Complainant

Respondent

Anonymised Parties

A Sales Executive

A Payment Services Company

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-00023405-001

21/11/2018

The commenced working with the respondent as a sales representative in April 2011. She is a native French speaker and her job was to sell the company’s payment services to businesses in the French market. In April 2015, due to concerns about certain aspects of her performance, the complainant was placed on a performance improvement plan (“PIP”). By September that year, despite the issuing of a first written warning, she emerged successfully from the PIP process. In February 2017 however, the complainant was again not meeting targets in respect of certain aspect of her role. Six areas of concern were identified:

1 Productivity related to the number of calls to be made each day – the target was 40 customers per day;

2 Productivity related to the time spent on calls – the target was two hours per day for 40 calls;

3 “Live to sites” – this refers to moving a customer from the sales “pipeline” to becoming “live” and actively trading with the respondent;

4 Pipeline management – this refers to the use of a sales tool, “Salesforce,” to update information on the customer related to financial information, the product being proposed and the date that the deal will be closed;

5 Split between four stages of the sales cycle: (i) identifying the decision-maker, (ii) needs analysis, (iii) gaining agreement to transact and (iv) acquiring the business.   The sales agent is required to maintain a productive performance in line with target by updating the customer information and showing successful performance by moving their customers through the different stages of the sales cycle;

6 Measurement of revenue – the sales agent is required to measure the revenue generated by a specific customer in their first month of using the company’s product.

An informal coaching plan did not have the effect that was expected and in May 2017, the complainant was placed on a PIP again. In June 2017, because of her failure to successfully pass this PIP, a verbal warning was issued.

The complainant was placed on a second PIP in June. Specific targets that she was required to achieve were clearly set out and she was provided with support in the form of one to one meetings with an experienced colleague and weekly meetings with her team leader. By July, the required improvement had not been achieved and a second verbal warning was issued. A third PIP commenced on August 7th 2017. Targets were again established and one to one support was arranged. On September 8th 2017 however, due to her failure to meet the targets that had been set for her, the complainant was issued with a first written warning.

On September 21st 2017, the complainant was placed on a fourth PIP. The PIP document that was submitted in evidence shows that the managers identified a significant gap in terms of the complainant’s performance in the six areas of concern that had been raised with her in the PIP in February. Following a disciplinary hearing, on November 3rd 2017. she was issued with a final written warning. The complainant appealed against the issuing of this warning, but her appeal was not upheld on any point. On November 6th 2017, she was placed on a fifth PIP.

On February 5th 2018, due to her ongoing failure to address the significant gap in the achievement of her targets, the complainant attended a disciplinary meeting.   She was accompanied by her union representative, Ms Patricia Rogers. Following the meeting, Ms Rogers submitted several queries to the Sales Manager regarding the standard of performance that the complainant was expected to achieve and he replied on February 20th. In his reply, in relation to the six specific areas of concern, the Sales Manager set out the difference in the performance of the complainant’s team, compared to her performance. On June 18th 2018, because of her failure to improve on her performance, she was dismissed.

The complainant’s case is that her dismissal was unfair on several grounds, including that the company engineered unachievable targets and unfair leads distribution which prevented her from reaching her targets. She claims that the data used to assess her performance was erroneous, that her performance was measured on complex metrics that did not reflect the reality of her job and that she was the victim of a hostile culture in the workplace.

Background to the Termination of the Complainant’s Employment

In accordance with the respondent’s Professionalism and Misconduct Disciplinary Policy, when the required improvement did not result from the fifth PIP that commenced in November 2017, the complainant was invited to a disciplinary hearing on February 5th 2018. On her behalf, Ms Rogers raised a number of issues that required investigation and, on April 17th, the complainant submitted a request for further information about the sales process and specifically, the allocation of various categories of leads. The company responded to her request for information on May 24th, and she asked for two weeks to review that information. The complainant was then out sick and the conclusion of the disciplinary investigation was deferred until June 18th 2018.  

The letter of June 18th that confirms the complainant’s dismissal is long and detailed, setting out her response to the company’s concerns about her performance and its response to an allegation of racism. In a concluding paragraph, the Head of Sales confirmed the company’s decision at the end of five PIPs:

“All matters considered i.e. your performance to date, the results of your recent Performance Improvement Plan, together with the points discussed during the disciplinary hearing and an extensive review of the data outlined above, the Company has determined that it is appropriate to progress to the 5th and final step of the Company Professionalism and Misconduct Disciplinary policy, which is to terminate your employment contract based on your continued failure to achieve the standard of performance in your role as required by the Company.”

Substantive Basis for a Dismissal

For the respondent, Mr Ryan submitted that section 6(4)(a) of the Unfair Dismissals Act 1977 – 2015 permits dismissal on the ground of performance. The respondent’s Professionalism and Misconduct Disciplinary Policy categorises unsatisfactory performance as “serious misconduct.”

It is the respondent’s case that the complainant’s performance was significantly below the required standard of her role over a sustained period. She failed to improve her performance despite having an extensive opportunity to improve, a process that included five PIPs. Mr Ryan submitted that there was a substantive basis for the complainant’s dismissal.

It is well established that, in reaching a decision to dismiss an employee, an employer must act as a reasonable employer would act in the circumstances. In this respect, Mr Ryan referred to the seminal case of Looney & Co v Looney, UD 843/1994 and Nicholas Morrison v Tesco Ireland Limited, UD 1470/2013.

Considering the proportionality of the sanction, Mr Ryan referred to the decision of Mr Justice Noonan in Bank of Ireland v Reilly [2015] IEHC 241, and his conclusion that, “The question … is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned.”

Performance-related Dismissals

In reaching the decision to dismiss the complainant, Mr Ryan said (a) that the respondent had an honest belief in the complainant’s incompetence and (b), had reasonable grounds to sustain such a belief due to the complainant’s ongoing failure to meet the required standard of performance and her failure to adequately improve her performance. In this regard, he referred to the case at the UK Court of Appeal of Taylor v Alidair [1978] ICR 445. Mr Taylor was a pilot and made a faulty landing, causing serious damage to his aircraft, following which, he was dismissed. The Court of Appeal determined that,

“In considering the case… the industrial tribunal have to consider the employer’s reason and the employer’s state of mind. If the company honestly believed on reasonable grounds that this pilot was lacking in proper capability to fly aircraft on behalf of the company, that was a good and sufficient reason for the company to determine the employment then and there.”

At the Employment Appeals Tribunal (EAT) claim of Marie McDonnell v Christopher Rooney (t/a Spar Supermarket Finglas) [1992] ELR 214, the chairman, Mr Ryan, noted that,

“It is not the job of the Tribunal to decide whether an employee is incapable of doing the job for which he or she was employed. What it has to decide is whether there was material before the employer that satisfied him of the employee’s inadequacy or unsuitability, and on which it was reasonable to dismiss.”

It is the respondent’s case that, to defend a claim of unfair dismissal, they must be able to demonstrate,

(i) that the employee was clearly informed of the deficiencies in their performance – each of the five PIP documents provided to the complainant clearly identified the areas in which an improvement in performance was required;

(ii) that the employee was given a clear outline of the specifics of the required improvement – each of the PIP documents provided to the complainant included measurements which clearly identified what was expected of her during the various PIP processes.

(iii) that the employee was given a reasonable timeframe within which to improve – each PIP was four weeks in duration which, the respondent submits is an adequate timeframe within which to demonstrate progress.

(iv) that the employee was provided with adequate support and / or coaching during this period – the complainant had the opportunity of “side by sides” with experienced colleagues on her team and she had weekly one to one meetings with her team leader to discuss her performance and any other supports that she might need.

(v) that the warnings or sanctions, counselling and support had not given rise to the required improvement – each PIP identified the ongoing failure of the complainant to meet the required performance standards despite the possibility of ongoing engagement with her colleagues and one to ones with her team leader.

The Dismissal Procedure

The respondent asserts that fair procedures were applied to the process that led to the complainant’s dismissal and that it was carried out in accordance with its Professionalism and Misconduct Disciplinary Policy. The complainant received notice of disciplinary meetings and she was informed of the allegations regarding her performance.   At the disciplinary meetings, she had the opportunity to respond to the allegations. She was represented by her union official at all the meetings and she exercised her right to appeal against the sanction of dismissal.  

In conclusion, Mr Ryan said that having considered the complainant’s dismissal and the relevant case law, there were substantive reasons for her dismissal and fair procedures were applied during the process.

Evidence of an Employee Relations Consultant (“ERC”)

ERC gave evidence regarding the PIP process. She said that its purpose is to guide people managers to help employees to improve their performance. During the PIPs that the complainant went through, ERC said that she had coaching from one of her senior colleagues and she had weekly meetings with her team leader to go through the metrics regarding each of the six areas where her performance was not satisfactory. ERC said that most employees improve following the use of the PIP. In 2015, the complainant herself emerged from the PIP process following the issuing of a first written warning.

ERC said that training is provided for managers who are dealing with under-performing employees and the objective is to apply the policy consistently across the business.   ERC described the side by side meetings that are arranged by a manager for an employee to sit with a top performer to observe them in their role so that their skills can be replicated.   She also described the meetings with the employee and his or her team leader, which focusses on achievements and the gap between the expected outcomes and what is being achieved and the way in which the gap can be closed.

In cross-examining by Ms Rogers, it was suggested that four weeks is too short a time frame to expect an employee to improve. She said that business can be particularly slow in the summer. ERC said that managers have discretion to decide how long the PIP is to last and that it could be up to six or eight weeks, depending on the circumstances and the employee involved.

Evidence of the Complainant’s Team Leader, (“TL”)

TL outlined the objectives of his team which is focussed on the French, Spanish, Italian and Portuguese market. He said that the job of the sales agent is to get merchants involved in online sales to use the company’s service to transact business. Key performance indicators are related to pipeline management and revenue generated. From a productivity perspective, the target number of calls is 40 per day, which is anticipated to take two hours of telephone engagement. Each sales agent has a pipeline of opportunities, some of which are generated automatically and others which are produced by a lead generation team.

TL said that he became the complainant’s line manager in early 2017. Before that, he knew her as a team member. TL said that before he went down the route of the PIP in May 2017, the complainant was given an informal opportunity to improve, through a coaching plan that was in place between February and March. He said that he arranged side by side meetings, an analysis if metrics and the generation of extra reports. He said that he adjusted the normal procedure so that the complainant could get an opportunity to assess her approach to her job in comparison to another colleague. Around twice a day, TL said that he looked at statistics with the complainant and he also produced a weekly report. He said that he continued to be concerned when key performance indicators (KPIs) were not met and he decided to initiate the PIP process.

A copy of the PIP plan with a start date of May 9th 2017 was submitted in evidence. This shows that the complainant was assessed as “falling behind” in terms of her performance, and the six specific areas where she was falling behind were set out on the PIP document which have been noted earlier in the “Background” section of this document. The PIP review sets out the “clear and measurable performance goals and expectations for this performance improvement plan” and specific targets were set for each of the six criteria. TL said that four weeks is plenty of time to achieve the targets that were set out and the establishment of this timeframe is based on the assumption that the targets are achievable.

Regarding the side by side meetings that were to take place, TL said that her put a senior agent with the complainant but she decided that she didn’t want to accept this support. TL said that “multiple times, I tried to explain that it was to help her career.” He said that the one to one meetings with her, the complainant agreed with him regarding her performance. TL said, “we were on the same page.”   During these meetings, TL said that he discussed the data with the complainant and she understood what was expected of her. The meetings were then re-capped with minutes. TL said that the complainant never said that she was struggling trying to achieve her objectives. She didn’t look for any additional help. Each time he asked the complainant to sign the PIP document, she left the “Employee’s Comments” section blank. She didn’t challenge anything that LM proposed.

At the end of four weeks, LM said that the complainant didn’t meet the expectations that were set for her in the PIP and he went through what she had achieved with her.   He said that he decided that another PIP was needed and the complainant also got a verbal warning.   The second PIP commenced on June 12th 2017.

In the second PIP, TL said that he proposed to look at productivity indicators again. He said that the six areas that needed attention were the same six that were in the first PIP. The complainant was given an option of two senior colleagues to sit side by side with. TL said that he asked the complainant who she would like to sit with, but he said that she didn’t respond to this question. She declined to sign the PIP document and simply put an “X” where she was asked to sign, with the word “attended.”  At the end of four weeks from June 12th, TL said that the complainant’s “productivity was drastically down” and “instead of improving, things were getting worse.” When he asked what was causing the problems with her performance, TL said that the complainant replied, “I know what I have to do. I don’t need extra support.” He said that he made the point to the complainant that, “if we don’t make the calls, we can’t progress to the next stage” of the sales process.

At the end of four weeks on the second PIP, on July 7th 2017, the complainant was issued with a verbal warning. TL said that he told the complainant that a third PIP would commence and he said that she made no comment. The six performance criteria remained the same as previously. TL said that there was no marked improvement in the complainant’s performance. She continued to refuse offers of help from colleagues.

LM said that he told the complainant, “if you follow the plan, you will succeed,” but he said that, in his view, it was a matter of wanting to succeed. At the end of the third PIP on September 1st 2017, the complainant did not identify any issue that impacted on her not being able to meet her objectives.

TL was not available to attend a meeting with the complainant on September 12th and a different team leader attended instead (“TL2”). Notes of this meeting were included in the respondent’s book of papers. The respondent operates a red/amber/green traffic light system (RAG status) to indicate if performance is poor, reasonable or good. Under each of the six criteria, the complainant had a red status. TL said that there had been some improvement in this period, compared to the second PIP, but not enough. During the summer period, TL said that revenue targets are modified, to take account of the fact that businesses are on holidays.

The notes also show that the complainant said that she was working on a large deal, but the merchant wasn’t ready to go live. She also complained that there was no concern for her well-being. She said that she came back from work when she was sick, but that no one was listening to her. TL said that he listened to the complainant during their weekly meetings and he feels that this note is not a true record of his interactions with her.

On September 21st, at the end of the third PIP, the complainant received a written warning.   A copy of the warning was included in the respondent’s book of papers.

A fourth PIP commenced on September 25th 2017 and was to end on October 23rd.   This period was extended on October 23rd and was to finish on November 20th. TL said that he wanted to give the complainant a final effort to succeed and on September 25th, she was informed that this PIP would run for eight weeks. TL said that this was enough time to achieve what was required. He said however, that as he went through each week, the complainant missed the targeted number of calls she was required to make and she didn’t spend enough time on calls. TL said that he had explained to her that “if you don’t make the calls, you don’t get the revenue.” Instead of 40 calls each day, the complainant was making just 20 calls.   In the “Employee Comments” of the weekly review document on September 21st, the complainant wrote, “I object.”

A disciplinary meeting was held on October 31st 2017 and the note of this meeting shows that there was an improvement in the call rate that the complainant achieved during the eight week period, but sales information tracking and revenue generation still needed to be addressed. The complainant was asked for her views and the note of the meeting records her reply:

“I am here every day doing my best with the leads that are provided. I do my best. All I am here to do is my best. Proceed with what you want to proceed with. For me, it’s between the merchant and me. I do not do things to satisfy (name of the respondent). Obviously (name of the respondent) is going to move forward so go ahead. I don’t have time to deal with this, this is stressful for me as I do the best that I can.”

When LM asked if there was anymore he could do to support the complainant, the note shows that she responded as follows:

“If I need something I ask, lets stop with all the pretents (sic) and if I need help I will ask. (Name of colleague) will not help me with anything. I would like to be left alone while I am here … I do the best that I can, I want to be left alone to do my job until the last day of me working…”

The notes record that the complainant had been out sick for two and a half weeks during the period of the previous PIP and she felt that it wasn’t fair to be on a PIP while she was absent. The notes show that the complainant said that before she was absent, she was feeling sick but she came to work. She told TL2 that she was told that she couldn’t be out sick while she was on a PIP.   In his evidence, TL said that it is not the case that an employee on a PIP cannot be out sick and he said that absence does not affect performance.

On November 3rd 2017, the complainant received a final written warning. In the letter, TL stated,

“Your performance improvement plan will continue for the next four weeks during which you will receive regular mentoring, coaching and feedback on your performance.”

Beside a space on the letter to record the employee’s comments, she wrote, “I do not consent but whatever!” The complainant appealed the written warning; there was no hearing of her appeal, but all the documents and PIP paperwork was reviewed and in a detailed letter on December 19th 2017, her appeal was not upheld.

In the meantime, the fifth PIP commenced on November 11th and the four-week period concluded on December 12th. TL said that it is apparent that the complainant made an effort to make the out-bound calls that she was required to make, but he said that revenue was affected by the calls that were not made. The outcome from this PIP was a further disciplinary meeting. TL said that from the conclusion of the final and fifth PIP, he had no further involvement in managing the complainant’s performance.

Responding to questions from Ms Rogers, TL explained the automatic allocation of leads and he said that his department has no power to decide who gets what lead. He said that some people make 60 to 70 calls each day, but all are required to make 40 calls. He said that sales agents do not work longer than 40 hours.

Ms Rogers asked TL if he followed the PIP process simply as a matter of course, even though he may have known they weren’t working. TL disagreed and said that the PIPs show you where you’re meant to be regarding objectives. He said that he asked the complainant why she didn’t reach the objectives that were set for her and he never got an answer. He said that other team members have come through the PIP process and have achieved that targets that were set.

Evidence of the Sales Manager (“SM”)

SM said that he is a Sales Manager in a different region to that in which the complainant worked.   He said that five team leaders report to him and each team leader has around four or five sales agents on their teams.

Mr Ryan asked SL about the disciplinary meeting that took place on February 5th 2018, following the unsuccessful outcome from the fifth PIP. SL recalled that, at the meeting, the complainant said that she regarded herself as a good performer and she said that she didn’t need coaching. She said that she wasn’t getting the same quality of leads as her colleagues. She put the details of this complaint in writing in an email to SL on February 8th. SL said that he wanted to investigate the allegation that the complainant was allocated poor quality and low value leads. He said that he looked for reports on the sales leads provided to the complainant’s team and he found that they were generated automatically.   The email from the complainant of February 8th and SL’s response of February 20th were included in the respondent’s papers at the hearing. SL concluded that the complainant received the same amount of sales opportunities as her peers and that the leads allocated to her were of the same size and quality as those that were allocated to her colleagues.

SL then looked at the conversion rate of leads to “live” referrals and he found that the complainant achieved a conversion rate of 23% compared to the average rate of 45% achieved by her colleagues.

SL decided that the complainant’s employment was to be terminated and he wrote the letter dated June 18th 2018, which was included in the book of papers. In the letter, he highlighted the key points made by the complainant in defence of her performance. Summarising the background to his decision to terminate the complainant’s employment, SL wrote:

“To recap on your performance to date, the Company has provided you with ongoing formal coaching and support regarding your performance since 9 May 2017 in relation to your failure to achieve the required standard of performance in your productivity, Live to Sites, Pipeline quality, Split (details of the sales process were included here) and Fresh Revenue. Specifically, over the course of seven consecutive months you have received ongoing coaching and support in the form of five Performance Improvement Plans, each implemented for a minimum of four weeks. Regrettably, you failed to successfully pass each of these Performance Improvement Plans to date. The Company has consequently expressed its concern regarding your standard of performance progressively as follows: during verbal counselling on 14 June 2017, again on 13 July 2017 by means of a verbal warning, on 21 September 2017 by means of a First Written Warning and most recently on 3 November 2017 by means of a Final Written Warning.

Asked at the hearing if he considered any other sanction short of dismissal that would be more appropriate, SL said that all the other sanctions had been used up and the outcome from the PIP process was unsatisfactory. Mr Ryan asked SL if he considered re-deploying the complainant to another role, but he responded that every role would have had similar responsibilities, contacting people and converting leads to sales.

In response to questions from Ms Rogers, SL denied that side by side meetings were only arranged with an Italian speaker. SL said that this arrangement was never confined to one person.

Ms Rogers said that the complainant’s position is that sales leads were not generated fairly.   She disputes some of the evidence regarding the auto-generation of leads. SL said that all the leads are generated automatically and assigned automatically. He said that each role has a profile and there is a logic built into the system to assign opportunities to sales agents. Everyone in the same sales role on a team has the same profile and each gets the same leads with a small variance. SL said that, over the course of a week, “good” and “weak” leads are evened out.

Ms Rogers said that it is the complainant’s position that there is a best performer on each team.   SL said that the system ensures that there is a level playing field. He described the formula for assessing performance as follows:

1 The use of tools and processes;

2 Skills learned and the acquisition of knowledge;

3 An employee’s attitude and motivation.

Ms Rogers asked if there is a formula for giving better leads to more skilled and experienced people and SL replied that the auto-allocation process did not work in this way. SL categorised sales agents under three headings:

Top performers – 20%

Performers meetings their targets – 70%

Under-performers – 10%

The Complainant’s Concerns about the Performance Management Process

Throughout the five PIP processes, the complainant felt that good quality leads were not distributed among the team, and that she was singled out for poor quality leads that were difficult to convert into “live” business. Her view was that it was the company’s responsibility to provide her with better quality leads, and she felt that the higher quality leads were given to her team mates. By the time she reached the end of the fifth PIP, she reached the conclusion that the process was a form of harassment and bullying.

Evidence of the Complainant

In response to questions from Ms Rogers, the complainant said that she got small value leads from the start. She said that the French market is different to other markets and the level of transactions is regulated by the clients’ banks. All transactions must be validated by the bank. When she started in the job in 2011, the complainant said that there were four possible solutions to doing business with the French, but these became restricted, and in the end, only one solution remained. The complainant said that she was given a portfolio of 150 leads, some major retail multiples, but also small businesses like corner flower shops.   She explained the stages that must be completed to bring a merchant’s business “live” to the company’s website.   She said that she was required to make 40 out-bound calls every day to 40 merchants. The merchants were supposed to be automatically allocated, but she said that her leads were for lower-value businesses. She said that she had no control over leads coming to her and that she could not “close out dead leads.”

The complainant explained how the commission payments came from leads. She said that she earned €40,800 as her basic salary and that a further €26,000 could be earned in commission.   A sales agent is required to meet 50% of their overall targets to earn any commission. In 2017, she said that she earned €10,000 in commission.

The complainant said that it was not possible to make 40 calls every day; she claimed that 20 is possible, but 40 is too much. If she had a bad lead in her portfolio, it was impossible to shift it.

Just before the termination of her employment, the complainant said that she was working on a very big lead that would have been worth about €300,000 to the company; however, she said that the merchant wasn’t ready to start transacting. She said that when she saw a big merchant in her leads, she did everything to get them onboard.

Referring to the five PIPs in 2017, Ms Rogers asked the complainant about the support she got during the process. She claimed that she got no support and that she was put on a PIP when she was “in a dip,” between deals.

In February 2017, the complainant said that she realised that after year-end 2016, she wasn’t getting leads and she spoke to her team leaders. She said that they responded, “the market is slow” and they asked her to bear with them. The situation didn’t improve and by the end of March, the complainant said that her team leader initiated a coaching process.   When she was at work a few weeks later, during the month of May, the complainant said that she became very sick and she was sick for six weeks but she came back to work after two weeks.   When she returned from sick leave, she was placed on a PIP.

Referring to the side by side meetings with colleagues, the complainant said that she got help from a colleague who worked on the Italian market and she said that her team leader was also more familiar with that market and not the French market that she worked on.

Ms Rogers asked the complainant why did didn’t sign the PIP documents and she said that she wasn’t given them on the day of the PIP meetings. Ms Rogers asked the complainant why she remained working with the respondent, when she was subjected to PIPs in 2013, 2015 and 2017.   In response, she said that she loved her job, she loved working with big companies and she was learning a lot.   She said that she didn’t want to think that seven years of her life was rendered meaningless. She said that she was “hoping that the company would see that justice and truth would come out.”

Regarding SL, who decided that she was to be dismissed, the complainant said that he is not independent and she said that another team leader was part of the disciplinary process. On the 18th of June, when she was given her letter of termination, the complainant said that she wasn’t allowed to bring a colleague with her, although she accepts that Ms Rogers was permitted to be at other meetings.  

In conclusion, the complainant refutes the company’s position that leads are distributed evenly.   She said that “someone has created a profile” and she questioned why she hadn’t got access to that profile. She said that she didn’t get a response to her request for information related to the commission structure pay-out for team leaders, managers and directors in sales. She claimed that there is an “accelerator incentive” for a team member and his manager to reach more than 120% of their target.

Cross-examining of the Complainant

Mr Ryan referred to the meeting of October 31st 2017 that ended with the complainant receiving a final written warning. In her direct evidence, she claimed that she got no support, but the notes of this meeting record that, in response to a question from TL about what support he could give her, she replied, “If I need something, I ask … if I need help I will ask… I would like to be left alone while I am here…”

The complainant responded that she was unfairly treated by not getting good leads. Mr Ryan suggested that the notes of the meeting suggest that she was not co-operating with her team leader and that he offered to help her. She replied that she did not validate the notes of the meeting and that she couldn’t corroborate what was said. She said that the support she needed was proper leads.

Referring to the written warning dated October 3rd 2017, and her comment, “I do not consent but whatever!” Mr Ryan said that this indicated that the complainant would not engage with her employer to get support. In response she said that she was placed on a PIP when she was sick and that the culture of the company was against her.

Mr Ryan referred to the letter of December 19th 2017 from the manager appointed to hear the appeal of the final written warning issued on October 31st.   Concluding his findings that the appeal was not upheld, the manager wrote:

“It is clear to me that during your time with team, communication may not have been clear to you about how you have underperformed, and that you have not been made to fully understand the correlation between performance metrics and how they are designed to result in generated revenue, and therefore, succeeding at your goals within the company. However, it is also clear to me that your current leadership team throughout 2017 has been extremely fair and has given you every opportunity and assistance to improve said metrics, to the degree that they have even extended the PIP period voluntarily to allow you more time to reach your targets, which regrettably, has not happened.”

Mr Ryan suggested that this letter records the company’s position that there was a high level of engagement between the complainant and her managers; however, she responded that she raised concerns and the company responded, but she didn’t get any support. Mr Ryan asked the complainant why she didn’t look for any more support. Mr Ryan also referred to the final PIP process and the instruction to the complainant, “you will complete side by sides” with one of two named team-members. The complainant replied that these meetings were of no value and that she didn’t see how working with colleagues who were assigned to the Italian market would help.   Mr Ryan asked the complainant why she didn’t ask for side by sides with someone else, but she did not respond to this question. Mr Ryan then referred to the notes of the disciplinary meeting of February 5th 2018 and SM’s question to the complainant about why she didn’t avail of the supports and sit with colleagues in side by side meetings.     At the meeting, the complainant said,

“I’m in the business seven years. Shadowing them should be optional. I don’t need it. (TL) is a great guy but I got no support from him aside from weekly meetings.   (The respondent’s) improvement plan is to walk people out. Say goodbye. Hasta la vista.”

In her response to Mr Ryan, the complainant said that she couldn’t understand why she was being asked to shadow “the Italians.” Mr Ryan asked if there was anyone that she could have learned from and the complainant replied that she needed better leads. Mr Ryan asked if the complainant considered asking TL to connect her with someone from the French market, but she said that the top performer had left.

Mr Ryan asked the complainant to confirm that at any meeting at which there was the possibility of a disciplinary sanction, she was offered the opportunity of representation. She agreed with this, but at the meeting on June 18th, when her dismissal was confirmed, she said did not want to bring a colleague with her.

Since the termination of her employment in June 2018, the complainant said that she has not worked and that she has a “mental block” about getting a job. She said that she has been doing a course in project management.  

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, despite the initiation of five performance improvement plans over seven months from May to December 2017, she failed to achieve the standard of performance required of her as a sales agent.

Shortfall in the Performance Expected

Six metrics were identified where the complainant failed to meet the standard expected of her in her role:

1 Productivity - the complainant was required to make 40 calls every day over two hours. The review of her performance showed that she achieved these targets by 72% and 53% respectively.

2 The number of merchants converted from leads to “live to site” was 21 over the four-week timeframe, compared to a target of 25.  

3 The technical aspects of pipeline management under five headings was assessed at 30% or less, with two categories coming in at 0% and one at 2%.

4 The split between the four stages in the sales cycle were assessed as follows:

(i) Identifying the decision-maker - 1%

(ii) Needs analysis - 21%

(iii) Gain agreement – 21%

(iv) Acquisition of the business – 57%

A copy of the respondent’s Professionalism and Misconduct Disciplinary Policy was included in the book of papers submitted at the hearing. Under the heading of “Disciplinary Action – Serious Misconduct” is listed, “unsatisfactory work performance.” It is the respondent’s case that it was appropriate to initiate disciplinary action when the performance improvement plan failed to bring about the improvements that were required in respect of the metrics outlined above.

Was the Decision to Dismiss Fair and in Proportion to the Misconduct?

I accept that some on both sides of the employment relationship would be uncomfortable with the characterisation of under-performance as “misconduct.” In many circumstances, under-performance is the result of incompetence due to a lack of experience or skills or incapacity due to illness or some other factor. “Misconduct” on the other hand, has a connotation of wilful misdemeanour. Aside from this categorisation, I accept the right of the employer to initiate the disciplinary procedure in circumstances where an employee is consistently under-performing. That said, it is my view that the approach of most employers, to separate the management of under-performance from misconduct is a more enlightened approach.

As has been asserted by Mr Ryan on behalf of the respondent, and, as set out Looney & Co v Looney, it is not my role to determine if the complainant met the performance expectations that were set for her. The position of the employer is that she failed to meet these expectations and I must accept the evidence that was submitted in that regard. The complainant did not dispute the respondent’s findings concerning the measurement of her targets, but she claimed that she was singled out and given poor quality and low value leads, and that this affected her ability to achieve better sales outcomes. I find this explanation difficult to accept.   In the first instance, she didn’t produce a list of leads at the PIP review meetings or at the disciplinary meetings to demonstrate their poor quality or low value compared to those allocated to her colleagues. This would have been a simple exercise, requiring her to list the merchants she had been allocated over the previous four weeks to show that they were, as she complained, “dead leads” that could not be closed out.

Secondly, the complainant raised this issue in the appeal of her final written warning and the manager who conducted the appeal responded that “leads are distributed mechanically without human interaction or input.   The …targets (number of merchants in pipeline and how many of each estimated size of business) are the same for each rep working the same segment.” If this is not the case, then it must have been easy for the complainant to disprove by simply sitting with a colleague and comparing leads allocated over a period of a few days.

The objective of the lead generation process is to convert leads to sales, and clearly, some will be better than others at this. From a business perspective, it makes no sense, in my view to allocate poor leads to an under-performing employee, when they could be managed more capably and profitably by an excellent performer.

Having examined all the evidence submitted in respect of the complainant’s allegation of manipulation in the generation of leads, I find that there is no substance to this complaint and that she was given the same quality and value of leads as the sales agents on her team.

It is my view that throughout the five PIP processes, the complainant was clearly informed of the standard of performance that she was required to achieve and she was given a clear timeframe within which to achieve these objectives. The fourth iteration of the PIP that commenced on September 25th, was extended by four weeks until November 20th, to take account of her absence due to illness. I am satisfied that the objectives that were set were reasonable and achievable, but, for whatever reason, the complainant was not motivated to achieve them and instead, adopted a fatalistic approach and declined offers of support from more experienced colleagues.

Considering the proportionality of the sanction, Mr Ryan referred to the decision of Mr Justice Noonan in Bank of Ireland v Reilly [2015] IEHC 241, and his conclusion that, “The question … is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned.”

Having considered this matter, it is apparent to me that no further sanction in the form of a warning would have had any effect on the complainant’s performance.

Was the Process Fair?

I find that the process followed by the respondent in its efforts to manage the complainant’s performance was reasonable, unhurried and supportive. I have some reservations about the number of PIPs that were gone through and I think that there may have been merit in bringing the situation to an earlier conclusion. At the end of August 2017, after four months, it was apparent that no positive outcome was being achieved from the PIP process, and, from then on, the effort appears to have been futile.

Conclusion

In reaching a conclusion on this matter, I am mindful of the comments of Mr Justice Flood in Frizelle v New Ross Credit Union Ltd [1997] IEHC 137, that the decision to dismiss must take account of the “gravity and effect of the dismissal on the employee.”   It is with regret, and acknowledging her sense of loss and the effect of the dismissal on her, that I have reached the conclusion that the respondent’s decision to terminate the complainant’s employment was not unreasonable and the process that ended with her dismissal was not unfair.

Having considered all the evidence, verbal and written, and having taken account of the legal framework regarding the dismissal of an employee due to under-performance, I have decided that from a substantive and a procedural perspective, the decision to dismiss the complainant was not unfair.

Dismissal due to under-performance