EMPLOYMENT APPEALS TRIBUNAL
CLAIMS OF: CASE NO.
Joe Myers – claimant UD2412/2011
MN2423/2011
against
Direct Fuels Limited – respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms V. Gates BL
Members: Mr J. Reid
Mr J. Dorney
heard this claim at Dublin on 23rd July 2013 and 17th & 18th February 2014 and 8th April 2014
Representation:
Claimant: Mr Warren Parkes, Solicitor, Unit 1 The Capel Building, Mary’s Abbey, Dublin 7
Respondent: Ms Audrey Coen BL instructed by Damien Conroy of Augustus Cullen Law, 7 Wentworth Place, Wicklow
The determination of the Tribunal is as follows:
Respondent’s Case
The managing director gave evidence. The respondent’s business is the promotion and sale of fuel cards business to business. The promotion and sales part of the business is in Ireland and the administration part is in the UK.
The claimant was employed as an account manager. He was engaged in tele-sales. His daily duties consisted of making calls from campaign lists, generating campaign lists and making calls to prospective clients. The claimant was one of about 6 account managers. Call targets were set by the sales manager and calls were monitored. The account managers are paid a basic salary and also a commission.
The claimant was given a verbal warning in June 2011 for making personal calls from the respondent’s phone during working hours. The claimant admitted his mistake and paid for the calls.
From the start of his employment the claimant had issues around being managed. He challenged or questioned almost every instruction he was given and he had difficulty being monitored. As a result his probation had been extended. The claimant was not a team worker and avoided contact with his colleagues.
The claimant was suspended with pay following an incident on 9th September 2011 where he was insubordinate towards the sales manager NC. . On that day the managing director arrived at work at about 9.20am. The claimant followed the managing director into his office to tell his side of the set-to with the sales manager NC. The managing director asked the sales manager to come to his office. The previous day the sales manager sent the claimant an email asking why he had not made calls related to the new campaign. The claimant did not respond to the email instead he challenged the sales manager face to face. The claimant was agitated and swore at the sales manager and challenged her position.
The sales manager had had enough and the claimant was always challenging her. He shouted and he did not respond to her management requests. He also asked all the staff members present during the incident for statements.
The claimant told him that he received an email from NC asking about a task he had been assigned. The claimant stated that NC was agitated and aggressive and that he wanted something done about it. He asked NC to come to his office at approx 9.30a.m., she was upset. NC told the claimant that he was walking on thin ice.
The sales manager NC ensured that employees worked to the best of their abilities. NC was upset that the claimant was loud and aggressive. He asked NC to leave it with him and he wanted to talk to everyone in the office. He did not see the e mail until after he spoke to NC. He asked employees into the office to relate what they had heard. The claimant wanted a meeting, NC and the claimant went to the back room, a loud discussion ensued and the door banged, the claimant was frustrated.
He called the claimant back in and told him that due to the seriousness of the situation he was suspended with pay pending further investigation on the 9 September 2011. The claimant was upset and said he was bullied by NC and that he was picked on.
NC was then going on holidays for two weeks. He received a note from the claimant on the 15 September 2011 regarding his upcoming meeting regarding suspension. He outlined that his complaint about being bullied had not been recognised. The claimant was notified of a disciplinary on the 16 September 2011 by letter followed by a text. He asked the claimant if he had a formal complaint and he did make a complaint.
NC was promoted in early July 2011. She was now the claimant’s boss and the claimant was unhappy with this. He said in a throwaway remark that he was bullied. When the claimant had a problem he reported to him and it was the same for other employees, his door was open. The claimant did not ask him to delay the disciplinary hearing and he did not ask for witnesses to be present.
He could not recall if a representative attended the meeting on the 16 September 2011 with the claimant. He told the claimant he could have a colleague with him. At the meeting he asked the claimant questions. The claimant asked about his complaint of bullying on the 9 September 2011. It seemed to him he was unsure where the complaint of bullying emanated from. Both complaints resulted from the same incident. The claimant did not feel that he had to explain himself and he worked at his own pace.
The claimant was given statements of evidence. At the meeting the claimant raised the issue of performance; he maintained that he was the best person in the office and that he wanted to be left to his own devices. The witness obtained the sales reports from the previous week and the claimant always had issues regarding commission payments. The commission structure changed in early 2011.
The claimant told him that NC had said that he was agitated and aggressive and that she pointed a finger at him at a general meeting in the office for all staff. DB had been the claimant’s supervisor and the claimant complained about her. The claimant had not spoken to KMcD and DB for about four years. The claimant was not isolated and he was not happy from the outset. A new lay out was introduced in the office and targets were introduced and the claimant was not co-operative.
He did not suspend NC as she was going on holidays. He went through matters and the claimant asked if he could appeal. He told the claimant that he was not going to jump to conclusions.
In a letter dated 21 September 2011 he outlined in detail to the claimant the discussions that had taken place and he informed the claimant that he was dismissed. If employees were not performing they needed to know the reason for this.
The claimant was not happy when he received a verbal warning and he needed to get the claimant back on track. DB undertook a report on the amount and duration of time that sales representatives spent on telephone calls. He was not contacted by prospective employees after the claimant was dismissed.
In cross examination he stated that the claimant could be challenging but would do the job. MJ was employed in the Finance Department in the UK and she was responsible for the HR department within the group. MJ had the authority to overturn his decision. He took advice from HR regarding the claimant’s dismissal. He could not recall the specifics of who he spoke to. He did not preclude AJ from hearing the appeal.
When NC was promoted DB was also promoted to the position of European customer supervisor. The claimant was uncomfortable being asked to do anything outside his normal work and there was no evidence that DB bullied the claimant. The claimant did not like to be managed.
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The respondent did not take a substantial amount of the claimant’s commission from him. There were different forms of commission and multiple opportunities to grow. Commission changed regularly and depended on income.
CMcD and the claimant did not get on. He did not recall saying to the claimant that he would send him off the road. The claimant wanted to compete with KMcD. The claimant did not perceive it as bullying and he had made reference to bullying in the past.
He took statements before the claimant was suspended. He recalled NC mentioning “swanning around” to sales staff. The claimant was in a position to do the job in hand but he kept bringing up the same issues. He relied on statements before arriving at the decision to dismiss the claimant. A claim of bullying was submitted on the eve of the disciplinary.
In answer to questions from the Tribunal he stated that the claimant resigned twice as he did not like changes and he had issues outside of the workplace. He asked for 24 hours to reconsider and he agreed. He did not feel that something out of the ordinary occurred at 9.20am on 9 September 2011. The claimant had sent an email which he was not aware of. He told the claimant that he would speak to NC. The claimant was angry. NC asked to speak to him and she was upset. He presumed the claimant was suspended before lunch. He considered moving the claimant and NC. The claimant had a run in with all the female staff and two to three of the male employees.
The second witness for the respondent AJ told the Tribunal that she was Credit Director and later undertook work in HR for the respondent. She no longer works with the respondent. On the 30 September 2011 she received an e mail from the claimant regarding an appeal. She wanted to meet the claimant as soon as possible. The meeting was scheduled for 5 October 2011. The night before the claimant e mailed her and told her he could not attend. An alternative date was agreed for the meeting on 16 November 2011. She requested the claimant to forward her information on his appeal to enable her to digest it prior to the meeting which she did not receive. She received an e mail from the claimant on the 26 October 2011 regarding his salary deduction. She replied that the salary deduction was in respect of a sick day and the salary advance was also deducted.
A meeting took place on the 16 November 2011. Present were the claimant, the witness and DC on behalf of the claimant. DB was present as a note taker. She told the claimant of his right to be accompanied and it was the claimant’s chance to get his story across. The claimant told her that the bullying complaint was made prior to the incident on 9 September 2011. He told her that he had emails to prove it. The claimant told her that he would only show her emails on advice from his solicitor. She informed him that it was not a game of poker. He made a complaint about NC but he did not lodge a formal complaint.
The claimant felt that the disciplinary was not fair as the MD had raised the issue of pay and performance. The claimant told her that he informed the MD that he had made a complaint about NC. He had asked NC about the e mail and he asked for a polite word in the back office. The claimant told her he had been bullied by NC. She told him that she would have to find out why he was singled out and not NC. The claimant felt that he was pushed out because he was suspended. The claimant felt that he was not given enough time to prepare for the disciplinary hearing. He did not ask for a postponement.
The claimant had not started the sales campaign. The claimant stated that when he spoke to NC she was heated. She asked him for his definition of bullying, he replied pointing a finger in his face and NC made reference to moving around. The claimant maintained that his manner had not become heated and he remained cool. She asked him if NC had helped him and he replied she got flustered if she was asked for help. He did not need help.
As far as she could recall she thought the claimant felt that the MD was not very fair. The claimant asked other colleagues if they had received e mails from NC and they had not. The claimant asked for re-instatement but was not sure of how it would work. She wanted to ensure that there was not a culture of bullying in the office. She interviewed ten employees and made notes. Employees did not complain of bullying by the claimant.
She spoke to NC on the 17 September 2011 about the matter. NC had a great relationship with the claimant prior to her promotion. On the day of her promotion 20 April 2011 the claimant e mailed her saying he only wanted to deal with her by e mail. On the morning of the 9th September 2011 she received an e mail from the claimant who stated that “you know I am good at my job”. NC sent the email to the MD. She went to the shop for a drink and when she returned the claimant was already in the MD’s office. She then spoke to the MD.
In a letter dated 28 November 2011 to the claimant she outlined the basis of the appeal hearing. The claimant did not give her information that would help him and she spoke to the MD. She wanted to use the e mails as evidence. There was no evidence that the claimant was treated differently than anyone else. The claimant left the meeting, then came back and asked for DB’s notes. He tore two to three pages off the notes. The claimant asked for re-instatement.
In cross examination she stated that she was not authorised to reply to the claimant’s representative’s letter dated 8 November 2011. She worked for the group of companies and with the MD. She felt that she was in a suitable position to hear the appeal. She disagreed that there was no direct route to HR for the claimant. It was the claimant’s appeal and it was his responsibility to provide information. The claimant did not mention that he had made a previous complaint. She felt that two days’ notice of the Appeal meeting was adequate. The claimant would have been under stress and he would have wanted to get the matter concluded. The meeting was moving at a significant pace to lessen the load on the claimant.
She did not recall that the statements from employees were missing from the documents given to the claimant. She did not take the statements in advance and she based the decision on the statements. The claimant did not ask for copies of statements. She acted in the claimant’s best interest. She read the statements taken from the claimant’s colleagues, she interviewed them but did not provide them to the claimant. She made brief notes at the time and she bullet pointed relevant points. No written complaint was received until after the disciplinary started. She reiterated that there was no grievance lodged by the claimant. Witnesses were not cross examined. She did not feel that witnesses should have been given the opportunity for cross examination.
She interviewed the MD and had unofficial notes. With hindsight she stated that she could have divulged the statements to the claimant. She went through the claimant’s traits at the appeal hearing. She took into account the way the claimant behaved generally.
The claimant had an issue with the way he was managed by NC. She felt that the claimant could have brought some information to assist him but it was not forthcoming. The claimant sent an e mail to the MD on the 20 April 2011 and he did not say it was in relation to bullying. She did not ask if she could re-engage the claimant. NC used the word bullying in relation to the claimant.
The third witness for the respondent DB told the Tribunal that she commenced employment with the respondent in 2004 as a sale representative. She was sales manager in 2006 and she hired the claimant She was responsible for the day to day managing of staff and ensured that they hit their targets. She communicated both in person and by e mail. The claimant started work at 9a.m. She gave instruction to sales managers on how long to spend on the telephone and the number of calls to make. She had more bad days than good days with the claimant and the claimant did not like structure. She had her own targets and she drove the sales team to get new business. There was no complaint of bullying against her.
She was assigned to EDC in April 2011, this was a new opportunity for EDC to grow. NC took over managing the sales team and the claimant at this point.
On the 9 September 2011 an incident occurred in the office. She was at her office desk at 8.30am. The claimant asked for a word with NC and they went to the back room. There were raised voices and she heard the claimant say this is f…….ridiculous. The claimant came out and sat at his desk. She did not recall NC returning to her desk. The MD came in and the claimant went after him. She was very busy doing invoicing and pricing that day.
The MD asked her to go to the office and to type an account of what had occurred. She did not know what time that the claimant was suspended but he left the office before lunch.
A meeting took place on the 16 September 2011, present were the claimant, the MD and the witness who was note taker. The claimant did not make reference to performance at the meeting. The claimant made reference to a letter in February and that his sales figures were good. The claimant complained that she ratted him out to NC. She undertook a cost analysis of the phone in June/July. She was not involved between the disciplinary and the appeal. On one occasion NC brought in pizza when a task was well done. DB took briefing notes at the meeting. She was not asked to discontinue taking notes. NC had a different style of management than she had. The claimant could be a very difficult person to deal with and you would know when he came in the door what kind of day you would have The claimant was argumentative and confrontational. Most times he would by-pass her and go to the MD.
In cross examination she stated that she tried to get the team to reach targets and there were no consequences for not reaching targets. The respondent did not play employees off each other. She became aware that the claimant was suspended sometime after this occurred. After she became the claimant’s manager he did not speak to hear for a few weeks. The claimant was the instigator of bad feeling at the time. She could not recall how many times she reported the claimant to the MD and this was for inappropriate behaviour..
She and the MD had meetings with the claimant regarding his behaviour in the workplace. She did not report the claimant for bullying, it was for inappropriate behaviour. She witnessed bullying by the claimant but she did not report it.
She ceased taking notes at the disciplinary meeting and she could not recall that she discussed it with AJ. The claimant had raised a matter regarding his targets at the time. The claimant was shown a graph of his volume for that week.
She was moved to EDC, it was a new product and she wanted to concentrate on that. She was not upset about going to EDC and she had no recollection of the claimant sending her a text message to see if she was alright.
The fourth witness for the respondent NC told the Tribunal she has been employed with the respondent for over five years. She initially worked in maintenance. She had no issue with the claimant and he was she had a very good working relationship with him. She worked on maintaining the claimant’s volume and on one occasion the claimant bought her a bottle of wine.
In April 2011 she became sales manager and she met with the sales staff. Her main responsibility was to put structures on volume and targets and get the best out of the sales team. It was a win win for everyone when targets were reached. Her targets were based on the sales team. The average number of calls made by the sales team was 135 per day. The respondent introduced a campaign to improve productivity. If employees were not meeting targets they still got paid. Four to five employees reported to her including the claimant.
She was informed in April 2011 that she was going to be the new sales manager. The claimant told her that he had a soft spot for her. She was upset about the e mail that was copied to her from the claimant to the MD on the 20 April 2011 in which he outlined that he would rather not speak to her and communicated by e mail. The claimant also outlined in the e mail that he was very happy when DB was his manager for five years. She asked employees to e mail her day to day details. The claimant told her that he was not going to give her any targets and it was very difficult for her.
She wanted to listen in on calls, the claimant was very good at his job when he put his mind to it. The claimant did not want her to listen to his calls.
The atmosphere in work was not like school and it was a small office. The claimant challenged her from day one. The claimant was the only one that complained about the desk change. The day to day working relationship with the claimant from April to June 2011 was very difficult, the claimant did not speak to her and he did not feel that she could help him in any way.
On the 9 September 2011 she was in work at 8.45am and the claimant asked her could he have a word regarding an e mail that she sent to him on the 8 September in which she outlined that he was not making any headway on the new campaign.. They went to the back room. The claimant asked her why she sent the e mail and that there was no trust in the office; the claimant was agitated before she spoke to him. She told him that it was her job to supervise.
The claimant had received a verbal warning from the MD on the 7 June 2011. The claimant cursed at her and she told him not to speak to her in that manner. The claimant told her he was going to speak to the MD. The claimant challenged her and she really tried with him. She went to the MD in tears and the claimant sent an e mail to the MD regarding what occurred.
NC was on holidays the next two weeks. The MD contacted her and explained that the claimant had filed a bullying complaint against her. She was completely shocked.
She did not point a finger at the claimant on the 29 August 2011 and she told employees that there was to be no more swanning around the office. The claimant and CMcD did not speak to each other and she did not know the reason for this.
In cross examination she stated that the claimant was driven to make money and he made money for her also. She wanted to drive sales. A hand over meeting took place in April 2011 and a new structure was put in place. She raised her voice as the claimant was using abusive language towards her. . She did not tell the MD that it was a shouting match. She did not point her finger at the claimant. It was not her decision to suspend the claimant. When she returned from holidays the MD spoke to her about the bullying complaint by the claimant. The bullying must have been investigated while she was on holidays. She gave all the e mails that she received from the claimant to the MD when she returned from holidays. She did not report the claimant for bullying. The claimant cursed at her in an aggressive manner and she told him to stop it. She disagreed that the e mail that led to the disciplinary was less than honest. She gave a full account of her side of the story. She told the claimant he was on thin ice.
She had nine years sales experience and she wanted to sit with the claimant to establish how he sold the product. She was not offended when he did not allow her to sit in and other sales staff were obliging. The claimant was paranoid and he got the same treatment as everyone else.
Claimant’s Evidence
The claimant gave evidence of loss. After he was dismissed he outlined the endeavours he made to obtain alternative employment. He registered with FAS and to date he has been unsuccessful in obtaining employment.
DETERMINATION
It appears from the evidence that from an early stage in his employment, the Claimant had issues with Management which resulted, initially, in an extension of his probationary period and, later, to two verbal warnings issued in September, 2007 and again in June, 2011 and ultimately to an incident in September, 2011 which led to dismissal.
Following the appointment of a new immediate Supervisor in April, 2011, the Claimant sent an email dated 20th April, 2011 to the Managing Director stating that he did not wish to communicate with his Supervisor directly but intended to do so by email only. As a result of the Claimant’s ongoing disruptive attitude and insubordination, the Respondent was obliged, on 7th June, 2011, to issue a second verbal warning to the Claimant in relation to his conduct, which by contemporaneous note of the meeting, encompassed seven points, that is:-
- The Claimant was advised that his attitude towards his immediate Supervisor, NC, was unacceptable – that challenging almost every decision was not acceptable.
- That the Claimant’s negative attitude to all things being introduced was causing a problem.
- That the Claimant’s insistence that NC was on a power trip was somewhat misguided and wrong.
- That the Claimant’s disruptive behaviour would not be tolerated any longer.
- That the Claimant’s overall negative attitude to canvassing (refusal to partake in day 2 – refusal to get involved with incentive programmes etc.).
- That every instruction is met with defiance, objection, opinion and constant conflict.
- The Claimant was advised that his lack of interaction with his fellow team members and his refusal to assist any new team members through coaching and training was an issue that would result in the Respondent employing a new team member and that if the new member was of a suitable calibre, they could be a Supervisor to the Claimant.
From the evidence adduced, it appears that following the receipt of an email by the Claimant from his Supervisor, NC, on 8th September, 2011 in relation to a new Sales campaign, an altercation arose between the Claimant and his Supervisor early on the morning of the 9th September, 2011. Following the incident, the Claimant made a complaint of having been bullied by his Supervisor. The Managing Director investigated the complaint and obtained written statements from each of the employees working in the vicinity of the back office where the altercation took place. It appears that no member of staff directly witnessed the altercation and merely reported that raised voices were heard by all members of staff. The Managing Director spoke to both NC and the Claimant in relation to the incident. Following the investigation, the Claimant was suspended on full pay on 9th September, 2011.
By letter dated 12th September, 2011, the Managing Director informed the Claimant that a Disciplinary Hearing would take place on 16th September, 2011, in the course of which, the following matters were open for discussion:-
- Failure to follow a reasonable Management instruction;
- Insubordination towards your Manager;
- Use of aggressive and abusive behaviour towards your Manager.
Enclosed with the letter were the Statements from other staff in relation to the incident and the Claimant was advised that he could bring a work colleague or Trade Union Official to the meeting. The Claimant did not avail of any representation at the meeting.
By letter dated 22nd September, 2011, the Claimant was informed that he was summarily dismissed and notified of his right of Appeal. An Appeal Hearing took place on 16th November, 2011, conducted by AJ, a UK based Credit Director of an Associate Company of the Respondent. The Claimant was accompanied by a work colleague at the Appeal Hearing. The Tribunal is of the opinion that, despite the objections raised by the Claimant’s Legal Representative, that AJ had sufficient authority to countermand the decision of the Managing Director and was, in all the circumstances, a suitable person to conduct the Appeal Hearing.
The Tribunal has carefully considered the evidence adduced by both parties, together with the submissions made on their behalf, although the Claimant declined to give his own direct evidence and confined his evidence to loss only. The Tribunal is of the view that the Respondent acted reasonably in reaching its decision to dismiss and gave the Claimant every opportunity to improve the attitude and behaviour which were causing disruption and difficulties in the work place. The Tribunal is satisfied that the Claimant had more than sufficient notice that his general behaviour and attitude to Management was unacceptable and that following the first verbal warning on 17th September, 2007, the Claimant was on clear notice that his attitude and behaviour was disruptive and insubordinate but he failed to effect any improvement in the attitude and behaviour complained of. The Tribunal is satisfied, on the evidence, that the Claimant was given an opportunity to defend his position and to bring Witnesses, a representative or contradictory evidence to both the Disciplinary Hearing and the Appeal Hearing in support of his position.
In all the circumstances, the Tribunal is of the view that the Claimant’s conduct warranted dismissal and, accordingly, the Claim under the Unfair Dismissals Acts, 1977 – 2007 fails. However, the Tribunal is of the view that the Respondent should have paid the Claimant his minimum notice entitlement and, accordingly, awards the Claimant compensation of €1,572.72, being the equivalent of two weeks gross pay (€786.36 per week) under the Minimum Notice & Terms of Employment Acts, 1973 – 2005.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)