ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00005470
A Sales Consultant
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Date of Adjudication Hearing: 28/03/2017
Workplace Relations Commission Adjudication Officer: Rosaleen Glackin
Location of Hearing: Lansdowne House, Dublin 4.
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015 and following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The Complainant was employed by the Respondent from 15th April 2015 until the employment was terminated with 4 weeks paid notice on 17th May 2016. The Complainant was paid €60,000 per annum and she worked 40 hours a week. The Complainant had been provided with a written statement of her Terms and Conditions of Employment, this included the Disciplinary Procedures of the Company. The Complainant referred a complaint to the Workplace Relations Commission on 15th October 2016 alleging she had been unfairly dismissed by the Respondent. The dismissal was not disputed.
Summary of Respondent’s Case:
The Complainant was offered the position with the Respondent by letter and Employment Contract on 19th March 2015 and she commenced employment on 15th April 2015. The Respondent outlined in a written submission the main duties and responsibilities of the Complainant. This included a requirement to successfully complete a named programme within the first six months of the employment. The employment contract was one of indefinite duration with termination by either party of one month’s notice. The Contract also provides for a probationary period of six months. The Complainant failed to pass this programme on 10th July 2015 and again on 25th August 2015 which meant the Complainant did not meet her obligations as set out in her Contract of Employment. The Complainant was invited to attend a Disciplinary meeting on 29th September 2015 to “discuss her failure to meet her contractual requirement to pass the (named) program”. The Complainant was informed that she could be accompanied by a colleague of her choice. She declined and at the meeting on 29th September 2015 she was afforded an opportunity to explain her failure to meet the requirements of her contract. The Complainant requested a third attempt to complete the programme, that she would prioritise her preparation and that she would benefit from additional coaching.
The Respondent wrote to the Complainant on 29th September 2015 to attend a Disciplinary Decision meeting on 1st October 2015. The Complainant was issued with a Final Written Warning to remain active for 12 months and she was provided with an opportunity to successfully complete the programme. This was confirmed by letter dated 1st October 2015 and the Complainant was informed that failure to meet the standard required and pass the test by week ending 6th November 2015 may result in further disciplinary action, including dismissal. The Complainant was also informed that she would be provided with coaching sessions each week but that the responsibility for organising these rested with the Complainant. The Complainant was also afforded a right of appeal of the final written warning but did not do so.
A further meeting was held with the Complainant and her Manager on 1st October 2015 to discuss concerns in relation to her performance following which a three month probation extension to her contract was issued. A further one to one meeting between the Complainant and her Manager took place on 4th December 2015 in relation to her performance and specific improvements required and her Manage sent an email on the same date setting out Action required for the achievement of performance indicators and that this review period was to extend to 29th January 2016. There were four specific performance indicators set out for the Complainant and the Complainant was required to meet all the four performance indicators. A further meeting took place on 15th January 2016 following which it was agreed to extend the review period to 12th February 2016 and this was further extended to 26th February 2016.
The Complainant was invited to attend a meeting on 5th April 2016. This was rescheduled at the Complainant’s request to 11th April 2016. The purpose was to review the four performance indicators communicated to her on 4th December 2015 and that she could be accompanied by a third party of her choice. She declined. Feedback was provided to the Complainant in relation to each of the performance indicators. The Complainant was provided with the notes of this meeting. The Complainant was invited to attend a Disciplinary meeting 14th April 2016 and this was rescheduled to 18th April 2016. The Complainant was informed that she had not achieved any of the key performance indicators and that her employment was to be terminated effective from 18th April and with one month’s pay in lieu of notice. The Complainant was afforded a right of appeal which she did and the appeal was heard by a named employee and this took place on 18th May 2016. The Complainant was given the notes of this meeting for her comments and an outcome meeting was held on 15th June 2016. The outcome was to uphold the dismissal.
The Respondent referenced a number of precedent cases to support their contention that the dismissal was reasonable and met the procedural requirements of the Act
Summary of Complainant’s Case:
The Complainant outlined to the Hearing the history of her employment with the Respondent and the duties she carried out. She stated that in relation to the Key Performance Indicators, which was the basis of her dismissal she spent no more than 3 hours a week on these. She stated that she was not aware in her Contract of Employment there was a requirement to pass the named Test. She stated that she had repeated this test in August 2015 and she failed again as she stated she had been receiving nuisance calls which had upset her.
The Complainant sent an email post the Hearing to the Adjudication Officer stating she had been under pressure at the Hearing and requesting permission to forward a statement. This was agreed on the basis that it would be forwarded to the Respondent for their comments. The Complainant did forward a number of emails post the Hearing.
In summary the Complainant stated the reasons for her complaint was – there was insufficient notice for dismissal meeting held on 18th April 2016 – sanctions other than dismissal should have been considered – the fairness of the KPI Process being the reasons for her dismissal. In relation to the notice for the meeting of 18th April 2016 the Complainant stated that she was given written notice by letter dated 14th April 2016 of an invite to the Disciplinary Decision Meeting to be held at 5pm on 18th April 2016. The Complainant stated she informed the Respondent she was not available at 5pm and she was informed it would be rescheduled. She stated it was part of the Respondent’s disciplinary process that you get 24 hours’ notice to allow for the presence of a third party if desired. The Complainant stated that when she got to work on 18th April 2016 she was asked what days would suit to reschedule. She stated she was available any day that week. However at 1pm she was informed that she was to attend on 18th April at 3pm which meant she was only given 2 hours’ notice and she was not able to arrange for a third party to accompany her.. At this meeting the Respondent read out the dismissal letter. She was requested to return her laptop and she was escorted from the building. The lack of notice was therefore unfair to her and did not comply with the Respondent’s own process.
In relation to sanction other than dismissal, the Complainant stated that her work was very varied and she set out the various activities and the time spent on each per week. However she stated that her assessment was on the basis of only 10% of her weekly work. The Complainant stated that between 11th to 14th March 2016 she had a one to one meeting with a named Manager where she asked a number of questions. She asked if she could have a role focusing more on background role and possibly a part-time role – if the Respondent would consider a role on specified roles as she stated these were her strengths. She asked him if he would consider other alternatives to dismissal and she was assured the Respondent was considering all options. She stated she made it clear that if she was going to be dismissed she would like the option to resign and she stated it would have been fairer to her for the Respondent to allow her to resign. On 18th April 2016 she stated that the Respondent should have imposed a lesser sanction other than dismissal.
In relation to the KPI Process she stated that it was a named Manager who had the ultimate say as to who passed the KPI tests and that the KPI reasons for pass or fail were subjective. She stated that despite failing her KPI tests she continued to do this work. She stated that passing these 3 KPI tests were not part of her Contract of Employment and that other colleagues who did not pass were not dismissed.
The impact of her dismissal was severe as she was out of work for 4.5 months and secured employment on a lesser salary of €55,000.00
Findings and Conclusions:
On the basis of the evidence presented at the Hearing and post the Hearing by both Parties I find as follows: The evidence shows that part of the Complainants employment obligations was to complete a specified programme. This states as follows - You are required to successfully complete……..named within the first six m months of employment”. The evidence from both parties was that the Complainant failed her first test on 10th July 2015 and again a repeat assessment held on 25th August 2015. The evidence was that the Complainant was invited to a disciplinary hearing on 28th September 2015 to discuss her failure to meet her contractual requirement. She was therefore deemed not to have completed her probationary period successfully and she was issued with a final written warning to remain for a period of 12 months. . The Complainant was informed of this decision by letter dated 29th September and that her failure to meet the requirements of the test by weekending 6th November 2015 may result in further disciplinary action including dismissal. She was informed she was to be provided with coaching sessions each week but that the responsibility for scheduling these rested with the Complainant. The Complainant did not appeal this final written warning. The Complainant was issued with a three month extension to her probation contract on 1st October 2015.
There were a series of one to one meetings between the Complainant and during October and December 2015 during which four key performance indicators were discussed and put in writing to the Complainant in relation to her performance and she was informed a performance review meeting would take place on 29th January 2016. The Respondent met the Complainant on 15th January 2016 and it was agreed to extend the review period 12th February 2016 and then to 26th February 2016. The review period ended finally on 12th March 2016.
The Complainant was invited to a meeting on 5th April 2016. Rescheduled to 11th April 2016. The Complainant was informed this was a Disciplinary Meeting and she was afforded a right of representation. This meeting focused on the four key performance indicators to be reviewed during the review period from 5th December 2015 to 12th March 2016. The outcome meeting was scheduled for 18th April 2016 at which the Complainant was informed of the decision to dismiss as she had not achieved any of the four key performance indicators agreed with the Complainant on 4th December 2015. The Complainant was afforded a right of appeal which she did and the outcome following an Appeal Hearing upheld her dismissal.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
On the basis of the evidence and my findings above and in accordance with Section 8 of the Unfair Dismissals Act, 1977 – 2015 I declare the complaint of unfair dismissal is not well founded.
Section 6(1) of the Act provides as follows: the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.
Section 6 (4) of the Act provides as follows: …the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal if it results wholly or mainly from one or more of the following (a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do.
The evidence was the Complainant was dismissed for failing to meet the four key performance indicators in review meetings that extended over October 2015 to March 2016 during which time the Complainant’s probationary period continued to be extended. I further note on the evidence provided that the Complainant was afforded all opportunities for coaching to enable her to meet the performance requirement of the position she was employed for. I also find that the dismissal was reasonable in all the circumstances of this case.
Dated: 28 June 2017
Workplace Relations Commission Adjudication Officer: Rosaleen Glackin
Dismissal- probation - performance