THE INDUSTRIAL TRIBUNALS

CASE REF:	475/08 IT

CLAIMANT:		Carlos Greene	

RESPONDENT:	Riverside Construction (Down) Ltd	

DECISION
The unanimous decision of the tribunal is that application be dismissed.

Constitution of Tribunal:
Chairman:	Mr M Davey	
Members:	Mr McConnell
                      Ms McNulty	

Appearances:
The claimant appeared in person.
The respondent was represented by Mr T Sheridan of Peninsula Business Services.

Reasons
1.	The claimant’s case was that he had been unfairly selected for redundancy and that, accordingly, he had been unfairly dismissed.  The issues for the tribunal were whether there had been a redundancy situation, whether the selection process, had been satisfactory, and, if not, whether any deficiencies in the process made any difference.

2.	The claimant was originally employed by the respondent in May 2006.  While at first his employers indicated to him that they did not consider him ready to be a foreman they indicated in January 2007 that there would be a change of status.  Over the course of the next few months he underwent various training courses and by June 2007 he had obtained a gold card level certificate which was a necessary pre-condition for supervising construction sites.  He neither received nor sought any increase in pay at this time but continued in his duties as before.  It is common case that in the latter parts of 2007 the construction industry in general and the respondent company in particular were in considerable difficulty due to a general down turn in sales.  Costs were up and receipts were going down and redundancies had to be considered, both at ordinary employee and at supervisory levels.  On 15 November 2007 an accident occurred at one of the respondent’s sites.  The claimant was in the vicinity and was involved in the aftermath of the accident.  An investigation took place and the claimant received a letter dated 19 November 2007 asking him to attend a disciplinary hearing on 20 November to provide an explanation for the accident.  The letter included a statement that the company viewed the matter as potentially serious misconduct.  At the hearing, however, the introduction indicated that the purpose for the hearing was to establish the facts and to determine whether the company had proper grounds to take disciplinary action against the claimant.  Subsequent to this hearing outside contractors who had been responsible for the scaffolding on the site, which had fallen down, confirmed that they were responsible for the accident.  However, neither this information nor any formal decision in respect of the disciplinary/investigatory hearing was ever communicated to the claimant.

3.	On 7 December 2007 the claimant was at a meeting with other supervisors who were told by the contractors’ manager that their jobs were safe.  The following Monday the claimant was seen by one of the Director’s of the company who informed him that they were obliged to make redundancies and that his contract of employment would be terminated.  He did not qualify for a redundancy payment but was paid appropriate notice pay and holiday pay.  The respondent’s evidence was that the selection of the claimant as the only redundancy among the supervisory staff was based on a distinction between full foremen and trainee foremen/supervisors.  There were four full foremen and two trainee/supervisors.  It had been decided that the respondent did not wish to lose the full foremen and the selection therefore was made between the two trainees.  Having established a matrix involving competence, health and safety ability, performance, attitude, attendance and disciplinary record the claimant had been selected as having performed less well than the other trainee.

4.	The claimant’s case was that he believed he had been selected for redundancy by reason of his involvement in the November accident.  His evidence was that in the immediate aftermath of the accident he had been told by one of the directors that somebody would have to be held responsible and it was likely to be him.  According to his evidence he was subsequently told that nothing would come of the disciplinary/investigatory hearing but no formal communication of any decision or even the minutes of the hearing were ever sent to him.

5.	The tribunal can well understand why the claimant might have reached the conclusion which he did, namely that this dismissal was related to the accident.  The letter asking him to attend the disciplinary/investigatory meeting described it as a disciplinary hearing and also included a statement that the company considered it to be potentially serious misconduct.  It maybe that this latter statement should have been deleted from the pro-forma letter which was sent to the respondent but it was not so deleted even if it was supposed to be.  It does appear from the minutes of the hearing that it was more in the nature of an investigatory hearing than a disciplinary hearing and in the end the responsibility was accepted by someone else.  However, the respondent failed to inform the claimant of this.  The company also failed to provide any record or decision of the hearing, despite having been asked to do so by the claimant of this.  In these circumstances it is easy to see how the claimant could reach the conclusion he did.  In the event the tribunal is satisfied, in the light of the evidence about the selection process, that the disciplinary hearing and the accident were not the reason for the claimant’s dismissal, but there is no doubt that that aspect of matters was not well handled by the respondent.

6.	The claimant’s case in the alternative was that it was inappropriate to differentiate between full and trainee foremen and that the pool for selection for redundancy should have been all six supervisory staff.  The respondent’s case was that there was a distinction between the two.  The tribunal’s task in addressing this issue was not made any easier by the paucity of evidence made available to it.  The respondent’s contention is supported first of all by the pay differential between the two classes which was illustrated by a bar chart showing the average wage of the trainee foreman/supervisors as being something of the order of between £24,500 and £25,000 per annum and that of the full foremen at something of the order of £32,000.  The tribunal also noted the claimant’s own evidence that at the time he was told of the potential change of status he was given a pay rise but neither sought nor received any increase after he had received his gold card.  The claimant sought to suggest that he became a foreman in January 2007.  The tribunal does not accept this.  The tribunal accepts the respondent’s evidence that a gold card was necessary before full supervisory rights were acquired.  On this basis it is reasonable to conclude that there would be an intermediate period of trainee/supervisory status before reaching the grade of full foreman and, indeed, the claimant did attend training sessions.  The claimant suggested that the various foremen negotiated their own rates of pay.  This seems unlikely, but, in any event, as has already been stated, the claimant did not seek any rise in pay following the gold card award.

7.	The distinction in grades having been accepted it was not unreasonable for the respondents to conclude, as they did, that they did not wish to lose the full foremen and to look for redundancies among the trainee foremen/supervisors.  The method of selection was not unreasonable and it duly produced the claimant as the candidate for redundancy.  Consideration was given to whether it was possible to deploy him elsewhere in the work force but it was felt that this would not be possible or appropriate.  There was no consultation but, given the size of the force involved and the circumstances of the case there was little or nothing to consult about.  The tribunal concluded that in all the circumstances, the dismissal was not unfair.  

Chairman:

Date and place of hearing: 7 August 2008; 8 September 2008,	Belfast	

Date decision recorded in register and issued to parties: