UD418/2012

EMPLOYMENT APPEALS TRIBUNAL

CLAIM(S) OF:                                                                      CASE NO.

Samirai Usman                                                                       UD418/2012

against

Staunton Sports T/A Elvery Sports

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Mr. T. Ryan

Members:     Mr. T. O'Sullivan

heard this case in Mullingar on 29 August 2013

                         and 28 January 2014

                         and 15 April 2014

Representation:

_______________

Claimant(s):

Mardyke House,The Bawn, Athlone, Co. Westmeath

Respondent(s):

The determination of the Tribunal was as follows:-

An unfair dismissal claim was brought on behalf of a non-national sales advisor whose employment at the store of a sports retailer commenced in August 2006 and ended with her dismissal in mid-September 2011.

The respondent’s position was that it had used performance improvement planning to try to ameliorate the work of the claimant but that it had not been able to rectify the claimant’s conduct such that it ultimately felt obliged to justifiably end the claimant’s employment for reasons of deficient conduct and competence as permitted by Section 6 (4) (a) and (b) of the Unfair Dismissals Act, 1977. The respondent claimed to have acted fairly and properly in accordance with all fair procedures required by the constitution, unfair dismissal legislation and natural justice.

MK worked for the respondent from 2006 and became assistant manager in 2008. In 2011 the respondent introduced a customer service programme called You Are The Difference (Y.A.T.D.). The claimant was shown an accompanying video and a booklet was left in the canteen. Staff performance was recorded on sheets but all details of monitoring was not brought to the attention of the claimant although her usage of the programme and lack of knowledge thereof were significant factors in her ultimate dismissal.

In cross-examination it was put to MK that the claimant had been forced to work on unpaid after a shift. MK replied that it was not permitted to leave at the end of a shift until an employee’s section was ready for the next morning. Also, the claimant’s punctuality was not perfect. MK gave examples of what she considered to have been poor customer service by the claimant including an occasion when a customer who looked for a thigh support was given a knee support by the claimant. MK denied that the claimant’s complaints about working unpaid time had been the catalyst for the claimant receiving a final written warning in June 2011.

NC (who no longer worked for the respondent) told the Tribunal that he had arrived at the store as assistant manager in late 2010 and that he had signed the claimant’s warning. Explaining Y.A.T.D. he said that negative questions were not to be put to a customer who was to be greeted and allowed to settle in. NC would need to monitor customer service without being too obvious. Feedback could then be given promptly. NC noticed things such as customers waiting at a till not being acknowledged and the claimant being abrupt in that she did not say please or thank you.

NC denied having had a difficult relationship with the claimant. He considered that he treated her the same as he treated everyone else. He also denied devoting an excessive amount of time to watching her but he felt that she was continually not doing her job properly.

Asked if all staff knew that the Y.A.T.D. programme required them to perform to a very high level such that all necessary boxes be ticked, NC said that he could not recall.

AJ told the Tribunal that in September 2010 she joined the respondent in an administrative HR capacity but that she was no longer with the company. AJ said that the claimant failed in her monitoring sheets and that there was no option but to dismiss her. The claimant had been on a final written warning and had been dismissed for customer service inconsistencies.

Giving sworn testimony, the claimant said that she started with the respondent in 2006 after a F.A.S. course. She trained with the respondent and all was fine at the start. She had children in 2001 and 2003 and then following a third pregnancy in 2009 she had a third child and was on maternity leave in 2010. She was happy at that stage in her employment. She returned to work in late 2010 and within a month attended a staff meeting held by the respondent. Her job was going well.

Around March 2011 NC came to work at the claimant’s store. The claimant did not get on well with him. He would ask her to stay back after the store closed. MK was not pleased that the claimant had a problem with that.

(When it was objected that this had not been put to MK the claimant’s representative said that the claimant had raised her concerns about child-minding.)

The claimant told the Tribunal that it was not convenient for her to stay on after closing because she had to collect a child from a child-minder. The store closed at 6.00 p.m. most evenings and at 9.00 p.m. on a Thursday. Subsequently, the claimant’s hours were cut. She went to MK.

Between March 2011 and September 2011 the claimant became subject to disciplinary discussion and review of her performance. The respondent had introduced a detailed customer service system called You Are The Difference (Y.A.T.D.).

The claimant did not deny that she might arrive a minute late but told the Tribunal that neither this nor her timekeeping in general was bad adding that different timepieces might show slightly different times.

Following a Performance Improvement Plan (P.I.P.) in April 2011 the claimant tried to improve. She felt she was good at sales.

Regarding Y.A.T.D. the claimant told the Tribunal that she was called to the staffroom and that the respondent played a training video for about fifteen minutes. She thought that all staff members saw it individually. She was not given a Y.A.T.D. book but she thought that she knew what she needed from the video. She did not recall doing roleplay with NC.

The claimant would do preparation for store promotions and told the Tribunal that she had no problem working with MK but NC would ask her to stay to do jobs in the store after the last customer was gone.

The claimant disagreed with Y.A.T.D.-based assessments of her performance which rated her at one per cent or less and said that she had given “awful” customer service. The claimant opined that staff had to give customers time (to browse) and that she should have been commended when she made good sales rather than getting no praise. She did not think that she had got good enough feedback and thought that perhaps she should have asked for a pay-rise (given her length of service).

The claimant pointed out that there were no complaints from customers but that her hours were cut to as few as three per day. She thought that she provided good service but did not deny that she could be a minute late. She felt that she had been unfairly assessed and mentioned that other staff were also on the floor but were not asked to answer for their customer service. She disputed the respondent's view that her customer service was not good. She would greet every customer but sometimes the store was very busy. A complaint made had not been fair. The claimant said that it was necessary to tell a customer the benefits of a product. Some customer said they were grand (when offered assistance), left and did not come back.

The claimant did her best but she was not happy. She felt dreadful going in because of the pressure. She had nobody to whom she could talk. She thought that her performance was good. Her till serving was o.k. but she was disciplined on all other matters. She brought a colleague (AD) to a meeting when permitted to do so but thought it unfair of the respondent to give her a warning. If a requested product was not in the store she could only offer another one and should not have been blamed if a customer were particular about what was wanted and left the store. She insisted that had been prepared to phone to follow up subsequently even if the respondent disputed this.

The claimant felt that the respondent had not given her time to improve and had not been comfortable with receiving written warning although she did not appeal. She did not really understand what was going on. She felt that the respondent wanted her to go. The respondent had been her first employer in Ireland.

Regarding a dispute over what part of the body for which a customer wanted to buy a support the claimant said that she had not been told what kind of support the lady wanted. She had done her best but, if the respondent had had to step in, that had been because the claimant had not been given all necessary information. Sometimes, supports had got mixed up but the claimant had been looking for the right one. She thought she had been following Y.A.T.D. guidelines.

The claimant denied that she had not been smiling as desired at work and said that she would not make a good comment to a customer about a product unless it were true. She felt that she had been upbraided for nothing. She did not deny having asked customers if they were o.k. but they had said they were fine. A girl on mid-floor had been asked if she was o.k. but had not responded because she was just looking around possibly just to find her friends. The claimant did not feel that she had deserved a zero per cent rating from NC even if he had given her higher ratings right up to one hundred per cent on other occasions. She did feel that she was giving one hundred per cent, that she had the knowledge her job needed, that she was not happy to be subject to disciplinary investigation and felt that a final written warning should be overturned on appeal.

The claimant admitted having been wrong in describing a customer as impatient and substituted the word agitated. The claimant felt restricted to handing a customer products that were available as opposed to a product that was not in the store.

It was put to the claimant that the respondent felt that she had not said please when asking a customer for payment. The claimant replied that she could not recall this but that she believed that she would have said please and thank you. She added that she had never had complaints about her customer service but had told NC that she had to leave for her child when the store closed.

The claimant’s comment on alleged absence of improvement in her performance was that the respondent had “decided to pick issues” with her and had said that she always complained about having to look after her children to the extent that she did not feel the point in appealing. She thought that she had not been treated fairly. Asked if she had raised any issue with NC, the claimant replied that she had complained to him but that he had said that his girlfriend had a child and that the claimant could not complain but, rather, should be well able for the work.

The claimant stated that she had no problem with MK but only with NC.

On the subject of loss incurred after her dismissal the claimant said that she had not obtained any employment apart from two weeks with a marketing company from which she made no money. She had applied for jobs and had gone for interviews. She had applied for a F.A.S. course to be a carer.

Under cross-examination, the claimant did not deny that she only had evidence of seeking work from a couple of employers but said that she had done many copies of her curriculum vitae. Rejecting the allegation that her efforts had not been significant she conceded that she had left the commission-based marketing job she had got because she was not making money.

The claimant did not accept that she had been fairly dismissed for poor performance saying that she had given her all and that the respondent had not been fair to her given that she had followed procedures and felt that she had done enough.

It was put to her that she and the respondent had different ideas of customer service especially after the respondent had adopted the Y.A.T.D. system. The claimant replied that one did “not have to be in the customer’s face all the time”. When it was put to her that Y.A.T.D. did not allow for a customer to be alone for long and that four minutes was not o.k. the claimant replied by acknowledging that Y.A.T.D. was quite good but said she had done o.k. and opined that the customer had to be able to see the shop attendant.

Asked why she had signed Y.A.T.D. sheets, the claimant said that she had had done what she was asked and that she had had no option even in the case of a written warning.

When it was put to the claimant that the respondent had invested in Y.A.T.D. and that she had not complied she replied that the respondent had unfairly assessed her performance. She said that NC had always been checking up on her but that it had not come to her mind to complain about him. She felt that she had followed “Y.A.T.D. to the best of my ability” and had succeeded in approaching customers and making sales. She did not deny that she had omitted to add comments to workplace documentation when it was open to her to do so. She acknowledged that the respondent had identified circumstances for her to improve but said that her hours were reduced. She did not deny signing warning documentation and receiving very low percentage ratings but said that she had not intended anything improper.

When it was put to the claimant that she could have complained about NC at a meeting not attended by NC the claimant replied that she was only put on a P.I.P. about customer service and that she had not had to mention NC. She accepted that she had received one hundred per cent at least once but said that the respondent had been very particular about what it wanted.

It was put to the claimant that the respondent had been prepared to duplicate a disciplinary stage rather than escalate quickly to the next stage but that within a week the claimant could get a zero per cent grading and that the lady who needed a knee support had specified that three times. The claimant replied that she had had to burrow through product racks.

The claimant said that the respondent had been wrong when giving her a final written warning for non-improvement of her customer service. When it was put to her that she had not thanked people for waiting the claimant replied that she did not know how long they had been waiting.

The claimant disagreed that she had been rude or abrupt (when receiving payment) saying that she told the customer the amount due whereupon the customer tendered the amount. The claimant added that she could attend to many customers on a particular day.

When it was put to the claimant that she appeared to have thought there was no need to say please or thanks to a customer the claimant replied that she was not rude to the customer.

The respondent’s position was that the respondent had given the claimant every chance to improve and had disciplined her over specific complaints but that she had not improved despite opportunities. The claimant did not accept this.

In re-examination the claimant accepted that she was not perfect and said that she had wanted to improve. She was a single mother who was not paid extra when asked stay on after the shop closed. She could not assume her child-minder would not want payment for extra time worked. When the respondent told the claimant that she was dismissed the respondent gave her the dismissal letter.

Determination:

Having carefully considered the evidence adduced, the Tribunal allows the claim under the Unfair Dismissals Acts, 1977 to 2007, finding that that there was a procedural unfair dismissal. On the day of the claimant’s final meeting with her employer, the respondent took the decision to dismiss, prepared the letter of dismissal and gave it to her all within ten minutes. However, the Tribunal was satisfied that the claimant contributed to her dismissal. In all the circumstances the Tribunal considered that compensation was the most appropriate redress. Taking the totality of the evidence from each side, the Tribunal awards the claimant the sum of €10,000.00 (ten thousand euro) under the abovementioned Unfair Dismissals Acts, 1977 to 2007.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)