Russell v Newcel Paper Converters Ltd [2002] NIIT 967_02 (1 October 2002)


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Industrial Tribunals Northern Ireland Decisions
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URL: http://www.bailii.org/nie/cases/NIIT/2002/967_02.html

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    THE INDUSTRIAL TRIBUNALS

    CASE REF: 967/02

    APPLICANT: Henry Russell

    RESPONDENT: Newcel Paper Converters Limited

    DECISION

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

    Appearances:

    The applicant appeared in person and was not represented.

    The respondent was represented by Mr Dunlop Barrister-at-Law, instructed by Reavey & Co, Solicitors

    SUMMARY REASONS:

  1. At the outset of the hearing, the respondent confirmed that the correct name of the respondent is Newcel Paper Converters Limited, and the title was amended accordingly.

  2. The applicant's claim is for a redundancy payment and notice pay. He alleges that on Friday 18 January 2002 he was informed that due to a change in the respondent's system of work, he was no longer required, and was given two weeks notice pay in lieu of notice. The applicant claims that the reason for dismissal was redundancy, and accordingly, he is entitled to a redundancy payment. Furthermore, he alleges that he was entitled to four weeks notice, rather than two weeks.

  3. The respondent denies that the applicant was dismissed, and alleges that the applicant resigned from his employment voluntarily.

  4. Having heard evidence from the applicant, and Mr Eunan McGurk on behalf of the respondent, the tribunal finds the following facts proved on a balance of probabilities:-

    5. (a) The applicant commenced employment with the respondent in or about July 1997 as a full-time lorry driver. He was the only full-time lorry driver, although part-time drivers were also employed.
    (b) The respondent had promised the applicant a pay rise in or about July 2001, however by October no such rise had been forthcoming.
    (c) In October 2001, the applicant told Mr McGurk that he was leaving his employment to get better terms and conditions elsewhere. The tribunal accepts that the applicant was hoping that Mr McGurk would offer him the promised pay rise although he did believe that he had the possibility of another job.
    (d) Mr McGurk asked the applicant to give him a week to discuss the situation with the respondent's Operations Manager, since the applicant was the only full-time driver available to the company.
    (e) The following week, Mr McGurk told the applicant that the company was exploring the possibility of either outsourcing the deliveries which the applicant carried out, or replacing him with another full-time driver. Mr McGurk asked the applicant if he would be flexible in remaining with the company, until suitable alternative arrangements could be made, and the applicant agreed.
    (f) On various occasions between October and January 2002 Mr McGurk spoke to the applicant to assure him that a method of replacement was being brought to a conclusion as quickly as possible. The tribunal is satisfied that at no stage did the applicant indicate that he no longer wished to resign.
    (g) In or about 18 January, the respondent indicated to the applicant that a system of outsourcing had now been put in place and Mr McGurk thanked the applicant for delaying the date of his leaving the company to facilitate the respondent.
    (h) The applicant and Mr McGurk amicably discussed and agreed the contents of a reference for the applicant and Mr McGurk typed the reference in the applicant's presence.
  5. The tribunal was faced with a complete conflict of evidence between the parties. Having heard evidence from both the applicant and Mr McGurk, the tribunal preferred the evidence of Mr McGurk. The applicant relied heavily on the letter of reference which stated that his "employment was terminated as a result of a change in company policy which involved outsourcing transport in order to achieve 24 hour delivery nation-wide". Mr McGurk gave evidence that this was inserted into the letter because they agreed it might not look good for the applicant if the reference stated that he had left in order to get a job with less hours and more money, which was the truthful reason. The applicant did agree that there had been discussion about the contents of the reference before it was typed up. However, the tribunal found him evasive, and unforthcoming when he was questioned about the detail of that conversation. On balance therefore, the tribunal accepted the evidence of Mr McGurk.

  6. The tribunal is therefore satisfied that the applicant was not dismissed by the respondent, but voluntarily resigned. He agreed to delay his leaving date in order to facilitate the respondent. Accordingly, the tribunal dismisses the application.

    7. Chairman:

    Date and place of hearing: 1 October 2002. Belfast

    Date decision recorded in register and issued to parties:

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URL: http://www.bailii.org/nie/cases/NIIT/2002/967_02.html