ADJ-00004792

ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00004792

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

Date of Adjudication Hearing: 14/11/2016

Workplace Relations Commission Adjudication Officer: Michael McEntee

Procedure: 

In accordance with 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).

Attendance at Hearing: 

Complainant’s Submission and Presentation:

Summary of Respondent’s Submission and Presentation:

A very detailed written submission was received and was supported by considerable oral evidence from Respondent Bank Managers.

In summary the Respondent Bank’s case was the Complainant had been party to the Respondent’s Performance Improvement Process Policy (Here after called the PIPP). He had gone through all stages in an open and transparent manner, had been offered all supports, had full representation rights and had been offered opportunities to appeal. Unfortunately at the end of this quite lengthy process the Respondent made the decision to dismiss the Complainant.

All relevant documentation was produced in evidence.

Recommendation:

Section 13 of the Industrial Relations Act, 1969 requires that I make a Recommendation in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Issues for Recommendation:

Was the PIPP a fair process for the dismissal of the Employee?  

The case is not a re running of the Dismissal decision –merely a review of the suitability of the procedures involved.

I am conscious of Section 8 (10)b of the Unfair Dismissal Act 1977 and do not deem this Adjudication to be concerned with the fairness or other wise of the Complainant’s specific Dismissal rather a review of the PIPP process as a vehicle that can end up in a Dismissal decision for an employee of the Respondent Bank.

Legislation involved and requirements of legislation:

Industrial Relations Act, 1969 and S.I. 146 of2000 – Code of Practice on Grievance and Disciplinary Procedures. IR Act 1990.

Background to Recommendation:

All cases rest on their own facts.

In this case the main fact is that an employee, in this case the Complainant, ended up dismissed having gone through the PIPP.

Was the PIPP a fair and suitable method to end an employee’s service with the Respondent Bank?

SI 146 of 2000 is the touch stone in these matters and I quote extensively below.

6. The procedures for dealing with such issues reflecting the varying circumstances of enterprises/organisations, must comply with the general principles of natural justice and fair procedures which include:

• That employee grievances are fairly examined and processed;

• That details of any allegations or complaints are put to the employee concerned;

• That the employee concerned is given the opportunity to respond fully to any such allegations or complaints;

• That the employee concerned is given the opportunity to avail of the right to be represented during the procedure;

• That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on bthealf of, the employee and any other relevant or appropriate evidence, factors or circumstances.

7. These principles may require that the allegations or complaints be set out in writing, that the source of the allegations or complaint be given or that the employee concerned be allowed to confront or question witnesses.

8. As a general rule, an attempt should be made to resolve grievance and disciplinary issues between the employee concerned and his or her immediate manager or supervisor. This could be done on an informal or private basis.

9. The consequences of a departure from the rules and employment requirements of the enterprise/organisation should be clearly set out in procedures, particularly in respect of breaches of discipline which if proved would warrant suspension or dismissal.

10. Disciplinary action may include:

• An oral warning

• A written warning

• A final written warning

• Suspension without pay

• Transfer to another task, or section of the enterprise

• Demotion

• Some other appropriate disciplinary action short of dismissal

• Dismissal

11. Generally, the steps in the procedure will be progressive, for example, an oral warning, a written warning, a final written warning, and dismissal. However, there may be instances where more serious action, including dismissal, is warranted at an earlier stage. In such instances the procedures set out at paragraph 6 hereof should be complied with.

It was noteworthy, initially, that the main Union in the Respondent Bank – the FSU – had not agreed to the plan in the format put forward.

The Respondent produced all the Documentation in relation to the PIPP. There could be no doubt that the PIPP process was open and transparent and followed the basic tenets set out in SI 146 of 2000

However, as in this case, the cross over between a PIPP style plan and the normal Disciplinary processes is always going to be a difficult area.

There has been extensive academic writing on the area of Performance Review/Performance Management - the CIPD (Chartered Institute of Personnel and Development) has published a useful  Understanding the People and Performance Link: Unlocking the black box

(Purcell, J., Kinnie, N., Hutchinson, S., Rayton, B. and Swart, J. (2003). London),

This has some useful insights and was based on a major research project undertaken by the CIPD.

Professor Purcell, the principal author in the cited work, also touches upon the “Gallup Studies” in relation to what is a successful Performance System and what is not. Employee Culture and perception is a critical factor. IBEC and the Institute of Public Administration have both also produced considerable works on this whole area.

Taking guidance from these sources the key issue appears to be, in the current context, the need to carefully identify and differentiate the rationale for both policies - Discipline and the PIPP. Unnecessary cross overs are best avoided.

A PIPP or allied type scheme is generally accepted to be a means that offers guidance and support to staff that are having difficulty with their roles/Job contents etc. Ideally it is a supportive instrument that staff can /should openly embrace. It should reach out to the minority of staff who may be having performance issues and allow them to get back on track with the Employer. Care has to be taken that it is not perceived in staff culture as a fast track mechanism to losing your job. Much of the CIPD research referred to above highlighted this point strongly.

The Disciplinary Process is a straight forward unambiguous instrument that following procedures results in sanctions up to and including dismissal. It is not an instrument that anyone is expected to like.

In the case in hand the PIPP booklet is laden with references to Dismissal – the Schematics in the Employee/Guidelines (Section 3b of the Employee guidelines is a good example) are all focused on Dismissal.

It was my view, based on a common understanding of what is good HR practice in large Companies and a review of what literature was available from the CIPD and IBEC that the average employee would regard an invitation to participate in the Respondent PIPP with some justifiable anxiety. Once an employee is in the scheme it might appear that there was an almost inevitable momentum building to a YES/NO dismissal decision.

Overall it appeared to me that PIPP may have inadvertently confused the requirements of a Disciplinary Policy with a Performance Scheme. A PIPP is vehicle to help the vast majority of staff and their Managers address jointly issue that impact of their work performance –if it is seen by staff as a Disciplinary Process by another name, the good Performance improvement intentions of the policy will fail.

This was a great pity as the motivation for the PIPP appeared to be excellent and very progressive. It is in the main an excellent vehicle for addressing Performance Issues.

The argument can be made that any PIPP style plan has to have “Teeth” and employees have to take the Process seriously as to do otherwise will result in moving to Disciplinary procedures.

In the PIPP before the hearing the constant reference to Dismissals in all the documents, while possibly understandable under the “Teeth” argument, was overplayed and more likely to produce negative staff reactions to any improvement plans.

Procedurally the point was repeatedly made by the Complainant’s Union that the Respondent did not appear to have taken any view other than a simple Yes /No Dismissal. If this was the case then the requirements of SI 146 were not being properly observed.

The Respondent’s immediate Manager gave extensive oral evidence that the Complaint had had his job content reduced considerably in recent years but was still unable to cope. She had requested (letter of the 21^st April 2016) that the Head of HR consider “terminating the Complainant’s employment”. Again this was a decision that I would have been much more comfortable with in a straight forward Disciplinary Process, where it would be open to the Union to challenge etc., and not in a PIPP process.

The Complainant, in oral evidence, maintained that the at all times he felt that the PIPP was simply a Disciplinary Process to exit him from the Respondent Bank.

Section 10 of the SI 146 (quoted above) offers a much more nuanced range of options for the employer than what an employee could perceive as a simple YES/NO Dismissal decision as it might appear from the PIPP documentation.

There was an opportunity for the Senior Manager hearing the Final Appeal to use more discretion but chose to reiterate the earlier Dismissal Decision.

Recommendation: 

1. The PIPP plan be slightly redrafted to remove excessive references to Dismissal as the end stage and a clause somewhat along the lines of “Following the ending of all stages in PIPP the Bank will have to consider entering the staff member into the formal Disciplinary Policy or words to this effect.” 

2. It was noteworthy that the Bank Union - the FSU – had not agreed to the PIPP as currently drafted. The Respondent should seek to actively involve the FSU in any future redrafting of the PIPP as suggested above. 

3. In relation to the personal Unfair Dismissal claim the Complainant is still well within time to lodge a claim under the Unfair Dismissals Act 1977 and this is the correct forum for this element of the claim.  

Dated:   14 February 2017