ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00002369
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-00003203-001 | 15th March 2016 |
Dates of Adjudication Hearing: 29th July 2016 and the 12th October 2016
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Procedure:
On the 15th March 2016, the complainant referred a complaint to the Workplace Relations Commission pursuant to the Unfair Dismissals Act. The complaint was scheduled for adjudication on the 29th July and the 12th October 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 of the Workplace Relations Commission, 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.
Attendance at the Hearings:
By | Complainant | Respondent |
Parties | An account manager | A provider of payroll and HR support |
Respondent’s Submission and Presentation:
The Sales Director outlined that the respondent is a provider of outsourced services for payroll and human resources and deals with about 20% of the working population in Ireland. The respondent is a global business with a head office in the United Kingdom. The complainant was employed as an Account Manager and each Account Manager is responsible for particular clients and to achieve targets. One target was to achieve a 40% upsale on annual revenues. Targets were set collaboratively and further to a planning process undertaken by the Account Manager. They were also based on the potential of clients. The Sales Director said that he had his own targets and had to cascade down targets to the team of Account Managers.
The Sales Director outlined that he commenced in 2014 as part of a new management team appointed to the Irish operation. As Account Manager, the complainant had looked after 300 clients with a colleague (also in attendance at the adjudication) until the structural changes he introduced in 2015. Account Managers would now have individual responsibility in providing coverage to clients, in particular the large clients. 50 large clients had been divided between the complainant and her colleague. The targets set for 2015 had been set from the annual revenues for each customer. Globally, the respondent used an upsale target of 40% on Total Contract Value. It was possible to appeal such targets. The target assigned to the complainant had reduced to €2.4 million for 2015/16. While the complainant had mentioned that the targets were excessive, she did not appeal them. The Sales Director outlined that a programme of training had been provided on a monthly basis to enhance skills in the team. This involved training provided by internal and external trainers, as well as one-to-one training provided in the team.
The Sales Director outlined that the Performance Improvement Plan process was in place to assist and support colleagues who are struggling. The issue in the complainant’s case was attaining targets in respect of Total Contract Value as well as her ability to take on board the training and development provided. There is an informal lead-in to a PIP and the complainant had been given time to improve. He had also ensured that the process was flexible and extended from March to November 2015. He said that even where an employee is not meeting particular numerical targets, there can be flexibility where they are learning and improving their skills. He said that the complainant had been supplied with the PIP policy and she had not raised an issue regarding the process until the appeal against her dismissal.
The complainant was placed on a Performance Improvement Plan on the 3rd March 2015. The Sales Director completed a template document, providing detailed actions and timetables, including TCV Achievement Objectives, Service Review Meetings Objectives and a Revenue Recognition Objective. It was important that an employee under a PIP take on and implement the learning and strategy. In the complainant’s case, this involved engaging with customers so that she could to map out sales opportunities for them. It involved assessing what services the customer did not already obtain from the respondent, and to engage with the customer to develop and deepen the service. The Sales Director said that it was important for an Account Manager to meet and engage with customers to establish what opportunities there might be, and also to engage with more senior management. The complainant had not provided any evidence of meetings in her 12-month calendar. Her PIP performance target had been set at €1.1 million from a sales target of €2.5 million. The PIP related to the complainant’s performance and those targets that were solely hers to achieve.
In respect of the high street retailer, the Sales Director said that the respondent had a longstanding relationship with this retailer and he took the lead on this campaign. The contract was then worth a potential €2.1 million and while the complainant worked on the campaign, it could not be included in her PIP performance review. He said that the complainant had ably supported this campaign and she had also had the opportunity to see the process of a strategic plan. This campaign took place between October 2014 and July 2015 and the complainant had worked on it for 15 to 20 hours per week. He acknowledged that this campaign had been discussed in the course of the PIP, but that it had been agreed that only the sales campaigns which the complainant led were to be included in her PIP targets. The emphasis was on solution selling to clients and continuous improvement.
Following the commencement of the Performance Improvement Plan, the Sales Director outlined that the complainant had not produced the required Plan of Action by the 13th March 2015 and there was no evidence of increased engagement with customers. He had asked for account plans for two large clients, and while the complainant had provided good documents, they lacked strategic vision and a strategic plan to increase revenue. There was no win strategy in relation to the broadcaster client. He had a series of one-to-one meetings with the complainant and also raised the issue of field meetings, where he would join the complainant at sales meetings.
The Sales Director outlined that by the 9th April 2015, the complainant had not met the PIP target, which was the minimum, and had only achieved 26% of her annual target. She had achieved Total Contract Value gains of €659,000 against a performance target of €800,000. The gains she had achieved were some contract renewals and some new business. The Sales Director issued a verbal warning in line with Stage One of the PIP policy. He acknowledged that the complainant had raised service and support issues, but that allowances were made for this later and it was a matter of bashing heads together internally. By the 2nd July 2015, the complainant had achieved 73% of the minimum PIP target and there was little evidence of an improvement in solution selling. The Sales Director wrote to the complainant to issue a written warning in line with the PIP policy and the letter refers to forthcoming performance milestones for the end of July, August, September and October 2015. The letter also refers to the high street retailer being excluded from her targets. The Sales Director said that the complainant would be over her PIP target had the retailer been included but was under because it was excluded.
In respect of a named clothes retailer, the Sales Director said that this client was difficult to manage and bullying in their approach. He had to step in to push back on the client and to close the extension of the contract. While the complainant had contributed to this work, it fell to him to close deals. She had done well in managing the account and had got the customer into position, but this raised the issue of her being able to complete. Closing should be a natural progression and easy to complete; in this case, it had been difficult, so it must have been an issue with preparation. He confirmed that this contract formed part of the complainant’s Total Contract Value gain in this period and obtained commissioned.
In respect of an aviation client, the Sales Director said that there had been criticism of the complainant for confusing the customer. This had caused the Sales Director to negotiate with this customer from a weak position to secure a contract extension. At this stage, the complainant had required assistance on €400,000 of the gains attributed to her, and her colleagues did not require this level of support.
The Sales Director outlined that the August PIP targets had been pushed back to accommodate additional duties arising for the complainant as well as annual leave. He acknowledged that in September 2015, the complainant had come very close to achieving the PIP performance target, but there were still issues. By letter of the 9th October 2015, the respondent indicated that by making gains of €669,700 below the performance target of €700,000, it had no alternative but to go to Stage Three of the PIP Process and to issue a final writing warning. The Sales Director commented that the complainant had benefitted from mandatory changes to contracts and while she was good at implementing mandatory changes, they were small in value. The Sales Director referred to the bakery customer and that the complainant had admitted a mistake in selling a solution to this client that was not fit for purpose. He had to step in.
The Sales Director said that it was the ongoing underachievement and the historic underachievement that led the respondent to engage Stage Four of the PIP process. He was involved in the complainant’s accounts in excess of his role in the work of other colleagues. Taken together, this was not sustainable. The complainant had not met the PIP performance target and there had not been sufficient improvement in solution selling to clients. By letter of the 26th October 2015, the complainant was invited to attend a Stage Four meeting on the 3rd November 2015. By letter of the 6th November 2015, the respondent informed the complainant of the termination of her employment, to take effect on the 4th December 2015. The letter refers to the lack of ability to create higher value solution sales and that by the 31st October 2015, the complainant had achieved 83% of the performance target. The Sales Director outlined that the complainant had too little in the pipeline to achieve the performance targets, so there was no point in continuing the PIP.
The Sales Director outlined that he had supported the complainant via one-to-one meetings and his contribution to her accounts. The complainant had been one of a sales team of four and had shown significantly poorer performance in 2014/15. A named colleague had also been put in a PIP process in February 2015. The other account managers had shown continuous improvement in Total Contract Value gains and in solution selling, and he had not been required to become involved in their accounts. He referred to positive sales achievements of the sales team after the complainant’s departure. In respect of alternatives to the complainant’s dismissal, the Sales Director outlined that he considered alternatives to dismissal and other possible roles. He also asked two divisional stakeholders whether there was any suitable position for the complainant, but there had been no interest in re-employing her.
In cross-examination, the Sales Director acknowledged he had spoken with a named manager regarding potential alternative roles for the complainant and that he knew that a named colleague was going on maternity leave at this time. He said that he was not responsible for filling this colleague’s position. The contents of a reference from the complainant’s former manager were put to the Sales Director, in particular that she had eight years of good performance; the Sales Director replied that while the complainant had a good work ethic and professionalism, she was not exemplary in the sales role and it was difficult to track who performed well in what had been a job share. He said that he agreed with the reference except that there had not been enough evidence of success in sales. While the reference does refer positively to the complainant’s sales success, the Sales Director commented that this manager did not have sales experience while he had 28 years of experience in this area; what was at issue was the complainant’s ability to upsell. He said that during his tenure, sales figures went from a 9% decline to a 10% increase and that Total Contract Value has increased 26% across the board. The fact that the complainant was made an award in 2011 for achieving targets was put to the Sales Director; he replied that the working arrangement between the complainant and the colleague meant that it was an enigma who had met their targets. He said that there was ambiguity prior to 2014 due to the joint Total Contract Value targets and he could not agree with the statement that the complainant’s performance had dropped off a cliff on his arrival. It was put to the Sales Director that the complainant’s client base had been reduced to 25, while her targets increased by 2.5 times; he replied that the structural changes introduced followed a historically proven formula. The Sales Director outlined that he had provided one-to-one coaching and development and that he had regard to her prior performance. He commented that the business had been struggling. It was put to the Sales Director that he had made no positive comments in the PIP documentation; he replied that support had been given verbally and that she had done things well, referencing the high street retailer. The issue was that these campaigns were led by someone else. It was put to the Sales Director that the campaign for the high street retailer occupied the complainant for 25 hours per week during the six months of the PIP; he replied that in February and March 2015 he and the complainant had discussed that any deals involving this client would not be included in her PIP targets. This was referenced in 1b) of the PIP template of the 3rd March 2015, where any campaigns not primarily led by the complainant was an additional target to the TCV PIP target. He stated that the high street retailer was the only contract the complainant contributed to but had not led. It was put to the Sales Director that there was a reference to this specific campaign in the letter of the 2nd July 2015 but not in the March document; he replied that it had been a natural progression to include a specific reference to this customer in the July letter and he had followed the PIP process to the letter.
In respect of the Performance Improvement Plan process, the Sales Director said that he had supported the complainant as recorded in the documentation. He did not accept that the improvement in performance had been significant enough. He had played a direct role in the clothes retailer, the high street retailer and the aviation client; this was €900,000 of Total Contract Value that the complainant could not say was solely hers. The Sales Director was challenged over why the complainant had been given 0% credit for the contract with the high street retailer; he replied that he had been integral in this work and accepted that there was no document setting out each person’s contribution to the campaign. He commented that he had produced the documentation required by HR. It was put to the Sales Director that the Colleague had also been underperforming; he replied that she had been held up as a success and that as of the 10th April 2015, she had accrued €1.84 million in sales compared to €844,000 for the complainant. It was put to the Sales Director that this Colleague’s performance had been less good in 2016; he accepted that she had been less successful but that she had a good pipeline. In respect of another colleague, the Sales Director said that this colleague had started from scratch and had shown significant improvement, achieving 90% of his target. It was put to the Sales Director that the complainant’s target should have been €900,000 instead of €2.5 million with only 25 clients. It was put to the Sales Director that while sales had dropped off, they had recovered and including the high street retailer, she was at 103%. It was put to the Sales Director that he never adequately assessed the complainant’s performance prior to the structural changes. It was also put to him that the complainant had spent 50% of her time on the high street retailer; he replied that this was excessive. It was put to the Sales Director that the complainant’s role was a part-time role; he replied that the target of €2.5 million was achievable for a part-time worker and he took this into account in setting targets, although this was not specifically written down in the documentation. It was put to the Sales Director that the complainant had also taken parental leave in July and August 2015; he replied that they had discussed her personal circumstances and they had been taken into account in setting performance targets and their deferral. He said that he had been sympathetic and emphatic in dealing with the complainant and that he had written to the complainant as required by the policy.
In respect of the PIP policy generally and the document of the 3rd March 2015, the Sales Director was asked what the “likely causes” were for the complainant’s poor performance; he replied that this had been well articulated in the document and he had also discussed this with her verbally. He did not accept that the text inserted regarding “actions to be completed by the manager” was vague. The Sales Director gave an account of how staff members are appraised and commented that the complainant’s appraisals had not been submitted (they were submitted in advance of the second adjudication day). He stated that the training given to the complainant had related to account development plans. In respect of the improvement made in September 2015, he replied that this had not been significant enough, while acknowledging that she had been good at upgrading customers and moving them to a new system. He said that he was not concerned with the Colleague’s performance as she had taken on board and was executing the new role. The Sales Director stated that the decision to dismiss was made after the Stage Four hearing and not at any earlier time. It was put to the Sales Director that the formatting of the sales performance targets and their last reference being the end of October 2015 showed that this was the pre-determined end of the PIP; the Sales Director did not accept this and said that the complainant would not have been dismissed had she met the targets and she had received flexibility. It was put to the Sales Director that he was going through the motions; he did not accept this. The Sales Director said that he had looked into alternatives for the complainant and accepted that this should have happened with greater visibility. He accepted that the complainant had been paid commission on the basis of €1,238,000, including the high street retailer.
In further cross-examination, it was put to the Sales Director that the PIP targets had increased from 44% of the sales targets to 72%; he replied that the respondent engaged with staff to see what could reasonably be obtained. This was done collaboratively and with regard to what was in the pipeline. It was important that any target was attainable. In respect of the redress of reinstatement, the Sales Director said that he had a full sales team, but that the complainant could be a good project manager. There had not been a specific advertisement to replace the complainant and her role was filled internally. In respect of the PIP process, the Sales Director said that the complainant could have appealed at any stage. It was put to the Sales Director that it was only in July 2015 that the high street retailer excluded from her PIP targets, at a time when the complainant thought things were getting better; he denied this and replied that he had verbally raised with the complainant the need to stand on her own two feet and to achieve strategic selling. He commented that he believed in July 2015 that things were getting better. It was put to the Sales Director that the PIP policy refers to an employee receiving support but this has been used against the complainant; he replied that he had been constantly required to put together deals with the complainant.
In closing comments, the respondent said that lack of competence and poor performance could be grounds for dismissal. Referring to James v Waltham Holy Cross [1973] IRLR 202, there was a requirement on the employer to highlight failings and to warn the employee of the need to address the issues. There must also be an opportunity for the employee to address the issues and in this case, a period of eight months had been allowed for the complainant to improve performance. The respondent referred to Mary Redmond’s “Dismissal Law” and the requirement for an employer to have staged, progressive disciplinary system to address performance, and to allow for representation. It was submitted that the respondent had met this requirement and that the dismissal was fair. Moreover, regard should be had for the attitude of the employer, in particular its efforts to find alternative employment for the complainant.
Complainant’s Submission and Presentation:
The complainant asserts that she was unfairly dismissed and seeks the redress of reinstatement.
At the adjudication, the complainant referred to a landscape spreadsheet of her targets as an account manager from the commencement of the Performance Improvement Plan on the 3rd March 2015. This referred to PIP performance targets of €800,000 by March 2015, €1.1 million by April 2015 and €1.35 million by May 2015. This was to be contrasted to sales targets for the 2014-15 year, ending on the 30th April 2015, of €2.5 million. She outlined that new PIP targets had been imposed from July 2015 as her biggest client, the high street retailer, was now excluded. Over the course of the PIP, the PIP target as a percentage of the sales target was increased from 44% to 88%. She said that the letter of the 2nd July 2015 had affected her confidence. She was working long hours and achieved her targets to see the client she was spending 50% of her time on, removed from the PIP performance target. The complainant said that she hoped that when this customer “came in”, she would be sound, especially as this had been her client for years. It was unfair that she was expected to reach higher targets, even without her largest client. This had put her under pressure.
The complainant outlined that even without the high street retailer, she had met 83% of a higher PIP target by September 2015. She said that at the time the deal was signed with the high street retailer in late July 2015, she was the only account manager to have achieved her half year sales target. The complainant acknowledged that 2014-15 had been a poor year, but that she had since quadrupled her sales and was paid €15,000 in commission. Two months after the end of her employment with the respondent, she suffered an unconnected back injury, but would have been entitled to six months of paid sick leave.
In respect of the setting of targets, the complainant said that it had been the Sales Director’s way or no way; on his arrival, he had increased sales targets and changed the role of account manager. In respect of the high street retailer, she said that she had not agreed to this being removed for her PIP target. She had made a mistake in not appealing this at the time. She was devastated and concerned that she would lose a major client from her portfolio. In respect of the PIP process, the complainant said that a separate plan should have been devised at each stage of the process and she had never agreed to an abbreviated process. She said that she had been deflated following the meetings with the Sales Director, but felt reassured by the progress of the campaign with the high street retailer. In respect of the PIP document of the 3rd March 2015, the complainant acknowledged that there had been an underperformance in relation to sales, but she had given the Sales Director plans regarding large clients, such as the high street retailer and the broadcaster, but he had refused to believe that she was capable. She said that she had been devastated to have been put on a PIP as her performance had never been questioned before. She was assigned new roles in June 2014 and had taken parental leave in July and August 2014. In September 2014, she had to work on an old client and was aware that she was not meeting the new, higher targets. After that, she had worked long hours on client accounts but her target had changed from €1.8 million jointly to €2.5 million on her own.
In respect of the issues raised in the PIP, the complainant said that she had sufficient meetings and interaction with clients. In respect of the “Revenue Recognition Objective” provided in the document of the 3rd March 2015, the complainant said that this related to a licence to use the respondent’s system but that this had never been subsequently raised by the Sales Director. Her focus had been on her TCV PIP target. She said that it was unrealistic to have sales plans for every customer and that she had done her best and achieved better sales. In respect of the PIP process, she acknowledged that she had many meetings with the Sales Director, very little had been documented in writing. In respect of her appraisals, the complainant commented in 2012/13 she was deemed to have “met expectations” even though she had not met her Total Contract Value target. At that time, account managers were working hard to retain customers and it was permitted in Ireland and the UK to meet 80% of the Total Contract Value target. In respect of 2015, she said that she had no choice but to agree to the new targets and that this had been the first negative assessment of her performance.
In respect of one banking client, the complainant said that while this had been a good client, she had been unable to renew their contract as they were winding down. Two other clients had made decisions at a global level to centralise HR and payroll to their US divisions. While another client had signed a contract, the project was not up and running so there was little room to generate more revenue. One healthcare provider was taken over by an insurance company and this insurance company was someone else’s client. In respect of the bakery client, they were not happy with the system sold to them by a colleague. She denied admitting to the Sales Director that her approach had been wrong. The Sales Director had joined her in meeting this client as they attempted to retrieve the situation, but the client had sought a “free” solution. In respect of the high street retailer, this campaign had come from her relationship with the client. It had been the Sales Director’s decision to lead the pitch and this was appropriate given the size of the contract. It was also expected by this client. The high street retailer had remained her client and she wanted to get the deal done.
Commenting on the appraisal for 2014/15, she said that its conclusions reflected the work she had undertaken with clients, for example in addressing problems and looking at ways to diversify business. This assessment does not match up with the criticisms made of her in the PIP process. She said that being dismissed at the end of the half year made it feel that the process had been planned. In the PIP process, the complainant said that the discussion with the Sales Director was extremely numbers driven, so this is what she had concentrated on. There had been some later discussion about her ability. While she had a better end to 2014/15 year, she had been in a weaker position at the end of the 2015 half year. She commented that everyone was under pressure and feared they would be the next put on a PIP. In respect of alternatives, the complainant said that she had never been consulted about alternative roles, such as a colleague’s maternity leave. She had to assume that the respondent was aware of her project management experience and the appeal manager was certainly aware of this.
In respect of the appeal, the complainant said that it appears to have rested on her decision not to challenge individual stages of the PIP process. The appeal decision had also not accepted that her performance targets had increased during the PIP process, from 44% to 88% and then down to 72%. During the PIP, she had been informed that she could seek support from the Sales Director, but she was criticised for doing so. In respect of the reference in the appeal letter to technical issues, the complainant said this referred to service delivery issues with a hospital client, for which the respondent blamed the hospital. The issue was not being resolved and this led to the breakdown of the deal to widen the support provided by the respondent to the hospital. She commented that the appeal manager had an off the record conversation with the Sales Director, but there is no record of this conversation. She said that as the letter of the 9th October 2015 only listed one more month in her performance target, she was aware that her job was “going south” at the end of the following month. She had hated the appeal hearing and she did not want this confrontation. Before the end of her employment with the respondent, the complainant did a handover for named person.
The complainant outlined that the Sales Director had introduced structural changes and changed her and the team’s roles. He had increased targets to “crazy” amounts. She had lost the skill set available from working on client accounts with colleagues. The Sales Director had different objectives and higher expectations than his predecessor. In respect of the redress sought of reinstatement, the complainant said that it was the people she would go back for. She could use her project management skills and take on other roles in the respondent. She had worked for the respondent for nine years and they had shown flexibility regarding working from home.
In cross-examination, it was put to the complainant that she had selected compensation as her preferred form of redress; she acknowledged that this was the case, but that there had also been a lot of good things about the respondent. She said that she had an operation on her back in March 2016, but was back to good health. She had found it difficult to find alternative work in this period and had applied for one job. She had to take time in the summer for family reasons, but was now looking for work. It was put to the complainant that the reference from her previous manager pre-dates the appeal hearing; she agreed and that she and her Colleague had met with him. It was put to her that the appeal minutes refer to her receiving the commission for the contract with the high street retailer; she replied that she only saw the minutes in advance of this adjudication. She would have preferred to stay with the respondent, but accepted payment of the commission at the time she was dismissed. It was put to the complainant that she received team and individual training; she replied that there had only been one session of team training and that the Sales Director had met with her many times. It was put to the complainant that the PIP policy refers to the possibility of an appeal; she replied that she never thought she was going to lose her job and that she would get off the PIP once her figures improved and the high street retailer came in. It was put to the complainant that every letter sent under the PIP refers to the possibility of having someone accompany the employee; she replied that she had invited a colleague to accompany her to the first meeting, but the Sales Director later said that it was not necessary for her to bring someone to accompany her. She commented that she should have brought the Colleague to the later meetings.
In further cross-examination, it was put to the complainant that the Sales Commission Policy provides for a procedure to challenge a target and in her case, the target had been reduced to €2.4 million; she replied that she had raised the sales targets with the Sales Director. It was put to the complainant that at the outset of the PIP in March 2015, it was clear that the high street retailer would be excluded; she said that this had not been clear and it was only in July 2015 that this client was being excluded. She questioned why she would have done so much work on this campaign in the course of a PIP in order for it to be disregarded. She said that it was not clear that 1b) of her PIP template referred to this client. It was put to the complainant that in achieving sales of €659,900 she had failed to meet a PIP target set at 35% of the sales target of €2.3 million; she replied that no one had reached the sales targets and that her figures had improved during the PIP process, i.e. €716,399 in the half year compared to €659,000 in the whole previous year. It was put to the complainant that the PIP target for the end of the financial half year had been reduced from €1,200,000 to €860,000 and that she had failed to meet this reduced target; she replied that she had been spending half her time on the high street retailer, now excluded from her PIP calculation. It was put to the complainant that by October 2015, she had nothing in the pipeline; she said that this was not true referring to two large deals with a broadcaster and a hospital as well as a number of small deals. She said that she would have been close to the €2.4 million sales target by the end of the year.
In reply to the respondent, the complainant acknowledged that she had a bad first year following the structural changes, but she had also taken seven weeks off in the summer 2014. There had been a delaying in closing a number of joint accounts. She commented that some of her large clients took time in signing off on deals. In respect of the aviation client, the complainant said that she had been guided not to accept a short term contract and the respondent had taken the position of threatening to pull its service if it did not get a deal. In the end, the Sales Director did his own deal and acknowledged that she received the commission for this. It was put to the complainant that the Sales Director had provided her with encouragement; she accepted that he had complemented her on her plans, but this was not reflected in the documentation. She had also been criticised for seeking his support on campaigns. It was put to the complainant that the 2013 appraisal had been a joint appraisal; she replied that it had been a single appraisal but that there had been joint sales targets. In respect of her 2014/15 appraisal, the complainant said that it was four of the nine objectives that she had been deemed not to meet, as opposed to four out of five. In redirection, the complainant said that while it would be a bit tricky going back to work for the Sales Director, she had very good relationships with other managers and would have no problem working for the respondent. She commented that she had been the subject of very unfair treatment. She said that she had not felt encouraged in the PIP and that it felt like an end game. Her confidence had been shattered. She had believed that the high street retailer would form part of her performance target and asked why she would have done so much work on this account when she had big targets to hit in the PIP. She was also surprised to have been placed on a PIP while the high street retailer account was pending.
The Colleague gave evidence. She outlined that the complainant had never mentioned the high street retailer being excluded from her PIP and had been shocked by this client’s exclusion in July 2015. She said that the complainant and the Sales Director could work together in the same business. The Colleague outlined that she left the respondent in January 2016 even though she had a good pipeline as she had been underachieving, with sales of €800,000 out of a target of €2.4 million. She commented that she had a better mix of client than the complainant and did not take parental leave, but that no one was doing well. She had worked long hours and long hours were the norm; this was one of the reasons she left the respondent. It was only a matter of time before she would be subject to a PIP. Commenting on the structural changes, the Colleague said that it had felt like starting a new role with unrealistic sales targets. She commented that the complainant had been in a position to recover her sales and that the respondent was now focussed on numbers.
In cross-examination, the Colleague said that her figures had been good for 2014/15 and this had been do with her client base and several large renewals. There had been little new business. She had a good pipeline on her leaving the respondent but this was because of one client. In respect of the complainant’s PIP process, the Colleague said that she had not seen any of the letters sent by the respondent and that the complainant would not have put her in the position of attending meetings. She accepted that it had been a mistake for the complainant not to ask her to accompany her to the meetings. She said that she left the respondent’s employment because it was a numbers game and was not sustainable.
In closing comments, the complainant said that she had improved dramatically during the course of 2015 and the PIP, and would still be in a job had it be allowed to continue. In respect of the respondent sick pay scheme, this provided for six months on full pay and six months on three-quarters pay. In respect of the redress of re-instatement, it was submitted that there was sufficient good will and trust for this to take place.
Findings and reasoning:
The complainant’s employment with the respondent commenced on the 9th October 2006 and came to an end on the 4th December 2015. Latterly, the complainant had been engaged as an account manager, working on the accounts of clients who availed of the respondent’s payroll and human resource services. The Performance Improvement Plan (PIP) process involving the complainant commenced on the 3rd March 2015 and performance was the grounds on which the respondent later dismissed the complainant.
The respondent completed a two page Performance Improvement Plan template at the outset of the process. It provided for four objectives to be reviewed at monthly meetings. The first review meeting took place on the 2nd April 2015 and a verbal written warning issued to the complainant on the 9th April 2015. The complainant attended a Stage Two progress review meeting on the 1st July 2015 and a written warning was issued on the 2nd July 2015. A Stage Three meeting took place on the 6th October 2015 and a final written warning issued on the 9th October 2015. The verbal warning and the first written warning cite the failure to achieve TCV targets as the reason for the warning, while the final written warning also cites a continued lack of evidence in planning, executing and delivering strategic solution sales.
The complainant was dismissed pursuant to a letter of the 6th November 2015. This refers to the complainant’s ability to provide strategic sales solutions and her under performance to date in achieving Total Contract Value PIP targets, where she had only achieved 83% of the target. It refers to Q3 and Q4 pipeline forecasts not supporting any significant improvement to justify a delay in the PIP process.
The complainant appealed the dismissal and by letter of the 8th December 2015, the appeal manager confirmed the dismissal. The appeal manager did not attend the adjudication. He addresses the points raised in the appeal as follows. He states that the complainant waived her right to appeal the exclusion of the high street retailer from the PIP; he refers to there being “some sense of understanding and agreement” on the part of the complainant. The appeal manager did not accept that the PIP targets had been increased as a percentage of the yearly sales target during the PIP process. The appeal manager further refers to the comments made by the Sales Director regarding unsustainable levels of support required of him. The appeal manager replies to the complainant’s point that the time spent problem solving was detracting from her ability to strategically sell by saying that these were general issues and “presumably” had an impact on all members of the team.
The respondent’s Performance Improvement Plan policy provides as follows. It states that its scope is to ensure the maintenance of standards of performance. It states that it seeks to reduce the likelihood of further performance-related disciplinary action and dismissal, as well as to say that employees are dealt with fairly and equitably. It also states that a “proactive and consistent approach is taken to reduce poor performance.” It provides that appropriate action is taken against an employee who does not show satisfactory improvement. The policy does not say what should happen when an employee reaches required performance targets, except to say that this level of performance should be maintained or else the PIP process may be picked up at its last point. The process provides for four stages and the right of representation. It states that there is a right to appeal against any “disciplinary decision” and that this is heard by the “disciplinary manager’s manager”. These two references are the only references in the policy to “disciplinary manager” within the whole process; it otherwise refers to “line manager”.
The best starting point to assess this case is the respondent’s Performance Improvement Plan policy. On the 3rd March 2015, the respondent invoked this policy in respect of the complainant’s sales performance. The PIP template of this date gave four objectives, including 1b) of the “TCV Achievement Objectives” that states “Sales campaigns that are not primarily led but significantly supported by [the complainant] and the business – TCV achievement, (in addition to above) - €1,000,000+ by 30/4/15.” There was a conflict between the parties as to whether 1b) referred to the high street retailer and whether this client had initially been included in the complainant’s TCV PIP performance targets. In resolving this conflict, I note that the respondent was precise in producing documentary records of its interaction with the complainant, but yet the first reference to the high street retailer being excluded was the 2nd July 2015 when the pending successful conclusion of this campaign meant that the complainant would surpass the relevant PIP performance review target. It was only when the campaign mattered that it was explicitly withdrawn from the PIP process. I also note that objective 1b) of the 3rd March 2015 template refers to the “€1,000,000 supporting target to be achieved by the 30th April 2015”, but nothing appears to have happened after this date came and went. The third note I make relates to the insufficiency of how this issue was addressed by the appeal manager. He refers to the complainant as “waiving her right to appeal”; there was no such waiver, instead she simply did not appeal. It is not entirely clear whether any such appeal would lie as the policy only refers to appeals arising from a “disciplinary decision” and it is hard to see how the exclusion of any particular client represents such a disciplinary decision. I do not see any basis for the appeal manager to restrict the scope of an appeal regarding an employee’s dismissal to exclude decisions made during the PIP process. In order to fairly assess the situation, the appeal manager should have considered the exclusion of customer accounts, in particular where there had been no reference to the exclusion of the high street retailer prior to the 2nd July 2015.
The PIP policy requires that there be a proactive and consistent approach in addressing poor performance and this did not occur with regard to the exclusion of the high street retailer. The respondent was inconsistent in only belatedly referring to the exclusion of the high street retailer from the PIP performance targets and not stating this in the documentation predating July 2015. Furthermore, the complainant was persuasive in asking why would she have spent so many hours working on this important client in the throes of a PIP process if these (successful) efforts were to be disregarded in deciding whether she would keep her job. Taking these facts together, I draw an inference that the decision to exclude the high street retailer from the complainant’s PIP performance review on or about the 2nd July 2015 was a decision made in cognisance of the fact that the complainant had met her PIP performance target when taking account of this success. While the inclusion of this client’s campaign would not have sufficed in relation to the annual sales target, it did allow the complainant to meet the PIP performance targets. The complainant states that she would have been close to meeting the yearly sales target and referred to ongoing campaigns with two other large clients. This was all a matter to review at the year-end, but in this case, the complainant’s employment was terminated at the half-year point. Given that the complainant would have met the PIP targets with the inclusion of the high street retailer, it follows that the later decision to dismiss the complainant on grounds of performance is unfair.
I have addressed the central issue in this case, the belated exclusion of the high street retailer from the PIP performance target of the complainant. I also comment on the findings made by the appeal manager regarding the service issues raised by the complainant in her appeal; she stated that new business with clients was impeded by service delivery issues, identifying a hospital client. This was unsatisfactorily dealt with in the appeal. First, the appeal manager does not state the basis of his belief that this was a “general issue”, in particular as he used the term “presumably”. Even if it had been an issue for all managers, it is pertinent to any PIP process that an employee who cannot attain sales TCV targets because of outstanding service delivery issues should have this taken into account.
I have found that the respondent has not discharged the burden of proof in relation to the fairness of the complainant’s dismissal. This finding is based on the belated exclusion of the account of the high street retailer from the PIP performance reviews as well as the insufficient regard given to service delivery issues. I note that this case relates to an employee who has hit sales targets for the payment of commission, but is deemed, unfairly, to have failed to meet performance targets.
Section 7 of the Unfair Dismissals Act provides as follows
(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or
(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or
(c) (i) If the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under s. 17 of this Act) as is just and equitable having regard to all the circumstances, …
(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—
(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,
(b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,
(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid,…
(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.”
In assessing redress, I note that the complainant has a long and successful track record with the respondent, highlighted by the positive reference from her previous line manager and her appraisals. I note that she was able to greatly improve her performance after a dip in late 2014. She responded to being put on a Performance Improvement Plan by significantly improving her sales output. This is a case where performance improvement succeeded. I note that she worked well with the Sales Director on closing deals. Having regard to Bank of Ireland v Reilly [2015] IEHC 241 and the facts of this case, I determine that re-instatement pursuant to section 7(1)(a) of the Unfair Dismissals Acts is the appropriate remedy.
Given that the complaint form is a non-statutory form and does not amount to pleadings, I do not believe that a complainant is prevented from seeking a different form of redress at adjudication than the one sought in the complaint form. I note that the case for re-instatement was made by the complainant at the outset of the first day of adjudication. An Adjudication Officer is certainly entitled to decide upon different redress than sought in a complaint form and having regard to the findings made above, I do so in this case and order re-instatement.
Decision:
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.
CA-00003203-001
For the reasons provided in this report, I find that the complaint of unfair dismissal is well founded and, pursuant to section 7(1)(a) of the Unfair Dismissals Acts, the respondent shall re-instate the complainant to its employment.
Dated: 20 March 2017