EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
UD994/2013
Stephane Citti
against
Apple Distribution International T/A Apple Computer
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. E. Murray
Members: Ms M. Sweeney
Mr. D. McEvoy
heard this claim at Cork on 27th August 2014
Representation:
Claimant: In person
Respondent: G J Moloney, Solicitors, City Quarter, Lapp's Quay, Cork
Respondent’s case:
The Claimant in this case was a sales executive with the Respondent company. The Tribunal heard evidence from JMA who was the Claimant’s line manager in the “Inside sales team”. He explained that they dealt with transaction selling and business solutions. They were concerned with three markets which were Spain Portugal and Italy. In 2011 he had 17 people under his supervision.
In 2012 the company changed its “sales model” from a “fulfilment role” to a “customer needs and complete solutions role”. This involved a change in the interaction required with the customer. All of the employees including the Claimant received extensive training from a dedicated training team within the company. The training was mandatory and consisted of eight modules.
The witness met the Claimant for his “Annual Review” (AR), and he explained to the Claimant that he had done a good job when using the old sales model but that he would have to “move forward” and adapt to the new model. The rest of the sales team had moved on to the new model. The overall sales improved with the change in work practice.
The witness explained that along with the change in work model there was a change in payments system. The staff had formerly been paid salaries plus commission on their sales, and this changed to an increased salary and a team bonus. The bonus was not just based on sales but on customer satisfaction criteria also. He had met the Claimant about his performance but there was a lack of improvement and there was a “lack of engagement” from the Claimant. The Claimant appeared to have lost interest and appeared unwilling or unable to move to the new work model. The witness managed the process and he did not see any improvement from the Claimant.
The witness explained that the company devised a performance Improvement Plan (PIP) for the Claimant. He explained that the PIP was not part of a disciplinary process. The Claimant refused to sign the PIP. The PIP was put in place and implemented but the Claimant refused to engage with it at all. The witness was asked if the Claimant was simply seeking to have his employment terminated and the witness indicated he believed this was the case.
He then instigated a disciplinary process however the Claimant did not wish to go through the process and sent a number of e-mails in the following terms ……..
“thanks no problem jesus you had to as this is part of your job, I have understood the message, clearly I am in the red zone… coping now”
“due to the fact that as an Apple Employee I do not feel free to talk openly, I believe that this meeting will lead us to a deadlock. Therefore we should probably envisage to move to 3.7 stage 4 of the procedure. In that case a member of the HR team would be required to attend to this meeting to make the appropriate arrangements”.
“Hi Jesus
Again a short notice for this announcement and again I feel that it is a chocking behaviour. Anyhow I will attend to the meeting schedules today at 1 pm within the context of a business review only. I do not wish to review a performance plan I have not endorsed. If it was the case I would have no choice but to leave the meeting room immediately. I am now asking Apple to stop harassing me with a second performance plan”.
“Hi Darragh
Thanks for your answer. After having perused the PIP process on the HR internal website, it appears that the final step is about the termination of the employee employment, same as in the disciplinary hearing I had to fact up with. This next review will be again so humiliating that I have again no choice than asking you to jump to the final step in order to get out of our status quo and move on”.
During the disciplinary process the company were looking for a gesture from the Claimant to say that he will improve and engage with the new system, but that never happened. The Claimant never told them that he would try to improve.
The Tribunal heard evidence from DH who is JMA’s manager. He explained that he spoke with the Claimant and JMA. It became clear to him that the Claimant was not going to change or engage with the system the company was using. The Claimant expressed a wish to move on and he understood the Claimant wanted to negotiate a settlement.
Ultimately the respondent invoked a disciplinary process which lead to the Claimant’s termination. The Claimant did not appeal the dismissal.
Claimant’s case:
The Claimant explained that he was a dedicated and successful sales person and at all times had done his job to the best of his ability. He advised that formerly the revenue that he personally generated was one third of the total generated by a team of six. He explained that he always wished to act on an ethical way with his customers who trusted him. The revised system of selling that the Respondent wished to implement he felt lacked integrity. He felt that the customers were being sold unnecessary ancillary applications and insurance. He considered that he had been doing the fundamental job of selling the company’s products well, but he was not comfortable with the changes that were being proposed. He did engage with the PIP and he was unhappy with the various reviews because he felt “badly addressed” at meetings and felt “intimidated and humiliated” by the process. He indicated that the disciplinary process was for him “the end of the World” because he had never been involved in a disciplinary matter before.
He acknowledged the contents of the e-mails that he had sent and that he would have indicated to his employer his desire to leave the company.
Determination:
Having heard the evidence the Tribunal takes the view that the Claimant in this case is an individual who made a career as a successful sales person and who had strong beliefs in relation to ethical selling. He failed however to engage with a reasonable request from his employers to adapt to a new system of working. The demands made on the Claimant were not unreasonable and the Claimant was given every opportunity over a period of months to act in accordance with his employer’s wishes.
The Tribunal can find no fault with the disciplinary process adopted by the Respondent and consequently they are unable to make a finding of unfair dismissal in this case.
Consequently the claim under the Unfair Dismissals Acts, 1977 to 2007, fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)