UD1190/2013, PW128/2014

EMPLOYMENT APPEALS TRIBUNAL

CLAIM OF:                                                                                                          CASE NO.

Andrew Troy - claimant                                                                                     UD1190/2013

                                                                                                                           PW128/2014                 

Against

John Player & Sons Limited

            - respondent

under

UNFAIR DISMISSALS ACTS 1977 TO 2007

PAYMENT OF WAGES ACT 1991

I certify that the Tribunal

(Division of Tribunal)

Chairman:       Mr G. Hanlon

Members:        Mr D. Moore

                        Mr J. Jordan

heard this claim at Dublin on 12th November 2014 and 6th February 2015

Representation:

_______________

Claimant:         Ms Susan Jones B.L. instructed by,

                        Jones, Solicitors, 3 Lower Mount Street, Dublin 2

Respondent:    Mr Tiernan Doherty, IBEC, Confederation House, 84/86 Lower

                        Baggot Street, Dublin 2

This case was heard in conjunction with an employee appeal of the Rights Commissioner Decision ref: r-136997-pw-13/DI under the Payment of Wages Act, 1991.

Background

The respondent company sells tobacco products; the claimant was a sales representative with the respondent. The claimant’s role was made redundant on 31^st of June 2013. The respondent contends that it was a fair redundancy and that the claimant’s role no longer existed. The claimant contends that his role was given a different title but his duties remained and therefore it was not a genuine redundancy situation rendering his dismissal unfair.

Respondent’s Case

The claimant commenced employment in December 2008 as a sales representative. It became illegal to have any tobacco products on display which meant the sales representative activities had to change. In 2009 the former sales representative role altered and was re-named as a ‘trade and marketing representative’ (TMR), there were 22 TMRs nationally. The duties of a TMR were; sales, marketing activities, audits and to engage with staff in store. The claimant called to specific retail outlets directly and indirectly through wholesalers, he did up to 10 calls a day. During these calls he had to collect data, collect marketing information, place products, place secondary products/ merchandise and engage with staff about the products.

In March 2013 Imperial Tobacco issued global restructuring instructions for the sales function. The respondent was bound by these instructions. The TMR role evolved into the retail development representative (RDR) role. The main difference between the TMR role and RDR role was that TMRs operated on relationships with the retailer and the RDR role was to focus on the commercial value to the retailer of having imperial tobacco products on sale in their outlet. The RDR role was to primarily focus on the commercial value of the products and the person filling it would now need “commercial acumen.”

All of the TMR roles and the Sales Manager role were made redundant. The roles were restructured to nine RDRs, eight ‘availability representatives’ and two ‘tactical representatives.’ There were 22 TMR positions but there would now only be 19 positions available. All 22 TMRs were invited to apply for any of the new roles. The selection process included role play activities in an assessment centre and a capability interview. The National Accounts and Route to Market Manager in conjunction with an external consultant carried out the assessments and interviews.

Any applicant with a score over 50% succeeded. The outcome of the claimant’s interview was ‘do not proceed’. As the claimant was unsuccessful in securing an RDR his employment was terminated by reason of redundancy.

The National Accounts and Route to Market Manager explained that increments were based on performance. Partial, full or double increments may be awarded. The claimant received full increments for the first two years of his employment. In 2012 he was awarded a partial increment and he did not contest this. In 2013 he did not receive any increment on his salary following a performance appraisal.

In cross-examination the witness confirmed that four TMRs had been unsuccessful for the new positions. One had HR issues and two had challenged their lack of increment. New recruits to the RDR role were to start at €35k p.a. He did tell the claimant that he had a good chance of getting new role based on his skills but he did not give anyone any guarantees. Ten TMRs applied for the new roles; five were successful two of which were employees and three were contractors. One TMR who was successful did not accept the job.

The then HR Manager gave evidence. Those who were unsuccessful in achieving the RDR role were paid redundancy. Point one of the TMR scale was €40k with performance based increments after that. Every March, line managers were contacted for a performance appraisal and full or partial increments were paid. Line managers had discretion on this. The claimant received full increments for the first two years and a partial increment on the third bringing his salary to €49,164. It was custom and practice that line managers informed HR whether employees were meeting expectations. There was no written policy.

The witness was cross-examined. Employees must meet the performance expectation to receive an increment. How to achieve the increment is not written policy. The line manager should tell the employee what their increment will be. There was a small difference between the full and partial increment. A full increment would have brought the claimant’s salary to €49,688. The following year the claimant’s increment was withheld. The witness became aware of an issue then, but had no direct conversation with the claimant concerning his increment. The claimant signed off on the final performance review document but there was no reference to the increment in the document. Employees should be told if their increment is being partially or fully withheld.

Of the new RDR roles two were current employees, three were contractors and four were external. Grievances or relationship dynamics were not considered when selecting for the new roles.

Claimant’s Case

The claimant gave evidence. His employment with the respondent company as a sales representative began in December 2008 on a starting salary of €41k. He understood that increments were to be applied with service. There was a potential 20% bonus worked out through the appraisal process based on targets. With the job came a car, phone, lunch allowance, laptop and a sample stock of cigarettes. His increment had never been linked to his performance. In 2011 his title changed to Trade Marketing Representative but his role did not change.

Long after his appraisal meeting, while having a coffee with his line manager, he was told that he had only been given a partial increment. He had not noticed that his increment was partial as there was only a slight difference in the amount. He was taken aback but let it go as it was such a small difference and could be fixed the following year. However the following year he was refused an increment because he was not meeting criteria. He received a more aggressive appraisal citing issues with his performance that he had never heard of before. He understood the appraisals were for the bonus and not the increment. Only he and another employee had not reached the top of the increment scale.

He first got notice of the risk of redundancy on 23^rd May 2013. The new RDR role had a starting salary of €35k which represented a large drop in salary. He was shocked but ultimately decided to apply for the RDR role. He was later told his salary would be ring-fenced. He did not consider there to be any differences between the TMR and RDR roles. During the role play exercise he had given examples of his understanding of commercial and financial acumen and of analytical thinking. He found one of the actors in the role play to be unusually aggressive. During his employment he had many training sessions involving role play and had always received positive feedback. Others who were successful in the process had less experience than him in the job and did not have the training he had had in regard to role play. He believed it was the same role and accordingly not a genuine redundancy situation.

The claimant and another employee had challenged the lack of increment that they had been notified of in April 2013 and neither of them was successful in achieving the new role. He turned down the redundancy package. He secured a different job in April 2014 on €35k plus commission. He was seeking reinstatement from the Tribunal.

The claimant was cross-examined. He believed the new role was a sales role under a different name. His grievance over the increment affected his chance of getting the new role. He always had the expectation of his increment being paid. He was aware of a colleague not receiving the increment due to disciplinary action. He received his bonus the year that he got the partial increment. He was dismissed prior to the last year’s bonus falling due.

A former colleague of the claimant gave evidence. He was offered the role of RDR but took redundancy payment instead. He spoke to a RDR employee who said it was the same role as the witness was previously doing. He believed if the role was being ‘stepped up’ he should attract a higher salary not half of it.

Determination

Having considered the evidence of all parties the Tribunal was satisfied that a genuine redundancy situation did not exist in that the “Retailed Development Representative’s” role did not represent a change from of that of the “Trade and Marketing Representative”. The Tribunal was satisfied that the two roles were substantially the same and consequently a genuine redundancy situation did not arise under Section 72(a) of the Redundancy’s Payment Act 1967 in that the Employer did not cease to carry on the business which the employee was employed for.

In addition the Tribunal was satisfied that the provisions of section 72(b), (d) & (e) equally did not apply.

The Tribunal was also satisfied that the Claimant was more than capable to perform any additional functions required by the Employer.

Finally the Tribunal was not satisfied that the reduction of the amount of persons required to do the Claimant’s role was grounds to dismiss the Claimant or deem the role redundant particularly in circumstances where outside contractors were engaged to do the role the claimant had been doing following on from his dismissal.

Accordingly, the Tribunal finds in favour of the Claimant and directs that he should be re-instated to his employment under the same terms and conditions that existed prior to his dismissal.

The Tribunal was satisfied that the incremental payment which had been paid to the claimant in previous years prior to non-payment fell within the definition of wages as being “any sums payable to the Employee by the Employer in connection with his employment including any bonus or commission …” The Tribunal was not satisfied with the evidence from the Respondent that the increment was performance related and was satisfied that it was payable to the Claimant under the Payment of Wages Act.

Accordingly, the Tribunal found that the non-payment of the incremental part of the Claimant’s salary is in contravention of the Payment of Wages Act and the Tribunal awarded the Claimant the sum of €2,000.00 under the said Act in respect of the said breach.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)