Complainant

Respondent

Parties

Michael  Kinahan

Tom Grant Financial Services trading as One Life

Representatives

In Person

Barry Crushell, Crushell & Co. Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00053918-001

02/07/2021

This complaint is that the Complainant was dismissed by the Respondent on 5 January 2021 as a result of making a health and safety complaint by openly questioning the decision of the Managing Director to conduct in-person meetings in December 2020 between him and staff member when Covid numbers were on the rise.

The Respondent defends the complaint contending that the complaint is out of time and in the alternative that reason that the Complainant was dismissed, during an extended probation period, was because he had not met his sales targets and there were conduct issues at work.

The Complainant gave evidence under affirmation as follows:

1.       He commenced work for the Respondent as a financial sales consultant on 7 August 2020. He was dismissed five months later.

2.       The Complainant’s job was to advise clients and to sell life insurances policies. His line manager was the Managing Director, Mr. Tom Grant

3.       The parties signed an employment contract on 25 August 2020, which had an initial probation period of 3 months. The Complainant thought that 6 months would have been a more realistic probation period, to allow him time to develop a customer base, but he accepted 3 months.

4.       His sales target was set at €8000 per month although as he was starting from nothing in August 2020 and given it was during the Covid pandemic, there was an that it would take time for the Complainant to build up sales targets.

5.       He had a lot of experience in this area, although he had been off work for health reasons from July 2019 for a year before he started work with the Respondent.

6.       In March 2020 when the pandemic started, the Complainant’s search for work became more difficult so when he got the job in August 2020, he was grateful. At the start he was impressed with the Respondent business and thought that Mr. Grant’s processes were efficient and good.

7.       The Complainant did query the high sales target before he started but he then just tried to get along with it, believing that time would lead to the targets being achieved.

8.       The Complainant had a three-month review on 28 October 2020 at which point he accepts he had not met the sales target but despite this he was advised that the Respondent were very happy with his work. He was advised at this meeting (and which was confirmed by email) that he had not met his monthly sales target yet. Tom Grant advised him that his probationary period would be extended by a further 3 months, within which extension the Complainant would need to meet the €8000 sales target for two consecutive months. As Mr. Grant seemed happy and positive about the Complainant’s work in general, the Complainant believed that it was only a matter of time before he met the sales targets. He got no impression that there was any problem whatsoever.

9.       In November and December 2020 Mr. Grant advised him on how to handle certain matters with difficult clients but nothing of any significant consequence occurred. There are always difficult clients who must be handled carefully. The Complainant took no issue with Mr. Grant advising him how to do that, at that time.  No complaint was ever received about the Complainant’s work performance and he was never disciplined.

10.   The Complainant raised a health and concern in late December 2020 arising from Mr. Grant’s decision to hold a series of end of year in-person meetings with sales agents. Given the Covid health risks at this time the Complainant considered that this to be ill advised but because he was still on probation he went to the meeting. The meeting took place on 14 December 2020. It took place in an unventilated room and Mr. Grant did not wear a mask. The evidence at that time was that Covid numbers were rising and the Complainant could not understand the necessity for the meeting to be conducted in person. As Mr. Grant was aware, the Complainant had a young child at home with asthma and he was concerned about the risk of bringing the virus back home. He became more concerned later when following the meeting Mr. Grant advised staff that one of his family had tested positive for Covid and then that Mr. Grant himself had tested positive.

11.   When the Complainant learned this around 19.12.20 he attended his GP and then raised his concerns on a group WhatsApp chat, that Mr. Grant and his other work colleagues were members of. He stated his belief that staff should not have been exposed to this unnecessary risk. He said that he had raised this issue to make sure that such unnecessary risks were not taken again. The Complainant contends that the communications between him and Mr. Grant and the other staff constituted a health and safety complaint, for which he was penalised in early January 2021.

12.   In terms of the Respondent’s justifying the dismissal on sales figures, the Complainant’s sales were €2659 in November and €7731 in December. He accepts that these did not meet the target of €8000 but the December sales came very close and it was clear that his sales were only going one way, which was up.

13.   The Complainant was confident at Christmas 2020 and going into January 2021, that his sales would pick up and would thereafter remain high.

14.   However on 4 January 2022 the Complainant was dismissed.

15.   He was told that it was because his sales targets had not been met but he believed it was because he had raised health concerns in late December about the boss unnecessarily exposing them to Covid.

16.   He tried to get Mr. Grant to reconsider and he asked for a further extension of his probation but Mr. Grant said that his mind was made up.

17.   The Complainant was out of work for 12 weeks and seeks a remedy of compensation of his net losses together with a just and reasonable sum of €5000.

18.   The Complainant was cross-examined

19.   He said he was summarily dismissed

20.   He had nearly met the sales target in December and was on track to meet it for January

21.   It was too coincidental that he raised the Covid concern in mid-December and he was dismissed on 5 January.

22.   There were a few issues with clients but nothing of significance and nothing that was discussed at the meeting on 14 December.

23.   There are no minutes of 14 December meeting.

24.   At the meeting on 14 December Mr. Grant did not make any reference to the possibility that he would be dismissed. They talked about the future.

25.   He contends that the only reason he was dismissed was because he raised a legitimate health and safety complaint, he should not have been penalised for doing that.

26.   The Complainant contends that the timing is significant. At the meeting on 14 December everything had been fine. 19 -22 December was the WhatsApp exchange (the health and safety complaint) and the Complainant was dismissed on 4 January 2021.

Tom Grant the Managing Director of the Respondent gave evidence under Affirmation as follows:

1.       He employed the Complainant as a financial sales consultant on 7 August 2020. They signed a contract on 25 August 2020. The employment was subject to a 3-month probation period which was extendable.

2.       The Complainant received a salary and had sales target of €8000 per month, which he accepted.

3.       At the Complainant’s 3-month review meeting on 28 October 2020 the Complainant was below the sales target. As a result his probation was extended for 3 months within which he was advised that he needed to achieve sales of €8000 for two consecutive months. As far as Mr. Grant was concerned if the Complainant was not reaching that target, then he was not making money for the company, in fact they were losing by continuing to employ him and if that continued, he would not continue past his probation period.

4.       He accepted that he did not advise the Complainant of this but he did advise that his extended probation of 3 months needed to include 2 consecutive months of target sales. An extension of a probation means an extension of assessing whether or not an employee will be kept on.

5.       Mr. Grant asked him if he needed any advice or help but the Complainant declined that offer. The Complainant did not like being told that he might need help or that he was lagging behind what was expected of him.

6.       From November 2020 onwards Mr. Grant considered that the Complainant was under pressure re sales. He had had a few poor interactions with clients, which Mr. Grant needed to intervene with to resolve. He accepts that no complaints were received, but that was only because Mr. Grant had personally got involved to reassure the clients. Meanwhile the Complainant’s sales were still too low.

7.       A serious incident arose around 10 December arising from a phone call interaction between the Complainant and a client who wished to cancel their policy the Complainant argued with the client and made them feel uncomfortable about cancelling the policy. Mr. Grant had to step in and reassure the client and despite asking the Complainant to contact the client to help her cancel the policy, the Complainant said he would not.

8.       Later in December 2020 an issue came up when following an in-person meeting between Mr. Grant and all staff was arranged. This meeting being in person which was an exception to the norm but Mr. Grant considered it necessary because it was the end of the year and because Mr. Grant did not consider it to be a risk. The meeting was within - what were then the operative government guidelines – which permitted small gatherings of people. Particularly given the Respondent was an essential service. It was only around 19th December that the fact that the Complainant had any issue with the meetings was raised.

9.       When Mr. Grant advised staff on 19 December that his daughter had tested positive for Covid and that he had tested positive on 21 December, the Complainant’s reaction was adverse and aggressive.

10.   The Complainant expressed his frustration and said that the staff had been put at unnecessary risk. Mr. Grant disagreed but he accepted that it was the Complainant’s view and he was entitled to believe that. He certainly didn’t think anything less of the Complainant for stating this, because he could understand his health concern. This was not the reason why the Complainant was dismissed.

11.   The Complainant was dismissed because he did not meet his sales target and he was an economic liability.  Also he was on notice of this issue. At his 3-month review meeting in October 2020, the Complainant was told that he had three months to remedy his low sales. His extended 6-month probation was due to end in late January. When the December sales figures came through on 4 January, the Complainant had not met the target for December. As his November sales were less than €3000, this meant that, even if he had a good January, he would not have been able to satisfy his probation condition - of meeting the sales target for two consecutive months. He would only have met the test for one month. When the sales figures came through on 4 January, the decision was made to dismiss the Complainant.

12.   As a lesser reason Mr. Grant took into account the poor dealings that the Complainant had in November and December with clients and the fact that Mr. Grant found him difficult to work with. He did not like being told what to do or how to do it. But the main reason to let him go was not reaching sales targets.  

13.   Mr. Grant decided them to dismiss the Complainant on 5 January 2021 for failing to meet the criteria of his extended probation period.

14.   Following the dismissal Mr. Grant offered the Complainant a right to appeal the dismissal decision which the Complainant chose not to exercise.

15.   The reason that the Complainant was dismissed was mainly for failing to reach his sales target for two consecutive months during an extended probation period but also because of poor conduct with clients and other staff and Mr. Grant. His behaviour was not acceptable. It was a dismissal during a probation period because the Complainant’s work was below par.

16.   Tom Grant was cross-examined by the Complainant

17.   Mr. Grant did not accept that it was unreasonable to dismiss the Complainant. He did not accept that the Complainant was not on notice of the extended probation period which brought with it a warning that he might not be kept on. The Complainant was on written notice of what was expected of him from October 2020 on and he failed to meet the sales targets. His conduct at the end of 2020 was at best, disagreeable which might have contributed to him dismissal but the main reason was that it was too expensive to keep him on, because, unlike the other agents,  he simply wasn’t making sufficient sales

Preliminary Application – that the Penalisation complaint is out of time

In their submissions the Respondent makes a preliminary application that this penalisation complaint is out of time. While the issue date of this complaint is 22.11.22 the narrative within the first IR complaint form, which issued on 2.7.21 was that the Complainant was dismissed for making a health and safety complaint.

Applying the dicta of the Supreme Court in County Louth VEC and the Equality Tribunal and Pearse Brannigan [2016] IESC 40 which held that “there is nothing sacrosanct about the use of an EE1 Form” to activate the WRC’s jurisdiction. This authority permits an Adjudicator, where an allegation of an employment rights breach is within the narrative of a complaint form (but the right box is not ticked on the form) that this additional complaint may be investigated on the condition that the Respondent is put on  notice.

I find that the Health and Safety Penalisation complaint was clearly made within in the first WRC (IR) complaint. I raised this with the Respondent on day one and I adjourned the hearing to allow the Complainant to set out this complaint properly to give the Respondent proper notice.

I find that the Respondent was on notice of the penalisation complaint when the IR WRC complaint issued on 2.7.21 and therefore it is within time. The only reason that I requested a second complaint form be completed by the Complainant was to allow the Respondent be provided with detail of the penalisation complaint to have the opportunity mount a proper defence. I do not consider the date of this complaint form (22.11.22) to be the relevant date from the point of view of time.  The relevant date is the date of the first complaint, ie 2.7.21, which was within time.

I accept that the original IR complaint did not tick the Penalisation box but because the alleged penalisation was in the narrative of the IR complaint I have the jurisdiction to investigate the penalisation complaint as well as the IR complaint both of which were brought within 6 months of the alleged breaches. The IR complaint is set out in the recommendation under Adj 34151.

Substantive findings

The Complainant contends that he was dismissed for making a complaint to him employer regarding the safety, health or welfare of his place of work.

The relevant test pursuant to section 28 of the Health and Safety and Work Act, is on the balance of probabilities:

-          Did the employee make a complaint about a health and safety at his work?

-          Did he suffer a detriment having done so? And

-          Would he not have suffered this detriment but for having made the health and safety complaint?

To these questions I find as follows:

-          I consider that the Complainant made a health and safety at work complaint (that the Respondent had exposed the staff to an unnecessary risk of contracting Covid) on a group WhatsApp thread

-           I am satisfied that he was dismissed following the making of this complaint however

-          I am not satisfied that the Complainant has proven that the reason that he was dismissed was as a result of making the health and safety complaint

I am satisfied that it was made very clear to the Complainant in late October 2020 that he needed to reach monthly sales targets of €8000 per month. His probation period was extended for 3 months to allow him to meet these targets. He accepted the test of two consecutive months of meeting sales target in October but then did not meet the test in that period. I accept that having fallen short in November and December that he could not then meet the test of two consecutive months. He did not meet the target in any month of his employment.

I am satisfied that there was some conflict between the Complainant and a small number of clients and also between the Complainant and Mr. Grant and that these deteriorating relationships played some part in the decision to dismiss the Complainant. I accept to that the Complainant’s complaint about the in person meetings given that the Covid numbers were rising also played into this deteriorating relationship, however I am not persuaded that the Complainant has proven that the dismissal would not have occurred but for the Complainant raising the Covid risk complaint.

The dismissal took place during a period of probation. Within this period which the ability of the Complainant “to sell and look after clients” was being tested. He was informed in October that he was being tested. The test was quantified as to when the increase in sales needed to occur. That is the purpose of a probation period.

I accept that the Complainant tried very hard to reach the targets that had been set. I consider that after October he felt very much under pressure to meet the sales targets. I also accept that jobs in sales in late 2020 might have been more challenging that previous years however they also could have been easier, given the health fears that abounded at that time. Some industries did very well during the pandemic, some collapsed. I have not been provided with any evidence or data to allow me to decide if selling life insurance was easier or more difficult during the pandemic. As a result,  I am unable to make any finding in that regard but I accept that the Complainant found these sales to be challenging at this time and I accept his evidence that had he been given more time, he might have met the targets with ease. But the reasonableness or otherwise of that decision is not the test that I need to apply in this case.

The test is whether the Complainant has proven on the balance of probabilities that if he had not made a complaint about an unsafe in-person hearing on 14 December 2020 would he have been dismissed. I am not satisfied that he has proven this.

I am satisfied that the main reason he was dismissed was because of his failure to meet sales targets which he had known about since October 2020. I consider that the Respondent were within their right, having considered the December sales and that the two consecutive month test could not be met within the probation period that they were entitled to decide not to continue with his employment.

I also consider that the Complainant’s decision not to exercise his right to appeal the dismissal decision was a failure to apply internal remedies that were available to him prior to issuing this complaint.

Based on the above findings I do not find this complaint to be well founded

This complaint is not well founded

Penalisation – health and safety complaint - Covid