Worker

Employer

Anonymised Parties

A Sales Representative

An Energy Company

Representatives

Self- Represented

Mark Comerford of  IBEC

Act

Dispute Reference No.

Date of Receipt

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

IR - SC - 00001580

25/07/2023

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

IR - SC - 00001581

25/07/2023

The issues in contention were two Section 13 Industrial Relations Act,1969 disputes.

The first was the non-implementation by the Employer of the Company Bullying and Harassment Procedures especially in relation to the Worker and his interactions with his Sales Managers

The second was in relation to various allowances especially Fuel and Subsistence “Meal” allowances.

The employment began on the 8th May 2018 and ended on the 27th March 2023. The rate of pay was stated to have been €538:00 Gross for a 40-hour week.

The Worker was self-represented. He gave a detailed Oral Testimony supported by a written submission and a detailed complaint form.

1:1        IR- SC – 00001580 Bullying and Harassment Procedures

The Worker was employed by the Energy Company as a Door to Door Salesman, selling Pre-Paid Power packages for Gas and Electricity.

It was recognised that the Sales climate in years 2021 to 2023 was challenging due to worldwide energy price hikes associated with the Ukraine war.

 The Worker detailed an escalating series of incidents/interactions involving Customers beginning in mid-2022. It was pointed out by the Worker that he was completely an innocent party in these interactions with often very abusive and in some cases intoxicated individuals. In one case he had to intervene to save a colleague from a physical assault and in another case, he had been attacked/bitten by a dog. In another case he had been assaulted by a scooter driving teenager who had attempted to steal his Tablet computer. (It was agreed in cross examination that Door to Door selling of Electricity /Gas in the middle of a period of record energy price increases (Ukrainian War etc) was always going to be difficult).

The Worker raised these customer issues with his Managers, Mr W and Mr O’C and received little or no satisfactory responses. On the 9th December 2022 the Worker and some other colleagues were present at a Sales Meeting with the Managers and were informed of the need to increase Sales to at least two per day or they would be “let go”.  The Worker felt completely “stressed out” and went on Sick leave until 3rd January 2023. A further meeting with Mr O’C and Mr W took place in Bewley’s Hotel at the Airport on the 3rd January 2023 They basically said to the complaint, he stated, that “He was on his own in the field” and to stop ringing /” annoying” them with minor incidents.

The dog biting incident took place on the 27th January 2023. Mr O’C undertook to investigate but nothing came of it. A further incident involving the Company Tablet Computer/ took place on the 3rd March 2023 involving Manager Mr W. The Tablet had gone faulty. Mr W was delivering a replacement to the field site where the Worker was working.  He, Mr W, was verbally very abusive to the Staff on this occasion alleged the Worker.

These had been reported to his local Managers, Mr W and Mr O’B.

Their responses had been very unsatisfactory.  At all times the Worker felt he was being bullied by the Managers contrary to all accepted procedures. The company had policies but unless HR were directly involved Managers simply ignored them

1:2        IR- SC – 00001581 – Allowances

The Worker alleged that the Allowances, for Fuel and Meals were never properly standardised and were operated in a most arbitrary manner by the Managers. The Fuel Allowance was paid by the Manager, Mr O’C in a most ad hoc fashion and was completely arbitrary.

2:1        IR- SC – 00001580 Bullying and Harassment Procedures

The Employer has a well-developed and published set of Bullying and Harassment Procedures. At no stage during his employment were any of the procedures utilised. Indeed, on his Resignation, Ms R, from HR, had contacted him to ask him to reconsider his resignation and make full use of the Procedures. He had declined.

In his Oral testimony and under cross examination the Worker had admitted that he had preferred, as a long-standing Salesperson, going via his Managers before invoking the HR Policies. During his period of Employment, no issues had been raised of Bullying, Harassment or Penalisation.

2:2        IR- SC – 00001581 – Allowances

The Company had an agreed Lunch Allowance of € 8 per day after a 4-hour work period was completed. The Employer produced records to show that the correct allowance had been paid to the Worker.

A “Fuel” allowance had been arrived at by local arrangement with Manager Mr O’C. It was never fully defined and basically varied according to the Work location, time spent travelling and general inconvenience.

It was stated that it was paid regularly to the Worker.

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

2:1        IR- SC – 00001580 Bullying and Harassment Procedures

Oral testimony was crucial here. The Worker, an experienced Salesperson, stated that he had raised multiple issue with Mr W and Mr O’C, his Managers. Much discussion took place over multiple incidents as detailed above. In the Oral Testimony from Ms R, it was clear that the Company had an extensive suite of very good HR Policies.  In Oral testimony from Mr O’C, which was overshadowed by the absence of his Managerial superior, Mr W, it was open to the view that the Sales Climate of late 2021 and 2022 was very challenging. There was no wilful or malicious Bullying of the Sales force but the pressure of KPIs and Targets in a challenging Marketplace may have on occasion lead to undiplomatic exchanges between the Managers and the Salesmen. Manager, Mr W, was identified by the Worker as being particularly abrasive on occasions.

In Adjudication summary, the position appears to be that the Direct Managers were overly direct in their communications, but it would be impossible to say that a policy of direct and malicious Bullying was in place.

The Code of Practice for Employers and Employee on the Prevention of Bullying at Work SI 17 of 2002 refers to

Repeated inappropriate behaviour, direct or indirect, whether verbal, physical or otherwise, conducted by one or more persons against another or others, at the place of work and /or in the course of employment, which could be reasonably regarded as undermining the individual’s right to dignity at work. An isolated incident of the behaviours described in this definition may be an affront to dignity at work, but as a once off incident ,is not considered to be bullying.”

The difficulty for the Employer is that there were a number of incidents generally seeming to involve Mr W who was not present and had to be taken as hearsay.

The Worker involved was very experienced in this difficult field and did not appear to be unduly upset although he had submitted Stress Certs on Two occasions. The reaction of the HR Department was to immediately offer the Procedures although the Worker had resigned.

In his Oral testimony the Worker had made it clear that he knew his own worth and when the Employer job became too much aggravation he simply moved to another Employer in a very similar field.

In overall conclusion the Adjudication view has to be that the Employer Polices, while excellent, need to be reinforced with operating Managers. Sales pressures in a particularly challenging scenario in 2022/2023 are not an excuse to turn a blind eye to good procedures.

In this case the Employer lost the services of a very good and seasoned Salesman as a possible result of this oversight.

The recommendation has to be that the Employer review the Training of Front-Line Manager’s and emphasise that there are no “acceptable short cuts” even in a very challenging marketplace.

As a gesture of awareness the Worker should receive a small redress payment of €250.

3:2        IR- SC – 00001581 – Allowances

From the evidence presented the Meal allowances were paid satisfactorily.

The “Fuel” allowance was very ambiguous -it was introduced as a good will gesture by Mr O’C. It was never a formal Company documented policy. The Oral testimonies were ambiguous and in large measure contradictory.

The Adjudication view was that a small payment of € 150 be made to Worker in lieu of Fuel Allowances either missed or misunderstood .

This view was based on the balance of probabilities and the overall persuasive demeanour of the Worker and Employer Manager , one a very seasoned Sales Representative , unlikely to be inventing a case and a competent Operating  Manager ,who out of good will had arranged an ad hoc payment arrangement.

The Fuel Allowance should be regularised as a formal policy to avoid unnecessary confusions.

Bullying, Harassment, Allowances.