EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO.
Neil Duggan - claimant UD535/2015
against the recommendation of the Rights Commissioner in the case of:
Mitie Facilities Management Limited
- appellant
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms P. Mcgrath B.L.
Members: Mr F. Cunneen
Mr T. Brady
heard this appeal at Dublin on 27th April 2016
and 12th September 2016
Representation:
_______________
Appellant(s) :
Mr Brian Nolan, Teeu, 6 Gardiner Row, Dublin 1
Respondent(s) :
Ms Aisling McDevitt, Ibec, 84/86 Lower Baggot Street,
Dublin 2
The determination of the Tribunal was as follows:-
The Tribunal has carefully considered the evidence adduced over the course of two days of Hearings. The claimant has brought an appeal from the Rights Commissioner’s finding of the 30th of March 2015 wherein the claimant’s complaint of Unfair Dismissal by reason of unfair selection for redundancy was not well founded.
The claimant had been employed as a ‘handyman’ on the Bank of Ireland facilities contract for up to ten years. By 2014 the contract was held by the respondent company who had taken over the contract from its previous holder who had been the claimant’s employer until a Transfer of Undertaking had moved the claimant’s employment to the respondent.
The claimant had an excellent work record and was and still is a clearly skilled and capable handyman although he held no recognised qualification to distinguish him as an electrician, plumber or fitter etc.
After the due diligence and Transfer of Undertaking process had been undertaken and in light of the significant shift in contract type being offered by Bank of Ireland, it became apparent that the “technical team” (of which the claimant was one) would have to be reduced. In particular it is noted that Bank of Ireland was only prepared to engage the respondent in relation to preventative type work rather than reactive type work. This is significant insofar as the claimant had been working in a reactive capacity for a large part of his pre – transfer of undertaking employment
The claimant was made aware of the fact that redundancy (of both a voluntary and compulsory type) were going to take place by way of letter dated the 31st of March 2015.It is accepted that meetings to discuss this matter had taken place but that the claimant had not been available for these meetings and therefore was at a slight disadvantage of not knowing how the interview to which he was invited was going to be conducted.
It is accepted that the company operated a reasonable process insofar as all 14 technical people were brought in for similar type interviews at which each individual was asked the same question as all of his colleagues. The Tribunal does note that the questions were somewhat inappropriate for the job type. Interviews lasted from 40 minutes up to 60 minutes and it is noted that the claimant says his lasted only 20 minutes.
The interview notes were opened at length to the Tribunal and there can be no doubt that the taciturn uncooperative individual portrayed by the respondent witnesses is entirely different to the articulate able individual who presented himself to the Tribunal at the hearing.It is however understandable perhaps that with the benefit of hindsight the claimant is better able to explain his skills and abilities. It is clear that it was only when he went for interview that the claimant was faced with complicated convoluted questions to which he was expected to provide answers “on the hoof”.
The respondent says each of the technical team was faced with the same questions in the same way and therefore once the respondent demonstrates consistent application then the process must be seen as reasonable and fair.
The Tribunal has to be struck, however, at how out of kilter the claimant’s marking is compared to all of his colleagues. He scored in the 40’s while all of his colleagues scored in the 80’s or 90’s.There can be no doubt then that the interview questions, answers or general deportment gave rise to a remarkably low scoring in his case.
It is worth noting that the claimant’s lack of a recognised technical qualification went very much against him as it is clear that every person retained by the company had a qualification of some sort. The Tribunal has been invited to consider that even if the claimant had the technical qualification and scored the highest points in the question, his answers to the balance of the questions would still have dragged him down.
The Tribunal cannot ignore the weight attached to the effective need to have a technical qualification and the claimant was at a disadvantage of between 12% and 15% from the outset of this interview process. This was in an area where most of the field scored 87% or higher and does actually leave the claimant on an uneven playing field.
In considering the pre-interview set up the Tribunal is mindful of the fact that the respondent knew or ought to have known the skillset of the employees they’d need transferred to their employment. They knew or ought to have known the claimant’s skills from his 10 years of service and yet within three months of the transfer the claimant was made redundant without any regard had to the possibility of retaining the claimant or upskilling him.
On balance the Tribunal finds that the respondent’s process was structured against the claimant from the start. The claimant had no technical qualification and had performed badly at an interview for which he was ill prepared and was given no credit for the skills, service and exemplary record he was able to point to.
Finding the claimant to be unfairly selected for redundancy The Tribunal awards compensation to the amount of €25,000 and recognises that a part payment of this amount has already been made by of a purported redundancy payment in the amount of circa €13,000.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)