ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002072

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 30/01/2017

Workplace Relations Commission Adjudication Officer: John Tierney

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 [and/or Section 8(1B) of the Unfair Dismissals Act, 1977, and/or Section 9 of the Protection of Employees (Employers’ Insolvency) Act, 1984, and/or Section 79 of the Employment Equality Act, 1998, and/or Section 25 of the Equal Status Act, 2000] following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Respondent’s Submission and Presentation:

The Respondent on noting consistent underperformance as a store manager throughout 2014 gave her a number of verbal warnings and informed her performance would be monitored on a monthly basis. Following a meeting on this issue on 6 January 2015, a letter was sent to her requesting her to consider three options; two less pressured positions or improve her performance over the following month.

In a further conversation, the claimant did not want to move to the other positions but intended to improve her performance. The Respondent offered her all possible supports to achieve this. However, her performance did not improve and she was issued with a final written warning on 16 March. On 27 April the Claimant’s solicitor wrote seeking an appeal to the first warning. On 27 June the Respondent asked her to submit grounds for an appeal. As the Claimant was on holidays it was put back until she returned to work 13 July 2015. No response setting out the grounds for the appeal was ever lodged.

In the meantime another employee replaced the Claimant while on holidays. The performance of the store improved. On her return the Respondent decided to allow her to continue to make efforts to improve but this did not happen. On 18 November 2015 she was invited to an investigatory meeting to determine if disciplinary action should commence. Following this a formal disciplinary meeting took place on 30 November. She attended this with a colleague and was allowed to make case.

By letter of 8 December, the Respondent sent her a letter terminating her employment for persistent poor performance. She was also advised that she could lodge an appeal within 10 days to an independent HR consultant. She replied on 18 December but did not lodge an appeal but referred the matter to the Workplace Relations.

Complainant’s Submission and Presentation:

In November 2014, the Claimant was informed that the brand owner would be visiting the store. This happened on 1 December. The visit lasted 20 minutes. Later that day she received a phone call from a manager telling that the brand owner was not happy with the store. The chain of events that ended with the unfair dismissal of the Claimant started with the visit of the brand owner on 1 December. This was confirmed in the Respondent’s letter on 1 December 2014. The Claimant’s store had been merchandised to the exact specifications of the Respondent. The events that flowed from that visit caused the Claimant to work in a highly stressful environment throughout 2015 and ended with her unfair dismissal.

The Respondent failed to provide the Claimant with any details prior to the meeting of 6 January 2015. She was not told it was a ‘performance’ meeting; was not given an opportunity to be represented and was not aware that this meeting was the commencement of a process that could result in the termination of her employment. The proposed actions; move to another store or meet impossible targets in one month – were unreasonable, unfair and in breach of their own disciplinary procedure.

The Claimant worked for the Respondent for over eight years during which time she had an excellent work record. In November 2014, on the direct instructions of the Respondent she implemented a merchandising plan for her store. The brand owner did not like it. It appears that the blame for this negative feedback was placed on the Claimant, even though she had carried out his instructions. It was submitted that the Respondent did not have substantial grounds for dismissal. In raising complaints concerning the performance of the Claimant the Respondent failed to take account of the proposals put forward by her.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

[Section 8(1B) of the Unfair Dismissals Act, 1977 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

I have considered the submissions of both parties. The Claimant had an excellent work record and had worked for the Respondent for eight year. It is impossible to ignore the fact that from the day of the brand owner’s visit the Claimant’s career entered a process that ultimately ended in her dismissal.

The question before the Hearing was the dismissal fair. In regard to the procedures set out in the Staff Handbook; the Respondent did not advise the Claimant of the agenda of the meeting of 6 January or the consequences thereof. Equally so, the Claimant did not lodge an appeal, setting out precisely the reasons for this in regard to the sanctions in the letters 16 March and 8 December.

The Handbook defines poor performance as gross misconduct.

The Claimant had at least two occasions where she could have had an appeal including an independent external appeal but did not. In the event of these being unsuccessful she had the remedy of referring them to the Workplace Relation Commission under the appropriate legislation as she has now.

Therefore, on the balance of probability, the Respondent at all times offered the Claimant the opportunity of an appeal according to the procedures in the Handbook; I do not find the dismissal unfair.

I do not find the claim of unfair dismissal well founded and it fails.

Dated:   28/04/2017