EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Nicholas Morrison UD1470/2013
against
Tesco Ireland Limited
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. P. O'Leary B L
Members: Mr. J. O'Neill
Ms N. Greene
heard this claim at Dublin on 14th January 2015, 26th March 2015 and 27th March 2015
Representation:
Claimant: Mr. Patrick O’Riordan BL instructed by Ms Emer Murphy,
Lavelle Coleman, Solicitors, 20 On Hatch, Lower Hatch Street, Dublin 2
Respondent: Mr. Eamonn McCoy, Ibec, Confederation House,
84/86 Lower Baggot Street, Dublin 2
Background:
The Respondent is a supermarket chain the Claimant was a warehouse operative with the Respondent. The representative for the Respondent in opening described the work study and methodology which was used in the Respondent company. He explained that the Claimant was dismissed because he failed to reach or maintain the minimum work standard that was required.
Respondent’s case:
The Tribunal heard evidence from the HR manager. He explained that he was the HR manager based in the Donabate distribution centre (DDC). The DDC was opened in 2006. The first distribution centre was and is in Tallaght and the DDC is a new and extended centre.
The witness described the productivity rate (PR) and that the minimum productivity rate for the employees is set at 84pi. Therefore the level of productivity (PY) required is 84pi. The vast majority of employees achieved a PR of 100pi and a new employee after 6 to 8 weeks training can achieve 81pi. There are therefore two standard PI’s i.e. 81pi and 100pi. A PI of 81pi pertains specifically to the task of picking orders or order picking and pertains to general operatives. The picking of orders refers to placing goods onto receptacles to send to the various outlets or stores. Also a PR rate of 84pi can only be recorded over a minimum of 10 hours work period per week; they cannot for example evaluate someone on a five hour work week.
The witness explained that if an employee falls short of the standard then they can interact with the employee with an intervention, for example, “two interventions”. If for example an employee fell below 100pi then their team manager might ask them if they had a sports injury or anything in their personal life that might be pertinent to their performance. This could be informal and ongoing. If an employee consistently fell below 84pi then they would enter into a more formal process, however the first meeting with the employee would be informal. If another intervention was necessary they would have a second informal meeting. They could then introduce some re-training if needed. The witness explained that the Respondent did not wish to enter a disciplinary situation; they wanted to take a “pragmatic view”.
In cross examination the witness agreed that the Claimant transferred from Tallaght depot to the Donabate depot. He also further elaborated on the job of order picking: that there are guidelines for the maximum weight that a person can lift. It was put to the witness that the Claimant was asked to lift goods that were at his head height i.e. above three feet. The witness replied that the cages were the height of his eye line and that his colleagues would know more about the matter. However as a rule nobody should lift anything above their shoulder.
Regarding the 84pi, he explained that if a person’s PI is over 84pi then there was no disciplinary process invoked. If it was below 84 then there is an option of going through a disciplinary process but only after exhausting two informal interventions. Therefore the disciplinary process is not automatic even if you fall below 84pi.
The witness was asked if he was aware that the Claimant had a back problem at some time and he replied that they had referred the Claimant to the company doctor. He was not aware it was because of his back. It was put to him that the Claimant suffered a back injury and was out with this from March 2010 to July 2010 and the witness explained that it predated his role, i.e. he commenced his role in HR in July 2011. The witness was asked if he was aware that the Claimant was awarded €6,500.00 because of a back injury sustained at work and the witness replied that he was not.
The respondent’s position was that there is a “Procedural and Operating Agreement” in place between the respondent and SIPTU since 2006 and that the claimant consistently fell below the required performance rate in this agreement. A disciplinary procedure is contained within this agreement and this procedure was followed in reaching the decision to dismiss the claimant. Therefore the respondent contended that the claimant was not unfairly dismissed.
Claimant’s case:
The claimant agreed that he consistently failed to reach the agreed minimum productivity rate of 84pi. However the claimant attributed this to the fact that he was not as young as most of his colleagues and that he had suffered a back injury in 2010. The claimant had worked in Tallaght before transferring to Donabate. His productivity rate was never flagged as an issue to him in Tallaght and only became an issue after he began work in Donabate.
The claimant had applied for another position of clerk within the respondent company and had been interviewed for the job. The job of clerk was not an administrative position but did not involve as much lifting as the claimant’s normal job. The claimant was unsuccessful despite the fact that he had previously carried out the task of clerk and occasionally continued to do so after being rejected for the job.
Other jobs would come up from time to time but the claimant was unaware of all of these as he would only be told about jobs that the manager recommended to him. The claimant never raised his back problems as a health and safety issue but told the Tribunal that the respondent was aware of his condition.
It was the claimant’s position that, despite his best efforts, he could not reach the minimum productivity rate and that it was unreasonable of the respondent to dismiss him for this.
Determination:
Having carefully considered the evidence adduced at the hearing the Tribunal are satisfied that in all the circumstances the respondent acted reasonably and followed fair procedures in reaching a decision to dismiss the claimant.
The claimant suffered a back injury in 2010 but thereafter never raised an issue in relation to this under health and safety and did not provide medical evidence in respect of an ongoing back problem or request supports for his back. The claimant was unable to obtain the minimum standard set for his position and thus was unable to perform the function for which he was employed.
Therefore the Tribunal finds that the claimant was not unfairly dismissed by the respondent and his claim under the Unfair Dismissals Acts, 1977 to 2007 fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)