ADJ-00023813

Complainant

Respondent

Anonymised Parties

Sales Rep

Construction Supplies Provider

Representatives

Citizens information Service

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00030191-001

12/08/2019

The Complainant commenced employment with the Respondent on 5th March 2018 as a sales rep on an annual salary of €40,000. The Complainant’s employment was terminated by the Respondent on 4th June 2019.

The Complainant has submitted a complaint of unfair dismissal. The Respondent has refuted this and submits that the Complainant’s employment was terminated due to the unsuccessful completion of his probation.

The following is a summary of the Complainant’s submission:

The Complainant claims that he was dismissed by the Respondent from his employment on 4th June 2018 contrary to the Unfair Dismissal Acts 1977 to 2015.

The Complainant commenced work for the Respondent on 5th March 2018. He was employed as a Sales Representative (Sites). He was given a nine-month probation period. His salary was €40,000 per year plus a first-year guaranteed commission bonus of €2,500 which could rise to a limit of €10,000. He was also provided with a company car, fuel card, mobile phone, etc.

On commencement of his employment the Complainant travelled to the Respondent’s Head Office for training and induction. The induction was to last for a week but was cut short as it was felt that he knew the products. As part of his training, the Complainant was to receive instruction on administrative aspects of the job. However, the person who was to provide this training was on annual leave and it was postponed to a later date. This training was subsequently not provided until November 2018.

In June 2018, the Sales Representative covering the merchants left the company and the Complainant took over this role in addition to being the sites sales rep. He was now dealing with sites and merchants in fourteen counties.  

HS became the new Managing Director in November 2018 and JMcC was appointed as National Sales Manager.   On 19th November 2018 the Complainant attended a sales review meeting with the two managers. HS pointed out that some of the site quotes had the wrong product code on them and that he felt that Complainant was not fully familiar with the bale size of some of the products. The Complainant agreed to work on these areas of his knowledge. His probation was extended from 5th December 2018 to 5th of March 2019.

At a sales meeting in January 2019 with JMcC, HS and the HR manager, the Complainant was offered a new bonus based on increased sales as sales had increased by 35%. The details of the bonus were to be sent to him but that did not happen. There was no discussion at this meeting relating to the items discussed in the November meeting regarding product codes and bale sizes.

In February 2019 the Complainant was called to a sales meeting with JMcC, they were then joined by HS and the meeting then became a review. The Complainant listed the live sales that were in process, but HS was not satisfied with this. The Complainant was offered the position of Merchant Rep and he felt that he had no choice but to take it. The Complainant’s probation period was extended for a further 3 months as a new site Sales Rep, TO’K, was starting in March and the company wanted to see how he worked out in that position.

On 31st May 2019 the Complainant was asked to attend a sales meeting on 4th June 2019 with JMcC and TO’K to discuss the change-over. They were informed at the meeting that the Q1 sales were up 35% and in the five months to May there had been a 50% increase on the previous year’s sales. At the meeting the sales reps were told that they would then be having a “one to one” with JMcC.

During this second meeting they were joined by HS and it turned into a review meeting (a review meeting had been scheduled for the following day but JMcC said that they would have it now).   The Complainant was then informed that the company were not going to offer him a full-time position. When asked why, he was informed that there had been complaints from customers, but they would not provide him with any details. He was informed that his position was not up for discussion.   The Respondent presented him with prepopulated documents to sign. The Complainant then handed over all of the company belongings in his possession including his car, phone, fuel card, computer and price book. He received one month’s pay in lieu of notice and €400.00 for private mileage.

The Complainant submits that he applied for over 100 different jobs and attended 5 or 6 interviews.

Application of the law

It is the Complainant’s contention that there were no substantial grounds to justify dismissal under the Unfair Dismissal Acts and the Respondent did not comply with any of the guidelines as laid out in the relevant Statutory Instrument. At the meeting on 4th June 2019 the Complainant was told that there were complaints from customers. The Complainant was not provided with details of the alleged complaints. When he asked who the customers were, the Respondent would not tell him.

The first time that the Complainant heard of the customer complaints was in the response provided by the WRC, therefore, he had no opportunity to respond to the alleged complaints.

The Complainant submits that he was not given the right to have representation with him at the review meeting.

There was no fair and impartial determination of the issues so he could not provide a defence as he did not know what the complaints were. Also as he was presented with prepopulated forms to sign which, to him, signified that a decision regarding his dismissal was made prior to the meeting on the 4th June 2019.

The Respondent sets out in detail the procedures that it will utilise when disciplining an employee.   Section 8 of the Company Handbook deals with Disciplinary, Grievance and Appeals Procedures. Section 8.1 titled “Aim and Objective” states that “The procedure is designed to establish a fair and equitable system for dealing with situations where the company’s required standards are not met or where an employee is in breach of company rules”. Section 8.2 titled “Principles” states that “Disciplinary action will not be taken against you until your case has been fully investigated. Such investigation will be conducted by your immediate supervisor or, in certain circumstances, by other relevant personnel”.

The Complainant contends that the Respondent did not adhere to any of its own procedures as set out in its handbook.

Legal Precedent

The High Court in Lyons v Longford Westmeath Education and Training Board was clear that, in circumstances where a complaint is made which could result in an individual’s dismissal, or where it impinges on the individual’s right to a good name, the individual is entitled to fair procedures.

Conclusion

The Respondent has failed to justify the dismissal of the Complainant in accordance with the Unfair Dismissals Legislation 1977 – 2015. The Respondent has failed to abide by the rules of natural justice and fair procedures and, furthermore, it failed to apply its own policies and procedures in dealing with the Complainant.

Direct evidence of the Complainant

At the adjudication hearing, the Complainant clarified that the Respondent had made him aware of the identity of one of the customers who had complained about him.

The following is a summary of the Respondent’s submission:

The Complainant commenced employment with the Respondent on 5th March 2018. Per his offer of employment, the Complainant entered a 9-month probationary period from 5th March until 4th December 2018. During this period, he was expected to demonstrate his ability to fulfil the core competencies required for the position.

On 12th October 2018, the Complainant met with his Manager JMcC as part of a performance review with all sales reps. At this meeting, JMcC made the Complainant aware of a number of issues with his performance and, as a result, proposed further product training which took place on 17th October 2018.

On 19th November 2018, a meeting was held with the Complainant to discuss his progress and to raise further concerns over his administrative inefficiencies, his lack of product knowledge and product pricing discrepancies.   At the meeting, the Respondent conveyed its concern to the Complainant that his performance was not at the level that would be expected after 8 months in the role, despite him having been provided with additional product training.

At this meeting, the Respondent addressed the Complainant’s continuing difficulties with pricing and the fact that the slowness of his responses to both merchant and end users was causing concern.

Furthermore, the Complainant was informed that his knowledge of the Respondent’s product offering, and codes was resulting in administrative and despatch errors, and subsequently sales credits. This had led to a complaint from a major customer about the Complainant’s lack of knowledge regarding bale quantities and product offerings.

The Complainant was informed about the detail of the complaint but was unable to offer an explanation. He admitted to still having problems.

It was agreed between the parties, that the Complainant’s probationary period would be extended by a further three months to 5th March 2019 to provide the Complainant with the opportunity to improve his performance.

On 21st February 2019, a subsequent meeting was arranged with the Complainant to further discuss the Respondent’s concerns about his ability to fulfil his role in light of complaints from two major customers. In the interest of customer relations and continuation of business, the identity of these customers were not made known to the Complainant.   This was not challenged by the Complainant. In addition, the Complainant was asked to explain why he had communicated a fictitious price increase to another customer without the Respondent’s knowledge or permission, with a view to obtaining advance orders. The Complainant accepted wrongdoing and agreed that this was malpractice on his part. When asked by HS to give examples of bale quantities, the Complainant was incorrect in his answers.

It was proposed to the Complainant, that in light of the recruitment of a new sales rep, he would move from site sales to merchant sales, as this might better suit his skills set. The Complainant agreed to this.

It was agreed by both parties, that the Respondent would, once again, be extending the Complainant’s probationary period by a further three months to 5th June 2019 to provide the Complainant with a further opportunity to improve his performance.

On 24th May 2019, the Complainant communicated a further price deferment to a major customer, offering it favourable deferred terms on the Respondent’s price increase from 1st June 2019 to 1st August 2019.   This written agreement to the customer was unauthorised, not communicated to the Sales Manager and resulted in both financial loss and reputational to the Respondent who was forced to honour the agreement. The Complainant’s failure to act in the best interest of the Respondent would have led to disciplinary proceedings, up to and including consideration of gross misconduct, had the Complainant been a permanent employee of the Respondent.

As a result, on 4th June 2019, the Respondent met with the Complainant and conveyed to him that, despite the Respondent offering him every opportunity to improve his performance, he had not demonstrated the required ability to carry out his role effectively and in the best interests of the Respondent.

The Complainant was once again reminded of his lack of competence in product offering and pricing, the customer complaints received against him and acting on two occasions against the best interests of the Respondent. The Complainant was informed that the Respondent would not be offering him a permanent position.

In summary, the Respondent submits that:

The Complainant consistently failed to meet the core competencies required by the Respondent to professionally represent the Respondent company and satisfactorily service the Respondent’s client base.

Complaints regarding the Complainant’s performance were numerous and were communicated to the Respondent through both formal and more informal channels including phone calls from customers, complaints from his peers and reports from internal staff regarding his level of inaccuracy, lack of product knowledge and technical expertise.

The Respondent submits that, throughout the process, it was fair and reasonable in its attempt to correct and retrain the Complainant and, to facilitate this, extended his probationary period on two separate occasions. The Complainant was still on probation when he was dismissed by the Respondent.

Following the discovery of a clear breach of company policy, with significant financial and reputational damage for the Respondent, in which the Complainant acted outside the scope and authority of his role, and failed to follow company policy, it was determined that, despite the Respondent’s best efforts and reasonable patience, the Complainant could not be offered a permanent employment contract as a sales rep. The Respondent is of the view that, if the Complainant had been a permanent employee, then full disciplinary measures would have been taken and legal redress sought to recover the financial and reputational losses incurred by the Respondent.

It is the Respondent’s position that the Respondent acted in a fair and reasonable manner and that it afforded the Complainant every opportunity to achieve the competencies required in his role.

Relevant legislation

Section 6(4) of the Unfair Dismissals Act, 1977 provides as follows:

(4) Without prejudice to the generality of subsection (1) of this section, 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 one or more of the following:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

I must now decide if the Complainant’s dismissal by the Respondent was unfair.

Procedural Issues

Although the Complaint had just over one year’s service with the Respondent when his employment was terminated he was still on probation.

The Code of Practice on Grievance and Disciplinary Procedures (SI 146 of 2000), which promotes best practice in the conduct of grievance and disciplinary procedures, emphasises the importance of procedures to ensure fairness and natural justice.

The Code of Practice emphasises that good practice entails a number of stages in the discipline and grievance process as follows:

·That employee grievances are fairly examined and processed

·That details of any allegations or complaints are put to the employee concerned

·That the employee concerned is given the opportunity to respond fully to any such allegations or complaints

·That the employee concerned is given the opportunity to avail of the right to be represented during the procedure

·That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors, circumstances.

I note the Complainant’s submission that there were a number of procedural deficiencies in the process which led to his dismissal, namely that he was not afforded the right of representation and he was not afforded the opportunity to appeal his dismissal.

During the entirety of the Complainant’s employment with the Respondent, he was subject to the Respondent’s probationary process. At no stage during his employment was he subject to the Respondent’s disciplinary procedures. I am of the view that it would not be the norm for an employee on probation to have representation at a probationary review meeting, even where the employee was informed that he had not successfully completed his probation.

Probation provides the opportunity for both an employer and an employee to decide if their employment relationship is sustainable. In the instant case, despite the provision of additional training and the extension of the probationary period, the Respondent reached the conclusion that the Complainant did not possess the necessary competencies to enable it to appoint him to a permanent employee. I am of the view that, in such circumstances, the provision of an appeals process would have been meaningless.

In light of the foregoing, I find that the termination of Complainant’s employment was not procedurally unfair.

Contribution to Dismissal

From the evidence adduced, it is apparent that the Complainant had difficulty in mastering the competencies necessary for him to fulfil his role. It is also clear that the Respondent received a number of complaints from significant customers about the Complainant’s performance, the gist of which were shared with the Complainant.

The Respondent afforded the Complainant ample opportunity to address his deficiencies by providing him with additional training and by twice extending his probation. However, despite the forbearance and support shown by the Respondent, the Complainant was unable to improve his performance to the degree necessary so that the Respondent was inclined to offer him a permanent position.

I am of the view that the Complainant’s failure to achieve competence in his role, and the level of complaints which he generated, were significant contributory factors in the Respondent’s decision not to offer him a permanent position at the end of his extended probation.

Band of Reasonable Responses

In relation to the Complainant’s dismissal, the applicable legal test is the “band of reasonable responses” test, as set out by Mr. Justice Noonan in the High Court case of The Governor and the Company of Bank of Ireland -v- James Reilly(2015) IEHC 241, wherein he stated:

 “It is thus clear that the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s. 6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer's conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned - see Royal Bank of Scotland -v- Lindsay UKEAT/0506/09/DM.”

The job offer letter which the Respondent issued to the Complainant on 22nd February 2918 contained the following clause:

“Probationary Period: Our policy requires you to complete a satisfactory probationary period of 9 months from commencement. During that time you are expected to demonstrate your ability to fulfil the core competencies required for the position.”

From the evidence adduced, it is clear that the Respondent engaged actively with the Complainant during his probationary period.   Regular review meetings were held and additional training was provided. When it became apparent to the Respondent that the role of sites sales rep was not working out, the Respondent transferred the Complainant to another position which it felt might be a better match for his skillset.

The Complainant failed to successfully complete his initial probationary period. Instead of terminating his employment at that stage, the Respondent extended his probationary period for an additional three months. When the Complainant’s failed to successfully complete his extended probationary period, again the Respondent did not terminate his employment but extended his probation for a further three months.

I am satisfied that the Respondent treated the Complainant fairly and reasonably during the tenure of his employment and gave him ample opportunity to address his shortcomings. The Respondent could have terminated the Complainant’s employment at the end of his initial probationary period but chose not to do so.   Instead, the Respondent afforded the Complainant two additional opportunities to achieve competence in his role.

It was only after the Complainant failed to successfully complete his extended probation, that the Respondent made the decision to terminate his employment.

Having considered the matter, I find that the decision to dismiss the Complainant was within the range of reasonable responses of a reasonable employer given that the Complainant did not possess the core competencies necessary to fulfil his role.

Conclusion

In conclusion and having regard to all of the circumstances of the complaint, I find that the dismissal of the Complainant was both substantively and procedurally fair.

Having considered all of the submissions of both parties and the evidence adduced at the hearing of this complaint, I find that this complaint is not well founded.

Unfair dismissal - probation