ADJ-00005177

Complainant

Respondent

Anonymised Parties

A Pharmacist

A Retail Pharmacy Group

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00007259-001

30/09/2016

The Complainant commenced employment with the Respondent on the 29^th of January 2007 and at the time of his dismissal was working in the role of supervising pharmacist in one of the companies stores. The Complainant was dismissed on the 28^th of April 2016 for reason of underperformance.   He was paid eight weeks in lieu of notice.

The Complainant submitted that his dismissal was following a two-year intimidation and harassment campaign by the Respondent. He set out that a number of different staff accused him of “ridiculous things” in an attempt to present him as non-performing by any means possible.   He felt that his performance reviews were in retaliation for events that happened beforehand. The Complainant had to frequently correct and coach some of his co-staff and they didn’t take feedback positively.   Frictions developed. He felt that his performance reviews were their opportunity for reprisal. He gave evidence that he felt that his store manager in 2014 was having a nervous breakdown. The Complainant felt that he was being ignored by all levels of management.   He felt that his manager and area manager colluded with each other to put him on a performance improvement plan (hereafter called “a PIP”).

The Complainant was appointed to the role of supervising pharmacist in 2009. He felt that he had no support or training for this role and had to “learn a lot of things the hard way”.

The Complainant set out how he had produced leaflets and professional looking booklets “well beyond the call of duty”. He produced numerous posters and before he went on holidays produced a five-page document highlighting common errors made by relief pharmacists in an effort to keep the pharmacy in good condition while he was away. He submitted that his shop was one of the best looking stores in the country.

Throughout his employment with the Respondent, he was involved in a number of mediation meetings between himself and his co-staff.

For a number of years, he was given a non performing rating which resulted in the loss of annual bonus and pay rise eligibility.

He received a first written warning on the 21^st of August 2014 which was to last for eight months.  

In February 2015 he was put on a PIP.   In April 2015 he received a further oral warning for six months.

A new store manager took over the shop in April 2015. The Complainant had an issue with this person as he had worked under him as a summer placement student in 2009. He believed that this store manager was under the influence of another manager who held a disciplinary hearing against him in 2014.

In July 2015 he had a disciplinary meeting and received a final written warning on the 30^th of July 2015 for twelve months. He appealed the outcome of this, but the appeal was not successful.

In August 2015 his grievance was investigated by a different store manager, mediation was recommended and continuation of the PIP. As part of the mediation, an agreement was made about double cover so the Complainant could do his duty as supervising pharmacist.

In November 2015 he was placed on a new PIP. This PIP was based on the supervising pharmacist’s capability framework, an internal document in the Respondent’s organisation. The Complainant felt the PIP took no account of the fact December was the busiest time of the year in retail. He submitted that the PIP was very extensive and detailed. He felt that there was no reasonableness and fairness in the PIP. The Complainant was absent on paternity leave and holidays for a number of weeks during the PIP. Because of this, the duration of the PIP was extended to the 22^nd of February 2016.

The Complainant acknowledged that he was behind on his PIP objectives and he attributed this to the lack of double cover to enable him to attend to his tasks.

The Complainant stayed up all of one night to complete two outstanding tasks on his PIP.

The outcome of the PIP was given to him at the end of March 2016. The Complainant failed the PIP.

He was given very short notice of the investigation meeting and requested a postponement to allow time to prepare. This was granted.

On the 29^th of March 2016 an investigation outcome meeting took place and the store manager rejected all of the Complainant’s mitigating circumstances and referred the matter to disciplinary hearing.

The Complainant argued that any double cover he got was taken up with PIP “catch up meetings” with his store manager. He felt there was no other time to complete the tasks on the PIP. The Complainant felt that the way his performance was assessed was on an “all or nothing scale” and was extremely unfair. He submitted that the supervising pharmacist’s capability framework was applied in the PIP, but it wasn’t applied fairly or proportionately.

The Complainant submitted that neither the store manager, the disciplinary decision maker nor appeals decision maker understood the application of the guidance documents.   He felt that his store manager went into extreme detail to find minor shortcomings. He felt there “was no way for him to win”.

The Claimant asked that the disciplinary meeting be held in the store in which he worked, so that he could provide evidence of his performance as supervising pharmacist. This was declined. The meeting was held at a location off site.

The Complainant submitted that the speed at which the disciplinary meeting was organised and the location all indicated that the outcome of the meeting was 100% predetermined.

There was a follow on disciplinary outcome meeting and he was dismissed with immediate effect at same, despite being rostered to work that afternoon.

He appealed the decision and this hearing was heard by an area manager. In his appeal he raised the question of why he was dismissed without considering lesser sanctions such as demotion. The Complainant set out that the appeal manager provided no rationale behind his support for that decision.

The Respondent’s case was that during the Complainant’s employment his performance was inconsistent and he was the subject of five PIP’s.

The Complainant’s performance for the period 2010 to 2016 was either below expectation or not performing bar for one year which was 2013.

The first PIP he was placed on was on the 12^th of August 2010.

He was dismissed by reason of performance and a result of his failure to meet achievable objectives set out in his PIP dated the 30^th of November 2015. The performance objectives were taken from the company’s supervising pharmacist competency framework. The Respondent submitted that the framework detailed the minimum standards required of a pharmacist. The PIP overview document outlined achievable objectives which were to be completed within an eight week time frame. This was extended by three weeks. The Respondent submitted that these objectives were wholly within the scope of the normal duties of a supervising pharmacy and were not additional PIP tasks. The objectives were administrative in nature and were capable of being completed at the pharmacy counter during the day to day running of the shop. There were nineteen objectives outlined in the PIP of which the claimant achieved five. The Respondent submitted that the Complainant received much support from his manager throughout the process. The outcome of the PIP was that the Complainant had not demonstrated an adequate improvement in his performance to allow him to pass the PIP.  

The Complainant was invited to an investigation meeting to ensure he had an opportunity to respond. The investigation was conducted by his manager.   In advance of the meeting the Complainant prepared a document for his manager’s consideration and the contents of same were considered by his manager. His manager was of the view that the Complainant’s performance had not improved such that he could be considered to have passed his PIP.

The matter was referred to a disciplinary hearing. The Complainant submitted a letter in advance to the meeting for consideration by the disciplinary manager. The hearing was comprehensive and the Complainant was given ample opportunity to put forward his case. At the disciplinary hearing, the Complainant asserted that he did not have the right team in place and his manner of recording information was simply superior to the company’s own.

The disciplinary manger considered the Complainant’s assertions and issued a comprehensive outcome letter.   As the Complainant had a live final written warning on file which was an advancement from an oral recorded warning (all relating to conduct and performance) the disciplinary sanction imposed after due consideration was dismissal.

The Complainant was afforded the right to appeal the decision and was afforded the right to have representation and given full opportunity to state his case. The appeal decision maker considered the points of his appeal and found that all required outcomes should have been completed by the end of the PIP and as such the PIP as administered was fair and achievable.   The Complainants allegation of insufficient cover was also addressed in the appeal decision. The timeline was also reviewed and nothing untoward was uncovered. The alternatives to dismissal were addressed.

The Respondent’s position was that it investigated significantly in improving the Complainants performance and at all times sought to support the Complainant in achieving his performance objectives. This was evidenced through the numerous PIPS that the Respondent put in place.   Where the Complainant’s performance improved, this was recognised however ultimately the improvement was not sustained. The requirements of natural justice were always complied. The Complainant was always aware of the allegations against him and he was provided an opportunity to respond to the allegations and present his version of events. The Complainant had the right to representation. The decision maker took into account the representations made and the decision was impartial. The Complainant was afforded an opportunity of appeal which was heard by a senior manager not involved in the case. The Complainant was always afforded a fair hearing.

The Respondent submitted that it was within its rights as an employer to set standards which it expects its employee’s to adhere to.

I have taken considerable time to review the voluminous documentation that was submitted by both parties and the evidence given over the two hearing dates.

The Unfair Dismissals (Amendment) Act 1993 provides that I am required to consider the “reasonableness… of the conduct of the employer (whether by act or omission)… in relation to the dismissal”.

Section 6 of the Unfair Dismissals Act 1977 sets out the onus of proof is on the Respondent and that all dismissals are deemed unfair unless there are substantial grounds justifying the dismissal.

In this case, the Respondent has claimed that it implemented a fair dismissal on the grounds of competency. The Complainant submitted that his dismissal was as a direct result of conflicting interests between his role as a supervising pharmacist and his line managers who were influenced by commercial interests of the company. They also held personal grievances against him. This was primary among many of the other issues that the Complainant had.  

To decide on the issue of reasonableness, I must look at all the circumstances of the case.

I am satisfied that the Complainant was informed of the performance issues his employer had with him, what was expected of him, the terms of his PIP and the consequences of not achieving that plan.

I am satisfied that following the outcome of the PIP, the Complainant was afforded the opportunity to respond to and explain why his performance was inadequate.

I am satisfied the Complainant was provided with ongoing mentoring and support throughout the PIP period and that it was extended on his request due to his circumstances.

The Respondent had placed the Complainant on five PIPs throughout his employment with the Respondent. Evidence was given as to the last two years of employment.

The Respondent’s procedures were clear and detailed and were available at all times to the Complainant.

The Complainant considered himself to be a whistle blower but provided no details which meet the definition of same.

Having reviewed the above and taken into account all of the evidence, I am satisfied that the dismissal was fair. I don’t accept that the decision of the Respondent was disproportionate. I note that alternatives were considered at the appeal hearing stage and that demotion was not appropriate in the case.  

The dismissal was procedurally fair in the circumstances of the case and the complaint fails accordingly.