Worker awarded €42,000 for unfair dismissal

A software company’s “policy” of never giving employment references in writing “contributed” to a salesman’s loss of earnings when he was left out of work following his unfair dismissal, a tribunal has found.
The salesman, Graziano D’Amato, has been awarded €42,000 following a ruling by the Workplace Relations Commission (WRC) that his former company, TripAdmit Ltd, breached the Unfair Dismissals Act 1977 when it dismissed him.
Mr D’Amato had claimed in a submission to the tribunal that the lack of a letter of reference from the company had damaged his prospects – and was part of the reason he was still out of work nearly nine months on from his dismissal. The company’s chief executive said it was his “policy” not to give references in writing.
Giving evidence to the WRC in February this year, the chief executive of TripAdmit, John Maguire, said that having opened for business in 2019, just 11 months before the Covid-19 pandemic hit, the firm was still relying heavily on investment fundraising to stay in business.
He said that due to a combination of a lack of funding and investment it had “reduced headcount” from 14 to 7 – with Mr D’Amato the first to go.
It had been made clear to Mr D’Amato he was stepping into a “challenging role with aggressive targets” when he joined the firm in September 2021, he added.
“Graziano only ever achieved 46% of his target over the period, and only achieved the target once in 19 months. Of those clients, only 9%, so one in ten, ever generated revenue for TripAdmit, which is far below anything that we required,” Mr Maguire said.
“We’re a loss-making company. We can’t sustain losses indefinitely,” he said.
“Admittedly the termination reason as per the notice of termination could have been worded better, however given the conversations … in our opinion it was clearly communicated that his performance needed to improve,” Mr Maguire said.
However, Mr D’Amato said: “[The line manager] didn’t mention sales performance. Basically, the customers using the TripAdmit software were not generating enough revenue – that’s the wording in the letter. That’s the essential point in all this – he’s telling me the customers aren’t making money. It’s not because I was not hitting the target.”
Mr D’Amato said his termination letter read: “Unfortunately we have to let you go because the performance of your customers, they’re not what we want.”
“He never said you are under warning, in any shape or form. I regard myself as professional in any sense, I regard myself as a fluent English speaker, so if we ever had a chat about it, I would understand. I never received a formal warning in any shape.”
Mr D’Amato then produced a document and said: “What about this article that came up a few weeks ago where he went to London? If you have a shortage of funding, you don’t go to America twice, to the trade show,” he said.
In reply, Mr Maguire said: “With regard to fundraising and trips to London … we’re an international business, that’s part of doing business, we fly as cheap as we can, we stay as cheap as we can, if we don’t do it we can’t grow our business.”
“It’s not as if we’re going to Vegas flippantly, staying in five-star hotels and having a ball,” he added.
Addressing the calculation of his financial losses from dismissal, Mr D’Amato said he was still out of work at the time of the hearing last February and that his former employer “will not give him a written reference”.
Mr Maguire said it was “really, really difficult” to find sales people of Mr D’Amato’s level in Ireland and said: “I would question how hard it is to actually find a sales job.”
“As a policy, I do not provide any employees with a written reference and have never done so in my entire career … I have stated I will always be on hand to provide a verbal reference if asked. Graziano has my mobile number,” he added.
In a decision published on Thursday, adjudicator David James Murphy remarked that there was “probably a lawful route” open to TripAdmit whereby it could have made Mr D’Amato redundant, as its business was “struggling” and it was changing its model.
However, the termination letter had “failed to clearly identify” whether it was the performance of the business that was at issue, or because Mr D’Amato was “failing to perform his duties properly”.
“It appears to suggest that the complainant was being let go due to his client base not being economic, but that this was also an issue related to his performance somehow,” Mr Murphy wrote.
However, there was neither any mention of redundancy nor any written evidence of the company having raised performance issues with Mr D’Amato, Mr Murphy added.
The adjudicator added the company was “still not entirely clear of the grounds that they seek to rely on” at the point of the matter coming up for hearing.
“In the circumstances, the respondent has failed to demonstrate substantial grounds justifying the dismissal and the claim must succeed,” he wrote.
Mr Murphy found that TripAdmit “contributed to [Mr D’Amato’s loss of earnings] by refusing to provide a written reference without any justification”. However, he added it would be “unreasonable” to presume that Mr D’Amato’s ongoing loss of earnings would continue for a full two years, the upper limit of his jurisdiction, and limited the award to one year’s salary.
He awarded Mr D’Amato €42,000 for his losses.