EMPLOYMENT APPEALS TRIBUNAL
APPEAL OF: CASE NO.
Counter Products Marketing (Ireland) Limited - Appellant
UD1419/2013
against the recommendation of the Rights Commissioner in the case of:
Jason Mulcahy - Respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. N. Russell
Members: Mr. J. Browne
Ms. S. Kelly
heard this claim at Wexford on 26th February 2015 and 26th May 2015 and 29th July 2015
Representation:
Appellant: Peninsula Business Services (Ireland) Limited, Unit 3, Ground Floor, Block S,
East Point Business Park, Dublin 3
Respondent: Ms. Sinead Curtis BL instructed by:
Gillick & Smithwick Solicitors, Unit 11, Riverside Business Centre, Tinahely,
Co. Wicklow
Background:
This case came before the Tribunal by way of an employer (the appellant) appealing against a Rights Commissioner Recommendation under the Unfair Dismissals Acts, 1977 to 2007, reference: r-33465-ud-13/MMG.
The employee (respondent) made a claim to the Rights Commissioner stating he was unfairly dismissed. Having heard the evidence the Rights Commissioner determined the employee was unfairly dismissed and awarded the sum of €10,000.00. The employer appealed the determination to the Employment Appeals Tribunal. The registered name of the appellant company was confirmed at the outset of the hearing.
The respondent was employed as a sales manager with responsibility for ensuring his team of sales representatives achieved their monthly target. The company operates a performance management policy to address any underperformance of the sales managers.
Appellant’s Position:
A Human Resource Generalist (MS) gave evidence to the Tribunal that the respondent employee was promoted into the role of Sales Manager in July 2007. The company operates a performance management policy for its sales managers. Poor work performance or under performance may lead to disciplinary action under the company’s disciplinary policy. Initially, underperformance is addressed informally but can develop into a formal process after one month if the underperformance continues. A significant amount of time passes before the disciplinary stage of the process is invoked. As part of the performance management plan an employee is provided with an 80% reduced target. Should the employee begin to achieve this target they are removed from the performance plan as happened previously with the respondent during 2010. During cross-examination the witness refuted that the company’s policy of under performance became more stringent during 2012.
MS outlined that she was present as a support to the line manager at a series of disciplinary meetings held with the respondent. The meetings arose as a result of failing performance standards on the part of the respondent’s sales team. The respondent was provided with an 80% target for his team but failed to achieve this. A disciplinary meeting was held on 29th March 2012 to address the alleged failing of the respondent to meet set performance targets for 9th - 20th January 2012 and 20th February – 2nd March 2012. At the conclusion of the meeting the Client Service Manager decided a sanction of verbal warning should apply. During cross-examination it was put to MS that the respondent was 23% below target in March and that he had highlighted at the disciplinary meeting that there was an issue with the leads emanating from the representatives in Kildare. MS accepted the respondent had raised this at the meeting. The respondent appealed the verbal warning but the sanction was upheld on appeal.
Following from this, there was a failure on the part of the respondent to reach the designated targets set for May 2012. A further disciplinary meeting was convened on 6th July 2012 where once again underperformance was addressed with the respondent. The respondent raised the fact that he had previously requested staff workshops in his April review but the Client Service Manager did not recollect receiving such a request. The respondent was issued with a first written warning but lodged an appeal to that sanction which was successful.
MS was present when a further disciplinary meeting was convened with the respondent on 27th September 2012 for once again failing to meet targets for a four week period from 30th July – 3rd September 2012. MS recalled the respondent acknowledging at this meeting that he had received full support from his line manager. He was sanctioned with a first written warning following this meeting. During cross-examination MS accepted that the respondent had raised a number of ongoing issues with his sales team at this meeting including an issue with a member of his team and the fact that his team were the only unionised team. However, MS had no knowledge of the respondent’s contention that his team were on a work-to-rule.
A Client Service Manager (POF) gave evidence that his role is to manage three sales managers who in turn manage sales teams comprising of up to 15 sales representatives. Many managers are promoted from within the company and the relevant training is provided. Sales are essential to the company paying the basic salaries of its employees. The company differs from its competitors in this regard where generally commission only is paid. For this reason it is necessary for the company to ensure that sales are sustained above a certain level.
As part of his role he must address underperformance with the sales managers. If underperformance occurs for four weeks, he reminds the sales managers that should underperformance continue for a further four weeks; the performance management policy will be invoked. However, it takes a further three months before the matter becomes a disciplinary matter under the company’s disciplinary policy.
POF carried out his colleague’s role while she was on maternity leave and as a result he conducted the disciplinary meeting with the respondent on 20th November 2012. At that meeting he sought reasons or mitigating circumstance from the respondent for the underperformance. However, when he reviewed the points put forward by the respondent POF found that the points raised did not relinquish the respondent from his responsibility of ensuring the sales targets were achieved by his team. The company conducts workshops in this regard to ensure that staff are focusing on what is within their control rather than something which is not, such as leads although the vast amount of signing-up of customers comes from leads. POF decided to sanction the respondent with a final written warning however due to an administrative error this was recorded as a first written warning and it was accepted that it may not have been clear to the respondent that he was on a final written warning. The respondent appealed the sanction which he thought was a first written warning but the appeal was unsuccessful.
At a further disciplinary meeting on 16th January 2013, POF noted that the respondent had raised a grievance the previous day, elements of which tied in with the disciplinary issue. During cross-examination POF refuted that the respondent had not agreed to the two processes being intertwined. At the meeting the respondent raised a number of issues which POF investigated but having reached a number of conclusions he found that the respondent had similar resources to other sales managers. POF’s final involvement in the disciplinary process was to issue the respondent with a final written warning on 22nd January 2013. He was replaced by a colleague in the process from that time. POF outlined that if there are mitigating circumstances outside of an employee’s control, which are related to the sales target and on which a numerical value can be placed, then they can be taken into account by the company. The majority of employees improve when placed on performance management. However, despite receiving support there was no notable increase in sales by the respondent’s team.
During cross-examination POF refuted that the respondent requested training for his sales team from other colleagues in Dublin but he accepted that the respondent did raise the issue of workshop training. He did not know or did not recall if the respondent had raised the issue that his team was on a work-to rule. He was unfamiliar with the fact that the respondent used a different leads system to his colleagues which made the problems with leads more apparent.
In reply to questions from the Tribunal, POF confirmed that the respondent raised the issue of sick leave within the team. However, a percentage of the target was disallowed for this and an employee on long-term sick leave was removed from the target calculation.
The Client Service Director (MC) was POF’s line manager. He heard the respondent’s appeal on 25th July 2012 of the first written warning. MC was not satisfied with how the sanction was delivered to the respondent or the fact that the respondent was not provided with the one-to-one assistance he had requested. For these reasons he overturned the first written warning sanction on that occasion. Subsequently, he heard an appeal on 6th December 2012 of another first written warning issued to the respondent which he upheld on that occasion. During cross-examination it was put to the witness that the respondent raised the issue of his team being on a work-to rule at this meeting but the witness replied that the notes of the meeting did not state that and he has yet to see any evidence of the work-to-rule.
There was an issue between the parties in relation to the notes of the appeal meeting on 6th December 2012 wherein the respondent remarked that he would do his best to look for a new job. MC interpreted the remark made by the respondent to mean a new job within the company. However, this was disputed by the respondent. MC stated that the notes of the meeting were sent to the respondent and he did not raise an issue with their content.
On the second day of the hearing the Head of Human Resources (AL) gave evidence. She became involved in this matter in April 2012 when the respondent appealed a decision regarding a disciplinary sanction. The sanction of a verbal warning was imposed on the respondent in regard to his performance targets during the period of the 9th -20th January and the 20th February to the 2nd March 2012. Following the meeting and considering the information submitted the sanction was upheld.
In late July 2012 the respondent appealed another sanction regarding his failure to meet his performance targets. Having met the respondent and discussed the issues it was decided the respondent should be given more support from his line manager with one-to-one meetings.
In December 2012 the respondent was issued a first written warning regarding his performance targets during the period the 15th October to the 12th November 2012. The respondent appealed the decision to the witness and MC. Having reviewed the situation they found the respondent did have adequate support to achieve his targets, the sanction was upheld. AL told the Tribunal that she had no further dealings with the respondent until January 2013.
During cross-examination the witness explained that when performance targets are set for managers any deficit in the staff quota available for work during these periods are taken into account and the targets are set accordingly. The respondent had raised this issue during his appeal hearings and staff absences were reviewed. The witness stated that the respondent was given the “standard flexibility.” AL was not involved in the respondent’s ultimate dismissal.
The Client Services Manager (SM) gave evidence. He gave a detailed explanation of how performance targets are set for sales representatives and their managers. SM told the Tribunal that all targets are achievable and varying circumstances during each target period (for example depleted staffing levels) were taken into account. All managers were given an initial two week training session. However each area had different requirements and challenges and therefore the training given in each area varied.
The witness was present for the last two months of the respondent’s employment and was his manager during that time. The performance targets in the respondent’s area were 14% compared to other areas in the country. SM told the Tribunal that he could not understand this as the respondent had the same challenges as managers in other areas.
He met with the respondent on the 5th March 2013 to discuss his performance review from the 28th January 2013 to 28th February 2013 and the respondent’s failure to meet the targets which had been set for him. The respondent did not avail of the right to have representation present at the meeting.
At this meeting SM listed the one-to-one training the respondent had received from him, a training session the respondent’s team had over two days in early February, a mini workshop that had been setup and meetings the respondent had attended during this time. The respondent replied that the 15 sales that had been lost were due to the fault of the “leads” case and the main line telecommunications operator. The respondent also raised the issue of a formal grievance he had made that had not been heard or dealt with in accordance with company procedure. Following this meeting a decision to dismiss the respondent was imposed. SM stated that all other options were considered.
During cross-examination SM said he had only been involved in one disciplinary procedure. When put to him he told the Tribunal that allowances in the respondent’s targets in respect of the staff headcount had been taken into account. The respondent had never mentioned to him his staff were on a work-to-rule and no official notification of same had been received from the union. No other managers had been dismissed for underperformance. SM explained that where once there was seven sales managers employed there were now six.
The Human Resource Generalist (KD) gave evidence. His first involvement in this matter was on the 14th January 2013 when he emailed the respondent to invite him to a disciplinary meeting on the 16th January 2013. The following day the 15th January 2013, the respondent submitted a detailed grievance relating to training, client operational issues and a disciplinary meeting he had attended on the 11th January 2013.
On the 16th January 2013 the respondent, KD, POF (Client Sales Manager) and another colleague as note taker attended the meeting to discuss the failure of the respondent to meet his set targets from the 26th November 2012 to the 4th January 2013. KD’s notes of the meeting were opened to the Tribunal. A sanction of final written warning was imposed and would remain on the employee’s file for a period of 12 months. The respondent was also informed any further sanctions could lead to his dismissal. The respondent did not appeal the sanction.
The disciplinary meeting held on the 5th March 2013 resulted in the respondent’s dismissal. KD told the Tribunal that demotion or suspension was not an option and the decision to dismiss the respondent was “not taken lightly.” The respondent was not replaced and his duties were divided between two existing regional sales managers.
During cross-examination KD stated that the respondent received a final written warning on the 22nd November 2012 which was to remain on his file for a period of 12 months. When put to him if the respondent had received one-to-one training KD replied he had. KD told the Tribunal that he and SM understood that the respondent wanted his disciplinary and grievance meeting held together and they felt all the respondent’s issues had been dealt with.
Respondent’s Position:
The respondent gave evidence of his five year employment history with a major telecommunications company in Ireland. In 2004 he commenced employment with the appellant company as an Accounts Manager; in 2006 he became a trainer and in 2007 he was promoted to manager. During his employment he had attended two disciplinary meetings in 2010 and two in 2012 regarding his performance on targets set.
The respondent told the Tribunal that over time issues arose. He consistently requested training and mentoring in order to meet the sales targets set for him and his team. When targets were not reached he was put on performance management as were some of his sales team. He brought to management’s attention that his unionised staff were on a work-to-rule and union representatives were present at briefings he held with staff.
In October 2012 he did achieve his target, however, the following month he did not and he was automatically put on performance management.
On the 16th January 2013 he was again put on a final written warning and informed it would remain on his file for a period of 12 months and informed any further sanctions could lead to dismissal.
The previous day, the 15th January 2013, he had submitted a detailed list of grievances relating to training requests, client operational issues and a disciplinary meeting he had attended with a staff member on the 11th January 2013. These grievances were not raised at the disciplinary meeting of the 16th January but when he left this meeting he felt there would be a grievance meeting held at a later date.
On the 5th March 2013 he attended what was his final disciplinary meeting. He told the Tribunal that he did not raise the fact that a meeting to discuss his grievances had not been held prior to this. He felt it was a matter of time before the appellant company wanted rid of him. On the 7th March 2013 he was notified in writing of his dismissal.
He gave evidence of loss.
During cross-examination he reiterated that he required and requested help with training, “leads” lists not being cleansed and the union seemingly having an issue with him and sitting in on his briefing sessions with staff. He felt he had no support from management. He agreed, when put to him, that he had received training in February 2013 but it was “too little too late.”
Determination:
The Tribunal heard extensive evidence and carefully considered the documentation submitted in this case. The Tribunal was obliged to make an assessment based on that information and to determine if the employer had discharged the onus of satisfying the Tribunal that the dismissal was fair.
By its nature the sale of products and services to consumers requires skill, commitment, determination and initiative. There will always be issues that make the task even more challenging. That is the very nature of the job.
Asked if he was facing challenges over and above the norm, the respondent employee advised the Tribunal that there were operational issues which were unique to him and his team around the allocation and accuracy of “leads”, the promotion and sale of new product and the non-provision of “on the ground” training.
The respondent employee also gave evidence of discord within his team that had a knock on effect on performance and morale.
An element of the mutual relationship of trust between an employer and employee is that the former provides constructive support to an employee where this is sought and clearly needed. The Tribunal is not satisfied that this support was provided to the respondent employee either in the performance management process or independent of it.
The level of investigation that the Tribunal would have expected to see in advance of a decision to dismiss the respondent employee was absent on this occasion. The Tribunal is not convinced by the apparent trivialising by the employer of the issues raised for the respondent employee referable to the unionisation of his team and the backdrop to that development. This was an issue for the company as a whole and not just for the respondent employee who was given no meaningful support.
The Tribunal believes that the employee and his team needed practical help and support which was not forthcoming. Dealing with the respondent employee seemed to ultimately be reduced to a statistical analysis outside of any meaningful contextualisation. Where was the fairness in this?
The Tribunal has no doubt but that the employee was resolute in facing the challenges of his role and, indeed, may have overestimated his own ability to face those challenges, without support however, this does not in any way exonerate the employer from identifying and acting on a clear need for practical help.
The repeated rationale of the company that the same issues were faced by all managers, which position was adopted without any meaningful investigation into the challenges faced by the respondent employee and specifically related to him, was fundamentally flawed. The respondent employee’s repeated assertions that his circumstances were different to those of other managers were disregarded without being satisfactorily investigated.
The presumption that the employee’s dismissal was unfair has not been rebutted on this occasion. The employee is entitled to be compensated for his unfair dismissal. In measuring compensation, the Tribunal has had due regard to the employee’s period of employment and the fact that the employment subsequently secured by him was at a reduced salary. The employee is awarded compensation in the sum of € 30,000 thus varying the Rights Commissioner Recommendation under the Unfair Dismissals Acts, 1977 to 2007, reference: r-33465-ud-13/MMG.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)