Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:  06624/09

 

 

 

CLAIMANT:                      Darren McKelvey

 

 

RESPONDENTS:              1.  Corporate Express (Northern Ireland) Ltd t/a Staples

                                        2.  Karen Hamilton

                                        3.  Vanessa Reese

                                        4.  Siobhan O’Connor

 

 

DECISION

It is the unanimous decision of the tribunal that the claimant was unfairly dismissed by the first-named respondent and the first-named respondent shall pay the claimant £9,241.44.

 

 

Constitution of Tribunal:

Chairman:              Ms Bell

Panel Members:     Mrs Walker

                              Mrs Gregg

 

Appearances:

 

 

The claimant appeared and represented himself.

 

The first, second, third, and fourth-named respondents were represented by Ms Karen Hamilton and Ms Vanessa Reese both employees of the first-named respondent company.

 

 1.      The claimant in his claim complained that he had been unfairly dismissed for not achieving sales targets, that no disciplinary procedure was followed, that he was not invited in writing to a meeting, was not given the opportunity to be accompanied by a colleague, nor given a right of appeal against the decision to dismiss him.  The claimant also complained that he had not received a new contract of employment on his change of job from Account Manager to new Business Development Executive. 

 

 2.      One response was entered by the first-named respondent in respect of the proceedings against all the above-named respondents, in which the first-named respondent confirmed that the claimant was dismissed for failure to achieve the sales target set, that it is not company policy to invoke the disciplinary procedure if sales people are not achieving targets, and that as the claimant was “outwith the disciplinary procedure, he was not afforded the rights ordinarily available to the employee within this process i.e. the right to have a colleague in attendance, and the right to appeal.”  Furthermore the first-named respondent contended that the claimant did not raise any complaint with it regarding his dismissal and had only been in contact since then in relation to his commission payments.

 

 3.      Further to the order that the tribunal made on 11 September 2009 amending the title of these proceedings, it was confirmed at hearing that the claimant was employed by Corporate Express (Northern Ireland) Ltd, now trading as Staples, and the title of the proceedings is accordingly now amended from as provided in that order, to

                                                    

                         

 

Darren McKelvey  v  1.  Corporate Express (Northern Ireland) Ltd t/a

                                       Staples

2.   Karen Hamilton

3.   Vanessa Reese

4.   Siobhan O’Connor

 

 

EVIDENCE

 

 4.      The tribunal considered the claim, response, documents handed in by the claimant and on behalf of the respondents and heard oral evidence from the claimant, the second and third-named respondents.

 

 

ISSUES FOR THE TRIBUNAL

 

 5.      The issues before the tribunal were as follows:-

 

1.               Has the claimant been unfairly dismissed?

 

2.               Is the respondent in breach of its duty to provide a statement of particulars of employment?

 

 

FINDINGS OF FACT

 

 6.      The claimant was employed on 1 May 2008 as an Account Manager to introduce and develop new business accounts for Corporate Express (Northern Ireland) Ltd, an office supplies company, at which time the claimant received a letter of offer from the first-named respondent outlining the main particulars relating to his employment.  The claimant signed the letter of offer acknowledging receipt of it on 22 April 2008.  The first-named respondent is part of a group of companies trading throughout Europe, its Head Office is in Dublin and it has two further offices in the South of Ireland.

 

 7.      At the beginning of 2009 the claimant was offered and took on a new role as Business Development Executive for the first-named respondent, in which he was to go out and meet with people and open as many new customer accounts as possible, to then pass the new accounts over to one of the first-named respondents two sales account managers or two telesales employees, who were then to be responsible for “growing” the account.  An annual sales target of £250,000 was set for the claimant being the same target as applied to all the company’s new business development employees.

 

 8.      Ms Hamilton the second-named respondent and the claimant’s immediate boss, gave evidence that the claimant was brought into his new role from January 2009, however the claimant disagreed and gave evidence that his role actually changed over in March 2009 because he was told to keep on the management of accounts under his role as a sales manager alongside his new role until then.  The tribunal accepts the claimant’s evidence supported by Ms Hamilton’s subsequent acknowledgement that she did not know the correct dates as there was a lot going on with the respondent company in January and February 2009.

 

9.              The claimant’s main particulars of employment did not change with his new role, save that he was to have a new commission structure which he did not received until May 2009.

 

10.           The tribunal accepts the second-named respondent’s evidence that she had a number of informal discussions with the claimant after he fully took on his new role, as to how to best perform in his new role and raised issues informally with him as to the amount of new accounts that he was opening, the customer spend and concerns at the considerable shortfall between his sales figures against the annual sales target set.  The claimant felt however that his performance was being inhibited by the lack of a proper support structure for him, the account managers and telesales employees being too busy to call out or to telephone new customers for whom he had opened accounts and upon which his sales figures were then based, the claimant raised this concern with the second-named respondent at a meeting on 18 April 2009.

 

11.           It was the second named respondent’s view however, which she put to the claimant in response, that it was his responsibility to keep track of new customer accounts after opening to review customer spend, for him to contact account managers where customer spend was an issue to see if there was a problem and where necessary to revisit a new customer.  The second-named respondent offered to assist the claimant where possible so that he could spend more time “out on the road” rather than in the office to try to improve matters and e-mailed the telesales and account managers to stress the importance of them calling out with the new account customers for accounts opened by the claimant.

 

12.           Despite the steps taken by the second named respondent and numerous requests by the claimant to account managers he still had difficulty in getting account managers to come out with him to meet new clients in order to complete account handovers and only found that this began to change in May 2009.  The second named respondent on her own evidence acknowledged that she was not aware of this situation. 

 

13.           On 8 May 2009 the second named respondent suggested that the claimant should manage new accounts opened by him for three months rather than handing them straight over to telesales or account managers so that he could try to maximise customer spend. 

 

14.           On 22 May 2009 the claimant spoke to the second-named respondent because he believed that his commission payment was not correct, he was informed that this was because commission was not due to be paid out on a new account until it had been trading for six months whereas the claimant had expected payment after three months trading.

 

15.           On 22 May 2009 Ms Vanessa Reese the third-named respondent, who was employed by the first-named respondent as its HR Manager and Ms Siobhan O’Connor, the fourth-named respondent who was employed by the first named respondent as its Sales Director in the Belfast Office discussed the claimant’s performance.  The fourth-named respondent was not prepared to stand-over the claimant’s sales figures any longer and a decision was made, despite being aware of the statutory dismissal and dispute resolution procedures and the claimant’s statutory rights, to dismiss him immediately.

 

16.           Approximately 23 new customer accounts were opened by the claimant between January 2009 and late May 2009, on which there was an average total spend of £9,000.

 

17.           The claimant called into work at lunchtime on 28 May 2009 and was informed by the fourth named respondent at 1.15pm that he was being paid off on account of his performance, no prior warning was given to him that his job was at risk, he did not receive any written invitation to a meeting setting out the reasons for action, he was not offered the opportunity to be accompanied to the dismissal meeting or informed of a right of appeal against the decision to dismiss him.

 

18.           Prior to his dismissal the claimant received pay of £403.85 gross per week being £319.10 net.  The claimant had the use of a company car for which the personal use element was valued for tax purposes at £71.50.  On termination of his employment the claimant received four week’s pay in lieu of notice from the first-named respondent.  Following his dismissal the claimant claimed Job Seeker’s Allowance and has not at the date of hearing obtained a new job. 

 

19.           The claimant sought an order for compensation only on a finding of unfair dismissal. 

 

THE LAW

 

20.     The Employment (Northern Ireland) Order 2003 at Schedule 1 sets out Statutory Dismissal and Disciplinary procedures to be followed as a bare minimum where applicable, by an employer contemplating dismissal or taking disciplinary action against an employee.  The standard procedure in summary, consists of three steps requiring an employer to provide an employee at Step 1 with a written statement of grounds for action and an invitation to a meeting, at Step 2 a meeting and at Step 3 an appeal. 

 

21.     Under Article 126 of the Employment Rights (Northern Ireland) 1996 Order an employee has the right not to be unfairly dismissed by his employer.  Article 130 sets out how the question of whether a dismissal is fair or unfair is to be determined, however under Article 130A(1) an employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if -

 

(a)      one of the procedures set out in Part 1 of Schedule 1 to the Employment (Northern Ireland) Order 2003 (Dismissal and Disciplinary Procedures) applies in relation to the dismissal,

 

(b)            procedure has not been completed, and

 

(c)            the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements.

 

There is provision at Article 17 of the 2003 Order for an uplift to be applied to awards in proceedings before an Industrial Tribunal relating to a claim under any of the jurisdictions listed in Schedule 2 [which includes Article 145 of the 1996 Order (Unfair Dismissal)] by an employee where it appears to the Industrial Tribunal that a claim to which the proceedings relate concerns a matter to which one of the statutory procedures applies, the statutory procedure was not completed before the proceedings were begun, and the non-completion of the statutory procedure was wholly or mainly attributable to failure by the employer to comply with the requirement of the procedure, in which case it shall (subject to paragraph (4) therein) increase any award which it makes to the employee by 10% and may, if it considers it just and equitable in all the circumstances to do so, increase it by a further amount, but not so as to make a total increase of more than 50%.

 

22.     Where an Industrial Tribunal finds the grounds of complaint of unfair dismissal are well-founded the Orders it may make are set out at Articles 146 of the 1996 Order and include reinstatement, re-engagement and otherwise compensation.  How compensation is to be calculated is set out in Articles 152 to 161.

 

23.     Article 23 of the 1996 Order as amended at the time of the claimant’s dismissal, provides for the purposes of calculating a basic award of compensation for unfair dismissal that the amount of a week’s pay shall not exceed £350.

 

24.     Article 154(1 A) of the 1996 Order provides that where an employee is regarded as unfairly dismissed under Article 130A(1) and the basic award amount is less than four week’s pay then the Industrial Tribunal shall increase it to the amount of four week’s pay unless under Article 154(1 B) it considers the increase would result in injustice to the employer. 

 

25.     An employer is required to provide a written statement of particulars of employment to an employee under Article 33(1) of the 1996 Order.  There is provision under Article 27 of the 2003 Order such that where the employer is in breach of that duty when the proceedings were begun and the tribunal considers it just and equitable in all the circumstances, for the tribunal to increase the award by an amount equal to either two or four week’s pay.

 

26.     Harvey on Industrial Relations and Employment Law/Division D1 Unfair Dismissal 19, discusses compensation and how this should be assessed on a finding of unfair dismissal.  The overriding duty imposed on a tribunal is to award compensation which is just and equitable in the circumstances.  Paragraph [2546] discusses speculative loss where a dismissal might have occurred and advises that “in some cases it is difficult to be certain whether the dismissal would have occurred had the employer acted fairly.  Classically this problem arises in circumstances where the employer has failed to act fairly because he has failed to apply certain procedural safeguards which might, had they been applied, have led to the employee retaining his job.  Prior to the decision in Polkey  v  AE Dayton Services Ltd [1987] IRLR 503, [1988] ICR 142, HL, the Courts took the view that if on the balance of possibilities the dismissal would have occurred, then the dismissal should be held to be fair.  This view was embodied in the principle of British Labour Pump  v  Byrne which the House of Lords in Polkey held was not good law.  Lord Bridge indicated, however, that the chances of whether or not the employee would have been retained must be taken into account when calculating the compensation to be paid to the employee.  Accordingly, if the prospects of the employee having kept his job had proper procedures been complied with were slender, then there would be a significant reduction in compensation.”  Reference is made to Browne-Wilkinson J in Sillifant  v  Powell Duffryn Timber Ltd [1983] IRLR 91 as putting it; “there is no need for an “all or nothing” decision.  If the [Employment] Tribunal thinks there is a doubt whether or not the employee would have been dismissed, this element can be reflected by reducing normal amount of compensation by a percentage representing the chance that the employee would still have lost his employment.”

 

APPLYING THE LAW TO THE FACTS FOUND

 

27.     The tribunal is satisfied that the standard procedure of the statutory dismissal and disciplinary procedures was applicable to the claimant’s dismissal but on the third-named respondent’s own admission, despite being aware of the required minimum dismissal and disciplinary procedure, it was not followed.  The tribunal finds that the claimant’s dismissal by the first-named respondent was automatically unfair under Article 130A(1) of the 1996 Order, the non-completion of the dismissal and disciplinary procedures being wholly attributable to the failure of the first-named respondent to comply with its requirements. 

 

28.     On the evidence before the tribunal it is clear that the claimant was not aware of the seriousness of the situation regarding his performance, that his shortcomings in respect of his performance and the risk to his job in the absence of significant improvement were not drawn clearly and formally to his attention through a proper procedure being followed, at a minimum meeting being the requirements of the standard procedure, which might have galvanised him into making improvements with proper support from the first-named respondent.  On the claimant’s evidence he received no warning whatsoever from the first-named respondent and was not aware that his job was at risk by reason of his performance. 

 

29.     Evidence was given on behalf of the first-named respondent that although being aware of the required statutory procedures it did not follow these but proceeded to dismiss the claimant as a result of the fourth-named respondent’s insistence that she could not continue to stand-over each week the claimant’s poor sales figures. In view of this, together with the most considerable margin by which the claimant was short of targets on a month on month basis and possibility based on the claimant’s monthly sales figures that the claimant was not going to come anyway close to achieving his annual sales target, the tribunal finds it impossible to make a clear determination whether the claimant’s dismissal would have occurred in any event if correct procedures had been followed or whether he would have otherwise been retained.  The tribunal consider in all the circumstances there to be a 70% chance that the claimant would still have lost his employment had proper procedures been followed and on that basis find it just and equitable to reduce the compensatory award by 70% to reflect this.

 

30.     In light of the first-named respondent’s admitted knowledge of its obligations under the statutory dispute resolution procedures and deliberate decision to wholly ignore these the tribunal considers it just and equitable in all the circumstances to increase the compensatory award by 40% under Article 17 of the 2003 Order.

 

31.     The tribunal is satisfied that the claimant received a written statement of particulars of employment around the commencement of his employment with the first-named respondent and that these particulars remained the same from his change of job to Business Development Executive save in relation to his commission structure, that he received his new commission structure in May 2009 and as such that the respondent is not in breach of its duty to provide a written statement of particulars of employment to him.

The tribunal awards compensation as follows:-

 

 

Basic Award

 

          As the claimant’s basic award would amount to less than four week’s pay the tribunal increases it to an amount equal to four week’s pay under Article 154 of the 1996 Order.

 

          4  x  £350 (Statutory Maximum)                                  =        £1,400.00

 

          Compensatory Award

 

          Based on the claimant’s undisputed evidence

the tribunal considers the following compensation

just and equitable:

 

          Loss to Date of Hearing

 

          28 May 2009 to date of hearing being 34 weeks less 4 weeks for which claimant received pay in lieu of notice.

 

Say 30 weeks @ £319.10                                          =        £9,573.00

         

Loss of Statutory Rights                                                          £300.00

 

Loss of use of Company car

 

28 May 2009 to date of hearing say

7 months @ £71.50 per month                                    =            £500.50

 

         

 

 

 

Future Loss

 

          The tribunal consider it just and  equitable to award

compensation for 26 weeks @ £319.10                      =        £8,296.60

 

          Total Compensatory Award                                        =        £18,670.10

 

 

          Compensatory Award After 70% Reduction

 

          To reflect chance claimant would still have lost his job

 

          £18,670.10 - £13,069.07                                            =        £5,601.03

 

         

Compensatory Award After 40% Uplift

 

Under Article 17 of the 2003 Order

 

£5,601.03 + £2,240.41                                              =        £7,841.44

 

 

CONCLUSION

 

32.     It is the unanimous decision of the tribunal that the claimant was unfairly dismissed by the first-named respondent and orders the first-named respondent to pay the claimant total compensation of £9,241.44.  The tribunal dismisses the claimant’s claims against the second, third and fourth-named respondents.

 

33.     This award is subject to the Employment Protection (Recoupment of Job Seeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996.  The attention of the parties is drawn to the Notice below which forms part of this decision. 

 

34.     This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

 

 

 

 

Chairman:

 

 

Date and place of hearing:         22 January 2010, Belfast.

 

 

Date decision recorded in register and issued to parties:

Case Ref No:  06624/09

 

CLAIMANT:                    Darren McKelvey

 

 

RESPONDENTS:              1.  Corporate Express (Northern Ireland) Ltd t/a Staples

                                        2.  Karen Hamilton

                                        3.  Vanessa Reese

                                        4.  Siobhan O’Connor

 

 

 

ANNEX TO THE DECISION OF THE TRIBUNAL

 

STATEMENT RELATING TO THE RECOUPMENT OF JOBSEEKER’S ALLOWANCE/INCOME SUPPORT

 

1.       The following particulars are given pursuant to the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996.

 

 

          The applicant may not be entitled to the whole monetary award.  Only (d) is payable forthwith; (b) is the amount awarded for loss of earnings during the period under (c) without any allowance for Jobseeker’s Allowance or Income Support received by the applicant in respect of that period; (b) is not payable until the Department of Health and Social Services has served a notice (called a recoupment notice) on the respondent to pay the whole or a part of (b) to the Department (which it may do in order to obtain repayment of Jobseeker’s Allowance or Income Support paid to the applicant in respect of that period) or informs the respondent in writing that no such notice, which will not exceed (b), will be payable to the Department.  The balance of (b), or the whole of it if notice is given that no recoupment notice will be served, is then payable to the applicant.

 

2.       The Recoupment Notice must be served within the period of 21 days after the conclusion of the hearing or 9 days after the decision is sent to the parties (whichever is the later), or as soon as practicable thereafter, when the decision is given orally at the hearing.  When the decision is reserved the notice must be sent within a period of 21 days after the date on which the decision is sent to the parties, or as soon as practicable thereafter.

 

3.              The applicant will receive a copy of the recoupment notice and should inform the Department of Health and Social Services in writing within 21 days if the amount claimed is disputed.  The tribunal cannot decide that question and the respondent, after paying the amount under (d) and the balance (if any) under (b), will have no further liability to the applicant, but the sum claimed in a recoupment notice is due from the respondent as a debt to the Department whatever may have been paid to the applicant and regardless of any dispute between the applicant and the Department.