Complainant

Respondent

Anonymised Parties

An Employee

A Limited 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-00028586-001

21/05/2019

The complainant alleges that he was dismissed from his employment due to his failure to reach unattainable sales targets. The PIP he was placed on required him to close one deal in a four week period. He states that nobody who worked for the respondent ever reached that goal. He was placed under so much pressure by the respondent to achieve the targets he began to suffer sleepless nights and because ill due to the stress. He was constantly been asked about his targets. He lived with the fear that he would be ‘kicked out’ at any given moment due to his inability to reach the targets.

The complainant alleges that his personal damage caused by the respondent is € 50.000. His relocation costs back to Germany are € 8,500.00. That figure is based on the respondent’s relocation package.

The complainant alleges that he was working under a ‘False promise’ in relation to a promotion to the position of “Account Manager”. That transpired to be a BDR position (business development), which is ok for graduates, but not for experienced sales people like the complainant. He was forced to lie at interview in order to be in with a chance of promotion. The complainant assess the damages due to him resulting from the respondents failure to promote him to be €25,000.00.

The complainant stated that it was impossible for him to earn a commission due to the unachievable sales targets. The complainant refutes the respondent’s evidence that all of the other sales people where reaching their targets and in some cases over achieved.

The Respondents systematically pushed out employees from the German team who were working in Dublin and then rehired them in Amsterdam. The HR managers were ordered to so this. The reason behind it was because it was cheaper to employ them in Amsterdam. The respondents lied about hiring new staff for the Dublin office. He was repeated asked in PIP meetings if he was applying for jobs in other companies in Dublin. He felt that they just wanted him to go, quickly and quietly.

The complainant was always a busy and very reliable sales worker who developed many opportunities. He had no sick days in the first fifteen months of his employment. He was a very successful member of the sale teams. He was not allowed to travel because he was on a PIP. That made things more difficult for him. He had to lie to clients about why he couldn’t travel to meet with them. That was very stressful.

He got little or no help from management. Requests for help/training were refused. When his manager changed from POD to SA he got even less help.

The complainant refutes the allegation that he lacked product / brand awareness.

The complainant secured employment in Germany on the 11.02.19.

In total the complainant states that his damages are €106,500.00

The Respondent is a computer technology corporation operating in and selling database software, technology, cloud engineering systems and business software products. It also develops and builds tools for database development, business resource planning software, human resource management software, customer relationship management software and supply chain management software.

The Complainant was employed by the Respondent as an Application Sales Representative within a department called xx Digital. He commenced employment on 1 February 2016 based at the Respondent’s head office in Dublin.

BACKGROUND FACTS

Throughout his employment the Complainant had work performance issues. He failed to sell any software to customers and had zero sales performance.

As a consequence on 8 August 2017 the Respondent met with the Complainant to discuss his poor work performance, which was below the standard expected by the Respondent. The Complainant and his direct line manager at the time, Mr. ND agreed that he would be placed on a Performance Improvement Programme (“PIP”). The PIP was to be managed in accordance with the Respondent’s Performance Improvement Programme Guidelines (“PIP Guidelines”).

The PIP Guidelines state that they are to be read in conjunction with the Respondent’s Disciplinary Policy (which was also provided to the Complainant) as poor performance is dealt with as a disciplinary matter by the Respondent. The Disciplinary Policy and PIP Guidelines set out the procedure for managing performance issues and supporting employees who are the subject of a PIP. It is clear that if a performance issue arises and an employee is placed on a PIP, but performance either doesn’t improve or improved performance is not sustained for 6 months by the employee, disciplinary corrective action will be commenced. This process involves stages of corrective action which include Verbal Warning, Written Warning, Final Written Warning and Dismissal. An appeal is available in respect of each stage.

The purpose of the PIP was to document the process by which the Complainant’s performance difficulties would be managed and supported to ensure his performance would improve to the standard required. During the PIP clear objectives were agreed and set for the Complainant which were reasonable and which were consistent with his job requirements. For each objective, clear identifiable metrics were provided against which the Complainant and the Respondent could measure the Complainant’s performance on review. Throughout the entire PIP period, the same objectives and metrics were set for each review period. Many of the objectives are considered ongoing and continuing standard business objectives for Application Sales Reps and therefore minimum requirements of the Complainant’s role. These are as follows:

(a)       Opportunities Closed: The Complainant was required to close a minimum of 1 opportunity during the review period. This required the Complainant to complete 1 sale   with     a customer   from     his   customer   list   and generate revenue   for   the Respondent. Opportunities are logged in the Respondent’s internal sales system so they can be tracked and viewed;

(b)       Demand Generation: The Complainant was required to create a minimum of 1 new customer demand opportunity per week. The purpose of this objective was to generate demand for the Respondent’s software. In order to complete a sale with a customer, Application Sales Representatives were required to create awareness and interest amongst their customers in the Respondent’s software. To do this they were assisted by other departments within the Respondent company e.g. marketing. Any demand generated for the Respondent’s software would then be converted into a sales opportunity which the Complainant could then progress to an eventual sale. These metrics are recorded and tracked using the Respondent’s internal sales systems.

(c)       Forecasting Accuracy: The Complainant was required to accurately forecast his pipeline using the Respondent’s internal sales system. Each quarter, the wider global business group of the Respondent is required to report to the external market on its global sales performance. In order to do this the leadership group is required to have visibility of what sales opportunities are in progress. Therefore, it is imperative that each Application Sales Representative records and submits accurate sales forecasts to upper management listing ongoing sales opportunities and setting out when they anticipate they will close; and

(d)       Talk Time: The Complainant was required to complete an average of in excess of 1 hour customer-facing talk time per day. This metric is tracked via an online call stats report.

Additionally, to assist and support the Complainant in the improvement of his performance with the Respondent, further behavioural and supportive objectives were agreed and set with him. They were designed to assist in his improvement and to ensure continued improvement in the Complainant’s performance. These were as follows:

(a)       Coaching: The Complainant was required to schedule and attend 2 coaching sessions with his manager;

(b)       Online Demonstration / Webinar: The Complainant was required to complete 2 online demonstrations or webinars in conjunction with his manager and / or Xx Digital Presales. The online demonstration or webinar is a presentation that is delivered digitally and would demonstrate the functionality of the Respondent’s software to customers. As the Complainant was based in Dublin and sold to customers in Germany he could not always physically visit their premises. The organisational structure of having applications sales representatives based in a different country to customers is common amongst multinational technology companies. Therefore, it was important that he interacted with them through online demonstrations or webinars to ensure they were aware of the software;

(c)       Reporting: The Complainant was required to provide his manager with a weekly activity report covering the above objectives by 4.30pm each Friday. The purpose of this objective was to identify any challenges the Complainant was experiencing with any of his other objectives. It further provided him with an opportunity to raise any concerns he had;

(d)       Attendance and timekeeping: The Complainant was required to comply with the Respondent’s Xx Attendance and Sick Leave Policy and have 100% attendance in order to assist him in achieving the standard expected; and

(e)       Time management: The Complainant was required to manage his time efficiently to ensure he achieved the standard required. Further, the Complainant was required to comply with the Xx Internet and Telephone Usage Policy and restrict personal internet and telephone usage to outside of core working hours.

The Respondent was clear and transparent with the Complainant from the outset in setting these objectives (both business and behavioural), and set clear metrics against which the Respondent and Complainant could review the Complainant’s performance.

First PIP Period

The first PIP period commenced on 9 August 2017 and ran until 6 September 2017. This period was not reviewed formally, until 3 November 2017, due to annual leave being taken by relevant personnel. This review meeting was attended by the Complainant; the Complainant’s manager at the time, Mr. ND; a colleague of the Complainant, Mr. ZS (as the Complainant’s colleague); and a HR representative, Ms. YD.

At this meeting, the objectives and metrics (against which each objective is measured) of the PIP were discussed and assessed. The Complainant was given an opportunity to provide feedback on each. Following this meeting, the Respondent analysed and considered the Complainant’s performance under each objective and a further outcome meeting was held on 9 November 2017 with him to discuss the outcome of that assessment. This was followed by confirmation in writing on 9 November 2017. This letter outlines that the Complainant failed to achieve any of the 4 objectives considered to be standard business objectives for Application Sales Representatives and a minimum requirement of the Complainant’s role. Further, only 3 of the 5 behavioural objectives were achieved, namely Coaching, Online Demo / Webinar and Attendance and timekeeping. As a result and in accordance with the Respondent’s Disciplinary Policy, the Complainant was issued with a verbal warning in respect of his failure to perform to the required standards during the review period. The verbal warning was to stay on the Complainant’s file for 6 months, effective from 9 November 2017.

The letter further stated that next review period of the PIP would commence on 10 November 2017 and run until 7 December 2017 with the PIP objectives set out once more.

Appeal Verbal Warning

On 14 November 2017, the Complainant informed the Respondent by email that he intended to appeal the decision to issue him with a verbal warning in accordance with the Disciplinary Policy. He stated that his grounds for appeal would follow the next day. Ms. NK, HR Representative, was appointed to manage the Complainant’s appeal on behalf of the Respondent and the Complainant was notified of same. On 16 November 2017, the Complainant stated in an email to Ms YD, forwarding a coaching session diary reminder, that he was busy fulfilling most of the points of his PIP and stated “therefore I do not appeal”. The Respondent acknowledged the Complainant’s decision to not appeal by email on 20 November 2017. However, by email dated 22 November 2017 the Complainant stated that he did wish to appeal. Between 23 November 2017 and 12 January 2018, the Respondent contacted the Complainant by email on three occasions to advise him that his grounds for appeal remained unclear and they had not received a formal appeal from him. On 12 January 2018 the Respondent e-mailed the Complainant confirming that if he did not clearly state his reasons for appeal by close of business that day, his appeal would be considered abandoned. Nothing further was received from the Complainant in respect of his appeal after this. Therefore, the verbal warning took effect and remained live on the Complainant’s file.

Second PIP Period

The second PIP period commenced on 10 November 2017 and ran until 7 December 2017 with the same PIP objectives. Due to a family bereavement of the Complainant and annual leave being taken by scheduled attendees, the review meeting was not held until 16 January 2018. A copy of the minutes of this meeting is attached at Appendix 8. This review meeting was attended by the Complainant, Mr. ND; Mr. ZS; Ms. YD; and a note taker, Ms. AK.

At this meeting, the objectives and metrics of the PIP were discussed and assessed. The Complainant was afforded the opportunity to provide feedback on each. Following this meeting, the Respondent analysed and considered the Complainant’s performance under each objective and a further outcome meeting was scheduled for 19 February 2018. This meeting was delayed due to the Complainant taking short term sick leave. The Respondent met with the Complainant on 19 February 2018 to discuss the outcome of its assessment of his performance during this PIP review period. This was followed by confirmation in writing on 19 February 2018.This letter outlines that the Complainant did not successfully achieve or satisfy 3 of the 4 objectives considered to be standard business objectives for Application Sales Representatives and a minimum requirement of the Complainant’s role. Further, 4 of the 5 behavioural objectives were achieved, namely Coaching, Online Demo / Webinar, Reporting and Attendance and timekeeping. It was noted that one remaining behavioural objective, namely Time Management was only partially achieved. As a result, the Complainant was issued with a written warning in respect of his failure to perform to the required standards during the second PIP period. The written warning was to stay on the Complainant’s file for 12 months, effective from 19 February 2018.

The letter further stated that next review period of the PIP would commence on 20 February 2018 and run until 19 March 2018 with the PIP objectives set out once more.

This decision was not appealed.

Third PIP Period.

The third PIP period commenced on 20 February 2018 and ran until 19 March 2018. A review meeting was held on 29 March 2018. A copy of the minutes of this meeting is attached at Appendix 10. This review meeting was attended by the Complainant, Mr. ND; Mr. ZS; Ms. YD; and Ms. AK as note taker.

Subsequent to this meeting, the Complainant went on long term certified sick leave from 29 March 2018 to 8 June 2018 during which his performance was not reviewed and the Complainant was offered assistance through the Employee Assistance Programme. During this time, the Complainant’s manager Mr. ND left the Respondent, and in June 2018 Mr. EA became the Complainant’s new direct line manager.

On 11 June 2018 the Complainant returned to work.

The outcome letter dated 1 August 2018 incorrectly states that a meeting took place with the Complainant on 26 June 2018 following his return to work. A meeting was scheduled with the Complainant for 26 June 2018 to discuss the outcome of the latest PIP period ending on 19 March 2018. This was postponed due to the Complainant’s participation in training on his return to work and the taking of annual leave around this time by the Complainant and his manager. The outcome meeting was held on 1 August 2018 to discuss the outcome of the latest PIP period. This meeting was attended by Mr. EA and Ms. YD. Following this meeting an outcome letter issued on 1 August 2018 which set out the assessment and result of the Complainant’s performance during this review period. This letter outlines that the Complainant did not successfully achieve or satisfy 3 of the 4 objectives considered to be standard business objectives for Application Sales Representatives and a minimum requirement of his role. The remaining standard business objective, namely Talk time, was only partially achieved. Further, only 3 of the 5 behavioural objectives were achieved, namely Coaching, Online Demo / Webinar, and Attendance and timekeeping. It was noted that 1 further behavioural objective, namely Reporting was only partially achieved. As a result, he was issued with a final written warning in respect of his failure to perform to the required standards during the review period. The final written warning was to stay on the Complainant’s file for 12 months, effective from 1 August 2018. The Complainant was advised his continued failure to achieve the objectives set out in the PIP would result in the next stage of the disciplinary process being invoked which may result in his dismissal.

The Respondent was conscious that the Complainant had been on a prolonged period of sick leave, so the next PIP period that should have immediately followed was postponed to allow him some time to re-acclimatise to his working environment, the requirements of his role and to ensure he familiarised himself once more with the functions of his role. Accordingly, this PIP period was deferred to commence on 12 August 2018 and run until 16 September 2018.

Final Written Warning Appeal

On 6 August 2018, the Complainant informed the Respondent by email that he intended to appeal the decision to issue him with a final written warning. Ms. NK was appointed to manage the Complainant’s appeal and on 16 August 2018 confirmed this with the Complainant and further reminded him that the process of the appeal was not designed to re- hear the decision afresh but to examine his grounds for appeal. She further iterated that although the Complainant made several points by email, she was still unclear on the specific points of appeal and requested that he provide further detail to allow her to review.

In email correspondence dated 27 August 2018 between the Complainant and Ms. NK the Complainant stated that his points of appeal were “partially in line with the reasons why [he] appealed against [his] former PIP/warning”. When he queried why there was no meeting in respect of his first appeal, Ms. NK clarified that no meeting was arranged because he had failed to specify his grounds of appeal.

On 28 August 2018, the Complainant submitted his grounds for appeal by email. A copy of which is attached at Appendix 12. By email on the same date Ms. NK confirmed that an appeal manager would be appointed to hear the Complainant’s appeal. The appeal meeting delayed due to the Complainant’s absence from work and was ultimately held on 26 September 2018. This appeal meeting was attended by the Complainant; Senior Sales Manager, Mr. YF; Mr. ZS (as the Complainant’s colleague); and Ms. NK, as HR representative.

Mr. YF and Ms. MK analysed and considered the Complainant’s grounds for appeal and summarised each as follows:

(a)       The Complainant believed there was some confusion from HR about the warnings being issued and the reason for his review;

(b)       The Complainant sought clarification on “normal performance” and questioned why certain improvements were not acknowledged;

(c)       The Complainant queried what was expected from each Sales Representative and stated that KPIs (Key Performance Indicators) were unrealistic;

(d)       The Complainant questioned the customer data quality provided for his customer list and believed it was outdated and insufficient in so that he could not reach his targets;

(e)       The Complainant questioned product alignment and believed that certain product sets provided more opportunities for his customers;

(f)           The Complainant raised concerns in regard to his call statistics;

(g)       The Complainant raised concerns regarding the timing of his PIP as it was during vacation time in Germany, where many of his customers were located; and

(h)          The Complainant raised concerns that there was a lack of support from management.

An outcome letter did not issue to the Complainant until 15 November 2018 due to the Complainant being absent from work. This letter set out the assessment and determination of the Complainant’s appeal. In all, the Complainant raised 8 grounds for appeal none of which were upheld by Mr. YF and Ms. McKeon following careful consideration of the issues raised. It was held that Mr. EA and Ms. YD conducted the disciplinary process fairly and with due regard to the Complainant’s employment rights and therefore the final written warning was upheld and remain live on his file.

Fourth PIP Period.

The fourth PIP period commenced on 12 August 2018 and ran until 16 September 2018. A review meeting for this period was delayed due to the Complainant’s absence from work but was held on 8 November 2018. This review meeting was attended by the Complainant; Mr. ZS ; and Ms. YD.

At this meeting, the objectives and metrics of the PIP were discussed and assessed. The Complainant was afforded the opportunity to provide feedback on each. Following this meeting, the Respondent analysed and considered the Complainant’s performance under each objective and a further outcome meeting was held on 22 November 2018. An outcome letter issued on the same date which set out the assessment and result of the Complainant’s performance during this PIP period.This letter outlines that the Complainant did not fully achieve or satisfy 3 of the 4 objectives considered to be standard business objectives for Application Sales Representatives and a minimum requirement of the Complainant’s role. The remaining standard business objective, namely Talk Time, was only partially achieved. Further, only 2 of the 5 behavioural objectives were achieved, namely Coaching and Attendance and timekeeping. It was noted that 1 behavioural objective, namely Reporting was only partially achieved. As a result, Mr. EA decided that the Complainant should be dismissed effective from 22 November 2018. It was confirmed within this letter that the Complainant would be paid in lieu of notice and any monies owing to Xx would be deducted from his final pay.

Dismissal Appeal

On 28 November 2018, the Complainant informed the Respondent by email that he was appealing the decision to terminate his employment with the Respondent and provided his grounds for appeal, a copy of which is attached at Appendix 16. An Appeal Committee consisting of Ms. NK, Hr Representative; and Mr. YM, Sales Director OD Apps (Xx Digital Applications), was established and arranged to meet with the Complainant initially on 4 December 2018. Mr. YM was appointed to consider the Complainant’s appeal as he worked within the same department as the Complainant but as director of a different team and would understand the role of the Complainant and its requirements. Due to bereavement in the Complainant’s family along with annual leave being taken by the Complainant over the Christmas period the meeting scheduled for 4 December 2018 was rescheduled to 9 January 2019. The complainant’s grounds of appeal can be summarised as follows:

(a)          the Complainant believed he found 4 opportunities, 3 of which appeared in another colleague’s customer list;

(b)          the Complainant over-achieved on his objective and had 3 coaching sessions;

(c)           that comparatively no German opportunities / deals closed from a team of 38;

(d)             that no consideration was taken for 2 videos created for publication on social media (as opposed to 2 demos or webinars);

(e)          that the PIP happened during German vacation time;

(f)           that only 78 of 4,133 of the Complainant’s customers were eligible for Human Capital Management software (HCM);

(g)          that Enterprise Resource Planning (ERP) had been taken off the Complainant and he was therefore limited in his ability to create opportunities. (ERP is a software product sold by the Respondent. It is normal course that a software product would enter and leave an Application Sales Representatives customer list due to the needs of the business); and

(h)          that he had difficulties logging activities and had raised 50 IT help tickets.

Following the meeting on 9 January 2019 each of the grounds of appeal were considered by the Mr. YM and Ms. NK. A letter issued to the Complainant setting out an assessment and determination of the Complainant’s appeal on 24 January 2019. As set out in this correspondence, none of the grounds for appeal were upheld; in some instances, they were not supported with evidence.

On 21 May 2019, the Complainant submitted a complaint form to the Workplace Relations Commission.

The complainant alleges that he was unfairly dismissed from his employment with the Respondent.

Section 6(1) of the Unfair Dismissals Acts provides that the dismissal of an employee shall be deemed to be an unfair dismissal “unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal”.

Section 6(4) of the Unfair Dismissals Acts specifically provides that dismissal of an employee can be justified by an employer if that dismissal results wholly or mainly from “the capability, competence or qualifications of the employee.”

Section 6(6) of the Unfair Dismissals Acts goes on to the provide that in determining whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of section 6 of the Unfair Dismissals Acts.

I accept the Respondent’s submission that under the Unfair Dismissals Acts it is not necessary for them to establish that the Complainant was actually incompetent or incapable of doing the work, they must only demonstrate that they honestly believed on reasonable grounds that he was.   Lardner J. in the Labour Court in Bolger v. Showerings (Ireland) Limited set out the requirement that the employer should tell the employee before the dismissal the ways in which he is failing to perform the function of his job adequately; warn the employee of the possibility of dismissal on those grounds; and before dismissal, give the employee an opportunity to improve.

The Respondent did everything in their power to assess the complainant. He was placed on a Performance Improvement Plan and was given every opportunity to improve his performance. I do not accept the complainant’s evidence that he was not given assistance or help in relation to improving his performance. To the contrary his Performance improvement Plan was very carefully management. He was at regular intervals given an opportunity to ask questions and seek assistance and had what was required of him explained in detail. As part of his PIP he was also required to attend two coaching sessions with his managed. He was given a copy of the disciplinary procedure and had that explained to him at every step of that procedure. He could not have been in any doubt that his employment was at risk if he did not improve his performance.

The respondent followed their disciplinary procedure to the letter. The complainant was given an opportunity to appeal each of the warnings he was given and the decision to dismiss him. The appeals he did lodge were dealt with in a fair and transparent way.

In all of the circumstances I find that the respondent’s decision to dismiss the complainant was well within the band of reasonableness.

The complaint fails

The complaint fails.