ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00019182
Parties:
Anonymised Parties
Kitchen Designer
Kitchen provider
Complaint(s):
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-00025038-001
16/01/2019
Date of Adjudication Hearing: 05/04/2019
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 8 (1)(a) of the Unfair Dismissals Act of 1977 (as substituted) and where a claim for redress under the Unfair Dismissals legislation is being made the claim is referred to the Director General of the Workplace Relations Commission who in turn refers any such claim to an Adjudication Officer, so appointed, for the purpose of having the said claim heard in the manner prescribed in Section 41 of the Workplace Relations Act, 2015 and in particular the said Adjudication Officer is obliged to make all relevant inquiries into the complaint. The Adjudication Officer will additionally and where appropriate hear all relevant oral evidence of the parties and their witnesses and will take into account any and all documentary or other evidence which may be tendered in the course of the hearing.
The evidential burden of truth rests with the Respondent. Per Section 6(6)of the 1977 Act, in determining for the purposes of the Acts whether or not a dismissal of an employee was an unfair dismissal or not it shall be for the employer to show that the dismissal resulted wholly or mainly from one or other of the specified grounds (as outlined in the Act – conduct, redundancy etc.), or that there were other substantial reasons justifying the dismissal.
Also, an Adjudication Officer must, in determining if a dismissal is unfair, have regard to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal (per Section 7).
In this particular instance, and in circumstances where the Complainant herein has referred a complaint of having been unfairly dismissed form his place of employment wherein he had worked for in excess of one year and where the Workplace Relations Complaint Form (dated the 16th of January 2019) issued within six months of his dismissal, I am satisfied that I (an Adjudication Officer so appointed) have jurisdiction to hear the within matter
Where an employee has been dismissed and the dismissal is found to be unfair the employee shall be entitled to redress pursuant to Section 7 of the 1977 Act. Such redress might include re-instatement, re-engagement or compensation for any financial loss attributable to the dismissal where compensation for such loss does not exceed 104 weeks remuneration. The acts, omissions and conduct of both parties will be taken into account when considering the extent of the financial loss and there is an onus on a Complainant to adopt measures to mitigate the loss.
Background:
The Complainant issued a workplace relations complaint form on the 16th of January 2019, claiming that he was unfairly dismissed when his employment was terminated in August of 2018.
Summary of Complainant’s Case:
The Complainant says his dismissal came as a shock to him as he had had no inclination that his Employer was dissatisfied with his performance. The Complainant’s representation provided me with a submission on the date of the hearing. Given the lateness of this submission I required the Complainant to give evidence - which he did.
Summary of Respondent’s Case:
The Respondent MD objected to the Complainant’s submission being taken into account at such late notice. However, the submission simply amounted to a recitation of facts (as perceived by the Complainant) and did not address the law and I was satisfied that the Respondent was not unduly prejudiced by the submissions being noted. The Respondent was given every opportunity to challenge the Complainant’s oral evidence.
Findings and Conclusions:
I have carefully listened to the evidence adduced. The Respondent Managing Director gave evidence on behalf of the Respondent and the Complainant had representation but also gave oral evidence on his own behalf. The Respondent is a busy kitchen design and installation company and has up to 7 or 8 employees. At the outset it is worth noting that there is a comprehensive Employee Handbook in operation in this workplace and that the policies, procedures and rules applicable to this workplace are set out therein
“The handbook is designed to give clear advice to employees and to create a culture where issues are dealt with fairly and consistently”
The MD’s son hired the Complainant who came with an excellent and relevant CV.
It is common case that the Complainant was only engaged to work for a six month period as one of the Respondent’s designers was on her Maternity leave which was due to expire in and around February 2018. Both parties agreed that the working relationship was good, though the MD did say that the Complainant was struggling with securing sales. The MD said that both he and his son invested a bit of time in the complainant to help with this aspect of his work and even though the Complainant was only due to stay the six months they were willing to invest this time. The Complainant was having plenty of consultations but generating sales was not coming easily to him, the MD said.
Towards the end of the six months, the Complainant started to look for other work. Then, unexpectedly, the employee out on her maternity leave indicated she would not be coming back and the Complainant was invited to stay on. There is disagreement between the parties as to whether this was intended to be a long-term arrangement (per the Complainant’s version) or for a shorter six month period (per the employer). No Contract of Employment was provided which might have usefully clarified this position. Either way, I accept that the Complainant could rightly be expected to believe that his performance must have been satisfactory otherwise his Employer would have not kept him on. In the circumstances the Complainant opted not to move jobs though he had been offered work elsewhere.
Again, there was some disagreement between the parties as to what was happening at the monthly meetings held together with all staff and to go over workplace issues. The MD said that they constantly raised the issue of sales with the complainant and they offered assistance to help him generate more sales. The Complainant denies this was happening in a systematic way.
The parties do agree that at a date unknown, the Complainant was asked if he would be interested in working in the workshop as his skill set meant he would be an asset there. The Complainant declined this offer as an old injury meant he was not fit for such work.
In August 2018 the Complainant was advised that he was being let go. There does not appear to have been any particular lead up to this decision. Both parties agree that at the meeting (when the dismissal was being effected) the decision appears to have been made by reason of the external Accountant having said that there was no financial justification for keeping the Complainant on as a Kitchen designer. He was not generating enough fees. He was not economically viable.
The Complainant introduced evidence which showed that he generated sales of €175,000.00 while he worked with the Respondent company. Whilst the number of sales might have been low, they were of a high nett worth. The Complainant said there had been no warning given to him that his sales were below what was expected and he was not subjected to reviews (either formal or informal) which might have put him on notice of the fact that his position was at risk if sales were not increased. The Complainant said all his customers were really happy with him and his Employer seemed happy with him too.
The Complainant says that the dismissal came out of the blue and seemed to be a knee jerk reaction to whatever the Accountant had said to the MD and his son. The Complainant disagrees that he was a drain on resources and he says that that he performed well as an interior designer.
On the day that the employment was terminated there were no other options considered. Certainly, the Complainant was not given an opportunity to see if he could improve his performance. There was no question of moving to a commission only salary and the question of working in the workshop was not re-visited.
I am satisfied that this amounted to an Unfair Dismissal. The Complainant was dismissed after one year of service ostensibly for poor performance though no warning was ever given that his performance was in any way at issue. The Complainant was asked into a meeting (without knowledge of what the meeting was to be about) and was told that the Accountant had advised that he was not giving value for money and that the sales being generated did not justify the salary being earned. The Employers actions were unreasonable and without justification.
It is noted that whilst “Poor Job Performance” is given consideration in the Company Handbook, the procedures set out therein have not been adopted in the case of the Complainant.
The Complainant gave his own evidence in relation to mitigation of losses and on balance I find that the mitigation was not as fulsome as it might otherwise have been.
Decision:
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.
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 - CA-00025038-001
I find that the Complainant was unfairly dismissed and award the sum of €10,725.00 compensation for the loss of remuneration.
Dated: 29.4.19
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words: