EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Rachel Berthold, Appellant UD2147/2011
MN2174/2011
against
Google Ireland Limited, Respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. F. Crawford BL
Members: Mr. J. Reid
Mr. C. Ryan
heard this case in Dublin on 17 May 2013 and 3 July 2013
and 11 March 2014
Representation:
____________
Claimant(s): Ms. Christina Daly BL instructed by
Mr. Ewan Murtagh, Whelan Murtagh Solicitors,
Fitzwilliam Business Centre, 77 Sir John Rogerson's Quay, Dublin 2
Respondent(s): Ms. Deirdre Lynch, Matheson, Solicitors,
70 Sir John Rogersons Quay, Dublin 2
The determination of the Tribunal was as follows:-
From early 2000 the claimant was employed by a company (DC) but in the spring of 2008 DC was bought by the respondent. With DC the claimant had obtained many promotions and had moved to Ireland from the United States. She had been managing sixteen people across four countries and had reached the level of ‘Publisher Supporter Manager’. Following the acquisition of DC by the respondent the claimant’s employment continued. Level 6 Manager was her entry point with the respondent.
It was alleged that the respondent set unrealistic timeframes and unachievable goals for the claimant and that circumstances beyond her control led to adverse reports which were then used against her as a factor to end her employment. The claimant’s performance was unnecessarily examined over a protracted time without due allowance for the realities of her working circumstances such as the decrease in her reporting team from fourteen to eight. Also, the claimant had been blamed for delays in assigning successful applicants to posts and in connection with an enlarged workload resulting from the illness and death of a colleague (PL). Further, there had been management scrutiny after the imposition of extra reporting obligations.
The illness and death of the abovementioned PL added to the claimant’s work. Because she was the only manager at the same level in Ireland she took charge of PL’s team as well as her own.
A new role (Head of Publisher Services) was created as an extra level of management between the claimant’s post (Publisher Support Manager) and that of her then boss (Head of Client Services). The claimant was then put on PEP (Performance Expectation Plan) within a month to assess her performance over the course of thirty days. The claimant now had extra reporting duties needing global co-operation between various departments. Due to time zone and other differences this took longer than initially anticipated.
The claimant did not fully pass the PEP test because the expected timeframe was exceeded even though she had complied with all but five per cent of it. She was told in December 2010 that she would be assessed on a more exacting PIP (Performance Improvement Plan) for 90 days. In March 2011 this was extended for a further 60 days but she was subsequently told that she had failed and her employment was ended.
It was alleged that there had been unfairness and a lack of transparency as to how the claimant’s performance was assessed in that management personnel who did not have direct dealing with her could adversely affect her score.
The respondent’s position was that it had paid the claimant in lieu of her six weeks’ notice entitlement such that there could be no valid minimum notice claim and that she had been fairly dismissed for lack of competence for work of the type which she had been employed to do.
It was contended that the claimant’s performance review for the fourth quarter of 2009 had been unsatisfactory and that, after the respondent had conducted several performance reviews in 2010, it had been found that the claimant had not performed to an acceptable standard.
At the end of January 2010 the claimant received the result of a performance review. During February 2010 the claimant and her manager were away from the office a lot due to business travel. From March 2010 to May 2010 the claimant was absent a lot on bereavement leave. Consequently, the respondent deferred starting a performance improvement procedure with the claimant.
The respondent began a short-term PEP (performance expectation plan) at the end of July 2010 in a bid to aid the claimant to ameliorate her performance after the claimant had not succeeded in performing to the respondent’s satisfaction. This plan detailed specific areas where the claimant’s performance had come up short and what the claimant needed to do to bring about the necessary performance improvement. For July 2010 and August 2010 the PEP was due to run but it was extended to 8 September 2010. Within this period meetings were held between the claimant and her manager by way of weekly review and feedback to provide the claimant with coaching and back-up towards the needed amelioration in her performance.
By 8 September 2010 the required pick-up in performance had not been achieved by the claimant. A decision to extend the review period was taken by the respondent. However, the improvement targets set for her in July 2010 had still not been achieved by her in early November 2010.
On 29 November 2010 a disciplinary hearing was held because the claimant had not succeeded in meeting the respondent’s improvement targets. The respondent entrusted the conduct of the hearing to AC (regional head of publisher services). The claimant was accompanied by a colleague (RB) and was allowed to make any arguments she thought appropriate in response to alleged shortcomings in her performance.
Any points made by the claimant at the disciplinary hearing were given due consideration by the respondent. A first written warning was decided to be appropriate to give to the claimant and a letter dated 30 November 2010 duly notified her of this. She did not avail of her right to appeal this sanction although she was informed that she could appeal it if she wished.
With effect from the beginning of December 2010 a more detailed and longer-term PIP (performance improvement plan) was put in place by the respondent to aid and support the claimant to make the required improvements in her performance. In January 2011 AC conducted a mid-PIP review but, at that juncture, the claimant had been unsuccessful with regard to the achieving of several objectives specified in the PIP.
Accordingly, on 20 January 2011 a disciplinary hearing was held for the claimant who was accompanied by a colleague. The issue of a final written warning to the claimant was the result of this hearing. Again, the claimant was informed of her right of appeal and an appeal was heard by NOH who, after considering the claimant’s arguments, decided to uphold the final written warning. On 25 February 2011 the claimant was informed of NOH’s decision.
The claimant and AC met on 3 March 2011 to assess the claimant’s performance with regard to the achievement of PIP targets. To offer the claimant more time by which to achieve the targets set, the deadline was extended from 1 March 2011 to 17 May 2011. An assessment of the claimant’s progress towards the PEP goals was made on 18 May 2011. On 19 May 2011 a disciplinary hearing took place due to the claimant not having succeeded in meeting the respondent’s PIP targets for her. The claimant’s employment was terminated. She did not take up the offer of an appeal.
It was contended by the respondent that it had been entitled to end the claimant’s employment and that the performance matters that had arisen had been followed by a thorough and fair process. A final written warning issued to the claimant by AC on the 20th January 2011.
A disciplinary meeting took place on the 19th May 2011. Present at the meeting were the claimant, AC, SA note taker – head of HR for the group, CH, HRBP, Dublin and RB on behalf of the claimant. As a result of the meeting a dismissal letter issued to the claimant from AC on the 20th May 2011. AC spent time supporting the claimant to help her meet her expectations. The performance of the manager affected the entire team and it was important that managers performed well. As far as AC could recall the claimant did not appeal the sanction of dismissal. The claimant appealed against the final written warning dated the 20 January 2011 on the 3 February 2011. AC discussed several options with the claimant before dismissing her. Another vacancy within the respondent could not be found for the claimant. She wanted the claimant to view the team at a broader level.
The time frames that she set for the claimant were very realistic and the goals were about thinking independently from a tactical to strategic level. There was no reduction in the claimant’s reporting team in 2010. A reduction took place in March 2009 and AC joined in June 2010. AC could not recall talking to the claimant about taking on other work. One of the managers went on sabbatical and AC undertook his work. The claimant was upset that she was not given this position and AC told the claimant to focus on core work. The passing of the claimant’s colleague (PL) did not result in additional duties for the claimant.
In cross examination AC stated she was based in London and also had teams in Germany. She spent several times a week video conferencing with staff on different topics. She had meetings with the team and managers in June 2010. Between three to four managers at level 6 reported to her. The respondent also had more junior and senior managers. July 30 2010 was the first time she had interaction with the claimant and she was on a PEP which was extended by 30 days. The claimant was ill for a couple of days in September 2010; she was upset at the passing of her colleague (PL)
LP worked in the USA office and he was new to the specific European role. The claimant’s PEP was extended by 25%. During this time AC and the claimant had five meetings, one of which took place in the Dublin office. An active plan was put in place to help the claimant meet performance expectations. The amount of work that was coming in to the respondent was not significant. From the 13th July 2010 to the 13th September 2010 AC had 8 to 9 meetings with the claimant two of which were face to face. The claimant was on PEP in September 2010.
All of the claimant’s reviews were retained on her personnel file on line. It was important that the claimant worked well with local recruiters. The respondent hired one person in summer 2010 and when employees left the respondent wanted to fill the positions quickly. AC spoke to the claimant about her work load and requested her to undertake a weekly report which the claimant did not do. She hoped the claimant would revert to her with a detailed plan but she did not. The claimant had suggested a people management idea but the respondent did not want layers of managers in a team of ten. She believed the claimant referred to a lack of leadership in the Dublin office when her colleague passed away. This lack of leadership did not refer to her.
When undertaking assessments employees documented their accomplishments which their peers commented on. Client satisfaction was very important in assessing performance. The weekly meetings that took place with the team were more than sufficient.
When the claimant received a 2.9 rating the respondent looked at objectives for the quarter such as behaviours, proactivity, communication style and also compared the claimant to her peer group. This was done through discussions and meetings at a regional and global level.
The performance appraisal system was very transparent and the rating was confidential. Approximately forty to fifty level 6 managers were employed and all their roles were relatively similar to that of the claimant. The claimant knew that she was calibrated against level 6. Prior to taking up employment with the respondent AC worked with a company who used a very similar appraisal system. AC was well informed to apply this appraisal system, she received training in calibration and she felt that she had sufficient knowledge to undertake her role. Training was part of the role and part of what every manager did in the respondent. A separate system was used for each quarter at calibration meetings. She discussed the claimant’s rating of 2.9 with her manager at her annual review and this led to a disciplinary meeting. The claimant was not issued with an oral warning.
PIP started around 2nd or 3rd December 2010. She had a number of meetings with the claimant and PIP was extended for a further sixty days. The claimant appealed the final written warning that she received on the 20th January 2011. A copy of the outcome of the appeal could not be located. AC believed that the goals were clearly set out in the PIP. The PIP was extended by 60 days to give the claimant a chance to complete it. She attended a meeting on the 21st February with PP and NOH. PP indicated that he was concerned about the formatting of the PIP.
In an e mail dated 28th February 2011 the claimant was informed by AC that she did not meet PIP expectations and due to this she believed that the claimant was going to be dismissed. She issued a final written warning in mid PIP and it was the right decision. She consulted with HR on this and the claimant was given a significant extension of PIP of ninety days. The claimant was not meeting her targets as set out and she still struggled to meet the objectives. The claimant asked for a further extension to the deadline but she had given her the extension.
In answer to questions from the Tribunal she stated that a rating above 3.0 met expectations. When a score of 2.9 was achieved or lower it meant that an employee had not met expectations. At level 6 she expected managers to attain 3.4 as an average mark.
When she was asked about a first verbal warning she replied that she did not remember discussing a verbal warning and the respondent had a performance expectation plan. She could not recall if she was advised to skip the verbal warning. She along with HR spoke to the claimant about the process of investigation leading to a disciplinary. She could not recall if she was made aware of what the disciplinary process was. When put to her that she did not seem to know the disciplinary process when issuing the claimant with a first warning she replied that she could not recall how the conversation with HR went. She did not remember the process about an oral warning. She spoke to HR before the claimant was dismissed. She could not recall if HR was involved in the decision to dismiss the claimant.
Prior to dismissing the claimant several options were discussed and the respondent considered the claimant’s performance in areas where it did not meet expectations. Demotion was not a realistic possibility for the claimant. She could not understand why the letter of dismissal was signed by CH the HR business partner.
CH told the Tribunal that she was a HR business partner with the respondent. She was not the direct business partner on the claimant’s case at the time of her dismissal. At the time of the termination she provided support and issued a letter of dismissal to the claimant on the 20th May 2011. She sent an e mail to the claimant regarding a disciplinary hearing and she referred to the disciplinary procedures on the internet. The higher the level of an employee the higher the salary. When salary was being reviewed the respondent took into account the performance and established if the employees were meeting/exceeding expectations. The claimant was the lowest paid level 6 and she was not performing.
As a result of an annual happiness survey feedback employees’ salaries increased and level 6 increased by 30%. Employees were rated in an annual written review and the manager assessed performance. Managers could write a review about their peers which gave an insight into performance. This was expected to be fair and balanced and there were always areas where employees did well and performance could be turned around. Ninety five per cent of employees met or exceeded expectations. A rating of 2.9 was below expectation.
The expectations for employees were set down by the manager and the employee. The manager met the employee at the start of the quarter. A manager was assigned to do a rating. When a performance plan was in place persistent under-performance would suggest that a first written warning should be given. AR, HR business partner contacted her regarding how to apply the disciplinary policy. AR told her that from July 2010 to November 2010 the claimant had not met the goals over an extended time period and this was serious. The claimant was invited to a disciplinary hearing and when her case was reviewed it was perceived to be at the second stage. This was persistent underperformance. The sanction was straight to a written warning and the respondent procedures have been revised since the claimant was dismissed. The claimant did not appeal her dismissal.
In cross examination CH said she did not have specific knowledge of the claimant’s training. The witness was not involved in calibration. Her first interaction with the claimant was in 2009. AR contacted her regarding advice in relation to PEP and Irish procedures. She met JS at the final stage when the claimant was invited to a final disciplinary hearing. Anything that contained the claimant’s name was pulled from her file and everyone has that right. She advised AR on procedures and she was involved at the point of dismissal.
In answer to questions from the Tribunal she stated that when the claimant presented her case the respondent discussed the possibility of an alternative position for her. The respondent considered if it could assign her to a different role but that was not a reasonable route. It would be highly unusual to consider demotion. At level 6 an employee had to solve problems and should not have to be told what to do. The claimant demonstrated lack of leadership.
NOH the head of sales operation for Northern and Central Europe told the Tribunal that on 11 February 2011 he received an e mail from AR, HR Business Partner who asked him to hear the claimant’s grievance and appeal. He was level 7 and had no prior involvement in the disciplinary process. He was assisted by PP independent consultant. He met PP on 17 February 2011 and he provided him with background briefing. PP gave him documents regarding grievance and appeal, details of PEP and a final written warning. He read all the documents regarding the appeal, first written warning, grievance, PIP and PEP. He met the claimant on the 18 February 2011 to go through the grievance along with PP, and RB.
He wanted to ensure that he understood the claimant’s grievance. He asked the claimant regarding her historic performance. She told him it was not stellar and that her score was 2.9 and 3.0 over the course of three appraisals. A score of 2.9 meant failed to meet expectations and it was unusual for someone at the claimant’s level to receive that rating. PP summarised the allegations made by the claimant against AC. These were (1) not acting as a mentor/guide, (2)provides unclear guidelines/goals, (3)subjectively decides failure, (4)positive feedback not in written form, (5) unfair in reviewing performance, continual attention on negative, (6) criticised me severely, (7) a form of bullying undermining you as person. He went through each point with the claimant and asked for evidence to back up the allegations. He met with AK on the 21 February 2011 and discussed the appeal and final written warning. They focused on PEP and PIP and tried to understand that what was being asked was reasonable.
The claimant had concerns that AK was trying to make her team look bad. The claimant had not nominated anyone on her team for the Technical group awards to celebrate innovation and customer service. AC had forwarded written feedback to the claimant following all of the one to one meetings during PEP and PIP. He was concerned that at level 6 the feedback was very detailed.
On Wednesday 23 February 2011 he met the claimant to discuss specific questions e.g. the information AK gave regarding the number of meetings and positive feedback. After meeting the claimant on Wednesday he met AF a colleague of the claimant who reported to AK and the business team. The claimant suggested that AF was a good person to talk to. AF indicated that he had not observed anything that he would consider as bullying. NOH reviewed all the notes regarding discussions, the disciplinary procedure, grievance procedure, PIP, PEP and final written warnings and notes leading to the process. AC provided guidance and positive feedback. He along with PP and RB met the claimant on Friday February 25 2011 and outlined to the claimant the outcome of the appeal. He concluded that the final written warning should stand.
In cross examination he stated that he found the PDF version of the grievance procedure and disciplinary procedure on the internet. He could not recall where he saw the three stages of the disciplinary AF did not say that he saw AK undermine the claimant. The claimant queried why she received a final written warning while she was on PIP. Three out of five to six deliverables had not been met by the claimant. He was involved in the grievance and final written warning and demotion was not discussed. He was trying to get across to the claimant not to give up hope at this point. It was appropriate to issue a final written warning and AK advised AC to issue a final written warning. He accepted the decision taken by AC with advice from AR.
In answer to questions from the Tribunal he stated that he did not know what level AR was. He did not know if AC was at level 6 or 7. It was likely that AC was at level 6. The notes of the meeting were written up while the meeting took place on the 25 February 2011 and PP would have hogged them slightly after the meeting had taken place on the 25 February 2011. When put to him that prior to the 25 February 2011 he and PP had come to a conclusion he replied that they did not discuss what would happen next. PP did not express any concerns to him regarding the final written warning and PP was very happy that the process was followed.
Claimant’s Case
The claimant told the Tribunal that she worked with DC since 2000. She had no issues in work until 2010 until she was put on a PEP (Performance Expectation Plan) in July 2010.
Her manager changed in 2010. She received performance ratings of 3.0 and 3.2 and she was very concerned with these ratings. Her manager EW was promoted and another manager was put in place at that point. At that point EW told her that there was a possibility she would be placed on PEP. She had not met AC before this and AC attended a few team meetings. She commenced PEP in August 2010 for thirty days. Her colleague PL was very ill at this time and he died in August 2010. She worked very closely with his team and took over his team and she had eighteen to twenty reports at that point.
She was invited to a disciplinary meeting by letter dated 26 November 2010. The disciplinary meeting took place on the 29 November 2010. She was not told about grievance/ disciplinary prior to the meeting. She was told it would be undertaken in accordance with Irish Law and that she could check the respondent’s disciplinary procedure online. Deliverables were set out as part of PEP and she tried to achieve it by November/January. Deliverables were not met and she received a final written warning. She thought that she could meet the target. She was informed that she had done 95% of PEP and she was then put on PIP. She was not sure why she was put on PIP at this juncture. She did not feel that she was treated fairly. She did not know why she was being singled out, she had completed 95% and it was not good enough.
A major project regarding support issues was coming to her team. She was involved in the Hotkey project which was an initiative of her team and this ended up being global. It was part of the overall initiative to reduce incoming support calls so that they could categorise technical support and it resulted in lowering the amount of cases that came to the support team. Once they received the case they determined the cause. They had indicators for other products and it increased the workload and time on projects. The team made a suggestion regarding categorising tickets.
She submitted drafts so that AK could peruse them. AK would add an additional task in feedback and changed the scope of the original request. AC would have adjusted PIP and amended it. She was continually being asked to produce more and more. It was difficult to manage work in the time frame requested.
She attended calibration meetings and she was asked to calibrate employees on the team and she would have a score for everyone. She would have given a rating of 3.5 at meetings and this exceeded expectations. A manager who did not know an employee could suggest a lower score for an employee. During 2008 she gave a member of her team a rating of 3.5 after she had gone through the calibration process. The claimant was at level 6 and this employee was at level 3 or 4. She noticed on a template that this score was changed to 3.3 and she did not know who did this. As the respondent had a bell curve system in place scores had to be reduced. CEO level in the respondent altered the score and the template affected employees scores from CEO level down.
At one meeting it was suggested that an employee’s score should be reduced to 2.9. It would be very strange and not fair. A score of 2.9 resulted in an employee not receiving all of their bonus entitlement. 2.9 is a negative number. At every meeting she attended there had to be a score of 2.9 and this affected the bonus and salary. She was asked to rate employees and it was possible that employees who did not know employees being rated would be given these scores. Level 6 did not calibrate each other and employees did not know who calibrated them. The calibration process was not fair and it was not about how good /bad an employee was. It was about a bell curve and the rating system could be arbitrary and subjective.
The claimant received a score of 2.9 which led her to her been put on PIP. She had no idea who calibrated her. Meetings about performance took place online. The score was capped to stay at the same level. She was not able to get a full bonus. On the 18 January 2011 she received a final written warning. A meeting which took place on 20 January 2011 resulted in PIP being continued. She tried to achieve all her goals and she did miss some deadlines. No matter what she did it was never good enough. Termination was the vary last result and she was not very happy with the idea of a final written warning.
She challenged the final written warning as she thought that as AK had put her on 2.9 she was determined to ensure that she would not succeed. She outlined the difficulties with AC at that point. Two managers who were in the USA were not good managers, she believed they were at level 6 and they were demoted. She did not think that she would be dismissed. She tried to be prepared for dismissal or at least demotion. She was told that the decision was dismissal.
After she was dismissed she had savings that she lived off. She did not think of seeking social welfare. She obtained alternative employment in June 2013. She received her notice payment in full.
In cross examination she stated that she was in a very senior position at level 6. She was not clear how senior it was at the time. She managed a team of analysts. A support desk was in place where a client could contact her team. She had issues with the scores she received. She told her manager EW that the clients were happy and the team happy. She appealed the first written warning. She did not appeal the final written warning as she was emotionally drained. The PIP was extended and she was not allowed the time to fulfil all her tasks. She was informed that the disciplinary procedure was available online. She did not think that she would be dismissed. She wanted to be the best manager that she could. She challenged the final written warning. She had five days in which she could appeal the dismissal. She did not appeal the dismissal as anything that she tried to appeal would be ‘shot down’.
Determination
Having carefully considered the evidence adduced it has not been established to the satisfaction of the Tribunal that the claimant changed from an employee with no disciplinary record to a less competent employee within a short period of time. The claimant had no performance issues until July 2010. It was claimed by the respondent that it is a fair dismissal and that it was linked to competency and the Tribunal does not believe this.
There was no evidence given that the respondent considered any other option other than termination e.g. demotion. Furthermore the Tribunal is not satisfied that fair procedures were used and therefore it is procedurally unfair. In consideration of the evidence over three days and submissions made by both parties the Tribunal finds that the claimant was unfairly dismissed and her claim succeeds and the Tribunal awards her compensation of €110,000.00 under the Unfair Dismissals Acts, 1977 to 2007.
The claimant received compensation in lieu of notice and she is not entitled to an award under the Minimum Notice and Terms of Employment Acts, 1973 to 2005.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)