Complainant

Respondent

Anonymised Parties

A Customer Agent

An Outsourced contact centre company

Representatives

Mr. Dan Walsh B.L. instructed by Sean Ormonde & Co. Solicitors

IBEC

Act

Complaint Reference Nos.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00010714-001

10/04/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00010714-002

10/04/2017

The complainant claims that he was unfairly dismissed by the respondent from his employment for mis-selling of its client’s products and contracts. He claims that he was only doing what he had been trained and encouraged by his team leaders to do.

The respondent claims that the handling of the complainant’s calls came under review following serious complaint from its customers and following a full and fair investigation in line with its disciplinary policy the complainant was dismissed for gross misconduct.

The respondent is an outsourced contact centre company and located across 4 different site locations with a large workforce. The respondent states that the complainant was employed as a customer agent from 19 October 2015 until his departure at the time of termination of his contract. The facts of a termination were not in dispute.

The respondent claims that one of its clients made a serious complaint regarding potential mis-selling of their products while conducting a random call listening/call validation check in late 2016.

It claims that on 4 January 2017 the complainant was informed of the allegations and suspended on full pay pending an investigation. The letter of suspension set out the reasons for the investigation based of on an allegation that “in the months November, December 2016 and January 2017 [the complainant] engaged in the mis-selling of contracts to [its client’s] customers. The respondent claims that copies of its Disciplinary Procedure and Grievance Policy were sent to the complainant on 6 January 2017. On 12 January 2017, the respondent wrote to the complainant with details of the investigatory meeting that would be taking place. He was advised as to who would be present at this meeting, his entitlement to representation, the reason for the investigation and he was given copies of both the disciplinary procedure as well as a sample of alleged mis-selling calls. He was also advised that this matter was being treated as gross misconduct which could result in disciplinary action up to and including dismissal.

The respondent claims that an investigation meeting took place on 16 January 2017 by Ms. A (Operations Manager). It claims that the complainant chose not to have representation and when this was mentioned at the start of the meeting he acknowledged that he was "fine" to proceed. During the hearing the complainant was advised of the reasons for the concerns over the sample of calls provided. Comments from both the respondent and the respondent’s client were given in relation to the sample calls. The complainant was given an opportunity to comment after each recording and his reply included “that is the way I’ve always done it”, “It’s just the way I do it” and “I was encouraged to sell that way”. At the end of the meeting the complainant was informed of the potential outcomes.

On 17 January 2017, the complainant was written to by Ms. B (Operations Manager at another site) to advise him that following the investigation, he was invited to attend a disciplinary hearing that she would be conducting. This letter again referred to the allegation being of a “very serious nature” and of the “possible result in disciplinary action”. On 20 January 2017, a disciplinary meeting was held, again he declined representation. The respondent claims that throughout the meeting, the complainant claimed that the way he had conducted the calls was how he had been trained. The respondent claims that the complainant said “when there was pressure coming on I will do what I need to do”.

On 16 February 2017, the complainant was invited to attend the outcome meeting, again he chose to attend the meeting without representation. The minutes of the disciplinary meeting were read to him and he was given the opportunity to respond. He made no comment and signed the minutes of the previous meeting. He was then advised that his contract of employment was being terminated with immediate effect. He was advised of the appeals procedure and he was given a letter confirming his dismissal. The letter included the grounds for this decision and the procedure and timescales for making an appeal.

On 21 February 2017, the respondent claims that the complainant submitted his letter of appeal on the grounds that he had “not willingly or knowingly mis-sold any contracts to any individual” and if he had it was “on the basis of the training I received.” He was advised of the appeal hearing date of 2 March 2017 by a letter from Ms. C (Head of Operations), who would conduct the appeal. He was again advised of his entitlement to representation. On the day of the hearing he was unrepresented, the respondent claims that as the complainant provided no new information at his appeal and continued to claim that the way he had conducted the calls was how he had been trained.

On 12 March 2017, Ms. C wrote to the complainant in relation to his appeal, where she found that serious misconduct had taken place and accordingly she upheld the sanction of termination of contract. Ms. C remarked that “on reviewing the evidence and comments on the call detail, I noted for example one instance where “a customer thought they were getting two wifi devices for free within their plans, and the customer was not told that they were paying extra for two new 24 month contracts”. Although you may have received feedback from your manager, I believe based on the evidence, on some calls you used selling techniques which are considered deceptive and therefore deemed serious misconduct. Again, I believe based on the evidence, that you did not use this technique on all calls and choose to adjust your technique on some calls, which again is considered deceptive and therefore deemed serious misconduct”. Ms. C in her letter to the complainant said that she looked at the possibility of re-training the complainant instead of termination but decided against it as she found that his actions were gross misconduct and she said that “As gross misconduct is: Serious Client/Customer complaint that brings the business into disrepute”

The respondent claims that the dismissal is fair both substantively and procedurally such that there is no claim under the Unfair Dismissals Acts 1977-2015. Substantively the dismissal is justified and not unfair within the meaning of Section 6 of the Unfair Dismissals Acts, where it allows for the dismissal of an employee, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from inter alia the conduct of the employee.

The respondent claims that procedurally the complainant was provided with all rights of natural justice, was dealt with in accordance with the company disciplinary procedure and was afforded the right of appeal of the decision. The complainant was adjudged to have used deceptive selling techniques to deliberately mis-sell products and contracts to customers on a number of occasions in that he deceived customers into believing they were getting something for free or without charge. This, the respondent claims, amounts to a breach of trust and integrity which impacted on the customer, the respondent’s client and the respondent. The respondent said that this type of offence is specified in the respondent disciplinary procedures as gross misconduct.

The respondent relied on the decision in Looney & Co Ltd v Looney UD 843/1984 to claim that it took its decision to dismiss in accordance with what a reasonable employer would have done in the circumstances. The complainant’s actions amounted to a breach of trust and could have had a detrimental effect to his employer and its client and also referred to the decision in Burtchaell v Premier Recruitment International Ltd t/a Premier Group UD 1290/2002. The respondent also asked me to consider the decision in A Technical Support Person v A Communications Company [ADJ-00001250] which it claims is very similar to the case here before me for consideration.

The respondent said that the complainant was at all times afforded the benefits of fair procedures in line with the companies established policies, the Code of Practice on Grievance and Disciplinary Procedures (SI 146/2000) and the universal principles of natural justice.

The complainant was employed as a campaigns loyalty agent from 19 October 2015 until 16 February 2017 where he was paid €9.15 per hour for 40 hours per week plus he was paid monthly a bonus depending on him reaching work sales targets. The complainant said that the respondent provides mobile and technical support to mobile and smart phone customers outside of the state.

The complainant maintains that the respondent’s incentives sales by paying bonuses to its telephone agents who are able to meet sales targets. The complainant said that staff were encouraged by team leaders and managers to upsell products to existing customers so that they can meet their own targets. The complainant said that there was continued downward pressure from the management teams to team leaders on to sales personnel to reach targets. He claims that he was trained by the respondent and was encouraged during training to maximise the opportunity to sell for his own benefit, by means of bonuses, and for the benefit of respondent’s profits. He said that all his calls were monitored and his performance was reviewed. He claims that at no stage was he ever reprimanded for mis-selling by his team leaders or by management. He claims that he had been conducting the same approach since he joined the respondent and he was getting support from his team leaders to continue to hit the targets and make additional sales. He claims that he was seen as a top performer and was regularly asked to help out with the training of new staff, in particular to teach them hints and techniques to improve their selling skills. He claims that he would regularly liaise with his team leaders and he checked with them on his work and he was generally encouraged to continue with what he was doing.

The complainant claims that the allegation of mis-selling was identified by the respondent’s client rather than the respondent themselves, although the respondent had checks and measures put in place to ensure all its work was of an acceptable level. The complainant maintains that he was in keeping with his training since October 2015 and in full support and instruction given to him by his team leaders. He claims that the respondent had never raised any issue with his work until he was called in by Ms. A, Operations Manager, and informed of the allegations of mis-selling on 4 January 2017 after which he was sent home.

The complainant claims that that he was suspended with pay by letter of 12 January 2017, and was sent copies of the respondent’s disciplinary and grievance procedure. An investigation meeting took place on 16 January 2017 where the investigator, Ms A, outlined that the respondent’s client had raised concerns about a number of the complainant’s calls that they had listened in on. The complainant was invited to listen to the recording of his calls and to give his feedback. He said he listened to a few examples and said he felt that he had done nothing wrong and that he was simply doing what he was trained to do since February. He claims that he told Ms. A that “I was encouraged to sell that way, I’ve been doing it since February – I would have liked to be told that it was wrong and I would have stopped. I was encouraged to sell this way, I actually looked for approval from the Team Leaders … I used to wreck their heads looking for approval.”

The complainant claims that he was invited to a disciplinary meeting on 20 January 2017 chaired by Ms. B, Operations Manager, and the allegations of mis-selling were put to the complainant, where he was given the opportunity to listen to other examples of recorded calls. However, the complainant declined the offer and said that he did not need to hear anymore as he was “doing the very same thing … exactly the same pattern. He was like a Robot”. He claims that when he was asked where the pattern came from he said that “I was looking for extra cash and I was asking people how to get sales – they gave me tips and we discussed ways to sell in briefs [meetings] – in January I made a good bonus and my team leader told me to keep it going.” The complainant said when asked about being pressurised to make sales “it comes from the top – you can see it when the team leaders are under pressure to get sales… [team leaders] were encouraging us to continue”. The complainant said he asked why this had not been raised before as team leaders were monitoring his calls. The complainant claims that although he had stated that he was only acting as per his training and on instruction from team leaders, he never was provided with any statements from anyone else interviewed in relation to his case.

The complainant attended a meeting on 16 February 2017 where he was informed that due to the seriousness of his conduct, his contract of employment was being terminated with immediate effect. He said that he was further informed that the decision was based on the receipt of a serious client complaint that brings the business into dispute. The complainant appealed the decision on 21 February 2017 and said he did not knowingly mis-sell any contracts and sold the same way since October 2015. He said that he had passed his 6-month probation and was making big bonuses and was encouraged and praised to keep doing what he was doing until his suspension, which had surprised him. He reiterated that if he was in beach of protocols it should have been picked up by his supervisors, instead he was invited to help in the training because of his high standards.

The complainant’s appeal was heard on 2 March 2017 and it was held by Ms. C. Following the appeal meeting the complainant received a letter to say that the appeal was unsuccessful and he was dismissed. The complainant took issue with the appeal, as Ms. C said that the complainant provided “no new information” at the appeal hearing and the complainant said he felt that it would appear that the decision was already made and no serious consideration was given to the reasons raised.

The complainant claims that from the documentary evidence the complainant’s calls were being monitored by the respondent and the feedback provided was overwhelmingly positive. Also, he claims that he underwent a bonus review meeting with his team leader, where he was told he was doing well and the emphasis was to continually hit targets.

The complainant claims that the respondent has refused to accept that its training and monitoring structures were at fault and rather than accept the blame it had decided to investigate and discipline him to save face in front of its clients.

The complainant maintains that the respondent has an obligation to justify the dismissal and in this case, it has not acted reasonably in actions with the complainant and he referred to Cox, Corbett & Ryan in ‘Employment Law in Ireland’ (2009, Clarus Press, para 21.72) where it reads “[Acting reasonable] would include carrying out a reasonable and proper investigation into the alleged behaviour and drawing a reasonable conclusion”. He claims that no team leaders were asked to feed into his investigation and that was unreasonable. He also refers to the decision in Governor and Company of Bank of Ireland v James Reilly [2015] in relation to ‘reasonableness’. He argues that there is an established obligation on the respondent to afford him fair procedures and it failed to pursue alternative lines of enquiry and to provide him with the statements made by others. He claims that the respondent did not gather the facts in this case and had made its mind up in advance of it relaying its decision of dismissal.

The complainant said that the respondent seemed to take the highest possible sanction and did not consider lesser sanctions, and he asked me to consider the decision in Bolger V. Dublin Sports Hotel Limited UD 45/85 and Fitzpatrick v. Superquinn Limited UD 452/ 1984 in relation to disproportionate sanctions. The complainant also took issue with the respondent’s decision to suspend him citing McLoughlin v. Setanta Insurance Services Limited [2012] 23 ELR 57 and Wallace v. Irish Aviation Authority [2012] 2 ILRM 345 and others in support of his position. The complainant also claimed that he was being contacted by other staff asking what was happening and had he been sacked.

The complainant claims that the respondent incentives sales by paying bonuses to its employees and the pressure to meet those targets was continuous. All training was conducted by the respondent, all calls are monitored and performance was reviewed by the respondent. The complainant had always received positive feedback and was asked to help out in the mentoring of new staff. At no stage prior to January 2017 was any issue raised to suggest he was mis-selling. The complainant felt he was not mis-selling he was simply doing what he has always been doing from instructions received from his trainers and team leaders. He said that he was following the internal procedure to the letter of the law and had a 90% compatible rating for using the internal procedures correctly, which is above the acceptable level. He said, that there is nothing to suggest that his team leaders were involved in his investigation and that is a huge deficiency in the process. The complainant claims that the decision to dismiss him was disproportionate and failed to take into consideration his exemplary record up to that time.

CA-00010714-001 – Complaint under the Unfair Dismissals Act, 1977

The Relevant Law

Section 6 of the Unfair Dismissals Act, 1977 provides:

“(1)   Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

…

(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

…

(6) In determining for the purposes of this Act, whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were substantial grounds justifying the dismissal.

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so—(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and (b) to the extent (if any) of   the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7(2) of this Act.”

The material facts that there was a dismissal is not in dispute between the parties. The respondent contends that the complainant was dismissed on the grounds of gross misconduct after he was adjudged to have brought the respondent’s name in to disrepute by mis-selling its client’s products to numerous customers over a period of months. The respondent maintains that it conducted a full and fair investigation in line with its disciplinary policies, and following that, it felt that it had no choice but to dismiss the complainant. The complainant disputes that he knowingly engaged in mis-selling and that he did what he was trained to do and encouraged to do. He argues that the disciplinary process was flawed as the respondent did not interview his team leaders, or at least, if they did interview them he was not presented with their written statements. He claimed that the penalty of dismissal was totally disproportionate when all the circumstances of the case are taken into consideration and that a different sanction, along with re-training him, would have sufficed given the nature of his exemplary record. The complainant also claims that there was no need for the respondent to suspend him while it conducted its investigation. This had caused him much difficulty and stress as he was continually contacted my other work colleagues asking him what was happening, and was he fired.

I am satisfied that it is not for me to establish if the complainant was guilty of an act of gross misconduct or not. The respondent has made a determination that the complainant did commit an act of gross misconduct. Rather it is for me to consider all the facts and to determine if there are substantial grounds to justify the dismissal and see what a reasonable employer would do in the same position given the same set of circumstances. It is also my role to determine if fair procedures were applied to the dismissal and the disciplinary process.

The approach of whether a reasonable employer would have dismissed the employee in the same circumstances was explained by Noonan J. in the High Court case of Bank of Ireland –v- O’Reilly [2015] IEHC 241 where it was held that: “…the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s.6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer’s conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned - see Royal Bank of Scotland v. Lindsay UKEAT/0506/09/DM.

I respectfully agree with the views expressed by Judge Linnane in Allied in Allied Irish Banks v. Purcell [2012] 23 ELR 189, where she commented (at p. 4):

“Reference is made to the decision of the Court of Appeal in British Leyland UK Ltd v. Swift [1981] IRLR 91 and the following statement of Lord Denning MR at page 93:

‘The correct test is: was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably take a different view.”

It is clear that it is not for the EAT or this court to ask whether it would dismiss in the circumstances or substitute its view for the employers view but to ask was it reasonably open to the respondent to make the decision it made rather than necessarily the one the EAT or the court would have taken.”

I note the decision of the Employment Appeals Tribunal in Hennessy V Read & Write Shop Ltd UD192/1978   “In deciding whether or not the dismissal of the claimant was unfair we apply a test of reasonableness to: (i) the nature and extent of the enquiry carried out by the respondent prior to the decision to dismiss the claimant; and (ii) the conclusion arrived at by the respondent, that on the basis of the information resulting from such enquiry, the claimant should be dismissed.”

In O’Riordan v Great Southern Hotels, UD 1469/2003, I note the Tribunal set out the appropriate test for determining on claims relating to gross misconduct, stating “In cases of gross misconduct the function of the Tribunal is not to determine the innocence or guilt of the person accused of wrong doing. The test for the Tribunal in such cases is whether the respondent had a genuine belief based on reasonable grounds arising from a fair investigation that the employee was guilty of the alleged wrongdoing”.

Finally, in the EAT case David Mullane v Honeywell UD/1112008 it stated “The Tribunal must decide whether the conclusion that the offending act had been perpetrated by the claimant was reasonable on the balance of probabilities and that dismissal was a proportionate response”.

I understand that there was a widespread internal investigation into employee conduct and a there was plethora of disciplinary matters in the respondent’s business at the time. I have been told that up to 40 employees were investigated and disciplined including 18 dismissals between two different work centre locations. It would appear this was somewhat of an epidemic. However, I have to be satisfied that the internal investigation of the complainant was centred around his alleged mis -selling. Many examples of which were amassed and a number were presented in evidence. The complainant disagrees that he was mis-selling and suggests that he was engaged in trying to make a connection with customers and build rapport to boost the possibility of making sales or additional add-on sales. I have noted that the complainant said this is how he was trained and he was getting positive feedback from his team leaders and making monthly bonuses for reaching sales targets. He admits that he sought tips and hints from colleagues on how to make extra sales to make big bonuses. He also said not everyone was taking this approach that “There were 3 types of people. Ones that just come in for their basic pay, ones that make a few sales or the rest of us that want to make as much money as possible (sic)”.

I note the respondent found that the complainant chose to adjust his selling technique on some calls and this, it determines was deceptive. The examples of the complainant’s alleged conversations with clients provided in evidence appear difficult to comprehend as the prices and contract terms quoted by the complainant appear to be contrary to the actual products prices and contract terms and conditions set by the client. I note that the respondent found that as per the disciplinary policy “that gross misconduct is serious enough to prejudice our business or reputation or which irreparably damages the working relationship and trust between us”.

Accordingly, in all the circumstances of this case, I find that the actions of the respondent were within the range of reasonable responses open to it and that substantial grounds did exist to justify the complainant’s dismissal.

The second issue which I must consider relates to the procedural fairness or otherwise of the complainant’s dismissal. The complainant contends that the procedures which were invoked by the respondent in terms of the manner in which the investigation and disciplinary procedures were conducted were flawed. The complainant contends that the respondent should not have suspended him while the investigation was ongoing and there was a lack of transparency and impartiality throughout the process as the complainant’s team leaders and trainers were not interviewed, or at least, if they were interviewed their statements relating to the complainant were not presented to him during the process. He continually maintains that his team leaders and trainers were to blame for not training him correctly and not identifying his approach as mis-selling before January 2017.

As a reference point I note the Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000 [S.I. No. 146/2000] which sets out the general principles that should apply in the operation of disciplinary procedures and the promotion of best practice in giving effect to these procedures. The Code states that the procedures applied must comply with the general principle of natural justice and fair procedures, which include that:

1.       the details of the allegations or complaints be put to the employee concerned;

2.       the employee concerned be given the opportunity to respond fully to any such allegations or complaints;

3.       the employee concerned is given the opportunity to avail of representation; and

4.       the employee concerned has the right to a fair and impartial determination of the issues being investigated, taking into account the allegations or complaints against him or her, the response of the employee concerned to them, any representations made by or on behalf of the employee concerned and any other relevant or appropriate evidence, factors or circumstances.

I also take note of the decision in Foley V Post Office (2000) CR1283 as stated by Mummery L.J. at p1295 “This case illustrates the dangers of encouraging an approach to unfair dismissal cases which leads an employment tribunal to substitute itself for the employer or to act as if it were conducting a rehearing of, or an oral appeal against, the merits of the employers’ decision to dismiss. The employer, not the Tribunal, is the proper person to conduct the investigation in the alleged misconduct. The function of the Tribunal is to decide whether that investigation is reasonable in the circumstances and whether the decision to dismiss, in light of the results of that investigation, is a reasonable response”.

In considering this matter, I am satisfied that the respondent had its own established Grievance and Disciplinary Procedure in place. I have examined that document and I have carefully considered the manner in which the disciplinary procedures were applied in the present case. I am satisfied that the complainant was given advance notice of all the misconduct investigation and disciplinary meetings. The complainant was advised of what was happening through-out and provided with copies of the Grievance and Disciplinary Procedure. I am satisfied that the complainant was given the opportunity to be represented through-out the process but chose not to do so. Having examined the respondent’s Disciplinary policy, I am satisfied that the process adopted was followed step by step as provided for in its own policy. I note that following the investigation and disciplinary stages, the complainant was also afforded an appeal process.

However, there are two specific procedural aspects that the complainant has raised as unfair, which I must condsider. The first was in relation to his suspension from work while the investigation was ongoing.

I note the complainant’s claims that the respondent’s decision to suspend him while the investigation was ongoing was unnecessary and inappropriate. He cited the decision in Bank of Ireland v Reilly [2015] IEHC 241 in his defence.

I note the respondent points to its own Grievance and Disciplinary Procedure which has a dedicated clause in relation to employee suspensions. This includes that “suspension will usually be considered if we believe that by remaining at work you; 1. may influence or interfere with the investigation; 2. Could potentially put yourself, others or the business at risk; 3. Or where it would be impractical for you, your colleagues or the business for you to continue to attend work”. I note from the decision in the aforementioned Bank of Ireland v Reilly [2015] IEHC 241, where Noonan J. stated “…Thus, even a holding suspension ought not to be undertaken lightly and only after full consideration of the necessity for it pending a full investigation of the conduct in question. It will normally be justified if seen as necessary to prevent a repetition of the conduct complained of, …. It may perhaps be necessary to protect the employer’s own business and reputation where the conduct in issue is known by those doing business with the employer.” I am satisfied the alleged mis-selling conduct appears to fall within the category of cases that are anticipated and provided for in the respondent’s own Grievance and Disciplinary Procedure and are of the type that Noonan J. was considering in the Bank of Ireland v Reilly case.

The second procedural issue that the complainant declares as unfair relates to the respondent’s failure to interview the team leader, trainers and managers, or at least, if they were interviewed that he was not provided with a copy of their statements.

I am satisfied that the respondent faced a predicament at this point in time, it is clear that it’s client contacted the respondent and told it of the many customer complaints it had received and so there was an extensive examination of the complainant and other campaign loyalty agents calls. I am informed that 40 employees were investigated and disciplined, 18 dismissed. It would appear that the respondent was running parallel investigations at the time and it was developing a substantial overall picture of the grand situation facing it. As I have noted above, the respondent seemed to carefully follow the steps in its own Grievance and Disciplinary Procedure. However, it appears to lose sight of the individual particularities of the case before it. It is a well-established principle that each case will turn on its own facts and therefore an employer during the course of the entire procedure needs to be mindful of what is being presented to it and listen to the accused’s arguments.

I note that the complainant continually from the start and right through from the investigation stage to the appeal stage said that he was only doing like he was trained and was continually complimented by his team leaders both formally, in set review meetings, and informally by being asked to help coach new colleagues in how to sell. He gives specific names and dates and specific details to support his defence. However, none of this appears to be taken into consideration throughout the investigation stage, disciplinary stage or appeal stage. He makes substantial points in his defence and these do not appear to have been considered, or at least not addressed in this, his individual hearing of his case. I have heard from the respondent that the large scale disciplinary investigation cover some 40 employees of all different grades over two centres substantially divided geographically. The complainant has always maintained his innocence and blames it on others. I am satisfied that I have not been fully convinced that the complainant was unaware that he might be pushing boundaries with his selling techniques and he had a serious case to answer. However, the evidence from the complainant is that there was a culture of this, that he was trained to act this way and he was supported or indeed felt pressurised from his team leaders to conduct his affairs in this fashion. The respondent may have already established that the persons that the complainant was referring to were equally culpable. However, there is a lack of transparency here, these people are essential elements in the complainant’s case and there is a gaping hole without their involvement in his case. The respondent has not addressed this adequately and I am satisfied that the investigation is somewhat tainted accordingly.

I note with interest a reference, raised by the complainant in his legal submission, from Cox, Corbett & Ryan in ‘Employment law in Ireland’ paragraphs 18.38 and 18.39 where it states, “In addition, depending on the circumstances, it may be necessary to interview other members of staff … who can shed light on the matter [Vita Context Ltd. V Dourellan UD 131/1992] … Most especially, however, the investigation must genuinely be an investigation – that is, a process aimed ultimately at fact-finding. It cannot be a formality undertaken by an employer prior to the imposition of a sanction .... [or] to justify the imposition of such sanction, without seeking to assess whether there is evidence available that would support the employee’s position…”

I must repeat again that my role is not to make findings on whether the allegation against the complainant was true or not true. In assessing the actions of the complainant, it fell on the respondent to consider what he was saying in reply to the allegation raised and to discount them accordingly. I am satisfied that before concluding that the complainant’s defence holds no substance, it needs to examine and address that defence and I do not see that they have been addressed anywhere. For the reasons outlined above, the respondent’s dismissal of the complainant was procedurally unfair.

In respect of mitigation, the complainant submits documentary evidence of seeking various roles in his locality. He found alternative employment in October 2017 on a salary of €17,316 per year. The complainant is entitled to recover the financial loss he incurred between the date of dismissal 16 February 2017 and obtaining new employment 2 October 2017. This is a period of 33 weeks. The complainant was on a salary of €19,032 plus bonuses of up to €2,000 per month depending on target achieved. I have discounted the bonuses as they are a matter of contention and are unreliable in this case, and therefore taking his salary at €19,032, I calculate that his loss is €12,780.  He is also entitled to recover ongoing loss of salary. In assessing this, I note that that there is a shortfall of approximately €1,700 per year. I, therefore, award an additional €1,700 for ongoing loss of salary for one year. The sum of these two amounts is €14,480.

CA-00010714-002 – Complaint under the Minimum Notice and Terms of Employment Act, 1973

In respect of the complaint made pursuant to the Minimum Notice and Terms of Employment Act, I find that the complaint is well-founded. I find that the respondent has not demonstrated that the complainant is not entitled to statutory notice. The complainant was employed by the respondent for more than 2 years but less than 5 years, and it follows that he is entitled to the statutory notice period of two weeks. Taking his salary at €19,032 per annum, based on €9.15 per hour and 40 hours per week, the redress is €732.

CA-00010714-001 – Complaint under the Unfair Dismissals Act, 1977

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 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.

Pursuant to the Unfair Dismissals   Act, I find that the complaint of unfair dismissal is well-founded and the respondent shall pay to the complainant €14,480 (fourteen thousand four hundred and eighty euro) as redress for the unfair dismissal.

CA-00010714-002 – Complaint under the Minimum Notice and Terms of Employment Act, 1973

Section 41 of the Workplace Relations Act, 2015 and Section 11 of the Minimum Notice and Terms of Employment Act, 1973 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under that Act.

I find that the complaint made pursuant to the Minimum Notice and Terms of Employment Act is well-founded and the respondent shall pay to the complainant redress of €732 (seven hundred and thirty-two euro).

Unfair Dismissals Act - Minimum Notice and Terms of Employment Act –mis-selling contracts – failed to take evidence into account – unfairly dismissed.