Complainant

Respondent

Anonymised Parties

An Account Manager

A Technical Services Provider

Representatives

Mary McGregor Solicitor

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-00016842-001

15/01/2018

Submissions were substantial with copious volume of documentation and oral evidence heard over three days.   Whilst I will not be referring to every letter, email, incident, witness, event or reference every case law presented, I have taken into account all the submissions including oral and written, made to me in the course of my investigation as well as the evidence presented at the hearing.

The complainant details his employment was terminated unfairly by the respondent.

The respondent detailed that the complainant had been dismissed for lack of competence.

It was outlined that the respondent is a company that provides recruitment services to clients with 95% of the business providing candidates on a temporary basis for short-term roles. The complainant’s role involves phoning or, as necessary, emailing potential clients.   Account managers are expected to make no less than 100 calls per day. It was detailed that the complainant’s performance from 2012-2015 varied and a performance improvement plan was implemented at the beginning of 2015. His performance improved and it was the belief of the respondent that the complainant would maintain his sales levels, however, his sales dropped significantly.

It was accepted that 2016 saw a decline in sales performance across the company but it was outlined that the complainant’s sales performance declined more than his peers and he was given a verbal warning on November 11th, 2016.   The complainant failed to achieve the targets set and a formal review process of his employment took place on January 6th, 2017 and he received another verbal warning. At the end of March 2017 there was some improvement in the complainant’s performance but the complainant failed to meet his targets and was issued a formal written warning and advised that should he fail to improve; his employment would be terminated. In May 2017 the complainant’s sales figures dropped again and he received a 2nd formal written warning.

As there failed to be an improvement in sales and owing to the size of the company and the respondent’s inability to carry the liability of such poor performance, the complainant was advised on July 7th, 2017 that his employment would be terminated and he was given one month’s pay in lieu of notice.

It was disputed that the complainant was the second most successful sales person as his sales were consistently lower than average. The respondent detailed that the complainant was able to do the job but was not prepared to put the level of effort in, which included making 100 calls per day. It was outlined that this is the most effective way to hit the targets but that the complainant appeared to dispute this method and the complainant’s methods were not working effectively.

In response to issues raised that the complainant was prevented from making sales as he had to chase down the payment of invoices, the respondent outlined that time taken with this task would not have been significant and it would be normal that the sales person would assist with this aspect of the role.

It was denied that the complainant had been treated unfairly when his request for working from home had been refused. The respondent detailed that the complainant had already utilised this facility and had reached the maximum amount of working from home days that was provided for in the policy.

The respondent denied that the complainant was owed a bonus for 2015 and submitted that this grievance had been dealt with on 2 previous occasions and the grievance had not been upheld by Mr A. A grievance had also been raised by the complainant around absence on Christmas Eve 2014 and this grievance was not upheld and a further grievance raised in October 2016 regarding a reprimand issued to the complainant for arriving to work late, which Mr A investigated and rejected.

During cross examination the respondent confirmed that when the complainant received warnings in 2016 and 2017, he would not have known in advance that these meetings were specifically disciplinary- type meetings but would have known that they were related to his performance. It was also detailed that the complainant would not have been advised that he could have somebody with him at these meetings. The respondent outlined that there is no appeals process as the respondent is the owner. The respondent outlined that the transcript from the recordings of those meetings clearly indicated to the complainant that his performance needed to improve or that his employment would be terminated. It was accepted that a copy of those transcripts were not given to the complainant at the time but emails confirming the warnings were sent to the complainant.

The complainant commenced employment on 23 January 2012 and was engaged as an Account Manager with a salary of €35,000 plus commission.

It was outlined by the complainant that prior to commencing work at the respondent he had been in employment for over 35 years with an impeccable record and was shocked and upset that he was regularly subjected to bullying, unfairness and inequality by Mr A the owner of the respondent. It was detailed that the complainant had been refused permission to work from home when other workers were allowed and it was also detailed that the respondent would not give the complainant the space to do his job and withheld bonus from him. Albeit Mr A regularly talked about making 100+ phone calls as a way of securing sales, the complainant was aware of another employee who made in excess of such calls but his employment was still terminated for not hitting targets. The complainant detailed that he was also advised that one of the reasons for termination was because he had threatened legal proceedings against the respondent for the manner in which he was treated.

It was detailed by the complainant that there had been significant breaches in procedure by the respondent and the laws of natural justice which included that he had never been advised of his rights during the disciplinary process and never advised in advance of the reason for the meetings and that all meetings were conducted with the decision already decided in advance. The complainant outlined that this was all confirmed in the transcript of the meetings but he was never provided with a copy of same at the time and had to seek them under data protection requests. The complainant submitted that his email was shut down 5 minutes and 10 seconds into the meeting when he was terminated. It was detailed that there were no other job opportunities offered to the complainant which had been offered to others.

The complainant submitted that targets which had been given to the complainant were constantly moving targets and that the threat of dismissal was always over the complainant which made the complainant’s job more difficult. When the complainant sought to recoup monies outstanding from clients, the respondent advised him to hold his ground and that Mr A compared the process to a process similar to playing poker and that the complainant needed to have a poker face.  The complainant detailed how he felt regularly undermined by the respondent and that he had never received appropriate support to assist the complainant in achieving the targets.

The complainant provided details of efforts to mitigate his loss. It was outlined that owing to the location he lives in, it has been difficult to secure employment and he had not secured employment todate and owing to his failure to secure employment has had to get rid of his car which limits further his ability to secure employment.

Section 4 of the legislation sets out :

“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 one or more of the following:

( a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

( b) the conduct of the employee,

( c) the redundancy of the employee, and

( d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.”

Section 6 details that

“In determining for the purposes of this Act whether the 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 more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.”

The respondent set out that the complainant was well aware that performance was not at an acceptable level and that the complainant had received a performance improvement plan in 2014, was verbally advised of the initiation of a formal review process on November 11st 2016, received a formal verbal warning on January 6th, 2017, a written warning 10th April 2017, a second written warning on May 15th, 2017, and his employment was terminated on July 7th, 2017; with one month notice. The complainant did not engage in suggestions from the respondent on what he needed to do to improve performance and the respondent was justified in the decision to terminate the employment of a poor performer.

The complainant details that he was subjected to threats, bullying and inequity by the respondent with regards to grievances raised and monies he was owed.   Suggestions made by Mr A would not have succeeded in increasing sales and any proposals from the complainant were dismissed and impeded by the behaviour of the respondent such that it was not possible to achieve the targets set. When the complainant mentioned going the legal route the respondent made the decision to terminate his employment and consistently breached fair procedures by not affording the complainant appropriate notice of the disciplinary meetings, the opportunity to have anybody present, the opportunity to respond, an opportunity to appeal any such warnings and that all decisions regarding disciplinary action was predetermined by the respondent who was judge and jury.

Section 14(1) of the Act refers to “a notice in writing setting out the procedure which the employer will observe before and for the purpose of dismissing the employee” i.e. the employer’s stated disciplinary policy.

The constitutional right to fair procedures and natural justice was recognised in re Haughey ([1971] I.R. 217), where O'Dalaigh C.J. stated that: “Article 40 s 3 of the Constitution is a guarantee to the citizen of basic fairness of procedures”. The principles enshrined in Haughey were implied into contracts of employment by the Supreme Court in the case of Glover v BLN Ltd ([1973] I.R. 388) and have been cited in Labour Court Decisions including UDD1815 A Commercial State Body v a Worker, UDD1611, Kilsaran Concrete Kilsaran International Ltd and Vitalie Vet,UD1294/2008.

Walsh J, giving the majority judgment for the Supreme Court in Glover v. BLN Limited[1973] IR 388, also detailed:-

"This court in re Haughey[1971] IR 217 held that [Article 40.3] of the Constitution was a guarantee of fair procedures. It is not, in my opinion, necessary to discuss the full effect of this Article in the realm of private law or indeed of public law. It is sufficient to say that public policy and the dictates of constitutional justice require that statutes, regulations or agreements setting up machinery for taking decisions which may affect rights or impose liabilities should be construed as providing for fair procedures. It is unnecessary to decide to what extent the contrary can be provided for by agreement between the parties.”

The court in Glover v BLN Limited(1973) IR 388 decided that where there was provision in a contract of employment for some form of disciplinary procedure, it was an implied term of the agreement that any enquiry held under it should be conducted fairly. It is quite clear from the case law of the superior courts, that there is no fixed standard of natural justice which lays down how certain specific matters must be complied with. The protection to be afforded to a person whose conduct is being investigated will vary according to the circumstances.

Furthermore, Frank Shortt v Royal Liver Assurance Limited (1998, 3571), sets out that the disciplinary process may not be perfect but it should come within the perimeter of what could reasonably be considered a fair response by the employer in the circumstances. This was also detailed in Mooney v An Post ([1994] E.L.R. 103), where what exactly is required of an employer to satisfy the requirements of natural justice may differ from case to case.   In that case, Keane J. stated that the two principles of natural justice, namely “audi alterem partem and nemo iudex in causa sua cannot be applied in a uniform fashion to every set of facts”. Therefore, while employers are required to afford natural justice and fair procedures to employees when carrying out disciplinary procedures, regard must be had for the particular circumstances of the case to ascertain what the requirements of natural justice and fair procedures demand in the particular circumstances. If the process followed by the employer, while not entirely faultless, is within the scope of what could be considered a reasonable response in the particular circumstances, then the employer's actions will be deemed to be acceptable.

However, there are certain fundamental requirements of fair procedures as outlined in Glover v BLN Limited(1973) IR 388 which cannot be dispensed with regardless of the particular circumstances that arise in an individual disciplinary matter. They include but are not limited to:

(i)                  the requirement to make the employee who is the subject of the investigation aware of all the allegations against him or her at the outset of the process;

(ii)                the requirement that an employer who has published a disciplinary procedure to its employees follow those procedures scrupulously when conducting a disciplinary process; and

(iii)               in the event that an allegation against the employee is upheld, any disciplinary sanction imposed is proportionate to the complaint that has been substantiated.

The above fair procedures will be the focus in this instant case, but this not does not claim to be a complete statement of all fair procedures.

(i) The rationale is clear as to why the person who is subject to a disciplinary investigation should be made fully aware of the complaint(s) against him.   This is to ensure that the complainant has a meaningful opportunity both to prepare and to present his defense to the complaint(s) as detailed in Preston v. Standard Piping[1999] ELR 233. While the subject matter of the meetings with the complainant appeared to be around the generic area of performance reviews, it was not clear that the complainant was aware of the specific allegations against him at the outset of the disciplinary process. It appears that these meetings were conducted as general performance review meetings rather than separate investigative and disciplinary meetings.

(ii)   The complainant received a copy of the respondent’s disciplinary process which I note is very brief. It details that it appears only in “dismissal cases” that employees have the right to representation, right of appeal and a right to full investigation.   This is clearly in breach of expected laws of natural justice and in any event the respondent failed to follow their own procedure around dismissal. No notice of the nature of disciplinary meetings were given in advance, no opportunity to have somebody present was offered, pre-determined decisions were made at the meetings and no opportunity for appeal was afforded to the complainant.

 When an investigation is carried out there may be occasion where, as detailed in Kelly v Minister for Agriculture[2012] IEHC 558, the full range of fair procedures might not apply at the investigative stage.   However, it is clear that in the instant case. Mr A was the judge and jury in the performance reviews and there was no process by which the complainant could look for an unbiased review of his performance given that Mr A was the president of the company who carried out the review of performance, investigation into same and disciplinary sanction.

(iii) The complainant received a verbal warning in January 2017 and six months later had progressed to the sanction of dismissal. It does not appear to me that the respondent reviewed any other possible sanctions that might have been available to him and indeed had already decided that the complainant’s access to email would be terminated during the disciplinary meeting when he decided to terminate his employment.   It does not appear that any other sanctions were considered nor was it discussed with the complainant why other sanctions were not possible, even though another employee had been offered a different role when alleged performance issues were identified with this employee.

It would appear that the respondent was only interested in the complainant achieving his targets with limited consideration from the respondent as to why the targets were not achieved nor consideration to an alternative to dismissal. In the interest of completeness, I do not find any evidence that the dismissal arose as a result of legal threats made by the complainant nor do I find any evidence that the complainant was unaware that the respondent was not happy with his performance. However, it is clear that the warnings which led to the dismissal lacked any evidence of fair procedures and the respondent failed to give consideration to any other alternative to dismissal. While it was noted in Meath County Council v. Creighton UD11/1977and in Carr v. Alexander Russell Ltd (1976) IRLR220 that ‘An employer may be able to justify a procedural omission if it meets the onus of proving that, despite the omission, it acted reasonably in the circumstances in deciding to dismiss an employee’ I find that the proceedings were not conducted fairly and I find that the decision to dismiss the complainant was unreasonable and unfair and that the claim is well founded.

Having considered the remedies available I have decided that reinstatement or re-engagement of the Complainant is not a practical option in this case and that compensation is the appropriate redress in this case. With regards to mitigation of loss, I have examined the complainant’s efforts to mitigate his loss and note that he has failed to secure work up to the time of the hearings. While noting that his location may make this difficult, I find he has made limited efforts to meet the standard set out in Sheehan v Continental Administration Co Ltd (UD 858/1999) in that a “claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work ... The time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss."

Having assessed all the information before me and based on the unfairness of the dismissal, and the complainant’s limited proof of employing a reasonable amount of time each weekday in seeking work”, I find it is just and equitable in all the circumstances of this case to order the respondent to pay the Complainant the sum of €9,500.

For the reasons set out above, I find that the decision to dismiss the complainant was unreasonable and unfair and that the claim is well founded. I find it is just and equitable in all the circumstances of this case to order the respondent to pay the Complainant the sum of €9,500.

Unfair dismissal, mitigation of loss