ADJ-00021233

Complainant

Respondent

Anonymised Parties

A Product Manager

A Retail Technology Company

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00027943-001

23/04/2019

The complainant joined the respondent company as a Product Manager on February 21^st 2018.  He was dismissed on September 27^th 2018, and he was paid until November 30^th.  He was not required to work any notice.  He claims that his dismissal was unfair and that the method of dismissal was not in accordance with proper human resources procedures.  

Before he was offered the role of Product Manager with the respondent, the complainant said that he went through six interviews and he declined a lucrative offer with a major multi-national to take up his job with the respondent.  From the beginning, he said that his objectives were not clearly set out.  From the first review meeting with the Head of Human Resources (“HHR”), he said that he asked for his objectives to be written down and, in the end, he submitted his own objectives.  He said that he expected constructive feedback from his line manager, which he didn’t get.

Describing his job, the complainant said that he was hired to take over the development and sale of a product to develop airline food retailing.  He reported to the Chief Commercial Officer (“COO”) who is based in the US.  The complainant said that he had a dual role, to sell the product and to manage the development of the technology.  He worked with a team of four people on the technology side and a “scrum master,” whose job it is to ensure the completion of the technology tasks.

Early on, the complainant said that he heard from his line manager that things weren’t going well.  He said that he met the HHR in July for a review, but his manager didn’t attend.  He told the HHR about the lack of involvement of his manager and he complained that he got no constructive feedback.  At one point, the complainant said that the company hired another person to do his job.

On September 27^th 2018, the complainant said that he was called to a meeting with the HHR.  The Chief Executive (“CEO”) was also present, but he did not speak at the meeting.  His manager wasn’t in Dublin at the time and he dialled in.  At the meeting, the complainant was informed that he was dismissed and, shortly afterwards, the HHR escorted him off the premises.  The complainant said that, by dismissing him in this way, his employer did not follow proper procedures.

Following his dismissal, the complainant was paid for two months until the end of November 2018.  He started a new job in early December.

Opening the case for the respondent, the COO said that the complainant was hired because he has an IT background and is an entrepreneur.  The COO is based in Texas and, when they were recruiting for a Product Manager, they looked for a person who was a self-starter and would could operate effectively without close management.  The company has worked for 10 years on the product that the complainant was assigned to work with.  His job was to expand its offering to an extended market.  This was a new role and the complainant was the first incumbent.  

Shortly into the first weeks of the complainant’s employment, the COO said that they realised that there was a gap between the complainant’s profile and his performance.  No progress had been made in terms of defining the business model, marketing or expanding awareness of the product with customers.  The COO said that the expectations of the complainant’s role were set out; these expectations were that he would sell the product into a defined business sector; however, as a senior manager in a new role, the job was not completely or explicitly defined. 

The COO described a meeting on May 4^th 2019, by which point he said that he and the HHR knew that the complainant wasn’t working out in the job.  He said that they decided to change direction and the complainant was assigned to project manage two existing products, so that this could be a base for him to move towards the Product Manager role on the product for which he was hired.  In June however, the changed arrangements were not going well either.  The COO said that he called the complainant and told him that things weren’t working out.  He said that he contacted the HHR and he asked her to meet the complainant, which she did on two occasions in July and August.  At the hearing, the HHR said that the purpose of these meetings was to support the complainant, to get back on track with the two already-developed products and to remove any uncertainty regarding his responsibilities.

In August, a customer contacted the COO and said that he didn’t want to deal with the complainant and the COO took over the account.  On August 21^st, a formal review meeting took place and the COO was present with the HHR.  The outcome of this meeting was that the complainant’s probation was extended from six months for a further four weeks until the end of September.  This was confirmed by letter on August 28^th.

Two issues occurred in September, which, the COO said, led him to conclude that the complainant wasn’t suitable for the for job which he was recruited.  The first was that the company hired a Product Owner and the complainant argued that this person was taking over his job.  The COO said that this new recruit was paid less than half the complainant’s salary and he worked on the technology side of the business, and not in commercial, where the complainant worked.  Secondly, in response to the decision to extend his probation, the complainant confided in the COO that he had taken legal action against a previous employer, and that the outcome for that company was serious.  The COO said that if the complainant was in a frame of mind where he was considering such an action against the company, his relationship with them wasn’t working.  He decided then that the complainant’s probation would not be extended, and instead, his employment was to be terminated.

The COO said that he contacted the HHR and that he asked her to set up a meeting with the complainant so that he could communicate his decision to terminate his employment.  In accordance with the complainant’s contract, he was entitled to one week’s notice during his probation.  The COO said that he asked the HHR to pay the complainant for two months.  Again, he was out of the country and he dialled in to the meeting.  The HHR said that she was reluctant to have a meeting on her own with the complainant and she asked the CEO to attend, but not in a decision-making capacity.  She said that she explained this to the complainant on the day.

When the COO confirmed that the complainant was dismissed with immediate effect, the HHR went with him to his office so that he could collect his personal belongings.  She said that he asked if he could transfer personal photos from his work computer to his personal computer and she waited for him to do this.  She then walked with him to the exit.  Subsequently, as a result of the complainant’s data access request, it has emerged that rather than gathering up photos, the complainant transferred confidential company information to his personal e-mail account.

The complainant was dismissed while he was on probation, following seven months during which his line manager had concerns about how he was carrying out his job.  For his part, he argues that he was not given adequate reviews of his performance over the first six months that would have enabled him to adapt to the requirements of the company.

At the hearing, evidence was submitted of dates on which 13 meetings or telephone calls were held with the complainant, the purpose of which was to review his performance and to discuss issues of concern that were becoming evident.  These interactions were with the complainant and various combinations of his line manager, the CEO, the HHR or another manager.  The summaries of each meeting, which are outlined in a letter to the complainant on October 9^th, show that he was consistently informed about the problems with his performance.  About eight weeks into his job, when it was becoming obvious that he was struggling to get to grips with the product he was hired to manage, he was given a different job with two products already in the market.  The purpose of this was so that he could transfer knowledge from the already-established products to his work with the new product.  Unfortunately, this plan didn’t work out.

The complainant alleged that a junior recruit was taken on to replace him.  This person joined the IT team and not the complainant’s commercial team and the HHR and his line manager were troubled by the lack of understanding this displayed about the complainant’s perception of his own responsibilities.  This and the complainant’s threat to take legal action against the company if he was not confirmed in a permanent position, focussed the minds of the respondent’s managers and led them to curtail the extended probation and to dismiss the complainant on September 27^th 2018.

From the demeanour of both parties at the hearing of this complaint, it is evident that the relationship between the complainant and his employers began to creak shortly after he commenced in his role.  He evidently wanted more one to one supervision and guidance; but with his manager based in Texas, this wasn’t possible.  He was expected to be a self-starter and to carve out the substance of his job, but he was uncomfortable with this responsibility and he wanted his objectives to be in writing. 

It is my view that the respondents tried to steer the complainant in the direction they wanted him to go, but this was unsuccessful, and in the end, the relationship foundered altogether.

The purpose of probation is for an employer to ascertain if an employee can make a contribution to a company over the medium to long term.  This is clearly set out in the complainant’s contract of employment, as is the option for the employer to extend probation if they think it is necessary.  Having considered the evidence presented at the hearing of this complaint, I have reached the conclusion that the complainant was in the wrong job in the wrong company.  It is my view that no purpose would have been gained from a performance improvement plan, because this can only work when an employee recognises that they have a problem.  This was not the case here.

I find that it was not unreasonable for the respondent to dismiss the complainant during his probation.  I have no issues with his line manager dialling in to the meeting at which he was dismissed; the HHR and the CEO were present, and the meeting could have taken place without the attendance of the COO.  I find that the respondent’s decision to continue to pay the complainant for more than eight weeks following his dismissal was helpful to his efforts to secure an alternative role.  To the complainant’s credit, he was re-employed by early December, thereby suffering only a minor loss.

I recommend that the respondent takes no further action in relation to this complaint under the Industrial Relations Act.

Dismissal, probation