Complainant

Respondent

Parties

Michael O'Sullivan

Claddagh Resources

Representatives

Claire Bruton B.L. instructed by Damien Tansey Solicitors

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-00043722-001

23/04/2021

The respondent disputes the claim of unfair dismissal and says that the complainant’s appointment was terminated on the basis of breach of policy, misconduct, and performance issues.

The complainant commenced his employment on April 1st, 2018, as a recruitment consultant. During his employment there was significant underperformance and in particular his failure to place any candidates with clients.

This was a basic issue for the respondent. The complainant did not achieve any of his goals and did not generate performance-related commission payments in the latter stages of this employment.

The respondent engaged with him on several occasions regarding his poor performance and provided him with constructive assistance to bring about improvement.

However, this did not happen. He only had a couple of quarters during his employment when he broke even, and in the others, there were significant losses because of his failure to meet the targets set for him.

Details of the performance was submitted in evidence. He was placed on a performance improvement plan in November 2020 and while this resulted in a small improvement, he failed to meet even the basic terms of the plan and there was no revenue generating success during this period.

On March 18th, 2021, during his annual performance review it was made clear that there were genuine concerns regarding his performance as he had still generated new revenue since April 2020.

Fresh revenue goals were set, and it was made clear that it was likely his employment would terminate during the following quarter. He failed to meet these performance targets.

It was effectively agreed with the complainant that he would continue to work for the next ninety days and would seek alternative employment during this period so that his employment would terminate during the ninety-day period or at the very latest at the end of it.

On March 23rd, 2021, the complainant wrote to a colleague and accused her of speaking negatively about him and alleged that her actions provided legal grounds for her to be fired on the basis of advice he had received from a solicitor.

The recipient of the letter was extremely upset by it and made it clear to her employer that she regarded the email as untrue and bullying in nature. 

As a result of this and the constant consistent performance of the complainant, the decision was made to terminate his employment and he was notified of this by email on March 23rd, 2021.

A Director of the respondent company George McAllister gave evidence on affirmation.

The witness said that while the complainant worked from home, he would have had daily contact with him and on one occasion brought him in for a face-to-face conversation. He found the complainant difficult to deal with as he had his own way of doing things.

The complainant was supposed to submit ten possible candidates for placement every week, but he did not do so and on November 18th was told that his performance was inadequate in that he was not generating enough candidates.

He was placed on a Performance Improvement Plan (PIP), but this was allowed to lapse.

Following a second PIP he was given ninety days to improve his performance or to find another job and reminded of his revenue targets.

The complainant cross examined the witness and confirmed that while the final warning had been issued on November 18th he was not dismissed until March 24th.

Ryan Casey, CEO of the respondent also gave evidence on affirmation. He confirmed that he had managed the complainant since he was recruited and his role was that of a senior recruiter and his job was to find and manage candidates, and clients.

However, he had to be removed from dealing with one very important client due to the unacceptable and excessive pressure he was applying to the client. The quality of clients submitted by the complainant was generally poor.

He was advised in writing in the course of the PIP of the need for improvement in his placements and for daily follow ups. He confirmed that the first placement had been allowed to lapse for various reasons but also due to illness.

The witness also accepted that Peter Casey, another Director had terminated the complainant’s employment.

He also said that in the conversation with him about his performance, the complainant had said that the company could not lawfully terminate his employment and also that the ninety-day grace period was not sufficient.

The email sent by the complainant to his colleague threatening her was the final straw and led to the employee in question resigning her position in the company shortly afterwards.

The complainant cross examined the witness and asked why others had not been put on a PIP. The witness responded that poor revenue was not the only issue, the complainant’s work was poor and there was no prospect of the situation improving.

In his submission the complainant said that he was ‘growing out’ the Irish team and made two hires for team Ireland. He trained them, etc. but when they stopped working for him, he was told they were saying negative things and trying to get him in trouble, things like that.

At that stage, things were starting to change.

He had been managing an account for TCS Ireland and had a very good relationship with the senior manager. He was removed off that account by email and thought that he was going to be dismissed.

He was put on a PIP and exceeded what they asked. He heard nothing for several months and was then dismissed during an appraisal by. Peter Casey, the owner of the company.

He objected saying that he could not be dismissed like that but was told the decision was final.

A second PIP was commenced which was completely different than the first PIP and contained unrealistic achievements. They created a new structure especially for this PIP, such that he would only get credit for 25% of any deals and this did not apply to anyone else in the company.

They wanted him to sign that that would give him credit for 25% of each one which was ridiculous, and he did not sign it, at which point he was dismissed.

He said that the real reason for the termination was the negative comments about him by colleagues. 

The day after being the dismissal he was sent another warning about revenue with an unrealistic target.  He had a phone call with the CEO and told him the revenue target was beyond what was realistically achievable by him or anyone else in the company and that he would not sign it.

The next day he sent an email to a co-worker as others in the company told me she had been speaking negative about him and told her that speaking negatively about to try to get him fired was not correct, that he expected an apology and that she would stop doing it.

On foot of this he got a message saying his employment was terminated. He sought to appeal but this as denied.

The dismissal has had a big impact on his morale and self-esteem, and he was out of work for six months afterwards. He was out of work for six months and got a jobaround August of 2021.Throughout that time, he wassearchingforwork

The complainant (who was unrepresented) gave brief evidence on oath, most of the key facts in his submission having been already established in evidence and not disputed.

He said that in early 2021 he felt the respondent wanted him ‘gone’ following a dispute with another employee.

In cross examination by counsel for the respondent he confirmed that his colleague (Alberto) had stopped speaking to him and had also refused to work with him.

He also confirmed the assertions about his poor performance in placing candidates as alleged by the respondent although he attributed some of this to Covid.

He was questioned in cross examination about the email he sent to his colleague on March 23rd.

This read as follows.

‘I have spoken to [my] solicitor about this and he has confirmed that what you were doing/have done is legal grounds for you to be fired and I have a case for defamation of character/slander against you. I expect an apology from you, and you will see is what you have been doing’

He confirmed that this had been sent and also that he had not in fact spoken to a solicitor specifically about this matter.

It is not difficult to discern the two strands in the events described above.

The first relates to the complainant’s performance.

There is not too much room to doubt the respondent’s case in that regard and despite the complainant’s various attempts to do so they were completely unconvincing. He showed a remarkable lack of insight into his poor performance.

He was placed on a first PIP in November 2020 and while the respondent failed to see this through to a conclusion due to the illness of one of its key managers, the complainant could not have been in any doubt that his performance was inadequate and under scrutiny.

I consider this fact to be more important than the failure to conclude the PIP. It is not a formal process or at least the failure to conclude it does not negate its significance as an indicator of the complainant’s performance.

This is clear from letter setting it up sent and to the complainant on November 18th, 2020, which leaves little room for doubt as to the seriousness of the complainant’s position and I have no doubt that he understood the gravity of his situation, or ought to have.

The parties met on March 18th, 2021, for the complainant’s performance review and specifically in the context of his continuing under-performance, in particular that he had generated no revenue since April 17th, 2020, and that, in the respondent’s opinion, this was unlikely to improve.

The complainant describes this as a second PIP, and whether this is strictly accurate or not he was set revised targets (which he describes as unrealistic) and some adjustments to his commission were proposed.

He also says that he was ‘fired on the spot’ in the course of this meeting, but this appears to relate to the proposal that he should look for another job and was being given ninety days to find one. While I find that this was not a termination, it has, nonetheless the appearance of an ultimatum.

Both of these positions are capable of being reconciled if one views the ninety-day period as one of extended notice of the termination of his employment. For example, he was sent further instructions the day after this meeting about revenue targets which again he says were unrealistic, but it does not support his assertion that he was fired on the spot’.

It also left open the possibility that improved performance would render the proposed termination of his employment unnecessary, and of course it would have required a fair process to be applied at the point of termination.

Things did not get to that point, and this brings us to the second strand.

Several days later the complainant wrote to a female colleague, the terms of which are above and repeated here for the convenience of the reader. He did so because, he said he had been told she had been ‘speaking negatively’ about him.

The complainant stated that he had.

‘Spoken to my solicitor about this and he has confirmed that what you were doing/have done is legal grounds for you to be fired and I have a case for defamation of character/slander against you. I expect an apology from you, and you will see is what you have been doing.

I expect an apology from you and that you will cease what you have been doing’.

When this came to the attention of the respondent, the Chairman wrote to the complainant, drawing attention to the various performance issues but, saying as follows.

‘We agreed last week that we would again give you one last quarter to show that you were committed to trying to turn around your poor performance. Instead of accepting the challenge, you now seem determined to disrupt the Claddagh business by making accusations against employees and threatening to take legal action against them and demanding an apology. This action was clearly designed to be disruptive. It goes without saying that I cannot have a Claddagh employee threatening to sue another employee.

Effective immediately your employment with Claddagh is terminated.’

So, it is quite clear that this is the action which terminated the complainant’s employment and was a direct response to his letter to his colleague.

The respondent made a legal submission to the effect that the dismissal for performance issues does not attract the requirement to apply principles of natural justice (based on the Court of Appeal decision in O’Donovan v Over-Sea Technology Ltd [2021] IECA 37).

However, I find that the decision to terminate arose directly from the email, and not from the performance issues which, however well-founded the respondent’s concerns may have been (and I accept that they were well-founded) they were in the background and had been the subject of an entirely separate strategy put to the complainant only a few days earlier.

Equally clearly, the decision to terminate on these grounds was peremptory and taken without even the slightest nod in the direction of a fair process and was an unfair dismissal.

In respect of a remedy for the complainant there are a number of issues.

It is well established that an Adjudicator may consider the contribution by a complainant to the dismissal and in the circumstances of this case, i.e., the email to his co-worker on March 23rd I feel that I am obliged to.

That letter to his co-worker followed the ultimatum given to the complainant on March 18th and given his continuing belief that his issues with the respondent were attributable to adverse comment about him, and the contents of his email it is likely that the two are related.

However, if he had any more specific evidence of what he had alleged the recipient of the email had done, he did not share that with the hearing.

The respondent’s letter to him following his email stated that she had never spoken negatively to senior management about the complainant, apart from requesting that she no longer work with him.

That is not to say that any such evidence would provide mitigation for the tone and content of the letter, but it is necessary to refer to that fact that even such mitigation as it might offer does not exist as it is a very significant consideration in my award below.

That tone and content was unacceptably threatening in suggesting that her alleged conduct (but for which no evidence exists) represented grounds for her to be dismissed, and that it grounded a case for defamation. The intent to intimidate is quite clear.

What makes the situation a good deal more reprehensible, if that is possible, is that he said in the email that he had ‘spoken to my solicitor about this and he has confirmed that what you have been doing is legal grounds for you to be fired’ etc.

In response to questioning he told the hearing under oath that he had not spoken to a solicitor in these specific terms, and he had no such legal advice, and indeed it is highly unlikely that had he spoken to a solicitor he would have been given such advice.

It is relevant to note that the recipient of the email resigned from the respondent’s employment shortly afterwards.

While none of these facts relieve the obligation on the respondent, or any employer to terminate the employment in accordance with the established norms of fair procedure it is not hard to understand what prompted it to act under such provocation and with a certain lack of restraint, and while such reaction will not excuse an unfair dismissal it may impact on the remedy.

The letter sent by the complainant was entirely unjustified and I take the circumstances of this deplorable conduct and his contribution to the dismissal into account in making my award of compensation.

In assessing reasonable compensation the Unfair Dismissals Act provides at section 7 (2) as follows.

(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the lossaforesaid. 

(d ) 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 subsection (1) of Section 14 this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,

(e ) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, and

(f ) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal. 

In respect of general mitigation, the complainant submitted details of job applications but in a format that was very difficult to evaluate, a large quantity of emails without any index or summary. While they seem to be limited to recruitment companies,  and if this were the only issue, I would not regard it as persuasive evidence that he had met the test to use all his endeavours to mitigate his loss.

However, I am empowered by the Unfair Dismissal Acts in Section 7 to award such redress as I consider ‘appropriate having regard to all the circumstances’.

Taking the provisions of Section 7 (2) (f) above into account I regard the specific conduct of the complainant as being such that it is at the extreme end of the spectrum of gravity and his contribution to the termination of his employment is at the highest level imaginable.

He made an outrageous and unfounded threat against a female co-worker for which he did not offer any evidence, his purpose was to intimidate her, he lied about it being based on legal advice, and it resulted in her resignation from her employment.

This conduct is significantly reflected in my award of compensation, as is, to a lesser extent, his failure to mitigate his losses.

I uphold complaint CA-00043722-001 and find that the complainant’s dismissal was unfair and having regard to his contribution to the dismissal and his failure to mitigate his losses I award him compensation in the amount of €250.00.

Unfair Dismissal, contribution to termination, failure to mitigate loss.