EMPLOYMENT APPEALS TRIBUNAL
Velocity Markets Limited
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms K. T. O'Mahony B.L.
Members: Mr. D. Hegarty
Mr. O. Wills
heard this claim at Cork on 1st March and 3rd June 2016
Claimant: Ms Deirdre Canty, SIPTU, Head Office, Liberty Hall, Dublin 1
Respondent: Kelly & Dullea, Solicitors, 5 South Mall, Cork
The determination of the Tribunal is as follows:-
The respondent is a multilingual customer service agent providing support staff and interpreters for foreign exchange services for the global market. The witness on behalf of the respondent was the manager of the support staff of both the respondent and another company which also provided support staff and shift leaders. The respondent also engaged contractors for this work and did not differentiate between those it employed directly (its employees) and those with whom it had a contract for services arrangement.
The claimant was employed by the respondent as a member of support staff. His duties included answering phone calls, replying to e-mails, engaging in live chats with clients and dealing with the website. While the claimant spoke English, French and Arabic, he had been employed mainly for his Arabic as the respondent was hoping that business in the Arabian market would grow but the anticipated growth did not materialise. On the other hand 40% of the respondent’s clientele are Japanese.
Around eleven support staff, including the claimant, were made redundant in November 2014. The other member of the support staff who speaks Arabic was also included in that group. A selection matrix was used in selecting which positions were to be made redundant. Leadership, language and location, in that order, were the criteria used in the selection process. The matrix was not discussed with the staff. As regards the claimant he had never been a shift leader and had not the required level of experience for that role; the Arabic speaking market had not grown as anticipated; and, the claimant could not work the third shift for medical reasons. An ability to work across all shifts was necessary. The claimant was informed at a meeting on 15 September 2014 that his employment was being terminated on 24 November 2014, giving him eight weeks prior notice of his redundancy. There were other redundancies in spring of 2015. On 31 July 2015 the remaining six members of staff were made redundant and the respondent ceased trading as of that day. A letter from the respondent’s payroll processors confirming those six redundancies was produced in evidence.
The claimant commenced employment with the respondent on 20 February 2012 as a member of the support team. He speaks English, French and Arabic and dealt with clients from England, Ireland, France and Middle Eastern countries. He had not been told that he was hired for the Arabic speaking market.
When only a month in the employment, in March 2012, the claimant was transferred to work on the night shift, which runs from 10.30pm to 8.00am. He made a number of requests to come off the night shift but to no avail. It was affecting his sleep pattern and giving him headaches. When he gave a medical certificate to the respondent, he was given a few days rest and then returned to the night shift. This happened on two occasions. On his third request, he was changed back to a day shift in September 2013.
The claimant asked the respondent about a pension on a few occasions, to no avail. He raised it again along with other IR issues in March 2014. Shortly thereafter another member of staff lodged a complaint against him with the respondent. In late May 2014 the respondent wrote to him, informing him that he had no case to answer as against the complainant. The claimant asked the respondent to investigate why she had lodged a vexatious complaint against him but to his knowledge no such investigation was ever carried out by the respondent. Shortly afterwards on 15 September 2014 he was told he was being made redundant with effect from 14 November 2014 and this was later confirmed by letter. The claimant was adamant that no other worker was made redundant on 14 November 2014. The respondent had not told him why or how he had been selected for redundancy.
The claimant’s evidence was that he suffered discrimination in the employment from the start. He had been overlooked for promotion to the position of team leader or support supervisor. There was no test to establish who was entitled to the promotion and the positions were not advertised. He received less training than others although he had requested it. He felt he was entitled to be promoted. He worked mainly in English and French market. His position was that the Arabic speaking market did develop; they had clients in North Africa, the Gulf region and Bahrain.
When he asked colleagues who had allegedly been made redundant about their situation, they told him it was private and they could not discuss it with him. Some of these former colleagues were given their computers to work from home and work was assigned to them through skype. His own name had been left on the respondent’s skype account and was only removed from it the day after the first hearing herein. The claimant produced documentation showing some employees were still working but the manager’s position was that these did not relate to the respondent’s markets.
The claimant was not happy to be made redundant and wanted his job back. He wanted to resolve matters but the respondent ignored the approaches made by his trade union. He felt from the beginning that the respondent did not treat him fairly. He would have done the night shift in rotation.
The claimant worked on a six month temporary contract in Boston from April 2015 to October 2015.
The Tribunal is satisfied that a redundancy situation existed in the respondent company at the time the claimant was made redundant. While the claimant’s position was that his contract of employment did not specify that he was employed to deal with the Arabic speaking market, the day to day practice in the company was that he and one other employee who spoke Arabic dealt with those clients.
The Tribunal does not accept the claimant’s argument that he had been selected for redundancy because he raised some IR issues with the respondent relating to pension and other issues. The respondent began a redundancy programme in November 2014 and completed it in July 2015, when all remaining staff, including the manager were made redundant.
Having regard to the criteria used in the selection process there was no evidence before the Tribunal that these were unfairly applied.
However the Tribunal finds that the procedures used by the respondent render the dismissal unfair. The respondent did not inform the claimant why he was made redundant or how he was selected and failed to engage with him in any way about it.
The Tribunal finds that the Claimant was unfairly dismissed. It finds that compensation is the most appropriate remedy in this case and awards the claimant the sum of €5,000.00 under the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal