Complainant

Respondent

Parties

Barry  Ring

 LCC Power Ltd.

Complainant

Respondent

Representatives

Denis A. Linehan & Company

Millar McCall Wylie. Ms. Emma McIlveen, B.L.

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-00041921-001

11/01/2021

The complainant submits that he was unfairly dismissed from his position as a corporate sales executive on 6/1/2021.

He was employed by the respondent from 25 November 2019 until 6 January 2021.

His gross monthly salary was €2200.

He submitted his complaint to the WRC on the 11/1/2021.

Submissions were received on behalf of the complainant and on behalf of the respondent.

After the hearing, the complainant furnished evidence of efforts to mitigate loss, which are not relevant to the decision. The respondent submitted a copy of their capability procedures.

Preliminary point.

The respondent advised that the correct name of the company was LCC Power Limited and not LCC Group Ltd as stated on the complaint form. The respondent agreed to the complainant’s representative’s request to correct the title. This reflected in the decision.

Witness 1. Evidence of complainant given under affirmation.

The complainant commenced employment as a corporate sales executive with the respondent, an energy provider, in November 2019, selling electricity contracts to customers. He received a few hours of training after commencing employment.

He believed that he was performing satisfactorily in his role. He had monitoring meetings in December 2019, January and February 2020. No sales targets were identified to him in the first few months of employment. He was unaware of any dissatisfaction on the respondent’s part until September 2020.

The Regional Sales Manager mentioned targets to the complainant at a meeting in January 2020.

Despite being on furlough from March – August 2020, he did secure a contract during this period. Concerning his alleged inability to secure contracts for the respondent, he received insufficient recognition for the influence which he did wield in getting contracts. Another employee and not the complainant was tasked with finalising a contract at the direction of the Regional Manager, yet it was the complainant who had introduced the customer with whom he had worked for twenty-four years to the other employee.

Meeting of 16 September 2020.

The complainant was not advised in advance of the purpose of the meeting. The Regional Sales Manager, his line manager, told him that his sales figures were not good and that he was there to dismiss the complainant. The complainant asked for more time to prove himself. He did undertake to do his best to meet targets of 20 sales a month.  He told the complainant that he knew that he was not passing company information to another employee and so decided to give the complainant another chance. As an indicator of how slow things were, the complainant stated that only one of the 5 colleagues in his office secured a bonus in that year. He was advised that if he did not meet the target of 20 sales a month, his employment would be terminated.

He got two sales in September 2020. He had a fall on a prospective customer’s premises and injured his knee in August 2020. He was out of work for a week and was unpaid. A solicitor wrote on his behalf to the customer on 3 September. The respondent phoned him about the letter enquiring if he intended to sue the potential customer. It was only after that point that the respondent expressed unhappiness about his sales.

Delivery of alleged incorrect information to customers.

He followed company information. A customer, H, decided to get out of his contract because the rates charged by the respondent were too high. It had nothing to do with information given to him by the complainant.

Mitigation.

The complainant applied for several positions. Covid 19, reduced the number of available jobs.

He didn’t apply for a job in hospitality as bars were closed during Covid. He was offered a position by another energy provider in early June 2021, but he turned it down as he was more interested in commercial sales and not domestic sales which were commission- based.

He confirmed that he had not worked for nor received any income from a named insurance company

Cross examination of witness.

He accepts that his sales figures were lower than colleagues. He was aware of a target of 20 sales a month but stated that not all his colleagues reached that figure. He confirmed that he was made aware at the meeting of the 16 September of the need to improve sales and of the consequences of not securing improved sales.

Meeting of 6 January 2021.

He accepted that at that meeting date he did not mention the possible legal action against a customer as being a significant reason for his dismissal. He confirmed that he did not argue for his retention or the right to appeal the decision as a decision had been made.

He confirmed that he had made administrative errors like all his colleagues.

Summing up

The complainant’s solicitor referred to the fact that competence was the declared issue and yet he received the same sanction as would be meted out were it a case of gross misconduct.

After the meeting in September 2020, sales improved. It was unreasonable to dismiss him in January.

Outside factors such as the prospect of a claim against a customer could have influenced the decision to dismiss,

The issues cited as grounds to dismiss him, the unravelling of contracts with a butcher’s company, a Hotel and E stores were not known to the company or put to him at the time of his dismissal. This compromises the credibility of the respondent

The complainant undertook to submit details of the offer of a position with an energy provider in June 2021.

The respondent states that the dismissal was based on Section 6(4) of the Unfair Dismissals Acts 1977-2015, (the Acts). It states

“…………. the dismissal of an employee shall be deemed for the purposes of the Act, not to be an unfair dismissal if it results wholly or mainly from one 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….”

The complainant was dismissed on capability grounds.

Witness 2. The Regional Sales Manager gave evidence under affirmation.

The complainant was employed on a probationary contract, initially for six months and then, if necessary, for an extended period not exceeding a year.

The complainant from the beginning failed to meet the standards and targets expected of his role.

A review meeting occurred with the complainant and the witness on 16 September and the witness advised the complainant that he would have to pick things up and improve.

Regarding the complainant’s statement that this meeting was concerned with a colleague, Mr. X, it is correct that Mr X was discussed, but not in the context of a performance review which was the primary focus of the meeting.

The witness advised that the complainant was monitored and had ongoing performance reviews from November 2019 to March 2020. The benchmark for monitoring employees is the number of meters sold. The monthly target is 20 meters. The complainant sold 7 meters in February 2020. The complainant never reached the monthly target of 20 meters during the period November 2019 – March 2020 after which Covid -19 mandated closures kicked in. The witness stated that he did not have notes from these  monitoring sessions but emails were sent to the complainant. The complainant relied, mostly, on selling to friends and family. He was told to develop a wider net than family and friends to secure sales. He needed to cold call more potential customers.

The witness pointed to a complaint from a customer, 1. They had to return that customer to his original energy supplier as the complainant had failed to adequately explain the sales process and the need to be free from contractual obligations to other parties. They incurred a loss. The witness referred to a complaint received from a customer, 2, on 30 November 2021 concerning the poor advice received from the complainant. Price structure was not explained to another customer, 3, which led to him being overcharged.

The witness pointed to the spread sheet of sales which demonstrated that the complainant’s sales were consistently lower than that of his colleagues.  He never reached the targets in any month. November 2020 was an exception, but that was due to a money from a sale which he improperly executed, and that customer had to be returned to his previous supplier with a loss to the company.  His continued employment was unsustainable.

He gave incorrect meter point reference numbers; in this way he complicated sales. His administrative skills were poor. Also, he was slow to answer calls as he lacked confidence.

Meeting of 16 September 2020.

The witness’s intention had been to dismiss him on the 16 September, but he agreed to the complainant’s request for more time to prove himself. He understood that he was not meeting targets and the complainant did not challenge the witness’s assessment as he knew sales were down.

He accepted that with Covid 19, 2020 was a difficult year for sales.

The witness addressed the performance review which he conducted with the complainant on the 6/1/2021. It was delayed as he was on furlough from month to month and they could not evaluate him during that time as he was not working.

The adjudicator advised that she would have to address the issue of the probationary period.

Cross Examination

Meeting of 16 September 2020.

The witness accepts that there is no minute of this meeting. He did not record the performance issues put to the complainant on the 16 September because his understanding was that this was not necessary during the probationary period. The witness confirmed that he did not specify the time frame within which an improvement was required. While he did discuss the complainant’s engagement with a former employee at this meeting, the main reason for the meeting was the complainant’s performance issues. The witness confirmed that the meeting on the 16 September ended when the complainant informed the witness that he had given no company information to a former employee.

The witness stated that it was agreed that his probationary period would be extended for an indefinite period.

The witness confirmed that the complainant got a bonus in September for a contract for a hotel but that unravelled later due to that customer purchasing a contract based on incorrect information given to them by the complainant.

He discussed administrative matters with the complainant in October 2020; he did not write to him.

He confirmed that in November 2020 the complainant had 6-11 sales. He came second in revenue, but a customer was incorrectly advised in the middle of discussions on a high yielding contract and that contract which had inflated his sales had to be undone with a loss to the company. The witness agreed that he congratulated the complainant in November 2020. He did so because the initially promising contract had just come in, and he wanted to keep the complainant motivated. But that contract came undone, that customer was lost to the company and was returned to his previous supplier at a cost to the company.

In September 2020, a customer contacted the respondent to know if they were going to take a legal action against his company due to a fall sustained by the complainant. He had a discussion with the complainant about the fall. The customer told the witness that the complainant told him that he was going to sue him. He cautioned the complainant against making any such statements to a customer but accepted that it was ultimately the complainant’s decision.

Meeting on 6 January 2021.

The witness asked the complainant to meet him about his performance. He gave no advance notice to the complainant of the purpose of the meeting. He told the complainant that there had been no improvement in his performance and that he would not be giving him a full-time contract. He was nowhere near anybody else in terms of sales.

The witness confirmed that administrative errors were a factor in leading the respondent towards dismissing the complainant. Contrary to what the complainant asserts, the respondent did inform him of these administrative errors. The witness confirmed that he did not hear of the error with the butcher’s firm until 27/12/21. The witness confirmed that he did not specifically refer to project EH on 6/1/2021 but did advise the complainant that his sales and administrative competencies were not up to scratch.

The witness confirmed that the complainant was not on notice that the probationary period was to be extended. He accepts that the letter of 31 March makes no reference to this.

The respondent’s barrister, in conclusion, disputed that the dismissal was unfair and maintains that it was based on substantial grounds. The decision to dismiss fell within the bounds of what a reasonable employer in his position would do which is the standard within which a complaint of unfair dismissal must be adjudged 

In addition, the process employed by the respondent was fair. The respondent put the complainant on notice that his sales figures were an issue on 16 September 2020. Instead of dismissing him on that date as originally intended, the respondent agreed to the complainant’s request to give him more time to improve on his sales.

His sales peaked in October and November but slumped again in December.

The respondent relies on the decision of Polkey v AED Dayton Services Ltd, 1987, UKHL 8 which was concerned with a dismissal where that complainant would have been dismissed even if a perfect procedure had been employed. This is the case in the current complaint; a perfect procedure would not have persuaded the respondent that the dismissal was unmerited.

If the adjudicator were to find that he has been unfairly dismissed, which is contested, his compensation should be zero as he failed to mitigate his loss.  No loss should be allowable from the date on as he rejected the offer of employment with an alternative energy provider.

The summary dismissal of the complainant is not contested.

I am obliged to adjudicate on the respondent’s contention that the complainant’s dismissal fell within the scope of section 6 of the Unfair Dismissals Act, 1977 Acts which provides as follows:

 Section 6(1)

“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 can justify a dismissaland states

“…………. the dismissal of an employee shall be deemed for the purposes of the Act, not to be an unfair dismissal if it results wholly or mainly from one 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,

The respondent further contends that the complainant was on an extended probationary period, that the dismissal was merely the termination of the probationary period and was in compliance, therefore, with his contract.

In contrast, the complainant states that he was improving and that he was not adequately credited for some of the sales executed by colleagues but influenced by him.

The respondent’s largely uncontested evidence described failure to meet targets, administrative slip ups, providing incorrect information to the customers or prospective customers which led to the unravelling of these contracts at a later point. The complainant speculated on other reasons for his dismissal; a letter to a customer indicating a possible legal action for a fall and injury sustained; discussion with a former employee of the company, but even if they were influential factors, the complainant was unable to mount any serious challenge to the accuracy of the respondent’s evidence on the capability grounds.

Was the complainant dismissed while serving a probationary period?

Was the complainant employed on a probationary contract and unable, therefore, in the mind of the respondent to rely on their own disciplinary procedures or fair procedures? The section of his contract dealing with the termination of the probationary contract does not address the termination process. The general termination provisions contained in the contract refer to the availability of disciplinary procedures. The section of the disciplinary procedures dealing with monitoring capability was furnished after the hearing. It does not apply to probationary contracts.

The complainant’s contract of employment provided for a six-month probationary period, to run from 25/11/2019 until 24 May 2020, with the proviso that performance issues could see the period extended to an outer period of 12 months, that is the 25 November 2020.

The respondent argues that the furlough period which ran from 31 March to 1 August 2020 automatically extended the probationary period, that the dismissal on the 6 January 2021 fell within the extended twelve-month probationary period, and that the summary dismissal was permissible in such circumstances. That proposition would be valid were it not for the fact that the respondent wrote to the complainant on 31 March 2020 asking him to agree to a wage reduction of 30 %. The letter went on to state that all remaining elements of his contract would remain unchanged. The complainant signed his agreement to these terms. Furthermore, the complainant’s contract dated 29 November 2019, states that its terms may only be revised on the basis of mutual consent. On this basis and this basis alone, I have to find that the terms of the probationary contract remain intact, that is the probationary period concludes after one year and expired on November 4, 2020.This conclusion leads to one outcome; the complainant not being on probation was entitled to fair procedures.

Conduct of the respondent in effecting the dismissal.

Relevant Law.

Section 6(7) of the 1977 Act as amended states

“(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 —

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.

The aforesaid provisions require compliance with the employer’s own procedures and/or alternatively with the requirements of S.1 146/2000. The respondent’s monitoring capability procedure is a graduated process which does not provide for summary dismissal. It provides for warnings and prescribed improvement targets.

 It is accepted that it was a summary dismissal. The complainant was invited to attend a meeting on 6 January 2021, agenda undisclosed, no offer of right to be represented, no indication of the serious purpose of the meeting, no right of appeal against the decision to dismiss. Furthermore, the same person marshalled the case against the complainant, decided to dismiss him and executed the dismissal.

The respondent asked me to accept that  procedural flaws alone could not render a dismissal unfair as regard must be given to all the circumstances, particularly the substantive reason for dismissing, and in this regard cited the decision of Polkey v AED In-services Ltd, 1987 , UK House Of Lords which held that “ the subject matter for the tribunal’s consideration is the employer’s action in treating the reason as a sufficient reason for dismissing the employee “

But the Irish authorities have consistently acknowledged the right to fair procedures. In Frizelle v New Ross Credit Union Ltd, (1997) IEHC 37, a case involving a charge of misconduct, Flood J in setting out the steps which an employer must follow in dismissing an employee included the following:

“Put very simply, principles of natural justice must be unequivocally applied.”

Nothing about the termination of the complainant’s employment indicates compliance with S.I 146/2000.The process was devoid of any form of procedural fairness and offended against the principles of natural justice to which he was entitled.

I find therefore that the complainant was unfairly dismissed

Remedy

The complainant has sought compensation.

 Mitigation.

Section 7(2) (c)of the Act of 1977, as amended, requires that in considering the amount of compensation to be awarded, I must factor in the efforts made by the complainant to mitigate his loss.

The complainant submitted evidence at the hearing of having applied for an indeterminate number of positions.  The complainant confirmed that he had been offered and turned down an offer in customer/field sales at the beginning of June 2021 with another energy provider as he preferred corporate sales. The Labour Court set out the test for proof of efforts to mitigate one’s loss in the decision of Philip Smyth V Mark Leddy, UDD1974 as follows:

“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”.

While it is the case that the pandemic restricted the number of available positions, the complainant has not met the test set out in the decision of Philip Smyth V Mark Leddy.

I do not find that the complainant made sufficient efforts to mitigate his loss, and this must be reflected in the redress to be awarded to the complainant.

His loss is therefore 5 months’ salary from 6 January – early June 2021, the date on which he declined the offer of an alternative position.

 I find this complaint to be well founded.  I decide that the respondent should pay the complainant redress to the sum of €3500, an amount which I consider to be just and equitable having regard to all the circumstances.

I find the complaint to be well founded. I require the respondent to pay the sum of €3500 to the complainant.

Summary dismissal.