FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : FIRST ACTIVE PLC (REPRESENTED BY THE IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Mr Flood Employer Member: Mr Pierce Worker Member: Mr Rorke |
1. Appeal by the Company against Rights Commissioner's Recommendation No. 325/99GF.
BACKGROUND:
2. The appeal concerns a worker, employed by the Society as a Branch Manager, who had been demoted for one year to the level of Assistant Branch Manager on the 15th of January, 1998. Following an agreement made between the Society and the worker, the Society gave an undertaking to consider favourably reinstating the worker after one year subject to a review of his performance. However, following the performance review the Society decided not to promote the worker to Branch Manager on the grounds that his performance was not up to the required standard (details supplied to the Court). The Union claimed that the worker was unfairly treated and referred the issue to a Rights Commissioner for investigation. On the 22nd of June, 1999 the Rights Commissioner issued his recommendation as follows:-
While I accept the claimant expected to return to his pervious position as a matter of course, he obviously underestimated the management's commitment to the performance review.
I have concluded that some ambiguity existed regarding the introduction of the performance measures and for that reason I have decided to recommend the claimant be re-instated to his position as Branch Manager effective from July 1st 1999."
On the 15th of July, 1999 the Company appealed the recommendation to the Labour Court. The Court heard the appeal on the 20th of October, 1999.
COMPANY'S ARGUMENTS:
3. 1. The agreement between the Society and the worker stipulated that his performance as Assistant Manager would have to be satisfactory in every way before the Society could consider promoting him to Branch Manager. Following the agreement of January, 1998 Management met the worker and his Branch and Regional Managers in February, 1998, to clarify precisely what was expected of the worker in his role as Assistant Manager.
2. The worker's 1998 performance was reviewed once the full Branch results were available. The worker's performance approval was 1½ on a scale of 5, and was unsatisfactory. Management held a meeting with the worker together with the Regional and Branch Manager to conduct the review. The worker was asked if he wished to make further submissions before the final decision was reached. He availed of this opportunity and submitted further information by letter dated 10th of March, 1999. After further consideration the Society confirmed it could not promote the worker and set out its reasons by letter dated the 16th of March, 1999. Only four of sixteen branch targets were achieved, only 89% of branch profitability was achieved - the second lowest % achievement of any Society branch; a very high level of lending introduced; no home loan repayment protector policies were sold; no personal loan repayments protector policies were sold and no pension sales achieved during 1998.
3. The worker's under-performance has continued and in May, 1999 he was behind targets in all but one of sixteen business targets. As of the 8th of October he is behind in twelve business targets of thirteen.
4. The Society cannot re-instate the worker to the post of Manager until his performance and service as Assistant Manger is satisfactory in all respects as per the agreement of January, 1998. The Society is purely seeking that the worker achieves the majority of his targets including his Branch profitability at a level comparable with other Branch Managers. Once the worker demonstrates that he is capable of performing as a Branch Manger to the same standard as the majority of his peers, the Society will re-instate him to the position of Branch Manager.
UNION'S ARGUMENTS:
4. 1. The Society is not prepared to give "very favourable consideration to the worker's re-instatement" and has adopted a nit-picking, unfair and erroneous approach. Calculation of Branch profitability of 89.5% which if treated as 90% would have resulted in the worker's score being 2.0 (identical to 20 other Branch Managers). The Branch profitability figure for 1998 was not communicated to the worker until February, 1999, two months after the year end in question. This was not included with the 16 targets mentioned in the Company letter of the 3rd of March, 1998. Given that the worker only took up his post at the end of January, 1998 the correct measurement of performance should exclude January, 1998 and include January, 1999. This adjustment results in an over achievement for New Lending instead of an under achievement as claimed by the Society.
2. The outstanding performance of the Branch to which the worker is attached compared with the average over the Society's network is illustrated by the figures for New Lending in 1998, Loan Book (December, 1997) and % added in 1998. It is unreasonable to suggest that such an over achievement by this Branch, considered a small one, does not deserve "very favourable consideration". Within the total Branch profitability target of £307,000 the New Business contribution for 1998 was £107,000 equating to 35% of the total target. This 35% is higher than that targeted for most other branches and was out of line with targets set for other branches. An average profitability in line with other branches would have resulted in a score of at least 4.
3. These are examples of the "ambiguity regarding the introduction of the performance measures" highlighted by the Rights Commissioner.
4. The summary of the worker's performance to the 3rd of September, 1999 shows a continuation of the performance for 1998 in the key area of Residential Lending which is the Society's core business. In a comparison with other branches the worker's branch is the only one exceeding target up to the 3rd of September, 1999. The Society's appraisal for the period January - June, 1999 states that the worker's performance was "adequate". He disputes the basis of the classification of these figures on the basis that the maximum score possible from this system is 305 points which means that the score of 230 points for the Branch equals 75%, which merits a more generous description than "adequate".
5. Since February, 1999 the Branch is no longer a satellite one with the worker reporting directly to the Regional Sales Manager. It is evident that the Society Management views the worker's performance as satisfactory and he is now operating with full Branch Manager responsibility without his deserved status and original salary level.
6. The ambiguities highlighted by the Rights Commissioner are still present in the 1999 Measurement System; the over-performance compared to budget and other branches and the decoupling of the Branch from the main one in the nearby town. These ambiguities, inconsistencies and unfairness being displayed by the Society reinforce the worker's claim for re-instatement. The worker is operating effectively as a full Branch Manager with all the responsibilities of the post. There is no justification for any further delay and given his impressive performance the worker should be restored as Branch Manager.
DECISION:
The Court, having considered all the written and oral submissions made by the parties, agrees with the Rights Commissioner's findings, that there was ambiguity regarding the exact criteria to apply for reinstatement of the claimant
The Court finds that the Rights Commissioner's recommendation is the most appropriate approach in the case. The Court, therefore, upholds the Rights Commissioner's recommendation and rejects the appeal.
The Court so decides.
Signed on behalf of the Labour Court
Finbarr Flood
16th November, 1999______________________
T.O'D./D.T.Chairman
NOTE
Enquiries concerning this Decision should be addressed to Tom O'Dea, Court Secretary.