FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : MARKS & SPENCER (IRELAND) LTD - AND - A WORKER (REPRESENTED BY MANDATE TRADE UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr O'Neill |
1. Appeal against Rights Commissioner's Recommendation R-043194-IR-06/TB
BACKGROUND:
2. The issue involves a dispute by the Claimant regarding the Company's appeal procedures of their Performance Development Review. A Performance Development Review (P.D.R.) governs the pay structure in Marks and Spencer's for Section Managers. The Company, MANDATE Trade Union and SIPTU negotiated this policy in 1996 and was designed to award Section Managers who perform above normal. The PDR policy rating breakdown for Section Management is as follows: Effective, Highly Effective and Outstanding. PDRs are carried out on an agreed date so that the Section Manager and their Line Manager may gather evidence to present on the day. The evidence is based on what is known as the "Five Ways of Working" and they are:
- Think Customer
- Be Passionate About Product
- Be One Team
- Own your Own Part in Delivering Results and
- Be Honest, Confident Listen and Learn.
The Union contends that it is clear from the evidence presented to the Line Manager that she did not conduct the PDR in strict accordance with the policy. The category in dispute was in relation to "Be One Team". The Claimant scored Effective in this category. On appeal, the Union contends that an old U.K system of Review was carried out and that this was not in accordance with the policy agreed by the Union/Company.
The matter was referred to a Rights Commissioner for investigation and Recommendation. On the 24th November, 2006, the Rights Commissioner issued his Recommendation as follows:
- “Based on the discussion at the hearing it appears that there is a problem of trust with the PDR system and this is something that the company should give some attention to.
Concerning the claimant I recommend that she be given a PDR in respect of 2005/2006 and that it be carried out by her current Line Manager who will gather the evidence as provided for in the system and base her decision on that.
If the claimant is unhappy with the outcome she should raise the matter with the HR Department who should arrange an appeal having regard to all the circumstances and dynamics of the particular case”.- On the 6th December, 2006 the Union appealed the Rights Commissioner's Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 4th April 2007.
UNION'S ARGUMENTS:
3.1 The Union argues that it is clear that a number of mistakes were made. The PDR policy is clear, simple and works when applied properly.
2. The Claimant deserved to have her evidence evaluated in accordance with the agreement. She has a right to have the person conducting the PDR present evidence in the correct manner at the right time.
3. The Claimant is entitled to have the Store Manager investigate her concerns without the Company having to resort to using a policy that is not used in Marks & Spencer in Ireland.
4. The series of errors has meant that the Claimant failed to receive an increase in pay. This increase would have amounted to €71.62 per week. It is in this regard that the Union requests the Court to award the Claimant the increase with retrospection to August, 2005, that she would have received if the Company had followed its own procedure.
COMPANY'S ARGUMENTS:
4.1 Management contends that they have carried out an exhaustive investigation of the issues raised by the Claimant in accordance with Marks & Spencer's policy.
2. The Company facilitated the Claimant in her appeal regarding the rating given to her to the full extent of the Company policy. The outcome was to uphold the initial rating awarded to the Claimant in her Performance Development Review.
3. The Company has accepted the Rights Commissioner's recommendation to facilitate a further PDR with the Claimant and her Line Manager for 2005/2006. However, management has been unable to implement this as the Claimant has declined.
DECISION:
The Appellant disputed the outcome of the Company’s Performance Development Review (“PDR”) of her work as a Section Manager in the Company’s Grafton Street Store for the year 2004/2005 which was conducted by her Line Manager in July, 2005.
The Appellant had been promoted to the position of Section Manager in April, 2002, and had her first PDR in that position in 2003 covering the year 2002/2003 which resulted in her achieving an “Effective” rating.
The Company’s PDR system rates an employee’s performance across five areas each of which results in a rating of either Effective, Highly Effective or Outstanding and an overall rating based upon the aggregate of the individual area ratings.
The ratings are linked to a points scale and, depending upon the overall rating achieved, the employee is awarded an additional increase in pay over and above that applying under national agreements.
The Appellant, in consultation with her Line Manager, declined to have a PDR conducted on her performance in 2004 for the year 2003/2004 on the basis that she felt that her achievements during that year were insufficient to enable her to progress to a higher rate of pay.
The Appellant’s next PDR was conducted in 2005 for the year 2004/2005 and is the one disputed by the Appellant. It resulted in an overall rating of “Effective”. She disputed the rating of “Effective” in one of the five areas of performance reviewed, namely, “Be One Team”, claiming that she should have been rated as “Highly Effective” in that area of performance which, if that had been the result, would have resulted in her being rated as “Highly Effective” for that year.
The Appellant had her PDR reviewed and then appealed the result to the Store Manager under the Company’s PDR procedure both of which confirmed her original overall rating for the year 2004/2005 and the rating of the particular area of performance in dispute. She continued to dispute the result of her PDR for that year and the Company arranged a further appeal which she declined and instead took a claim to a Rights Commissioner and appealed the resulting Recommendation to the Court.
The Court has carefully considered both the extensive written and oral submissions made to it by the parties and recommends that the Appellant accepts the original result of her disputed PDR for the year 2004/2005 and that her Line Manager should now proceed to conduct a PDR of her performance for the year 2005/2006 as soon as practicable and that a further PDR should likewise be conducted at the appropriate time for the year 2006/2007 later on this year.
Should the Appellant be dissatisfied with the outcomes of either or both of these further PDRs then she should avail of the Company’s internal PDR appeal procedures.
Having reviewed the extensive materials presented to it by the parties the Court observes a large volume of paperwork with an attendant potential for confusion and a related potential for a lack of clarity on occasion as to the precise criteria being applied to assess an employee’s performance under the PDR system. The Court therefore suggests that PDRs should be conducted with a minimum of paperwork compatible with the effective application of the system and the criteria used to assess the performance should be applied as clearly as possible throughout and in line with the contents of the PDR procedure.
The Court so recommends and the Recommendation of the Rights Commission is varied accordingly.
Signed on behalf of the Labour Court
Caroline Jenkinson
8th May, 2007______________________
JBDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Jackie Byrne, Court Secretary.