ADJ-00019050

Complainant

Respondent

Anonymised Parties

A Business Development Manager

A Publishing Company

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00024892-001

08/01/2019

The Complainant was employed as a Business Development Manager by the Respondent company on the 4th of July 2018 and his employment was terminated on the 7th of December 2018. He is disputing his dismissal under the Industrial Relations Act. The Respondent denies that he was unfairly dismissed and states that he was unsuccessful in his probationary period of 6 months.

The Complainant said that on the 7th of December 2018, he was requested to attend a meeting with the Commercial Director. He said he was not informed what the meeting was in relation to. On entering the meeting, he was told that his overall sales performance was below expectation and that his employment would cease immediately. He said he was told that as he was still on probation his employment would cease immediately.

The Complainant said that as he was unaware of the purpose of the meeting he was unable to prepare in advance for it. He said that he was not invited to bring a representative into the meeting, nor was he informed of any possible appeal process or potential course of action to remedy the situation. He was not offered any chance to improve his overall sales performance. He received written notice of his dismissal on the 12th of December 2018.

The complainant said that the sales target to earn commission was €20,000 per month but is was not stipulated in his contract of employment that he had to achieve sales of €20,000 per month. He said that there were meetings with the Commercial Director and the other sales person and they were asked about potential sales and pipelines. They were told that the company needed more money coming in. He accepted that he received an email date of the 4th of September 2018, concerning his sales for August but he states that there was an unrealistic target of €50,000 sales set for him for the month of September. He said that 3 months into his employment he received a salary increase. He submitted that if his performance was so bad he would not have got the salary increase without a performance review. 

The Respondents said that it is a Publishing company in the business communication and media area. They employed the Complainant on the 4th of July 2018 with a job title of Strategic Business Development Manager. He reported to the Commercial Director. His contract of employment provided for a 6 months’ probation period. The Complainant had a minimum sales target of €20,000 per month.

During his probation serious issues arose in relation to his performance and he received a formal written warning on the 4th of September 2019. The Complainant had a sales target of €20,000 per month but he never reached the target and fell substantially below the standard required every month.

The Commercial Director said that he warned the Complainant and on a number of occasions about his sales performance and gave him a formal warning on the 4th of September 2018. He said that the complainant was well aware of the shortfall in his sales and he had been told on a number of occasions that he did not meet the required expectations. There was no improvement in the sales performance and he was called to a meeting at the 7th of December 2018 and dismissed while he was still on probation.  The Respondent said that they have no Grievance or Disciplinary Procedures other than what is in the contract of employment, but he was dismissed within the probationary period as they were entitled to do in accordance with the terms of the contract.

The Respondent stated that he formally warned the Complainant about his sales performance in an email dated the 4^th September 2018. I note that formal warning related to the taking of an unauthorised half day and not his performance. The email did mention that his sales performance for August was not acceptable and he was told that a review would take place at the end of the month (September). However, it was accepted that there was no formal warning given to the Complainant about his sales after the email of the 4^th September and before his dismissal on the 7^th December. 

The Respondent has no disciplinary procedures.  I am satisfied that the procedures adopted in terminating the Complainant’s employment were flawed. He was not warned that his employment was in jeopardy, nor was he formally warned in writing prior to his dismissal about the issues with his work performance and given an opportunity to improve. While he was told in August that his performance would be reviewed that review never took place before dismissal. He was not invited to attend a disciplinary hearing and he was not afforded an opportunity to reply

 There is an obligation on employers to follow fair procedures and natural justice in accordance with S.I. 146/2000 –Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000.

In relation to applying fair procedures, The Labour Court in the case of Beechside Company Ltd t/a Park Hotel Kenmare and A Worker LCR211798  stated: “The Court has consistently held the view that it is imperative that an employer in a dismissal case must not only show that there were substantial grounds justifying the dismissal but also that fair and proper procedures were followed before the dismissal takes place. This requirement of procedural fairness is rooted in the common law concept of natural justice.”

I am satisfied that the Respondent did not comply with fair procedures in dismissing the Complainant. I find that the Complainant was unfairly dismissed and that there is merit in his claim. Having regard to all the circumstances of the case, I recommend the Respondent pay the Complainant compensation in the amount of €6,000.

I find that there is merit in the case and I recommend the Respondent pay the Complainant compensation for the unfair dismissal in the amount of €6,000.

Industrial Relations Act, Unfair Dismissals.