Complainant

Respondent

Parties

Junaid  Altaf

 KDA Accountants

Representatives

  Self-represented

 Respondent Director

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-00041898-002

10/01/2021

The complainant submits that he was unfairly dismissed on 1/12/2020.

The complainant commenced employment on the 06/08/2019 as an accountant and remained there until his dismissal.

His gross monthly salary was €2708. He worked 37.5 hours a week.

He submitted his complaint to the WRC on 10/1/2021.

The respondent and the complainant agreed to the amendment of the respondent’s name. The correct name is contained in this decision.

Witness 1. Evidence of the complainant.

The complainant stated that he was unfairly dismissed because he had asked for a salary increase in March and August 2020. The respondent had advised him that he would look at a salary review after the completion of his probationary period in February 2020 but did nothing about it.

The complainant in presenting his complaint of unfair dismissal dwelt on and countered the respondent’s justification for his dismissal.

Concerning the contention that he did not perform up to the required standard, the level of work expected of him was in excess of what he, a part- qualified accountant, could perform. He is not an auditor. He is not a member of the Association of Chartered Certified Accountants (ACCA), the professional body for accountants. He has not passed his final accountancy exams.

His alleged underperformance included his unfamiliarity with some of the tax regulations processes. For example, he was unfamiliar with   the requirements of Value Based Corporation Tax and when he asked for advice, the director and manager advised him to search on Google as to how it should be done.

Concerning his alleged hostility towards his manager because he referred to her as “she”, he stated that it was a cultural practice in his homeland not to refer to an older woman by her name.

The complainant got no help in accessing documents which impeded his ability to do his job. He explained to the respondent director that Teams access was blocked.

Concerning an alleged backlog, this was because there was insufficient staff.

The alleged departure of some clients from the respondent’s business was not attributable to him. They left because of Corporation Tax and other changes. He is unaware of any written complaints.

At the Progress Review in July, the complainant was told by the senior partner to ignore the backlog so he does not know given that, how it can now be used against him. He gave a status update report each Monday identifying how far along he was on each project.

Payment of college fees; The respondent signed a form in September 2020 in which he committed to pay the college fees. He did not do so.

Dismissal procedure.

The complainant states that he was never given a warning as required by the disciplinary procedure. At the meeting on the 1 December 2020, he was not provided with a chance to challenge the dismissal.

Upon questioning complainant stated that he while he had some inkling about the purpose of the meeting on the 1 December which turned out to be a disciplinary meeting at which he was dismissed, he was not notified in advance. The senior partner telephoned him to come to a meeting. He was not offered the right of representation; he was not provided with a copy of the disciplinary procedure. He was not offered the right of an appeal

Mitigation.

The complainant secured alternative employment on the 1 August 2021 at a salary of €34,000. He produced written documentation after the hearing indicating that between the 1 December 2020 and 1 August 2021, he had submitted his CV to seven agencies and had been in the running for 7 positions.

He stated that in March 2021, one company was interested in employing him but couldn’t manage to get a reference from the respondent who at the same time on 12 March 2021 was asking the complainant to reimburse the respondent or the Accountancy School with the cost of fees charged by the Accountancy School for exams and training. This hampered him in getting this job.

The respondent denies that he was unfairly dismissed. He was dismissed because of persistent underperformance in a role that a person with his experience he should have been able to master.

Witness 2. The respondent director.

The witness advised that the complainant was employed as what is called ‘a semi senior’. He was part- qualified having done some of the professional accountancy exams. He had some years’ experience as a trainee accountant. With five years’ experience, he should have been able to perform the tasks assigned to him. He should have been able to set up a preparatory file for auditing by the auditor

The respondent director and manager reviewed his work in February 2020 and concluded that he required more training and that he needed more assistance in managing his work and required more guidance.

With the advent of Covid -19 in March 2020, staff commenced working from home.

The complainant worked from home from mid- March to May 2020.The company set all staff up on Teams, gave the complainant a work screen and a PC to work from home. Despite this he was having difficulty accessing the server, his productivity was questionable, and staff informed the witness that they spent significant amounts of time sending him documents which he should have been able to retrieve himself having been set up electronically. The upshot of this was that the complainant returned to the office in May 2020. Accountancy services were viewed as an essential service and so, some on- site working was permitted.

The respondent conducted a Work in Progress review on a near monthly basis on particular projects on which the complainant was working.

Staff resumed on site work at the end of June/ early July 2020. This presented an opportunity to look at files. The complainant’s manager identified a number of issues with the complainant’s clients’ files such as the omission of essential details. The complainant’s manager and the senior partner conducted a review of his files in July, gave the review notes to the complainant in July and asked him to address the instructions. The manager understood that all matters would be rectified and if not, an explanation would be given. But these directions were not implemented. The complainant was not meeting the required standards of diligence.

The witness and the manager met the complainant on the 28 August to review his work on ongoing projects. WIP meetings had prior to this date been conducted three to four times a month. Sometimes deadlines for completion of projects had been missed as happened in June and July. Deadlines for submission of material to Revenue were missed. The witness spoke to him and advised him that he could not spend such lengthy periods on one project. In addition, the same mistakes in some files had to be corrected for a third time.

In August, the complainant signified that he was happy to sign up to the improvements identified to him. He asked if the respondent could forget previous errors to which the witness consented.

The respondent told him in July and August 2020 that he needed to improve on spelling and grammar. He told him he needed to improve on his attitude towards clients and staff as the open office allowed the witness and other staff to hear the defensive manner in which he addressed clients and staff.

The respondent stated that they received complaints from clients who stated that the witness did not seem to understand questions which they had put to him and that he was rude to them on occasion. In explaining his errors, he would blame the client or another staff member. The manager had to do a lot of chasing to ensure work was completed. At the end of the August 28 meeting the complainant guaranteed that he would improve. The witness stated that he had to fight to keep clients because of the complaint’s work.

In September 2020 the complainant looked for a salary increase, and the respondent undertook to consider same in the context of performance and productivity. The respondent believed that his performance didn’t warrant a salary increase but also believed that a salary increase could incentivise the complainant to improve his standard of work.

In terms of his salary, the witness stated that he paid the complainant the difference between his net salary and the Temporary Wage Subsidy Scheme for the relevant period.

The period from 1 August to December 2020 saw the complainant making repeated errors.  For example, he had to correct one file on four occasions containing the same mistakes. The witness concluded that as the complainant was still making errors and had not reached the goals agreed in August that he had no choice but to terminate his employment.

The witness stated that the complainant was not committed to the job. His work practice fell off when he was working from home. He was unable to keep on top of small jobs. He misfiled documents, failed to do the required tax returns.

Had the complainant been doing his job properly, there was no way the respondent would have let him go as accountants are hard to find.

The staff complement was eight in both 2019 and 2020. There was no understaffing.

He was aggressive with his manager; he referred to her as “she” and did not use her name.

He had expected a big improvement on the basis of what the complainant had signed up to on the 28 August, but that improvement did not materialise.

The senior partner issued the complainant with a verbal warning in July 2020.

Covid 19 interfered with the respondent’s capacity to address the complainant’s performance at an earlier stage. 

Cross examination.

The complainant asked the witness to accept that it was a cultural practice in his homeland not to refer to an older woman by name. The witness did not accept this.

Witness 3. The complainant’s direct manager.

The witness stated that she regularly informed the complainant of clients’ concerns about his slowness in completing a job for them.

The witness stated that that contrary to what the complainant asserts, she never told him to “google” an answer, she always answered his questions and explained matters to him.

One client informed her that she had left because of the complainant’s rudeness towards her.

The Work in Progress reviews were used for all staff. An annual review was conducted on each staff member.

The respondent asks that I reject the complaint.

Relevant Law.

Section 6(1) of the Unfair Dismissals Act, 1977 states 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 “.

Section 6(4) of the Act indicates what type of substantial grounds justify a dismissal and states

“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”.

Grounds for dismissal.

The grounds cited by the respondent were the continued underperformance of the complainant and his failure to fulfil a commitment to follow an agreed set of instructions dated the 16 September 2020 as to how to improve. The complainant countered by stating that it was his request for a salary increase which led to his dismissal. He refutes the assertion that his standard of work was not up to scratch. The records of the many review meetings at which he attended disclose no disagreement with any of the matters identified to him as warranting improvement. He did not state they were unnecessary but did refer to staffing shortages. To the respondent’s point that he sometimes had to struggle to hold clients because of the complainant’s interactions with them, the complainant stated that clients who had left had not left because of their engagement with him, but because of corporation tax rules.

I do not find any basis to conclude that the complainant was dismissed because he had asked for a salary increase as the respondent’s concerns about the complainant’s performance surfaced well before then. Nothing in his contract entitled him to a salary increase, and in fact he received a salary increase of €3000 in September.  I accept that the issue of a salary increase was a discussion point and was not guaranteed. The respondent stated that he was loathe to dismiss him as there was a severe shortage of available accountancy staff.

The evidence demonstrates that the complainant was on notice of what his employer viewed to be his shortcomings and had received directions as to how to improve on his performance. I find that the complainant was advised in July and August 2020 of the need to close files more quickly, to follow up on what he had been assigned to do without the need for constant reminders, to use his initiative in identifying what had to be done, to follow up with clients on their queries, to issue bills to clients in a timelier manner. Following the annual review on 28 August, the respondent notified the complainant of the need to improve on spelling and grammar in documents, to improve his awareness of clients’ files, improve communications with staff and clients, improve time management, develop a study plan aimed at passing the accountancy exams as continued failure in the exams would impact on his position with the respondent. The complainant acknowledged the deficits in his performance by way of committing to the specific instructions and goals set out at the review on the 28 August.

The complainant was invited to a meeting on the 1 December 2020 where the set of instructions delivered to him on 16 September and agreed at the 28 August review were put to him and examined for compliance. The respondent senior partner concluded that there was little if any improvement in the directions given to him. He was dismissed at this meeting.

Procedures used in the dismissal of the complainant.

Relevant Law.

Section 6 of the Act of 1977, as amended, sets out the obligations facing an employer in dismissing an employee. Sub Section 7 provides:

“7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so—

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14 (1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7 (2) of this Act”.

I am satisfied on the basis of the evidence that the respondent had a reasonable belief in the employee’s performance shortcomings. However, the treatment of underperformance is governed by the respondent’s Disciplinary Rules and Procedure which is incorporated into the complainant’s contract of employment. This procedure offers a graduated process which allows for improvement over a much more extensive period (fifteen months as opposed to the 4 months offered to the complainant). At its height, it allows the respondent to issue a final written warning at any stage of the procedure where the seriousness of the problem facing the respondent so dictates. This procedure prescribes that a warning or warnings should issue, alerting the complainant to the possible consequences if his performance continues to fall short of the required standard within a specified period. This did not happen.  While the performance review reports set out agreed goals which the complainant should achieve, these reports did not alert the complainant to the possible consequences if these goals were not met. The complainant’s right to be accompanied by a colleague was disregarded.

The performance issues did not absolve the respondent from the obligation to comply with their own procedures. They dispensed with their own disciplinary procedures, opting, instead, for an ad-hoc performance review process. The ad hoc performance review process failed to disclose the procedure to be followed or the consequences for continued underperformance. The respondent moved from a performance review to dismissal in 4 months on 1 December based on the complainant ’s performance during the period 28 August to 1 December 2020. The fact that his performance issues were addressed through a review process as opposed to a disciplinary procedure – which was the procedure identified for addressing performance issues- does not mean that they are exempt from the requirement to comply with the principles of natural justice. The reviews of July and August were devoid of any warnings in the sense that the review document does not alert the complainant to the consequences of failing to improve.

The dismissal meeting of 1 December was entirely devoid of fairness. The complainant was not advised in advance of the purpose of the meeting, nor of the probable decision to dismiss him, nor of the right to be represented. The respondent ignored its own procedures.

It failed to comply with the requirements set out in S.I 146/2000.

The letter of dismissal of 1 December which issued on the same day as the meeting at which he was dismissed offers no right of appeal as provided for in the respondent's disciplinary procedure.

The process used to dismiss the complaint being devoid of the elements of natural justice, I must find that this complaint is well founded. I find that the complainant was unfairly dismissed.

Redress

The complainant secured alternative employment on the 1 August 2021 at a salary of €34,00 p.a.

His loss is €18,956.

I consider compensation to be the appropriate form of redress.

 Section 7(2) (c)of the Act of 1977, as amended, requires that I consider the efforts made by the complainant to mitigate his loss. The complainant submitted no written evidence at the hearing of efforts to mitigate his loss. Evidence submitted post the hearing demonstrates that between the 1 December 2020 and 1 August 2021 he had submitted his CV to six agencies and had been in the running for 7 positions. He declined one of the positions offered to him because it was not a permanent position. The respondent’s request to him concerning the reimbursement of training fees was in keeping with his contract and was not pursued by the respondent

The extent of the complainant’s obligations to mitigate his loss arose in the   Labour Court determination of Philip Smyth and Mark Leddy, UDD1974. The Labour Court in regard to an employee’s effort to mitigate loss stated,

“The Court expects to see evidence that employees who are dismissed spend a significant portion of each normal working day while they are out of work, engaged actively in the pursuit of alternative employment. In the instant case no such evidence was produced, and the Court has no alternative but to conclude that insufficient effort was made to mitigate the losses incurred as a result of the unfair dismissal. In accordance with the requirements of Section 7 (2) of the Act this must be reflected in the compensation to be awarded”.

The evidence presented but the complainant does not indicate that the complaint spent sufficient time in the exercise of seeking alternative employment.

I decide that the respondent should pay the sum of €7000 to the complainant which I consider to be just and equitable having regard to all the circumstances.

I find this complaint to be well founded. I require the respondent to pay the sum of €7000 in compensation to the complainant.

Absence of fair procedures.