ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001457

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 19/05/2016

Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 8(1) of the Unfair Dismissals Act, 1977 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint. 

Complainant’s Submission and Presentation:

Respondent’s Submission and Presentation

The claimant was dismissed by the respondent on 24 November 2015, with one month's notice. The presentation of the claimant’s dismissal in the complaint form opportunistically attempts to say that the dismissal was only effected on Christmas Eve 2015, but the facts speak for themselves.

The claimant was brought through all stages of the respondents Disciplinary Procedure as follows.

Background to the Respondent’s Fruit Farms and Operations

The respondent grows a range of fruit and salad crops. The claimant was employed to work in soft fruit horticulture as a Horticultural Farm Worker. Soft fruits become available for picking at least to some degree in April. Prior to that field crops require husbandry before fruit production.

Some of those who proceed to pick in the summer months are employed on husbandry maintenance. The claimant was employed from season to season on both tasks following his first assignment through an agency in 2007. However the primary task of all “Horticultural Farm Workers “(which is the claimant’s contract) is soft fruit picking.

When first assigned to fruit picking all workers are trained on the requirements of quality picking (to satisfy consumers) and speed of picking. When the claimant was assigned in his first few seasons as a picker his pick performance was acceptable .

The respondent manages its picking operations through assessing picker performance at individual pick volumes (by weight). Pickers are assigned to one of three groups, A to C, to pick crops (strawberries, raspberries etc.) in particular fields as the growing season evolves. Normally it is the experienced pickers in group A and B.

Group C is mainly those who have started working for the first time for that season. The claimant was assigned to C the lowest performing group in 2014 and 2015, despite his prior experience at picking, due to his poor performance. In fact he was given a formal First Written Warning about his performance in 2014.

When groups are assigned to a field, the respondent determines what a reasonable pick standard output should be, having taken into account the relevant group (A /B/ C), crop, season and yield in that field on that day. The standard output can therefore vary on a daily basis, but the same standard is applied to all group workers on that day. The pickers ultimate individual output is measured by fruit weight and recorded each day. The respondent only assigns pickers from the same group to a given field, so the claimant was working alongside others in group C with similar expected performance standards.

It would only be reasonable to expect that a picker of his experience would at a minimum emulate his group C peers, but in fact his 2015 performance deteriorated as objectively measured.

A piece rate system is in place. The output standard having been set in advance for the day, pickers ostensibly earn by piece working what their personal output is for that day, and so forth for the week and month . However the respondent always pays pickers at least the National Minimum Wage (NMW) for hours worked. Where pickers under-perform, and piece rate calculations indicate that ostensibly they would not be paid at NMW rate, then their pay is ‘made –up’ to the NMW rate. The ‘make-up’ is an objective measure of underperformance.

The performance of pickers who manifestly under-perform (as shown by ‘make-up’) is managed at the individual level to help them achieve better performance, and achieve payment above the NMW level.

The respondent supervises pickers through their field Team Leaders, and in addition the respondent provides field coaches to support new recruits (i.e. those typically starting in group C), and poor performers.

The claimant regularly came under review of his field Team Leaders and was coached and managed as to how to improve his pick rate. Arising from his early 2015 season poor performance, the claimant was given warnings as follows :-

Despite his experience, he was given specific coaching in picking on 6 July 2015 by the respondent. This was an exceptional measure for a person in their ninth year as a picker, but indicates that the respondent engaged constructively with the claimant and that the claimant was treated no differently to others in the same group.

Despite the efforts of the respondent, as subsequent events outlined below developed, the claimant did not improve his performance, in fact it deteriorated, which led to his dismissal.

The claimant worked as a fruit picker on a Horticultural Farm Workers contract at the respondent’s fruit farms. He first commenced working when recruited through an agency in 2007. He worked in successive seasonal contracts until March 2012 when he was made permanent. He was an experienced fruit picker.

The claimant had a year previously in 2014 come under notice in regard to his underperformance and he was ultimately awarded a First Written Warning. The claimant therefore had full knowledge prior to 2015 as to what was expected of him as a picker and what the possible consequences of not performing adequately might be.

The claimant did not perform to an adequate standard in the early part of the 2015 season, as evidenced by his scale of ‘make-up’. As his performance did not improve he was brought through both a disciplinary process and a coaching process as outlined above. In fact in regard to coaching he was given a full day’s field support by the respondent which is not usual for picking staff. Usually the field coach rotates among those in need of coaching, and so to have a dedicated coach for a day is an indication of the respondent’s commitment so seek to improve his picking standards.

The claimant was brought through the stages of the Disciplinary Procedure as per table above. What emerged in those meetings was that the claimant’s cumulative ’make-up’ pay had increased from € 455 in May 2015 to €1467 in September 2015, indicating a serious deterioration in his performance, notwithstanding his experience, and the personal management and coaching he had been given.

The following is a summary of the Investigation, Disciplinary and Appeal Meetings which the claimant was brought through.

The Investigation was carried out on 5 October by the Operations Manager and the HR Generalist/Coach. The claimant declined to be represented. The operation manager said to the claimant :

• That he had been given a First Written Warning in 2014 for underperformance, and in 2015 a Verbal (16 April 2015), First Written (13 June) and a Final Written Warning (29 August).
• That the claimant had been trained by the respondent on 8 June 2015 and that the respondent had spent a day coaching him on 6 July 2015.
• That his ‘make-up’ had dis-improved from a cumulative €455 by end of May 2015 (which was itself unacceptable) to €1467 by end of September 2015 (which was exceptional, even comparing with new employees).
• Those standards are based on the average performance of average people.

The claimant was asked for his response and he said

• He had an issue with speed , but his quality was good
• That standards are too high
• That to explain his position – he didn’t know what to say, that he tried but couldn’t and that he didn’t think anything could change.

The operations manager issued his Investigation report , summarising the meeting as per the points above, and recommended that the matter go forward to a Disciplinary as the claimant had admitted he was aware his performance was not satisfactory.

The Disciplinary meeting was carried out on 2 November 2015 by the General Manager, Farms and the HR Manager. The meeting invitation had said this was a serious matter and that it could lead to Disciplinary action up to and including dismissal. The claimant declined to be represented but he did make veiled references as to ‘seeing the respondent in court’ and that he was considering taking a Grievance (said to be ‘mobbing’ or ‘bullying’, which despite being offered, he didn’t) . The general manager said to the claimant:-

• That his ‘make-up’ had increased and that the claimant was now on a Final Written Warning, which despite its existence had not created any performance improvement.
• That piece rates are set at a reasonable level to allow people to perform.
• That following coaching the claimant’s performance improved for a short time , but the question was whether the claimant work performance will improve in future
• Whether the claimant liked working on the respondent’s Farms and whether the claimant had conveyed at the meeting that he had given confidence that he will in fact improve

The claimant said:-

• That the targets were too high and that he was working in the wrong group, i.e. a group with higher standards, but acknowledged he was a slower worker.
• That he had meeting after meeting, only after he had joined a union, but had not appealed any previous warnings.
• That he didn’t know if he could improve performance as targets are high, and that he didn’t know if he was developed whether he would be able to pick to the standard level.
• That he had previously worked on husbandry on “tunnels “ with no performance problems
• Specifically that he was not able to give confidence that he will improve his performance.

The general manager issued his decision to dismiss the claimant by letter of 24 November 2015. He noted that the claimant had said that he could not improve, even with assistance. The letter of dismissal says that all his past record was taken into account, but found that the claimant;-

• continuously failed to achieve reasonable      standards of performance by not meeting the required piece rate
• failed to improve your performance knowing it was      not satisfactory
• Outlined that the company not believe his      performance would improve to satisfactory levels – even with assistance      from the company .

It was for theses reasons he was dismissed and it was not an unfair dismissal.

The claimant lodged an appeal by letter of 30 November 2015. He said he felt management had a negative attitude to him, that he acknowledged that he was a ‘slower person’, that targets were too high, higher than when he commenced in 2007 , that when he worked on husbandry in “tunnels”, where   no ‘make-up’ measurement applied, he did not have complaints against him , and that his requests to go back to ‘tunnels’ were rejected .

A further letter of 19 January 2016 was received on the claimants behalf from his solicitors.. It said that the dismissal on 24 December was brutal and intended to cause hardship, all connected with the Christmas season The letter acknowledges that the claimant had difficulty in meeting pick rate targets. It said the decision to dismiss was one of personal acrimony and dislike on the part of the decision maker , and was not neutral or objective

His appeal was heard by the Grower Manager and a HR Manager, on 20 January 2016 . The claimant was represented by his union.

In the appeal hearing, the claimant representative said:-

−      That an employer can manage performance and as there was a pattern of behaviour in regard to the claimant performance the issue is one of proportionality.

−      That the claimant was working in a higher group with higher and more difficult performance standards.

−      That when performance is an issue the employer is obliged to provide support training and that an improvement plan is required.

−      That while the dismissal letter said that trust had been broken, he contended it was bruised but not irrevocably broken.

The claimant said:-

• That he had worked in ‘tunnels’ husbandry for a number of years before being moved to picking; he had requested to be moved back, as an alternative to new recruits who were there , and he had been refused .
• That his speed was not good and he had monthly meetings, although other pickers also had such meetings.

At the meeting the Grower Manager:

• Explained to the claimants representative the measurement / make–up system in place, together with the groups A to C and the assignment of work to the groups such that a picker is normally with one or other group. The claimant may have been assigned to a field with a higher group when the fruit volumes reduce and there is no alternative to be picked.
• That new recruits are put into ‘tunnels’ at the early part of the year as it is not an immediate skill-specific task and that when assigned in January they stay in that task for so long as work is available . The claimant had been recalled in January 2015, but he didn’t make himself available until March 2015 by which time ‘tunnel’ assignments were in place.
• That the claimant had been given normal support from his supervisors, which included specific training.

In his Appeal outcome letter the Grower Manager upheld the original decision to dismiss (Appendix 12 ). He noted that the claimant had been part of a disciplinary process one way or the other since August 2014, none of which he ever disputed by way of appeal, and despite interventions to support him, he had not improved.

Respondent Arguments

1. The claimant did not dispute that he worked ‘slower’, as evidenced by his ‘mark-up ‘pay. While he did say ‘targets ‘ were too high , the same targets applied to all his peers and the claimant was the worst performing of the lowest performing group . The fact of his underperformance cannot be disputed.

2. The claimant received a formal warning about his performance in 2014; he was therefore well aware of the implications of under- performing before he recommenced working in 2015. However at an early stage he had a high ‘mark- up‘, and was brought into a disciplinary procedure again, which ultimately led to his dismissal. During this procedure he did not dispute his under –performance or appeal against any warning.

3. The claimant ultimately said in defence of his underperformance that he should be transferred to ‘tunnels’ working , which incidentally has no work measurement as fruit picking does . As he had returned ‘late’ in 2015 (he was invited in January 2015, but did not take up the offer until March 2015), the ‘tunnels’ team was already in place. As each year progresses the respondent has a reducing, and ultimately no requirement for additional ‘tunnels ‘staff. In any case it would be an inappropriate decision for the respondent to have made, where an experienced picker manifestly architected his underperformance, to avoid dealing with that issue directly and to accede to his plan to take him as an underperformer out of measurement entirely.

4. The claimant said and made it clear in his Disciplinary meeting that he didn’t know if he could improve performance as targets are high, and that he didn’t know if he was developed whether he would be able to pick to the standard level and that specifically that he was not able to give confidence that he will improve his performance. In effect he was asking to be employed on his own terms, below the performance standards of all other pickers, despite that he was an experienced picker. This was not acceptable, and for that reason he was dismissed.

DECISION

I am satisfied that the respondent’s procedures in relation to the complainant’s dismissal were fair and objective and none of the principles of nature justice and fair procedures were breached. I am also satisfied, based on the complainant’s evidence, that he was underperforming and did state that he felt he was not capable of improving his performance. I am not satisfied that the respondent in some way targeted the complainant or that they set him up to fail. The respondent’s daily targets are calculated based on mathematical equation which is made up of several elements. Some of those elements are completely outside of the respondent’s control i.e. the weather. On that basis I am satisfied that the setting of daily targets was, and is, an objective calculation.

The timing of the respondent’s decision to dismiss the complainant was insensitive, at best. However, the act does not provide a remedy for such insensitivity.

In all of the circumstances I find that the decision to dismiss the complainant was fair.

The complainant’s claim pursuant to Section 8 of the Unfair Dismissals Act fails.    

Dated     16 August 2016