A manager for a global tech company who argued he was not receiving the same pay as a female colleague has failed in a discrimination claim but has been awarded over €40,000 by the Workplace Relations Commission for unfair dismissal.
Pádraig McMahon worked as technical support manager with Opentext Ireland Limited, who create enterprise software for business clients. He commenced work in November 2014, but it was terminated in June 2020 by reason of redundancy.
Mr McMahon had complained to the Workplace Relations Commission that this was an unfair dismissal based on his contention of unfair selection for redundancy.
Mr McMahon further submitted to the WRC that he was discriminated against on the basis of his gender by not receiving equal pay when compared with a female work colleague.
PTSD
He also submitted that he was discriminated against on grounds of disability in that Opentext did not afford him reasonable accommodation for his disability, which was Post Traumatic Stress Disorder (PTSD).
Mr McMahon named a female colleague whom he believed was on a higher rate of pay than him, and who he submitted was doing like work.
"A female manager started on a much higher salary scale," submitted Mr McMahon. "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,” claimed Mr McMahon.
An ex-work colleague of Mr McMahon's gave evidence that the female manager carried out the same work as the complainant. However, in cross-examination, the witness accepted that he could not give the specific job specifications, qualifications, experience, or evidence to show that she was paid more than the complainant.
Mr McMahon said that he had 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 was put on a Performance Improvement Plan (PIP).
Phased return
The company doctor had advised that he return to work on a phased basis, which was facilitated by Opentext. Mr McMahon said the lack of transparency and unwillingness to investigate his grievances resulted in him being signed off sick due to mental health issues in September 2019 until January 2020.
In May 2020, Mr McMahon was informed by management he had been selected for redundancy. He said he was given no prior warning that his position was under threat and said he was "completely shaken" by this and caught off guard.
Mr McMahon was made redundant via phone in June 2020 after a consultation period which took thirteen days over three meetings. Mr McMahon said that he was too shocked to respond effectively to the respondent’s position and did not appeal the decision.
In cross-examination by Mark O’Connell BL, for Opentext, Mr McMahon accepted that there was indeed a real redundancy situation and that he did not offer alternatives to redundancy at meetings with management.
Opentext submitted that Mr McMahon had not made out any case on equal pay. The respondent argued that Mr McMahon offered no evidence that the female employee engaged in like work, nor that she was paid more than him.
The respondent also submitted that when Mr McMahon 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.
Redundancy
A senior manager gave evidence that the global CEO asked for a five per cent staff reduction worldwide and that it was decided locally that six positions should go.
The company submitted that Mr McMahon had the lowest marks when all criteria for redundancy selection were added up.
In cross-examination, the witness said he was not aware of Mr McMahon’s mental health issues and, therefore, they were not factored into his decision-making.
Regarding the gender complaint, in his decision, adjudicating officer Thomas O'Driscoll said: "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".
Regarding the complaints on grounds of disability and victimisation, Mr O'Driscoll said that Mr McMahon had not established a prima facie case in either complaint.
However, regarding the tests for redundancy applied by the company, Mr O'Driscoll said "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. 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," said Mr O'Driscoll.
"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," said Mr O'Driscoll.
"The complainant gave convincing evidence of his fragile state of mind at the time and how he remained shocked and incapacitated during the meetings, albeit he did not take sick leave. A senior manager’s evidence that he was not aware of the vulnerability of the complainant was not plausible given that he facilitated a phased return to work for the complainant, in line with medical advice.
"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," said Mr O'Driscoll who found Mr McMahon had been unfairly dismissed.
"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 paid, which is €41,400," he said.
