ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000673

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

Date of Adjudication Hearing: 26/02/2016

Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly

Procedure:

In accordance with Section 13 of the Workplace Relations Act, 2015 following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.

Complainant’s Submission and Presentation

The Complainant has been employed by the Respondent for 33 years.  In 2009 he was promoted from Supervisor to the position of Retail Manager in the Cash & Carry.

On the 3rd December 2014 The Complainant was called to a meeting with his General Manager, and was advised that he was not performing or being pro-active in his role as Retail Manager.  It was suggested to him by the General Manager that there might be “a few bob” there for him if he wanted to move on.   The Complainant was both surprised and upset as there had been no previous discussions in relation to his alleged lack of performance.

At a follow up meeting on the 5th December 2014, which was requested by The Complainant and at which he had his union representative present; he was advised that he would be given a performance improvement plan (PIP) in January 2015.  The Complainant asked The General Manager what options were there for him and he was advised that he would get back to him on this.  During December The General Manager came back and informed The Complainant that there would be a General Operative position available at €32,000.  This involved a substantial reduction in salary.  As can be appreciated as a result of this The Complainant suffered a very anxious and distressful period prior to and over the Christmas.

At a meeting on the 15th January 2015 The Complainant attended a meeting with The General Manager and The HR manager where he was presented with a 9 page PIP document.   This was the first occasion that The Complainant had ever seen such a document, the first page of which contained details of disciplinary action leading to possible dismissal in the event of a failure to reach the targets.  The Complainant was given less than two days to consider the PIP and again this put totally unreasonable pressure on him.

At a meeting on the 19th January 2015 he expressed his dissatisfaction and concern with some of the targets which he considered almost impossible to achieve.  His concerns were totally dismissed by The General Manager and he was given no opportunity to have any input into his own PIP plan, which we later learned is supposed to be an agreed document.

As a result of this treatment The Complainant became extremely anxious and stressed over the intervening periods.  He attended his doctor and was prescribed with sleeping tablets and anti-depressants.  He went out on certified sick leave as a result.

At the request of the Union a meeting was held on the 9th March 2015 which was attended by management representatives. The General Manager and a HR manager.   The purpose of the meeting was to discuss the issues and to explore the situation concerning. The Complainant returning to work.   The Complainant attended the meeting with the expectation that the issues would be addressed to enable him to return to work.   However, during the meeting a number of statements were made by The General Manager concerning alleged complaints by customers about dealing with The Complainant that were totally unsubstantiated and which were totally refuted by our member.   It was pointed out that these alleged complaints had never previously been raised with The Complainant and that this was unacceptable.   In addition to this it was also alleged by The General Manager that he had given The Complainant a PIP previously in January 2014.  This was totally denied by The Complainant and a copy of was requested but has not been received to date.  

A further meeting took place on the 2nd April 2015 at which The Complainant repeated his request for specific details of the alleged complaints made by an individual customer and by 15 customers at a company forum. This was the first time The Complainant had been made aware of these alleged complaints had been at the meeting on the 9th March 2015.  

As a result of this The Complainant considered the situation totally untenable and felt that, under the circumstances, he could not return to his position working directly with The General Manager as the trust and respect had been irreparably broken.  

The Complainant was asked by his union if he would consider the alternative role of returning to a General Operative position at a basic pay of €32,000 per annum.  In the circumstances, his union considered that he should reduce from his current salary of €48,000 to the €32,000 p.a. on a phased basis over a period of time.

The Complainant wrote to The HR Manager by e-mail dated the 8th May 2015 outlining his position in relation to the overall situation and the proposed alternative position.  

The HR Manager replied to this by letter dated the 28th May 2015 advising that the salary pertaining to the position would be €32,000 p.a. and if this was agreeable that consideration would be given to some phasing of the reduction in his salary over a period of time to ease any financial burden.

The Complainant replied to by e-mail this seeking a phased reduction over a three year period.

A meeting was held on the 10th July 2015 with The Business Operations Manager and the HR Manager in an effort to reach agreement on the terms available to The Complainant for a return to work.

Following further discussions The Complainant wrote to the Company on the 4th August 2015 requesting that consideration be given to the following phased step down arrangement;

                        €48,000 for 3 months

                        €45,000 for 9 months

                        €40,000 for 9 months

                        €35,000 for 9 months

                        Then €32,000                                           

The company responded to this by letter dated the 19th August 2015 advising that the position was available on the basis of his salary being reduced from €47,000 to €40,000 for the first six months and thereafter it would be reduced to the final level of €32,000 p.a.    

His union wrote to the General Manager by e-mail dated the 25th August advising that given the time delay in getting a response from the Company that The Complainant would require more time to consider his position.  

Following further discussion we further wrote to the Company on the 22nd September 2015 confirming that The Complainant had agreed to be redeployed to the alternative position of General Assistant.  This was agreed on the basis of his salary being reduced to €40,000 for the first six months and thereafter to €32,000.  This would be subject to a referral to the WRC of his claim that the reduction of his rate of €47,000 to the final level of €32,000 should be on a more reasonable basis and over a 30 month period.

The Complainant argued that there has been a continuing dispute between The Complainant and The General Manager concerning issues such the details of the meetings relating to the PIP plan and the alleged numerous customer complaints, and these are the subject of an ongoing investigation into a complaint made by The Complainant under the company grievance procedure.   However, he stated that what should not be in doubt is the severe impact that this whole saga has had on the health of The Complainant which resulted in his decision that he could no longer work directly under The General Manager.  This decision was made primarily on the basis of a breakdown in trust and The Complainant concluding that he could no longer expect to have a reasonable working relationship with The General Manager.

Whilst the Company may argue that The Complainant would have been supported in continuing his role as retail manager and dealing with ‘issues’ around performance it is clear to us that the handling of this matter by The General Manager has not been satisfactory to say the least.   

As a matter of fact, it is argued, The Complainant’s decision to step down from his position as retail manager at a salary of €47,000 p.a. and go back to a general operative position with a final reduction in salary of €15,000, which will severely impact on his family and financial circumstances, that this shows how strongly he feels about the way he has been treated by management in this whole affair.  

The Complainant states that he should be afforded a more reasonable step down arrangement than the Company position of moving back on €40,000 for six months and then on to the final level of €32,000 p.a.   

Respondent’s Submission and Presentation:

In December, 2014 the complainant’s line manager raised concerns regarding his performance. He was place on a performance improvement plan. The company’s disciplinary procedure provides: “all employees must maintain a consistently high standard of work performance and commitment to the company”

The complainant commenced a period of extended sick leave on the 19^th January, 2015. When he attended with the company doctor he told him that he felt out of his comfort zone and was upset about the PIP. Through his union he sought alternative positions. Whilst this was being done he wrote to the Respondent stating “I cannot return to my current position and work closely with the GM. In order to protect my own health and wellbeing I wish to accept an alternative position.” He acknowledged that that role would involve a pay reduction. He requested that he be red circled to maintain his currently salary either long term or for an agreed period. The respondent wrote to him on the 28 May, 2015 stating that the salary on offer was €32,000.00 and that rate was significantly higher than the others doing the same role. It was agreed between the parties that they would work together to try and come up with a fair phased reduction.

At present the Complainant is proposing that the salary be reduced to € 40,000.00 for six months and then to €32,000.00 thereafter. The six month period is about to expire in April.

Decision:

There is no doubt that the complainant had issues with his manager and it was due to the breakdown of that relationship that led him to vacating his role and to his acceptance of an inferior position. I am satisfied that the respondent acted reasonably when considering how the complainant’s new salary should be reduced. I am also satisfied that the complainant is being paid more than his comparators based on the circumstances surrounding his move to the new position. An employee with the complainant’s service doing the role of General Operative would be earning €27,154.92. That figure is substantially lower than the €32,000 being offered to the complainant. Furthermore, it was open to the complainant to remain on his is position on a salary of €47,000. He made the decision for his own personal reasons to step back. However, it should be noted that some of those reasons are being dealt with within the respondent’s internal grievance process.

In all of the circumstances I recommend the following:

In April, 2016 when the 6 month period expires, that the complainant be placed on a salary of €35,000 for a period of three months and thereafter €32,000.

Dated:   16/06/2016