ADJ-00031245

Worker

Employer

Anonymised Parties

Sales Engineer

Technology Company

Representatives

Self-Represented

Ms. Aisling McDevitt, IBEC

Act

Dispute Reference No.

Date of Receipt

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

CA-00041731-001

29/12/2020

The Worker commenced employment with the Employer on 1st August 2019. At all times his role was described as a “sales engineer”. Throughout his employment the Worker was a permanent, full-time employee. The employment was terminated by the Employer on 30th July 2020.

On 29th December 2020, the Worker referred a trade dispute within the meaning of the Industrial Relations Act 1969 with the Commission. As the Employer did not actively state that they did not wish to engage with the dispute within the prescribed time-frame, the matter proceeded to hearing. Thereafter the Employer fully engaged with the process.

A hearing in relation to this matter was convened and finalised on 25th August 2021. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced by either side during the hearing.

Both parties issued written submissions in advance of and expanded upon the same in the course of the hearing. No issues as to my jurisdiction were raised at any stage of the proceedings.

The Worker commenced employment with the Employer on 1st August 2019. The Worker did not apply for this role but rather was approached in relation to the same by the Employer. This role was primarily a sales function that involved a significant amount of technical knowledge. During the Worker’s six month review he identified a number of smaller sales opportunities that would allow him to become established in the role. The Worker completed all acts, duties, obligations and complied with anything requested of him by management.

By the time the Worker reached his nine-month review he had three significant opportunities in his sales pipeline. During the meeting, which was conducted remotely, he was surprised and concerned to note that a HR representative joined the meeting. This development caused the Worker to fear for his continued employment. In order to satisfy himself as to the same, he asked his line manager to confirm that he job would be safe if he closed the largest of the three deals, to which the manager responded in the affirmative.

Following this meeting, business in general reduced due to the restrictions arising from the Covid-19 pandemic. Notwithstanding the same, the Worked worked diligently on the largest sales opportunity to ensure it would generate revenue for the Employer. Following a significant amount of work it was apparent that the project would be won by the Employer in the near term.

As the worker approached one year of service with the Employer, he was invited to a meeting with his line manager and a representative from HR. At the outset of this call the Worker was informed that his employment was to be terminated with immediate effect and that he was to be paid his notice in lieu. The Worker protested the same and stated that the large order was imminent. These pleas were ignored his employment was terminated on that date. Shortly after his dismissal the Worker discovered that the Employer had won the project he had been working on.

In summary, the Worker submitted that he had been treated poorly by the Employer and that his dismissal was unfair. In particular, he stated that his line manager had informed him that he role would be safe if he completed the large sale he had been working on. He submitted that this one sale would have meant that he exceeded his revenue target for the entire year. After a significant amount of effort on the Worker’s behalf, this sale was almost completed. He stated that it was unfair that he was dismissed for not hitting a target when the Employer was well aware that he was about to exceed the same. Finally, he submitted that he did not receive his contractual bonus for the sale which he effectively closed.

By response, the Employer denied that the Worker had been treated unfairly or that he was unfairly dismissed.

At the commencement of the worker’s employment, he was subject to a six-month probationary period. At the outset of his employment he was provided with a number of targets regarding the generation of new business for the Employer. The Employer invested significantly in the Worker, arranging site visits and training to ensure he would be in a position to fulfil the requirements of the role. In addition to the same, the Worker’s manager arranged two monthly meetings to discuss forecast orders and the Worker’s “pipeline” of new sales. By late 2019, it was apparent that the Worker was not achieving his set targets in relation to new business, in particular the Employer was concerned that the Worker had generated no new sales opportunities in his pipeline.

Following a meeting in December, the Worker’s line manager met with him to give direction how to improve his performance. Amongst other objectives the Employer started that the Worker would need to achieve €125,000 in revenue per month in order to achieve his set target.

On 13th December 2019, the Worker attended a probationary review meeting. Here the Employer’s matters of concern were relayed to him. At the end of the meeting the Worker agreed three targets for customer visits, pipeline opportunities and the creation of new opportunities for the forthcoming quarter. The Worker’s probation was extended to allow him an opportunity to achieve these targets.

During the intervening months, it became apparent that the Worker was not achieving these targets, and that he was focusing most of his energy on one sale. A second formal probationary meeting was held on 21st April 2020. Here it was put to the Worker that he had not reached the agreed targets and the performance deficiencies were put to him. On foot of the same, the Worker’s probation was further extended. The Worker was given the opportunity to provide feedback on the probationary process, during which he acknowledged the importance of growing the Employer’s customer base.

Unfortunately, during the intervening period, the Worker’s performance did not improve and on 30th June 2020 he was informed that his employment was terminated as he did not pass his probationary period. Correspondence to this effect was issued to the Worker on that date. This correspondence allowed for a right of appeal which the Worker did not exercise within the relevant timeframe. On 21st August 2020, almost two months later, the Worker issued correspondence stating that the dismissal was unfair and seeking payment of the commission he claimed was owed to him.

In summary the Employer stated that they are entitled to set performance standards for their employees. They stated that the specific standards set for the Worker were reasonable, quantifiable and achievable. The Worker was provided with support, direction and feedback regarding these targets and was placed on notice on two separate occasions that a failure to achieve the same would result in his dismissal. The decision to dismiss the Worker was only taken after he was given two warnings in relation to his performance. Finally, the Employer submitted that it was open to the Worker to appeal the dismissal if he felt it was unfair, but that he elected not to do so within the relevant timeframe.  

The present dispute relates to an allegedly unfair probationary dismissal. It is the Worker submission that he worked diligently in seeking to exceed his targets and was dismissed just as he was about to do so. In contesting this allegation, the Employer submitted that the Worker failed to achieve agreed targets.

In the present case, the Worker attended two probationary review meetings to discuss the issues that eventually led to his dismissal. At the end of the first meeting, targets were set to allow the Worker to successfully pass his probation. I note that the targets that were set were clearly defined, involving a set amount of new pipeline opportunities, client visits etc. As to whether these targets were achievable, it is almost impossible to determine at this remove and without internal knowledge of the working of the industry in general and the Employer in particular. Nevertheless, I note that the Worker was provided with an opportunity to provide feedback on the targets. Both times he was asked to do so, he provided no indication that he felt these were unreasonable or unachievable in any way. I note that the Worker failed to raise any objection when these targets were originally set, and three months later when he had been working to achieve the same for some time.

The Worker submitted that he was informed that his role would be safe if he managed to complete one large sale. It is apparent that this one sale would have the effect of exceeding his revenue targets for the year. It is was position of the Worker that this generation of revenue is the primary objective a sales person and that all other targets are ancillary to that purpose. Notwithstanding this submission, it is apparent that the Worker had not finalised this sale by the date of his initial probationary review meeting, the second probationary review meeting or the date on which his employment was terminated. While these delays are not the Worker’s fault, the fact remained that he failed to achieve the targets to which he previously agreed.

I further note that the letter dismissing the Worker expressly stated that the decision was open to appeal. All of the issues raised by the Worker in the course of this hearing could have been considered during such an appeal. In this regard, I note the Worker failed to properly engage with this process. The correspondence issued by him post dismissal was received well in excess to the time limit set by the Employer for the receipt of such correspondence. While such deadlines are somewhat arbitrary, a delay of almost two months is unreasonable in these circumstances.

Having regard to the accumulation of the foregoing points, I find that the manner of the Worker’s dismissal was not unfair. Consequently, I did not recommend in his favour.

I find that the manner of the Worker’s dismissal was not unfair. Consequently, I did not recommend in his favour.

Probation, Dismissal, Targets, Reasonable.