Complainant

Respondent

Anonymised Parties

A Sales Representative

A Motor Components Company

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-00011201-001

08/05/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00011201-002

08/05/2017

The complainant was employed by the respondent from June, 1986 up to the point of his termination in January, 2017.

He earned €2925.00 per month.

The complainant was dismissed for non-performance and paid eight weeks’ notice.

There had been a long lead-in to the termination.

The complainant had been a capable and competent employee and had been treated well by the respondent during periods of sick leave; being paid his wages despite there being no sick pay scheme in the company.

This began to change in 2014 with the introduction of new software systems with which the complainant did not cooperate. Indeed, he actively rested the changes and disobeyed direct instructions from the company management.

This continued throughout 2015 and eventually disciplinary proceedings were initiated in December with the complainant being issued a ‘verbal warning’ concerning his failure to use the company systems.

In the following year, 2016, the complainant went from being one of the better performers in the company to becoming the poorest. He also continued to resist the changes or to follow instructions.

In July 2016, disciplinary procedures were set in train again and this time the complainant was issued with a formal written warning on August 2nd. The company agreed that there would be a mentoring period for three months following which the complainant’s performance would be reviewed again.

However, while there was some improvement in respect of the complainant following the new company procedures his performance actually slipped back. The formal warning remained in place and a further three months’ monitoring was to follow.

There was no improvement in the complainant’s performance in the period. He was asked to put together a plan for achieving improved targets.

A meeting was arranged for January 3rd 2017. Prior to this meeting the respondent says that the complainant was heard to say in front of a witness that he had been invited for interview by a competitor. Indeed, he commenced employment with that competitor shortly after the termination of his employment with the respondent.

At the meeting on January 3rd the complainant was presented with the latest sales figures which showed significant underperformance.

The complainant said he felt he was being ‘singled out’ and said at the meeting; ‘why don’t you get over it and fire me now’.

The respondent had no intention of terminating the employment and offered the complainant the opportunity of a break following which he could come back with a performance improvement plan. The complainant said he was not aware this plan was expected from him and despite being offered the rest of the week off to prepare it he insisted on giving it immediately.

He did so following a brief break.

The plan was not convincing and he was reminded of the numerous opportunities he had been given to improve sales.

The complainant said there was a move to ‘get rid’ of him but the respondent referred to the long running efforts to improve his performance.

The meeting became heated and following exchanges on the complainant’s performance he was told that he was being dismissed.

He did not appeal the dismissal.

The respondent says it acted reasonably at all times and conducted the disciplinary process with fairness. The employee consistently refused to engage with his employer and his actions were a very significant contributor to his termination.

The respondent believes that the complainant engineered the circumstances which led to his dismissal.

Finally, the complainant was not made redundant and seeks a finding that the dismissal was fair.

The complainant says that any deficits in his performance were attributable to broader market forces in the sector, including the entry into the market of a competitor and the loss of a key customer.

The respondent failed to take these factors into account in assessing his performance.

The performance criteria are selective and not fair to the complainant.

Prior to the initial disciplinary process in 2015 the respondent failed to establish a reasonable performance standard.

The dismissal was part of a company cost-cutting exercise and the complainant has not been replaced.

Regarding the final meeting in January 2017 the complainant was not on notice that this was a disciplinary meeting or that it might result in any sanction against him, much less the termination of his employment.

The warning which had been extended since August 2016 was not a final written warning.

It is clear, from the respondent’s own admission that there had been no prior intention to dismiss the complainant and that this was made in the course of the January 3rd meeting.

He was not informed of the right to appeal.

The complainant also criticises the performance management process in 2015 and 2016.

He denies that he was given a written warning on August 2nd 2016 and says that the purported warning makes no reference to the consequences of a failure to improve, or any right to appeal.

It seems quite clear that for an extended period of time the respondent was having difficulty getting the complainant to cooperate with its new technology and to improve his performance.

There were aspects of this ongoing problem which the respondent handled to a good standard in its attempts to improve the complainant’s performance.

Correspondence dated July 25th, August 2nd, November 11th and December 17th should have left the complainant in no doubt that his position was under serious scrutiny.

On July 25th he was told of his failure to implement three specific targets and that it was a ‘serious issue’. He was invited to a meeting on July 29th at which he was told a formal warning had been administered and that he would be entering a mentoring period with a named manager.

At the three-month review of this the complainant raised breakdowns in communication and the respondent put in place a series of weekly meetings in response. There were other positive responses to issues raised by the complainant.

On December 17th, the complainant was told of continuing failure to deliver on three key targets which were also include in the correspondence in July, August and November.

The complainant made a number of technical complaints about these meetings but I find no fault with them as part of a performance management process. Indeed, the respondent displayed a degree of patience with the persistent failure of the complainant to respond to the opportunities he was being given to improve.

Performance management and the management of discipline are quite separate in their purpose, although in their earlier stages they each have the same objective of securing some improvement in either conduct or performance.

In practice, very similar principles apply to the operation of both in respect, for example of the need for the employee to have clarity about the process and the employer’s future expectations and it might be said that in their earlier stages they run on parallel tracks.

Where those tracks merge, however is at the point where a sanction is being considered and the more serious the sanction the higher the standard of fair procedure that is required.

There are some deficits in respect of the administration of the 2016 warnings and the twin track of performance management and discipline were fused to the complainant’s disadvantage.

It may possible to have ‘warnings’ about the need for performance improvement which are not warnings for the purpose of future disciplinary action, and where this is the case that needs to be clearly identified and understood.

A general injunction to improve performance is a sort of a warning but not necessarily for the purposes of the disciplinary process unless it has been clearly identified as such and properly administered following the steps in the disciplinary process.

In any event, the termination of the complainant’s employment did not form part of some calibrated process built on previous warnings and were not relied on by the respondent to any degree.

Indeed, even if the earlier warnings had been handled perfectly (which they were not) the final act in the drama would have unravelled all that good work.

It seems as if the patience of the respondent finally ran out in the course of a testy meeting on January 3rd 2017.

It is quite clear that this meeting was set up as a performance management meeting.

It met absolutely none of the requirements for a properly constituted disciplinary meeting, and indeed the respondent conceded that it entered the meeting with quite different objectives than the termination of the complainant’s employment.

Nonetheless, that was the outcome and whatever provocation the respondent experienced in the course of the meeting provides no defence for its peremptory dismissal of the complainant.

It is noteworthy that the respondent offered the complainant several days to prepare his performance improvement proposals. It would have done well to follow the same advice and take some time to properly set up any disciplinary action contemplated against the complainant.

It had all the appearance of an ‘accidental’ or unintended termination as events appeared to spiral out of control, but that does not save it.

Regardless of that, and indeed because of that, it was prima facie unfair and also in breach of the respondent’s own procedures.

It must also be said that the complainant made a significant contribution to the situation,

Section 7 (2) (b) of the Unfair Dismissal Act provides that regard shall be had to ‘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) although given the egregious breach of his rights at the final meeting on January 3rd this should not be overemphasised.

The complainant had no financial losses attributable to the dismissal.

The Unfair Dismissals Act provides for a payment of up to one month’s salary in the event of there being no losses and I have made a small reduction having regard to section 7 (2) (b).

Given the narrative set out above it is clear that the complainant was not made redundant.

He stated on the complaint form that it was ‘more than likely an unfair dismissal complaint’ and this is an assessment I agree with. That complaint is not upheld.

I uphold complaint CA-00011201-001.

The complainant was unfairly dismissed and I award him €2,500.00.

I do not uphold complaint CA-00011201-002 and it is dismissed.

Unfair dismissal, redundancy, fair procedures.