UD1579/2011

EMPLOYMENT APPEALS TRIBUNAL

                                    UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms J. McGovern B.L.

Members:     Mr T. O'Grady

                     Mr J. Jordan

heard this claim at Dublin on 9 January,

13 June and 5 July 2013

Representation:

Claimant:        

         Ms Fiona McMorrow BL instructed by Ms Maura Mullen on the first day,

         Mr Peter Connolly on the subsequent days, both of Peter Connolly Solicitors,

         First Floor, 6 Capel Street, Dublin 1

Respondent:   

         Ms Aoife Newton, Solicitor, IBEC on the first day, Ms Mary Fay BL instructed by

         Ms Pauline O’Hara, Solicitor, IBEC Confederation House,

         84/86 Lower Baggot Street, Dublin 2 on the subsequent days

The determination of the Tribunal was as follows:-

The claimant initially worked for the respondent in one of its city centre stores in 2005 but then left. He was re-hired by the respondent in May 2007 from which time he worked as a sales assistant in the respondent’s Tallaght store. After a year the claimant moved to the respondent’s Bray store where he was employed as senior sales assistant and second in command. In December 2009 the claimant was promoted to manager of one of the respondent’s smaller stores (the store) in the South Dublin area.

The store ranked between 35 and 40 in terms of the 40 stores operated by the respondent and shortly after the claimant moved to the store a successful business development manager, whose sales were channelled through the store, left the respondent’s employ. This affected the level of sales in the store. Aside from this claimant was very good at sales, especially in terms of upselling accessories, and demonstrated very good knowledge of the respondent’s policies and procedures.

Customer complaints, relating to the behaviour of the claimant, were received by the respondent relating to alleged incidents on 19, 23 and 27 August and 3 and 13 September 2010. On 24 September 2010 the Area Manager (AM) asked the claimant to consider leaving his position as manager of the store and relocating to the Tallaght store as senior sales assistant where he would be able to earn more commission and therefore maintain his income at the same level he had been achieving in the store. The respondent’s position was that AM felt that the claimant was under pressure in the store and the move to Tallaght would have relieved that pressure on him. The claimant considered this offer to effectively be a demotion and did not want to avail of it. The claimant’s position was that AM warned him that if he refused to move ‘his life in the respondent would be hell’.

On 29 October 2010 the claimant was involved in an incident which occurred when a customer was not happy with a product and requested a refund. As the packaging had been opened, in line with the respondent’s policy, the claimant refused a refund. The customer was dissatisfied with this refusal and left the product, a high-end handset, on the counter and left the store. The claimant followed the customer out of the store and left the product in a bag on the ground outside the store.

The customer complained and on 10 November 2010 the respondent’s human resource specialist (HR) wrote to the claimant bringing this complaint and the earlier complaints of 19, 23 and 27 August and 3 and 13 September 2010 to his attention. He was invited to a disciplinary meeting on 15 November 2010. The claimant was warned that the conduct outlined in the complaints amounted to gross misconduct and if proven could result in sanction up to and including dismissal.

The disciplinary meeting on 15 November 2010 was conducted by the Head of Retail and Indirect Channels (IC) with HR accompanying him. AM was also in attendance. The claimant was accompanied by his union representative (UR). On 19 November 2010 IC wrote to the claimant to advise him that he had decided to issue a final written warning of twelve month duration for gross misconduct in that he had treated the customer on 29 October 2010 in a rude and inappropriate manner. There was no mention of any of the other complaints in this letter. The claimant was offered the opportunity to appeal this decision to the Consumer Director (CD). The claimant appealed the final written warning decision to CD but this appeal was unsuccessful.

Further complaints concerning the claimant were received in respect of incidents on 28 December 2010, 26 and 27 January and 3 February 2011 in relation to his conduct with customers. The incident on 3 February came from the spouse of a business customer in regard to the claimant’s refusal to allow the customer to avail of his company issue mobile phone in order for her to contact the business customer for a vital approval for the upgrade she was requesting.

On 3 February 2011 AM wrote to the claimant setting out the four complaints, reminding him that he was on a final written warning and inviting him to a disciplinary meeting on 7 February 2011. AM stated that he now had serious concerns about the claimant’s ability to carry out his role as store manager. This meeting was conducted by IC again with HR, AM, the claimant and UR in attendance.

On 17 February 2011 IC wrote to the claimant informing him that he was to be placed on a performance improvement plan (PIP) that was to be reviewed after three months. For various reasons this PIP was never completed.

Soon after starting work in the store AM had granted the claimant a concession whereby he did not always have to be in the store for its 9-00am opening time but could arrive at 9-30am. On 14 April 2011 AM wrote to the claimant to raise three issues in respect of his conduct, namely store opening hours, customer complaint and unauthorised annual leave. The claimant was invited to a disciplinary meeting on 18 April 2011 and again warned that as he was on a final written warning dismissal was a potential outcome. There were the same attendees as at the previous meetings.

On 27 April IC wrote to the claimant to inform him that he was to be dismissed with immediate effect having failed to instruct store employees to follow company procedures in respect of store opening hours, taking unauthorised annual leave, ongoing customer complaints against him and having failed to make the necessary improvements under the PIP. The claimant exercised his right of appeal of this decision to CD and the appeal was heard on 30 May 2011. On 20 June 2011 CD wrote to the claimant to inform him of the rejection of his appeal.

The claimant felt that much of what happened post January/February 2011 was for form’s sake only. He felt the respondent wanted him out of the managerial position in the store he was in. He believes that he was replaced by a senior sales assistant from another store so the respondent would not have to pay managerial wages. He felt this was supported by the fact that he was previously asked to move to the Tallaght store as a sales assistant. During the course of the various meeting he felt that he was not listened to and in relation to the customer complaints the respondent took the customers side each time no matter what the claimant said.

Determination

The Tribunal considered all the evidence given over three days very carefully. Much of the evidence surrounded the various customer complaints against the claimant and the reasons why the claimant was dismissed. It is the function of this Tribunal to assess whether those reasons for dismissal were fair and reasonable and that the sanction was proportionate.

As set out above the reasons for the claimant’s dismissal were set out in the letter dated 27^th April 2011. During the course of the hearing it transpired that the Performance Improvement Plan mentioned therein was never actually concluded with the claimant yet this was used as part of the reason to dismiss him. In fact, it was hard to determine from the evidence if this PIP was ever even started with the claimant. Similarly, the Tribunal heard evidence that the claimant did not actually take unauthorised leave. The leave was ultimately approved following email correspondence with PC although there had been some questions as to whether AM had authorised it prior to taking his own leave. Regardless, this issue of annual leave was detailed in the letter of dismissal. The Tribunal is satisfied that a reasonable explanation was proffered in evidence by the claimant as to why the store opened late some mornings. The Tribunal accepts that a small number of the complaints registered against the claimant demonstrate less than satisfactory conduct on his part however dismissal was not the appropriate sanction and respondent does not seem to have considered alternative employment for the claimant within the company in April 2011.

In conclusion the sanction of dismissal for gross misconduct was disproportionate in all of the circumstances. Accordingly, the Tribunal is satisfied that the dismissal was unfair and awards €55,000-00 under the Unfair Dismissals Acts, 1977 to 2007.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)