UD518/2011

EMPLOYMENT APPEALS TRIBUNAL

CLAIM OF:                                                                                                          CASE NO.

Employee        -          claimant                                                                                UD518/2011

Against

Employer         -          respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Mr G. Hanlon

Members:     Mr D. Moore

                    Mr J. Flannery

heard this claim at Dublin on 3 October 2012, 15 January 2013, 16 January 2013 and 28 June 2013.

Representation:

Claimant:       Mr Padraic Lyons BL instructed by Daniel Spring & Co, Solicitors,

           50 Fitzwilliam Square, Dublin 2

Respondent:   Mr James Doherty BL instructed by Beauchamps Solicitors,

           Riverside Two, Sir John Rogerson's Quay, Dublin 2

Summary of Evidence

The respondent company provides people with a range of care in the health service. It is largely funded by the HSE and the majority of staff are paid directly by the HSE but it also employs a minority of staff who are paid directly by the company through its own funding. There were three categories of employees employed directly through the board’s own funding, (1) staff engaged in fundraising (2) clinical staff (3) two contract staff employed at senior management level, one of whom was the claimant.

The chairperson of the board SB contended that from 2008 onwards the company was operating in an extremely difficult financial environment. There was a major challenge facing the company to maintain services and live within budget. The company was experiencing a worsening financial situation and there were on-going efforts at cost reduction. The HSE wrote to the Chief Executive on 12 November 2010 requesting inter alia “a detailed plan assuming that the company’s allocation would be reduced by 7% for 2011”. This information was sought by the HSE by close of business on 16 November 2010 and was in addition to a 5% reduction in 2009 and an 8% reduction in 2010.

At this stage the company had reached a situation where the board had explored every opportunity of cost saving measures. Every area of non-pay was examined and when no further cost saving measures could be identified they were reluctantly forced to look at a redundancy situation. The only positions open for consideration for redundancy were board funded positions as the majority of employees were directly employed by the HSE. It was also made clear to the board by the HSE that re-deployment of HSE staff was not an option. In that regard the board took the decision that staff who delivered clinical services would not be made redundant as they did not wish to close services. It was also decided that fundraising staff would not be made redundant as fundraising was essential. The only option left open to the board was to make the contract positions held by the claimant and another colleague known as (M) redundant. There was no provision to transfer funded positions into the HSE. Both of these employees were on a high level of pay and the savings to the company were significant. That decision taken by the board on 29 November 2010 was a unanimous decision and the CEO was instructed to implement the decision of the board. The claimant was paid her statutory redundancy entitlement and also received an ex-gratia payment which was in keeping with the ethos of the respondent company. The claimant made no suggestion to the board that she was not satisfied. She sent a farewell email and thank you message on the 16 December 2010. Neither the claimant nor M has been replaced.

The board was not in a position prior to their meeting of 29 November 2010 to inform any employee that they may be made redundant. SB was not aware at any stage of any inter personal difficulties existing between the claimant and the CEO. He was not aware of any vacant position in the respondent company for which the claimant had the required qualifications.

JN a member of the board of directors met the claimant in July 2007. At that time SFR who worked in the organisation was ill. The claimant seemed worried that the board was not serious about the mission. He reassured her that the respondent was serious about the mission. The claimant did not raise any concerns about her terms and conditions of employment with him and had she done so he would have spoken to the HR department. At no time did the claimant discuss her three year contract with him.

ML a member of the board of directors since 2007 and chairperson of the mission and ethics committee since 2009 was involved in the re-establishment of the mission committee. There were economic and social challenges to be considered. The goal was to fully implement the mission in the organisation. He had an excellent working relationship with the claimant and met her on a monthly basis. At the September 2010 meeting the emerging financial situation in the organisation was discussed. ML verbally suggested the possibility of implementing the mission in a different way and possibly by the HR department. Following that meeting the capacity of both the claimant’s and M’s posts were at issue.

In and around this time the claimant raised an issue of her treatment by the CEO with ML. The claimant felt that the CEO was trying to get rid of her. He referred the claimant to HR and he mentioned the matter to AH. There were well defined procedures in place to deal with such issues. ML did not engage with the process. He had worked with the CEO some years previously and he found her very business-like. He found the CEO to be very fair and a good listener.

Draft documents setting out a framework for the mission which included the core values of the organisation and a strategy for sustaining the mission were furnished to the chairman of the board of directors in advance of the board meeting held on 29 November 2010. A report of the mission committee was presented to the board at their monthly meeting on the 29 November 2010. Following the November 2010 meeting the executive had a short meeting and a decision was taken to make both the claimant’s and M’s posts redundant.

AH the head of HR with responsibility for six hundred and forty staff and three hundred volunteers. She was aware the claimant raised concerns in relation to her fixed term contract in 2007. The board had intended that the post of head of mission was for a fixed term of three years. The original intention had been that it would be a permanent role and internally filled by one of the sisters.

In December 2009 the claimant spoke to AH about difficulties she had been experiencing with MF. She followed up on this with the claimant and discussed supports available namely, grievance procedures and dignity at work. In January 2010 the claimant said she was not pursuing matters further. AH consistently offered supports to the claimant in the latter part of 2010 but the claimant contended that she did not require them.

The claimant confided in AH during a coaching session. She had mentioned a difficult one to one meeting with MF concerning the Christmas party. When AH followed up on her concerns the claimant said she was quite satisfied that matters had been addressed. The witness recalled the claimant mentioning that she wished to make a formal complaint against MF in mid-March 2010 however at no time did the claimant raise a formal complaint.

While the principal head of social work was on prolonged sick leave an employee working in that area was offered the position in acting up capacity. AH contended that the claimant was not suitably qualified and could not be redeployed to that position as she did not meet the qualification criteria.

AH was asked to sit in on a meeting with MF and the claimant on 30 November 2010. MF advised the claimant of the board’s decision to make her redundant and the package which would be available to her and support in seeking other employment. AH stayed back with the claimant after the meeting ended. AH contended that it was a fair package. In the following days AH telephoned the claimant as to how she was. She arranged to meet the claimant in January 2011. An RP50 was sent to the claimant in early December 2010. The claimant wanted to collect her cheque at the end of December 2010. Together with her statutory redundancy the claimant was given an enhanced package of six weeks at her current salary. The claimant was loaned a laptop and mobile phone to assist her in seeking alternative employment and those items were returned on the 6 February 2011.

The CEO (MF) met the team on a monthly basis one to one. No difficulties arose with the claimant’s review in 2007/2008 but the 2009 review meetings were very difficult. The claimant cried at a number of meetings. In July 2009 during a review meeting the claimant found the whole process stressful. She tried to assist the claimant in her role. The claimant became very defensive and felt she was being singled out. A pattern emerged of the claimant being distressed at meetings. MF felt the claimant was often overwhelmed by the task she had to undertake.

The claimant worked exceptionally well in 2010. In May 2010 the review meeting was very positive. However, MF was concerned about the claimant’s health. She had been suffering from migraines. The claimant told her that during her career she had encountered health problems.

The CEO described the August 2010 meeting as difficult. The claimant had wanted to cancel the children’s Christmas party but MF insisted it proceed. The claimant never came back to her to say the party was not taking place. When she became aware in September 2010 that the party had been cancelled she was both surprised and annoyed. She told the claimant she had gone behind her back having already given her a clear instruction to proceed with the party.   This review meeting was tense and difficult. The claimant contended that she had found it difficult to find people to co-operate in organising the party. The management subsequently agreed to the setting up of an alternative event for the party. The claimant spoke to her after the September meeting and MF felt it had cleared the air.

The claimant was treated extremely well as if she were a permanent employee. MF authorised additional payments to be made to the claimant during a period of sick leave as the claimant had not got the required contributions.

It was at the November 2010 management meeting that MF first learned of the possibility of the claimant’s position being made redundant. The board had looked at a range of options. Fund raising income had dropped.   A €100,000 saving could be made on making the claimant’s position redundant. Since the claimant was made redundant she has taken on the mission role.

MF said that she had a difficult relationship with the claimant on occasion but at no time did this have any bearing on the decision made to make the claimant redundant. The claimant’s fixed term contract was due to expire in January 2011 and her co-worker who was also on a fixed term contract was due to expire in July 2011.   Both these positions were made redundant. She could not recall the claimant suggesting a pay cut as an alternative.

MF had discussions with management on the possibility of securing alternative work for the claimant but there was no alternative role for the claimant within the organisation.

FMcK an employee of the respondent since February 2009 gave evidence on behalf of the claimant. There was a cross over between his role and the claimant’s role. The claimant confided in him in the six to eight month period before her employment ended. She was down in herself, upset and close to tears. The claimant often came to talk to him before she attended meetings with MF. She also confided in him after meetings with MF telling him that she had been shouted at and reduced to tears. He advised her that no one had the right to speak to her like that and that she needed to speak up for herself. The claimant had told him that her relationship with MF was pretty awful. He could not believe it in one way yet he believed the claimant. The witness was sure he had said to the claimant that it sounded like bullying.

The claimant previously worked for a childrens charity organisation in the UK with responsibility for managing staff, administration and had worked as a volunteer. She commenced employment with the respondent organisation on the 15 January 2007. The post was advertised as a full time permanent post. In late January 2007 her contract included reference to the post being a fixed term contract which caused her much concern. By way of letter dated the 16 February 2007 she outlined those concerns to her employer. This letter was never acknowledged by the respondent. A requirement of the post included masters in theology which she undertook on a part-time basis and concluded during the course of her employment. In conversation with JN she expressed concern about her contract being fixed term and she was assured she should consider herself permanent. The claimant identified an issue with the CEO when she had produced a values audit of almost two hundred and fifty staff and submitted the findings to the CEO. The CEO was angry at the findings and following on from that a two day team building exercise was arranged. Independent management training consultants were engaged by the CEO to conduct the exercise. The claimant expressed concern that the company hired to conduct the exercise was owned by a relative of the CEO. In her evidence she detailed examples of regular put downs at the hands of the CEO. In particular, 2009 was very difficult constantly having to justify her existence and monthly review meetings with the CEO became more and more difficult. The claimant continued to attend regular planning and consultation meetings with ML and was busy with her duties always giving her best. In July 2009 the claimant recalled speaking to ML about the difficulties she was experiencing with the CEO. ML was always a strong supporter of the claimant’s role and he acknowledged being aware of her situation with the CEO. The claimant became unwell suffering severe headaches sleepless nights and feeling miserable. She spoke with AH about feeling bullied and that she was considering making a formal complaint. AH was supportive and suggested rather than making a complaint which would only cause further damage she should tackle the problems and recommended coaching. The claimant self referred herself to the Occupational Health Department (OHD) and undertook a cognitive behavioural assessment which concluded with a report which suggested she was experiencing difficulty and this required investigating. In her performance management review she was told she lacked leadership. In a letter dated 20 January 2010 opened to the Tribunal it referred to gaps in her performance and the board being involved in accessing her performance.

In 2010 the working relationship progressively worsened and in particular at the August 2010 meeting she was told she lacked leadership, she became upset and was criticised for crying. After that meeting she spoke to ML and he advised her against making a complaint as this would be “nuclear”. She took on board the advice from the coaching and training she had undertook on how to deal with the meetings however at the September 2010 meeting she was roared and shout at, accused of going behind the CEO’s back and eventually the claimant sought to defer the meeting.

In November 2010 following a board meeting the claimant was informed by ML in a text message that her submission and draft mission statement received high praise from the board members. Her performance meeting which was originally scheduled for the 15 November 2010 did not take place on that date. On the 29 November she arrived at the office of the CEO for the meeting. AH attended the meeting also at which she was informed by the CEO that her role was being made redundant. She suggested taking a reduction in salary or working part time as an alternative to redundancy. The CEO said she could leave immediately or remain on until a date in December.

The claimant was aware of the social work manager position in the organisation being available at that time a role which she considered right up her street. She had many years of experience in the role of social worker and believed she had an equivalent qualification for this position. A certificate of qualification was opened to the Tribunal. She believes no alternatives were ever considered by the respondent.

The claimant accepted that financial difficulties existed within the organisation but could not accept her role was made redundant. She believes her role was selected based on what the CEO was putting to the board and that she was performance managed out of the organisation. The witness denied that signing the RP50 form was an acceptance by her that a redundancy situation existed. She later in evidence agreed that the RP50 was an acceptance of redundancy. She expressed regret at not making a formal complaint about her treatment by the CEO and was always advised against making a complaint by others including the Sisters of Charity in the organisation.

The claimant’s current employer (CK) told the Tribunal that he had reason to be in contact with ML of the respondent company on a business matter. During the course of a conversation with ML he informed him of the claimant working in his company at which ML replied “you want to be careful there”. The witnesses was of the view that he was being warned of an issue and ended the conversation by saying the claimant may be more suitable to the work in his company.

Following the above evidence ML was recalled. ML explained that he made the comment in the context of the claimant being in the role of receptionist for CK and when CK suggested an extended role for the claimant he made the observation. He acted as a referee for the claimant following her redundancy and denied that this was a betrayal.

An employee currently on secondment from the respondent (AM) commenced in the role of Head of Clinical Services with the organisation in 2008 and worked along side the claimant on the senior management team. On hearing of the claimant’s redundancy she was surprised at the time. She was aware of the social worker manager position being available and in her opinion a position the claimant was qualified to carry out. She was aware of the claimant’s experience working as a social worker and considered the claimant suitable. The witness could not confirm if the claimant had the relevant or equivalent qualifications but should have been considered based on the fact that some up skilling may be required and an opportunity afforded to the claimant to avail of the “grand parenting” option.

Determination

The Tribunal is satisfied that the claimant applied for a job in the genuine belief that the position was a permanent post. She became aware that the post was a fixed term contract when her contract of employment was forwarded to her for execution. The Tribunal notes that the claimant did raise issues about her understanding of the post but nevertheless did sign the contract which was for three years. While the manner in which the employer initially advertised the position and then furnished the contract was most unsatisfactory it is still clear that the claimant was in effect working under an initial fixed term contract for three years. A subsequent contract for one year was then furnished at the expiration of the three year contract again confirming the position within the respondent organisation was a fixed term contract position.

The claimant has set out in detail to the Tribunal her belief that the position was terminated as a consequence of her deteriorating relationship with the CEO and not because the contract was of fixed duration. The actual job specification that is “Director of Mission” supports the respondent’s contention that the post was one under contract of a fixed nature.

The Tribunal is satisfied that a genuine redundancy situation existed from the evidence heard from the employer and that the claimant’s contract was not renewed due to the financial situation of the employer and for no other reason.

The Tribunal is satisfied that the claimant was employed on a fixed term contract and when the contract was not renewed was given substantial compensation which it would appear under the terms of the contract of employment was not obliged to pay.

In the circumstances the Tribunal finds that the claimant’s case fails. The claim under the Unfair Dismissals Acts, 1977 to 2007 is dismissed.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)