Complainant

Respondent

Parties

Pádraig McMahon

Opentext Ireland Limited

Representatives

  Self-Represented

Mr Mark O’Connell BL instructed by Dillon Eustace LLP

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00039554-001

02/09/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00039555-001

02/09/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00039584-001 DUPLICATE

03/09/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00036214-001

18/05/2020

The Complainant worked as Technical Support Manager with the Respondent. The Respondent company creates enterprise software for business clients. The Complainant commenced employment with the Respondent  in November 2014 and his employment was terminated on 12 June 2020 by reason of redundancy which the Complainant submits was an unfair dismissal based on a contention  of unfair selection for redundancy. His closing monthly salary was €4398.83; net €3640.  The Complainant further submits  that he was discriminated against on the basis of his gender by not receiving equal pay when compared with a named female work colleague. The Complainant also submits that he was discriminated against on grounds of disability in that he submits that the Respondent did not afford him reasonable accommodation for his disability. He further claims that he was  victimised under the Employment Equality Acts 1998-2015.

The Respondent denies all claims.

CA-00036214-001 Equal Pay:

The Complainant gave evidence under affirmation. He named a female comparator whom he believed was on a higher rate of pay than him, who was doing like work. The Complainant described grievances he had with the Respondent with regard to  being put on what he claims was an incorrect pay grade. His submission in his  complaint form  stated “Please note also that  in April and the start of 2019, I received over double salary increases which would lead  me to believe that I was correct and should have been on a TEM1 (Manager Job code) all along like all the other Team Managers. A female manager started on a much higher salary scale as a TEM1, again until the company is transparent with the WRC and me on this, I can’t prove what I am saying is correct. The company needs to show how a male manager is paid a Supervisory salary and not a manager salary like the rest of the Managers.”

An ex-work colleague of the Complainant gave evidence on affirmation that the comparator  female manager carried out the same work as the Complainant. In cross examination the witness accepted that he could not give the specific job specifications, qualifications, experience nor any evidence to show  that the comparator was paid more than the Complainant.  

 CA-00039554-001: Disability Discrimination.

Reasonable Accommodation:

The Complainant stated that he had Post Traumatic Stress Syndrome (PTSD) which debilitated him greatly. He  said that when he came back from a period of illness attributed to his PTSD, he was asked to vacate his office and he was also put on a Performance Improvement Plan (PIP). The company doctor had advised that he return to work on a phased basis, which was facilitated by the Respondent. In his original  complaint form,  the Complainant stated that the lack of transparency and unwillingness to investigate his grievances on job codes resulted in him being signed off sick due to mental health issues in September 2019 until January 2020.

Victimisation:

The Complainant said that he had sent an ES 1 form (Equal Status Act) from on 24 April to the Respondent HR manager. No copy of the form was exhibited, and the Complainant acknowledged that it was an incorrect form but nevertheless any reasonable reading suggested that he was about to embark on an equality claim and that he was victimised by way of unfair selection for redundancy  under the Employment Equality Acts on the grounds of disability.

CA-00039555-001: Unfair Dismissal – Unfair Section for Redundancy:

The Complainant acknowledged that a redundancy situation came into being for the Respondent’s worldwide operations after an  announcement by the CEO in early summer. On May 26 he was informed by members of management in a phone call that he had been selected for Redundancy. He said he was given no prior  warning that his position was under threat. He was completely shaken by this and caught off guard. He submits that the matrix used by the Respondent was vague as he had been sick for the seven reckonable months of the Financial Year (FY2020). He contends that the matrix used by the Respondent was unachievable.

He was  made redundant via phone on 12 June 2020 after a consultation period which took thirteen days over three meetings. He stated that he was too shocked to respond effectively to the Respondent’s position. He did not appeal this decision.

The Complainant submits that the Respondent advertised a Technical Support Manager online  in December 2020.

In cross-examination, the Complainant accepted that there was a  redundancy situation and furthermore that he did not offer alternatives to redundancy at the consultation meetings with management.

Mitigation of Loss:

The Complainant gave evidence that he was medically advised to take time out from everything associated with work for some weeks therefore he did not actively seek work until the end of August 2020. He submitted evidence of actively seeking work and was eventually successful in July 2021 when he  commenced employment at a higher rate of pay.

CA-00036214-001 Equal Pay:

The Respondent submits that the Complainant has not made out any case on equal pay. The Respondent argues that the Complainant has offered no evidence that the comparator engaged in like work nor that she was paid more than him. A HR manager  gave evidence on affirmation  that there was a system of individualisation of remuneration where there was no relationship between job codes and salaries in that people were paid in line with competencies on a scale of ‘min-mid-max’.

CA-00039554-001: Disability Discrimination.

The Respondent submits that when the Complainant returned from work, he was reasonably accommodated on the instructions of the company doctor in that a phased return to work was arranged for him.

The Respondent denies victimisation in that they were never informed of an intention to take a claim nor was there any EE1 information form sent by the Complainant , in line with the Employment Equality Acts 1998 - 2015 (the Acts). The Respondent submits that the Complainant did not give any evidence outside of alleged discriminatory dismissal which was not before the WRC in this instance.

CA-00039555-001: Unfair Dismissal – Unfair Section for Redundancy:

The Respondent submits that the Complainant‘s employment was terminated by reason of redundancy and the Respondent relies on the provisions of the Unfair Dismissals Act, 1977 as amended and the Redundancy Payments Act, 1967, as amended.

In particular, the Respondent relies  on the provisions of Section 6 (4) (c) of the Unfair Dismissals Act, 1977 as amended, the relevant section of which provides as follows:

(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

( a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

( b) the conduct of the employee,

( c) the redundancy of the employee, and

( d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

The Respondent  also relies on the provisions of Section 7 (2) of the Redundancy Payments Act, 1967, as amended which provides as follows:

7(2) For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if for one or more reasons not related to the employee concerned the dismissal is attributable wholly or mainly to— ……….

(c) the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or Complaint’s employment by reason of redundancy.

The Respondent submits  that prior to making the Complainant redundant, the Respondent entered into a lengthy and detailed consultation process with the Complainant, ultimately reaching a conclusion that his employment was to be terminated by way of redundancy.

A senior manager who was involved in the decision to make the Complainant  gave evidence under affirmation that the global  CEO asked for 5% staff reduction worldwide and that it was decided locally that six positions should go.- four Individual contracts and two managerial roles. One of the managerial roles had been terminated in previous months. He gave evidence of constructing a matrix of competencies between six employees. The headings were:

1.       Performance F20 to date

2.       Functional and Technical depth

3.       Skill and Qualifications and Relevant Experience adjust for each Role using the job description

4.       Performance against Competencies (plus 1-2 other relevant OT competencies).

The witness stated that the Complainant had the lowest mark when all were added up and compared. The witness said that there was a consultation period of thirteen days with the Complainant  when three meetings were held but that the Complainant forwarded no suggestions or alternatives to his redundancy, nor did he appeal the decision.

The Witness stated that the subsequent managerial position that was advertised in December 2020 was for a new cloud project that had no connection with the work that the Complainant had been doing.

In cross examination the witness stated that he  was not aware of the Complainant’s mental health issues, therefore, they were not factored into his decision making. The witness accepted that neither  the  Complainant, nor the other five  candidates, were informed directly in advance  that their specific positions  were in jeopardy. He accepted also that none of the candidates were  informed about the matrix exercise before it was undertaken nor were they consulted during the process.

The Respondent submits it  followed a fair, reasonable, and transparent procedure prior to deciding to terminate the Complainant’s role and it afforded the Complainant every opportunity to be accompanied, to seek information and propose any alternatives he wished. The Respondent had also considered whether there were any alternatives to redundancy. The decision was within the range of reasonable responses open to the Respondent in the difficult circumstances in which it found itself. The Complainant did not appeal that decision. In all the circumstances, the Respondent submits that at the time the decision was made to terminate the Complainant’s employment by reason of redundancy, a genuine redundancy situation existed within the meaning of Section 7 (2) of the Redundancy Payments Act, 1967, as amended and that accordingly, the dismissal must be deemed not to be an unfair dismissal by virtue of Section 6 (4) (c) of the Unfair Dismissals Act, 1977 as amended.

CA-00036214-001 Equal Pay:

The Complainant submitted that a female  manager who did like work to him was on a higher rate of pay and that this difference in remuneration was attributable to his gender,  contrary to the Equal Pay provisions of the  Employment Equality Acts 1998-2015 (the Acts).

The Applicable Law:

Section 19 of the Acts provides:

(1) It shall be a term of the contract under which A is employed that, subject to this Act, A shall at any time be entitled to the same rate of remuneration for the work which A is employed to do as B who, at that or any other relevant time, is employed to do like work by the same or an associated employer.

(2) In this section “relevant time” in relation to a particular time is any time (including a time before the commencement of this section) during the 3 years which precede, or the 3 years which follow, the particular time.

(3) For the purposes of this Part, where B's employer is an associated employer of A's employer, A and B shall not be regarded as employed to do like work unless they both have the same or reasonably comparable terms and conditions of employment.

 The burden of proof is on the Complainant to present, in the first instance, facts from which it can be inferred that he was treated less favourably on the discriminatory ground cited. Section 85A of the Act states as follows:

(1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a complainant.

(3) Where, in any proceedings arising from a reference of a matter by the Commission to the [Director General] under section 85(1), facts are established by or on behalf of the Commission from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the respondent to prove the contrary.

(4) In this section “discrimination” includes—

(a) indirect discrimination,

(b) victimisation,

(c) harassment or sexual harassment,

(d) the inclusion in a collective agreement to which section 9 applies of a provision which, by virtue of that section, is null and void.

In Arturs Valpeters v Melbury Developments Ltd 21 (2010) ELR 64 the Labour Court gave guidance on how the above section is to be interpreted.:

“Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the complainant first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.”

The Complainant in this case provided a name of a female comparator directly employed by the Respondent whom he claimed carried out like work and was on a higher rate of pay than him. He asserted that the difference in pay was attributable to his gender. The Complainant produced no evidence of the difference in pay between the comparator and himself. An ex-colleague of the Complainant gave evidence that he believed that the named comparator, whom he described as his manager, did like work to that of the Complainant. However, when pressed in cross-examination he accepted that he did not know the pay,  educational qualifications, competencies nor job specification of the comparator. 

The HR person gave plausible evidence of the individualisation of remuneration at the Respondent company where pay was not based on gender but that both men and women were paid according to their experience, educational qualifications, and competencies. I am satisfied after hearing the evidence and submissions on this complaint that the Complainant engaged in mere speculation and made assertions that were not grounded on evidence. The mere fact that the Complainant is  male and the comparator female, devoid of any other evidence, is not sufficient in itself  for the Complainant to succeed  therefore I find that he did not establish a prima facie complaint under the equal pay provision of the Acts.

CA-00039554-01: Disability Discrimination.

The Complainant submitted that he was discriminated against on the grounds of disability, with two elements to his complaint: (1) He was not afforded reasonable accommodation for his disability and (2) The Respondent victimised him by unfairly selecting him for redundancy. There was no dispute that the Complainant had a disability arising from PTSD mental health issues.

Reasonable Accommodation:

The Complainant asserts that the Respondent did not accommodate his disability when he came back from sick pay in early 2020. However, the uncontested evidence in this case was that the Respondent accommodated the Complainant in a phased return to work after his illness. The Complainant offered no  evidence of a refusal of reasonable accommodation. I find that the Complainant did not establish a prima facie case of being refused reasonable accommodation.

Victimisation:

The Complainant claimed that the Respondent victimised him on the grounds  of his disability in unfairly selecting him for redundancy. He did not give evidence on any other instances of  victimisation. The Complainant originally submitted a discriminatory dismissal case based on unfair selection for redundancy in conjunction with a complaint, based on the same set of purported  facts, under the Unfair Dismissals Act.

In accordance with Section 101(4)(a) of the Employment Equality Act 1998 and the prohibition of  parallel complaints, the complaint under the Employment Equality Act 1998 was withdrawn by  the Complainant on  December 18, 2020. Therefore, I deem that, on the basis of no other evidence of victimisation being presented, that the Complainant did not demonstrate a causal link between the taking of  proceedings on the grounds of disability, and any other adverse treatment by the Respondent. I find that the Complainant did not establish a prima facie case of victimisation.   

CA-00039555-001: Unfair Dismissal – Unfair Section for Redundancy:

The first issue that has to be addressed is whether there was a valid redundancy situation in the Respondent company. The burden of proof rests with the Respondent to establish that the dismissal was wholly redundancy connected and the Respondent must then justify the process whereby the Complainant was selected for redundancy, was fair and transparent in all respects.

The Applicable Law:

Section 7(2) of the Redundancy Payments Act 1967, as amended, provides in Section 7(2)(c):

The fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise.

Charleton J. in the High Court case of   JVC Europe v Jerome Ponisi  [2012] 23 E.L.R. 70 stated:

“That it may be prudent, and a mark of a genuine redundancy, that an employer prior to making an employee redundant examine alternatives to letting that employee go and conduct a fair selection procedure. As a matter of contract where selection processes for redundancy or a consultation process to discover alternatives to redundancy are contained in a collective agreement or an individual employment contract, these should be followed. That a fair procedure may be used to disguise deceptive conduct and followed in form only in order to mask an ulterior motive.”

Section 6(7) refers to the reasonableness or otherwise of the conduct of an employer, where it provides:

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if [the adjudication officer or the Labour Court], as the case may be, considers it appropriate to do so—

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act 1993) of section 7(2) of this Act.  

The Complainant accepted in evidence that there was a valid redundancy situation therefore the question now to be answered is whether the  redundancy process was carried out fairly and transparently.             

A senior manager with the Respondent gave evidence that he helped to construct a matrix based on the following headings:

1.       Performance F20 to date

2.       Functional and Technical depth

3.       Skill and Qualifications and Relevant Experience adjust for each Role using the job description.

4.       Performance against Competencies (plus 1-2 other relevant OT competencies).

A first reading of this matrix suggests that it falls within the reasonableness test within the Act. However, when further inquiry is made, unsettling facts arise. Firstly, no satisfactory detail outlining   the tests regarding the Complainant’s scores when compared to others, was given. Secondly, this vagueness was accompanied by an admitted procedural lack  of transparency by the Respondent witness when he accepted that the candidates being assessed were never informed in advance that their jobs were at risk of redundancy, nor were they aware that the actual assessments were being carried out. The Complainant was told, rather unexpectedly, that he had been assessed amongst a cohort of colleagues and that he had the lowest score. He was also amongst the more senior of the cohort.  On the evidence given, I find that the purported  matrix system deployed by the Respondent was unacceptably  vague and  did not meet the standard of transparency as expected of a reasonable employer.   

The Respondent gave evidence that it met the Complainant three times in the space of thirteen days but that the Complainant failed to give workable alternatives in what were termed consultative meetings. Given the gravity of the situation for the Complainant, I found such a timescale to be somewhat rushed where no evidence of urgency was given by the Respondent. The Complainant gave convincing evidence of his fragile state of mind at the time and he how he remained shocked and incapacitated during the meetings, albeit he did not take sick leave.  The senior manager’s evidence that he was not aware of the vulnerability of the Complainant, was not plausible. Evidence was given that he facilitated a phase return to work for the Complainant, in line with medical advice, earlier in the year. Furthermore, the task of allocating alternative work in order to avoid redundancy may even involve considering dismissing an employee with shorter service. This alternative was referred to by the  Labour Court in Students Union Commercial Services Ltd v Traynor UDD 26/2017 when citing   Mulcahy  v  Kelly [1993] E.L.R. 35, where it stated  that the  duty of a Respondent in a valid redundancy situation  may involve locating alternative work within the organisation, even if this involves dismissing another employee with shorter service. There was no evidence proffered by the Respondent that such an alternative, or any other alternative, was considered.   Moreover, further evidence was given that the Respondent had advertised for  a manager, at the same level as that of the Complainant, in December 2020. The Respondent witness  asserted that this was for an entirely new project, but I am not convinced  that such a project was not foreseeable in June  of that year when the Complainant was made redundant.

Having heard all the evidence on this matter I am satisfied that though there was a valid redundancy situation, I conclude that the process was not carried out fairly, transparently nor was there a proper consultative process where alternatives to redundancy were considered. I therefore find that the Respondent did not act reasonably in conducting the redundancy process and that, as a result, the Complainant was unfairly dismissed.

Redress:

Section 7 of the Act, in its relevant parts, provides:

7. Redress for unfair dismissal:

(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances:

…. (c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances, or

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid as is just and equitable having regard to all the circumstances,

and the reference in the foregoing paragraphs to an employer shall be construed, in a case where the ownership of the business of the employer changes after the dismissal, as references to the person who, by virtue of the change, becomes entitled to such ownership.

…. (3) In this section—

“financial loss”, in relation to the dismissal of an employee, includes any actual loss and any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts 1967 to [2014], or in relation to superannuation;

“remuneration” includes allowances pay and benefits in lieu of or in addition to pay.

Evidence was given that the Complainant found employment at a higher rate of pay in July 2021. The Complainant had not looked for work from the date of his dismissal on 12 June 2020 until the end of  August in that year. I  find that the reckonable period for loss was eleven months. The Respondent accepted that the Complainant had given satisfactory evidence of adequate mitigation of loss. The Respondent stated that the Complainant had received €7,000 by way of a   statutory redundancy sum and that this should be deducted from any final award if I should find in favour of the Complainant. I am satisfied that the Complaint had mitigated his loss significantly in finding employment that paid approximately €8,500 more  per annum than his previous employment, Therefore, the element of prospective loss should be reduced accordingly. Having regard to all the circumstances in this claim, I find it is just and equitable to conclude  that the compensatory sum should be the equivalent of eleven months remuneration, less the statutory redundancy sum, which is €41,400.  

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

CA-00036214-001 Equal Pay: I decide that the Complainant  did not establish a prima facie case  under the equal pay provision of the Acts and therefore I find the Respondent did not discriminate against him on gender grounds.

CA-00039554-01: Disability Discrimination. I decide that the Complainant did not establish a prima facie case on the grounds of disability that he was discriminated against by the Respondent in the provision of reasonable accommodation or otherwise that he was victimised under the Acts. I Find that the Respondent did not discriminate against the Complainant on the grounds of disability.

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

CA-00039555-01: Unfair Dismissal – Unfair Section for Redundancy: I decide that that the Complainant was unfairly dismissed, and the Respondent shall pay the Complainant compensation of €41,400.

Equal Pay, Disability, Gender, Employment Equality Acts 1998-2015, Reasonable Accommodation, Unfair Dismissal, Unfair Selection for Redundancy.