UD1371/2011

EMPLOYMENT APPEALS TRIBUNAL

CLAIM OF:                                                                                                  CASE NO.

Employee        –          claimant                                                                     UD1371/2011

against

Employer         –          respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:       Ms O. Madden B.L.

Members:        Mr M. Flood

                        Mr J. Maher

heard this claim at Dublin on 26th November 2012 and 9 October 2013

Representation:

Claimant:                     Mr Alaistair Purdy of Purdy Fitzgerald Solicitors,

                                    Kiltartan House, Forster Street, Galway

Respondent:                 Mr Tom Mallon BL instructed by Matheson Solicitors, 70 Sir John Rogersons Quay, Dublin 2 on 26 November 2012

and Ms. Rosemary Mallon BL instructed by Ms Dunlea, Legal Counsel on 9 October 2013

The determination of the Tribunal was as follows:

The fact of dismissal was not in dispute. The respondent’s representative told the Tribunal that a redundancy situation existed and redundancies were implemented in Dublin and elsewhere.

The claimant did not believe there was a redundancy situation but if there was the respondent needed to show that it had behaved reasonably and used fair procedures.

Respondent’s Case

The vice president for engineering gave evidence. The respondent was a software firm that worked in the area of communications. They provided email, anti-spam and anti-virus services. In November 2010 they merged with a company similar to themselves. They had better market share in the US and Asia while the respondent had better market share in Europe.

Following the merger a restructuring was necessary. At executive level there was a discussion around targets and revenue streams for the whole company. Certain principles of development were identified. The result for the Dublin operation was the R&D budget for 2011 was cut from 13m to 10.5m. Engineering development would move off-shore, i.e. to India where costs were lower.

The claimant was a senior QA engineer. When software is developed the QA checks that it operates as the end user expects. The claimant drew up protocols for testing.

The vice president for engineering wanted to increase the QA function in India. As a result 5 people in his area in Dublin were made redundant; the claimant, 2 sustaining engineers and 2 QA engineers.

There had been 2 senior QA engineers in Dublin. Their manager drew up a matrix and scored each of them. The vice president for engineering reviewed the scoring and was satisfied that the analysis was correct. The criteria by necessity were subjective. The claimant scored less well than her colleague. The decision to make the claimant redundant was made by the vice president for engineering. He made the decision for financial reasons before 20^th December 2010. He took advice from HR on redundancy procedures. He also had a 2 week consultation with the people involved. He did look at alternatives to redundancy but in a global context. He did not consider a period of unpaid leave as an option. A lower salary was not considered either because it would be unfair to put a junior person’s job at risk just because a senior person wanted it.

The director of the senior development team told the Tribunal that he was employed with the respondent for seventeen years and had been in his current role for two years.   The claimant was employed as one of two principals on the Q.A team. There were two areas in the Q.A two were employed in sustaining Q.A. and eight were employed on Roadmap QA and these roles were different. He was the claimant’s line manager at this time.   The respondent had been struggling for some time and merged with another company in November 2010.   Some work was outsourced to India and specific projects were transferred. This impacted on requirements in the respondent and the aim was to have a functioning Q.A team to stand on its own.     It needed one technical person in Dublin and one in India. It had two principals in Dublin and only needed one. It needed one person to act as a focal point and continue to report to the respondent.

He created a matrix to determine how to select people under the following headings, Product knowledge, Experience in leading, Cross Team influence, Competency in Business Areas identified for 2011, Process and Procedure and Project Sizing All of the categories were important. The claimant’s comparator received a higher score in all categories with the exception of one category.     He had worked closely with the claimant and her comparator.   He contacted the previous manager who after he came up with the matrix essentially agreed with him. He needed a principal that could lead the team.   The criteria on the other group were based on technical side of things.

The claimant asked for a reference and he told her that he had one waiting for her when she needed it.   No one asked him for a reference for the claimant.   The claimant’s comparator was made redundant in March of 2013.    

In cross examination he stated that he did not meet with the claimant in January to discuss the redundancy. The matrix was created in late December 2010 /early January 2011.     He was asked to create a matrix. The matrix was used as part of the consultancy process and that happened when the employee was informed that her job was at risk.   The matrix was used in the selection of employees whose jobs were at risk.   Guidance was given by HR at the time the matrix table was created. The guidance spoke about tenure/absence.   He did not want to introduce performance review.  

He could not recall if the claimant returned to the office for three days after her maternity leave. The claimant received a rating of 3 in her performance from July to December 2010 and that was explained in the review. He did not recall receiving an email on the 12 January 2011 regarding the claimant’s difficulties working in the office.     He had not spoken to the claimant regarding redundancy prior to the 17 January 2011.

The claimant’s comparator was two years longer with the respondent. He said he could be new in a job and gain more experience and it did not come down to length of service.   He disagreed that his attitude towards the claimant changed when she returned from maternity leave.   The claimant never raised a grievance with him.

The director of HR for the company (AE) told the Tribunal that fifty employees were made redundant globally. Prior to the claimant’s redundancy the respondent sustained losses during its entire existence over the previous three years. In 2008 it closed the San Francisco Office.   An e mail issued from the group CFO on the 5 August 2010 to employees and he asked for suggestions on how to save money. The respondent merged with another company in November 2010. A QA project was outsourced to India.

Tenure and absenteeism were not included in the matrix and it treated employees professionally.   Everything was done regarding what the business needed going forward.   AE never had a complaint from anyone in the respondent.   She and the business manager went to the USA office and a large restructuring took place.   AE along with the business manager spoke to the claimant on the morning of the 17 January 2011. The respondent engaged in consultation and fair process

AE would have preferred if the claimant’s position was not eliminated.   9.5 million euro had to be saved and with the merger of two companies the respondent looked at everything regarding costs and considered reducing pay. The respondent did everything it could to minimise the redundancies.   She met the claimant on the 19 January 2011 and no other position was available at the time.   The process was based on the position being made redundant. The respondent obtained guidance and was informed that if a more junior employee was made redundant to facilitate the claimant this was considered bumping.  

At the time there was no alternative employment for the claimant. On the 27 January 2011 three million dollars had to be taken out of the engineering budget.   The claimant asked about reduced salary.   The claimant would take unpaid leave. This was not agreed to as the CFO did not feel it would be helpful if the claimant remained on unpaid leave she would not be entitled to redundancy. AE was not involved in the scoring of the claimant. AE had spoken to the claimant who told her that she would take a junior role but the respondent needed a principal and the cost of resources in India was lower.  Making an ex gratia payment was not the custom and practice in the respondent.

A couple of agencies treated candidates well and she offered to do consultancy with them.   The claimant did not send her a CV or contact her. All employees who were made redundant were employed and the longest that an employee was without work was two months. The claimant’s comparator obtained a job during her notice period.   The claimant did not ask her for a reference.

In cross examination AE stated that she gave direction on what should not be included in the matrix. She was not advised to share material with the claimant and she did not do it.   She spent a large amount of time in the USA.   Eight employees out of 82 were made redundant in Dublin.   On the 17 January 2011 she was aware that the claimant was selected for redundancy and the claimant’s position was at risk.   She received two messages on the 31 January from the claimant.  The claimant had questions that she wanted answered and the respondent wanted to have as much face to face contact as they could. The respondent looked at all options regarding redundancy and did not have any proposals to put to the claimant.     The respondent could not take a job from a QA and assign the claimant to that role. She could not recall if the respondent had an appeal procedure regarding unfair dismissal.   The respondent did not have a formal appeals process.   When put to her that the respondent expected the claimant to come up with an alternative she replied that the respondent looked at a lot of potential things that it could do.    

Claimant’s Case

The claimant told the Tribunal that she commenced employment with the respondent 8 ½ years ago. It was a great company to work for and she had the opportunity to work on different projects and she gained a lot of experience.   She has three children and around 2009 she was promoted to engineer.   She reported to different managers before her maternity leave and she worked three days at home. After maternity leave her manager was MG. The team was never in one place and she spent a lot of time in Sligo where she had an office.

She dealt with colleagues remotely after her maternity leave. When she first returned from maternity leave everyone was very nice including the manager MG.   She felt from October 2010 that she did something wrong. It was a very friendly company and she was the only one on the team who felt like this. At the time of her review she felt that the atmosphere was tense.   She felt that maybe there was stress on the project that she was not aware of. She was in an open plan office so it would be unusual for MG to walk by her.

On the 12 January 2011 she sent an e mail to MG regarding her review.   She outlined that she found it very difficult working away from home for three full days. She did not receive a reply to this. She worked in Sligo Monday and Friday and she worked in Dublin Tuesday, Wednesday and Thursday.            

On the 17^th January 2011 an e mail issued to the team from the CEO whereby he outlined

that the respondent had some near term challenges to surmount as follows:-

“In order to meet these challenges, our executive team has engaged in an extensive review of business and regrettably concluded that it is essential to further streamline & focus the merged company.

We have initiated action to achieve this objective and have begun consultations with individuals and groups regarding the restructuring of their roles or departments.   If your position is affected by this announcement, your manager or Human Resources will have spoken with you over the last few days.

2011 presents a new beginning for our Company and I am excited about our long–term prospects as a global business. I ask for your support and assistance as we build toward that goal”.

She received a letter from the HR Director on 17 January 2011 whereby she was informed

that her position was at risk due to redundancy. The claimant was in shock and she had to reread the letter.   She was confused as to whether she was redudnant.   Since she joined the respondent it was experiencing difficulties. There were no longer plants in the offices, tissues in the toilet and the Christmas party was cancelled.   Correspondence by e mail continued back and forth and she questioned why she was selected.   She   further queried why she was being selected and the criteria used.   The matrix meant nothing to her and she did not understand the headings.    

If she had been aware of the criteria beforehand she could have put across her viewpoint. She felt that she could have got up to speed very quickly on the project as she had proved herself in the past. She would have liked more transparency.   It took a number of days to obtain the matrix. At an information meeting she asked about the possibility of obtaining a junior position and she could have worked remotely full time.   She was never offered an appeal and she was not advised of the grievance procedure.  

After she was made redundant she contacted a recruitment agency.   She left her CV in a recruitment agency in Dublin and Sligo but they never reverted to her. She heard about a programme to help her to obtain work.   She built up a web page and she has worked with a few clients. She applied to a multinational company and is currently in negotiations with them.  

In cross examination she stated that she attends a programme mentoring course six hours every Friday, this course shows you how to pitch yourself.   She is available for work and she outlined her endeavours to obtain alternative employment. She felt in November/December 2010 that the respondent wanted her to leave. The redundancy could have been done a different way.  She did not agree with the criteria. Her colleague, KL did better than she did in the criteria and the claimant did not know that she needed to improve.     KL had spent more time on some projects than she had.  

Determination

The Tribunal acknowledges that the respondent in this instance could have made better efforts to conduct the procedures ultimately leading to redundancy in a more constructive and transparent manner.   Notwithstanding this the Tribunal on balance are satisfied that a genuine redundancy situation existed and therefore the claimant’s claim under the Unfair Dismissals Acts 1977 to 2007 must fail.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)