UD148/2010

EMPLOYMENT APPEALS TRIBUNAL

CLAIM(S) OF:                                                                                                     CASE NO.

Peter Nowak

- claimant                                                                                                           UD148/2010

against

PricewaterhouseCoopers Services

- respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Mr. D. Mac Carthy S C

Members:     Mr P. Pierce

                     Ms M. Finnerty

heard this claim at Dublin on 16th June 2011

                         and 29th September 2011

Representation:

_______________

Claimant(s) :        Mr. Proinsias Ó Maolchalain BL instructed by Peter Connolly Solicitors 6

                               Capel St Dublin 1.

Respondent(s) :     Ms. Rosemary Mallon BL instructed by Maguire McClafferty, Solicitors, 8

                            Ontario Terrace, Portobello Bridge, Dublin 6

                                                                           and

                             Eugene F Collins, Solicitors, Temple Chambers, 3 Burlington Road, Dublin 4.

                              (not in attendance on either of the above dates).

Respondent’s Case

The respondent is a major international accountancy firm. The respondent’s Human Resources partner and a senior Human Resources manager gave evidence on behalf of the respondent. The claimant was employed as a trainee accountant in the respondent’s business advisory services department. He was one of 200 trainees hired by the respondent. He was engaged under a contract of employment and also a training contract. This training contract was for a 3.5 years duration commencing on 1 November 2006 and was due to expire on 30 April 2010. The purpose of this training contract was to allow the claimant receive training experience in order to acquire the knowledge, skill and proficiency in the work of a Chartered Accountant so as to be eligible to apply to become a member of the Institute of Chartered Accountants. The claimant was supplied with a copy of both contracts and was also supplied with a separate document as part of his training contract. This document was given to the claimant at his induction course, within a number of weeks after he had been supplied with his employment contract. This document outlined to the claimant the requirement that he sit and pass the three Institute of Chartered Accountant examinations by Autumn 2009 otherwise the respondent may terminate the contract by giving him 4 weeks notice in writing.

The claimant passed his first examination (Professional Two) in Autumn 2007. He failed to pass his second examination (Professional Three) in Summer 2008 and again in Autumn 2008. The respondent wrote to the claimant on 3 December 2008 informing him that they were willing to support him in one final attempt at the Professional Three examinations in 2009. The claimant was informed in this letter that in the event of him being unsuccessful in obtaining his Professional Three examinations at the first sitting in 2009 the respondent reserved the right to terminate his training contract. The claimant acknowledged the terms and conditions of this letter and made no objection to its contents. The claimant failed to pass the examination in 2009 and consequently, as he had not complied with the terms set out in his contract the respondent terminated his contract, and his employment was terminated in August 2009. The claimant appealed the decision to terminate his employment and this appeal was heard on 21 August 2009. The appeal was unsuccessful and the decision to terminate his employment was upheld.

The Tribunal heard evidence that The Institute of Chartered Accountants allows students six attempts to pass the exams. The decision by the respondent to allow trainees two opportunities to sit the exams was introduced in 2006. Prior to 2006 the respondent did not have any specific rules on the amount of times a trainee was allowed to sit exams. The respondent firm is subject to global regulations and global standards and it was a reasonable expectation on the part of the respondent that trainees pass their exams. The training provided to the claimant was fully in line with the Institute’s requirements and it was open to the claimant to complete his training with another firm of accountants if he wished to do so. Many trainees with the respondent have pursued this course of action previously.

The Tribunal heard evidence that a number of students had concerns in relation to the strategic management and business finance exam hereafter known as (SFMA) exam. The claimant had failed this exam. As a result of these concerns the respondent contacted the Institute and these concerns were conveyed to the Institute. This was done before the results of the exam were announced and the respondent believed that the Institute had marked the exam fairly. The Tribunal heard further evidence that trainees may be allowed four attempts at the examinations if the choose the modular approach to their training. These trainees generally have a business degree and have exemptions from some exams. The claimant was not part of this category. The Tribunal was also told that one trainee was allowed five attempts to pass the examinations. This was due to personal extenuating circumstances pertaining to that trainee.

Claimant’s Case

The claimant gave evidence that he came to Ireland in July 2005. He holds academic qualifications from the Warsaw School of Economics. He applied for a job with the respondent and was offered a contract in conjunction with the Institute. This was a graduate position and his employment commenced on 2 October 2006. He signed an employment contract and a training contract with the respondent on the commencement of his employment. He believed that these were two separate contracts. He was never given the document outlining the requirement that he sit and pass the Institute’s examinations by Autumn 2009. He was of the view that none of the trainees that were part of his intake of trainees were provided with this document. He accepted that he signed the respondent’s letter of 3 December 2008 but he felt pressurised into signing this letter.

He told the Tribunal that the exams which he sat were not relevant to his daily work. He failed the (SFMA) exam on two occasions but was allowed to sit it for a third time. He failed the exam on the third occasion achieving a grade of 43%. The Tribunal heard that 50% was the pass mark. This particular subject was a difficult subject and was part of a new syllabus. Many trainees contacted the respondent expressing their concerns at the difficulty of the paper and the respondent contacted the Institute as a result of this. He gave further evidence that modular students were allowed to sit the examinations on 6 occasions as per the Institute’s rules and were not restricted to the respondent’s limitations. He disagreed with the marking system and informed the respondent accordingly. He confirmed that he had been given three attempts to pass the exam. He appealed the decision of the respondent to dismiss him but his appeal was unsuccessful. Following the termination of his employment he sat the examination on a 4^th occasion. He was again unsuccessful achieving a 40 % mark. He has sought access to his exam script from the Institute as he believed he had done very well in the exam. This script has not been made available to him and he is currently pursuing this matter through the courts. He has investigated the possibility of pursuing his training contract with an alternative employer but has not been successful in this regard. He is specifically seeking employment in the accounting field but has received negative feedback, stating that he is not qualified. He confirmed to the Tribunal that he is allowed to sit the exam on two more occasions by the Institute.

He confirmed that he has not sought to sit the examination for a 5^th time until the litigation matter that he is pursuing is resolved. He confirmed that it is not a pre-requisite that he be in employment to sit the exam. He is prepared to sit the exam again following the outcome of his court hearing. He agreed that 72% of trainees who sat the (SFMA) exam with him in Autumn 2009 were successful. He stated that there was no facility for him to transfer from the respondent to another firm to pursue his training. He confirmed that he never pointed to any personal circumstances as part of his appeal of the decision to termination of his employment. He considered that the contents of the letter of 3 December 2008 referred solely to his training contract and he still considered himself to have a separate employment contract.

Determination

The claimant’s contract of employment includes the following provision:

“The terms and the conditions of your employment will be subject to variation from time to time. Any variation or change to your individual terms and conditions of employment will be notified to you in writing within one month of the change(s).”

The Tribunal does not accept that this provision entitles the respondent to make any such “variation or change” unilaterally.

A further document was shown to the Tribunal as follows:

“This contract commences on 1 November 2006 and expires on 30 April 2010. This document must be read in conjunction with your ICAI training contract, (document 2, points 1-4 inclusive). If you have not already signed the ICAI training contract, this will be given to you at the Induction course. It is a requirement of this contract that you sit and pass the institute of Chartered Accountants examinations as set out in the schedule below.

Examination                       Date                   Tick if relevant or N/A

Professional Two    by       Autumn             2007

Professional Three   by       Autumn             2008

FAE                           by       Autumn             2009

Otherwise the firm may terminate the contract by giving you 4 weeks notice in writing”.

The claimant’s case is that he never received that document, and the document shown to the Tribunal was undated and unsigned.

The Tribunal is not satisfied that the claimant adopted the “variation or change” to his contract in the undated and unsigned document.

For these reasons the Tribunal finds that the dismissal was unfair.

The claimant sought re-instatement, but the Tribunal is not disposed to re-instate given the passage of time and the history of this case. Under the Act compensation is to be “just and equitable having regard to all the circumstances”. The Tribunal is of the view that the claimant failed to mitigate his loss, and in particular did not take steps to advance his qualifications by passing his exams, and if necessary find a new training contract.

In our view an award of €7,500.00 would meet the case and the Tribunal determines accordingly.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)