Complainant

Respondent

Parties

Graziano  D'amato

Tripadmit Ltd

Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00058510-001

25/08/2023

The Complainant was a sales/account executive for the Respondent which is a travel technology start up.

He joined the company on the 20th of September 2021 and was dismissed without notice on the 30th of May 2023.

The reason given for his dismissal was that the sales performance related to his clients had not been satisfactory.

The Complainant attended the hearing and made detailed written submissions beforehand. He gave evidence under affirmation.

On the 30th of May 2023 the Complainant was doing a call demo with a customer when he noticed that his manager was trying to arrange call with him. His manager, who is not Mr Maguire, told him he was being let go and that he would see why for the reasons set out in the letter of termination.

The Complainant discovered the reason he was being let go was not his sales target but that the client’s he had generated were not profitable enough. This was not something that was within his control.

He was never warned about this or that he was under threat of dismissal. At the time of his dismissal, he was not just covering his substantive sales role but was also assigned other work related to analytics and liaising with outsourced teams.

At the time the Respondent changed focus to a new model focused on selling different software related to tipping. He was never given an opportunity to engage with that work.

The Respondent failed to follow any procedures or the statutory code of practice SI 146 of 2000.

The Complainant has found great difficulty in finding work. The Respondent will not give him a written reference.

The Respondent attended the hearing represented by John Maguire who gave evidence under affirmation.

His evidence was that as a start up they rely on investor funding. They were trying to become profitable and unfortunately things weren’t working out in the business. The investor market had become much more limited in 2023.

The Complainant was the first of several people to be let go and the Respondent’s head count in now at 50% of what it was then.

Mr Maguire accepts that the notice of termination could have been worded better but the Complainant was told in February and March that his job was at risk and that he needed to improve. The Complainant needed to bring in 10 new clients a month and was not succeeding in this target, except for one month. The clients he brought in tended not to generate revenue.

Mr Maguire doesn’t provide written references but is happy to supply verbal references.

Both parties agree that the Complainant was let go on the 30th of May 2024 by way of a letter which stated:

This letter is to inform you that your employment with TripAdmit will end as of June 30th, 2023. As we are a start up operating in a challenging environment, we require funding and revenue generation to continue growing, as part of this we require our sales team to perform at the highest levels to generate revenue to keep the company on an upward trajectory, unfortunately, the sales performance related to your clients to date has not been satisfactory.

As per your contract of employment, you are entitled to one month’s notice, this will be paid in lieu of notice. Please consider May 30th, 2023 as your last day of work. You will not be required to log in or to work out this notice period. Any outstanding holidays accrued and final salary will be paid in the June payroll. You are asked to return your company laptop, mobile telephone and any other company property. I would like to thank you for your contribution to TripAdmit and I wish you all the best for the future.

The Complainant has referred this decision to dismiss him to the WRC under the Unfair Dismissals Act.

Section 6 of the Unfair Dismissals Act outlines that any dismissal is an unfair dismissal contrary to the act, unless there are substantial grounds justifying the dismissal. It is for the Respondent to prove that such grounds exist and that they were the cause of the dismissal.

Section 6 requires the Respondent to demonstrate not just that “substantial grounds” exist which justify the dismissal but that the dismissal occurred because of those “substantial grounds.”

As such a key issue to be determined in any Unfair Dismissal Act case is whether the “substantial grounds” put forward by the Respondent were properly arrived at, that is arrived at following a fair process.

The Respondent is still not entirely clear of the grounds that they seek to rely on.

Both the termination letter and Mr Maguire’s evidence failed to clearly identify whether the Complainant was being dismissed as a result of business performance issues which made his role redundant or because the Respondent believed he was failing to perform his duties properly. It appears to suggest that the Complainant was being let go due to his client base not being economic but that this was also an issue related to his performance somehow. The Respondent failed to follow any redundancy procedure or even use that term. They also failed to follow any performance improvement or disciplinary process. The Respondent failed to provide any written evidence of having raised performance issues with the Complainant which could result in dismissal. The Complainant disputes that they were ever put on notice of any such problems. 

In the circumstances the Respondent has failed to demonstrate substantial grounds justifying the dismissal and the claim must succeed.

Redress

Section 7 of the Unfair Dismissals Act outlines the options for redress that I must consider. The Complainant is not seeking reinstatement or reengagement.

As such I will limit considering redress to Section 7.1.C, that is financial loss.

7.1.C states at subclause (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances,

Section 7 goes on to state that 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 loss aforesaid,

(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 of 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.

(2A) In calculating financial loss for the purposes of subsection (1), payments to the employee—

(a) under the Social Welfare Acts, 1981 to 1993, in respect of any period following the dismissal concerned, or

(b) under the Income Tax Acts arising by reason of the dismissal, shall be disregarded.

Sub section 3 then defines “financial loss”, in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation.

The Complainant was paid €42,000 per annum. He was unemployed at the time of the hearing and as such had an ongoing/prospective loss.

The Respondent has failed to establish any way that the Complainant contributed to his dismissal. They failed to provide evidence of performance issues, and the Complainant entirely disputed that any existed.

The Complainant provided evidence that he was searching for jobs daily and that he provided further submissions containing 37 job applications. At the time of hearing he was still out of work and suffering ongoing loss. His evidence is that the Respondent has significantly contributed to this situation by refusing to provide a reference. In the circumstances I conclude that the Complainant has mitigated his loss and the Respondent has contributed to it by refusing to provide a written reference without any justification.

From the evidence available to me I am of the view that the Respondent’s business was struggling and they were changing their model to focus on new software. They were shifting to other work not performed by the Complainant while reducing their headcount.  While I do not seek to excuse the Respondent’s actions, I note from the facts of this case that there was probably a lawful route open to them to make the Complainant redundant. They failed to do so and the claim succeeds but I believe this is a context I should take into account when determining the award. Specifically, on the basis of subsection a above, in that business pressures outside the control of the Respondent contributed to the dismissal.

I also think it would be unreasonable, in the current economic climate to presume that the Complainant’s ongoing loss, would reach two years.

Having regard to all the circumstances I conclude that an award of €42,000 is appropriate.

I find that the complaint is well founded and direct the Respondent to pay the Complainant €42,000.