EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Pat McTiernan – claimant UD1275/2012
Prometric Ireland Limited T/A Prometric – respondent
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr D. Hayes BL
Members: Mr F. Cunneen
Mr C. Ryan
heard this claim at Dublin on 22nd November 2013
and 6th June 2014
Mr Dave Curran, Misc, Siptu, Liberty Hall, Dublin 1
A & L Goodbody, Solicitors, I.F.S.C., North Wall Quay, Dublin 1
The determination of the Tribunal was as follows:-
The VP of the respondent company told the Tribunal that he is responsible for mid-east Europe and Africa. In the first quarter of 2012 he was involved in the redundancy selection issue. The respondent had the contract to provide the driver test theory in Ireland. Due to the recession the volumes were reduced by 16% in 2010-2011 and by 27% in 2012. The respondent had to take action to remain effective and efficient. The respondent delivered the test over a number of years. The respondent wanted to establish where the biggest issues were and it looked at contract labour hours. Some employees had 102 hours per week and other employees had fewer hours. Four locations had more contract hours than tester hours. It was difficult for employees to achieve hours. Some employees could not work in Sligo/Letterkenny and it staggered operations in some locations. If it did not take action it would have had to have had a higher reduction of employees. It minimised a number of locations. It had to take action in two locations and Sligo was overstaffed. The claimant was employed in Sligo. There was a business aspect as well as service delivery.
He met the claimant for the first time at the hearing. He spoke to his colleagues in HR and he ensured that the redundancy was done in the appropriate way. There was no alternative for the claimant at this time.
In cross examination he stated that HR contacted employees. He did not know what HR told employees. Employees were consulted in advance of the redundancy. He was satisfied with the process. The examination was changing. The decision to make employees redundant was taken when it exhausted all other possibilities and it wanted to limit the number of employees impacted.
In 2010 it undertook 163,000 tests and in 2012 - 100,000. Some positions were vacant in the respondent.
MT told the Tribunal that the respondent analysed the testing hours it operated and how many employees it needed and it compared that with contracted hours and highlighted four areas. He was invited to a meeting with the VP and HR. He was asked to head up the redundancy process in Sligo. On the 14 May 2012 he was asked to contact the employees of the hubs in Sligo. He met employees on the 17 May 2012 and an announcement was made in relation to redundancies. He had not made a decision on who was to be made redundant at this point.
He met employees and the claimant was asked to come in to complete the scoring matrix. He was familiar with the criteria selection form. The claimant scored the lowest of the four employees and Mr G who was in the room was asked to go and get employees and they were asked to come in to the room. The claimant was informed that his position was at risk of redundancy. There was a disagreement about a second consultancy meeting and he could not remember how long it took. No decision was made at that point.
At a second meeting on 25 May 2012 alternative vacancies were discussed. There was one vacancy in Dublin/Naas and the claimant was asked to consider that. The claimant and DC, his trade union representative left the room. The meeting reconvened and the claimant wanted more time to consider the role. More time was given and after the meeting reconvened, when the claimant did not make any suggestion as to how to avoid redundancy, the claimant was told that his job was being redundant. MD, from the respondent’s HR department, told the claimant that he could still apply for the Naas vacancy but that if he did so and was successful that he would be employed under a new set of terms and conditions. During the meeting the claimant raised two questions in relation to the selection criteria. He asked whether the reasons for absence had been considered and was told that just the number of absences and not the reasons therefor was considered. Secondly he asked what “not pro-active” in the assessment meant. He was told that this score had come from his line manager and would be reviewed. MT was not in a position to answer questions. MD answered both questions.
While there were jobs available in the area of test development, in MT’s opinion the claimant would not have been in a position to undertake the role in test development. On the 30 May 2012 a third and final consultation meeting took place. This was a short meeting and the claimant was asked if he had come up with any alternative.
The claimant had not applied for a vacancy and the claimant was dismissed for redundancy on the 30 May 2012. The claimant was offered the option to appeal the decision.
In cross-examination he stated that the meeting had commenced on the morning of 17 May 2012. The claimant was not made redundant on that day and the claimant was in the pool of people who were being made redundant. He could not remember the exact timing of the meeting that took place after that. Later in the day the claimant was identified as the employee at risk for redundancy. He could not recall the final conversation with the claimant. He could not comment on the fact if the claimant was advised of his right to representation. He could not remember if a job description was put to the claimant at the start of the meeting. The claimant was informed about it and he asked for some time to consider it. He could not recall if the claimant was asked to deal with the matter there and then. The claimant was given a list of current vacancies on the day. They agreed not to expect the decision from the claimant straight away.
He was sure that the selection criteria was available for the meeting on the 25 May 2012. He believed that MD reviewed the selection criteria. He was not involved in the process. He was not in a position to say if the respondent raised issues with the claimant regarding his absences. The respondent wanted to establish if it could avoid redundancy and it could not do any more than it did. He along with HR looked at place of work as well as any vacancies in business at the time.
The VP and General Manager EMEA told the Tribunal that at the time the claimant was made redundant he was manager in UK and Ireland.
Since 2009 there was a drop off in the volume of people taking tests. It was reduced 25% year on year. A decision was taken to review the operation in test centres. The respondent had to establish what changes could be made to run the business more efficiently. A number of employees were on fixed contract hours.
It was apparent that the respondent paid for more hours than testing hours. It had to reduce the hours and the number of employees to operate the business more efficiently. It looked at the possibility of reducing hours and moving employees to where there was more work hours available. In March 2012 he met with the employee forum.
In early May 2012 a meeting of the forum was called. Staff would be informed of meetings in a number of locations. He was not involved in the process of redundancy.
The claimant was informed on the 30 May 2012 that his role was redundant and he had the right of appeal. He met with the claimant and his representative. The claimant asserted that there was no proper consideration to alternative employment. The respondent now had three locations instead of four. A test and administrative position was available in the East coast. This was the only vacancy and it may not have been a viable option. This model is still in operation today. The claimant came up with two suggestions.
The same criteria was used for employees being made redundant. He could find no reason that the claimant was unfairly treated. There were 49 employees in the driver test operations, and three redundancies were implemented. There are now forty employees in this area.
In cross examination he stated that redundancies were first decided in March or early May. The decision may have taken place in Ireland and the UK. A decision was made by the team at the end of April 2012 regarding how they would organise the business going forward. Hub managers were not involved in the process. The forum was not consulted. He spoke to the Employee Forum which is an information exchange group and outlined the process that was about to unfold.
The claimant told the Tribunal that he was employed by the respondent in January 2003 until May 2012. In 2012 he had some issues with health and safety and he notified his hub manager. He brought it to the attention of HR. Before Mr. M left he raised these issues and he believed that this impacted on the decision to make him redundant.
On the 17 May 2012 all employees in the Sligo office attended a meeting regarding reorganisation and restructuring in the respondent. One of his colleagues asked him prior to the meeting if he knew what the meeting was about and he had no idea. He then telephoned TMcG, his supervisor, who told him that he did not need a union representative as it was a general meeting. He met with his colleagues to discuss the content of the meeting. Prior to this he had never met MT who read out a briefing document.
After the announcement MT stated that the Hub manager with input from HR would complete the selection criteria assessment form the purpose of which was to identify who was at risk for redundancy. The claimant objected to this and MT stated that he did not need a union representative as it was a general meeting.
Four employees attended and he was the last one called in. MT told him that his job was at risk of redundancy. He contacted his union representative.
He sat down with MT and discussed the scoring criteria. MT told him that he was not proactive in suggesting change. He was asked to attend a final consultation meeting on the 25th May 2012. He was given an amended assessment at the meeting on the 25 May 2012. He was rated at minus -20 for attendance and this was not explained to him. He was in shock and all he heard was that he was being made redundant. From the 14 October 2011 to the 9 January 2012 he was absent due to sick leave. He objected to the scoring that he received.
At the subsequent consultation meeting on Friday 30 May 2012 he was given a job description by MT a few minutes into the meeting This was for the position of Test Centre Administrator to cover parts of Dublin and Naas. He had no prior knowledge of the vacancy and he was asked to give a decision on this at the meeting. Had he taken this job there was no guarantee that he would get work as it could go from 110 hours to 0 hours. He was not guaranteed 8 ½ hours. He was not sure how he was expected to come up with a solution.
An announcement was made on Monday 14 November 2011 that there were going to be 150 new jobs created over three years in Dundalk but he was told that he did not have the qualifications for any of these positions.
He was absolutely not given enough time to make a decision. Firstly he was told that he did not need a union representative at a general meeting. The four employees were summoned to a one to one meeting.
In cross examination he stated that no one informed him how the figures were arrived at. He felt that he was made redundant due to the issues that he has raised. The bullying and issues were quite extensive and he collapsed due to stress levels. When put to him why the matters of bullying were not raised during the process he replied he was not aware he could and he discussed it with his union representative.
On the 17 May 2012 he was handed a matrix and shown the amount of redundancy. MT told him that he received a minus-20 grade due to his sick leave and he was shocked. Minus -20 was the lowest score an employee could get. All four employees were at the second meeting and three were not told their jobs were not redundant. He was the last person in and he was told his job was at risk of redundancy. He had one absence and he still does not know how it was calculated from October to January. He loved his job and he possibly gave too much and he was never disciplined.
He agreed that he was offered an alternative position. In 2012 he joined a job Club and this Club helped him to send out CV’s. He undertook an ECDL course. Currently he is working on a personal venture in music.
In answer to questions from the Tribunal he stated that the alternative job that he was offered in Naas was for a three month contract. If he took that position any redundancy would be based on this new contract. He made his union representative aware that there were a lot of issues with his job but he was not aware it should be highlighted.
On the 17 May 2012 four employees were invited to a one to one meeting. He was not informed about a severance package if he took up a new position.
TMCG told the Tribunal that he was first made aware of the possibility of redundancy in March 2012. A general overview of the respondent took place and the respondent had to undertake restructuring. He could not recollect if the announcement regarding redundancy was made at a general meeting on the 17 May 2012. He was not at a meeting the previous week. The general meeting took place at 12 noon and a briefing document was read out.
He along with another employee evaluated four employees. Two categories were predetermined and two had to be scored. As a line manager all employers were given appraisal.
Four employees were sent to reception and called back at 2p.m. He was told to score four employees based on the criteria in front of him. The issue of attendance was predetermined prior to him commencing the scoring. He was not aware of one to one meetings after this. It was a small conversation for all four, they were given the result of the evaluation. At the conclusion of this the claimant was told his job was at risk. The evaluation took place at 12.30 p.m. The selection criteria assessment form was completed by the witness and MD. He did not attend any further meetings. He was not 100% sure of the result of the scorings but the attendance/disciplinary for the other three was zero. After changes were made he did not know if the other employees were recalculated.
It was accepted on the claimant’s behalf that a genuine redundancy situation existed. The claimant’s case is that he was unfairly selected and that, further, the process that led to that selection was unfair.
When the employees in the respondent’s Sligo base were called to a meeting, the claimant queried whether he should arrange for his trade union representative to be present. He was told that this was not necessary as it was merely a general meeting. However, after the meeting the four relevant employees were to be called into individual meetings at which their work performance was being assessed and the question of whether they were at risk of redundancy was very much at issue. When the claimant became aware of the purpose of these meetings he was no longer able to secure the attendance of a representative from his trade union. He should not have been told that he did not require the assistance of his trade union when the very existence of his job was at issue. Nonetheless, thereafter there was a full involvement of his trade union representative. At that first meeting, the claimant was given his scores in five categories of assessment. In three categories he had received the highest score possible. In one category (adaptability and flexibility) he received a score of 10 out of 15 with the comment that he “is flexible, generally accepts change however not pro-active at suggesting these”. In respect of his attendance he received a score of minus-20, where the highest available score was zero. A score of minus-20 was the lowest possible score. After representation from his trade union representative, his adaptability and flexibility score was increased to 15. Effectively this meant that it was his score of minus-20 for attendance that differentiated him from the rest of the potential pool. This was in a circumstance where the claimant had had one substantial period of absence for apparently genuine reasons. Certainly no suggestion was made to the contrary.
A number of other matters were raised during the Tribunal hearing relating to bullying and health and safety issues. He expressed concern that these were at the root of his selection. The Tribunal is satisfied that these extraneous matters were not a factor in his selection.
In respect of the claimant being offered alternative employment, the job in Naas was not in reality an offer of alternative employment as it appears to have been an offer to cover maternity leave on a three-month contract. While the respondent was looking to recruit new employees in the area of test development, the Tribunal was told that the minimum requirement for these jobs was a degree in psychology and that the claimant was not, therefore, qualified for them. This evidence was not contradicted and the Tribunal must therefore accept it. While an employer ought examine all possibilities before settling on redundancies and while one such possibility that should be examined is that of alternative employment within the employer’s organisation, if no alternative employment is actually available it follows that it cannot be offered. While the offer of a three-month contract in Naas was not, in the Tribunal’s opinion, a suitable offer of alternative employment, the Tribunal is satisfied that it was the only available alternative.
The Tribunal is satisfied that, other than as commented upon above in relation to the lack of initial representation, the procedure adopted by the respondent was substantially fair. However, the Tribunal is satisfied that, while the selection procedure was fair, the selection tool used in that procedure was unfair insofar as it unduly penalised the claimant vis-à-vis his colleagues for one period, albeit extended, of genuine sick leave. This was not a case where there were frequent or unsubstantiated absences as might have reasonably justified such a score. It is of note that the claimant’s period of sick leave had, by the time of assessment, come to an end and that he was back at work on a full-time basis.
The Tribunal is satisfied that, for the reasons set out above, the claimant’s dismissal was unfair. The Tribunal is satisfied that in the circumstances compensation is the appropriate remedy. In respect of his claim under the Unfair Dismissals Acts, 1977 to 2007 and taking account of the redundancy payment already received by the claimant, the Tribunal is satisfied that an award of compensation in the amount of €5,000 is appropriate as being just and equitable in the circumstances.
Sealed with the Seal of the
Employment Appeals Tribunal