EMPLOYMENT APPEALS TRIBUNAL
CLAIMS OF: CASE NO.
EMPLOYEE -claimant UD828/2012
MN602/2012
WT264/2012
Against
EMPLOYER -respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
ORGANISATION OF WORKING TIME ACT, 1997
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms S. Behan
Members: Mr D. Hegarty
Mr D. McEvoy
heard this claim at Cork on 7th November 2013
Representation:
_______________
Claimant: Mr. Darren O'Keeffe, James Riordan & Partners, Solicitors,
50 South Mall, Cork
Respondent: In Person
Dismissal is not in dispute in this case.
Respondent’s Case
The respondent company imports and distributes medical devices. The claimant was employed as a sales man in November 2010. He was employed to develop a specific product in the Munster area. The claimant was hired because he had experience in Neurosurgical sales and 25 years’ experience in Orthopaedic sales and he produced a personal reference from an Orthopaedic Surgeon in the area. The combination of experience and contacts led the respondent to employ the claimant on a much higher salary than normal.
He was given an initial 8 month probation period in order to give him time to establish sales. There are no financial targets set in the first year of employment; the only obligation on new sales staff is to cover their costs. The claimant was sent to Germany for specific training on the product he was going to be selling. The claimant’s main task was to get into operating theatres to see what devices were needed and in use. The claimant could then establish what devices the respondent supplied that could replace any devices already in use. The claimant was employed to sell a generic blade for a surgical tool that could be used instead of the expensive blade sold by the surgical tool’s manufacturer. It is “a high quality, high volume single use product.”
The respondent MD managed the claimant directly and spoke to him on a very regular basis. The claimant did not manage to sell any of the Orthopaedic blades or get them into any hospitals for trials. No sales had materialised as a result of the claimant’s contacts. The MD gave evidence of the e-mail correspondence between himself and the claimant detailing the claimant’s work; there is no mention of the blades. In June 2011 the claimant’s probation was extended due to his poor performance. The MD spoke to the claimant about his poor performance on a regular basis but did not document these warnings.
A meeting was held in September 2011 where the MD told the claimant that his position was under threat due to his poor performance. The MD decided to give the claimant time to improve rather than dismissing him in September. By November 2011 the claimant’s performance had not improved so at a meeting the MD informed him that he was being dismissed. A settlement was agreed upon between the MD and the claimant which included him keeping his company car at the claimant’s request. There is an appeal process in the respondent which the claimant did not avail of. The claimant’s position as a dedicated sales person for the orthopaedic product was not replaced but sales of that product have still increased year on year.
Claimant’s Case
The claimant gave evidence that the medical sales business is a “slow burn”. The MD was more concerned with information gathering than sales; the claimant was never told that sales were required. When the claimant asked about the status of his probation he was informed that the extension ‘was just a formality.’ The claimant was not aware of any difficulties with his performance or that his job was under threat. The claimant disputes that the training he received in Germany was relevant to his position.
The September meeting that the MD gave evidence about was a general sales meeting with all the sales staff; not an individual performance evaluation. The claimant had no notice of the dismissal meeting. The claimant had not received any warnings about his performance from the MD. The claimant did not see any point in appealing the decision to dismiss him.
The claimant gave evidence of his loss and his attempts to mitigate his loss.
Determination
The Tribunal find that the respondent acted reasonably in dismissing the claimant and determine that the dismissal was fair in all the circumstances. The Tribunal have regard to the fact that the claimant signed a waiver in full and final settlement and received over and above his statutory entitlements in accepting the company car and full pay for the month of November.
The claims under the Unfair Dismissals Acts, 1977 to 2007, the Minimum Notice and Terms of Employment Acts, 1973 to 2005 and the Organisation of Working Time Act, 1997 all fail.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)