Complainant

Respondent

Anonymised Parties

A Worker

A Business Consultancy Service

Representatives

  The claimant represented himself

Declan Thomas

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-00057974-001

29/07/2023

The claimant was employed as a Technical Services Agent with the respondent from the 29th.April 2021 to the 21st.July 2023 when he submits he was unfairly dismissed. In his complaint form the claimant asserted that

“Due to a request from the Company to attend the L Office once every 3 months , since I’ve always been a remote worker ( I was never based in Letterkenny but in Dublin when I was hired and in Enniscorthy later on )and although I sent the company several Medical Certificates from my GP stating that I  could not travel, they gave me a written warning first and then a Performance Improvement Plan which they said I failed …” ultimately culminating in the termination of his employment” .The company denied the allegation and refuted the complaint in its entirety. The respondent submitted that the claimant was dismissed for performance deficits and the respondent had acted reasonably in effecting the claimant’s dismissal.

 The case before you today concerns a claim by the Claimant against his former the Respondent under the Unfair Dismissals Act 1977. A copy of the Complaint Form is attached. The Company refutes this claim in its entirety.

 Background to the appellant’s employment. The Claimant commenced employment with the respondent company on 29th April 2021 and worked as a Technical Service Agent. A copy of the Claimants Contract is attached. The appellant’s employment was terminated on 21st July 2023.

 Claim under the Unfair Dismissals Acts, 1977-2015

 1.0 Background to the claim

1.1 The Claimant alleges that he was unfairly dismissed by the Respondent. The Respondent refutes the claim being made, as the appellant was fairly dismissed for poor performance. A full investigation, disciplinary hearing and appeal in line with the Respondent’s disciplinary policy was conducted, and fair procedures and the principles of natural justice were all adhered to by the Respondent throughout”.

 1.2 Section 6(4)(b) of the Unfair Dismissal Acts 1977 – 2015 states: (4) Without prejudice to the generality of subsection (1) of this section, 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:

 (b) the conduct of the employee

 The Appellant’s dismissal arose wholly from his own conduct, and as such the dismissal was not an unfair dismissal in accordance with the above statutory provision.

1.3 On Wednesday 29th November 2022 the Claimant was issued with a Final Written Warning for his “refusal to fulfil his contractual obligations to attend work on site”. This was following a formal disciplinary hearing in accordance with the Respondents disciplinary policy and procedures. A copy of the Disciplinary hearing notes and e-mail confirming his contractual terms are attached where it can clearly be seen that the Claimant blatantly refused to comply with his contractual terms and continued to refuse to follow a reasonable management instruction to do so. A copy of this Final Written Warning is attached .

 1.4 On 5th January 2023 the Claimant submitted a Medical Certificate from his own GP to the Respondent which provided that the Claimant “Is currently unable to travel long distances due to several medical complaints which are currently being investigated and treated”. The Claimant was then referred to an Occupational Health Assessment and in the Occupational Health Report dated 25th February 2023 the specialist provided, “Based upon the medical history provided, I could not identify any specific medical barrier or medical contraindication to travel by public transport from W to L for one day per quarter”. Both the Medical Certificate and the Occupational Health Report  were submitted  .

 Performance Issues

 1.5 Prior to all of the above, in or around June 2022 issues started to emerge regarding the Claimant’s performance in his job. In separate e-mails dated the 14th June 2022 and the 17th June 2022 Mr.  L (Customer Care Coordinator, X) highlighted a number of serious concerns regarding the Claimants failure to do his job satisfactorily and more particularly his failure to act on customer queries. These e-mails are included.

 1.6 On 26th October 2022 Mr L raised a further concern that the Claimant had failed to take action in respect to a customer request and that the customer was threatening to raise a formal complaint in respect to the Claimants lack of response. Mr.  C (X   Consultant) contacted the Claimant and requested that he follow up with the customer asap.

1.7 In an email dated 8th November 2022 Mr. T further highlighted the Claimants inaction in carrying out his job and his lack of response to client queries. He expressed a concern that if it continued the company would start to lose customers. This e-mail is attached.

1.8 By e-mail dated 15th December 2022 Mr. C contacted the Claimant and informed him that there was two complaints from the customer regarding inaction and deficiencies in his work for which he was responsible. He further explained that “his failure to comply with this again would trigger a performance management plan”.

1.9 Again, on the 23rd December 2022 a further issue was raised by Mr F to Mr. C in that a serious case assigned to the Claimant passed all day without any action by the Claimant. Mr. C in turn e-mailed the claimant on the same day informing him that this was another escalation that was not acceptable. In this e-mail Mr. C also highlighted other cases where there was no action taken when required by the claimant. Mr. C  stated as follows, “H I have tried my best to assist you, unfortunately poor performance is leading to escalations and jeopardising the team and business. This cannot continue and an official process improvement plan will be put in place”. These e-mail interactions are enclosed .

 1.10 By e-mail dated 9th January 2023 Mr. C followed up with the Claimant by e-mail regarding issues that they had discussed regarding what the expected standards and expectations were in the performance of his duties. This e-mail is included .

 1.11 On 13th January 2023 Mr. P sent an e-mail to the Claimant and Mr.C stating that his weekly utilisation had come in at under 30% for the week and that this was a long way short of the 100% expected. He informed the Claimant that the main concern was the speed or volume of cases that he was working on. This was followed up by an e-mail from Mr. C that the issues were covered multiple times with the Claimant in the past weeks. The email also stated that the Claimant was provided with a Report that showed a detailed view of all the cases under his name and what needed to be prioritised and actioned. These e-mails are attached

 1.12 On 15th March 2023 Mr. R F raised a further issue regarding the Claimants work in respect to a case that was passed to him to deal with. He reported that the Claimant closed the case without solving it giving the reason that the “case history was too big”.

 Disciplinary Hearing

 1.13 By e-mail dated 19th April 2023 the Claimant was provided with a letter inviting him to a disciplinary hearing on Friday 21st April 2023. In the said email and letter the Claimant was informed of his right to be represented, given a copy of the disciplinary policy and was also informed of the issues for discussion which were customer complaints of which he was also given a copy. A copy of this email, letter and the customer complaints are attached .

1.14 The disciplinary hearing went ahead as planned on 21st April 2023 and was conducted by Ms.  P (HR Business Partner). The Claimant was given the opportunity to provide his responses in relation to the concerns raised, which were, performance issues highlighted through customer complaints, which resulted in the customer requesting the claimant to be removed from the account. In the disciplinary hearing the claimant was given an opportunity to respond to each of the emails that highlighted the customer complaints. Notes from the disciplinary hearing were submitted .

 1.15 The Claimant was issued with a Written Warning by letter dated 28th April 2023 with a further recommendation that the Claimant be placed on a Performance Improvement Plan. A copy of the Written Warning is attached . The Claimant was given the right to appeal this sanction but didn’t do so.

 1.16 The Claimants Manager informed the Claimant by e-mail also dated 28th April 2023 that a PIP would be implemented and also confirmed that the Customer had requested that the Claimant be removed from their account but had agreed to allow the Claimant the opportunity to improve his performance on the basis of a PIP. This e-mail also confirmed that at the end of the PIP there would be no guarantee that he would be kept on the account. He was also informed that if he was not kept on the account that the company would try and find an alternative role that would match his skillset. He was further informed that if a role was not found  in this instance that there was a risk he would lose his job. This correspondence  was submitted.

 1.17 Following this a Performance Improvement Plan (PIP) was put in place commencing on 3rd May 2023. The PIP itself highlighted the areas where the Claimant was underperforming. It also set out the specific objectives and standard of work that was required and also the evaluation criteria by which success would be measured. A copy of the Performance Improvement Plan is  enclosed . The objectives and expectations of the PIP were discussed with the claimant and his Manager both prior to the implementation of the PIP and weekly thereafter and evidenced in correspondence from his Manager. This correspondence is also enclosed .

 1.18 The Claimant was monitored throughout his performance review and issued with findings at the end of each week including what his targets were and his actual target results. Ultimately the Claimant’s targets had not improved by the end of the PIP and he was informed that he was unsuccessful in the PIP process and that failure to meet the required performance standards set out in the PIP may result in disciplinary action up to and including termination of employment. A copy of the weekly review findings are enclosed .

 1.19 On 13th June 2023 the Claimant was provided with a letter inviting him to a disciplinary hearing to discuss the unsuccessful completion of his PIP. In the said letter the Claimant was informed of his right to be represented, given a copy of the disciplinary policy and was also informed that a possible outcome could include action up to and including dismissal. The disciplinary hearing was conducted by Mr. G  (Delivery Partner) and Ms. C (HR Manager). A copy of this letter is attached.

1.20 Minutes from the disciplinary hearing are attached where the claimant was given the opportunity to provide his input into results and the reasons why he failed his PIP.

1.21 After due consideration of all of the issues regarding the Claimants performance followed by a disciplinary meeting with the Claimant a decision was made that the Claimant be terminated from his employment. A copy of the Claimants termination letter dated 21st June 2023 is enclosed.

 1.22 The Claimant subsequently appealed the decision to terminate his employment and his appeal was heard by Ms.LP (Head of HR). The appeal hearing took place on 17th July 2023. A copy of the Claimants appeal e-mail and the invite to the appeal hearing are enclosed .

 1.23 A copy of the minutes of the appeal hearing and the appeal outcome letter dated 19th July 2023 are attached

 1.24 A copy of the Respondents Disciplinary Policy is enclosed .

 2.0 The Legal Position

 2.1 The fact of termination of employment is not in dispute. The Claimant was dismissed in accordance with Section 6(4) of the Unfair Dismissals Act 1977 which provides; “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……the competence……of the employee for performing work of the kind which he was employed by the employer to do.”

 2.2 Therefore, competence is one of the grounds in which an employer may dismiss an employee. Competence refers to an employee's ability to do their job

. 2.3 The following principles concerning the generality of work performance requirements were set out by the EAT in Richardson v H Williams & Co Limited (UD 17 / 1979): Where an employee has been given a justified warning that unless his work improved in a specific area that his job would be in jeopardy, then it follows that such employee must be given

i.                     A reasonable time within which to affect such improvement

ii.                    A reasonable work situation within which to concentrate on such defects, and,

iii.                  If an employee improves in the complained of area to the reasonable satisfaction of the employer, and such defect is not repeated, then such a warning cannot be solely relied on in relation to a dismissal for other reasons.

 2.4 The targets set for achievement must be reasonable. The EAT said in Hanlon v Smiths Dolphins Barn Ltd (UD 883 / 1982): “While we accept that an employer is entitled to set targets for a salesman and to increase such targets, such increases must be reasonable having regard to all the circumstances".

 2.5 The courts must decide whether the employee’s inadequacy or unsuitability to perform the job for which they were hired to do justifies reasonable grounds upon which to dismiss an employee. The courts have ruled in cases for dismissal for incompetence that the employer has to establish if they had reasonable grounds for dismissal and that they had taken reasonable steps to verify this conclusion. The test whether a dismissal for incompetency is regarded as not being unfair was set out by the EAT in McDonnell v Rooney (UD 504/ 1991) as: i. Did the employer honestly believe that the employee was incompetent or unsuitable for the job?, and, ii Were the grounds for this belief reasonable? The Tribunal further expanded by stating that “it is not the job of the Tribunal to decide whether an employee is incapable of doing the job for which he or she was employed. What it has to decide is whether there was material before the employer that satisfied him of the employee’s inadequacy or unsuitability, and on which it was reasonable to dismiss.

 2.6 The Adjudicators attention is drawn to an important employment law decision from Mr. Justice Costello delivered on 16th February 2021 in the Court of Appeal in Donal O’Donovan v Over-C Technologies Limited and Over-C Limited [2021] IECA 37 [Appendix 25] where it was held by the court that "there is no suggestion that the principles of natural justice must be applied where an employer terminates the employment contract of an employee on the grounds of poor performance".

 It is the Respondent position in any event that the Claimant was at all times afforded fair procedures in the lead up to his dismissal. If there is any suggestion whatsoever as to this not being the case then the decision of the Court of Appeal in the above case must take precedence. This decision resolves that fair procedures are only required in situations of misconduct based dismissal (as opposed to performance-based dismissals). The learned Judge concluded in that case that “whether there were breaches of fair procedures in relation to the assessment of his performance or the conduct of the appeal is nihil ad rem”. (Nihil ad rem – nothing to do with the matter).

CONCLUSION

 3.1 Dismissal from employment in general will be assessed of the basis of the fairness of the procedures applied. Such procedures extend from the principles of natural justice and are, at a basic level the right to know what the allegations are, the right to respond to same, the right to a fair assessment of the facts, the right to representation, and the right to appeal. All such rights extend in instances of disciplinary proceedings being taken for performance issues. All of the above principles were applied to the Claimant in this instance.

 3.2 In addition, dismissal for performance will typically be supported by the courts as not unfair in instances where the employee was informed as to what the failures in performance were, had been provided with an opportunity to improve, and had been fully informed of the consequences of his/her continued failure. This will typically necessitate the passing of sufficient time for both a full assessment to be made and for improvements to occur. In the present case the Claimant was informed in the letter dated 28th April 2023 that failure to meet the required performance standards set out in the PIP may result in disciplinary action up to and including termination of his employment. The Claimant was given sufficient time to demonstrate an improvement in his performance over the course of the PIP but failed utterly to demonstrate any such improvement.

3.3 There were problems with the Claimant’s performance during 2022 and the Claimant was informed of these shortcomings and given continued support in respect to the issues that arose. Performance issues continued however, and no improvement was noted and as a result he received a warning in respect to the consequences if his performance failed to improve. The Claimant’s poor performance continued to result in work not being carried out as required for the Respondents customer of which the Claimant was responsible for. This was putting the reputation of the Respondent and its customer in jeopardy to a point whereby the customer no longer wanted the Claimant carrying out this work. The Claimant was advised of and set reasonable targets for which he was required to achieve. The Claimant was advised in writing that termination of employment could follow if an improvement in performance was not noted and as well as being counselled on the issues was put on a PIP which again seen no improvement whatsoever over the period.

 3.4 In cases such as the present one despite an employers best efforts, the employees unsuitability is not always resolved and the final step of dismissal is the only option open to the employer. The Claimant was employed as a Spanish speaking Technical Service Agent for The Respondent client X. The Respondent had no further requirements for Spanish speaking agents other than with this specific client. The Customer requested that the Claimant was removed from the account in April with immediate effect, however the Respondents management team requested that the Claimant was allowed a final opportunity to improve for a four week period. The customer agreed for the Claimant to remain on the account for this duration. Company X have a team of Technical Service agents with different language skills within the team, those include, Spanish, German and French. The Respondent had no other alternative roles suitable based on the Claimants specific skill set.

 3.5 The Respondent in this case had before it evidence of the Claimants performance deficiencies upon which they were entitled to be concerned. The Claimants underperformance had been brought to his attention throughout which resulted in the claimant being formally warned of the consequences to his employment in the event of his failure to improve. This followed by a Performance improvement Plan being put in place and a resulting disciplinary process which ultimately led to the Claimants dismissal. The Claimant had failed to take those matters seriously enough in respect to any efforts on his part to implement any tangible improvement in his performance despite being aware of the consequences.

 3.6 The Claimant was at all timed aware of the concerns in respect to his poor performance, what action was required to ensure improvement, when the matter would be reviewed again and the period within which he would need to demonstrate an improvement and the consequences if there is no improvement.

 3.7 The Claimant was well aware of the Respondents disciplinary policies and procedures as he had been subject to them in the past. A final written warning was active on the Claimants file prior to the PIP being implemented therefore he was well aware of the seriousness of the matter and that further underperformance could lead to his dismissal. Following a review of the Claimants performance against the objectives set out in the PIP the Respondent rightfully concluded that the Claimant had not sufficiently performed against those said objectives. A formal disciplinary process was initiated in conjunction with the Human Resource Department which culminated in the Claimants termination for underperformance.

 3.8 Throughout the process the Claimant was well aware of the details in respect to his underperformance. He was made aware on several occasions when issues arose as a result of complaints from the Respondents customers. The Claimant was also aware of the seriousness of the issue as he had received a formal warning in respect to his underperformance such that he was aware that further underperformance could result in his dismissal. Despite this the Claimant continued to underperform and the Respondent was left with no option but to put in place a Performance Improvement Plan at which point the Claimant could have taken steps to improve on his performance, again knowing the consequences, but did not during the PIP make any effort to improve.

 3.9 The Claimant was also afforded his rights throughout the process in regards to being made aware of the issues in respect to his performance, the objective standards in which were expected, the consequences of his failure to improve and during the disciplinary process his right to respond to the disciplinary issues raised, the right to representation and his right to appeal.

 3.10 The fact remains that the reason that the Claimants employment was terminated was purely based on the fact that the Respondent had lost confidence in the Claimants ability to do his job or discharge the duties for which he was hired to do. The mutual trust and confidence which is necessary between an employer and an employee had been irretrievably lost

. 3.11 Therefore, the Respondents right to terminate the Claimants employment for underperformance was fair and reasonable and as a result demonstrated substantial grounds justifying the dismissal and that the dismissal was not unfair in the circumstances.

 3.12 The Respondent contends that the Claimants poor performance and subsequent actions all of which were within his control contributed fully to his own dismissal. Accordingly, it is the Respondents position that the appellant is not entitled to seek any redress under the Unfair Dismissals Acts 1977-2015.

 Adjudicator, the Respondent company respectfully request that you uphold the Company position that termination of the Claimants employment was with the reasonable actions of a reasonable employer under the circumstances and reject the claimant’s complaint under the Unfair Dismissals Acts 1977-2015.

The respondent ‘s representative submitted that the claimant’s medical certificates were not submitted until the claimant had been issued with the final  written warning in November 2022.The respondent submitted that the claimants medical care was  taken into consideration by the company and asserted that the claimant was not being asked to travel to relocate to L.It was submitted that  at the time he was and continued to work from home.At the time the company was looking for the claimant to come on site twice a month. Alternative roles had been sought but  were limited in terms of options because of the claimant’s skill sets .It was advanced that if the claimant had not failed his PIP the company would have pursued  alternatives .

Summary of Pertinent Evidence of Ms.C

In her direct evidence Ms.C recounted her involvement in the claimant’s case and asserted that he was dismissed for repeated breaches of his Terms of Employment. She said the technical help provided by the claimant was time based and required immediate responses but that was not happening. She said that for  example if an MRI was required , it would be referred to the claimant and warrant an urgent response. She asserted that the respondent had requested the client who had complained about the claimant to give him an opportunity to improve – at this time the claimant was in receipt of written warnings. She asserted that performance problems were highlighted to the claimant on numerous occasions – work was assigned to him but he did not  deal with them. He was advised that the respondent was at risk of loosing customers. The witness charted the exchanges with the claimant about improving his performance- she referenced emails sent to the claimant highlighting performance issues and asserted that one of the company clients wanted the claimant removed. She said that when the claimant was issued with a warning on the 28th.April 2023 , he did not appeal it. She  referred to the email from Mr.P where he was advised that he would be given an opportunity to improve his performance through a 4 week PIP and reference was made to finding an alternative suitable role  and that if such a role was not found , he was in danger of loosing his job. The witness referenced declining performance in the weeks following the PIP – he had been deemed to have failed the PIP. She said that in reviewing the claimant’s performance they took account of the warnings issued and the final written warning. The witness said the company looked at other options including , counselling , support .They looked at other roles but none existed within the company. The claimant she said   had not responded to the chances for improvement that he had been given. The witness said that in considering the matter of dismissal , the company took account of the claimant’s poor performance and the warnings he had been given .She asserted the company considered options other than dismissal but concluded there were no other suitable roles within the company and referred to the fact that  his assignment within the company was with  Spanish speaking clients and that there were no other Spanish speaking role.  The witness said the claimant had been given a chance to improve but did not respond to the chances given to him.

During cross examination , the witness asserted that the claimant’s colleague agents operated at a higher pace than the claimant when the claimant advised that he had handled 2,000 cases over a 2 year period. She insisted the other agents figures were significantly higher than the claimants – she advised that a specialist agent was made available to the claimant  but he did not utilise that assistance. The claimant put to the witness that he was missing for some of the PIP period   and no allowance was made for the missing 3 days. The witness  said assistance from a specialist agent was made available to him .The claimant asserted that help  was only offered at the last minute and he was given only one day to close off on files. The witness confirmed the claimant was paid a bonus in May 2023 – the claimant dropped from a 3 rating in the first year to 2.51 in the second year.The witness said if you received a D rating you would be placed on a PIP. The witness said that the same targets applied to everyone and they were based on an 8 hour day.The claimant put to the witness that no one told him his performance was low until the PIP was raised. The witness reiterated that there were no other Spanish speaking roles available with the company with the exception of X who had sought his removal from their account.

Summary of Pertinent Evidence of Mr.P – Claimant’s line Manager

The witness set out his role and background in the company and summarised the claimant’s assignment to the IT support Engineering Service – to Health Care – specialising in Spanish. He described the critical nature of the claimant’s role and referred to the emergency calls he would have to respond to and his involvement in trouble shooting. Where the claimant could not resolve a referral after trouble shooting , he would  escalate the case to a higher level. A  failure to respond could jeopardise a customers business and potentially lead to a shut down .The witness referred to the training received by the claimant and referenced training on  SPs and/or trouble shooting.

The witness referenced emails he received in June 2022 signalling performance issues with the claimant. Emails regarding the claimant’s performance problems in October 2022 were presented  along with further emails of Nov. 2022 .The company wrote to the claimant on the 15th.Dec. 2022 regarding the claimant’s performance and issuing him with “ a final warning”. The witness referred to deficits with trouble shooting and asserted that the claimant had failed to log the steps he had taken .The witness said these concerns raised red flags on the claimant’s output and utilisation. An official PIP was proposed. The witness said the claimant raised no issue about support – the witness said he gave advice  to the claimant on what actions to take to improve his performance. The witness submitted that the claimant was working on very few cases , his case closure was slow and he was not doing his job. The witness said the claimant was urged to engage with Mr.AC to discuss the performance issues and advise/agree a plan on how to tackle them. The witness said that the motivation for asking the claimant to come on site in Letterkenny was to arrange a face to face meeting with a customer who wanted to meet directly with the claimant.

The witness set out the thread of ensuing correspondence between the claimant and the company regarding performance issues. This culminated in a written warning dated the 28th.April 2023 in which the claimant was given notice of a PIP being put in place. The witness said he wanted to give the claimant one last chance to bring him up to speed .The witness asserted the PIP was explained to the claimant – he was brought through the stats , KPIs and support classes were suggested. The witness advised that the claimant was  told  that the company would look for an alternative role if his PIP was successful. It was submitted that the PIP targets were reasonable but the claimant’s scores were significantly off the mark and the performance got worse instead of better. It was submitted that the PIP was extended to take account of the claimant’s absences on annual and sick leave. It was  submitted  that the claimant was only assessed on the days he worked.

 In response to Mr.P’s evidence , the claimant  asserted that the PIP was never extended .The claimant asserted that he worked very well on his last 3 days , that his performance had  improved and that this was not considered by the company. The claimant insisted that his utilisation did go up on the week of Jun 12 and he had closed off a number of cases.

Summary of Pertinent Evidence of Ms.LP – Appeals Officer.

The witness gave evidence of the conduct of the appeal – she said the claimant did not submit grounds for appeal – he submitted a spread sheet submitting that his performance was average relative to his colleagues. The claimant presented no new information at the hearing – according to the witness.  The witness said she reviewed the claimant’s performance over the previous 6 months and upheld the decision to dismiss on the basis of his poor performance. While she took account of the medical evidence she believed the severity of the sanction of dismissal  was  fair on the basis of the claimant’s performance.

Under cross examination by the claimant , it was put to Ms.P that no issue had been raised about performance until October 2022.It was put to the witness that the claimant was never told about the A-D marking system by his Team Leader or his  local manager.

The respondent submitted post hearing documentation at the request of the Adjudicator on the 4th.Oct. 2024  to clarify their contention that the claimant’s performance was consistently below that of his comparator colleagues – it was submitted that the results of the Performance Improvement Plan confirmed this  .The documentation was  copied to the complainant.

It was submitted that the documentation confirmed that the claimant had an FLR -First Line Resolution – outcome of 55% - the lowest in his team (Team Average 75%)  and that the claimant had the lowest case volume of 46 closure (Team Average 76).It was submitted that across all columns , the claimant’s scores were consistently lower than others.

At the hearing , the claimant said the main reason he brought the complaint was because he had 2 small kids and a mortgage to pay .

In his direct evidence he asserted his performance was average of the team for all of the regions supported and that he was put on a  Performance Improvement Plan solely on the basis of his inability to travel from E to L due to medical reasons – which he submitted provoked his dismissal.  He submitted  that his performance was on a par with his other colleagues .He referred to a dispute between the respondent and company X and asserted that  company X wanted the respondent to fail as they had lost work to the respondent.

The claimant confirmed the accuracy of the minutes of meetings with the respondent. At the 16th.Nov. 2022 meeting the claimant asserted that moving to L was never an option  and that at interview he was reassured that he would not have to come to the office. He asserted there were many people from his team who never reported to L and  suggested that he  was being singled out for unfair treatment. On the 10th.October 2022 , the respondent wrote to the claimant. The claimant  confirmed  his position that he would not be attending the L Office in November. He   was reminded of the terms of his contract which set out that his normal place of work was L and requires compliance “ with any terms or arrangements the Company may introduce in relation to home workers from time to time and which may be applicable to you”.

The claimant said he did not recall receiving a warning from the respondent  on the 28th.April 2023.

The claimant asserted that the PIP was never extended – he submitted that his performance on the final 3 days was discounted.

The claimant said that he previously attended at the L office to meet with a customer – but this was before he got sick.

The claimant said he never closed a ticket without approval and referenced a complaint in March 2023 about his management of a ticket where he asserted that he created a new ticket – it was well structured and he resolved the matter. The claimant asserted that he did not get support from the Company and that he had a very serious medical condition. He had incurred  a huge financial loss and did not receive disability benefit.

Under cross examination by the respondent’s representative  , it was put to the claimant that he refused to attend a mandatory meeting in L. The claimant said he did not refuse to go to L – he had a medical condition. It was put to him that he had point blank refused to go to L and the claimant acknowledged that perhaps he had said the company could send a helicopter .It was put to him that prior to this there were significant performance issues arising and that when he was asked to come to L to meet a customer  he refused to come because he did not want to travel and  made no reference to  his medical condition. It was put to the claimant that the first medical cert was dated Jan. 5th 2023 which was long after the travel dispute. The claimant replied that when he saw that the company wanted to get rid of him he submitted medical certs. The witness said the Occupational Health assessment were based only on a phone call.The claimant said he told Occupational  Health that he  had a request to attend L and while the employer maintained this was unrelated to his performance issues , the reason he was called by Occupational Health was because of the dispute around the trip to L.

The claimant accepted he received a final written warning on the 29th.Nov. 2022 .The claimant was adamant that the performance issues only surfaced after the dispute about the L trip. It was put to the claimant that Mr.P his line manager had said that performance issues were raised with him as far back as June 2022 and the claimant replied that he was not copied into the emails of June 2022 that were submitted .The respondent’s representative set out a series of ticket incidents from October to December 2022 with examples  of major non compliance – the claimant responded that the cases require a lot of trouble shooting and sometimes the client does not respond. The claimant accepted that Mr.A  offered him support in January 2023.The claimant said he always worked to the best of his abilities. He did not accept that his utilisation came in at below 30per cent and the claimant was adamant that he skipped breaks and meals to continue working. The claimant was adamant that his performance was the same as his colleagues. It was submitted by the respondent’s representative that the claimant’s colleagues had more challenging work and it was put to the claimant that he had closed a file on the grounds that the case history had been too big. The claimant replied that the case had been opened by a colleague  and that he closed it having advised in a well structured manner  how the matter could be resolved. The claimant said the case was given to him like a hot potato – the claimant said he was not the one who created the ticket and there were no clear guidelines on how to manage situations such as this. The claimant said he was never told he could not create a new case.

In response to Mr.P’s evidence , the claimant  asserted that the PIP was never extended .The claimant asserted that he worked very well on his last 3 days , that his performance had  improved and that this was not considered by the company. The claimant insisted that his utilisation did go up on the week of Jun 12 and he had closed off a number of cases.

The claimant accepted there were ongoing meetings with managers during his PIP.It was put to him that most of the targets were achievable but that during this time his performance deteriorated .The claimant accepted that he did not reach the figures required of the company during the PIP. The claimant said he  was unable to work after he was dismissed as  he had surgery but began looking for work intensely from September 2023 and would submit evidence of his efforts to secure alternative employment .

Documentation explaining the PIP system and how performance was assessed was submitted to the WRC in Sept. 2024  and copied to the claimant who did not offer any further comments or observations .

I have reviewed the evidence presented at the hearings and taken account of the submissions of the parties and the authorities relied upon by the respondent.I note a number of flaws on the respondent’s part for example the issuing of a” final warning “ on the 15th.December 2022 –  I acknowledge the respondent accepted that the terminology – ie “a final warning” was incorrect. Additionally , while the respondent persisted in arguing that performance  problems were drawn to the attention of the claimant as early as June 2022 , the claimant argued that he was not copied into the exchanges between the managers about his performance at that time  and  that he was kept in the dark. The documentation issued by the respondent indicates that performance issues were first notified to the complainant in October 2022 after the dispute about travel to L  - according to the claimant this was    giving  credence to his  insistence that the performance issue was  being engineered  by the company in response to the claimant’s refusal to travel to L .

I have  taken  account of the authorities relied upon by the respondent and particularly the provision in the Act  which provide for a dismissal not being unfair in circumstances where it results wholly or mainly from competence issues. I have taken into  account    the claimant’s   responses at the disciplinary meetings as documented in the minutes submitted into evidence and which were not disputed by the claimant. I note that the respondent’s procedures were complied with in relation to the disciplinary meetings – with the exception of the 15th.Dec. 2022 exchange , that the claimant was furnished with the customer complaints about his performance and that the claimant was given a second chance by the company  through the Performance Improvement Plan. The claimant was afforded rights to representation and he did not dispute the employers records of the exchanges at the meetings with him during the disciplinary process and was warned of the consequences of a failure to improve his performance .Ultimately , on the basis of the submissions, documentation and evidence presented at the hearings I find on the balance of probabilities  that the respondent’s version of events  i.e. that the claimant was dismissed because of poor performance was more convincing than the claimant’s allegations that the performance issue was being engineered by the employer in response to the claimant’s refusal to travel to L. I do not accept that the procedural flaws identified by the claimant outweigh the substantive matter of his performance/ competence .  Given all of the circumstances .I  find the respondent was not in breach of the Unfair Dismissals Act and accordingly I do not uphold the complaint of unfair dismissal.

I find the employer’s actions to be within the bounds of reasonableness and declare the complaint of unfair dismissal is not well founded

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