UD967/2011

EMPLOYMENT APPEALS TRIBUNAL

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms M. Levey BL

Members:     Mr F. Moloney

                    Mr P. Woods

heard this claim at Dublin on 8 October 2012

           7&8 May and 25&26 November 2013

Representation:

_____________

Claimant:

             Ms Liz Walsh BL instructed by Mr Paul Lambert, Merrion Legal,

             12 Butlers Court, 77 Sir John Rogersons Quay, Dublin 2 on 8 October, 2012,

7 and 8 May 2013 and Mr. Ronan Lupton BL instructed by Mr. Paul Lambert on the

25 and 26 November 2013

Respondent:

             Mr Conor Power BL instructed by Ms Ailbhe Dennehy on 8 October 2012

             and on the subsequent days by Ms Natasha Canniffe, both of McCann Fitzgerald,

             Solicitors, Riverside One, Sir John Rogerson's Quay, Dublin 2

The determination of the Tribunal was as follows:-

The claimant began work as a sales representative for the respondent which is involved in the development of diagnostic testing, this includes data based analysis for academic, pharmaceutical and biotechnology markets in 2004. In 2006 she became a senior sales representative, the claimant was the highest performing representative in the academic sector.

During 2006 the claimant became involved in a dispute over sales targets and her annual review with the newly appointed head of sales and marketing (SM) and submitted her resignation to the CEO who persuaded the claimant to remain with the respondent.

Up to 2008 the main source of revenue for the respondent was from the academic sector of the market. In January 2008 the respondent took a strategic decision that their business model was more suited to concentrating on the pharmaceutical and biotechnology sectors. One of the results of this decision was the closure of the respondent’s laboratory operation in the USA, the raison d’etre of which had been to service the academic market.

As well as redundancies which occurred in the US operation there were further redundancies in the UK and Europe arising from the decision to exit the academic sector. The last of these redundancies occurred in May 2010 this left the respondent with a business development manager (BD) who reported to SM, the claimant whose territory was Ireland, Scotland and France was one of two representatives reporting to BD. The other representative’s (TO) territory was England, the Benelux countries and Switzerland.

In late 2010 CEO decided that the business development team was going to have to reduce from three, BD, TO and the claimant to two. It fell to SM to make the selection as between TO and the claimant of the candidate for redundancy. The claimant graduated with an honours MBA in Business in 2010 which she funded and she stated that this would not have made a difference to the work that she undertook.

On 25 January 2011 SM held individual phone conversations with both TO and the claimant in which they were advised of the requirement to restructure the EU business development team and the likelihood of the team reducing by one. An at risk meeting was held by SM in the presence of the human resource manager (HR) with the claimant accompanied by BD on 1 February 2011. The at risk meeting with TO being held the day before.

In order to make the selection as between TO and the claimant SM relied on a matrix of eight factors namely, Sales made up of Sales 09/10, Sales YTD, Pipeline, Core Skills made up of key biomarker accounts and knowledge of biomarker markets, Appraisal Rating made up of the what rating and the how rating from the personal management performance in 2009/10 and finally Activity and reporting using the respondent’s sales management software. Scores in individual categories were awarded 1, 5, 10 or 15 depending on whether targets were not achieved, partly achieved, achieved or exceeded. Sales in 09/10 and Activity and reporting had a weighting of 2, Sales YTD and Pipeline both had a weighting of 3 with the remaining categories of core skills and appraisal had a weighting of 1.

Application of this matrix gave TO a score of 155 whereas the claimant scored 34 which was increased to 44 when her score on Activity and reporting was increased from partly achieved to achieved. The claimant was advised of possible alternative business development positions in companies related to the respondent, one of which was already at interview stage, and which would have necessitated the claimant’s relocation to the vicinity of the respondent’s head office from North County Dublin.

The claimant was dissatisfied with several aspects of her selection as the candidate for redundancy and raised these issues, first in an email to HR on 8 February, then in a conference call involving the claimant, BD, SM and HR on 10 February 2011. Apart from dissatisfaction at being chosen for redundancy the claimant raised issues regarding commission payments. As had been agreed during the teleconference, SM wrote to the claimant 11 February inviting her to a further meeting on 15 February. This letter advised the claimant that the likely situation was that her position would be declared redundant at this meeting.

The claimant emailed SM on 14 February setting out her dissatisfaction with her selection. The point about commissions was again raised in addition the claimant raised issues about the veracity of the sales figures relied on by the respondent in SM’s matrix. The meeting on 15 February 2011 had the same attendees as that on 1 February 2011. It was confirmed at this meeting that the claimant’s position was the one being declared redundant. The issues ventilated by the claimant in her email of 14 February were discussed further.

On 16 February 2011 HR wrote to the claimant to confirm that notice of redundancy had been given at the previous day’s meeting. This letter confirmed that the claimant was to receive pay in lieu of notice. The claimant availed of her right of appeal and this was heard by CEO and the group head of human resources (GH) on 8 March 2011. As a result of this appeal eighteen questions raised by the claimant were put to SM and HR. SM replied to CEO on 11 March. On 21 March 2011 GH wrote to the claimant setting out the grounds for appeal raised and setting out SM’s response. The appeal panel declared themselves satisfied that the selection of the claimant for redundancy was not based on any of the grounds alleged by the claimant. The selection of the claimant for redundancy was upheld.

Determination

From 2008 the respondent company took a strategic decision to alter its business model which resulted in redundancy in the USA operation and in the UK and Europe. In 2010 a decision was made to reduce the business development team from 3 to 2 and the respondent went about the process of selection for redundancy.

The claimant’s case was that the selection criteria were unfair and she was not credited with certain sales figures. While the claimant had advanced her academic qualifications the reality was this advancement would not have made a difference to the work she was undertaking and she acknowledged this herself in evidence.

While very detailed analysis was given of the sales figures the claimant’s main contention was that an account called O should have been credited to her. It appears from the evidence that while she secured an agreement in relation to the account the nature of it was that it consisted of separate tranches.   Securing one tranche of the agreement does not necessarily mean that subsequent tranches will follow. The Tribunal were informed that this account is still on going and has not been completed.

As LIFO was not the custom and practice in the respondent it was under no obligation to use this system. In all the circumstances the Tribunal finds that the claimant was not unfairly selected for redundancy and the claim under the Unfair Dismissals Acts, 1977to 2007 fails.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)