FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES: CLADDAGH RESOURCES (REPRESENTED BY DAMIEN TANSEY SOLICITORS) - AND - MICHAEL O'SULLIVAN DIVISION:
SUBJECT: 1.Appeal Of Adjudication Officer Decision No(s) ADJ-00033084 DETERMINATION: This is an appeal by Mr Michael O’Sullivan (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00033084, dated 1 November 2022) under the Unfair Dismissals Act 1977 (‘the Act’). The Adjudication Officer upheld the complaint of unfair dismissal and awarded the Complainant €250.00 in compensation. The Complainant’s Notice of Appeal was received in the Court on 12 December 2022. The Court heard the appeal in Dublin on 9 August 2023 in a hybrid setting whereby both witnesses for Claddagh Resources Limited (‘the Respondent’) gave their evidence remotely via live video link. The witnesses for the Respondent were Mr George McAllister, a Director, and Mr Ryan Casey, Chief Executive Officer. The Complainant had also referred a dispute to the Court under section 20(1) of the Industrial Relations Act 1969 (CD/22/24)on 12 December 2022, in conjunction with the within appeal under the 1977 Act. The s.20(1) referral was in substance identical to his appeal under the 1977 Act and was withdrawn by the Complainant in the course of the hearing on 9 August 2023. He subsequently confirmed in writing that the s.20(1) matter had been withdrawn. The Factual Matrix The Complainant was employed by the Respondent as a Recruitment Executive between 1 April 2018 and 23 March 2021, on which date he was summarily dismissed by letter under the hand of the Respondent’s Executive Chairman, Mr Peter Casey. The Complainant’s base salary was €45,000.00 per annum. His contract of employment also provided for a detailed scheme of commission payments. The Complainant’s target earnings were calculated at six times his annual base salary. The Complainant never achieved the financial targets specified in his contract. Concerns about his performance prompted the Respondent’s management to place the Complainant on a one-month performance improvement plan (‘PIP’) on 18 November 2020. The details of the PIP were outlined by Mr George McAllister in a letter of that date to the Complainant in which he was informed as follows:
However, the Complainant’s performance came under scrutiny again on 18 March 2021 during the course of his annual appraisal meeting which took place via Zoom and at which the following management representatives were in attendance: Mr Peter Casey, Mr Ryan Casey and Mr George McAllister. There is a conflict between the Complainant’s account of what transpired at this meeting and that given by Mr McAllister and Mr Ryan Casey in their evidence to the Court. The Complainant told the Court that he believed that Mr Peter Casey dismissed him in the course of the meeting; the Respondent’s position is that Mr Peter Casey qualified his position before leaving the meeting by saying he would leave the final decision to the Chief Executive, Mr Ryan Casey. It is not necessary for the Court to seek to reconcile the parties’ conflicting evidence in relation to the state of play at the close of the meeting as it is common case that the Complainant received a letter of dismissal from Mr Peter Casey on 23 March 2021 terminating his employment with immediate effect from that date. If the Complainant had been effectively dismissed on 18 March by Mr Peter Casey, there would have been no occasion for the subsequent letter dismissing him on 23 March 2021. On Friday, 19 March 2021, Mr McAllister issued the Complainant with a second PIP which focused on the Complainant’s financial performance and set certain revenue-generating targets that were identical to those that had been specified in his contract of employment. The Complainant took the view that those targets were not achievable, and he refused to sign the PIP. The Complainant also took issue with the commission structure outlined in the document. The PIP document provides, inter alia:
The next event of significance occurred on the following Tuesday, 23 March 2021. At 14.42 (local time) that day, the Complainant wrote the following in an email to a junior female colleague:
It was submitted by the Company that the junior employee immediately brought this email to management’s attention and the matter was investigated by the Complainant’s line manager, Mr JT Sadler. At 12.41 (presumably US time) that day Mr Peter Casey emailed the Complainant to advise him that he was dismissed “effective immediately”. Mr Casey states as follows in his letter:
The Complainant, in short, was not afforded a right to appeal the Respondent's decision to dismiss him summarily. He referred his complaint under the Act to the Workplace Relations Commission on 23 April 2021. Mr George McAllister’s Evidence The witness told the Court that he had worked closely from time to time with the Complainant. He outlined the remuneration structure that applies in the Respondent company, including the commission arrangements that apply to the revenue generated by employees. According to the witness, the Complainant never came close to achieving the financial targets specified in his employment contract. The witness added that the Complainant was nevertheless given a once-off bonus of €1,000.00 in 2019 by way of an incentive and for having managed a very difficult client. The witness said that the Complainant achieved his last placement on behalf of a client company on 17 April 2020 and did not make a revenue-generating placement after that date. This, he said, prompted him to speak to the Complainant on several occasions about his under-performance but this, in his opinion, had fallen on deaf ears. The witness went on to given evidence in relation to the PIP which had been applied to the Complainant in November 2020 and which had resulted in a short-term improvement in the Complainant’s work ethic but not in his financial performance. The witness next told the Court about his involvement in the appraisal meeting that took place on 18 March 2023. He said that the Complainant had made a PowerPoint presentation at that meeting that lacked any substance and did not give any confidence to the Respondent that he would actually generate any revenue for it. The witness told the Court that when informed about the Complainant’s email of 23 March 2021 to the junior female colleague he was shocked. He also said that the female colleague in question had been very upset by the email and resigned her employment with the Respondent some three months later. Under cross-examination, the witness accepted that the PIP that issued to the Complainant on 18 November 2020 included a final written warning. He also accepted that the Complainant had been dismissed by Mr Peter Casey in the course of the annual appraisal meeting of 18 March 2021 but that Mr Casey then said he would leave the final decision to Mr Ryan Casey. According to the witness, the decision by Mr Ryan Casey to offer the Complainant a second PIP did not amount to backtracking on his part but was evidence that he is “a very decent human being”. The witness told the Court that he may have ignored the Complainant’s email of 18 April 2022 in which he sought to initiate an appeal against the decision to dismiss him. When asked by the Court who would have heard the Complainant’s appeal had it proceeded, the witness said that it would have been heard by Mr Peter Casey. Evidence of Mr Ryan Casey This witness’s evidence traversed much of the same ground covered by Mr McAllister, particularly in relation to the Complainant’s poor performance and the Respondent’s efforts to assist him to improve. The witness, however, unlike Mr McAllister, emphatically denied that the Complainant had been dismissed during the appraisal meeting of 18 March 2021. His evidence was that Mr Peter Casey had left the final decision in relation to the Complainant’s employment in his (the witness’s) hands. He told the Court that his decision was to place the Complainant on a second PIP that provided for certain financial targets that were identical to those in his contract of employment. He issued the Complainant with the details of the PIP, he said, on 19 March 2021 – a Friday – and expected the Complainant to return the signed acceptance of the terms of the PIP the following Monday. This didn’t happen as the Complainant had said he didn’t accept the targets were achievable. The witness then gave evidence in relation to his knowledge about the email sent by the Complainant to the junior female colleague on 23 March 2021 and the Complainant’s subsequent dismissal by Mr Peter Casey. He told the Court that the decision to dismiss the Complainant was for the purpose of demonstrating to that employee and to all the Respondent’s staff that the type of behaviour the Complainant had been engaged in would not be tolerated as it had ‘violated’ the Respondent’s culture. He described the Complainant’s email as ‘the final straw’ for the Respondent. He said the Respondent did not want to take the risk that the Complainant would behave in a similar way with other employees. In response to questions from the Court, the witness acknowledged that the actions taken by Mr JT Sadler on 23 March 2021 in response to the Complainant’s email of that date did not include any conversation with the Complainant himself. The Complainant’s Evidence In his direct evidence, the Complainant addressed the issues of loss and mitigation. He told the Court that he had been unemployed for five months after his dismissal by the Respondent. He commenced an eleven-month contract on 16 August 2021 on an annualised salary of €86,000.00. He calculated his loss of earnings arising from his dismissal at approximately €20,000.00, he said. He told the Court that he sent approximately ninety-six emails seeking employment and was called to somewhere between ten and twenty interviews. In cross-examination, it was put to the Complainant that he had, in fact, submitted proof of having sent only thirty-nine emails seeking employment during the entire five-month period that followed his dismissal and that he had not sent the first email until 28 May 2021 and the second almost a whole month later. The Solicitor for the Respondent also put it to the Complainant that he had made only seven applications in June 2021, a further twenty-one in July 2021 and ten additional applications in August 2021. It was also put to the Complainant that the scope of his applications was very narrow in so far as he appears to have limited his applications to the recruitment field. The Complainant said he did not see any point in applying for jobs for which he did not have the skills, experience or aptitude. The Court asked the Complainant why he chose to send the email of 23 March 2023 to one junior female colleague only. He replied that he had thought that she was the least resilient of his colleagues and the most likely of them to reveal something that would confirm his suspicions that she and others had been talking about him to members of the management team. The Respondent’s Closing Submission The Solicitor for the Respondent submitted that the Complainant’s ongoing poor performance -which he failed to correct notwithstanding the two PIPs that the Respondent sought to put in place – coupled with the egregious email he had sent to his junior female colleague on 23 March 2021, left the Respondent with no option but to dismiss the Complainant. In all the circumstances – he further submitted – that decision was both reasonable and well-founded. He said that the Respondent was very conscious of the duty of care it owed to all its staff and did not want to take the risk that the Complainant would behave in an equally egregious manner towards other employees. The Representative told the Court that it was the Respondent’s view that the Complainant appears to have accepted no responsibility for his actions or his consistent under-performance and had not made sufficient efforts to mitigate his loss. The Complainant’s Closing Submission The Complainant submitted that the Respondent’s focus on the email of 23 March 2021 is a smokescreen to distract attention away from its failure to follow fair procedures such as the inclusion of a final written warning in the November 2020 PIP, his summary dismissal by Mr Peter Casey at the appraisal meeting on 18 March 2021, Mr Ryan Casey’s attempt to back-peddle from that by offering him a PIP with unachievable financial targets and the Respondent’s refusal to allow him the opportunity to appeal his dismissal. Finally, he submitted that his efforts to mitigate his loss had been reasonable as he had confined himself to applying for jobs for which he considered himself a good fit. Discussion and Decision The Court has taken note of the disciplinary procedures, in so far as there are any, set out in the Respondent’s Employee Handbook and finds them to be wholly inadequate having regard to the requirements of SI 146 of 2000. In any event, it does not appear to the Court that the Respondent made any attempt to comply with even its own written procedures when dealing with the Complainant. In the Court’s view, a PIP is intended to be a corrective measure to allow an underperforming employee a reasonable opportunity, along with appropriate assistance, to reach an objectively acceptable level of performance. For that reason, the inclusion of a final written warning in a PIP – as was the case here – is inconsistent with the nature and purpose of a PIP. It is also apparent from a consideration of the evidence before the Court that Mr Peter Casey made it be known in no uncertain terms on 18 March 2021, having listened to the presentation made by the Complainant as part of his annual appraisal, that he did not see the Complainant having a future with the Respondent. It is equally clear that he delegated the final decision as to how the relationship between the Complainant and the Respondent would be managed to Mr Ryan Casey on that occasion. The latter chose to put in place a second PIP with clear financial targets which he sought to justify on the basis that they mirrored those in the Complainant’s contract of employment. The reality is, however, as was accepted at the hearing, the Complainant had not managed to come anywhere near reaching those targets in nearly three years of employment. It was neither reasonable nor objectively fair of Mr Ryan Casey to expect that the Complainant could reach the financial targets included in the second PIP in a mere three months, particularly having regard to the long lead times that apply to the executive recruitment process. During the course of the hearing of the within appeal, the Complainant acknowledged that he should not have sent the email of 23 March 2021 and that its tone and contents were inappropriate. However, there was no credible evidence before the Court that the Respondent engaged in a full and fair investigation of the circumstances surrounding the sending of that email before it made it a determination that the Complainant’s behaviour justified immediate summary dismissal. Finally, it is beyond dispute that Mr Peter Casey flatly refused to permit the Complaint to appeal the latter’s decision to dismiss him summarily. For all of the above reasons, the Court finds that the Complainant’s dismissal was unfair and contrary to the requirements of the Act. Remedy It is apparent to the Court that the relationship between the Parties has irretrievably broken down and is utterly devoid of trust and confidence. For that reason, neither re-instatement nor re-engagement would be appropriate as a remedy. Compensation for the Complainant’s financial loss arising from his dismissal, having regard to the extent to which the Complainant contributed to his dismissal and his efforts to mitigate his loss is the only remedy open to the Court having determined that the Complainant was unfairly dismissed. The Court finds that the Complainant contributed significantly to his dismissal by virtue of his pattern of sustained underperformance and most especially by sending a most inappropriate and threatening email to his junior female colleague on 23 March 2021. The Complainant was unemployed for some five months following his dismissal. There is no evidence that he took any meaningful steps to mitigate his loss for the first three months following 23 March 2021 as he can demonstrate only that he made two job applications in that entire period. For the foregoing reasons, the Court finds that the Complainant’s reckonable loss relates to the period of mid-June to mid-August 2021 when does appear to have been making serious efforts to obtain alternative employment and succeeded in doing so. However, as the Court also finds that the Complainant contributed at least fifty per cent to his own dismissal, it measures his loss at €3,000.00, being marginally less than the equivalent of one month’s gross salary and awards him compensation in that amount. The Court so determines.
NOTE Enquiries concerning this Determination should be addressed to Sinead O'Connor, Court Secretary. |
