EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
EMPLOYEE – claimant UD873/2012
against
EMPLOYER – respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms J. McGovern BL
Members: Mr E. Handley
Mr P. Trehy
heard this case in Dublin on 29 October 2013
Representation:
Claimant: Mr Paul Henry of SIPTU,
Liberty Hall, Dublin 1
Respondent: In person
The determination of the Tribunal was as follows:-
Respondent’s case
The respondent is a cosmetics retailer. They operate concession shops within department stores.
The area manager gave evidence. Her role is developing and training account managers. There are 16 account managers in her area.
The area manager started working for the respondent in March 2009; three months after the claimant had been recruited. The claimant was recruited as a Business Development Manager and to facilitate her learning the business she was first given a position as an account manager. However the claimant never became competent in the account manager role and as a result she could not assume a BDM role.
In June 2009 the claimant was not performing. Targets were not met. The store managers where she was based were unhappy with her attitude and her team felt unsupported. Following this negative feedback the claimant was moved to a second store and her contract was changed to show her job title as account manager but her terms and conditions remained unchanged. The area manager had lower expectations of the claimant from this point.
In October 2009 the area manager moved to Northern Ireland. She remained with the respondent and continues to work for it. Then in October 2011 the area manager was asked to manage the store where the claimant was based. The claimant had had a problematic relationship with her previous area manager. At that time the claimant was on a Journey so Far program to improve her performance and to give her coaching to help her reach her targets. The area manager visited the claimant every fortnight but the claimant’s performance did not improve. Also the cosmetics manager in this third store that the claimant had worked in was becoming concerned by the claimant’s performance.
On 23rd November 2011 the area manager met the claimant that her performance urgently needed to improve. The area manager was looking to escalate the process to a more formal level. After the meeting with the claimant, the store manager, called the area manager to his office. It was not a scheduled meeting and the store manager was in an aggressive mood. He felt that the area manager was not taking enough action to manage the claimant’s poor performance. The store manager was threatening to withdraw store approval which would mean that the claimant could no longer work in the store. The area manager told the store manager that she was unlikely to be able to replace the account manager before the Christmas season if her store approval was withdrawn. The area manager contacted the country manager to inform her of developments. The area manager continued to support the claimant.
The area manager visited the store on 8th December 2011 and again on 15th December 2011. On the latter date the area manager was called to a meeting with the store manager. He had received two complaints from customers relating to the claimant. He removed her store approval with immediate effect. The area manager took the claimant to an office and explained the situation to her. It was clearly stated in the claimant’s contract that she would be removed from her position if store approval was removed from her. The area manager told the claimant that she was suspended with full pay and that the country manager and the HR manager would be in touch with her.
The area manager had no further involvement with the process.
The HR director gave evidence. She is based in the UK but provides support for the Irish business. The Business Development Manager was created to ensure succession in the business by linking account managers and area managers. The HR manager met the claimant after she was recruited and did a competency based interview with her. When a person is recruited, there is a transition period during which they learn their role. There were concerns about the claimant from early on. She did not crack the account manager role by gaining product knowledge and supporting her team. So they could not add the skills required of a BDM.
When the claimant was moved to the third store, the HR manager hoped the move would allow the claimant to flourish. A BDM is not assigned to a particular store and so store approval in not required for that role. In contrast an account manager is assigned to a particular store and store approval is essential. This requirement is made clear in the staff handbook.
Following the Journey So Far process the HR manager and the country manager met with the claimant. They took her for coffee and highlighted the importance of her having great performance in December. The meeting was relaxed but they stressed the need for improved performance from the claimant.
The HR manager told the Tribunal that the withdrawal of store approval is a rare occurrence but when it happens it is always a challenge. Without store approval the claimant could not work. Because a major store had withdrawn approval no other store was likely to give her approval. The claimant was dismissed because store approval had been withdrawn. There was no vacancy for an account manager at that time. It was in her contract that the claimant could be removed if store approval was withdrawn from her. The HR manager did not consider the options of demoting the claimant or putting her on lay-off pending a suitable vacancy becoming available.
The HR manager accepted that the respondent’s disciplinary process had not been invoked on the claimant. The claimant had never received a written warning.
The country manager gave evidence. She had been involved with the claimant from the start. At the recruitment interview the country manager felt that the claimant could be developed to become part of the field team. The claimant was placed in a busy store to build her knowledge and skills and start the process of becoming a BDM. Unfortunately the country manager did not see the positive development she had hoped for. Also the claimant did not get positive feedback from store managers about the claimant. The country manager was concerned very quickly. She did not see the claimant developing BDM skills. Three area managers found the claimant difficult and felt that they needed to spend an undue amount of time coaching her.
The claimant was moved to a second store where she worked with a different area manager and a different team. She would have the opportunity to crack the account manager role before looking again at the BDM role. The claimant felt that she was not being well managed but the country manager did not agree.
When it became clear that a BDM role was not in the immediate future for the claimant moving the claimant to a third store became a possibility. The country manager believed that the claimant had some good skills but it was never her role to manage the claimant directly. The country manager manages remotely through the area managers’ network. It seemed more likely that the claimant would meet her targets in the third store, with a lower profile and less high expectations. The claimant was given significant support by the area manager. The economic situation was difficult and the claimant needed to meet her reduced targets.
After store approval was withdrawn from the claimant the country manager phoned her on her mobile phone. The claimant did not answer her phone. The country manager wanted to meet the claimant face to face and proposed 3 options for the meeting. The claimant, at short notice, said she could not attend. The country manager felt let down. It was a busy time of year and the country manager had rearranged her schedule to facilitate the claimant. No meeting occurred.
There were no vacancies within the respondent’s business at that time and as a result the country manager wrote to the claimant terminating her employment. The decision to dismiss the claimant followed from her store approval being withdrawn.
At a meeting with the claimant and her representative in January 2012 the claimant did not ask for her job back. The country manager did not offer the claimant a sales position in a busier store.
Claimant’s Case
The claimant gave evidence. She had been recruited as a BDM in January 2009. She had worked in two stores with short periods in two other stores before she was transferred to the third store. She had no issues with her managers and no issues were raised with her.
The area manager did the Journey So Far with her. She agreed with the findings but it was always difficult to meet targets in the third store.
The claimant did have a meeting over coffee with the area manager and the country manager. It was very casual and relaxed. She was not given a letter spelling out her targets for the following months and stating that disciplinary action could result if her performance did not improve.
On 15th December 2011 the claimant came to work as scheduled at 12.30pm. The area manager was in the store that day. After about 2 hours one of the sales assistants told the claimant that the area manager wanted to see her in the buyers’ room. The claimant was reluctant to leave the counter because she did not want to miss any possible sales. When she met the area manager she was told that the store manager wanted to talk to her. She was not offered representation for the meeting. Her store approval was withdrawn and the store manager brought her to collect her coat.
The next day the claimant was upset. The area manager phoned her and she had a missed call from the country manager.
At the informal meeting that she attended with her union rep she was offered a demotion to a busier store. She did not accept the offer because she would have had struggled to pay her mortgage if her salary was reduced. The claimant liked her job and had worked hard.
Determination
The Tribunal carefully considered the evidence adduced. The claimant was summarily dismissed when the manager of the store, where she sold cosmetics for the respondent, withdrew her store approval. In spite of the contractual position that allowed the store to withdraw approval for any reason, the respondent is not released from its obligation under employment legislation to afford the claimant fair procedures leading up to any disciplinary action.
The Tribunal preferred the respondent’s evidence on the question of the claimant’s performance. The claimant’s managers felt that they were dealing with her performance issues in a constructive and sensitive way. However when her performance continued to fall short of her reduced targets, the respondent did not invoke their disciplinary procedure and clearly communicate to the claimant the seriousness of her situation.
The Tribunal finds that the dismissal of the claimant was an unfair dismissal due to the lack of proper procedures used to effect the dismissal.
The claim under the Unfair Dismissals Acts 1977 to 2007 succeeds. The claimant’s poor performance on the job contributed to her dismissal. The Tribunal awards the claimant the sum of €13,000.00.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)