Complainant

Respondent

Anonymised Parties

A Car Salesman

A Car Dealership

Representatives

Myles Gilvarry, Solicitor

Sinead Morgan, DWF Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00020597-001

17/07/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00020597-002

17/07/2018

The complainant is from South Africa and in November 2017, he approached the respondent’s car dealership for a job as a salesman. He said that his family had run a dealership in South Africa and, although it was 17 years since he had been in the business, he felt that he had a flair for it.   In his evidence, the head of business said that, in January 2018, they were looking for a sales specialist and the complainant came across well at an interview and he was offered a job.   He started work on January 8th.    

Over the following seven weeks, the complainant didn’t meet the expectations of the company and he didn’t sell any cars. His employment was terminated on February 23rd 2018 and his letter of dismissal gives the reasons as:

Poor performance;

Lack of sales process;

Ability to carry out sales function.

The complainant argues that his dismissal was unfair and that he was denied fair procedures and the opportunity to be represented. He also argues that he was discriminated against because he is South African.

WorkplaceIssues

Following the commencement of his employment, the complainant said he was confronted with several issues that made it difficult for him to operate successfully. In his evidence, he said that he was prevented from being successful in his job because he hadn’t got a computer tablet, he was not trained on the company’s systems and he wasn’t able to show customers a quote using the tablet. He said that he wasn’t given a business card and his suit for work was cancelled.

The complainant reported to the sales manager. He said that the sales manager was responsible for training him, but he got no training. On his first day, he said that his manager brought him around the building and introduced him to people. He showed him the system on the computer for providing quotes to customers.   However, he also said that any time he asked for help, the sales manager responded that he was busy and advised him to speak to the other sales representatives, but they were also busy. He said that certain information about cars was out of date on the training portal and that the training wasn’t relevant to the cars he was selling.

Although he received no proper training, the complainant said that, more than once, he was summoned to the office of the head of business and “chastised for not pulling his weight and for not being up to scratch with car sales.” He said that the sales manager accused him of lying about his sales experience, whereas he said that it was clear on his CV that he had not been in the car business for 17 years.

The complainant argues that he sold a car in his first week and that he sold two cars in his last week. This is disputed by the company because the deposits were not paid on these cars and the sales didn’t go through.

Describing one example of how he was treated, the complainant said that he drove to work in Dublin from his home in Westport every Monday and he kept his clothes in his company car. The complainant said that when the car was needed for a test drive, the sales representative who needed it threw his clothes into the boot of the maintenance man’s car. The complainant said that he was renting a log cabin in a local scout camp and someone in the company referred to him as “a tinker.” On another occasion, the marketing manager opened cupboards to look for his sleeping bag and asked him if he had slept in the office overnight.   He said that he was embarrassed and humiliated by this behaviour.

Referring to his sales technique, the complainant said that one colleague accused him of “sweeping the floor,” in the way he approached customers who came into the showroom. At the hearing, we learned that sales specialists were supposed to deal with customers on a rota basis that was managed by the showroom host, so that potential sales were distributed fairly among the sales staff.

Termination of Employment

On January 22nd 2018, which was two weeks after he joined the company, the complainant had a meeting with the head of business and his boss, the sales manager.   Both managers attended the hearing of this complaint. The subject of this meeting was the problem of the complainant not having made any sales.   A note written by the sales manager to the head of business records that they asked the complainant to provide points on how they could “enable you to get selling cars as soon as possible.” On February 1st, the complainant sent the sales manager a list of his requirements, including a filing cabinet, a computer tablet, business cards, a suit, copies of policies and training on the sales process, car delivery, the “configurator” and on the hand-over of a car to the customer.

On February 15th, the complainant attended a meeting with his supervisor and the head of business under the heading of the company’s Capability Process. The purpose of the meeting was to discuss the complainant’s performance. He complained that he was hampered in getting sales because he hadn’t got a computer tablet to do a quote in front of a customer . Some time between February 15th and 23rd, another meeting took place. At this meeting, the complainant looked for statistics of his sales compared to his peers. At this point, it appeared that he sold one car and the head of sales asked the complainant to consider his position and resign. The complainant asked his managers to “stop looking back” and he said that he could do better in future.

At the hearing of this complaint, the complainant said that he agreed that his “closure rate” was too small. He said that “by talking to (the head of business) I realised that I struggled to get the right information from people…customers would get frustrated when I took so long giving them a quote.”

On February 21st, the complainant was requested to attend a meeting to discuss the fact that he had not closed any sales. The agenda also included “compliance of sales process” and “ability to carry out Sales Function.” He was informed that the outcome of the meeting may be that his employment would be terminated and he was advised of his right to be accompanied by a colleague or a trade union representative. The complainant wanted to bring a HR consultant to the meeting, but the respondent’s managers refused this request. When the meeting took place on February 23rd, the HR consultant waited outside the meeting room and was available to the complainant if he wanted to take a break from the discussion. He broke the meeting three times to speak with her. In his submission to the hearing of this complaint, the complainant said that he was “shaking from the aggressive and bullying tactics used.” At the end of the meeting, he was dismissed.

WorkplaceIssues

In her submission for the respondent, Ms Morgan said that the respondent company only hires experienced sales people. Sales representatives are paid €24,000 per year, but can expect to earn up to €36,000 on commission, giving them a salary of around €60,000. The complainant started work on €24,000 plus commission. As   he was new to the job, his manager agreed that he would be paid €200 for every car sold in the showroom until he achieved his first target.

The months from January to the end of March are the busiest months of the year in a car dealership, because customers want to drive cars with new registrations.   Around 50% of the annual sales are achieved during this first quarter each year. To maximise their commission, sales staff are inclined to work long hours, and perhaps six days a week, and they take time off later in the year. For various reasons, the complainant took time off in January.   His requests for time off were always accommodated.

It is the respondent’s case that, in the seven weeks of his employment, in the busiest weeks of the year, the complainant did not sell any cars. It seems that, in the early days, he required a lot of support that the managers who interviewed him had not anticipated. In their evidence at the hearing, they said that he didn’t take ownership of problems, and blamed things like the training system or the fact that he hadn’t got a computer tablet. He was defensive and, because of this, he had difficulties fitting in and staff didn’t want to work with him.

At the hearing, the managers said that they had three meetings with the complainant to discuss his performance and the issues he complained about. Meetings took place on January 22nd, on February 15th and some time between February 15th and 23rd.   It is apparent from the documents submitted in evidence that the complainant thought that the focus of the January 22nd meeting was on his time-keeping, but a follow-up e mail from the head of business to the sales manager shows that the focus was on his performance:

“Please respond to (name of the complainant) and reiterate that we called him to a meeting in order to understand how he felt he was doing and what else we could do to assist him, at no point did we mention his timekeeping although it should have been mentioned and would be a concern going forward.

“I am of the opinion that (name of the complainant) does require much more training than originally thought and that during his interview led us to believe that he would be ready to sell and had all the required skills to carry out the role, however, I will require some convincing now.

“Please document our meeting today @ 11.30 and although I understand you are busy I would ask you to provide (name of the complainant) with assistance in the areas that he requires support.”

While he complained about not having a computer tablet, the sales manager said that the reason for this was because he was new and a tablet hadn’t been configured for him and another new starter. After the meeting on January 23rd, a computer tablet was ordered for the complainant.

At the meeting on February 15th, it appeared that the complainant may have achieved one sale, but colleagues were complaining that he asked too many questions.   The managers were concerned that, for the second time in six weeks, he wanted a Saturday off during the busiest time of the year. He had left work the previous Thursday to collect his mother from the airport.

At this meeting, the complainant was offered the opportunity to resign but he said that he wanted to go through a process. While he accepted that his performance wasn’t good compared to his colleagues, he said that he could do better. The managers agreed that, towards the end of his tenure with the company, he had got to grips with how to use their systems, but he still hadn’t made any sales.

Termination of Employment

In his evidence at the hearing, the complainant’s line manager said that, when he started, he went through the quotation process with the complainant and he explained to him that if he needed assistance, his colleagues would help. He said that the complainant never took any notes when he met him he took no notes during the morning sales meetings. The other sales staff complained that he constantly asked questions, and the manager said that this was frustrating for them as everyone attended the same meetings.

At the end of January, the business manager in the showroom complained to the head of sales about an altercation he had with the complainant as he was trying to get a finance quote. The business manager said that he complainant remarked that “people in Ireland don’t have a clue how to do things.” It appears however that the complainant hadn’t taken all the information he needed from the customer to provide a quote.

When he was asked by Ms Morgan why he decided to dismiss the complainant, the sales manager said that, despite the guidance he was given, he was causing frustration to colleagues and customers. On one occasion, he went for a test drive with a customer and left another customer sitting in the showroom. He didn’t appear to listen to what customers wanted and this impacted on his ability to provide proper quotes. The manager said that no cars were delivered to any customers that the complainant dealt with. One potential sale had fallen through.

The managers who gave evidence at the hearing said that they gave the complainant whatever help he needed. In seven weeks, they had three formal meetings, regular daily briefings and he had informal support from them and his colleagues. They rejected the suggestion that he was inhibited by not having a computer tablet or a work-suit. Based on the enthusiasm of customers who wanted to buy cars in the first quarter of the year, and the complainant’s failure to make any sales, they decided that he was not the right person for the job and they terminated his employment.

Concluding his evidence, the respondent’s business manager said that it was hugely disappointing to him to have to let the complainant go. He said that he is assessed on his ability to retain employees and that he is proud of his low level of attrition.

It is the respondent’s case that, in anticipation of his dismissal, the complainant was invited to a meeting and informed that his employment may be terminated at the end.     He was permitted to be represented and he had an opportunity to state his case and respond to his employer’s concerns about his performance.   It seems that he submitted an appeal of the decision to dismiss him, but no appeal meeting was arranged and five months later, he submitted this complaint to the WRC.

I have considered the written submissions and the evidence of both parties in respect of this complaint of unfair dismissal which has been submitted under the Industrial Relations Act 1969. It is my view that the termination of the complainant’s employment was not unfair, for the following reasons:

1. He was employed as a car salesman and, in the first weeks of January and February, which are the busiest weeks of the year for car sales, the complainant did not sell any cars;

2. He was given the normal support that any new sales person would be given, but he did not carry out his job in accordance with the respondent’s procedures concerning quotations and car specifications;

3. The complainant’s failure to follow procedures resulted in customers not proceeding with sales and taking their business elsewhere;

4.   During the seven weeks that he was employed by the respondent, the complainant’s managers met him formally on three occasions to discuss his performance and to consider what support he needed to sell cars. I accept the evidence of the respondent’s managers when they said that they also had ongoing informal discussions to address his failure to close sales;

5. At their meeting on February 23rd 2018, at which he was dismissed, the complainant was given notice of the meeting, he was informed that consideration was being given to dismissing him and he was invited to be accompanied by a colleague or a trade union representative. He brought a human resources consultant with him to the meeting and he was permitted to take regular breaks to speak with her;

6. It is my view that, in the manner in which he was dismissed, the respondent’s managers followed their procedures for dealing with capability and the reason he was being dismissed was clearly communicated to him.

While it is regrettable that his aspirations to work as a car salesman with the respondent company didn’t succeed, I am satisfied that, due to the fact that he did not sell any cars, the decision to dismiss him was not unfair. I find also that the procedure that the managers followed when they reached the decision to dismiss the complainant was in accordance with fair procedures.

I have concluded that the dismissal of the complainant was not unfair and I recommend that the respondent takes no action in respect of his complaint.

Under the heading of the Employment Equality Act, the complainant alleges that he was discriminated against because he is from South Africa.

Setting out the details of his case, in his submission at the hearing, Mr Gilvarry said that the complainant found himself to be the butt of jokes and remarks about his nationality when he was asked, “is that the way you used to do it in Africa” and also when a remark was made, “you’re not in Africa now.” In his evidence at the hearing, the complainant said that someone said to him, “it might be fine to do that in the bush.” Mr Gilvarry said that “remarks of this nature were commonplace.”

For the respondent, Ms Morgan said that a number of the respondent’s sales people are foreign and that there was no issue with regard to the fact that the complainant is from South Africa.

When he was questioned about the complainant’s allegations of disparaging comments related to his race, the complainant’s manager said that he never referred to how things were done “in the bush” and he doesn’t think anyone in the company made this comment. He said that he introduced the complainant to a former housemate of his who is from South Africa. The manager said that the complainant never brought any concerns about racial abuse to his attention. He said that the first time he heard about these alleged comments was when the complainant wrote in his complaint form to the WRC that he “felt being South African and not Irish I was prejudged…”

The Burden of Proof

The Equality Act 2004 inserts a new section, 85A, into the Employment Equality Acts 1998 – 2015.

“85A – (1) Where in any proceedings, facts are established by or on behalf of a complainant, from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”

The effect of this section in the law is to place the burden of proof in the first instance on a complainant, to establish facts, which, on an initial examination lead to a presumption that discrimination has occurred. Referred to as “prima facie” evidence, in the context of this adjudication hearing, the onus is on the complainant to show that, based on the primary facts, he has been treated less favourably than someone who is not South African.

The Primary Facts

The complainant said that he felt that he was treated differently because he is from South Africa.   He produced no evidence of any substance to support this contention, apart from comments that he said that he recalled along the lines of, “you’re not in Africa now,” and references to how things are done “in the bush.” He did not specify who made these comments, or the places, times or circumstances in which they were said.

Findings

I find that the complainant’s suggestion that he was discriminated against because he is not Irish, and that he is South African to be without substance. It seems to me that disparaging remarks may have been made to him because he was constantly asking questions about how the sales process worked, or because he lived in the local scout camp, or because he seemed to have a slightly alternative approach to work than his colleagues. I note the evidence of the managers who attended the hearing who said that other sales people didn’t want to work with him. It seems that the reason they didn’t want to work with him was because he “door stepped” customers in the show room, he didn’t follow the process he had been shown and he constantly asked questions.

Conclusion

I refer to the Labour Court appeal of Graham Anthony & Company Limited against the decision of the Equality Officer in respect of the complaint of Mary Margetts, EDA 038.   This was a complaint by Ms Margetts that she was discriminated against on the grounds of her nationality, but because of her marital status, her family status and her age. Regardless of the reason for the alleged discrimination, the the point made by the Chairperson of the Court, Ms Jenkinson, is relevant to this case:

“The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.”

Having examined the primary facts adduced by the complainant, it is my view, that, they are inadequate to show that, on the balance of probabilities, he was subjected to racial abuse. For this reason, the burden of proving the absence of discrimination does not shift to the respondent.

I have concluded that the complainant had not established the primary facts which show that he was discriminated against on the ground of his race. I have decided therefore, that this complaint is not upheld.

Dismissal, discrimination on the ground of race