ADJUDICATION OFFICER RECOMMENDATION

Adjudication Decision Reference: ADJ-00004240

Dispute for Resolution:

Date of Adjudication Hearing: 6th October 2016

Workplace Relations Commission Adjudication Officer: Seán Reilly

Procedure:

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

Background:

SIPTU were in dispute with the Respondent Employer in relation to what they believed was the failure by the Respondent to provide the Complainant with copy of their PIP Policy.

Summary of Complainant’s Position:  

SIPTU said that the dispute referred to the failure to provide the Complainant with information relating to a Performance Individual Plan, known as a PIP.   The Complainant believes that this Scheme is used by the Respondent to determine his entitlement to an annual bonus and increase in salary and that he failed to attain his full bonus and salary entitlement based on an aspect of this Scheme that he is unfamiliar with.

SIPTU said the Complainant has worked for the Respondent for approximately 8 years, his salary is approx €5,431.00c per month gross and he works a 39 hour week along with any overtime required.

On 25^th February 2016, the Complainant made a request to a named member of management for information on the PIP Process and how it is implemented by the Respondent.   The Manager replied on 3^rd March, stating that she was very busy, but would look as this as soon as she could.   On the following day she emailed the Complainant to inform that she could not find a direct link to the PIP Policy on HR Online and she would need to get back to him on this matter.   Approximately one week later the Complainant followed up and the Manager forwarded a link for him to follow and she asked him to revert if he could not access this link.   He could not open up this and he informed the Manager of this by emails of 21^st March.   SIPTU said the Complainant was becoming quite frustrated at the failure to provide something relatively simple, which should have been freely available to employees, and which was a fundamental element of his terms and conditions of employment, and which he suspected had negatively impacted on his earnings potential.   In response to this the Manager said she was struggling to find a separate PIP Policy for the Irish Operations and that in the absence of this the Respondent’s Disciplinary Policy would be followed and a link to this procedure was provided.

SIPTU said the information was never provided to the Complainant, and he believes that an annual bonus paid by the Respondent to employees has, in his case, been reduced by the Respondent based on an assessment under this Scheme, and that he failed to receive a salary increase based on this same assessment.

SIPTU said that in the past the Complainant has had issues with his named Supervisor and he lodged a grievance on the grounds of mistreatment, bullying and harassment that he says was related to his nationality.   He found this process tough, mainly he says due the difficulties he encountered from the managers handling the grievance at the time and this resulted in him becoming ill and having to go on sick leave due to stress for 3 months, during which time the grievance was processed.

His grievance was upheld and he came back to work with a different named Manager and he was told he would not be working with the previous Manager again.   Upon his return to work a number of incidents occurred within a matter of months and he raised a second grievance against the previous Manager and 3 other managers, who he believed were exerting undue pressure on him.   This process took approximately 6 months and resulted in 3 of the 5 points raised by the Complainant being upheld.   The Complainant’s Manager at the time was one of the Managers named in the complaint.   The Complainant believes that this Manager then tried to punish him for being mentioned in the grievance, and rather than helping him he continually tried to push him over the edge by piling on excessive pressure.

The Complainant said that shortly afterwards an end of year review took place and he was ranked lowest employee in the Organisation, which affected a possible pay increase and a bonus.     SIPTU said the Complainant was fatigued by the stress and pressure associated with pursuing the two previous grievances and he was not enthused at the prospect of entering this process again so he let this go at that time and he hoped to move on and he continued to work with the Manager for the following two years.     However he said that during that time he found the Manager’s attitude towards him to be very aggressive and during the final 6 months of that period the Manager gave him a role outside his area of expertise.

He said that the end of year review many untrue and unsubstantiated accusation were made against him.   It appears that the Respondent set goals at the start or each year and these are to be closed out throughout the year.   The Complainant believed that management did not focus on these agreed goals (GPA) but rather judged him on the grievances he had taken against the Respondent.   He believed that the Respondent were not happy with him and he says that at a Meeting o 19^th December 2014, his then Manager made numerous references to the two grievances lodged by the Complainant and stated they were not happy about the second grievance in particular, which he said …had wasted everyone’s time…..and that the Respondent were supporting a decision to place the Complainant on a Formal PIP…….and move him back to a role in the Mechanical Maintenance Team (MMT).   Also included in the reasoning for this action against the Complainant was his performance on the commissioning project.   However he was told the reason he was being moved back to the MMT was because it was easier to monitor and set targets in that role and SIPTU said that this contradicted the allegation of underperformance in the commissioning project as clearly there was no way of measuring that.   The Complainant was particularly concerned by this move as it was a move back under the supervision of the Manager he had raised complaints against.

SIPTU said the reasons put forward by the Manager for placing the Complainant on the PIP were vague, and the Meeting was peppered with general comments around the Complainant having “a tendency to sit back” or that he was “disruptive” and that there was general team consensus that he “was not performing.”   However no supporting evidence was provided to support any of this.

SIPTU said that the Complainant met with HR and the Manager in January 2015, however the PIP Policy was not provided or explained to him, although the unfairness of the process was recognised and the Formal PIP was reduced to an Informal PIP.

The Complainant was distressed over the problems he was encountering and he made contact with the Respondent’s Global Alert Team and was awaiting a response from them, when the stress of a family illness and all of the work associated matters made him ill and he went out on sick leave in or around May 2015.   The Investigation took place while he was off work and he received a one sentence decision stating the case was closed no evidence.   He returned to work in September 2015 and since then he has been trying to get to the bottom of the PIP.   This went on for many months and he was waiting weeks for replies to emails.

SIPTU said the Complainant is entitled to challenge any decision by his Employer, which negatively impacts him in any way.   In order to do this he needs to know the basis for the decision.     SIPTU said that in this instance it appears the Complainant is subject to some form of assessment process, and that this has the potential to impact on his bonus payments and salary earnings.     SIPTU that in addition he believes that his potential to achieve full benefit from the Respondent’s Bonus Scheme has been reduced and his potential to improve his salary negatively affected.     SIPTU said the Complainant cannot definitively challenge this or identify the loss without access to the rules governing the assessment and the mechanism used in determining benefit.

SIPTU submitted the following in support of their position:

1. The Complainant has been the subject of a Company PIP, which he says has resulted in a financial loss to him.

2. The Complainant believes the reason for the low scoring on this PIP are not based on any clear and transparent measurement process, but instead are retaliation for the complaints previously taken by him under the Respondent’s Grievance Procedure.

3. The Complainant’s Manager issued this PIP in December 2015 and the Complainant states it was quite clear from comments made by the Manager at this Meeting that the reason was related to these grievances taken.

4. Later this Formal PIP was reduced to an Informal one, but there remained an impact on the Complainant’s earnings

5. A copy of the PIP Policy was never provided and neither has the Complainant received an explanation of how the Policy was applied in his case

6. Given that the Complainant has, over a number of months, sought information from the Respondent on the detail of this Policy and he has to date been unsuccessful, it is conceivable that he is being penalised by the Respondent in respect of matters unrelated to this PIP

SIPTU said the Respondent must provide this information without any further delay and accept that their treatment of the Complainant was and is unfair and contrary to fair procedures and the Complainant should be compensated for any losses incurred as consequence of this biased project.

Based on the foregoing, SIPTU and the Complainant sought that the claim be upheld.

Summary of Respondent’s Position:  

The Respondent was rejecting the claim,

IBEC summarised the Respondent’s position as follows.

1. The Respondent has not implemented, and has never implemented, a PIP for the Complainant.

    

2. The Complainant is aware of this as it was informed to him as part of the outcome of an Investigation into a complaint raised by him to the Global Complaints Helpdesk.

    

3. The Respondent has a detailed Policy covering Performance Ranking, which the Complainant is aware of as it is published on the Company Intranet Site and this Policy sets out the objective criteria for ranking employees in relation to their performance relative to their colleagues.

    

4. The Complainant was, like all other employees, subject to ordinary performance management, in that he reported on a regular basis to his Manager, on his progress against assigned tasks and deadlines etc.   IBEC said this is regarded as normal interaction between manager and employee and reports on the work being carried out in the Company.   IBEC said this was not a formal performance management process and it did not amount to a Performance Improvement Plan (PIP).

    

5. The Complainant is not entitled to any loss or earnings and/or additional bonus payments.   The Respondent’s Bonus Scheme is an entirely discretionary arrangement and the Complainant has no contractual entitlement to any payments under that Scheme.   IBEC said that in any event, based on the Complainant’s individual performance and the Company’s performance, the Respondent exercised their discretion to award the Complainant a bonus payment of €7,679 for 2015.   The Respondent considers this bonus payment to be entirely reasonable and even generous in the circumstances.

IBEC said the Complainant commenced employment with them on 1^st December 2007 as a Maintenance Technician.

On 23^rd November 2011, the Complainant raised a formal grievance alleging that he had been bullied and harassed by his Supervisor and that work had not been allocated appropriately within his team.   This grievance was investigated in accordance with the Respondent’s Grievance Procedure and the conclusions of that Investigation was notified to the Complainant on 22^nd March 2012 and the Complainant’s grievance was partially upheld and all appropriate action taken.

In light of the outcome of the Grievance Investigation, and the Complainant’s request, in April 2012, the Complainant transferred on a temporary basis to the Project Commissioning Team.   He was made aware at that time that this role was anticipated to last for approximately 2 years.

On 21^st January 2013, the Complainant raised a further grievance against his former Supervisor.  Following a thorough investigation, the Complainant’s grievance was not upheld.   The Complainant was informed of the outcome of that Investigation on 26^th February 2013.   On 11^th March 2013, the Complainant appealed that decision, and following a further investigation, certain of the procedural elements of the Complainant’s appeal were upheld and he was informed of this on 23^rd April 2013.

IBEC said the Discretionary Performance Bonus is designed to reward employees for their performance and to allow employees to share in the business results for the calendar year.   An employee’s bonus is calculated using s Business Performance Factor (BPF), and Individual Performance Factor (IPF), the relevant maximum bonus percentage applicable to the employee, which depends on the employee’s salary grade, and the employee’s base salary.   The formula for calculating an employee’s bonus for the particular calendar year is as follows;

Discretionary Performance Bonus = (BPF x IPF x Bonus Percentage) x Base Salary.

IBEC said that all bonus payments are paid gross and are paid as a lump sum with an employee’s salary in the February following the relevant bonus year.   Information as to how the bonus is calculated is set out under the Respondent’s Pay Policy, a copy of which is available to employees on the Respondent Intranet Site.

IBEC provided detailed information as to the BPF and IPF are measured or calculated.

IBEC said that at his mid-year Review Meeting in 2014, concerns were raised with the Complainant by his Manager in relation to his performance in his Temporary Senior Technician role.   Specially, it was explained to the Complainant that he appeared to struggle to deal with people and to keep things running smoothly, that he had a tendency to create conflict unnecessarily and he was not working proactively.   It was believed at that time that unless the Complainant’s performance improved in the second half of the year, a Performance Improvement Plan (PIP) would be considered in order to monitor his progress.

In October 2104, for stated reasons, the Complainant was informed that he would return to his Maintenance Technician role from January 2015, in light of the concerns the Complainant had raised against his Line Manager in that role and due to organisation changes it was decided that he would report to a new Supervisor.

An end of the year Review Meeting was held with the Complainant on 19^th December 2014, at which he was informed by his previous Line Manager that he had some concerns with his performance in the Project role, and specifically, that he tended not to be aware of customer expectations, that he therefore does not meet those expectations, that he needs to improve his commercial mindset by better understanding the needs of the business and business targets, that he does not deliver specific outcomes as required and that he is unable to make informed decisions without significant guidance.   Following the Appraisal, and on the same day the Manager sent a summary email to the Complainant and that he would report to a new Supervisor.

This correspondence also stated the Manager would develop a Performance Improvement Plan (PIP) for the Complainant and that the Complainant performance would be reviewed regularly throughout the course of 2015.   IBEC said this Formal PIP was never implemented.

The Complainant’s performance throughout 2014 was reflected by an IBF score of 0.6 for that year.   There were 57 employees within the Complainant’s Group and the range of scores given for 2014 was from 0.6 to 1.4.   The Respondent exercised their discretion to award the Complainant a bonus payment of €7,222 for 2014 and to date he has not raised any complaint about this IPF score.

Upon his return to his Maintenance Technician role on 4^th January 2015, the Complainant requested a Meeting with the Line Manager and the then HR Manager in relation to his concerns.   At that Meeting the Line Manager informed the Complainant that his performance had been poor all year and that concerns about his performance had been discussed with him during the course of 2013 and 2014.   The HR Manager explained to the Complainant the Performance Management Process, she confirmed that an Informal PIP Process would need to precede a Formal PIP, in accordance with Company Procedures, and she also confirmed that she would check what steps had already been taken as part of that Informal Performance Review Process.   She further suggested that it would be helpful for the Complainant and the Line Manager to have detailed face to face discussions about the concerns with the Complainant’s performance and the way the Line Manager had addressed those concerns, in order to “clear the air”, but the Complainant declined to do this.

The HR Manger met with the Complainant again on 15^th January 2015.   At that Meeting, the Complainant was assured that no Formal Performance Management steps had been taken to informally address his performance.   He was also assured that any performance management process would be a supportive measure to assist him to improve in his role.

Outside of these meetings with the Complainant, the HR Manager and the Line Manager discussed the most appropriate means to address the Complainant’s performance.   The HR Manager confirmed that, in accordance with Company Policy, it would be more appropriate to initially monitor and review his performance informally, through regular informal discussion between the Complainant and his Line Manager, with support from the HR Team where required, before any Performance Management Process was commenced.   In light of this the Complainant was, at a Meeting on 22^nd January 2015, categorically told by the Line Manager that he would not be subject to a formal performance improvement plan.   It was explained to the Complainant that his performance would be monitored in the usual informal way as part of his monthly one to one meetings with his Line Manager.   At this Meeting the Complainant alleged that concerns had been raised about his performance because of the grievance he raised back in 2011 and 2013.   IBEC said this was, and still is, refuted by the Respondent.   IBEC said that the Respondent had reasonable and legitimate concerns about the Complainant’s performance and the decision to raise those concerns had nothing to do with the fact that he had previously raised grievances.

On 4^th January 2015, the Complainant raised an issue with the Global Helpdesk, alleging that he had been victimised and unfairly treated by the Line Manager, that he believed he had been unfairly subjected to a PIP and that he had been inappropriately moved back to his Maintenance role because he had previously raised two grievances.

The Global Helpdesk concluded there was no evidence that the Complainant had been victimised or unfairly treated by the Line Manager, that his role with the Commissioning Team was always expressed and intended to a be temporary project position.   It was also again confirmed to the Complainant that he was not the subject of a PIP.        

The Complainant had one to one meetings with his new Line Manager from February 2015 as part of the usual line management relationship.   The new Line Manager was satisfied he had settled back into his Maintenance Technician role well and was adequately fulfilling the tasks and responsibilities of that role.   At these meeting the Complainant and the new Line Manager discussed the Complainant’s goals and objectives and .how to bridge certain gaps in his competency through training.   IBEC said the Complainant had every opportunity to raise concerns about performance issues or any other work related issues during those meetings, but he did not do so.

The Complainant was on a period of sick leave from 5^th May to 21^st September 2015.   On his return the monthly meetings between him and his new Line Manager recommenced and he did not raise any concerns about performance issues or his view that he was subject to a PIP at these meetings.

At his end of year Review Meeting with his new Line Manager on 22^nd October 2015 and it was confirmed to him that his performance was now adequate.

IBEC said the Complainant received an IPF score of 0.8 for 2015; this score reflected the fact that his performance and behaviours had improved and that he was a proficient Maintenance Technician, but recognised that relative to other with his Ranking Group he was not a strong or outstanding performer.   The Complainant received a bonus payment of €7,679.

IBEC said the Complainant did not raise any complaint or grievances about his 2015 IPF score or his bonus payment until he submitted his complaint to the WRC.

On 25^th February 2016, the Complainant contacted the HR Manager by email to request a copy of the Company’s Performance Improvement Plan Policy (PIP).   A chain of emails between him and her in that respect was submitted to the Hearing.   The HR Manager sent the Complainant some links to information about the PIP on 18^th March 2016.   When it became obvious that this information did not satisfy the request, she arranged to meet with him so she could better understand what information he was seeking and why he was seeking it.   On 11^th April 2016, the HR Manager confirmed to the Complainant that she was not aware that he was on a Formal PIP.   She met him again on 19^th April 2016, to discuss his request for information further.   At this Meeting she again confirmed to him that he was not subject to any PIP.   The Complainant did not raise any concerns at this Meeting specifically about his 2015 IPF Score or the amount of the bonus payment paid to him.

IBEC said the Complainant alleges that he has sent numerous emails requesting information to establish the criteria of the PIP Policy and has failed to receive a response from these numerous requests. IBEC said the Respondent’s position is that all of the Complainant’s queries about PIP Policy have been responded to and that he has been repeatedly reminded that he is not the subject of a PIP and furthermore he has never raised any concerns specifically about his IPF Score or how his bonus payments has been calculated.

Based on the foregoing the Respondent sought that their position be upheld and that the claim be rejected.

Findings and Recommendation:

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

Section 13 of the Industrial Relations Act 1969, requires that I make a recommendation setting forth my opinion on the merits of the dispute.

I have carefully considered the evidence and the submissions made and I have concluded as follows.

I accept and know that a PIP is in fact a Performance Improvement Plan and not a Performance Individual Plan as stated by the Complainant.   The fact that the Complainant was plainly not aware of this tends to support his submissions that he was not provided with a copy of, or details of, the PIP Policy – had he been provided with this he would be aware that it was an ‘Improvement’ Plan and not an ‘Individual’ Plan.

I accept, as assured by the Respondent, that the Complainant was not, at any relevant time, on a PIP.   However I can readily understand why he might have concluded that he was on a PIP, as he was given different information in that respect.   At his 2014 mid year Review Meeting he was informed that unless his performance improved in the second half of the year a PIP would be considered.   At his end of year Review Meeting he was informed that a PIP Plan would be developed for him.   At this stage it is clear that the Complainant had been unambiguously informed that he was on a PIP.   It is claimed by the Respondent that they subsequently informed him that he was not on a PIP, however the Complainant denies this.  

I further note from my own knowledge of PIP’s that it would be impossible for an employee to be on a PIP without their full knowledge and being informed, usually in writing, what was involved.   A PIP would generally (and indeed logically) involve an employee being informed in very specific terms, normally in writing, of:

• Specifically what in her/his performance did not meet the employer’s requirement

• Specifically what improvement was required

• Specifically what timescale was the required improvement in

• What assistance and/or training would be provided to the employee to meet the requirements of the employer

It would not be possible for such a position to exist without the very full knowledge of the employee.

I note that as the Complainant was not on a PIP, the calculation of his bonus payment or salary increase could not be based on that factor, whatever else they may have been based on.

I accept, as submitted by SIPTU, that an employee is entitled to be provided with full details of any of her/his Employer’s Policies that potentially affects her or him and indeed are entitled to be provided with this information in a manner and form that is readily accessible and readily understandable to the employee and I am not satisfied that this occurred in this instance.

Based on the foregoing I now recommend that within 3 weeks of the date of this recommendation the Respondent provide a full copy of the Performance Improvement Plan Policy and all related matters in written form, a hard copy, to the Complainant and his SIPTU Official.

I so recommend.

Seán Reilly, Adjudication Officer.  

Dated:   20^th January 2017