Complainant

Respondent

Anonymised Parties

A Tele Sales Account Manager

A Telephone and IT Networks Company

Representatives

L. Tennyson BL

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00014760-001

03/10/2017

The Dispute concerns a Tele Sales Account Manager and his alleged Unfair Dismissal by a Telephone/IT Networks Company.

The Complainant commenced employment in June 2012. He was on Sick leave from the 6th/9th December 2016. In a Return to Work meeting he informed the Respondent that his absence was due to family related personal issues. In January, he was informally counselled by his Superior regarding his pattern of attendance. On the 13th March 2017, he was the subject of an Investigation Meeting regarding his attendance and difficulties with punctuality. The result was a Verbal Warning. On the 4th April 2017, he was the subject of PIP – Performance Improvement Plan.

On the 22nd May 2017 he was requested to attend a further Investigation meeting. This took place and an Outcome meeting was arranged for the 23rd May. At this meeting the Complainant received a Final Written Warning and a Notice of Termination. The Complainant appealed this Termination Decision. An Appeal hearing was held on the 20th June 2017 and the Termination was confirmed by letter of the 26th June 20167.

The Complainant strongly maintained that the decision to terminate his employment had been taken probably while he was on Sick leave with a Knee injury in May 2017. The series of meetings, in particular the 22/23 May Written warning /Termination had been taken with unseemly haste and together with the Appeal Hearing were just formalities to cover against any Unfair Dismissal actions. They had no real meaning, he was never given an opportunity to prepare for the meeting of the 22nd May, a key witness to an Accounts query was on holidays and he was never given an opportunity to call her as a witness in his defence. In addition, and furthermore he had informed the Company of his medical / domestic situation in December of 2016 – difficulties with sleeping, anxiety and work related stress. These issues should have invoked some compassion from his employer, at the very least an inquiry. This had not happened and he had been summarily dismissed in May 2017 without any regard to proper procedures, including the Company’s own published procedures. Accordingly, the Dismissal was completely Unfair.

Historically the Complainant had reported sleeping issues and his hours had been amended in 2015 to try to assist in this regard. From July 2016 to June 2017 the Complainant had a very poor attendance record. He was informally counselled in January 2017 in regard his attendance and time keeping. In March 2017, he was placed on notice of a formal investigation- a meeting took place on the 13th March.   A Verbal Warning was issued on this occasion.

On the 4th April, he was issued with a PIP Plan -he had failed to meet his Targets in Q 1 of 2017. He also failed to meet targets up to May 2017. His performance was far short of the targets and displayed poor judgment and basic competence in the main duties of the position. On the 22nd May 2017 a further investigation meeting took place. Poor customer performance was examined and his failure to meet the requirements of the PIP. An Outcome Meeting was held on the 23rd May and a Final Written warning was issued. Furthermore, a Termination of Employment notice was issued, in summary, for poor work performance, lack of diligence in work duties and failure to observed agreed work targets and procedures.

The Dismissal was appealed but the decision was upheld and dismissal confirmed.

In their presentation, the Respondents maintained that they had followed all proper procedures, both of Standard Practice and as set out in the Company Procedures and Handbook. Representation was always offered and all documentation was as required by procedure.

The Complainant had by his own actions and lack of diligence and disregard for Company procedures of which he was well aware effectively left the Respondent with little choice but to regrettably end the contract of Employment. The Dismissal was fair.

3:1     The Relevant Law

The Unfair Dismissals Act, 1977 to 2015, SI 146 of 2000 Code of Practice on Grievance and Disciplinary Procedures and Case Law. The importance of the rules and principles of Natural Justice are paramount.

In the landmark case Frizelle v New Ross Credit Union Ltd, [1997]IEHC137 Flood J. stated that where a question of unfair dismissal is in issue, there are certain matters which must be established to support the decision to terminate employment for misconduct:

“1.

The complaint must be a bona fide complaint unrelated to any other agenda of the Complainant.

2.

Where the Complainant is a person or body of intermediate authority, it should state the complaint, factually, clearly and fairly without any innuendo or hidden inference or conclusion.

3.

The employee should be interviewed and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment.

4.

The decision of the deciding authority should be based on the balance of probabilities flowing from factual evidence and in the light of the explanation offered.

5.

The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.

Put very simply, principles of natural justice must be unequivocally applied.”

Appeal Hearings must also be conducted by persons clearly well independent of the Parties.

However, care must be taken when looking at Procedural issues – shortfalls in Employer procedures are not an absolute predicator of an Unfair Dismissal. The long line of legal cases from Elstone v CIE (Urept March 1987) to RAS Medical Ltd v Royal College of Surgeons in Ireland [2017] IECA 228 indicate that failings in procedures are not absolute and a case has always to be seen in its widest context.

In this context, the behaviours of the employee have always to be reflected upon.

In addition, it is also generally accepted that hasty decisions make bad law particularly in the Employment area. The Latin maxim of “Festina Lente” or “make haste slowly” is not to be lightly ignored.

3:2     Consideration of the Evidence presented -both Orally and in Written Submissions.

It was clear that the Complainant’s employment relationship with the Respondent had become, by late 2016, a difficult situation. Attendance issues, problems with punctuality, the alleged sleeping difficulties and the failure to meet performance targets all combined to make the situation most serious for the Complainant.

At the Oral Hearing, it was clear that the Complainant was aware that the employment relationship was not going well. The PIP plan of early April, following on from the Verbal Warning of the 13th March was a clear effort to put things, from the Respondent point of view, back on a proper footing. However, it was not clear to me, having heard the oral evidence, the degree to which the Complainant understood how precarious his position had become.

The absence for a Knee Injury in May appeared to have been a major tipping point in the Respondent’s point of view. Quite clearly it appeared that their patience was coming to an end.

The meeting of the 22nd May was followed by the Outcome meeting of the 23rd where a final Written Warning was immediately followed by a Dismissal. I could not see the need or justification for the immediate follow up with a Dismissal.

Natural Justice would determine that where a Final Written Warning is issued at the very least some time for improvement and changes of behaviours on the Complainants part should be allowed.

I noted with concern the following quote from the Company Rule Book

“Section 3.1.3

As each warning is given the Company and the employee shall agree (or in default of Agreement between the Company and the employee, the Company shall specify), the period of time to be allowed for improvement not only to be achieved but also to be sustained.”

To follow immediately on a Final Written Warning with a Dismissal seems difficult to reconcile with the Rule Book. It was hard to see how the disciplinary issues referred to amounted to Gross Misconduct warranting a summary dismissaleven allowing for the extensive list of possible offences in Clause 3.1.8 of the Handbook.

In the Oral Evidence the question as to whether or not an Occupational Health Assessment of the Complainant was considered. It had not taken place and the Respondent was of the view that it was not the normal practice in cases of this nature. However, considering the feedback from the Respondent, particularly as regards the Return to work interviews and his alleged sleeping problems a Medical assessment would certainly have better informed the Respondent’s decisions. Although not strictly comparable the legal tests in the Humphries v Westwood Fitness Centre [2004] ELR 296 case are worth reflecting on.

The question of the Independence of the Chairperson of the Appeal Hearing -in this case the Chief Executive Officer was open to consideration. The Company was not a major employer and the CEO, not to have had prior knowledge of the case, I found hard to accept. There was no obvious reason why an Outside Person, a Director of the Company not involved in day to day management or some such person could not have heard the appeal.

However, leaving aside any procedural difficulties with the Respondent case and bearing in mind the legal precedents quoted above in 3:1 the Complainant’s performance and attendance clearly fell far short of an acceptable standard. In the doctrine of a Reasonable Employer & the Band of Reasonableness decision making it would be hard to find an employer who would not have seen the dismissal as falling within the Band of Reasonableness.

In his oral evidence the Complainant seemed initially to have largely accepted his position following the Appeal but was particularly aggrieved by an issue with his VHI coverage and when it finished.

3:3   Conclusions

I came, after considering all the evidence both written and oral, to the following conclusions

1.       The Dismissal was Unfair on Procedural grounds – it was marked by a degree of haste that was its undoing -particularly the meetings of the 22/23 May – Final Written Warning and Dismissal in one combined stage.

2.       A Medical report should have been sought on the Complainant – it was clear from the Oral Evidence that this would have been warranted.

3.       The Independence of the Appeal hearing was questionable.

4.       The actions of the Complainant were a major contribution to the Dismissal. He may not have fully grasped how much in jeopardy his employment was but he certainly knew that his work performance was far from what was required.

3:4     Redress.

Section 7 of the Unfair Dismissal Act,1977 requires Redress that is Just and Equitable and “appropriate having regard to all the circumstances”.

I noted that the Complainant stated that he had been unemployed since the date of the Dismissal but may recently have secured part time work in a Pub. The Respondent pointed to a lack of evidence of any realistic efforts on the Complainant’s part to recover his losses.

Accordingly, I make the following award. A Lump sum of six moths pay (€ 2317 X 6 = €13,902) but reduced by a factor of 75% as the Complainants contribution leaving as an Award a final lump sum of € 3,475.

The taxation of this amount to be a matter for Consultation with the Revenue Commissioners.

Act

Complaint/Dispute Reference No.

Summary Decision /Refer to Section 3 above for detailed Reasoning.

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

CA-00014760-001

Claim of Unfair Dismissal upheld. An award of € 3,475 is made.