Carron Company v Robertson
| Jurisdiction | Scotland |
| Judgment Date | 23 June 1967 |
| Docket Number | No. 27. |
| Date | 23 June 1967 |
| Court | Court of Session (Inner House - First Division) |
1ST DIVISION.
Master and ServantRedundancy paymentEntitlement to paymentOffer of re-engagement refused by employeeWhether employment offered suitableWhether refusal reasonableRedundancy Payments Act, 1965 (cap. 62), sec. 2 (4).
Master and ServantEntitlement to redundancy paymentQuestion referred to Industrial TribunalOffer of re-engagement refused by employeeFailure of Tribunal to find whether employment offered suitableRedundancy Payments Act, 1965 (cap. 62), sec. 2 (4).
The Redundancy Payments Act, 1965, which by sec. 1 (1) confers a right to a redundancy payment on an employee who has been employed for a certain period and who is dismissed by reason of redundancy, enacts by sec. 2:"(4) An employee shall not be entitled to a redundancy payment by reason of dismissal if the employer has made to him an offer to re-engage him under a new contract, so that in accordance with the particulars specified in the offer the provisions of the new contract as to the capacity and place in which he would be employed, and as to the other terms and conditions of his employment, would differ (wholly or in part) from the corresponding provisions of the contract as in force immediately before his dismissal, but(a) the offer constitutes an offer of suitable employment in relation to the employee and the employee has unreasonably refused that offer."
The employers of a pattern-maker, who, having been employed
for the requisite period, had become redundant, offered to re-engage him under a new contract, whereby he would have lost his former status and certain benefits attaching to it, including entitlement during sickness to full pay for eight weeks and reduced pay for a further period. He refused the offer. Subsequently he was held entitled to a redundancy payment by an Industrial Tribunal, who, in stating their reasons, made no finding as to whether the employment offered to him was suitable but found that in view of the loss of status and benefits his refusal of the offer was not unreasonableIn an appeal by the employers the Court found that the Tribunal were not entitled to hold that the refusal was not unreasonable on the ground of loss of status and benefits, and remitted to them to consider whether or not the offer was an offer of suitable employment in relation to the employee, holding that they ought to have made a finding on this.
The Lord President was of opinion that the loss of status and benefits was relevant only to the question whether the employment offered was suitable, suitability being a quite separate matter from the reasonableness of the refusal, "which is intended, in my view, to relate to reasons personal to the employee which in fact induced him to refuse the change in his employment."
Lord Guthrie (who would have been prepared to refuse the appeal without the remit) was of opinion that the questions of suitability and unreasonableness were not mutually exclusive; that status and the benefits flowing from it were relevant to the question of the suitability of the employment offered; but that the loss of the right to sickness pay was one of the conditions of the employment offered relevant to a decision as to whether the refusal was reasonable.
Lord Migdale was of opinion that the Tribunal would be entitled to find that the offer was one of suitable employment and then to find on the same facts that the refusal was not unreasonable.
ProcessReviewCompetency of appeal against award of redundancy payment by Industrial TribunalRefusal of offer of re-employmentWhether reasonableness of refusal question of fact or lawTribunals and Inquiries Act, 1958 (6 and 7 Eliz. II, cap. 66), sec. 9 (1).
Sec. 9 (1) of the Tribunals and Inquiries Act, 1958, confers on any party to proceedings before certain tribunals, which include Industrial Tribunals, a right to appeal to the Court of Session if dissatisfied in point of law.
Held that the question whether an Industrial Tribunal was entitled to hold, under sec. 2 (4) of the Redundancy Payments Act, 1965, that the refusal by an employee of an offer of re-employment was reasonable was a question of law, and accordingly that the Tribunal's decision on it was open to appeal to the Court of Session.
Dictum of Lord Hanworth M. R. in Glassbrook Brothers, Ltd. v. LeysonELR, [1933] 2 K. B. 91, at p. 108,applied.
Carron Company appealed to the Court of Session under section 9 (1) of the Tribunals and Inquiries Act, 1958,1 against a decision of an Industrial Tribunal that Alexander Robertson, formerly
employed by them, was entitled to a redundancy payment of 397, 2s. 6dIn the appeal and answers the parties averred:(Art. 1) "For twenty years prior to 4th November 1966 the applicant was employed as a pattern-maker by the Bathgate Foundry Company Limited, a company wholly owned by the appellants, in the company's foundry at Bathgate. On 4th November 1966 the foundry was closed down and the applicant therefore became redundant." (Ans. 1) "Admitted. The applicant was employed as a staff foreman pattern-maker." (Art. 2) "Prior to 4th November 1966 the appellants made an offer to the applicant to re-engage him under a new contract of employment as a pattern-maker at their Mungal Foundry, Falkirk " (Ans. 2) "Admitted." (Art. 3) "The applicant refused this offer and applied to the Industrial Tribunal constituted under the Industrial Training Act, 1964, for a redundancy payment under the Redundancy Payments Act, 1965 " (Ans. 3) "Admitted." (Art. 4) "On 6th February 1967 the Industrial Tribunal sustained the application and held the applicant to be entitled to a redundancy payment of 397, 2s. 6d. The reasons of the Industrial Tribunal for its decision, as set out in the notice of decision communicated to the appellants on 25th February 1967, were as follows:The applicant was employed by the respondents for twenty years at Bathgate Foundry. When that foundry was closed down on 4th November 1966, the applicant was offered alternative employment at Mungal Foundry in Falkirk with Carron Company, an associated company within the meaning of the Act. The applicant refused that offer because he had staff status at Bathgate Foundry and the benefits deriving from it, namely, full pay during sickness for a period of eight weeks and reduced pay for a further period and twenty-three days' holiday per year. Under the offer made to him he would not have had staff status. He would have lost entitlement to pay during sickness and his holiday would have been reduced to eighteen days per year, although he would have received pay for twenty-one and three-fifths days. He would also have had to travel from Bathgate to Falkirk, but in view of the fact that the respondents provided free transport and paid for time spent in travelling we have not paid much attention to this. In view of the loss of staff status and benefits we find that the applicant's refusal of the offer was not unreasonable " (Ans. 4) "Admitted." (Art. 5) "The appellants submit that the decision of the Industrial Tribunal is...
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Gordon Laing V. Thistle Hotels Plc
...alternative employment were suitable and his rejection were unreasonable. In that respect counsel referred to Carron Company v Robertson 1967 S.C.273. [12]Counsel for the pursuer then proceeded to examine the approach adopted by counsel for the defenders. The criticisms advanced included th......
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Gordon Laing V. Thistle Hotels Plc
...of his submissions, Mr Napier, who appeared for the pursuer, referred me again to the report of the decision in Carron Co v Robertson 1967 S.C. 273 and the twofold nature of the test of suitability of the alternative proposed employment and the reasonableness of its refusal. [22]Mr Napier's......