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I don't seem to be able to upload the letter, so ill post below. EMAIL RECEIVED ************************, 11.28pm, Saturday 28th Jan. ------------------------------------------------------------------ For the Attention of Hayden ****** of ********, This is to raise a personal grievance between Ian ****** and Hayden ****** for the issues Mentioned below. This Email is to raise a personal grievance between yourself and Ian ******, who was Employed by ******* and reported to yourself from the 11th of April 2016 until Employment ended on the 28th of November 2016 due to the Position of Commercial Business Development Manager being made Redundant. The Personal Grievance is regarding the Redundancy, the manner in which it was implimented and the reasons given for the Redundancy. It also raises the issue of the manner in which Ian ****** was treated at points in the Employment, along with some unnecessary comments that were made on a regular basis (which we would like to hear your version of how these would have been helpful to an Employee coming from an Employer regarding motivation and performance). On the 31st of October 2016, following a quick discussion on Friday the 28th of October 2016 Ian ****** received a letter informing him that his position was being made redundant at ******, giving him 4 weeks notice as required by the contract. This letter stated that the Position was being made Redundant due to not having worked out regarding the Commercial Customers that were not being brought to the Company, However, the Position had been changed to a Residential Sales role around three Months prior to this Letter and the Commercial part of the job had been sidelined to something to do to make up Ian's hours to the 40 per week that he was doing and was not the Role he was doing anymore apart from if he had some left over hours to make up. It was also mentioned at the brief meeting that the reason was because you wished for Ian to take a paycut in the way of commission, which was put accross as a request to agree to a target that would have been basically unreachable over the Christmas and New Year period due to the Holidays that would have meant that December and January would have been half Months. The reason that you gave for this was that you couldn't afford to keep Ian on at this time of year due to the previous year (when the Company was very different and even more Importantly Ian was not working there to have his performance judged) the Company was quiet. This implies that you have judged Ian's performance for the Months that were at that point in time still to come and on other Peoples performance. It was mentioned at the brief discussion that you were taking a loss having Ian there and suggested a $40,000 Monthly target before paying any commission (noting that Ian's original commission of 10% had been dropped to 5% earlier in the Employment), but Ian had already been getting around this amount in Sales for the Company in the months preceding this suggestion. You had mentioned you needed $10,000 worth of Sales to pay for Ian's wages and other costs and this amount would change whenever you wanted to suggest some kind of negative pay change to Ian, being $40,000 worth of Sales by the time you suggested the target of the same amount. Based on the fact that at the rate Ian was going (making around $40,000 per month in Sales and improving most Months) he would have been making the Company around half a Million Dollars per Year. I find it very hard to believe he was making your Company a loss. Also reading the Comment on your face book page in December about 2016 being the Company's best year ever along with testimonials from some of Ian's Customers, makes it even harder to believe, though I'm sure there are Bank records etc that would prove that you were if that is the case. The other point is that Ian appeared to be treated in a bit of a derogatory manner, which ranged from trying to belittle him in front of Customers, basically ostricising him in meetings and to blatent bullying behaviour that included regular Racial comments that were said coldly and quite seriously after Ian had let you know he didn't want to be referred to on Racial or National terms or singled out because of this. With what we have here it looks as though there is case now for a grievance for those issues. A reply is expected in the next week regarding whether you accept responsibility for the issues mentioned or if you wish to contest that. Should you wish to contest that there is the option of Mediation or the other option of the Employment Tribunal. Should we not hear back we will decide on which of those to proceed with. This Email is Dated the 28th of January 2017. Ian ****** ------------------------------------------------------------------ No virus found in this message. Checked by AVG - www.avg.com Version: 2016.0.7998 / Virus Database: 4749/13852 - Release Date: 01/28/17
I am reading this now
The first point is that the 90 days to claim the personal grievance starts on his last day of employment, so he is still within time to do so.
When you dismiss someone for performance failures you must go through the proper process of verbal warnings followed by a written warning. You can accelerate this process when there are serious misrepresentations about qualifications, and where there has been serious misconduct. If you want to dismiss on the basis of those serious issues, then you must have a meeting to talk about the issues with him and give him an opportunity to answer. The issue of an attempt to hide customer details would probably be such an issue, but you would need to be very confident that his intention was to take that information with him. That is the purpose of any such final interview when you confront him with the misconduct. If for example you did not have a satisfactory explanation for creating such a folder and concealing this, then that may be a basis for dismissal.
The problem with the broken or damaged equipment can of course be set off against any claim.
If you found that he had misrepresented his qualifications and dealt with him by a pay cut at the time, that really puts that issue to bed. Obviously it would put a question mark on his future employment, but you still need to go through the verbal and written warning process
I mention that because you have not described whether you actually did go through that process. I am happy to discuss that with you
That is an interesting point, because primarily he is claiming a grievance over being dismissed. Normally complaints about issues such as bullying and racism should be raised promptly, and so it is generally an issue of credibility if they were not raised at the final dismissal discussions. He can raise the issues, but as I understand it, it was his performance in terms of the job which was the issue. Those sorts of issues such as racism and bullying are usually raised in the context of someone resigning and claiming constructive dismissal.
Nothing was discussed regarding bullying or racist comments. Re warnings, yes verbal warnings were given, I had bought up issues via email for instance, EMAIL to IAN --- Also as discussed today timeliness is vitally important to me and ******, if you not going to be on time communication is the most important thing. I will let being late today slide once, and only once. The expected result of doing this again will be a warning or a reduction in pay for that specific job (depending on your contract wording). Kind Regards ***** ***** warning given due to lack or performance -------------------------------------- 02/07/16 Dear ***** ******, This file record confirms a verbal warning was given on Friday 1st July in respect of unsatisfactory work performance. The reason(s) for giving this verbal warning (was/were): 1. Failure achieve your minimum sales target in June You are further advised that if there is any further incidence of unsatisfactory conduct by you, or any other breach of the Company Rules that warrant a warning, you shall receive a Formal Written Warning. Yours sincerely Hayden ****** Owner -------------------------------------------
What brought this to a head when you dismissed him?
When you had the final dismissal meeting, did you tell him the purpose of the meeting and did you discuss the failure to meet his sales targets? Was it express at the meeting that it was his failure to meet the sales targets, and what did he say at the meeting when you raise this? I mention these things because the procedure to dismiss someone needs to be carefully done. So for example, if he was not adding sales targets in September, you should have given him a verbal warning over this. So you may have some difficulties in terms of the procedure, but you can set off against this, the fact that he kept lists of customers and contacts. What can happen in these cases is that he might successfully claim failure of procedural fairness, but you can set off against that his attempt to take customer lists, which is a serious matter
The correct procedure if he was not performing, is to give him verbal warnings, followed by a final written warning, that his sales targets had to be met for he would face dismissal. You have shown examples of warnings for lateness and for failing to meet a target, which relate to June and July, and you would have needed a final written warning about a month or so later to confirm he was on notice that his job was at risk unless sales performance improved
The problem is because of procedure not whether you should have fired him. In employment cases it is very well established that you must give verbal warnings then a written warning. The only exception is serious misconduct. In this case while you dismissed him for failing to meet sales targets the issue is whether he was on a final warning when you dismissed him.
If he is here on a work visa, you can share the fact that he has been dismissed with Immigration because he cannot stay without a job. If he doesn't raise the issue about procedural fairness then of course you should not. But if he does consult a lawyer, any employment lawyer would raise the issue. These matters are normally dealt with in an employment mediation where you have an opportunity to make an offer to settle. But you can bring a claim against him in the employment Court about stealing the company information and the damage to the equipment.
Yes, ask him to explain what he wants
That is a good start, and see what he replies