ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000140

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

Date of Adjudication Hearing: 21/03/2016

Workplace Relations Commission Adjudication Officer: Ray Flaherty

Procedure:

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

Complainant’s Submission and Presentation:

At the Hearing the following submission was made on behalf of the Complainant:

Background:

The Complainant is employed with the Respondent under a contract of employment dated 11 November 2013. In the period between his appointment and May 2014, the Complainant worked under four different Managers.

In July 2014, his Manager recommended that the Complainant attended a training programme in order to improve his leadership abilities. The Complainant attended this program in September 2014, following which his Manager stated that he was showing improvement.

Matters between the Complainant and his Manager culminated in a meeting on 28 April 2015, at which the latter once again expressed dissatisfaction with the former's leadership abilities. According to the Complainant a number of options were suggested at the time including: alternative roles within the company, inclusion in a Performance Improvement Plan (PIP) and termination.

At a one-to-one meeting with his Manager on 19 May 2015, the Complainant was informed that he would be participating in a PIP which would last for three months. The Complainant stated in evidence that he requested the PIP to be fair, with achievable objectives and without preconceived convictions towards the outcome. According to the Complainant, his Manager agreed to these terms and assured him that the objectives set would be fair and achievable.

The Complainant stated that on 20 May 2015 he was informed by his Manager that a representative from Human Resources (HR) should have been present at the meeting the previous day and, as a result, the meeting would have to be rescheduled for 26 May 2015.

According to the Complainant, approximately one hour prior to the rescheduled meeting on 26 May 2015, he was approached by his Manager who informed him that he (the Manager) forgot to mention the Complainant's right representation at the impending meeting. The Complainant stated that as he had travelled to Dublin from the country especially for the meeting, he chose to continue without representation.

The Complainant stated that at the meeting on 26 May 2015, which was also attended by representatives from HR, the Performance Improvement Plan process was outlined to him. He was further informed that a formal review meeting would take place on 19 June 2015. The Complainant was advised that, if the outcome of that was satisfactory the performance review may be extended for a further period and, if unsatisfactory, then he would be issued with a warning. The Complainant was issued with a verbal warning at the first PIP meeting on 26 May 2015

The first PIP review meeting took place on 19 June 2015, at which the Complainant's Manager informed him that he was disappointed with the progress being made. The Complainant received a written warning following this meeting. This warning was unsuccessfully appealed by the Complainant at an appeal hearing which took place on 27 August 2015.

It was stated on behalf of the Complainant that, as a result of the above matters, he needed to take an unprecedented period of sick leave from his employment.

Complainant's Arguments:

Against the background of the matters set out above, the Complainant's legal representative made the following arguments on his behalf:

The Complainant submits that the issuing of a written warning during the Performance Improvement Plan was unwarranted and severely harsh.

As per the Company's own procedures in this regard, a Performance Improvement Plan is implemented in order to help an employee improve the standard of their work and thus should not be used to sanction an employee.

Before initiating the formal improvement process, managers should be able to show that they have exhausted all standard performance management options and that there has been insufficient improvement in performance as result of same. As per the procedure, in situations where managers are concerned about an employee's ability to do their job, they must first raise this with the employee through informal counselling. The Complainant's supervisor never mentioned any performance management options and chose only to express his dissatisfaction with the Complainant's performance without suggesting any means to improve that performance.

The PIP procedure also provided a number of steps a manager should undertake before the final formal meeting. None of these were adopted in relation to the Complainant. Contrary to the procedure, the Complainant was not given written details of his performance issues nor was he informed of his right to representation until an hour beforehand. In addition, the Complainant's manager took upon himself to informally advise him that he was initiating an improvement process in the absence of HR.

An employee must be measured against the objectives that are set out in the PIP. Therefore, the written warning issued to the Complainant must state the areas in which he failed to meet the targets of this plan. This was not done in the written warning issued to the Complainant.

The objectives set out in the Complainant's PIP where nebulous and unattainable and it is impenetrable how the Respondent expected the Complainant to achieve these subjective targets. Regardless of the fact that the Complainant set about meeting these targets, he was chastised for merely "ticking off" the objectives as they were set out. Consequently, it is unreasonable that an employee is told their efforts to improve are at fault when they are doing exactly what was requested of them.

Consequently, it was claimed, in conclusion, on behalf of the Complainant, that he had suffered a detriment contrary to the Industrial Relations Act 1946 and, as a result, he was appealing the decision of the Respondent to issue him with a written warning.

Respondent’s Submission and Presentation:

In response to the Complainant's claim, the Respondent made the following submission:

The Respondent has put in place a comprehensive procedure to assist employees with improving their performance. In line with the policy, the Complainant's manager had been having ongoing conversations with him about issues relating to his performance for a number of months following his appointment as his direct boss.

The Manager rated the Complainant as "Developing" on his performance review for 2014. This rating is usually reserved for those with less than one year service and, according to the Respondent, demonstrates the Manager's concern about the Complainant's performance. Notes from the initial performance improvement meeting (26 May 2015) indicate that, at that point in time, there was no significant difference of opinion between the Complainant and his manager with regard to the standard of performance and improvement required. The Respondent suggested that this is further reinforced by the fact that the Complainant chose not to appeal the decision to implement a verbal warning following that first meeting, even though he was invited to do so by his Manager.

Despite the fact that the Complainant seemed well aware of the issues of concern, and the fact that his Manager had repeatedly offered assistance/support, even when he was out of the office on holidays, the Complainant did not avail of this assistance. The Complainant did not seek any assistance or support from his Manager, or from anybody else, at any point in time before the improving performance procedure started or during the period between the first meeting in May and the second meeting on 19 June.

Following the issuing of the first written warning, the Complainant availed of his right to appeal that sanction. The Complainant submitted an extensive appeal letter that was reviewed by the individual conducting the appeal. This individual decided not to allow the Complainant's appeal but instead encouraged him to deal with issues concerning his performance.

The Respondent is clear that it has followed its own procedure appropriately. At all times, the Complainant had been afforded the right to be heard, a right to be represented throughout the process and has been offered whatever supports and assistance might be required to successfully complete the improving performance procedure. To date, the Complainant had not availed of that support or assistance, although it remains open to him to do so.

The issuing of a first written warning to the Complainant was in line with the Respondent's procedures and was appropriate in the circumstances.

In conclusion, the Respondent requested that the Complainant's claim be dismissed in its entirety.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Issues for Decision:

The Respondent was appealing the Complainant’s decision to apply a disciplinary sanction comprising of a written warning. Therefore, in considering the appeal, it was necessary to decide if the Respondent’s action in applying the disciplinary sanction was fair and reasonable in the circumstances.

Legislation involved and requirements of legislation:

The Respondent made the claim under Section 13 of the Industrial Relations Act 1946. However, neither party relied on matters in making their respective representations.

Decision:

Having carefully considered all of the evidence adduced, I am satisfied that the Complainant was issued with a verbal warning at the meeting on 26 May 2015 and with a first written warning following the review meeting on 19 June 2015. The issuing of two sanctions of this nature leaves no doubt that the Respondent was taking disciplinary action against the Complainant. This was clearly happening while the Complainant was taking part in a Performance Improvement Plan.

In this context, I note the following from the Respondent's Improving Performance Procedure, under the heading "Improving performance procedure or disciplinary" (Page 2):

"If your manager believes, after investigation, that your perceived underperformance is due to your lack of effort, attitude and/or behaviour, they may apply the Disciplinary procedures. This could happen part way through the formal improving performance process. You can be managed under the improving performance procedure and the disciplinary at the same time but not for the same issue."

I am satisfied that the above provision from the Respondent's own procedures makes a clear distinction between the Improving Performance procedure and the Disciplinary procedures. It further states that an individual cannot be subject to both procedures at the same time for the same issue.

As it would appear, in this case, that the Respondent is clearly invoking the Disciplinary procedures, then there is a responsibility on those administering the procedures to ensure that the employee is provided with the full and undiluted provisions of that procedure, which are designed to ensure fair process and to respect the individual's rights in this regard.

I am strongly of the view that the Respondent has failed in their responsibilities in this regard as a result of the following:

Lack of evidence demonstrating that a comprehensive investigation into the Complainant's underperformance, as required by the above procedure, took place prior to initiating the Disciplinary procedure.

No evidence was adduced that would demonstrate the Respondent had established that the Complainant’s perceived underperformance was due to his (the Respondent’s) lack of effort, attitude and/or behaviour

Failure to appropriately and clearly differentiate between the Improving Performance procedure and the Disciplinary procedure. The Complainant should be in no doubt as to which procedure was applicable to his situation and, in particular, that the Disciplinary procedure was being applied.

Initiation of the PIP process without the required presence of HR at the initial meeting.

Failure to provide the Complainant with adequate notice in relation to his right to representation at the rescheduled meeting which took place on 26 May 2015.

Application of a disciplinary sanction at the initial meeting, before the Complainant had any opportunity to address the performance issues being set out at that meeting. This is particularly pertinent given the Complainant’s lack of representation at this meeting.

The unreasonably short length of time between the initial PIP meeting on 26 May 2015 and the first formal review, barely 3 weeks later, on 19 June 2015. This provided little time for the Respondent to address issues, particularly those pertaining to the people management aspects of his role, which seemed to be at the core of the Respondent’s dissatisfaction with the Respondent’s performance.

Taking all the above into consideration, I am satisfied that the Respondent is in breach of its own procedures by initiating the Disciplinary procedures in relation to the Complainant's performance while he is simultaneously participating in the first month of a three month Improving Performance procedure.

In addition to this, I am further of the view that, in their application of the Disciplinary procedures, the Respondent has failed to provide the Complainant with a fair and reasonable process, which should be the hallmark of such procedure.

Consequently, I find in favour of the Complainant and uphold his appeal of the decision of the Respondent to issue a written warning.

Dated:   12/05/2016