ADJUDICATION OFFICER DECISION/RECOMMENDATION

 Adjudication Reference:  ADJ-00008472

Parties:

   Service Adviser v Motor Vehicle Company  

Complaint(s):

ActComplaint/Dispute Reference No.Date of Receipt Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA-00011134-001 04/05/2017 Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00011134-002 04/05/2017 Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00011134-003 04/05/2017 Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 CA-00011134-004 04/05/2017  

Date of Adjudication Hearing: 20/09/2017                                        Workplace Relations Commission Adjudication Officer: Emer O'Shea

Procedure:

In accordance with Section 41 of the Workplace Relations Act 2015 and/or Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).   The complaint under the Organisation of Working Time Act 1997 was withdrawn at the hearing.

Summary of Complainant’s Case:

The claimant was employed as a Service Adviser with the respondent from the 2nd.Oct.2015 to the 20th.Feb. 2017.The claimant submitted the respondent was in breach of the Act for failing to furnish him with written terms and conditions of employment in accordance with the Terms of Employment (Information) Act 1994.The claimant submitted the respondent was in breach of the Minimum Notice and Terms of Employment Act , 1973 for failing to pay him his statutory notice. It was submitted that the claimant was unfairly dismissed on the 20th.Feb.2017 and that the dismissal was substantively and procedurally unfair. In his complaint form the claimant asserted that he was called to a meeting on the 20th.Feb. 2017 by the directors of the company. One of the directors went through a progress list with the claimant and phoned 2 customers who owed money to the respondent.The claimant’s work was criticised and the meeting became confrontational.One of the owners turned to the claimant and stated “ you might not agree with what I am going to say but I’m giving you 2 weeks f…… notice”.The claimant suffered chest pains and attended his doctor the following day – he was certified unfit for work due to stress.The claimant was issued with a P45 on the 13th.March 2017. In his direct evidence that claimant stated that he had a Diploma in Transport Management and over 18 years experience in the industry.He stated that his job had been very pressurised and involved dealing with customers , warranty administration and running the workshop.The claimant referred to having very high blood pressure , retinopathy, nausea and anxiety and that all of these symptoms were stress related.He asserted that there had been confusion about codes but that it was a systems failure related to defaulting to a particular account.The claimant stated that when he returned to work on the 9th.Jan.2017 , the atmosphere at work was horrible and when asked to explain his absence was asked “ where the f were you on Thursday”.He advised that he was told by director Mr.JB on the 13th.Jan. that he didn’t give a s… about his work.At a meeting on the 10th.Feb. 2017 , Mr.JB questioned his commitment to his work , criticised him about spelling errors and Mr.TB stated that a 2 year old could do better and that he was a waste of space.He stated that at the meeting on the 20th.Feb. Mr.JB exploded and said he was giving him 2 weeks notice.He made reference to a Training Course that was due to take place after his dismissal and to which his colleague had been invited.The claimant stated that he was paid to the 20th.February and not beyond that.Under cross examination the claimant accepted that he had been trained and that his employers met with him at least twice a month.He explained that he would not be aware of incorrect codes until they were brought to his attention.He was questioned why he did not respond to the emails from the directors criticising his performance and it was asserted that he never challenged them.It was put to him that what was said by the directors at the meeting on the 30th.January was that it wasn’t that he was incapable , he just didn’t give a s… The claimant stated that he was unaware as to what he needed to do to get a bonus.It was put to the claimant that he never sent out invoices – he indicated that he thought reception would follow up on them and that he tried to contact the customers by phone. It was submitted that the claimant had been working in a very busy job – that the company had no procedures in place and that any performance problems should have been addressed and monitored through appropriate procedures.It was submitted that the respond had failed to observe their legal obligations to the claimant , that he was unfairly dismissed and that he had incurred an ongoing and substantial loss of income .  

Summary of Respondent’s Case:

The respondent accepted that the claimant was not furnished with written terms and conditions of employment as required under the Terms of Employment (Information)Act 1994. It was submitted that by his own admission , the respondent had given that claimant 2 weeks notice and that consequently there was no breach of the Minimum Notice and Terms of Employment Act 1973. In the context of the unfair dismissal complaint , the respondent submitted that the claimant’s duties included issuing service invoices , reconciling technicians times, warranty claims , customer queries , managing the floor when the manager was off duty.It was asserted that the claimant was paid €561.60 per week and there was provision for a performance bonus of €300 which the claimant never met. It was submitted that the claimant’s performance was consistently below par and that despite performance reviews there had been no improvement. It was submitted that over a period of 14 months the claimant had been absent for 41 days and that the claimant had failed to provide medical certs when requested . It was submitted that a performance meeting took place with the claimant on the 20th.Feb. 2017 where he was challenged on allowing 2 customers to depart the premises without payment in August 2016.It was submitted that while the claimant maintained that he had been pursuing the customers , the respondents had concluded that this was not the case and that he had been misleading them.It was submitted that the claimant was issued with 2 weeks notice for his poor performance , poor attendance and for misleading his employer.It was submitted that the claimant did not work his notice and submitted medical certs for the notice period. It was submitted that the dismissal was attributable to poor performance on the part of the claimant and that there had been numerous meetings held with him to address these performance deficits.It was submitted that the respondent had been considerate in allowing the claimant to carry forward leave and had been generous in their allocation of leave. It was submitted that the claimant had contributed substantially to his own dismissal – it was advanced that he had deliberately misled his employer with respect to follow up on debtors and it was contended that one of the phone numbers he had volunteered with respect to customers who owed money did not exist. In his direct evidence, company director Mr.TB asserted that the claimant had been given a day,s training on the company system.He asserted that the claimant’s shortcomings included assigning invoices to the wrong accounts , errors in relation to vehicle stock ,warranties were not being claimed , non recovery of payments from customers before they left the premises.He stated that he had to convene 2-4 meetings per month to sort invoices and suggested that there shouldn’t have been as many meetings and that no such problems had arisen with the claimant’s successor. Mr.TB stated that on the 20th.Feb.2017 , they were reviewing work in progress and that this involved 180 items – they were getting stories about technicians not writing up completed works, invoices were not being pursued ; he stated that he discussed the monies owing from 2 customers since August – he contended that while the claimant had been insisting he had been pursuing them, he was sceptical and rang both numbers himself .He asserted that one line went dead and the customer who answered the phone undertook to settle the payment the following Friday. Mr.TB deduced that the claimant had not followed up on these customers at all .He gave the claimant 2 weeks notice .He contended that the claimant was not being honest and stated that when he checked out the claimant’s claim about a mechanics job that the claimant had maintained was completed the day before , he discovered that the job had been done weeks before. The director stated that the claimant took holiday pay in lieu of missing days in 2016 when he received 25 days annual leave. Under cross examination , he stated that the meeting on the 20th.Feb. was not a disciplinary meeting and that “ we did not start off with that intention”.When questioned about the respondent’s policy on sick pay , Mr.TB said at that stage thay did n’t have rules and he could not recollect saying to the claimant that he was a waste of space.When questioned about abusive language towards the claimant , the director said that we were totally frustrated and had numerous meeting with the claimant to no avail. It was acknowledged that there had been procedural deficits in effecting the claimant’s dismissal but it was contended that there was a long history of performance problems and the respondent was left with no option but to terminate the claimant’s employment.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act. Section 8 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.      

CA-00011134-002 Terms of Employment (Information) Act 1994 I note the respondent has not disputed a breach of the Act and on the basis of the claimant’s evidence I am satisfied the claimant suffered detriment by virtue of not having been issued with terms and conditions of employment including a grievance and disciplinary procedure.Consequently I am upholding the complaint and require the respondent to pay the claimant €1,500 compensation within 42 days of the date of this decision.

CA-00011134-001 Unfair Dismissals Act, 1977 I have reviewed the evidence presented at the hearing and noted the submissions of the parties.I am satisfied that the claimant was dismissed without the application of the most fundamental tenets of fair procedures and natural justice and accordingly I am upholding the complaint.On the basis of the evidence presented I have concluded that the claimant was engaged in an unsupportive work environment and that the absence of procedures was a contributory factor in his failure to challenge the performance issues raised by the respondent.However I do accept the respondent’s contention that the claimant’s performance challenges were a contributory factor in his dismissal and I have taken this into account in determining the quantum of the award for breaching the Act.I require the respondent to pay the claimant €12,000 compensation within 42 days of the date of this decision.  

CA-00011134-004 Minimum Notice and Terms of Employment Act , 1973. Given my finding under the Unfair Dismissals Act and noting that the claimant was not paid after the meeting on the 20th.Feb.2017, I am upholding the complaint and require the respondent to pay the claimant one weeks notice within 42 days of the date of this decision.   Dated:   16th February 2018

Workplace Relations Commission Adjudication Officer: Emer O'Shea