Complainant

Respondent

Anonymised Parties

A Clinical Sales Specialist

A Medical Supplies Company

Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00020946-001

01/08/2018

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

CA-00020946-002

01/08/2018

The Complainant commenced employment with the Respondent, a medical supplies company, on 19th June 2017. The Complainant was employed as a Clinical Sales Specialist. He was paid a gross monthly salary of €4,750. His employment with the Respondent ended on 17th July 2018. A complaint was lodged with the WRC on 1st August 2018.

At the hearing the Complainant agreed he had received two weeks' pay to cover the period from mid-July to the end of July.

The Respondent stated that the Complainant had been paid Pay in Lieu of Notice, for the two weeks from mid-July to the end of July.

The Complainant was paid his notice money.

The complaint is unfounded.

The Respondent submits that the Complainant was recruited because of his previous experience in this specialist field. It was clearly explained to the Complainant that there was always an expectation that sales would be converted in the first year.   During his time with the company the Complainant fell short in one sales area and delivered no sales in another.   More concerning to the Respondent was that by the time of his departure he had established no Sales Pipeline that would indicate he could deliver in the area where he had had no sales previously, in the coming six months or year.

The Respondent submits that it was made clear to the Complainant at a meeting held on 23rd February 2018 that the Respondent Company was not happy with his performance and that it would have to improve. A major concern was the lack of scheduled meetings which might lead to sales. It was made clear to the Complainant at the meeting that his probation was being extended and he was not being made permanent. In order to assist the Complainant, it was agreed to reduce his territory and that he would meet with his manager periodically to review progress.

Some of the meetings referred to above did take place but the Complainant's manager still perceived a lack of action from the Complainant.

The Respondent was particularly annoyed at the loss of a contract the company had held for many years. On investigation he discovered that the customer was "furious and disappointed" with the responses he had gotten from the Complainant. To make matters worse, the Respondent believes the Complainant tried to cover up his poor performance in this particular matter.

The Respondent met the Complainant on 13th June 2018 and expressed his frustration and told him that he needed to improve his performance or his job would not be sustainable.

The Respondent submits that it was decided that the company would not make the Complainant permanent and would terminate his employment during his probation period.

The Respondent met with the Complainant on 17th July 2018 and informed him of the decision not to make him permanent and to let him go.   The Respondent paid the Complainant two weeks' notice plus an additional one month's salary.

In direct evidence at the hearing, the Respondent stated that it had always been made clear to the Complainant that he had to deliver sales and these would be measured. Despite support the Respondent did not see much activity from the Complainant

The Respondent stated that he felt the Complainant was on continuous probation from February.

The Complainant submits that when he started with the Respondent he was told he would only be measured in one area of sales in year one and both areas in year two.

The Complainant submits that he was called into a meeting on 23rd February 2018 to discuss how to improve his work and KPIs. At no point was it made clear to the Complainant that this was a performance review nor did he receive any kind of verbal warning about his performance. At the conclusion of the meeting the Managing Director (MD) said that they would have a follow up meeting in two months and that they would discuss the Complainant's probation then.

The Complainant submits that he was never informed that the MD was unhappy with his performance either verbally or in writing.

On 17th July 2018 the Complainant was called to a meeting where he was told by the MD that his performance was poor in both his product ranges and that he was being let go with immediate effect.

In direct evidence at the hearing, the Complainant stated that according to his contract his probation ended on 19th December 2017 and he thought he was permanent.

He never got any official warnings about his performance and although there had been meetings with his MD and sales director they were not "performance" meetings as such and no improvement plan was ever put in place.

In response to questioning the Complainant stated that although concerns had been raised with him he never felt his job was threatened. Although he agreed there was a need for focus, he never thought he was going to be called into a meeting and dismissed.

The Complainant stated that he got work elsewhere on 10 December working in retail, at a rate approximately 60% less than that which enjoyed with the Respondent.

S6(4)(a) of the Act states 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 the conduct of the employee.

In addition S6(7) of the Act requires that in determining if a dismissal is an unfair dismissal, regard may be had, if the Adjudication Officer 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 which the employer will observe before and for the purpose of dismissing the employee …or with the provisions of any code of practice.

I must therefore consider both the fairness of the procedures adopted and substantive issues leading to the dismissal.

In this case, the Respondent believed that he Complainant was on probation and as such he was well within his rights to summarily terminate his employment without recourse to any procedures. It is a moot point as to whether the Complainant was on probation.   Either way, just because an employee is on probation does not mean that the guiding legal principles of Natural Justice do not apply.

A landmark case is Frizelle v New Ross Credit Union Ltd, [1997] IEHC where Flood J. stated that in relation to dismissal that the, "principles of natural justice must be unequivocally applied.”

 Furthermore, legal instrument SI 146 of 2000 – Code of Practice on Grievance and Disciplinary procedures (declaration Order) 2000 Industrial Relations Act, 2000 applies. This S.I. essentially codifies the Rules of Natural Justice and should act as a guideline for employers.

The rules of Natural justice were absent in this case. The Complainant was never told that unless his performance improved dramatically he would be dismissed. He was never given any written warnings regarding his performance. When he was called to the dismissal meeting in July 2018 he was not forewarned, and he was not informed of his right to representation.

After his dismissal he was not given the right to appeal the decision.

Regarding the reason for the dismissal, the Complainant's poor performance, it would seem that it was not what it should have been; the Complainant admitted such to all intents and purposes at the hearing. He did contribute to his own dismissal by his poor performance.

Having reviewed and considered all the evidence both written and oral I came to the view that this was an Unfair Dismissal.

Taking into account the Complainant's relatively short service, his own contribution to his dismissal, his time out of work and the differential between his old job and his new job, I believe an award of three months' pay is warranted.

Natural Justice, Performance, Probation