Worker

Employer

Anonymised Parties

A Worker

A Financial Services Company

Representatives

  In Person

Barry Crushell , Solicitors of Crushell & Co Solicitors

Act

Dispute Reference No.

Date of Receipt

Section 13 of the Industrial Relations Act 1969

CA-00044888-001

2nd July 2021

This dispute is that the worker was dismissed on 5 January 2021 without fair procedures or warnings.

The Respondent does not wish to engage with this complaint, it being an IR complaint.

The Worker contends that he started work for the Employer as a financial sales consultant on 7 August 2020 and was dismissed on 5 January 2021.

The Worker contends that he should have been warned of the possibility that he might be dismissed before he was. He contends that the real reason he was dismissed was because of a dispute he had with the Managing Director about the necessity of having an in-person meeting in December 2020 in an unventilated room when the Covid numbers were on the rise nationally. A separate Penalisation Complaint issued in respect of this.

The Worker denies that the dismissal was anything about sales, because in December he nearly reached the monthly target. He contends that the reason was because he was being punished by the Employer for raising legitimate health and safety concerns if not on his own behalf, then on behalf of his fellow workers.

The Worker contends that the failure to advise him in November or December that he might face dismissal - given that no complaint about his conduct was received from any client and given that his sales figures were very nearly target complaint – renders the decision to dismiss him in January to be unfair and procedurally flawed. All the evidence about poor conduct was never discussed with him in a reprimanding way and if any of these issues (either sales or conduct) had been a problem why were they not discussed with in during the December end of year meeting?

The Worker accepts that having been dismissed on 5 January he was given a right of appeal but considered an appeal to be a pointless exercise. He tried to reason with the Managing Director at the time of the dismissal, but he had his mind made up.  

The Employer contends that they do not wish to engage with this industrial relations dispute.

However, in terms of the facts alleged by the Worker in this dispute the Employer gave evidence as follows:

The Worker was made aware of his monthly sales target of €8000 at the start of his employment on 7 August 2020. The Worker accepted this target.

At a 3 month review meeting at the end of October 2020 the Employer informed the Worker that his probation period would be extended for another 3 months (for November – December – January) in order to allow him demonstrate an ability to meet the sales target, as he had not achieved this in the first 3 months. The Worker accepted this extension of his probation.

The sales target was not met in November when the Company sales figures for December became available on 4 January, again the Worker’s sales figures had fallen short. As a result, because he could now not meet the test of two consecutive months of target compliant sales and given that he was on notice that he was on an extended probation, the decision was taken to end his employment prior to the expiry of his probation.

The Employer does not accept that the Complainant was not warned that he would not be kept on if the target were not met. The October meeting and follow up email was precisely that, to warn that his probation was being extended to test his ability to meet the sales that he was required to make. That is what a probation period is, a period of testing of ability. The Complainant not only did not pass the test but he was fully aware that his continued employment was subject to him passing the test.

The Employer says that in addition to the sales issue, in November and December the Worker behaved poorly towards customers and lost his cool both with his manager and with customers. This gave the Employer a further reason to decide not to extend his probation.

The Employer accepts that the Worker was not expressly warned in November – December 2020 that his poor conduct could result in his being dismissed however his conduct was not the main reason for the dismissal – it was more the low sales targets that were the problem.

The Employer contends that his dismissal letter gave the Worker a right to appeal the dismissal decision, but the Worker did not avail of this right.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

The Employer submitted on days 2 and 3 of this Adjudication that it did not wish to engage with this complaint.

However, prior to engaging a legal representative in this matter, the Employer was given an opportunity to refuse to engage with Industrial Relations complaint. By letter dated 21 July 2021 the Respondent was asked to advise the WRC within 21 days if they objected to engagement with the dispute.

As no objection was received from the Respondent within 21 days of the 21 July 2021, the industrial relations complaint duly came before the Adjudicator to investigate.

Investigation

An unfair dismissal dispute under the Industrial Relations Acts results in a non-binding recommendation only. So, while the Employer is not obliged to give effect to a WRC recommendation, unless it has objected within the specified time frame requested, this does not prevent an investigation on the dispute taking place. Indeed, the Adjudicator is obliged to conduct an investigation where a dispute is made and no objection to the investigation is made during the time period specified.

Based on the evidence before me I am satisfied that the Worker was on notice that the passing of the Worker’s probation depended on sales targets being met. I do not accept that he was not made aware of this, because correspondence between the parties in October 2020 shows that he was.

I accept that between the October 3 month review meeting and his dismissal on 5 January that the Complainant was not warned again that the passing of his probation period depended on him meeting the sales targets. I accept too that he was not warned that any other conduct or dispute between him and the Managing Director could impact whether he would be retained after his probation.

However, having been dismissed he had a right of appeal which he did not exercise, and this means that the internal remedies that were available to him to exercise were not exercised, which is fatal to this industrial relations dispute.

There is a duty on a worker to exhaust all internal remedies that are available to him. It is not the role of the WRC in industrial relations disputes to engage in a dispute if agreed pre- WRC referral internal mechanisms have not been utilised. No good reason to not utilise this appeal option has been provided by the Worker.

It is upon the following two grounds - that the Worker was on notice that he would not pass his probation unless sales targets were met and, having been dismissed, he did not exercise his right to appeal - that I find this complaint to be not well founded.