGeary Mushroom Compost Limited, and which was signed by Colm McGeary refers to the initial transfer of the business to Harkin Haulage Limited and to the transfer of employment of the staff to Harkin Haulage.  It continues :

“In or about April 2004 McGeary Mushroom Compost Limited purchased vehicles from Harkin Haulage Limited.  As McGeary Mushroom Compost Limited has reduced its operation a few number of employees and lorries
and drivers as had originally been required were needed.  During 
discussions between Harkin Haulage Limited and McGeary Mushroom 
Compost Limited it was agreed as to which lorries and drivers were
required.  The Applicant did not form part of this agreement”.

(x)	The Notice of Appearance also confirms that the transfer of the business to McGeary Mushroom Compost Limited took place on 19th April 2004.  While the Notice of Appearance goes on to dispute the liability of McGeary Mushroom Compost Limited for any payment due to the Claimant, the content of the Notice of Appearance nevertheless is consistent with the account given by the Claimant of the events of the 13th – 16th April.  It is to be noted that the Appearance lodged by the Third Named Respondent was prepared in August 2005, over a year after the Claimant was dismissed and the Third Named Respondent had ample time to reflect on the content of its response to Mr Conroy’s claim of unfair dismissal.  The finding of the Tribunal therefore is that it accepts the evidence of the Claimant that Mr Harkin made him redundant at the request of McGeary Mushroom Compost Limited and that he was dismissed from his employment without consultation or without undergoing any formal selection procedure on the 16th April 2004. 

(xi)	The Tribunal also finds as a fact that the business conducted by Mr Harkin trading as Harkin Haulage transferred to McGeary  Mushroom Compost Limited on 19th April 2004, and that the last working day for the business prior to the transfer was 16th April 2004.

(xii) 	The claimant was out of work for 2 weeks following his dismissal and advised that during that time he received benefits of £67 for 2 weeks. His wage in his new job was £280 per week nett, and he was still in that job at the date of the hearing.

RELEVANT LAW

The relevant law in relation to the  transfer of the business is found in the Transfer of Undertaking (Protection of Employment) Regulations 1981, better known as the TUPE regulations.

Regulation 3 provides :

“(1) 	Subject to the provisions of these Regulations, these Regulations apply to a transfer from one person to another of an undertaking situated immediately before the  transfer in the United Kingdom or a part of one which is so situated .”

Regulation 5 provides :

“(1) 	A relevant transfer shall not operate so as to terminate the contract of employment of any person employed by the transferor in the undertaking or part transferred  but any such contract which would otherwise have been terminated by the transfer shall have effect after the transfer as if originally made between the person so employed and the transferee.

“(2) 	Without prejudice to paragraph (1) above, on completion of a relevant transfer –

(a) 	all the transferor’s rights, powers, duties and liabilities under or in connection with any such contract, shall be transferred by virtue of this Regulation to the transferee ; and 

(b) 	anything done before the transfer is completed by or in relation to the transferor in respect of that contract or a person employed in that undertaking or part shall be deemed to have been done by or in relation to the transferee.

“(3) 	Any reference in paragraph (1) or (2) above to a person employed in an undertaking or part of one transferred by a relevant transfer is a reference to a person so employed immediately before the transfer, including, where the transfer is effected by a series of two or more transactions, a person so employed immediately before any of those transactions.”

In relation to the question of the dismissal of the claimant, and whether or not the dismissal was unfair,  the relevant law is to be found in Part XI of the Employment Rights (Northern Ireland ) Order 1996 and in particular in Article 130 of the Order, which provides :

“(1) 	In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show –

(a)	that the reason (or if more than one the principal reason ) for the dismissal, and

(b)	that 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.”

The reasons set out in paragraph 2 relate to the capability and qualifications of the employee, conduct of the employee, redundancy or breach of a statutory provision.

DECISION

The decision of the Tribunal on the first issue is that the business run by Mr Harkin, the First Named Respondent, trading as Harkin Haulage, transferred to McGeary Mushroom Compost Limited on 19th April 2004 and that the TUPE  Regulations applied to that transfer, so that the responsibility for the contracts of employment of all staff employed by Harkin’s business who were employed  immediately before the transfer to McGeary Mushroom Compost Limited then transferred to that company. Although the claimant was dismissed by Mr Harkin with effect from 16th April 2004, the Tribunal is clear that the decision to dismiss was connected to the transfer of the business and this is confirmed not just by the claimant’s evidence, but by the evidence given by Mr McGeary and by the Notices of Appearance entered by the second and third respondents : McGeary’s instructed Mr Harkin how many and which drivers they wished to retain and he then dismissed those drivers, including the claimant, who were surplus to requirements.  Accordingly the claimant is entitled to the protection of the TUPE Regulations, as he was
employed by the transferor of the business immediately before the transfer and his dismissal was connected to the transfer (Litster v Forth Dry Dock and Engineering Co 
Ltd (HL) [1989] IRLR 161 and Bork v Foreningen af Arbejdsledere i Danmark [1989] IRLR 41 (ECJ) ). Accordingly the liabilities of the employer under the claimant’s contract of employment transferred to the third named respondent.

On the second issue, whether the claimant was unfairly dismissed, the decision of the Tribunal is that the claimant was unfairly dismissed. He was told on 13th April that he was to be dismissed with effect from the 16th April 2004, because the third respondent did not require the full complement of drivers employed, but with no proper selection process for redundancy having been applied. There was no consultation with the workforce and the claimant was not given any opportunity to challenge his selection for redundancy. There was no suggestion that voluntary redundancies had been sought or that other working arrangements had been invited so as to avoid redundancy. The claimant was dismissed  with only 3 days’ notice and with no redundancy payment having been made. The finding of the Tribunal is that the claimant was unfairly dismissed in that he was unfairly selected for redundancy and that the dismissal was both procedurally and substantially unfair.

The claimant was aged  49 at the date of his dismissal and had 5 complete years’ service with the employer. The Tribunal orders the third-named respondent to pay the claimant compensation made up as follows:

The basic award and the redundancy award are calculated in the same way in this case and the basic award is to be offset by any amount awarded in respect of redundancy payment.

Redundancy payment at age 49 :

1.5 weeks’ pay for each year of service
£265  x 7.5                                               	 = 	£1,987.50

Notice pay 5 weeks  @ £265 per week		 =	£1,325.00
Holiday pay  - 1 week                           		 = 	£   265.00
Loss of statutory rights                         		 = 	£   300.00
Loss of earnings for 2 weeks
£265 x 2                                                		  =	£   530.00
TOTAL                                                                  = 	£4,407.50
								========

This is a case to which the Recoupment Regulations apply.

This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

The monetary award is as set out above. The amount of the prescribed element is £530. The dates to which the prescribed element apply are from 19th April 2004  to 3rd May 2004. The monetary award exceeds the prescribed element by £3,877.50.

Chairman:

Date and place of hearing:	27 April 2006, Omagh.	

Date decision recorded in register and issued to parties:

Case Ref No: 2114/04	

CLAIMANT:		Peter Philip Conroy

RESPONDENTS:	1.  	Gerry Harkin
			2.	Harkin Haulage
			3.	McGeary Mushroom Compost Ltd
ANNEX TO THE DECISION OF THE TRIBUNAL

STATEMENT RELATING TO THE RECOUPMENT OF JOBSEEKER’S ALLOWANCE/INCOME SUPPORT

1.	The following particulars are given pursuant to the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996.

	£	
(a)  Monetary award	4,407.50	
(b)  Prescribed element	530.00	
(c)  Period to which (b) relates:	19 April 2004 - 3 May 2004	
(d)  Excess of (a) over (b)	3,877.50	

	The claimant may not be entitled to the whole monetary award.  Only (d) is payable forthwith; (b) is the amount awarded for loss of earnings during the period under (c) without any allowance for Jobseeker’s Allowance or Income Support received by the claimant in respect of that period; (b) is not payable until the Department of Social Development has served a notice (called a recoupment notice) on the respondent to pay the whole or a part of (b) to the Department (which it may do in order to obtain repayment of Jobseeker’s Allowance or Income Support paid to the claimant in respect of that period) or informs the respondent in writing that no such notice, which will not exceed (b), will be payable to the Department.  The balance of (b), or the whole of it if notice is given that no recoupment notice will be served, is then payable to the claimant.

2.	The Recoupment Notice must be served within the period of 21 days after the conclusion of the hearing or 9 days after the decision is sent to the parties (whichever is the later), or as soon as practicable thereafter, when the decision is given orally at the hearing.  When the decision is reserved the notice must be sent within a period of 21 days after the date on which the decision is sent to the parties, or as soon as practicable thereafter.

3.	The claimant will receive a copy of the recoupment notice and should inform the Department of Social Development in writing within 21 days if the amount claimed is disputed.  The tribunal cannot decide that question and the respondent, after paying the amount under (d) and the balance (if any) under (b), will have no further liability to the claimant, but the sum claimed in a recoupment notice is due from the respondent as a debt to the Department whatever may have been paid to the claimant and regardless of any dispute between the claimant and the Department.