EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD44/2014
CLAIM OF:
John Kiernan
-claimant
against
ESP Global Services
-respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms P. Clancy
Members: Mr. T. Gill
Ms H. Henry
heard this claim at Ennis on 20th May 2015 and 7th September 2015
Representation:
Claimant: Ms Liz Murray, SIPTU, Liberty Hall, Dublin 1
Respondent: Mr. Seamus Clarke BL instructed by Mr. Donagh Shaffrey, Shaffrey & Co, Solicitors, 10 Cornelscourt, Dublin 18
Background:
The respondent is an IT maintenance provider. The claimant worked for the respondent as an IT engineer in the Shannon Airport facility for a customer of the respondent. The respondent customer was Shannon Airport Authority (SAA).
Respondent’s case:
The Tribunal heard evidence from MD who was the IT manager and manager of the claimant. The witness explained that a head person known as POS in the SAA who was their customer complained about the claimant. POS wanted the claimant removed. POS was unhappy with the claimant and wanted him replaced. The witness explained that he contacted his line manager BW and BW and another person decided to suspend the claimant.
He spoke with POS and asked him to consider allowing the claimant to remain working on the premises and that they would organise a performance improvement plan (PIP). POS agreed to that plan, which he admitted did not specifically address all the items complained by POS. He and his second-in-command met the claimant to go through the PIP. He explained to the claimant that POS wanted him removed but agreed to give him another chance. He said the claimant seemed to do well on the PIP, but then less than a month later POS contacted him again to say that the claimant had not improved to his expectation. POS revoked the claimant’s airside pass. This meant that the claimant could not work in the Airport because an airport is a secure facility and you could not work there if you had no pass. He had no choice but to return the claimant’s pass to airport security. The claimant was then placed on garden leave.
In an effort to retain the claimant he contacted another person in Cork airport to see if that person would move to Shannon and the claimant could swap locations but the person in Cork would not move. He could not confirm if the claimant was dismissed or made redundant. He had no issues in relation to the claimant’s time-keeping and there were no issues in respect of the claimant until June 2013. He had no concerns over the claimant’s ability and did not want to lose the claimant. He would have retained the claimant in employment if POS had agreed to re-consider. He issued the claimant with a positive reference upon the termination of his employment.
The Tribunal heard evidence from KH. He and another met the claimant to hear his account of the situation. He went away to consider matters. He considered that he could not move the claimant to Cork because the worker in Cork did not want to move. He had no other position to move the claimant to so he and another / others decided that they had to dismiss the claimant. However before he did this he did contact POS to see if it was his final decision to revoke the claimant’s airport pass. They had nowhere else to place the claimant so they had to terminate the claimant’s contract.
The Tribunal heard evidence from a Mr. J who heard the claimant’s appeal of his dismissal. He, having spoken to parties and ascertained that the claimant’s airport pass was revoked and was not going to be returned, did not overturn the dismissal.
POS gave evidence that he wrote to the respondent outlining his concerns over the claimant’s work performance on the service desk team. He worked in the same environment as the claimant, and based on his general observation of the claimant he had specific concerns in relation to:
“His ability to deal with front office tasks (MS Office, Laptop/Desktop’s, Printers etc.)
His timekeeping – I never really see him around the office (like I do with the others)
His work ethic in general – Not following up on tickets, passing tickets to others, not willing to take on new tickets without a full explanation.”
POS outlined these specific concerns to MD by way of an e-mail dated 1 July 2013 and requested the company to deal with the matter. He had no issues in relation to the company’s other employees based at the airport. The company then placed the claimant on a PIP but the witness gave evidence that there was no improvement in the claimant’s performance whatsoever. Accordingly the claimant’s security card was revoked and he (POS) requested the company to replace the claimant.
In his evidence to the Tribunal, when questioned about his issues with the claimant’s work, POS stated it was more a sense he had, rather than a hard fact, he got a sense the claimant was not at his desk, and admits it was a feeling and not really quantifiable.
Claimant’s Case
The claimant gave evidence that he commenced working for the respondent in November 2009 after being headhunted by (MD). He told the Tribunal that in or around April 2013 new systems were introduced by the respondent and he was not provided with any training in relation to these new systems. He gave evidence that 50% of his work involved working on these new systems. As an IT engineer he was expected to use his own initiative. He was never unwilling to take calls and if he was unable to deal with a call/issue he forwarded it on to an external provider. He denied that POS observed him working on a daily basis.
He could not understand why POS had issues in relation to his work performance. He accepted that he was placed on a PIP (a copy of which was opened to the Tribunal) on 7 July 2013. This plan contained a targeted date for improvement of 1 August 2013. This date was subsequently extended and the claimant denied that the PIP was ever completed. He gave evidence that MD told him during the PIP process that he was improving but he was then placed on garden leave, on full pay with immediate effect by way of letter dated 3 September 2013, pending an investigation.
The claimant was then invited to attend a disciplinary hearing which took place on 9 October 2013. The claimant was afforded union representation at this meeting and a copy of the minutes of the meeting was opened to the Tribunal. By way of letter dated 15 October 2013 signed by KH the claimant was informed that his employment was terminated. This letter stated inter alia:
“…. You will recall from the management case that your contract of employment states that Your employment with the Company may in some circumstances be conditional on the approval of third parties at whose premises you either work at or visit. If the third party either does not grant, or subsequently withdraws, permission for you to be on their site then the Company will consider all alternative options to maintain your continued employment by the Company. If however, in the sole opinion of the Company, no alternatives can be found then the Company reserves the right to terminate your employment in line with our disciplinary policy.
As a consequence of this and, in the absence of any reasonable alternative employment opportunities, I must advise you that, in line with the terms of your contract of employment, I have no alternative but to terminate your employment with ESP with effect from Tuesday 15 October, 2013…..”
The claimant gave further evidence that he was never asked to move to Cork airport. He provided further evidence to the Tribunal, both verbal and documentary in relation to his efforts to mitigate his loss since the termination of his employment with the respondent. He also confirmed he sought to change his career and re-train in a different field, and had not sought alternative work in the I.T. sector since December 2013.
Determination
It is clear from the adduced evidence and documentation in this case that circumstances leading to the termination of the claimant’s employment arose solely from a complaint by the respondent’s customer, and the claimant’s direct line manager gave evidence that he had no issues with the claimant’s performance.
The Tribunal find that the respondent did not provide adequate support training to the claimant following the introduction of new systems. The Tribunal find that the PIP invoked did not sufficiently support the claimant in addressing the items complained, and the respondent believed the claimant was making good progress with the PIP. The Tribunal find that the respondent failed to carry out a full and proper investigation into the claimant’s performance. The Tribunal are not satisfied the respondent exhausted all reasonable efforts to re-locate the claimant.
The Tribunal also noted from the adduced evidence and documentation in this case that the respondent was experiencing financial difficulties relating to its Shannon based activities. From the claimant’s point of view, the decision to terminate his role and cease his employment there was sudden, harsh, and disproportionate.
The Tribunal notes that when terminating an employee’s employment, the onus is on the employer to act in a fair, open and professional manner. However, in this case the respondent behaved in a closed, unfair and less than professional fashion in dealing with the claimant. His input and attitude was not sought, no matrix or comparable analysis was conducted, no alternatives offered and no appeal process was mentioned to him. In bypassing that process alone the respondent’s termination of the claimant’s employment was unfair.
In considering the claimant’ claim and his efforts to mitigate his losses, the Tribunal noted the claimant submitted documentary evidence which clearly showed job applications by him pre-dating his dismissal.
The claim under the Unfair Dismissals Acts, 1967 succeeds and the Tribunal awards the claimant €4,500.00 as compensation under those Acts.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)