Worker

Employer

Anonymised Parties

An Account Manager

Distributor

Representatives

Dermot Maguire People First HR Ltd

 No Appearance

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00054222

07/03/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00054222

07/03/2022

The Worker commenced his employment with the Employer as an Account Manager on the 1st November 2021. His gross salary was €36,000 per annum. He was paid €3,000 gross per month and he worked 40 hours per week. His employment terminated on the 28th February 2022.

The Worker referred two disputes to the Workplace Relations Commission on the 7th March 2022 under Section 13 of the Industrial Relations Act 1969. The first dispute relates to the termination of his employment. The Worker states that he was dismissed without any disciplinary meeting or adherence to principles of natural justice and that he was he was denied fair procedures. At the date of dismissal the Worker did not have one years’ continuous service. The second dispute relates to the loss of a meal allowance of €13.71 per day for a period of 69 days.

The Worker submitted detailed written submissions and supporting documentation. At the hearing the Worker outlined the background facts to this dispute with reference to the documentation submitted.

CA-00054222 – Unfair Dismissal

The Worker gave evidence that the Employer’s landlord and the Worker had previously worked together and that Employer’s landlord could see that the Employer’s business was struggling and therefore recommended that the Worker and the Employer speak as the Worker had an excellent reputation in sales and extensive network within the hospitality business. The Worker was advised by the Employer’s landlord that if he was going to take on an Account Manager position with the Employer he should ensure that he reported directly to the Managing Director and not the Sales Director as the Sales Director was “sales prevention”.

The Worker was employed by the Employer as an Account Manager for South Dublin from the 1st November 2021 to the 28th February 2022. His gross salary was €36,000.00 per annum. He was paid €3,000.00 gross per month and he worked 40 hours per week. At the outset it was agreed that he would report directly to the Managing Director and that the first two months would be a trial period. His responsibilities included reactivation of dead accounts and recovering a debt list that was outstanding in many cases for over a two years.

The Worker was employed on a contract of service with Employer and devoted all of his time to his employment with the Employer. At no stage during the course of his employment with the Employer did the Worker receive a contract of employment or a statement in writing setting out the terms and conditions of his employment.

On the 22nd December 2021 the Employer’s Managing Director confirmed to the Worker that the trial period had successfully been completed. In or around this same time the Worker also received positive feedback from the Sales Director. The Worker stated that he was pleased that the trial was over and that he had completed the initial assignments successfully having recovered bad debts at 100% level and 95% of the accounts targeted were reactivated. The Worker stated that this achievement was acknowledged to him by senior management.

The Worker stated that on the 7th February 2022 the Worker and the Managing Director had a successful meeting with the manager of a pub in the Crumlin area. After the meeting the Worker asked the Managing Director if he was free for a discussion concerning the Worker’s terms and conditions employment the following week. The Worker gave evidence that the Managing Director exploded and started shouting at the Worker stating that the company was his and that the Worker was not getting any more money. The Worker was completely taken aback by the Managing Director’s response. He stressed to the Managing Director that the was only looking for an hour of the his time to try and resolve the issue of his terms and conditions of employment which had yet to be reduced to writing. The Worker tried to calm the situation down and they both walked off with the Managing Director stating that he wanted to see the Worker in a few days’ time.

On the 10th February 2022 the Worker had a meeting with the Managing Director and the Sales Director and the Worker stated in evidence that they informed him that he was performing well and to keep up the good work. There was no sales or performance review or disciplinary action taken at any stage as against the Worker. At this meeting the Worker asked a number of questions about the business which were met with what the Worker described as an aggressive expletive filled response from the Managing Director. The Worker was taken aback by the Managing Director’s response. At this meeting they discussed for the first time a sales target which the Worker agreed could be achieved. The Managing Director and the Sales Director agreed to send the Worker a sales target in writing but they failed to send anything on following the meeting.

At the end of the meeting on the 10th February 2022 the Worker informed the Managing Director that his car was being repaired and that he would be traveling with a colleague to the Employer’s sales meeting in Leitrim the following day. The Managing Director instructed the Worker not to go to the sales meeting in Leitrim the following day. The Worker was at a loss to understand why he was prevented from going to this meeting. The reason the Employer gave was that they did not want sales colleagues traveling together to the meeting. The Worker gave evidence that there was a culture of secrecy within the Employer around terms and conditions of employment and therefore he could only conclude that the Employer did not want colleagues travelling together because management did not want colleagues discussing terms and conditions employment or sales targets with one another. It transpired afterwards that sales colleagues did in fact travel together to the meeting.

In and around this time the Worker had been doing presentations for customers and prospective customers. The Worker stated that it was becoming apparent to him that the Sales Director was unhappy that an Account Manager was not reporting directly to him so the Worker made attempts to link in with the Sales Director and get him involved in the presentations.

The Worker arranged a meeting on the 21st February 2022 with the Sales Director to discuss pricing on business proposals and the preparation of the presentations. This meeting was initially to take place at 3:00 pm however the time was moved to 4:00 pm as the Worker had to attend a funeral. At all times the Worker believed that the meeting on the 21st February 2022 was a normal sales meeting at which only himself and the Sales Director would be present. When the Worker arrived at the meeting the Sales Director was present as well as the Financial Director. Instead of the meeting proceeding as a normal sales meeting the Worker was dismissed and told that he was not a proper “fit”.

The Worker was given no prior notice that there were any problems with his performance or his conduct or that the meeting on the 21st February 2022 was to discuss his performance or his conduct or that it was a disciplinary meeting. The Worker stated that when he arrived at the meeting it was a “fait accompli”. When asked to explain what he meant by a “fait accompli” he stated that the decision had already been made before the meeting to dismiss him. He stated that he was summarily dismissed which has caused him severe trauma, humiliation and upset.

The Worker gave detailed evidence of his ongoing attempts to mitigate his losses following the termination of his employment which to date have been unsuccessful.

The Worker’s representative submitted that he was dismissed without any disciplinary meeting or principles of natural justice and he was denied fair procedures and that the Worker was seeking a recommendation with compensation in favour of the Worker.

The  Worker’s representative made reference to the case of Meat Production Operative v. Meat Plant, ADJ-00026026 wherein the Adjudication Officer found “…the manner of his dismissal, even as a probationer, cannot be accepted as procedurally fair. The practices followed by the employer have all the hallmarks of a rush job with a predetermined outcome. And if the procedures are unfair, the dismissal was unfair.” While the Worker’s representative emphasised that the Worker was not on probation at the time of his dismissal as he had successfully completed his trial period in December 2021, he submitted that the Adjudication Officer’s finding regarding the practices followed in the Meat Production Operative case are relevant to the instant case as the Worker’s dismissal could also be described as a “rush job with a predetermined outcome”.

Reference was also made to the case of An Employee v. A Recruitment Company, ADJ-00002340 wherein the Adjudication Officer stated “…a termination of employment is required to pay some heed to the principles of fairness regardless of the length of an employee’s service even though the redress and remedies may be different. Those principles include that there be substance to the grounds for terminating the employment and that the procedure used to effect the termination has some regard to the rights of the employee to a fair procedure.”

CA-0005422 - Meal Allowance

The Worker gave evidence that he was employed by the Employer as an Account Manager from the 1st November 2021 to the 28th February 2022. He was hired because of his excellent reputation in sales and extensive network within the hospitality business. The Worker was employed on a contract of service with Employer and devoted all of his time to his employment with the Employer. At no stage during the course of his employment with the Employer did the Worker receive a contract of employment or a statement in writing setting out the terms and conditions of his employment.

The Worker stated that he was excluded from the standard daily meal allowance enjoyed by other Account Managers/field sales colleagues of the Employer.

The Worker gave evidence that there was a culture of secrecy within the Employer around terms and conditions of employment of individual Account Managers and around business plans, sales targets and employee benefits and that management sought to play account managers off each other.

Following conversations with other Account Managers, who confirmed they were in receipt of the meal allowance which the Worker stated was standard practice within the industry, the Worker contacted the Sales Director regarding the meal allowance. Instead of engaging with the Worker on the issue the Sales Director chastised the Worker for speaking with the other employees regarding their terms and conditions of employment.  

The worked confirmed that the meal allowance was €13.71 per day for four days a week. The overall amount of loss to the Worker in respect of the meal allowance was 13.71 x 69 days.

The Respondent did not attend the scheduled hearing of this complaint.  Notice of the hearing arrangements was sent to the Respondent on the 28th October 2022. Having carefully reviewed the file I am satisfied that the Respondent was on notice of the claim against it. I waited a reasonable time before proceeding with the hearing in the absence of the Respondent. No explanation for the Respondent’s non-attendance has been received by the Workplace Relations Commission. 

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

CA-00054222 – Unfair Dismissal

This dispute was referred to the Workplace Relations Commission under Section 13 of the Industrial Relations Act, 1969 and, in essence, concerns a claim of unfair dismissal.

On the basis that the Account Manager had less than the 12 months service, required under Section 2 (1) (a) of the Unfair Dismissals Act 1977 (as amended) in order to avail of the protections provided by that Act, the Account Manager referred this dispute to the Workplace Relations Commission under the Industrial Relations Acts.  

Section 13 Industrial Relations Acts, as amended, states as follows:

13.—

(2) Subject to the provisions of this section, where a trade dispute (other than a dispute connected with rates of pay of, hours or times of work of, or annual holidays of, a body of Workers) exists or is apprehended and involves Workers within the meaning of Part VI of the Principal Act, a party to the dispute may refer it to an [Adjudication Officer].

(3) (a) Subject to the provisions of this section, an [Adjudication Officer] shall investigate any trade dispute referred to him under subsection (2) of this section and shall, unless before doing so the dispute is settled—

(i) make a recommendation to the parties to the dispute setting forth his opinion on the merits of the dispute,

Therefore, in line with the above, I will proceed to investigate the Worker’s dispute and make a recommendation, if appropriate or necessary, arising from that investigation.

The Worker commenced his employment with the Employer on the 1st November 2021. His employment ended on the 28th February 2022. The Worker referred his dispute to the Workplace Relations Commission on the 7th March 2022.

The present dispute relates to the Worker’s contention that he was unfairly dismissed. In this regard, it is apparent that he was not provided with any contract of employment or statement in writing setting out his terms and conditions of employment, or for that matter, any substantive rationale for his dismissal.

In this regard S.I. No. 146 of 2000 – Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures), sets out a basic procedure which an employer should follow prior to dismissing an employee. These include putting the allegations to the employee in writing in advance of a hearing, allowing the employee the opportunity to properly defend himself at the hearing, permitting the appropriate right of representation, and allowing an internal appeal of any determination. In essence, the Code of Practice requires that the procedures for dealing with workplace disciplinary matters (reflecting the varying circumstances of enterprises/organisations) must comply with the general principles of natural justice and fair procedures, also confirmed in jurisprudence.

Notwithstanding that the employment relationship has usually ceased in such disputes, there are numerous examples of the employment fora recommending awards of compensation in respect of dismissals (with less than one year’s service required for a complaint under the Unfair Dismissals Acts) where there has been a breach of fair procedures.  In particular, the Workplace Relations Commission and the Labour Court has consistently found that employers are required to afford due process to employees before a decision to terminate employment is taken, where there is less than a years’ service.

The Labour Court emphasised the importance of fair procedures in Beechside Company Limited t/a Park Hotel Kenmare v. A Worker, LCR21798, noting: “… it is imperative that an employer in a dismissal case must not only show that there were substantial grounds justifying the dismissal but also that fair and proper procedures were followed before the dismissal takes place. This requirement of procedural fairness is rooted in the common law concept of natural justice.”

I have also had regard to the cases referred to me by the Worker’s representative and the conclusions contained therein.

In the instant case I found the Worker to be an impressive witness and his account of the circumstances giving rise to his dismissal wholly credible and well documented.

Following my inquiries and having taken into account the uncontested evidence of the Worker I find that the Employer did not follow any of the steps outlined above, and more particularly set out in S.I. No. 146 of 2000 – Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures), and simply dismissed the Worker without any prior warning and for no apparent reason apart from the Worker not being a proper “fit”. Such a dismissal is clearly substantively and procedurally unfair.

I find that the Employer in this case has disregarded the fundamental principles of fair procedure and natural justice in the manner in which it effected the Worker’s dismissal. I am satisfied that the Employer’s handling of the entire matter breached the Worker’s right to fair procedures and natural justice, and he was dismissed without any due process and as a consequence of the same I recommend in favour of the Worker.

CA-00049040-004 – Meal Allowance

Following my inquiries and having taken into account the uncontested evidence of the Worker I am satisfied that it was custom and practice within the hospitality industry to pay a meal allowance to field sales employees/Account Managers and that a meal allowance was paid to the other Account Managers employed by the Employer but not the Worker. I therefore recommend in favour of the Worker. 

Section 13 of the Industrial Relations Act 1969 – summary dismissal of employee with less than one year’s service  – S.I. No. 146/2000 - Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures) – breach of fair procedures, natural justice and due process – meal allowance