EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Derek Coughlan UD1264/2013
against
Novartis Ringaskiddy Limited
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. K.T. O'Mahony BL
Members: Ms. M. Sweeney
Ms. P. Doyle
heard this claim in Cork on 28 November 2014
Representation:
_______________
Claimant(s):
Mr. David O’Dwyer BL instructed by Ms. Mary O’Callaghan for
Ms Emer Murphy, Eamon Murray & Co., Solicitors,
6/7 Sheares Street, Cork
Respondent(s):
Mr. Jerome O’Sullivan, J.W. O'Donovan, Solicitors,
53 South Mall, Cork
The determination of the Tribunal was as follows:-
Summary of Evidence
The claimant commenced employment with the respondent on a fixed term contract to run from 16 May 2011 to 16 September 2011, working as an operative on a drug (drug D) project. At the time drug D was undergoing clinical tests. The claimant was back-filling for one of the experienced employees who was transferred from the project to work on the accelerated production of another drug (drug E). The claimant’s contract contained a clause excluding the operation of the Unfair Dismissals Acts. The respondent had taken on around 9 other temporary along with the claimant on 16 May, some others prior to that and around 55 subsequent to that date. Following the expiry of his fixed term contract there was still uncertainty as to the approval for drug D so the claimant was employed on a specific purpose contract and again this contract contained an exclusionary clause to avoid liability under Unfair Dismissals Acts.
On 6 December 2011the claimant sustained injuries at work when he fell off a ladder. Following an absence of 6 or 8 weeks he resumed work on restricted duties. The full extent of his injurieswas not immediately obvious. The claimant initiated a personal injuries action against the respondent in March 2013
The clinical trials of drug D were not successful. It was the evidence of HPU (the head of the production unit for the drug D project) that he was instructed to select 4 temporary workers for redundancy. He selected the claimant and two other temporary employees. At a meeting with the claimant on or around 18 April 2013 HPU informed him of the decision and that a number of factors led to his being selected but the claimant was not given any specifics as to these. In the letter of termination dated 19 April 2013 HPU informed the claimant that the respondent could not sustain his temporary employment because the introduction and launch of drug D, for which he had been employed, had been indefinitely delayed by the external regulatory bodies. The claimant was given one week’s notice that his temporary employment would end on 26 April 2013. HPU’s evidence to the Tribunal was that failure to perform as expected was the reason the claimant and the other two temporary employees were 0dismissed at that time. The drug D project kept running at that time. When the claimant questioned HPU in a later conversation about “the factors” leading to his selection, he was told: “I would prefer to leave it at that.” HPU could not recall having this conversation with the claimant.
It was the claimant’s evidence that the first he heard about performance issues was at the Tribunal hearing. The results of his first annual review were positive but he was disappointed with the results of his second review, which was subsequent to his accident. Capability was only casually mentioned at the latter review and no issue was made about it. He was restricted to the control room and using the automation system but he felt pressure to perform if an employee was sick. As a temporary employee he felt conscious of playing his part as best as he possibly could.
He had longer service with the respondent than many of the other temporary employees. It had been remarked to him that were he a permanent employee he would have been on leave from work with his injuries.
It was the claimant’s evidence that a new employee was brought onto his shift, a week or so before he was let go. HPU felt this was incorrect and believed that a permanent employee had been returned from the drug E unit to the drug D project within four weeks of his dismissal.
Determination
The claimant’s contract included a term complying the requirements of section 2 (2) (b) of the Unfair Dismissals Acts, 1977 to 2007 to exclude the claimant’s specific performance contract from the protection of the Unfair Dismissals Acts.
It was the respondent’s position that the claimant was dismissed because the specific purpose for which he had been employed had come to an end and he was selected for redundancy on the basis of his failure to meet the required standard of performance.
There was no clear evidence of the existence of a winding-down plan in the drug production at the time of the claimant’s dismissal. Even if the Tribunal were to accept such a plan existed it none the less finds that the real reason for the termination of the claimant’s employment was his work performance, in that he did not meet the expected standard of performance. Thus, the Tribunal’s jurisdiction is not precluded by virtue of section 2 (2) (b) of the Unfair Dismissals Acts, 1977 to 2007.
The claimant’s performance was compromised due to his work related accident. Once the claimant was accepted back to work the employer was obliged to manage his performance. A reasonable employer would measure his performance against a different standard to that obtaining for employees free of physical injuries. Furthermore, the respondent failed to raise the claimant’s performance as an issue with him either during the course of his employment or at the time of the termination of his employment thus depriving the claimant of an opportunity to deal with it at either stage. In the circumstances the dismissal was unfair and the claim under the Unfair Dismissals Acts, 1977 to 2007, succeeds.
The Tribunal considers compensation to be the appropriate redress in this case. The Tribunal unanimously deems it just and equitable, in all the circumstances, to award the claimant compensation in the amount of €40,000.00 (forty thousand euro).
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)