Complainant

Respondent

Anonymised Parties

A sales manager

A manufacturing company

Representatives

Mary Kelly & Stephen Noonan Solicitors

MP Guinness BL instructed by Cian Moriarty, Philip Lee Solicitors.

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-00030195-001

12/08/2019

The Complainant was employed as Territory Sales Manager (Ireland) by the Respondent from 10th October 2016 until 28th February 2019.

The Complainant’s basic annual salary was €65,000 per annum.

This complaint was received by the Workplace Relations Commission on 12th August 2019.

The Respondent designs, develops, manufactures and markets protection products. The Complainant was employed as a Territory Sales Manager (Ireland) by the Respondent from 10th October 2016.

The Complainant worked with a number of the Respondent’s customers who distributed the Respondent’s products. On commencing employment, the Complainant underwent an induction week in Brussels where the use of the pricing tool was undertaken. In addition, all employees are assigned an Ambassador to help them during the early stages of working in their role. The Complainant was assigned Mr NF who had carried out the role for a number of years and again the full use of the company’s pricing tool was covered. User manuals were provided to the Complainant and the company’s Business Intelligence leads carry out multiple sessions when changes or updates are made.   The Complainant attended these sessions. At the end of the Complainant’s probation period his training was validated and in addition extra training was given by his Line Manager, Mr RD.

One of the Complainant’s customers was Customer A. On 8th June 2018 the Complainant along with other members of the sales team were sent an email in relation to the SPO (special price offer) renewal exercise for all prices expiring at the end of June. A further email in relation to “SPO prolongation to December” was sent on 10th June 2018. A reminder email was sent on Monday 18th June 2018 with the subject matter “SPO prolongation to December reminder” and the importance was referenced to be high. On 18th June 2018 there was a reminder email sent from Mr PG to the team including the Complainant with instructions to renew the SPO’s as “44% of the SPO lines have missing input”.

On 18th June 2018 at 15.02 Mr RD emailed members of the team who still had outstanding renewals. That email specifically mentions the Complainant and the customer by name that they are still outstanding. Mr RD again advised the deadline for this was 18th June 2018. On 29th June 2018 the Complainant submitted an SPO “extension”. This was rejected by Mr RD via the pricing tool as it was incorrect. The Complainant received confirmation on 29th June 2018 and the SPO was rejected.

The Complainant attended a workshop in Manchester in October 2018 and his Manager, Mr RD was also in attendance.

On 15th January 2019 Mr RD and the Complainant were on a joint field visit in Ireland.   The Complainant advised that he had a problem with the Customer A Account. He advised that he had missed the SPO renewal and that the customer was due a “large credit”. The Complainant advised that the number was in the region of €45,000. The Complainant advised that he was aware of this when he attended the workshop in Manchester in October 2018. Mr RD asked the Complainant to email his calculations there and then and the Complainant advised that he was “taking full responsibility and that it was his fault this had been missed”. Later that day, the Complainant emailed an approximate overview of credit taken from a report advising that the amount of €44,449.92 was due to Customer A.

On 16th January 2019 Mr RD emailed the Complainant asking him to make it his priority to sort out the issue and he needed to understand the exact detail.   Later that day, Mr RD sent the Complainant a Skype message asking how he was progressing. He stated that he was expecting information shortly and Mr RD reminded him that he needed the information back to him by the end of that day. No email reply or telephone was received by the end of the day.

On 17th January 2019 Mr RD missed a call from the Complainant as he was travelling in England. Later that day he returned the call but it was not answered. The Complainant returned the call and advised that he was “still working on data and had been at appointments all day”. On 17th January 2019 Mr RD called Mr PC the Managing Director of Customer A and Mr PC advised that he was “aware there is an issue over an outstanding credit with the Respondent, I was told by the Complainant that it would be sorted in November, then December and into January as we were on credit hold. I now believe we are not told it will not be paid I suggest you call my son Mr DC who deals with it as I am going into a meeting”. Mr DC from Customer A phoned Mr RD and advised that they had been expecting a credit since July 2018. He advised that his attempts to email and speak to the Complainant for a resolution had failed for six months. He advised that the Complainant had told him there was “a computer issue at the Respondent Company” and that is why support was not renewed. He advised “things came to a head in December when the Customer A account was on stop”. The Complainant chased Customer A for payment and the Complainant said that “the credit would be raised first week of January”. He advised that his organisation could never reach the Complainant and that they had long since lost faith in the company. He stated that Company A was not paying any more money to the Respondent until the Company was taken off credit hold. Mr RD asked if Customer A would email expectations of the credit due and they agreed to return by email. Later that day, the Complainant sent Mr RD a further email advising he was still working through the PO’s and did not have all the information as yet.

On January 30 an email was sent from Ms PL, HR Director to the Complainant. The subject matter was “Confidential – Investigation Notification”. The email stated:

“Dear XXX following your recent field visit with Mr RD in Ireland on 15th January 2019 and subsequent Skype call on 21st January 2019 I am writing to confirm that the company will be conducting an investigation into alleged serious misconduct and/or negligence on your part arising from:

1. Apparent pricing error on the following account, which resulted in significant loss of revenue for the company and jeopardised its relationship with the affected client Customer A. On 15th January 2019 you admitted to Mr RD there was a problem with this account and the customer was due a large credit, estimated €45,000 as you failed to renew price support on 29th June 2018.   The customer was also informed by you that a credit was due to be paid to them first week of January to allow them to continue to trade and you appear to not have instigated any internal processes to make this happen. Our timeline shows you were aware there was no price support in place since 1st July 2018 and you failed to notify your Line Manager accordingly until 15th January 2019.

2. Failure to disclose these errors to the company in a timely fashion or at all and/or

3. Concealing the errors from the company with consequent risk to the company’s reputation and/or profitability.

We reserve the right to change or add to these allegations as appropriate in the light of the investigations. These allegations are of a very serious concern to the company and the purpose of the investigation is to gather the relevant facts and determine whether there was sufficient evidence to warrant a disciplinary hearing.   Please find enclosed a copy of the disciplinary procedure which will be followed in the event that a disciplinary hearing proves necessary. The investigation will be conducted by Mr RD your Line Manager. You are required to co-operate in this investigation and to attend for any investigative interviews. You may, if you wish, be accompanied by a colleague or a trade union representative at any such interview”.

The e-mail goes on to state that if the Complainant wants to rely on any documents, witnesses or information that would be relevant then he should let the investigator know as soon as possible. An investigation Skype meeting was held with the Complainant on 5th February 2019.

On 12th February 2019 Ms PL emailed the Complainant confirming that the investigation was complete and enclosing a copy of the Investigator’s Report and notes.   She confirmed that having considered the Report she was of the view that there was sufficient evidence to warrant a disciplinary hearing. The email goes on to ask the Complainant to attend a disciplinary hearing to be conducted by Ms TW, Regional Sales Director, UK, Eire, Italy and Benelux.   The email explains that the Complainant has the right to be accompanied by a colleague or trade union representative. It also fully informs him that if upheld, the allegations may amount to gross misconduct. It also states that if the Complainant is found guilty of misconduct he may be issued with a written warning or a final written warning or dismissed with notice or pay in lieu of notice.

On 15th February 2019 the Complainant emailed Ms PL asking if he chose to bring Mr NF to the meeting would the company cover the cost of his flight. Ms PL confirmed that travel costs would be taken care of by the company but ultimately the Complainant decided to attend the meeting on his own.

A disciplinary meeting was held on 18th February 2019 at which Ms TW was the decision maker and Mr TE was the note taker.

On 20th February 2019 Ms TW wrote to the Complainant confirming that having reviewed all the investigation notes, evidence, documents and questioning by herself she had concluded that he was guilty of multiple pricing errors. She stated:

“you simply failed to act upon many emails, instructions, known company practise and verbal requests. You did not deny any of these errors and could offer no defence. The responses offered by you are vague and contradictory.   You acknowledge you made mistakes but could not explain why you had done so. These errors have resulted in a significant loss of revenue for the Company and damaged our relationship with Customer A.

Failure to disclose these matters to the company in a timely fashion or at all. The investigation and the hearing clearly demonstrate that there are many opportunities for you to acknowledge the pricing errors you have made, start the correct process to rectify those errors and bring the issues to the attention of management.   You chose to do none of these.   You could not explain why you chose not to advise management other than to advise that you did not appreciate this scale or size of the issue. I do not accept this as a satisfactory defence. Regardless of the size of the problem, there was a process to be followed and you consciously chose not to do this.

Concealing the errors from the company with a consequent risk to the company’s reputation and profitability. “You acknowledge that the errors were first notified to you in October by the customer although you are unable to verify who in the customer team advised or whether this was via phone or email. You did nothing to notify management with this information even though both Mr RD and I were with you at the CMP meeting when you found out. In November, you then entered a retrospective ticket to correct the pricing errors. This ticket was also entered incorrectly. However, on entering this ticket and a second correct one you would have been fully aware of the size of the issues and credit due, as you had to enter the volumes and prices for each line. Consequently, the valuation of the credit due would have been known.   Choosing to still not advise management simply compounded the issue and make the financial loss even higher once we were able to resolve as your corrective ticket was entered with the wrong dates. I questioned you on this and your reasoning was that you simply copied and pasted from an original ticket. I find that this is not true, the ticket lines were different, the prices were different and the volumes were also different from the original ticket.   You had a Skype call later in November on EUA and SPO protocol with your Line Manager and again you failed to use this opportunity to advise management.

You had calls with the customer when they went on “stop” prior to Christmas and you knew this was due to them awaiting a credit, you failed to use this opportunity to advise management of the issues. You made promises to the customer you had no approval to make and took no action to notify or correct the problems. You could not offer an explanation as to why you waited until January to notify or correct the problems. You could not offer an explanation as to why you waited until January to notify management other than you did not realise the scale of the problem. I do not accept this. Not getting along with the customer involved is not a reasonable excuse. Having given due regard to your explanations, I consider them to be unsatisfactory, in particular because you had access at all times to the relevant financial information and had numerous opportunities to disclose the errors to your Line Manager.

In view of the seriousness of this matter, I have decided that your actions and lack of actions constitute a fundamental breach of trust and confidence and, as such, I, on behalf of the company have decided that the sanction to be imposed is that of dismissal for breach of trust with notice of one month”.

The letter goes on to confirm that the dismissal would take effect from 28th February 2019. The letter also outlined the fact that the Complainant was entitled to an appeal by writing to the Vice President, Sales EMEA Mature Markets, within five working days setting out the grounds of his appeal. The Complainant did not appeal the decision to terminate his employment.

In his complaint form, the Complainant states that he was shocked by the decision of the company to dismiss him as he had an exemplary record up to the point of the pricing issues and had in fact achieved the highest sales for the UK and Ireland Team for the financial year 2018. This is simply not correct. While the Complainant did well in his sales he was nowhere near the top achievers.   Furthermore, he states that pricing errors are not uncommon in the company and the Complainant does not believe that any other employee received any sanctions or indeed dismissal in regard to this. It is accepted that the Respondent has had other incidents of prices and rebates being entered incorrectly. An error ticket is sent (as it was in this case) and then the employee takes action and corrects it. The Complainant did not correct the issue, rather he simply ignored the problem.   If a customer notices the error first then the Account Managers let their Line Manager know and the matter will be corrected. The Complainant did not inform anyone. He acknowledged that he did not act or do anything until much later and yet told the customer that he would and simply did not carry out the corrective action.   When he did eventually do something, he entered the matter incorrectly again. At this point, he knew exactly the scale of the financial loss and he still did nothing. He also made disparaging and false statements regarding the Company and the Company’s computer systems to the customer. The Complainant alleges that there was no loss caused to the Company which is incorrect. Once the company carried out the investigation and realised the scale of the error, they had lost the window of opportunity to go back in time and validate the customer’s higher claims, so they had no alternative but to issue a commercial gesture credit which was deducted straight from the profit and loss.

Submissions

The function of the WRC is to decide whether, within the band of reasonableness of decision making, an employer’s decision is not unfair. The notion of a band of reasonableness was first endorsed by the Court of Appeal in British Leyland UK Ltd v Swift. The Court found that there is a band of reasonableness within which one employer might reasonably dismiss an employee. Lord Denning MR stated “The correct test is: Was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair.   But if a reasonable employer would have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably takes a different view”.

In the judgement in the Circuit Court in Allied Irish Banks plc v Purcell Judge Linnane expressly approved the British Leyland test and she went on to state: “It is clear that it is not for the EAT or this court to ask whether it would dismiss in the circumstances or substitute its view for the employer’s view but to ask was it reasonably open to the respondent to make the decision it made rather than necessarily the one the EAT or the court would have taken”.

It is submitted that the decision to terminate the Complainant’s employment was entirely reasonable in all the circumstances. Trust and confidence are essential to an employment relationship. The Complainant was fully versed and experienced in using the Respondent’s pricing system. He had plenty of opportunities to admit the mistake but chose not to do so and therefore both internal and external trust and confidence in the Complainant’s ability to carry out his duties had gone.

The Complainant has failed to exhaust the disciplinary procedure as he did not appeal the decision.   It is submitted that if an appeal exists then the Complainant is required to exhaust it before lodging proceedings with the WRC. It is often detrimental to an employee’s constructive dismissal claim if they have not raised their grievance concerns internally with their employer prior to lodging their claim. It is submitted that similarly the Complainant in the instant case was obliged to exhaust the internal process or justify his failure to do so. In Pungor v MBCC Foods Ltd the employee was dismissed for abusing a loyalty card scheme and she lodged unfair dismissal proceedings without ever exercising her internal right to appeal. The EAT stated “the employee …. Was afforded the right of appeal, which she did not avail of.   The employee has an obligation to exhaust the internal disciplinary process prior to seeking to enforce her rights externally. She has not satisfied her obligation and did not adduce any evidence that might justify her decision not to exhaust the internal process”.

It is submitted that the Complainant never raised any issue with the Appeal process or the person appointed to hear the appeal. It is submitted that as he did not give the Respondent an opportunity to address any issue he is stopped from trying to rely on any alleged issue now.

The Respondent acted reasonably in terminating the Complainant’s employment. A full investigation and disciplinary process took place at which he was entitled to be accompanied. He was allowed to provide any witnesses or documentation to support him. He was given a right of appeal which he chose not to exercise and in all the circumstances the dismissal was fair.

The Complainant states that he was given no formal training by my employer in the pricing aspect of the role that I was assigned to.

My employer complained that I caused a pricing error in the products supplied.

The company put me through an investigative process of which I was notified by way of letter dated 30th January 2019 from Ms PL, HR Director EMEA Mature Markets.

I attended a disciplinary hearing on 18th February 2019 in the company offices in the UK and I subsequently received a letter dated 20th February 2018 from Ms TW Regional Sales Director UK, Eire, Italy, Benelux advising that my employment was terminated and stating:

“your dismissal takes effect today, on receipt of this notification”.

I was shocked by the decision of the company to dismiss me as I had an exemplary record up to the point of the pricing issue, and I had in fact achieved the highest sales for the UK and Ireland team for the financial year 2018.

In addition to this, I would submit that pricing errors such as this are not uncommon in the company and occurred in the company before and it is my honest belief that no other employee received any sanction, or indeed dismissal in regard to this.

Finally, it should be noted that no loss was caused to the company as this pricing error was an overcharge which would have had to be refunded to the client in any event.

It is important to clearly establish the reasons why the Complainant was dismissed from employment.

By letter dated 20th February 2019 the Complainant received a letter from the Regional Sales Director, this letter read as follows:

“you simply failed to act upon many emails, instructions, known company practise and verbal requests. You did not deny any of these errors and could offer no defence.   The responses offered by you are vague and contradictory. You acknowledge you made mistakes but could not explain why you had done so. These errors have resulted in a significant loss of revenue for the Company and damaged our relationship with Customer A.  

Failure to disclose these matters to the company in a timely fashion or at all. The investigation and the hearing clearly demonstrate that there are many opportunities for you to acknowledge the pricing errors you have made, start the correct process to rectify those errors and bring the issues to the attention of management. You chose to do none of these. You could not explain why you chose not to advise management other than to advise that you did not appreciate this scale or size of the issue. I do not accept this as a satisfactory defence.   Regardless of the size of the problem, there was a process to be followed and you consciously chose not to do this.

Concealing the errors from the company with a consequent risk to the company’s reputation and profitability. “You acknowledge that the errors were first notified to you in October by the customer although you are unable to verify who in the customer team advised or whether this was via phone or email. You did nothing to notify management with this information even though both Mr RD and I were with you at the CMP meeting when you found out. In November, you then entered a retrospective ticket to correct the pricing errors. This ticket was also entered incorrectly. However, on entering this ticket and a second correct one you would have been fully aware of the size of the issues and credit due, as you had to enter the volumes and prices for each line. Consequently, the valuation of the credit due would have been known. Choosing to still not advise management simply compounded the issue and make the financial loss even higher once we were able to resolve as your corrective ticket was entered with the wrong dates. I questioned you on this and your reasoning was that you simply copied and pasted from an original ticket. I find that this is not true, the ticket lines were different, the prices were different and the volumes were also different from the original ticket.   You had a Skype call later in November on EUA and SPO protocol with your Line Manager and again you failed to use this opportunity to advise management.

You had calls with the customer when they went on “stop” prior to Christmas and you knew this was due to them awaiting a credit, you failed to use this opportunity to advise management of the issues. You made promises to the customer you had no approval to make and took no action to notify or correct the problems. You could not offer an explanation as to why you waited until January to notify or correct the problems. You could not offer an explanation as to why you waited until January to notify management other than you did not realise the scale of the problem. I do not accept this. Not getting along with the customer involved is not a reasonable excuse.   Having given due regard to your explanations, I consider them to be unsatisfactory, in particular because you had access at all times to the relevant financial information and had numerous opportunities to disclose the errors to your Line Manager.

In view of the seriousness of this matter, I have decided that your actions and lack of actions constitute a fundamental breach of trust and confidence and, as such, I, on behalf of the company have decided that the sanction to be imposed is that of dismissal for breach of trust with notice of one month”.

It is clear that the Complainant was not dismissed for making a pricing error, this was certainly a contributing factor but was not the sole reason for the dismissal. The Respondent took the view that the Complainant’s actions constituted a fundamental breach of trust and confidence.

The representative of the Respondent has pointed out what my duties as the Adjudication Officer are:

The function of the WRC is to decide whether, within the band of reasonableness of decision making, an employer’s decision is not unfair. The notion of a band of reasonableness was first endorsed by the Court of Appeal in British Leyland UK Ltd v Swift. The Court found that there is a band of reasonableness within which one employer might reasonably dismiss an employee. Lord Denning MR stated “The correct test is: Was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer would have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably takes a different view”.

Did the Respondent in the instant case act as a reasonable employer would have acted under the same set of circumstances?

In relation to an appeal the Complainant decided not to appeal the decision to dismiss him. I believe this was a serious error of judgement on the part of the Complainant.

In the case of An employee v An employer (ADJ – 00000381; 12/04/2017) the Adjudication Officer commented as follows:

‘An appeal is not just an afterthought or a procedure that must be completed as a matter of course. It is a very important part of the disciplinary process and the greater the sanction that has been imposed the greater its importance. An appeal allows a dismissed employee the last chance to make their case, highlight any mitigating factors and seek protection for faulty procedures or disproportionality of sanction’

Having considered the facts of the case I have decided that the Respondent has acted in a reasonable manner and the decisions made by the Respondent fall within a band of reasonableness. Policies and Procedures put in place by the Respondent were strictly adhered to the Complainant was given every right as per those procedures.

I find that the complaint as presented under the Unfair Dismissals Act, 1977 in not well-founded and therefore fails.

I find that the complaint as presented under the Unfair Dismissals Act, 1977 in not well-founded and therefore fails.

Unfair Dismissals Act, 1977.