ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00002068
Complaint for Resolution:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00002813-001 | 23rd February 2016 |
Dates of Adjudication Hearing: 3rd August and 29th September 2016
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Procedure:
On the 23rd February 2016, the complainant referred a complaint to the Workplace Relations Commission pursuant to the Unfair Dismissals Acts. The adjudication took place on the 3rd August 2016 and the 29th September 2016.
In accordance with Section 8(1B) of the Unfair Dismissals Act, 1977 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Complainant’s Submission and Presentation:
The complainant commenced employment with the respondent on the 18th November 2014 and this came to an end on his resignation on the 2nd January 2016. He was employed as a sales executive and the respondent is a retailer of new and used cars. From the 1st December 2015 and thereafter, the respondent raised disciplinary issues against the complainant and he, in turn, raised a grievance about the manner in which he had been treated. He went on certified sick leave in December 2015. The complainant outlined that he was relying on the respondent’s Dignity at Work policy that provides a procedure for dealing with bullying and harassment complaints. A grievance procedure existed to deal with other matters. The respondent also provides disciplinary procedures, but what had occurred in this case was that the respondent had conflated conduct and performance.
In evidence, the complainant outlined he worked in one of the respondent’s showrooms. He reported to the Sales Team Leader and also worked under the Dealer Principal. He had performed well in the role and was neck and neck with a named colleague in sales. The respondent used a comprehensive system to measure work output, recording customer meets, walk-ins and sales. He was in the top two every month. The complainant outlined that the most important time of year was the period from January to March. The months leading up to the end of the calendar year were used to build up sales and he had 20 pre-sold cars by early December 2015. He was expecting to increase this to 50 over the coming weeks. The complainant said that there were daily performance meetings, meaning that any performance issues could be addressed quickly. There was also nowhere to hide because everything they did was recorded. In respect of the telephone calls, the complainant said that it appeared that the Dealer Principal had it in for him as it was the complainant’s calls that were frequently played during staff training sessions. His calls had been played for three meetings in a row. The Dealer Principal also never praised the complainant for anything he had done well in the workplace.
The complainant outlines that sales executives are required to record and code their interactions with potential customers and this includes the “closed/lost” category where the executive is unable to achieve a sale. In respect of the events of the 28th November 2015, the complainant had spotted a named customer approach the showroom and knew that he had previously not been able to achieve a sale with this person. This customer had been recorded as closed/lost. The complainant asked the receptionist not to forward this customer to him and that he should be referred to a different sales executive. This customer had provided different telephone numbers on visits to the showroom. A colleague dealt with this customer. The complainant outlined that it was practice for sales executives to handover customers where negotiations do not work out. In this case, the customer was not left waiting. At this time, the complainant received telephone calls from the Sales Team Leader and the Dealer Principal to ask why a customer was waiting in reception when they were two sales executives free to meet customers. The complainant said he suspected that the Dealer Principal had been monitoring the workplace via an app on his phone. He also had a conversation with the Sales Team Leader that became heated and they agreed to deal with this at a later date.
On Tuesday, 1st December 2015, the complainant met with the Sales Team Leader and the Dealer Principal, where he was asked about the events of the previous Saturday. The complainant provided an explanation, but the Dealer Principal became very angry and the complainant described the meeting as being “a barrage”. The Dealer Principal said that the complainant was “a bad fit” for the respondent and that he walks around this place with “an aura”, as well as accusing the complainant of wanting his job. The complainant said that he was taken aback by what was said to him. The Dealer Principal also raised other issues, for example involving the staff canteen and other older complaints. The complainant said that these issues were dead and buried and did not know where they were coming from. The Dealer Principal then said that the complainant should go home and write out the reasons why he should work for the respondent. He also asked the complainant where he saw himself. The complainant said that this was a set-up and an attempt to get him to react. He was flying in sales and getting on with his colleagues. The meeting was to be reconvened on Thursday. The complainant went back to work and rang a number of customers. He then felt unable to work and went on sick leave.
On Thursday, 3rd December 2015, the complainant met with the Dealer Principal and the Sales Team Leader. He was asked to account again for the events of the 28th November. The Dealer Principal said that because of the lack of clarity in his responses, the complainant was being asked to attend a disciplinary meeting on the following Monday. The complainant asked whether the respondent was criticising him or what he did. He understood that the respondent did not want him around. He was not asked to work that day or to return to work. The complainant said that these events freaked him out and he went to his GP. He commented that he went from everything going well on the 27th November to having to attend a disciplinary hearing on the 7th December.
The complainant attended the disciplinary meeting on the 7th December 2015. This was conducted by the Sales Team Leader with a named colleague as note taker. The complainant said that the Sales Team Leader told him that he did not need a witness. They discussed the events of the 28th November and the complainant was asked whether he was customer-centric. The complainant raised the Dealer Principal’s comments and they replied that they wanted the complainant to work there. The complainant said that he does not recall getting the letter of the 7th December, which was the letter issued by the Sales Team Leader inviting him to a disciplinary hearing.
The complainant outlined that on the 3rd December 2015, he emailed the Company Secretary to raise his concerns about the two meetings with the Dealer Principal and the Sales Team Leader. He did so as he felt his cards were marked and he needed protection as he was dealing with number “1” and “2” in the garage. The email raises the conduct of the meetings as well as historic issues arising in the workplace. The complainant was again in touch with the Company Secretary on the 15th December to invoke the grievance procedure in relation to these complaints. The complainant met with the Company Secretary on the 22nd December and explained the situation to him. The Company Secretary appeared concerned about this. He received the outcome to the grievance on the 29th December, which stated that there were insufficient grounds to uphold the grievance and makes reference to mediation. The complainant said that he had texted the Company Secretary on the 16th December to ask for mediation. By the time of receiving the letter of the 29th December, the complainant said that Christmas had come and gone and he felt let down by the delay of the respondent in advancing this during this busy time. The customer in question had not made a complaint and he felt that his cards were marked. He could be put under performance management at any time. The complainant said that between the 16th and 29th December, he had doubts about the internal investigation and that he was taking on the number “1” and “2” in the garage, as well as the fact that the Dealer Principal was the principal of the leading garage in the group. The complainant said that he felt an appeal to the CEO would be fruitless as he was hardly going to go against the Dealer Principal.
The complainant outlined that he resigned on the 2nd January 2016 as his cards had been marked since the first meeting of the 1st December 2015. He had to write out a list of why he should keep his job, but asked where it would go from there. The sales process was micro-managed and there was already no margin of error; it was only a matter of time before an incident happened again. The decision to resign was a massive one as he was walking away from a €70k job at the busiest time of year. The complainant explained this to the respondent in an email of the 2nd January 2016. In respect of the follow-up correspondence from the respondent, the complainant said that he decided not to pursue the matter with the respondent. He outlined that if you go missing for a month, your customers go elsewhere and that this was a team of 8 or 9 where people talk. He said that he needed to chill out after these events and that a massive weight had been lifted from his shoulders. He had been the number 1 or number 2 sales person in the number 1 garage in the country; the sales team had good craic and there was good money in the role. The events of December 2015 led him to resign. It had not been possible for him to find a similar role as the car sales environment was a small, close-knit community.
In cross-examination, the complainant said that because he resigned, he missed out on the most lucrative time in the year for sales. This was particularly the case as December 2015 had been the best year for 10 years. It was put to the complainant that the complaint form states that he was dismissed on grounds of seasonality; the complainant said that the Dealer Principal wanted him gone. It was put to the complainant that he had been told he was doing well; he replied that it was acknowledged that his sales were good, for example he featured in a staff newsletter. The respondent referred to an email of the 28th January 2015, which the complainant said he would keep. In relation to the customer of the 28th November 2015, the complainant said a named colleague had dealt with this customer and that the customer had denied giving different phone numbers. It was put to the complainant the customer had two phone numbers. It was put to the complainant that the meeting of the 1st December was not an ambush as the Sales Team Leader had mentioned an invitation to such a meeting; the complainant replied that the meeting on the 28th November had become heated and he did not recall any such invitation. The complainant acknowledged that the meeting on the 1st December had been scheduled on his calendar for this date. It was put to the complainant that the email of the 1st December clearly referred to the issues of performance and attitude; the complainant replied that this was the first he ever saw of the email. It was put to the complainant that, in fact, it had been he who had raised historic issues; he replied that this was ludicrous and he did not raise these additional issues. It was put to the complainant that the Dealer Principal would deny asking the complainant to write a list. The complainant said that he was told to come back with a list written up. It was put to the complainant that the reference to his employment being “untenable” in the email to the Company Secretary on the 3rd December showed that he had already decided to resign; he replied that this reflected how seriously he regarded the comments made to him and that he had not then resigned. It was put to the complainant that the respondent texted him to ask where he was; he acknowledged receiving the messages.
The complainant replied that between the 3rd and 15th December, he had understood that the Company Secretary was working away on the investigation on his grievance. He had received the employee handbook but this was in work and not available to him during December 2015. He did not recall receiving the invitation to the disciplinary meeting and that he would have brought a union official with him. The complainant said that the customer of the 28th November had previously given a different name and number on visiting the garage. The complainant said that he sat at the first desk and spoke to everyone visiting this area. He did not wish to speak with this customer and used his head so that another sales executive might bring home the sale. In respect of the illness certificates, the complainant said that he presented a certificate at the meeting of the 7th December and that he had not been sleeping. He also raised this with the Company Secretary during the course of this week. It was put to the complainant that his grievance was a response to the disciplinary matter; he said that he had already raised the grievance in the email of the 3rd December. He said that he had referred to bullying and harassment in the email of the 3rd December and did not wait to raise this issue until the 16th December, as claimed. He outlined that neither the dignity at work, nor the bullying and harassment policies were appropriate. He met with the Company Secretary on the 22nd December and was happy for the matter to rest over Christmas. He asserted that he was the first to mention mediation.
In further cross-examination, it was put to the complainant that he had failed to exhaust the respondent internal procedures; he replied that the CEO would have gone with the Dealer Principal. He was asked whether he tried to appeal; he replied that this was as far as he could reasonably go, he had gone up two or three tiers and did not go to the fourth. The respondent letters of the 4th and 12th January were put to the complainant; he replied that this was not a decision he took lightly, but easy to do in the end. It was put to the complainant that the letter of the 12th January offers to organise an external appeal; the complainant that this offer was only made weeks later and he had been through hell in the intervening period. He said that the writing had been on the wall for him because of what the respondent had said to him. In respect of mitigation, it was put to the complainant that he had bided his time and not sought roles within the industry; he said that he had been due to start a car sales role in late March but this fell through. He had applied for other related jobs, but this was difficult because the respondent was so prominent.
The complainant outlined that his last P60 showed that his annual income was €70,490 and that he had had the use of a company car and company phone. Addressing mitigation, the complainant said that he had worked in a restaurant between the months of January to July 2016 and earned €6,521 in this period. He had applied for a role with a named car retailer but this had fallen through at the last minute. He had felt unable to apply for other roles in the car retail trade as he could not explain how his employment with the respondent had ended, especially given the size and stature of the respondent.
In closing comments, there were four issues to be decided in this case. The first relates to the respondent’s behaviour between the 1st and 16th December. At best there was extreme confusion whether this was a misconduct or performance issue and the need for separate processes to manage these issues. In respect of the failure to exhaust internal procedures, the complainant referred to Conway v Ulster Bank Ltd (UD 474/1981) and said that the onus was on the employee to substantially utilise grievance procedures. The complainant had invoked the grievance process and substantially utilised it. Thirdly, the respondent had not behaved reasonably in invoking the disciplinary procedure in the circumstances of this case. In respect of mitigation, the complainant faced reputational issues on leaving the respondent and would have to explain the circumstances of his departure.
Respondent’s Submission and Presentation:
The respondent denies the claim of unfair dismissal. Two sales colleagues of the complainant gave evidence. The first outlined that he had worked with the complainant for 13 months and they had a good relationship. In early December, they had had a conversation where the complainant was annoyed and had said that he would leave the respondent’s employment if he could get what he was owed. The sales executive stated that the Dealer Principal always behaved well. In cross-examination, the witness said that the discussion with the complainant took place in early December. He was aware that there had been a couple of meetings between the respondent and the complainant. He had given the respondent a statement in December 2015 of what was said in this conversation with the complainant. He acknowledged that he continues to work with the member of the respondent management subject of the complainant’s grievance. He said that customers could ask for whichever sales executive they wished for.
The second colleague gave evidence. He was present in the garage on the 28th November and saw the customer attend the premises. His number had not come up on the system and he concluded that the customer had given a different number. It later became apparent that the customer had two numbers. He asked the receptionist to pass the customer to another sales executive, but no one took him. He later spoke with the Sales Team Leader and was asked to attend a meeting. At the meeting on the 1st December, he admitted that he should have taken the customer. In cross-examination, he replied that he would always go back to a customer even where listed as closed/lost. He accepted that it was not in the interest of a sales executive to hand over customers. He said that he had not been told to stop talking to the complainant and that the words in the written statement were his own. He acknowledged that he still worked for the respondent.
The Sales Team Leader gave evidence. He outlined that he led a 12-strong sales team in the showroom and had worked for the respondent since 2011. He had hired the complainant and also provided him with his contract of employment and the employee handbook. He outlined that the complainant’s role was to sell new and used cars and to ensure customer satisfaction, including after sale. There was a duty to contact customers after sale to check on their satisfaction.
On the 28th November 2015, the Dealer Principal had raised a query about the number of cars in the customer car park and the Sales Team Leader went onto the floor. He saw people waiting to be seen in reception and spoke with the complainant about why one customer had not been seen. The complainant said that this customer was slippery. The Sales Team Leader denied that this had been orchestrated. The Sales Team Leader then organised a meeting with the complainant and he accepted the invitation. At the meeting, he, the complainant and the Dealer Principal discussed the incident of the 28th November as well as a separate customer complaint that had been received by email on the 29th November. He accepted that this complaint had not been raised with the complainant prior to the meeting of the 1st December. The Sales Team Leader said that he asked the complainant for his feedback and said that in early November, they had had training on being customer-centric. He denied that the Dealer Principal had been in a rage and it was the complainant who had raised other topics. The Sales Team Leader said they addressed the historic issues raised by the complainant but said that they were not there to address these issues. He acknowledged that the Dealer Principal and the complainant had a conversation where the complainant asked what he was to do after the meeting and the Dealer Principal replied that he “did not give a f***”. After the meeting, the complainant went down to work and later said that he was sick.
The Sales Team Leader also met with the other sales executive who had not dealt with the same customer. The Sales Team Leader said that it was not common for sales executives to handover customers to each other. When a customer came back to the showroom, this suggested that they had had a good customer experience. In the case of the customer of the 28th November, nothing suggested that he was slippery or a liar. Generally, it fell to a sales executive to negotiate the sale and it might be necessary to bring in management to close the sale. It was not permitted to have customers waiting to be seen while employees were seated at their desks. This is what the complainant did and led another employee to do the same.
In respect of the meeting of the 3rd December 2015, this had been convened to allow the complainant to reconsider his position regarding the customer. The complainant had not been asked to think about his job and his job was not at risk. He outlined that they discussed what being customer-centric meant and they were seeking to move on from this. After this meeting, the respondent had sought to contact the complainant by telephone but could not reach him. The complainant never returned to work. In respect of the meeting of the 7th December 2015, the Sales Team Leader said that the complainant handed in a medical certificate backdated to the 4th December. He asked the complainant whether he was happy to continue the meeting and he said he was. The complainant had been asked to this meeting by email. No outcome was ever issued from the disciplinary process as the complainant went out sick and the Sales Team Leader had written to the complainant to say that an outcome would be issued once he was back at work.
After the meeting of the 7th December, the Sales Team Leader said that the Company Secretary had interviewed him as part of his own investigation. They discussed the other issues raised by the complainant at the meetings and the fact that things had got heated. The complainant was a very good salesman and there was no issue with him selling cars. They wanted him to be more customer-centric and it was necessary to look after customer satisfaction. The Dealer Principal had behaved ordinarily and did not ask the complainant why he should keep his job. The Dealer Principal had not made a reference to the complainant’s aura, nor that he had a bad attitude or was a bad fit. He acknowledged that the Dealer Principal had referred to the complainant’s wrong attitude. The Dealer Principal had also said that the complainant needed to review what had happened and to also be customer-centric.
The Sales Team Leader outlined that some weeks prior to the 28th November 2015, a friend of his had visited the showroom to buy a car and offered feedback on customer service. His suggestions led to changes in the layout of the store. The respondent also engaged a third party to assess telephone interaction with customers on a weekly basis in order to identify random examples of good and bad practice. It transpired that three of the complainant’s calls were pulled out for consideration at a staff meeting. The Sales Team Leader referred to notes of earlier staff meetings, for example the 1st April and also commented on a self-assessment completed by the complainant where he stated that he needed to refocus on each customer.
In cross-examination, it was put to the Sales Team Leader that the phone call from the Dealer Principal specifically referred to the complainant not meeting customers; the Sales Team Leader replied that the Dealer Principal’s query only related to it being busy and customers not being seen. It was put to the Sales Team Leader that the complainant was being monitored and he should have been told of this; he replied that the complainant was not being monitored. It was put to the Sales Team Leader that there should not have been two people at the meeting of the 1st December, in particular since that the Dealer Principal was not the complainant’s line manager; he replied that the Dealer Principal often attended meetings related to customer service. It was put to the Sales Team Leader that his denial that the Dealer Principal had referred to bad fit contradicted his own minutes of the meeting; he did not accept that these words were used in the minutes. The Sales Team Leader acknowledged that a customer might be passed between sales executives, for example where one was busy or on annual leave. In relation to closed/loss customers, the Sales Team Leader said that by returning to the showroom a customer was open to being dealt with by the previous sales executive. It was put to the Sales Team Leader that the complainant had acted to secure the sale; he replied that the issue was that a customer had been left waiting while two employees were available. The other employee had accepted that this was wrong. It was put to the Sales Team Leader that the difference amounted to the reaction of the two employees and that the matter progressed to disciplinary without any opportunity being afforded to the complainant. The Sales Team Leader replied that there had been two issues: the complainant’s behaviour and his standing over it. This amounted to misconduct and the meeting of the 3rd December had been to get his feedback on these issues. He said that the respondent was entitled to move to disciplinary having had the complainant’s response to the issues raised and that they related to performance matters. The Sales Team Leader was asked whether every performance issue led to a disciplinary process; he replied that it depended on the case. It was put to the Sales Team Leader whether it was correct to tell the complainant what was wrong but not give an opportunity to correct this; he replied that the complainant was out sick so could not implement feedback and he accepted that he had no opportunity to implement the feedback. The Sales Team Leader accepted that there was a general issue with the complainant and customer satisfaction and pointed out that other issues relating to the complainant had not led to disciplinary action. The Sales Team Leader was asked whether the disciplinary process related to general issues or to specific issues; he replied that it related to the two specific issues. He said that the meeting of the 7th December had been about many issues and that the complainant was out sick so could not implement the feedback given to him. He said that they had just done customer training so this should have been fresh for the complainant. The Sales Team Leader described the meeting of the 7th December as a disciplinary investigation and this took place after two meetings to get feedback from the complainant. There were only two issues before the disciplinary process and there was a need for a further meeting to inform the complainant of the outcome. This never took place as he would out sick. It was put to the Sales Team Leader that he should have completed the disciplinary process by writing to the complainant with the outcome; he replied that it was necessary to reconvene the hearing to complete the process. It was put to the Sales Team Leader that it had been oppressive to have three meetings within one week and for the way the issues had been expressed to the complainant; he did not accept this. He acknowledged that the complainant had 20 pre-sales at the time of his resignation and that he had lost this income.
The Dealer Principal gave evidence. He outlined that he has worked for the respondent for ten years and was the dealer principal. He was responsible for the overall performance of the dealership and the management of 75 or so staff, including ten direct reports. He outlined that the role of the sales executive is to sell, using customer excellence. When he met the complainant at the outset of his employment he had emphasised customer satisfaction and they did not discuss sales at this time. The sales executive represents the respondent and this is important given the respondent’s prominence in selling one high profile brand of car. This relationship led to the emphasis on customer satisfaction.
In respect of the 28th November 2015, the Dealer Principal outlined that he was checking CCTV footage of an unrelated incident when he saw on the live stream that the customer car park was full, but that no sales had been recorded. He then rang the Sales Team Leader, who was working in the office. The Dealer Principal only became aware of the incident at the close of business and he agreed with the Sales Team Leader to meet the complainant the following Tuesday. At this meeting, he wanted to establish what had happened, given that there were staff available. It was a formal meeting in the sense that it took place in the boardroom, but took place immediately after a sales meeting in the same room. He also raised the separate customer complaint that had been received on the 29th November. The Dealer Principal outlined that the respondent had not invoked the formal procedure and wanted to establish what had happened. In respect of handovers, the Dealer Principal said that it was not common practice for sales executives to handover customers to colleagues and could occur when an executive was busy. The issue in this case was that sales executives had walked by while a customer was waiting to be seen. The complainant explained what had happened during the incident, including telling the receptionist not to refer the customer to him. The Dealer Principal stated that he asked the complainant whether this action was customer-centric and asked the complainant what being customer-centric meant. The Dealer Principal asked the complainant whether it was okay for this to happen; the complainant replied ‘yes’ and the Dealer Principal said that it was not okay. This meeting lasted for 40 minutes and they could not agree with the complainant about anything. The Dealer Principal had said that the complainant had the wrong attitude. It was the complainant who raised other issues and the Dealer Principal acknowledged that he had raised the dishwasher issue. He said that once he had dealt with an issue with a staff member, it was done and he did not bring it up again. The complainant was not getting the customer-centric message. The Dealer Principal asked the complainant what he understood the respondent was seeking to achieve and was asked to write down what had happened. The complainant then threw the pen and asked what he should do. The Dealer Principal replied by saying “I don’t give a f*** what you do, sell cars, go to Spain.” He denied being angry at the meeting or foaming at the mouth. It was a long meeting where nothing could be agreed and where the complainant had shown disrespect for the business. He had raised the company’s values and the complainant had stood over his actions. The Dealer Principal outlined that he met with the other sales executive involved in the incident of the 28th November. This executive said that he was embarrassed for his actions and apologised. This led to the meeting taking a different direction to the complainant’s.
At the meeting of the 3rd December 2015, the Dealer Principal said that the complainant had referred to being ambushed at the previous meeting and he replied that the complainant had had a few days since then. The separate customer complaint had been new. The complainant had said that he should not be at this meeting and that he was being micro-managed. The Dealer Principal replied that he wanted to draw a line in the sand and to have a meaningful conversation. The meeting only lasted five minutes and the Dealer Principal said that the respondent might need to invoke the disciplinary procedure. The complainant then left.
The Dealer Principal said that he then received a phone call from the Company Secretary, who also forwarded the complainant’s email. The Dealer Principal recused himself from the process. He outlined that he had not raised the issues mentioned by the complainant in his email except for the dishwasher. The email did not represent what had happened at the meeting and serious allegations had been made against him. The Dealer Principal outlined that he met with the Company Secretary a couple of weeks later in relation to the grievance and he was not aware what had happened at the disciplinary meeting. He was aware the complainant was out sick. The outcome of the disciplinary meeting did not affect him.
The Dealer Principal outlined that these events occurred at the busiest time of the busiest year for many years. It was hard to find good sales people. He said that there had not been a vendetta against the complainant and his job was not in question. The complainant was not dismissed because of seasonality. The meeting regarding customer improvements in the garage in early November was not contrived and led to small changes. The Dealer Principal said that he had not used the word “aura” but he had said that the complainant thought he could walk on water and not fall through; it was the complainant who used the word “aura” in reply. In relation to the phone calls replayed in staff meetings, the Dealer Principal had no role in selecting the calls to play as they were chosen by a third party firm that monitored the respondent’s calls for training purposes.
In cross-examination, it was put to the Dealer Principal whether he had said to the complainant that this issue arose because of what he had seen on CCTV; he repeated his evidence in reply. The Dealer Principal was asked why had he been present at the meeting of 1st December as he was not a line manager; he replied that he had wanted to understand what had happened and that he was responsible overall. He took customer satisfaction seriously and accepted that this meeting was not a disciplinary meeting. It was put to the Dealer Principal that this meeting was to consider two issues; he replied that while he had raised the separate dishwasher issue, it had been the complainant who had raised the other customer service issues. In respect of closed/loss, the Dealer Principal replied that it was preferable that such customers were dealt with by the same sales executive as they would have already negotiated on a possible sale. It was put to the Dealer Principal that the complainant was not in the business of passing up on sales; he replied that the complainant had described this customer as slippery and that he did not want to waste his time on him, having tried to previously sell him a car. The Dealer Principal was asked why the respondent had not told the complainant what he may have done wrong; he replied that the complainant could not understand that what he had done was wrong. Addressing the differing treatment of the complainant and his colleague, the Dealer Principal replied that the colleague had owned up and they were able to move on. This colleague had also eventually dealt with the customer on the 28th November. The Dealer Principal outlined that this colleague had worked for the respondent for five years and had received warnings regarding sales, which had since expired. He accepted that the complainant had received no warnings.
In respect of the meeting of the 3rd December, the Dealer Principal was asked whether it was appropriate to have asked the complainant to write down how he would improve; he replied that the purpose of the meeting was to discuss the two issues and it was a general chat. The complainant could not understand why he was there and the Dealer Principal asked him to put time into improving customer excellence generally. This was a general issue and the Dealer Principal decided to invoke the disciplinary procedure because he was dissatisfied with the investigation, i.e. the meeting of the 1st December. He stated that this was a misconduct issue because of what happened on the 28th November and the complainant’s behaviour in the investigation. This was why the disciplinary procedure was used. The complainant’s job was not in question and this was far from gross misconduct. There was no basis to terminate his employment. Addressing whether this was a case of performance or misconduct, the Dealer Principal replied that performance issues tend to relate to sales, but could also relate to other parts of the role; misconduct related to breaches. It was put to the Dealer Principal that the respondent had availed of the opportunity to give feedback to the complainant but that the complainant never had the opportunity to implement it and he should have been afforded this; the Dealer Principal replied that there was no opportunity because the complainant would not agree to what the respondent had said at the meeting of the 1st December and only agreed to attend a further meeting. The complainant could have come back to work on the 1st or 2nd December or after the 7th December. It was put to the Dealer Principal that the complainant was subject to a disciplinary hearing on the 7th December. The Dealer Principal was asked about the contents of an email of the 23rd December; he replied that he provided information regarding the historic customer service issues because the complainant had raised them in his earlier email and he sought to address the points. He could not recall who had requested the statistics he provided in the email of the 23rd December 2015 or had he volunteered them. He outlined that the bonus relating to the complainant’s pre-sales in this period was €8,000 and not €14,000; they would have remained with the dealership.
The Company Secretary gave evidence. He outlined that he was Group Company Secretary of the respondent. He had received an email from the complainant on the 3rd December and spoke with both the complainant and the Dealer Principal. He wanted to check whether anything wrong had occurred. The complainant made a formal complaint on the 15th December and that the Company Secretary had been waiting in this period for follow-up from the complainant. He outlined that he was prepared to investigate this under the bullying and harassment procedure and the grievance procedure. There was a difference between the policies in that he could hear the grievance complaint and an appeal would lie to the CEO; an outsider would have to investigate a bullying and harassment complaint and there was no senior person in position to hear any appeal. The Company Secretary outlined that he met with the complainant on the 22nd December and he raised no issue about the process. He then issued his report on the 29th December. He said that he had different versions of events before him and it was important for him that the complainant and the other sales executive were treated in the same way. There was no issue in the emails exchanged by the parties. The Company Secretary also referred to positive comments made by the Dealer Principal about the complainant some weeks before these events, although this only occurred to him subsequently. The way forward was mediation, to resolve the differences between the parties. The Company Secretary said that he asked the complainant to reconsider his resignation and offered an external person to hear an appeal. The only next contact with the complainant related to a one-for-all voucher and the later issue of a P45.
In cross-examination, it was put to the Company Secretary that the complainant and the other sales executive were treated differently with only the complainant being subject to a disciplinary process; he replied that the colleague had put his hands up and it was the way the complainant reacted to the feedback that was the issue here. He was not aware of previous warnings given to the colleague and this would not change his view. It was put to the Company Secretary that the complainant was not given the opportunity to respond to feedback given by the respondent; he replied that the complainant was given this opportunity, for example in the period of the 1st and 7th December. There was no outcome to the disciplinary process and the grievance was escalated because it related to the line manager and principal of the showroom. While the Company Secretary spoke with the Dealer Principal on the 3rd December, he did not agree that he was compromised as he had not attended the meetings of the 1st and the 3rd December. He did not agree that there had been a need for a formal meeting between the complainant and the respondent. The Company Secretary said that it was he who asked for the figures produced by the Dealer Principal in his email of December 23rd. In respect of the outcome, the Company Secretary said that there was not enough to substantiate the grievance.
In closing comments, the respondent outlined that there was an obligation on an employee to exhaust all internal procedures prior to the submitting their resignation. The complainant had ignored the offer of mediation and the options of an internal and external appeal. The complainant states that he suggested mediation but he did not follow up on the later offer from the respondent. He alleges mismanagement but all employees were managed in the same way. The respondent referred to a newsletter that praised the complainant. The respondent had asked the complainant what he could do to improve his customer focus, not to keep his job. It was clear during the process that the complainant could be accompanied at meetings. In relation to mitigation, the complainant had raised the reason of “people talk” in the motor trade but he was covered by a sick certificate for this time so could have given any reason. The respondent referred to the complainant’s comment that he needed to chill and that it was open to him to walk into another role in the industry.
Findings and reasoning:
The complainant was employed by the respondent as a sales executive in one if its car showrooms. He resigned from his employment on the 2nd January 2016. He asserts that the respondent breached his contract of employment in the manner in which it pursued a disciplinary process against him and acted outside its own policies. He says that the respondent breached the term of mutual trust and confidence in the employment relationship. The complainant relies on the reasonableness test of constructive dismissal and that it had been reasonable for him to resign, given the manner in which the disciplinary process had been undertaken. It is submitted that it was reasonable for the complainant to conclude that it was futile for him to appeal the decision arising from the grievance process.
The respondent denies the claim, asserting that the complainant has not met the burden of proof in a case of constructive dismissal. It asserts that it was entitled to avail of the disciplinary policy to address certain issues and had not been able to finalise this because of the absence of the complainant and then his resignation. It submitted that it had acted reasonably in using its disciplinary and grievance policies and that the complainant had not substantially utilised the grievance procedure prior to his resignation. It refers to case law of the Employment Appeals Tribunal.
In respect of the relevant legal tests, the parties accepted that an employee could assert constructive dismissal on either the ‘breach of contract’ test, or the ‘reasonableness’ test. The breach of the employment contract claimed in the instant case is of the term of mutual trust and confidence. The Supreme Court in Berber v Dunnes Stores [2009] 20 E.L.R. 61, held that the test for whether employer conduct has breached the implied term of mutual trust and confidence in every contract of employment was an objective one. Finnegan J. held:
“1. The test is objective.2. The test requires that the conduct of both employer and employee be considered.3. The conduct of the parties as a whole and the accumulative effect must be looked at.4. The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.”
In respect of the reasonableness test, the respondent points to a number of authorities, including An Employee v An Employer (UD 720/2006) where the Employment Appeals Tribunal held “We however find that the claimant did not exhaust the grievance procedure made available to him by the respondent and this proves fatal to the claimant’s case. There was no reason put forth as to why an appeal to [senior manager] would have been unfair or biased and we accept that his failure to avail of this right by resigning on [date] is fatal to his claim… In constructive dismissal cases it is incumbent for a claimant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair.”
There were sharp conflicts of fact between the parties as to what followed the incident of Saturday, 28th November 2015. Different versions were presented regarding the words said by the parties, and their tone, at the meetings of the 1st and 3rd December, in particular those of the Dealer Principal. There was conflict over who had brought up historic issues outside of the dishwasher issue which the Dealer Principal acknowledged he had raised. Given that this case presents such sharp conflicts, the best starting point is to ask whether the complainant can succeed if every conflict of fact is resolved in his favour. If he cannot discharge the legal burden in these circumstances, it will not be necessary to resolve the conflicts.
Having reviewed the oral and written evidence of the parties, I make the following findings. This dispute arose at a very busy time of year for the respondent and the team of sales executives, including the complainant. It is an environment in which the performance of staff is measured closely. The parties referred to regular play back of telephone interaction with customers and the Dealer Principal was able to provide comparative statistics for sales staff in his email of the 23rd December 2015. It is obvious from the complainant’s email to the Company Secretary of the 3rd December 2015 that there had been considerable past interaction between the complainant and the Dealer Principal. Their meetings of the 1st and 3rd December can be described as confrontational. The meeting of the 1st December was 40 minutes in duration and the complainant asserts that he was subjected to a barrage from the Dealer Principal. He says he was asked to write down why he should keep his job. The Dealer Principal acknowledges swearing during the course of this interaction. On the 3rd December, the complainant referred a grievance, stating that this behaviour amounted to bullying and harassment.
There was a meeting between the Sales Team Leader and the complainant on the 28th November. This related to the incident of not seeing a particular customer. On the 1st December, the complainant was asked to meet with the Sales Team Leader and the Dealer Principal. At the meeting, the respondent raised a separate customer query that had been received over the weekend; this is not in adherence with the disciplinary procedure where the employee should receive due notice of issues under investigation. A second meeting was held on the 3rd December and further to this, the complainant attended a disciplinary meeting on the 7th December. No finding was ever issued to the disciplinary process. On 3rd December, the complainant referred a grievance and this was subject to investigation after the 15th December. Investigation meetings took place on the 22nd December and a conclusion issued on the 29th December. It held that the grievance complaint could not be substantiated. It suggested mediation and referred to the right of appeal. The respondent later offered that this appeal to be heard by an external person as the complainant had questioned whether it was appropriate for an internal person to hear an appeal.
It is clear that there were discrepancies and errors in the respondent’s approach to the incident of the 28th November. A new issue was introduced without notice. Older issues were raised again. Bad language was used and one meeting, in particular, was lengthy and confrontational. No disciplinary finding was ever issued by the respondent. The complainant’s grievance was subject to a detailed investigation and found not to be made out. Mediation was suggested and the offer of both an internal and external appeal put forward.
Applying the legal tests outlined above, I do not believe that the complainant has met either legal test for constructive dismissal. Applying the objective test laid out in Berber, I have regard to the fact that the focus of the complainant’s issues related to the meetings of the 1st, 3rd and 7th December. One was a meeting of 40 minutes duration that was confrontational and, according to the complainant, a barrage. The second was a meeting of five minutes or so. While the complainant was unhappy with the course of these meetings, the disciplinary process had not concluded. There remained the opportunity to challenge, on appeal, whatever finding was reached. The number of meetings, of themselves, does not amount to grounds for an employee to consider that they have been constructively dismissed. While the grievance was not upheld, it did open up for the complainant the avenues of mediation and an external appeal process. Given that the grievance process had already considered his interaction with the respondent at the investigation meetings of the 1st and 3rd December, the complainant could have raised the behaviour of the Dealer Principal and other issues via the external appeal. Considering both legal tests and taking these factors together, the complainant’s resignation was premature. It cannot be said that he had no or little choice but to resign, or that the employer could be said to have repudiated the contract of employment. There was still some way to go in both the disciplinary and grievance processes. He may have been justified in criticising the conduct of the employer, but I cannot find that the circumstances amount to constructive dismissal. For the reasons outlined above, I conclude that the claim does not succeed.
Decision:
Section 8(1B) of the Unfair Dismissals Act, 1977 requires that I make a decision in relation to the unfair dismissal.
CA-00002813-001
For the reasons outlined above, I determine that the complaint of unfair dismissal does not succeed.
Dated: 9th February 2017