Complainant

Respondent

Anonymised Parties

A Sales Representative

A Builders’ Merchants

Representatives

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-00019996-001

25/06/2018

On December 5th 2016, the complainant joined the respondent company as a sales representative. He had previously been self-employed and he said that he brought with him considerable experience of the construction sector. However, over the course of the 17 months that he worked for the respondent, he failed to meet the sales targets that were set for him. The complainant’s employment was terminated following a meeting with the group sales manager and the branch manager on April 30th 2018. The complainant said that he was not informed about the purpose of this meeting and that he got no warning before he was dismissed. He claims that his dismissal was unfair and that it was caused by a personality issue between him and his manager.

In her submission to the hearing, the group HR manager confirmed that a meeting was held with the complainant and the two mangers on April 30th 2018. She said that this was the last in a series of meetings with the complainant over the previous six months and the purpose of meeting with him was to tell him that his employment was terminated. The reason he was dismissed was because his sales figures were not satisfactory. In previous meetings, the branch manager had informed the complainant that he was at risk of dismissal if his performance did not improve.

It appears from the respondent’s submission that they had a concern about how the complainant approached his job and his tendency to work on his own without consulting with others on the sales team or with the sales office. They said that this led to him spending time preparing quotes which did not always comply with the company’s business model, and which did not result in sales. The company’s submission said that the complainant was directed to use the internal resources of the company instead of trying to do everything himself.

The complainant’s job was to get new business, and he did not to take over a customer base from anyone else. The HR manager said that there is no substance to any suggestion that there was a personality issue between the complainant and his manager. She said that the branch manager made decisions about customers and sales on a professional basis. In October 2017, the branch manager allocated a customer order worth €3,500 to the complainant to boost his sales in circumstances where his results were very low.

In accordance with his contract of employment, the complainant was entitled to eight weeks’ notice of the termination of his employment. As a gesture of goodwill, he was paid for 12 weeks and he was permitted to keep his company car for about three weeks after his last day at work.

It is the respondent’s case that the complainant was treated with respect and that nothing was said at the meeting at which he was dismissed or afterwards that would have impugned his character and prevented him from getting another job. At the end of the meeting on April 30th 2018, the complainant accepted the invitation to leave the premises discreetly through a back entrance and he was accompanied to his car to collect the keys of the premised and his phone. During his exit, he was treated in a professional and amicable manner by the branch manager.

Evidence of the Branch Manager

In his evidence at the hearing, the branch manager said that the complainant was new to the area he was working in and he said that it was decided not to look at sales figures for eight to nine months after he started in the job. Having commenced in December 2017, in September 2018, the branch manager said that he had monthly meetings with the complainant to discuss sales. The target for each month from September to December 2018 was €50,000 worth of sales, but the complainant fell significantly short of this. The manager said that he didn’t bring the complainant into a meeting with other colleagues because he didn’t want him to be embarrassed, and he dealt with the performance problem on a one to one basis. The manager said that he told the complainant that he was there to help him to achieve his targets and he repeated this every month from September on.   In December, the manager said that he looked at the complainant’s sales figures with him and he said that if the situation didn’t improve, “we know where this will end up.”

The manager said that January can be a quiet month, so he didn’t put much focus on figures in that month. The budget for February 2018 was €80,000 and the complainant sold about half that value of products. For the rest of the year, the budget was €80,000 per month, but in March and April, the complainant achieved sales worth €35,000.

Evidence of the Group Sales Manager

The group sales manager said that the complainant had a tendency to work alone and to not leverage the support of colleagues and specifically of the sales function in the company. He said that he was directed towards working more collaboratively, but he was a “lone wolf” operator and he seemed to be reluctant to change. This manager said that the complainant could have got better prices and more sales if he has worked with the sales office and got them to help him to do quotes. The manager said that he didn’t make proper use of the company’s resources.

Referring to the decision to dismiss the complainant, the manager said that the company is family-owned and that they want people to succeed. He said that they do not summarily dismiss people; however, the complainant’s performance had become an issue for the achievement of the sales budget for 2018.

When he was asked about the meeting on April 30th at which the complainant was dismissed, the manager said that he and his colleague were “trying to be humane” and that they said that the situation wasn’t going the way either side would have wanted. He said that rather than engage in a process of verbal and written warnings, he thought it would be better to reach a “mutually agreed termination.”   He said that he knew that the complainant had been self-employed and that he had the capacity to start up again.   He said, “we talked about the possibility of resigning or us terminating his employment” and that the intention of the meeting was to “part amicably.”

In his submission before the hearing of this complaint, the complainant said that when he started working with the Company, he had no ledger or customer base and that he was given targets which did not reflect his position fairly and which he said, put undue pressure on him. He said that he was never given accounts that were performing to a level that would have shown reasonable turnover. He said that his manager gave accounts to a newer sales representative and that he now feels that this was unfair.

He said that because he was older than other employees, they ridiculed him and remarked that he wore a hearing aid. He said that he heard two employees talking about him getting a P45.

In his submission, the complainant referred to quotations which he said were for large orders and he was also in contact with a significant house-builder in Cork about providing prices for products.

Evidence of the Complainant

Referring to the meeting on April 30th at which he was dismissed, the complainant said that he was originally invited to meet with the group sales manager on April 27th, but the meeting was cancelled due to traffic. When he arrived for the re-scheduled meeting on April 30th, he said that he had no idea that he was about to be dismissed. He expected to meet with the sales manager about figures, but the branch manager was there when he arrived. The complainant said that the managers went straight to the point and told him that he was being let go. He was offered the opportunity to resign, which he declined, but he said that he now regrets this. If he had resigned, he said that he might have found it easier to get another job.

The complainant said that at no time before the meeting on April 30th did he receive any warning that his employment was at risk. He disputes the managers’ claim that he didn’t use the sales office and he said no one told him that he needed to do things differently.

The Relevant Law

Section 6(1) of the Unfair Dismissals Act 1977 provides that:

“Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal, unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”

The burden of proof rests with the respondent to establish the substantial grounds justifying the dismissal of the complainant in this case. The respondent has referred to Section 6(4)(a) of the 1977 Act which provides that;

“…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 capability, competence of qualifications of the employee for performing work of the kind he was employed by the employer to do.”

It is the respondent’s case that the complainant was dismissed because he failed to meet the sales targets that he was expected to achieve after a settling-in period of nine months.

Findings

There was no dispute between the complainant and his former managers about his failure to achieve the sales figures that were set for him. There was some disagreement about the complainant’s ability to make the most of the company’s resources to make up quotes and to get sales. I am satisfied that the complainant had regular monthly meetings with his manager from September 2017 on and that he was provided with the support and assistance he needed to perform well.   It is sometimes difficult for a person who has been self-employed to integrate into an established business and it is my view that this failure to work with others was symptomatic of the complainant’s history of working on his own.

From the evidence of the managers who attended the hearing, I found no trace of animosity or disrespect towards the complainant. It was apparent that the reason the complainant was dismissed was because, having worked with him for 17 months, his managers concluded that he would not meet the standard of performance that they expected. He was an additional sales representative in a new location with no previous customers. It was imperative that sales would be generated in the short term and the managers concluded that the level of sales needed would not be achieved. It was apparent to me at the hearing that the managers wanted to treat the complainant with dignity and, for this reason, they gave him the option of resigning. He declined this option and was dismissed.

Having considered the evidence presented at the hearing, I am satisfied that the decision to terminate the complainant’s employment was not unreasonable. I find however, that the process following by the respondent lacked robustness in respect of procedural fairness. No evidence was submitted at the hearing that the complainant had a copy of the respondent’s disciplinary procedure. He should have been informed that the purpose of the meeting on April 30th was to discuss his performance and that his dismissal was being considered. He should have been invited to bring someone with him and he should have been given the opportunity to appeal the decision to dismiss him to a more senior manager. Because of these procedural failings, I find that the dismissal of the complainant was unfair.

At the hearing, the complainant said that he has not been able to find employment since he was dismissed. In the current economic environment, with the construction sector operating at peak capacity, I am certain that he will not remain unemployed for long. Based on the failings in the respondent’s process, and, taking account of the contribution of the complainant to his dismissal, I decide that the respondent is to pay him compensation of €9,000, equivalent to around 12 weeks’ pay. As this compensation is based on loss of earnings, it is subject to statutory deductions.

Dismissal procedures