EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Michael Gowie UD1128/2013
Citibank Europe Public Limited Company
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr P. O'Leary B L
Members: Mr M. Noone
Mr F. Barry
heard this claim at Dublin on 7th October, 17th and 18th December 2014
Claimant : Mr Adrian Twomey, Gallenalliance Solicitors,
South-East Administration Office, Templeshannon, Enniscorthy, Co.Wexford
Respondent : Ms Lorna Lynch B L instructed by
Gillian Verrecchia, IBEC Ltd., 84/86 Lower Bagott Street, Dublin 2
The determination of the Tribunal was as follows:
The respondent is a sizeable financial institution employing hundreds of staff and providing a wide range of commercial services to its many customers. While it is a stand-alone entity in Ireland the respondent is connected to and linked with a larger global group. The respondent forms part of the group’s Europe, Middle East and Africa (EMA) regional area and has its headquarters in London, England. Its global operations are centred in New York City, USA. Its operations in Dublin are divided into several departments and the focus in this case centred on its Security and Fund Services (SFS). In 2013 this department had five sections each with its own manager. Those overseers were under the supervision of a department manager (AB). This manager was the respondent’s first witness.
By 2012 one of the respondent’s many products called a Long-Fund was suffering considerable financial losses. This fund was at least part administered by the staff in the SFS sector in Dublin. The head of service was based in London. In a telephone conversation with the witness in December 2012 this head instructed him to reduce “headcount” by the end of 2013. In acting on that instruction the witness quickly earmarked two sections where redundancies could occur. At that time the claimant worked for one of those sections as an applications’ development manager.
The signed contract of employment between the claimant and the respondent dated 24 September 2010 contained inter alia details on probation, lay-off and short time. In the case of the latter the company reserved its right to lay an employee off or place him/her on short time should it be unable to maintain an employee in fulltime employment. The probation period for new employees was six months but could be unilaterallyextended. During the initial probationary period the company could dismiss an employee holding that status. In October 2010 the respondent engaged the claimant as an IT project Manager.
In January 2011 the witness together with a colleague met the claimant and expressed dissatisfaction at his work performance. Following a discussion with him in April that year the claimant’s probationary period was extended by three months. He was not subjected to any other sanction. Three months later the respondent transferred him to a role as an Applications’ Developer. The claimant’s manager for his end of year assessment rated him as partially effective. His end of year assessment for 2012 contained the same rating. However, that manager had rated the claimant higher than that under several headings. The assessor for that year had only managed the claimant for two months and his rating was in contrast to the claimant’s own higher rating. The claimant’s appeal against that rating conducted by a senior human resource person upheld the respondent’s rating. This was conveyed to the claimant in writing on 2 April 2013. The witness was aware of that outcome.
Subsequent to his remit to reduce staff in 2013 the witness contacted a senior human resource person regarding the process and procedures to be adopted in selecting employees for redundancy. This resulted in a document labelled Desktop Process 2013-Technology. The criteria used were chosen by this human resource manager and the scoring provided by the witness and that resource manager. In the claimant’s case that other manager was his section head. According to the document presented to the Tribunal for this process all listed candidates performed way below average when their performances were scored. The claimant was rated the lowest in this underachieving group and this contributed to him receiving the lowest score. The witness confirmed that this relative low score on performance ultimately sealed the claimant’s fate and his role within the respondent.
The day after the result of the claimant’s appeal was issued the claimant was called without notice to a meeting which was also attended by the witness. The witness accepted that he probably notified the claimant as distinct from informing him of a risk that his role was no longer available and he was therefore facing a redundancy situation. This witness denied that in January 2013 he told the claimant that he had no future with the respondent. No alternatives including a lay-off or short time were offered to the claimant. On 3 April 2013 the respondent in the person of the human resource senior person, confirmed in writing the intended termination of the claimant’s employment.
The next witness (SR) became the claimant’s direct manager in late 2012. From July the previous year up to that time this witness was the supervisor of two teams one of which was managed by another person where the claimant worked. During that time he asked colleagues to “buddy up” with the claimant as he felt that the claimant needed assistance for some of his tasks.
A combined assessment year end form for 2012 was jointly completed by the claimant and this witness. Since this witness had little first-hand knowledge and experience of the claimant’s detailed work he relied heavily on his mid-year appraisal which was completed by the claimant’s former manager. He fully accepted the contents of that appraisal despite his lack of communication with that former manager over that issue. While he agreed with the claimant’s own rating on several of the sections in that end of year form this manager gave him an overall assessment of partially effective.
When the claimant appealed that assessment this witness discussed its contents with the human resource manager. He also spoke to the departmental manger about the Desktop Process 2013-Technology details giving input and suggestions on it. However, he did not actually mark the claimant for that process but his assessment and feedback contributed to its scoring. While he was aware of an impending redundancy situation within the SFS department this witness had no direct involvement into its application.
A human resource business partner(SK) in SFS acknowledged to the Tribunal that he spoke to a senior manager in London about the claimant’s case. By March 2012 that office was tracking the claimant’s situation as redundancy approached. By that time the departmental manager had contacted this witness with the news that the positions and roles of three employees had to be made redundant. One member of SR’s team of three was to go. This business partner who had an input into the Desktop Process 2013 sheet stated that the criteria in it had a certain rating and weighting scale.
Concurrent with this impending redundancy scenario was the witness’s treatment of the claimant’s appeal against his manager’s overall 2012 appraisal rating. As part of that informal grievance process this witness spoke to several managers and the claimant himself. At the conclusion of that process this witness upheld the rating of the original appraisal. At the same time a decision was made that the claimant’s position with the respondent was to be made redundant. That decision was based on the scoring attained by all concerned on the Desktop Process 2013. This witness was the person who scored the claimant and others on three of the five criteria. Of the three employees the claimant scored the least. While he matched the others in most criteria the witness’s gave him a lower score compared to the others on his performance rating. The Tribunal was earlier told that technical competency and performance rating was linked.
A letter dated 3 April 2012 signed by this witness was handed to the claimant that day. That letter notified him that this employment with the respondent was to cease by way of redundancy on 30 May 2012. Subsequent to that announcement this witness and the claimant had further communication in which he sent the claimant a list of contemporary vacancies within the company. The respondent did not consider offering the claimant options for lay-off or short time. This witness stated that he was not told “to get rid” of the claimant. He added that the respondent in Ireland had experienced jobs growth in recent years and its overall performance was not loss making.
Another human resource business partner (CK) confirmed to the Tribunal that by the middle of March 2013 restructuring was underway in “the tech field”. Prior to early April she met the other human resource partner who gave her a letter to present to the claimant. Together with the departmental manager this witness met the claimant on 3 April of that year and handed him a letter. During the course of a brief discussion with him she indicated that he could apply for current vacancies. However, she also commented that it was unlikely he would easily secure one of those posts due to his recent appraisal rating for 2012. In common with other encounters concerning the claimant no notes were either taken or produced of that meeting.
In contrast her email to the claimant on 10 May was in effect notes of her meeting with the claimant that took place on 22 April. That email informed the claimant that he was now at riskof redundancy. According to the witness that was company speak for you are losing your job. This witness believed that a genuine redundancy situation existed at the time. During her exchanges with the claimant as part of this redundancy process no references were made to his appeal regarding the appraisal rating.
Prior to commencing employment as a project manager with the respondent in October 2010 the claimant had previous work experience with this group elsewhere. While there his work appraisals were favourable. Those ratings, however, were to adversely change in the following two years. He described his working relationship with his initial supervisor, the department manager (AB) as fractious. Several differences emerged between them and that supervisor extended the claimant’s probation period. In 2011 he transferred to another section and came under a different supervisor (RM)
That supervisor gave the claimant an overall rating of partially effective for his end of year appraisal in 2011. The claimant did not appeal this unlike his reaction to a similar rating for 2012. That year he worked on three main projects two of which were without hitches. The third one caused difficulties which according to the claimant were out of his control. While he was aware of those difficulties the claimant told the Tribunal he did not appreciate the future consequences that came with them.
In November 2012 the claimant acquired a new direct manager (SR). It was that manager who gave him his partially effective overall rating. That rating surprised and disappointed him as he felt he did deserve that low appraisal and therefore he appealed it. In January 2013 he met the department manager. According to the claimant that manager told him that he did not see the claimant having a future with the respondent. He also met his direct manager who informed him that he was instructed by that departmental manager to give such a rating to the claimant.
The witness expressed satisfaction at how is appeal was processed by a human resource partner (SK) but disappointment at its outcome. Subsequent to being told his rating was to remain unchanged he was faced with notification of his dismissal by way of redundancy. The claimant did not accept the scoring/rating results based on the Desktop Process 2013 criteria. His efforts to pursue internal vacancies elicited no response and the claimant soon concluded that the respondent had no intention of accommodating him in continuing his employment with it.
The respondent dismissed the claimant on the grounds of redundancy. Around the same time it also judged the claimant’s work performance as partially effective. The Tribunal was not presented with any tangible evidence that it had to implement cost cutting measures in any of its various departments. On the contrary the company was experiencing growth during the relevant period. While some of its departments may have been performing less well than others in 2012 its overall performance as presented to the Tribunal did not merit shedding staff. In this case it was open to the respondent to transfer or redeploy the claimant. It opted not to do so.
The Tribunal view this case more of a disciplinary issue than a redundancy one. The respondent did not exercise its right to terminate the claimant’s employment on the grounds of incompetency. However, it was clear the company had ongoing performance issues with the claimant which it chose to manage in a manner different to the correct procedure.
The participation of the same human resource manager in the claimant’s appeal and in his scoring in the criteria exercise was inappropriate. It was best he refrained from one of those tasks as his involvement in both could be seen as prejudicial to the decision to cease the claimant’s employment with the respondent.
The claim under the Unfair Dismissals Acts, 1977 to 2007 succeeds and the claimant is awarded €50,000.00 as compensation under those Acts.
Sealed with the Seal of the
Employment Appeals Tribunal