EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
UD1019/2012
Martin Kotleba claimant
against
Hertz Europe Service Centre Limited, respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms J. McGovern B.L.
Members: Mr. M. Flood
Mr. P. Woods
heard this claim at Dublin on 11th December 2013 and 13th, 14th May 2014
Representation:
Claimant: Ms Síle Proinsias O’Kelly Merrick B L instructed
Mr Francis Rowan, FX Rowan & Co, Solicitors, 14 Upper Pembroke Street,
Dublin 2
Respondent: Ms Claire Callanan, Beauchamps, Solicitors, Riverside Two,
Sir John Rogerson's Quay, Dublin 2
The determination of the Tribunal was as follows:
Respondent’s Case
PI gave evidence on behalf of the respondent, a car rental company with a base in the USA and Europe. She has been employed with the respondent for fourteen years and has worked for the past eleven years in the accounts department. This department is based in Dublin and is responsible for eight European countries. In September 2009 she worked in TACO (travel agency commission) and CDP (corporate discount payment) area which deals with commissions and bonuses are given to corporate clients. The claimant reported to her and his main role was to set up commissions and bonuses in the TACO system and to calculate commission for the said corporate clients. This was a large and valuable portion of the respondents business. The claimant’s role also included answering internal and external customer queries, providing analysis reports and the reconciliation of accounts. In September 2009 PI was responsible for the group and was on the claimant’s senior team.
On her return from maternity leave in 2010 the department was going through a change and it was a difficult time for the team. Senior management were addressing costs across the business and the team had to meet new organisational needs as a result. The respondent had a performance review system called PMED (Performance Plan and Employee Development) under which the client scored 2 for the year 2010. This score is considered below par in that the claimant is not performing at the level expected by his employer. PI was of the opinion that the claimant needed to improve and in February 2011 discussed his PMED for the year ahead with him setting out his objectives in consultation with him. The claimant did not disagree with the objectives set out.
She believed she was quite positive in her comments to the claimant regarding his performance. The main issues were lack of accounting knowledge (he only scored a 1 on the 2010 PMED for his accounting knowledge) and lack of attention to detail when reconciling accounts. PI continued to have meetings with claimant in order to keep in touch with him in relation to his work. She attended a meeting with the claimant on the 18 May 2011 and she reminded him that she was there to help him with more training if he needed it. .A performance review meeting was held on the 22 June 2011 attended by the witness, the claimant and JF as part of the PMED.
PI gave evidence that by August 2011 the claimant had not improved and indicated at a meeting on 10th August 2011 that she would commence a capability process for the claimant. This process is aimed at employees who are not performing sufficiently well in their role and afford them an opportunity to improve before disciplinary action is taken. As part of her evidence PI set out a number of problems with the claimant’s work which included continued lack of attention to detail, lack of accuracy in certain accounting tasks, mistakes in reports generated for senior management, not answering customer queries in a timely fashion and mistakes in his reconciliations. A number of examples of the various mistakes over a period of time were opened to the Tribunal. PI had particular difficulties in relation to the reconciliation element of the claimants work given he had worked in the reconciliations department for three years before applying for the TACO/CDP supervisor role and interviewing successfully for it. PI accepted that the claimant did ask for training in relation to his role and she believes that the respondent provided the relevant training to him over time. PI does not know what training could be given to the claimant that would assist him with his attention to detail and lack of accuracy in certain tasks. PI continued to have regular meetings with the claimant from August onwards as part of the capability process. Between August and November PI continued to have weekly meetings with the claimant however it was her evidence that his work did not improve. He asked her for step by step training in relation to reconciliations which she believes she provided. His response to customer queries remained low and he continued to lack accuracy in his work. Every four weeks NF and HM from HR attended meetings with the PI and the claimant to monitor progress. PI gave evidence that over the years she had supervised a number of teams and she never encountered another employee like the claimant. The claimant constantly made mistakes and she felt that his work had to be checked to ensure it was correct. She also felt that he had no interest in his job. She believes that he was well aware of the possible sanctions arising from the capability process including dismissal.
By December 2011 PI indicated that the claimant had been under review for nine months and part of a capability process for four of those months but there had been minimal improvement in his work. The capability process was unsuccessful therefore a decision was taken by PI and two other colleagues to dismiss the claimant unless a suitable alternative position could be found within the company. No alternative roles were available therefore the claimant was dismissed by letter dated 19th December 2011. PI had no further input after this point save for attending with the appeals board in relation to the claimant’s subsequent appeal.
NF gave evidence on behalf of the respondent. Prior to the recommencement of the hearing on 13th May 2014 the claimant sought and was granted a witness summons for NF to attend with certain documents and give evidence on behalf of the claimant from another division of the EAT. This summons was withdrawn on consent once it was pointed out by the Tribunal that counsel for the claimant would not be able to cross examine her own witness.
NF gave evidence in relation the claimant’s appeal of the decision to dismiss. The appeal board consisted of three people one of whom was chosen by the claimant, the other a business manager and the third a human resource manager. The latter presented evidence to the Tribunal with the aid of the appeal’s written decision. Also in conducting this appeal this witness relied somewhat on verbal accounts given by the claimant’s team leader as to his performance. NF believed that this was not a company oriented appeal.
As part of the appeals process the witness addressed the issues of accountability, bonuses, communication, objectivity, and training as these topics were the main subjects raised by the claimant. Following a review of the relevant files and documents, meetings with the claimant, meetings with PI together with many meetings of the appeals board it issued its conclusions. Based on all those aspects the board upheld the decision to dismiss the claimant.
Claimant’s Case
The claimant commenced employment with the respondent in November 2004 at its main operating office in Swords, county Dublin. He held a degree in economics. From that date up to early 2009 he held various administrative and finance roles within the company. As he changed roles he ascended up the ladder and received pay increases with each new role. He had no problems in his various roles until early 2009. In February 2009 he took up the position of TACO/CDP specialist. When he interviewed for the job some months earlier he believed he was interviewing for the role of TACO specialist (with no CDP function). It was only when he commenced the role that he realised this. He did accept that he had previously applied for the role of TACO/CDP specialist in November 2008.
Another colleague (FA) also started in that section around the same time. That co-worker held the position of a TACO/ CDP specialist. The claimant gave evidence that in early 2009 his colleague FA received two weeks fundamental training in the TACO area that he missed as he was required to stay in his old role for an extended period of time. He believes this fundamental training was never offered to him again by the respondent and caused problems for him in performing his role from 2011 onwards. The claimant did not have a good working relationship with FA although they worked in the same area.
In this regard the claimant stated that it was incorrect for PI to suggest that learning the TACO system only needed two hours. He maintained that he did not receive full training for this role for various reasons and the training he did get was inadequate. He was critical of the way the scoring was evaluated for his PMED marks on the grounds of subjectivity. Due to his low scoring he was selected to attend performance review meetings. There were up to nine such meetings with his team leader from March to August 2011. Details and notes of those meetings were submitted to the Tribunal. The claimant explained and justified any shortcomings in his work on his lack of training. He indicated that he regularly had to ask FA for training about the TACO system as FA was the only one with the knowledge. He did not ask PI as she would not be as familiar with the system.
At the conclusion of those meetings the claimant received a formal invitation from the respondent to undertake a capability process. That invitation was issued as the respondent concluded his work performance did not improve as anticipated during the performance sessions. A panel consisting of a human resource consultant, another manager and the team leader was formed for this exercise. Most of those participants met the claimant a number of times from 24 August 2011 to 7 December. The claimant’s ongoing work performance was the subject of those meetings.. He believes the continued meetings as part of the PMED and/or the capability process was a form of harassment, was designed to overwhelm him and militate against his performance improving. He believes that the whole process was a well-orchestrated ‘exit strategy’ in order to get him out of his job. He felt he was suffering from burnout and when he raised this with PI she did not help him in any meaningful way. He arranged a meeting with the company’s occupational therapist and does not believe PI adequately followed up on this issue with him.
At all times he felt that he was not presented with clear goals in relation to his role. He had the impression that his performance was improving and that he was doing better than the figures presented suggested. By way of example to the Tribunal he conducted his own review of the figures used by the respondent in relation to his response to customer queries and complaints and feels he was doing much better than his colleague FA (who was not being reviewed on his figures). While he accepted he made some mistakes the claimant stated that unreasonable expectations were placed on him from his employer that was not placed on other employees. He feels the scoring on the PMED was skewed and that he was given a lower rating in order to balance out a higher rating given to another employee. He also maintained that the respondent did not adhere to its own procedures during that process and that he was denied natural justice. He felt that the capability process should have been stopped once he showed any improvement, and he believes he did improve. He had difficulty getting notes of the various meetings from PI and/or the HR representatives and was not always advised in advance of a meeting what would be discussed.
The claimant disagreed with the finding of the panel which was relayed on 7 December 2011 that he was unsuccessful in the capability process. He was not written to by the respondent indicating that his job was at risk but when questioned by the Tribunal he accepted that he was aware that dismissal was a possible sanction should the capability process not be successful.. At a follow up meeting on 19 December 2011 the human resource manager told him that his employment was to be terminated with immediate effect. A formal letter of dismissal issued that day confirming that decision. The claimant did not accept the respondent was disappointed to see his employment end as written in the letter. He appealed that sanction. He does not believe that there were no alternative positions in the company and gave evidence that no such alternatives were even discussed with him on 7th December 2011.
The appeal board comprised a senior human resource employee, another employee nominated by the claimant, and another manager. That appeal board met over a dozen times between 12 January and 6 March 2012. The claimant made appearances on two of those occasions. It issued a lengthy decision at the end of March in which it upheld the respondent’s decision. The claimant gave evidence of his loss and efforts to mitigate that loss.
Determination
The Tribunal carefully considered the evidence given in this case. From the outset this case was fraught, aggressive and heavily contested between the parties. Extensive evidence was given on behalf of both claimant and the respondent and all of the witnesses, at one stage or another, were evasive and oblique in their answers.
Ultimately the Tribunal has to decide whether or not the decision to dismiss the claimant was fair and reasonable in all of the circumstances. A dismissal is fair only if it arises for one of the reasons set out in Section 6(4) of the Unfair Dismissals Act 1977 which provides a follows:
Without prejudice to the generality of 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 claimant was employed by the respondent since 2004 and held a number of different positions within the company. His employment was uneventful up until 2010 when it is accepted by both parties that changes occurred within the accounts department. At the time of the dismissal he held the position of TACO/CDP specialist. While it was his evidence that while he did apply for those position in October 2008 he thought he was interviewing for the position of TACO specialist only in January 2009. The Tribunal believe, based on documentation opened to it, that he did apply for the position of TACO/CDP specialist and that he did know that this is the position he interviewed for and subsequently accepted.
The Tribunal heard extensive evidence and opinion concerning the claimant’s training for this position. He stated that he did not receive any or enough training to allow him to do this job and that he consistently requested the said training from either FA (his immediate colleague) or PI. The Tribunal do not accept the contention that the claimant was not in a position to do his job without the said training as it appears he had been doing it adequately from early 2009 and it was only in early 2011 that matters escalated. During the course of this hearing it was never actually made clear to the Tribunal what training the claimant needed or wanted. He worked in the accounts department for a number of years. He gave evidence that he had a degree in economics and that he worked in the role of ‘reconciliations accountant’ for three years prior to starting as TACO/CDP. A considerable part of the TACO/CDP role, which the claimant applied for, was accounts reconciliations therefore it is difficult to see what exactly he wanted from his employer in his regard. Certain training was offered and given to the claimant. The claimant indicated that he approached his colleague FA a number of times in relation to training – he felt that FA had more experience than him and FA had received what the claimant termed ‘essential training’ in 2009. The claimant had not received this training and therefore FA was the only one he could ask. The Tribunal finds this evidence contradictory in that the claimant also said he had a bad working relationship with FA and ultimately ended up communicating with him by email only.
The respondent highlighted a number of issues that required improvement by the claimant in the performance of his role. The Tribunal accepts the claimant’s evidence that he did improve in certain aspects but on the whole the respondent did not believe the improvement to be adequate. The respondent believed that the claimant was making, and continued to make, fundamental mistakes in his role that were having a knock on effect in other areas of the business. It was the claimant’s position that he felt like he was on trial during most of the period in question, the mistakes referred to were exaggerated and not as problematic as suggested by the respondent and his employer did not listen to him when he raised his own issues. It appeared to the Tribunal, however, from the evidence given by the claimant, that he was making mistakes, that his work had to be checked at certain intervals and that he did not take responsibility for a large portion of the performance related issues raised with him.
While it has to be said that the respondent’s procedures were somewhat unusual the Tribunal believe that the claimant was given every opportunity to improve his performance and based on his evidence before the Tribunal, was aware of the consequences of failing to improve i.e. dismissal. Following the completion of the capability process the claimant was informed that his performance had not improved sufficiently and that unless there was suitable alternative work available, he would be dismissed. No alternative was available and the claimant was, in fact, dismissed. The claimant went through an extensive appeals process following which the dismissal was upheld.
Counsel for the claimant made submissions on the issue of fair procedures and it was her position that none had been adopted in this case by the respondent. It is accepted that the claimant was not written to indicating that dismissal was a possible sanction for failure to successfully complete the capability process and that in advance of certain meetings he was not necessarily told what would be discussed therein however the Tribunal does not believe that this of itself renders the dismissal unfair. We believe the claimant was aware that he could be dismissed for failing to complete the process successfully and in fact he agreed with this in evidence.
Having assessed the relevant evidence the Tribunal believes that although the respondent did not act perfectly in this case the ultimate decision to dismiss was reasonable in the circumstances therefore the Tribunal does not believe that the claimant was unfairly dismissed accordingly the claim under the Unfair Dismissals Acts 1977 to 2007 must fail. In coming to this conclusion the Tribunal applied section 6(4)(a) of the 1977 Act and accept that the claimant was dismissed for performance related reasons.
The respondent made an application in relation to the claimant’s loss and his availability for work in that he was registered for unemployment benefit in both Slovakia and Ireland at the same time and therefore could not be available for work in both jurisdictions. The respondent’s advisor asked the Tribunal to take this into consideration when assessing the claimant’s credibility. The Tribunal does not accede to that submission. There is no provision in the Irish legislation requiring a claimant to be available for work in this jurisdiction only. The claimant’s advisor indicated to the Tribunal that he was registered in both jurisdictions because when he returned to Slovakia he was required to register there to establish his residency however he only drew social welfare in this jurisdiction, which the Tribunal accept he was entitled to do. While the Tribunal does not have to consider loss of earnings (including the correspondence sent to the Tribunal on 22nd May 2014 and 3rd June 2014) at this juncture it must be noted that the Tribunal does not accept that the claimant’s credibility was impugned by this issue.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)