ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00003225

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

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969	CA-00004210-001	03/05/2016

Date of Adjudication Hearing: 19/08/2016

Workplace Relations Commission Adjudication Officer: Michael McEntee

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and or Section 13 of the Industrial Relations Act, 1969 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:

Hi all, After receiving a positive review on the 20th of January 2016, I was subsequently invited to a meeting on the 2nd of March 2016 and my Manager proposed I would need to go on a Performance Improvement Plan due Performance issues which I voiced reluctance to engage in due to the fact that I felt that this was an unreasonable request I had received from my Manager and was not warranted given I had received a positive review less than 6 weeks previous to this. I was subsequently invited to a disciplinary hearing for refusal to accept a reasonable Management request and advised that the matter under investigation may fall within the definition of gross misconduct and that any finding made against me could result in my dismissal. Please note that supporting documentation is available upon request. Please also note that I feel I have been treated unfairly regarding this matter. Also adequate training and support from Management has not been provided to me in my role as a Payments Administrator. Thanks Respondent

Respondent’s Submission and Presentation:

No formal Submission was received but the Respondent Manager, accompanied by the HR Manager gave a detailed presentation supported by extensive documentation to the Hearing.

In summary the Respondent pointed out that the Complainant was still an employee, albeit on sick leave and the issue of concern was that the Complainant had effectively been unwilling to engage in a Performance Improvement Process. (PIP). The PIP had arisen as are result of findings arising from an Internal Review Process. This internal review was standard practice in the relevant Industry and was not in any way pre targeted against the Complainant.

A number of meetings took place to discuss the PIP and the Manager’s concerns. The minutes of these meetings were submitted in evidence by both parties.

The Respondent had invoked the Disciplinary Process as a result of the Complainant’s lack of willingness to engage in the PIP.

A Disciplinary Hearing had been arranged for the 20^th April 2016 but did not proceed as the Complaint absented himself on medical grounds. He remains on sick leave.

Decision:

Section 41(4) of the Workplace Relations Act 2015 and Section 13 of the Industrial Relations Act, 1969 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

Issues for Decision:

Have the parties acted reasonably and fairly in this case?

Legislation involved and requirements of legislation:

Industrial Relations Act, 1969

Decision:

Having considered all the evidence presented and evaluated the oral presentations of the parties I find as follows

The Respondent letter of the 14^th April 2016 to the Complainant setting up the Disciplinary hearing for the 20^th April 2016 containing the reference to Gross Misconduct and possible Dismissal was heavy handed. The Complaint accordingly was entitled to feel a degree of anxiety in relation to this hearing.

Having looked at the Company Discipline Policy the matters concerned in the PIP process should fall, in my opinion, into the lesser category of Misconduct.

I recommend, nonetheless, that his letter be allowed to stand subject to being rephrased to substitute Misconduct for Gross Misconduct. The refusal, by the Complainant, to actively engage in the PIP process was unreasonable. The use of the Disciplinary process in response by the Respondent was appropriate if somewhat excessive in the stage/level chosen to begin proceedings with.

The Complainant’s contention that a decision to Dismiss him had already been taken or was being contemplated is not supported by any evidence. It is true that a number of quite frank meetings took place and the Complainant was left in no doubts as to the need for improvements. However no where did any suggestion of dismissal arise.

The patience of the Respondent during the continuing period of sick absence is noted.

While the situation is now complicated by the long term absence of the Complaint I recommend that both parties immediately reengage to resolve the issues between them.

The assistance of a Mediator to facilitate these discussions, in view of the passage of time and the other background issues, would be worth considering. The advice of the Workplace Mediation Service of the Workplace Relations Commission, Tom Johnson House, Dublin 4 would be a good first step.

Dated: 3^rd October 2016