EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
UNFAIR DISMISSALS ACTS, 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
ORGANISATION OF WORKING TIME ACT, 1997
I certify that the Tribunal
(Division of Tribunal)
Ms K. T. O’Mahony BL
Ms M. Sweeney
Mr J. Flavin
heard this case in Cork on 11 January 2013
and 23-24 May 2013
and 26 September 2013
Ms. Mairéad McKenna BL led by Mr. Michael Howard SC (11 Jan.) and Ms. Cathy Maguire BL(23-24 May &26 Sept) instructed by Ms. Fiona Manning, Holmes O'Malley Sexton, Solicitors, Bishopsgate, Henry Street, Limerick
Mr. Tom Mallon BL instructed by
G.J. Moloney, Solicitors, City Quarter, Lapps Quay, Cork
The determination of the Tribunal was as follows:-
Summary of Evidence
The respondent is based in Cork and is part of a major multi-national IT company, having its headquarters in California. The claimant commenced employment with the respondent in early June 2005 as a senior manager of materials with responsibility for ensuring availability of spare parts at locations throughout the EU, the Middle East and Africa. Managers were graded M1 to M3 and as an M3 manager the claimant was at the highest grade. Below the managers there are the individual contributors (ICs), who are graded IC1 to IC5. Throughout 2007 & 2008 and into 2009 the claimant and his entire team were based in Cork. When the Project Management Office (PMO), which was the claimant’s brainchild, was created in 2009 the claimant became its global manager overseeing the complex supply-chain projects with a team of four other project managers. The claimant was highly regarded by the respondent and he considered his position to be the best job of his life
In early 2010 the claimant was looking to recruit into the PMO as it was 40% under-resourced. Candidates were being considered. As far back as July 2009, XY, who had employment commitments to another employer until June 2010, was highly recommended to the company in the US as ‘one of the greats’, having international experience as a global director in supply chain and project management. Both the claimant and MV (to whom the claimant reported) considered him to be an outstanding candidate.The claimant felt aggrieved when MV raised the possibility of hiring him as a co-lead reporting to himself, it did not make any sense to have two managers for such a small team of specialists, which was achieving and exceeding its goals despite being down 40% in resources. He was extremely disappointed that the subject was even being discussed and felt that MV’s suggestion smacked of constructive dismissal. MV was not intending to replace the claimant but as XY’s salary at the time was over €180.000 (which was higher than the claimant’s salary) and the maximum salary for an IC5 position was €141,000, he felt it would be the only way to hire XY. When the claimant left XY was interviewed but not hired by the respondent in the US.
The respondent, like other major companies, has a system of succession planning and development planning which requires a manager to identify and groom his potential successor. The claimant’s position was that MV was pressuring him to identify his successor yet doing nothing to develop his career and had failed to reply to his numerous enquiries about advancement within the respondent. According to both MV and HRD (the HR director in Cork) the claimant was openly ambitious about moving ahead within the company.
Much of the PMO work was US based and the claimant spent eight to twelve weeks per year working there. Three of the project managers reporting to the claimant were based in the US and the fourth was based in Cork, and MV was also based in California. MV felt that the claimant would be more effective in California and this was confirmed by feedback from the claimant’s team. MV spoke about this with the claimant in early 2010 and there was some engagement with the Global Mobility Department on the matter. The claimant was very happy in his role and felt that his team had been had been very successful and felt somewhat slighted by the suggestion that he transfer.
On around 16 June 2010, having obtained the approval of the division’s Vice-President, MV informed the claimant that his role was being transferred to the respondent’s headquarters (HQ) in California and as there was no mobility clause in the claimant’s contract of employment he was given the option of transferring there with his job or taking a severance package. MV was aiming for the transfer to take place by September, the beginning of the school year. It was common case that there were discussions as to whether the claimant might transfer there on his own. MV believed the claimant was more likely to remain in California if his wife and family were there with him. The only concerns the claimant had about the proposal at this stage centred on his family (his wife had health issues and of his five children one had been seriously ill and another had learning difficulties), the terms and conditions of employment he would have there and insurances. MV understood that the claimant agreed that his transfer to California would be best for the business. The claimant never said that he would not accept the offer.
The claimant and his wife went on a scouting trip to California in August 2010 to look at schools, houses and neighbourhoods. The trip was designed to give the claimant the entire information to help him decide whether to move there. The claimant worked during the first week of the trip. Before his return to Ireland, the claimant was informed that one of his team (TA) had made a complaint about his conduct while there: TA had alleged that he waggled his butt in front of the team; and ‘said certain things’ to her. HR in California (HRC) told him the incident was being investigated. He wanted Employee Relations to become involved. Having interviewed those present at the meeting where the alleged incidents occurred the respondent concluded that the complaint was ‘without foundation’ and this was communicated to the claimant, who was also informed by email that there was ‘nothing to worry about’ and that there would be no long term ramifications for him but he had been advised to modify his behaviour. The claimant explained to the Tribunal that he had been monitoring TA’s performance and had told her that her performance was unacceptable. The claimant had not been interviewed and was not given the complaint in writing. It was only when he received documents obtained under FOI that he saw the full complaint for the first time. The statements allegedly made by him were that he told TA ‘to smile’ and that even when she was tired she was ‘easy on the eye’.
In late August 2010 the claimant advised the respondent that he would not be transferring to California. His evidence was that the manner in which the respondent had handled the complaint against him had a significantly influenced his decision and that he had so informed MV. This was denied by MV. Another major factor for the claimant was that his employment in California would be governed by US law and lack the protection of Irish employment law, in particular, there would be an ‘at will’ clause in his contract, which meant that he could be dismissed ‘at will’.
By letter dated 2 September 2010 the claimant was informed that his employment was to terminate by reason of redundancy on 10 December 2010. The claimant was given longer notice than required by his contract so that some of his share options would vest before he left and to afford him an opportunity to find alternative employment either within or outside the respondent. In the letter of 2 September HRD was directed to where live vacancies in the respondent would be advertised. The claimant accepted that his position in Cork was redundant and did not challenge it because he felt that there would be lots of opportunities in Cork as the business there was growing rapidly. He applied for two positions but nothing came of those. There are not many positions at level M3 in Cork and few opportunities there for someone with the claimant’s skill set.
The claimant’s position was that he had been offered and had started in a six-month position in or around mid-December 2010 and was completely shocked when MR (see below) phoned him on 16 December, informing him that he was not approved for the role. The respondent’s position was that a manager (MR) of a team in another division had obtained approval for a rotational position for someone at a very junior level, (around IC2). MR had identified a need for a manager for a six-month project (at level IC5) and felt that the claimant, having the skills to manage the project and lessen the workload, would be ideal for the job even though it would involve a reduction in his grade and remuneration. MR’s boss supported his proposition and when the claimant indicated that he was interested MR put in a requisition, hoping to force fit the existing approval to the higher level position with the claimant in the role. MR expected the approval to come through. HRD discussed the position with the claimant in mid-December and informed him that he was extending his notice period beyond 10 December to allow time for the approval to come through. (Appointments to positions are subject to a layer of approval at higher levels). On or around 16 December HRD became aware that the claimant was not approved for the role and MR communicated the decision to the claimant. HRD met with the claimant on 20 December but was unable to explain to him why he did not get the role. HRD’s evidence was that it is quite unique to bring someone from a senior to a more junior level. Both MR and HRD were disappointed at the outcome. Some of those involved in the process were confused that the claimant was not approved for the position and were asking what had gone wrong. One communication suggests that it could be due to a communications failure between different levels of management. From e-mail communications it emerged that VPF, who made the ultimate decision on approval, wanted someone with a different skill-set who could be developed for the company; he wanted every hire to be an investment into the future. The rotation position was filled by a junior person who is still working with the respondent. It is quite unique to bring someone from a senior level to a more junior level MR is a friend of the claimant and like him was an M3 manager.
The claimant accepted that his position was transferred to California and was redundant in Cork.
The claimant maintained that the manner in which the respondent had dealt with the complaint made against him in California had influenced his decision not to transfer with his job. The respondent had investigated the matter there and found that the complaint was without foundation. However, the respondent’s procedures fell short of best practice. Although the respondent concluded at the initial stages of the investigation that the complaint was without foundation best practice would dictate that the respondent ought to have given the claimant written details of the complaint made against, in particular in a situation where he was back in Ireland when the matter was being investigated. Contrary to the claimant’s evidence, it is clear from his T1A application form instituting the claim herein that he had been informed that the complaint was without foundation and HR in California had sent him an e-mail advising him that there was nothing to worry about and there would be no long term ramifications for him. Critically, the claimant had not raised any grievance about this and had only mentioned it to HRD in Cork in the final December meeting.
The Tribunal is satisfied that the claimant had not started on a temporary six-month position in Cork in December 2010 and that he was at all times aware that approval from a senior level was an essential requirement for his appointment to that role. Both MR and HRD had explained this to him and the claimant’s own email of 13 December to MV confirms that HRD is awaiting confirmation from VPF to have him appointed to the role. CM was expecting that the approval would be forthcoming and the fact that he agreed that the claimant would attend a meeting and identified a project that he should focus on were mere introductory steps towards to a situation that he expecting to transpire.
The claimant’s contention that MVwas ‘working him out’ of the respondent is not borne out by the evidence. The claimant had never raised this as a concern with either CM or HRD other than mentioning it to HRD at their final meeting in December. Asking a manager to identify his successor is a practice in many major companies and the claimant accepted this. MV did not intend replacing the claimant with XY. His suggestion to hire XY as a co-lead was tentative and geared towards attracting ‘one of the greats’ to the company at an appropriate salary level. The claimant over-reacted to the suggestion. In any event, XY was not employed by the respondent then or at a later stage, after the claimant had been made redundant. Finally, on this point while MV had rated the claimant’s overall performance in his annual review as ‘exceptional’ in 2007 & 2008, as ‘significant contributor’ in 2009 and as ‘solid’ in 2010, the latter is still above the level where improvement is required. In this respect the Tribunal notes the claimant’s position that little was being done by MV to advance his career. The claimant’s contention that MV was central to his parting from the respondent is at variance with his email of 10 December, expressing his gratitude to MV.
For the above reasons and having considered the totality of the evidence the Tribunal finds that the claimant was not unfairly dismissed. Accordingly, the claim under the Unfair Dismissals Acts 1977 to 2007 fails.
By letter dated 2 September 2010 the claimant was informed that his employment was to terminate on 10 December 2010, which was longer than both his statutory and contractual entitlements. The fact that the claimant’s employment was extended beyond that date to 22 December, while awaiting notification of approval, does not change his notice entitlement in any way (Bolands Limited (In Receivership) v Josephine Ward and Others)  ILRM 382 applied). Accordingly, the claim under the Minimum Notice and Terms of Employment Acts, 1973 to 2005, fails.
The claim under the Organisation of Working Time Act, 1997 was withdrawn.
Sealed with the Seal of the
Employment Appeals Tribunal