EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Jean-Guy Twagirayezu
- claimant
UD1268/2014
against
Rational FT Services (Ireland) 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. L. Tobin
Mr A. Butler
heard this claim at Dublin on 14th October 2015 and 3rd December 2015
Representation:
Claimant: In Person
Respondent: Ms Louise O'Byrne, Arthur Cox, Solicitors, Earlsfort Centre, Earlsfort Terrace,
Dublin 2
Background:
The respondent company operates as an online gaming business and its brands include Pokerstars, Full Tilt Poker and European Tour Poker. Its operations comprise online poker games, live poker competitions and poker programming created for television and online audiences. The claimant was employed as customer service agent from April 2011 until his dismissal in July 2014.
Respondent’s Case:
The Tribunal heard evidence from (AM) who was the claimant’s line manager at the time of his employment. She gave evidence that the respondent company emerged following a takeover process in August 2012 and the new venture was launched in October 2012. The claimant as an employee of the former business was retained in employment enjoying continuous service from April 2011.
(AM) outlined to the Tribunal the new work practices and procedures were introduced in October 2012 following the takeover and that all employees were trained in these new procedures. These new work practices resulted in customer service agents working on two platforms of work (e.g. both the Pokerstars website and the Full Tilt website) which was not the case prior to the takeover. Towards the end of 2012 she began to have concerns regarding the claimant’s work performance. The claimant was given further training in 2013 and in October 2013 he was placed on a performance improvement plan (PIP). She told the Tribunal that the claimant was very receptive towards the plan, a detailed copy of which was opened to the Tribunal.
She gave further evidence that while there was some improvement in the claimant’s work performance he was still not reaching the required level and was not attaining his targets. His work was also inconsistent and he was not performing to the same standard as other team members. His “e-mail defects” were above average and there were similar recurring issues with player’s questions not being answered in the manner the respondent required. Accordingly, by way of letter dated 13 November 2013, the claimant was issued with a verbal warning. He was afforded the opportunity to appeal this warning but did not do so.
On 3 February 2014 the claimant was invited to attend a formal disciplinary hearing concerning his overall performance and “e-mail defects”. As his performance continued to be unsatisfactory and not up to the standards required by the business he was issued with a formal written warning by way of letter dated 5 February 2014. He appealed this warning but his appeal was not upheld. The (PIP) remained in place but the claimant’s performance remained unsatisfactory. The witness gave evidence that one or two “email defects” weekly would be reasonable but the claimant had six or seven weekly defects. He had the worst statistics on her team of 12 employees.
A further disciplinary meeting was held on 24 April 2014 to discuss the quality of his work and his productivity since being issued with the written warning on 5 February 2014. This meeting was reconvened on 9 May 2014 (detailed minutes of both meetings were opened to the Tribunal). The claimant was subsequently issued with a final written warning by way of letter dated 19 May 2014 as his performance remained unsatisfactory. The claimant did not appeal this warning, the (PIP) remained in place and the claimant was provided with further training.
The witness gave further evidence that the claimants work performance continued to be inconsistent and not in line with the respondent’s requirements. While there was some improvement she was not convinced that she could help him any further. She had provided all the support and training that she could and the claimant had stated that he did not require any more training. He was not maintaining the same speed of work as his colleagues. A further disciplinary meeting took place on 2 and 3 July 2014 and the claimant was dismissed by way of letter dated 3 July 2014. The witness gave evidence that the reason for his dismissal was entirely performance related. He had failed to reach the departmental targets as outlined in his (PIP) in relation to the number of cases handled per hour, the average handle time on cases, and the set of quality standards and number of e-mail defects.
The next witness, (EM) gave evidence that she works in the quality department. She told the Tribunal that the claimant was on a list of “under performers” and she provided individual coaching/training to the claimant in May 2014. She had previously worked as a customer service agent and believes that the targets set for agents were reasonable.
The Tribunal heard evidence from the senior HR business partner. She was of the opinion that the entire process, from the claimant being placed on a PIP to his dismissal, was fair. The company followed its disciplinary procedures and the claimant was given the opportunity to appeal all decisions made. She outlined the process to the Tribunal and gave evidence that several employees were subjected to the disciplinary process and disciplinary sanctions. She had no involvement in setting targets but from a HR perspective she believed that the targets set were reasonable and achievable. She told the Tribunal that the company had exhausted all options in terms of the claimant’s training and development and ultimately a decision was taken to dismiss the claimant. The company did consider placing the claimant in a lesser role but no such position was available to offer the claimant.
She accepted that there was good customer satisfaction feedback in relation to the claimant but this amounts to only 25% of employees overall ratings. She believed that the claimant’s work performance negatively impacted on the company. She denied that the claimant’s position was made redundant and gave evidence that the resource planning team made a decision to back fill the position from the company’s Malta office.
Claimant’s Case:
The claimant gave direct evidence that he did not appeal his dismissal because he had no faith in the respondent. He believed it was a company that had no corporate and social responsibility and his work there negatively impacted on his life. He told the Tribunal that when he commenced work April 2011 his contract provided that he work on one platform (meaning one website). He received one week’s training to work on this one market alone. In July 2012 following the takeover he was required to work on four different platforms and received three days training for this extra work. He believed this training to be insufficient and gave evidence that defects in his work only commenced upon this change to the work practices. In August 2013 further markets were added resulting in him having to work on a total of six markets while his original contract of employment remained the same.
He gave evidence that he was not against targets and understood the need for targets to be in place. However he was against the manner in how the targets were set down and suggested a different system which would have allowed for the targets to be more achievable. He suggested that queries could be divided into categories rather than dealing with each email in order of receipt. He believed that the handling time for dealing with the queries was not under the control of employees yet he received a written warning in respect of the handling time spent on queries. He gave evidence that he did not receive proper/adequate training as the training provided was not relevant. He had to learn by himself on the job. He received a response from the company that they would not change their work practices for one employee. He stated to the Tribunal that the suggestions that he had made were not simply to accommodate him as 38% of employees were not achieving their targets. It was the responsibility of the company to provide an adequate/proper training programme to employees. He accepted that he attended 18 training interactions between October 2013 and June 2014 but these did not help him to answer the content of customer e-mails. He accepted that the average handling time allowed for answering e-mail queries was 7 minutes. He did not believe this to be a correct amount of time as he believed that correct targets could only be set if e-mails were divided into sub-categories.
The claimant did not believe the disciplinary process instigated by the company was justified as he believed that the trouble came from the management of the organisation. He felt that he explained himself to his employer on a number of occasions but that he was not being understood. He outlined in detail to the Tribunal two “imaginary” defects for which he received a written warning. The Tribunal heard further evidence in relation to his efforts to mitigate his loss since his dismissal.
(AM) gave evidence that she has worked for the respondent since 2012. She has not received a lot of training and any training she has received has basically been online training one did on their own. She gave evidence that handling times for dealing with queries depends on the type of queries. Some queries can take up to 20 minutes. She stated that it was not easy to achieve targets and she had been disciplined for not achieving targets. She was not dismissed for this failure and ultimately achieved her targets, but it was challenging to do so.
Determination:
The Tribunal carefully considered the evidence in this case. The claimant was dismissed due to performance related issues therefore the Tribunal has to decide whether or not the decision to dismiss 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.
Following a transfer of undertaking in or about 2012 the respondent became the claimant’s employer. It is clear that while the claimant’s work broadly remained the same, the work practices changed dramatically thereafter and that more was required of employees than the previous enterprise. In particular the respondent re-branded and introduced a larger range of online gambling products to the market. The claimant was part of the customer service team and his role involved assisting the website users with any problems or queries that arose. These queries were sent by email and generally arose outside of the information provided by the general help section on the website. It is the Tribunal’s understanding that these queries could be wide ranging and often had to be dealt with on their own facts. There was no one answer to the various queries and it was the claimant’s opinion that he often had to spend longer than the 7 minutes allowed on quite a number of emails. The respondent gave evidence of an “escalation process” that specifically deals with more complex queries which is separate to the assistance the claimant provided. If emails were taking longer than 10 minutes they should have been forwarded through this “escalation process”. The Tribunal is in no doubt that work practices changed dramatically and became much more demanding post 2012. In fact year on year since then the employees were put under increasing pressure to produce more. It seemed that if one person alone met these increasing targets then the other employees were put under increased pressure to do the same and when they did not achieve, they were disciplined. However, it is the respondent’s prerogative to set these stringent targets.
The Tribunal accepts the evidence given on behalf of the respondent that the claimant was not performing adequately in his role and despite numerous attempts to assist him he did not improve to a satisfactory standard. The respondent’s disciplinary procedure in relation to the claimant is, of course, very well documented. Of particular significance to the Tribunal is the fact that the claimant did not seem to engage in this process and he did not appeal his decision to dismiss. While it is his opinion that he had no confidence in his employer at that stage it is incumbent on him to engage and exhaust the process. He seemed particularly focused on the fact that he believed the problems lay with the management of the company who were not accepting his proposals regarding a different system of addressing queries. It was also clear to the Tribunal that during the course of the PIP the claimant was given an opportunity to improve and set out his difficulties. He was given a number of training opportunities, some of which he did not avail of therefore it is difficult to see how he can sustain an argument that he was not adequately trained.
Having assessed the relevant evidence the Tribunal believes that the ultimate decision to dismiss was reasonable in the circumstances therefore the Tribunal does not believe that the claimant was unfairly dismissed therefore 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.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)