Complainant

Respondent

Anonymised Parties

A Sales Representative

A Telecommunications provider

Representatives

usiness & Commercial Solicitors

Peninsula Group Limited

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

CA-00012645-001

19/07/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998

CA-00012645-002

19/07/2017

The Complainant had initially brought claims against two named Respondents. By way of preliminary issue and on foot of evidence heard, I accepted this Respondent’s assertion that it was at all material times the Employer and a valid Contract of Employment existed between the parties. With the agreement of all parties the second named Respondent (as named in Adjudication File Ref 9656) was released.

The Complainant was employed with the Respondent company for three weeks. The Complainant made a Protected Disclosure regarding the dubious work practices of one of her new colleagues.

Within days the Complainant’s employment was terminated.

The Complainant gave evidence on her own behalf and was cross examined. The Complainant’s legal advisor prepared comprehensive legal submissions which were opened to me.

The Complainant believes that her employment was terminated as a direct result of having made what she perceives to have been a protected disclosure under the Act. In particular, the Complainant who had just recently attended an intensive in-house course on workplace compliance told management that the practises of one of her colleagues diverged from the workplace guidelines.

In addition to this claim the Complainant additionally says that she was penalised for having made an application for force majeure leave pursuant to the Parental Leave Act.

The Complainant acknowledged that there were 9 penalty points on her Driver’s Licence at the time that she commenced her employment though made the case that she had not wilfully failed to disclose this fact and that it had been an oversight.

The Respondent presented a number of witnesses including the Complainant’s line Manager, the Area Manager and the Compliance Manager.

The Respondent stated that it took the protected disclosure made by the Complainant very seriously and conducted a full investigation into same. The investigation ultimately revealed that there were some issues though perhaps not as serious as the Complainant had believed.

The Respondent rejects the idea that the Dismissal herein related to the fact of a Protected Disclosure having been made.

The Respondent’s line Manager effected the Dismissal and her evidence was that the Complainant was let go as a result of non-performance, unexplained absenteeism and a failure to comply with two pre-Contractual requirements namely

-        Providing two References

-        Having a Clean Driver’s Licence

I have carefully considered the evidence adduced over three hearing dates. The Complainant herein is highly capable and experienced in the field of Sales and Marketing. With this background the Complainant applied for a position with the Respondent company - a Service Provider which had a significant Contract for the outsourced sales work of a large nationwide telecommunications company. As per the evidence, the Complainant remained in the employment of the Respondent Service provider though she was tasked with sales in respect of the product and packages provided by the Telecommunications company.

The Complainant made herself available for a week long intensive induction course. During that week, the Complainant learnt the best practices expected for the pitching of sales. As potential clients were being door stepped in their own homes the Complainant learnt that the manner of the approach was all important as the telecommunications Contract provider expected to be represented in the field with courtesy and professionalism.

The Complainant fully understood that the position would entail her working long hours each working day and that she would be generally be working on her own. The Complainant would be given a weekly assignment of areas to be covered. The Complainant was due to cover the Laois Kildare area. What is clear is the fact that the Complainant would be expected to have a vehicle to cover such a large area. One of the criteria for applying for the position was the ownership of a clean Driver’s Licence. There was some dispute between the parties as to whether the Complainant understood she would be expected to drive a fully branded company van (which I was told that customers responded to better than private vehicles) or whether she would be allowed to use her own private vehicle. In evidence the complainant said she had understood and wished to drive her own car. That said, after the first mentored week on the road there can be no doubt that the complainant was assigned a company car which she took possession of without protest.

Of some importance is the fact that at the end of the first week on the road and under the eye of a more seasoned colleague SH, the Complainant revealed in casual conversation that her Driver’s Licence had amassed 9 penalty points all of which were still live. There can be no doubt that SH informed their Direct Supervisor KB of this fact and the next Monday the issue was addressed with the Complainant. The company van was taken from the Complainant who thereafter used her own car for work.

Throughout her evidence, the Complainant asserted a number of things which I have to take into consideration. The Complainant said that the non-disclosure of the penalty points in her signing up documentation was an oversight and genuine mistake on her part. The Complainant additionally stated that in any event, the points had nothing to do with her work and therefore should not have been relevant to her assessment as being qualified and capable of the job. I accept this last point but have to acknowledge that whilst the fact of having penalty points is not being criticised here, it is the knock on effect of having so many points with regard to insurance which must be considered.

In conjunction with this, I cannot ignore the fact that there was quite an emphasis placed on the need to have a clean licence and to declare penalty points if any. The Complainant simply left the matter unanswered in the Driver Declaration Form – which she referenced as being accurate and complete. The Complainant knew or ought to have known that there was a comprehensive company policy with respect to driving a personal vehicle for work as well as one for the purpose of driving a company vehicle. Both policies clearly reference the need to honestly fill out the declaration form and clearly indicate that insurance difficulties can arise where penalty point and non-disclosure issues might arise.

The Complainant said she knew of the existence of company policies though had not fully read through them as there were time constraints. I accept this might have been the case, but would find that the Complainant as an intelligent and capable individual would have a reasonably good understanding of the reasons why a potential Employer should be alerted to penalty points.

For the avoidance of doubt, I ascribe a basic understanding to the concept of having a full clean driver’s licence as being a driver’s licence without penalty points. I would also further note that the Road Safety Authority confirms and defines that penalty points are a formal reprimand by the Gardai endorsed on your driving licence record which show you are guilty of a specific driving offence. Not only therefore did the Complainant fail to disclose the fact of the penalty points but she also failed to disclose the nature of the offences committed and which gave rise to the said penalty points (this was also specifically requested in the driver’s declaration form).

The Complainant made much of the fact that it was she herself who disclosed the fact that she had nine penalty points and therefore had not concealed with purpose and intent. However, I have to take into account that the complainant did not inform her supervisor directly and it was only when she was being given a company car that the Complainant raised the issue with SH. I would have to assume that, the Complainant as an astute individual, would be well aware of potential insurance implications for her employer if she was in an accident in one of their cars and she had not disclosed her penalty points. I must attribute a basic everyday understanding of how insurance works to the Complainant. In fact, although nobody directly dealt with the issue when I raised it, I would be concerned that Complainant’s own insurance company may well be justified in refusing to indemnify the Complainant driving her own vehicle in the event that it became aware that the usage was work related and not just for social and domestic reasons.

I was also given to understand that the Complainant would get an allowance from her Employer in the event that she was driving her own car whilst carrying out her work duties – certainly potentially bringing the Employer back into the frame for any accident which might arise.

In her evidence the Complainant confirmed that she was only with the Respondent company for three to four weeks. The first week she was on an in-house one week induction course. The second week the Complainant was out on the road being mentored by SH. It was only in the third week and a part of the fourth that the complainant was out on her own. This last period started on the 29th of May which was also the day that the complainant was approached by her Line Manager concerning the penalty points that had come to light. The Complainant had the company van removed and she worked instead using her own car which she has suggested in evidence was indicative of the fact that the penalty points issue was not of particular significance to the employer at this time. The Complainant’s line manager also stated that the Complainant needed to re-submit a complete Driver’s Declaration Form.

In less than 24 hours the Complainant had highlighted with the Employer what she perceived to be a very serious issue regarding the method by which SH was persuading potential clients to purchase the Telecommunications packages being sold. The general thrust of her relevant information was that the methods adopted were invasive and fraudulent. The Complainant said she witnessed SH operating well outside the Code of Conduct and the Standards of Compliance which had been drilled into the Complainant during her induction week. The Complainant knew that the Respondent operated zero tolerance policy in this regard. The Complainant specified the unauthorised acquisition of UAN numbers. To her mind, the Complainant had made a protected disclosure and she made this disclosure to a Mr. GM and subsequently to Ms. JL who was the National Sales Manager. The law states that until the contrary is proven, it is presumed that the relevant information (which tends to show in this instance that an offence is being committed and legal obligations are not being adhered to) is presumed to be a protected disclosure and that the Complainant shall not be penalised for having made same.

Within a day or two of the Disclosure having been made, the complainant was called into a meeting (on the Thursday 1st of June) with JL together with the line manager KB. I note that JL had also been notified of the penalty points issue when that had previously highlighted to her on the previous Friday the 26th of May but that the issue of primary concern to her as National Sales Manager was the issue of integrity and compliance as raised by the Complainant. It is also noted that during the course of this meeting on the 1st of June the complainant was asked about the Penalty Points as well as about work References which were meant to have been made available as part and parcel of her introductory paperwork. The Complainant was also asked about the protected disclosure which at this point in time appeared to be very serious to the mind of management. I found the evidence of JL to be persuasive.

There can be no doubt that the disclosure made by the Complainant was taken seriously and did trigger a comprehensive and far reaching investigation into the work practices witnessed by the Complainant in her first week of mentored work under the guidance of SH. BK said it was a huge issue for her as this was part of her operating team. Although the investigation (conducted by the compliance Manager Ms. K) ultimately found that the relevant information did not tend to show the level of wrongdoing that the Complainant had suggested for the purposes of the Complaint I am now dealing with I am satisfied that the complainant was to be treated as a “whistleblower” from this time up to the point at which the employment ended. The complainant was therefore entitled not to be in any way penalised by reason of having made a protected disclosure. Whether the Complainant had acted in reaction to having been exposed in relation to the penalty points is irrelevant and in this regard I note that the Respondent pointed to the late timing of the purported disclosure which should have been made during the week that the complainant was in fact mentoring with SH. Instead of which it was only brought to light after the Complainant’s penalty points had come into focus.

The Complainant gave evidence that as soon as she had made the protected disclosure she believed she was targeted by BK for dismissal. Her evidence for this appears to have been a coolness and a distance and also the Complainant’s own understanding that SH was a well-regarded member of BK’s field team. For her part, BK said she was waiting to see what HR had to say about the Penalty points and the lack of References before determining what steps if any needed to be taken. Ms. BK also said that there was no relationship issue as she hardly knew the complainant who had only started on her team.

The Complainant had by now had the company car removed from her use and was using her own personal vehicle. The Complainant was out in the field and under the direction of the said Supervisor. A few days passed. Then on the 6th of June BK tried to track down the complainant to run through a number of operational and assistance issues with her. The Complainant had left the field and was en route home when she was contacted by BK who ended up requesting a meeting within the hour. The Complainant had to admit she was on her way home and appears to have suggested it was to get a charger. In any event, the complainant agreed to meet with her Supervisor within the hour only to ring up an hour later to say she had to bring her mother to the Hospital. BK was understandably annoyed at having been left waiting for an hour last thing in the working day and was anxious to meet the Complainant the next day.

The absence policy demands that a line manager is spoken to directly if unexpected leave is required. Unnotified absence is considered to be unauthorised absence. This is important in the context of a workplace where people are working on their own and away from base. The Complainant did not at that time suggest she needed Force Majeure leave and her Mother’s ongoing stay in Hospital was unknown or unknowable when BK sought to meet with the Complainant on the 7th of June. The Complainant did send an email that was silent on the issue of her mother’s health and therefore I accept that BK deemed that issue to be no longer relevant.

To BK’s frustration, the Complainant was unavailable and did not contact BK to explain that her mother had been kept over in Hospital and needed her. As BK had not been told to the contrary she assumed the Complainant was going to be at work and was surprised when it came to her attention that the Complainant was – to her mind – absent without leave. This is particularly important when there are Team Targets to be met which means everyone is expected to pull their weight. When the Complainant rang, she purported to resign and then subsequently retracted her resignation. The Complainant agreed to meet with BK who insisted that the Complainant meet with her later that day and it was at this meeting conducted in a Hotel in the midlands that the Complainant was dismissed from her employment.

BK states that this was her decision. She had recruited the Complainant and had been delighted that the Complainant had done so well in the induction but that the Complainant had subsequently proven herself to be unsuitable for the position. BK pointed to the HR letter from a Ms TG wherein it is made clear to potential employees that the offer of employment is predicated on the candidates ability to demonstrate suitability for the position during the recognised probationary period.

BK said – and I am inclined to accept – that her reasons for terminating the employment at this time had nothing to do with the protected disclosure that had been made by the Complainant in the course of employment. BK had been happy to hand that issue over to the Compliance Manager Ms. K to investigate. I accept BK’s evidence and that of LJ that the issue had been taken seriously and moved up the line.

Ultimately, BK ascribed a number of reasons to the termination of this employment including the non-performance in the field (which might have been improved upon), the unauthorised absence (which demonstrated a tendancy not to be a team player) and the lack of References. Undoubtedly the biggest concern had to be the possibility of the concealment of nine penalty points as well as the Offences for which they had accrued. Whether this was by design or accident I cannot conclude, but it was a very serious omission that had all sorts of far-reaching and potentially damaging outcomes.

I have considered the Complainant’s contention that she was dismissed by reason of having exercised her entitlement to force majeure leave and I am satisfied that in the course of the employment the employer had no reason to believe that the Complainant had sufficient or good reason to apply for a period of leave by reason of force majeure. This suggestion only came to light well after the event and on balance I accept Ms. BK’s account of her interaction with the Complainant during the Complainant’s last two days of work. Whilst the Complainant’s mother may have been unwell there was no suggestion that this was having the knock-on effect that was claimed well after the event i.e. that this was Force Majeure leave. This fact was not made known at the relevant time.

On balance, I find that the Complainant’s employment was terminated during the course of the probationary period of her employment for the reasons given by BK. I believe that the decision was reasonable in all the circumstances outlined to me. Not only are there the technical difficulties of the penalty points on the driver’s licence but there are difficulties demonstrated by the Complainant’s attitude to the work when she absented herself without notice and or permission. I do not accept that this was an Unfair Dismissal (and in any event there was not the requisite service) nor was this an Unfair Dismissal or other penalisation arising out of the making of a Protected Disclosure and/or making a request for Force Majeure leave.

The Complaint under the Parental Leave Act 1998 fails.

The Complaint under Schedule 2 of the Protected Disclosures Act, 2014 fails.