ADJ-00004095

Complainant

Respondent

Anonymised Parties

A Customer Relations Advisor

A Computer Company

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-00005879-001

12/07/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00005879-002

12/07/2016

The complainant is an Italian national who has worked over 6 years as a Computer Advisor with the respondent company. On 12 July, 2016, the complainant lodged two complaints with the WRC concerning claims for Unfair Dismissal and unfair procedures.

This case was first scheduled for hearing on January 5, 2017. On the day of the hearing, there was no appearance by the complainant. The complainants Solicitor informed the WRC that he had not been notified of the hearing and requested a resumed hearing. The respondent was aggrieved by the delay, but respectfully agreed to the resumption. This took place on March 2, 2017, the closest date available.

The respondent is a large employer, who employs in excess of 5,000 people in Ireland .The respondent rejected both claims.

The respondent hired the complainant as a First level Customer Relations Advisor on April 22, 2010.He performed as a “ solid contributor” in June 2010 and 2011 and received salary increases commensurate with this rating .He moved to a new area of Programme support in November 2012 and continued to perform well, receiving acknowledgements from managements for specific completions .

In April 2014, the complainant joined a new team, (Team 2) on promotion and received additional training for the role. In 2014, the complainants team manager noted that the complainant needed to focus” on email follow” .The scope of the role expanded significantly over the following two years, November 2014-2016, the respondent attributed this development as a“ very significant factor in the development of performance problems “ for the complainant . The work required more “ free written “ rather than “ canned English “ email responses to customer queries .The respondent submitted that the matter became a cause for serious concern at the HR Dept. when the complainant rated as “ expected more “ in all three categories of :

1 Performance

2 Team work

3 Innovation and Results.

These ratings were signed off by the complainant.

On June 30, 2015, The respondent placed the complainant on a first Performance Improvement Plan, (PIP). Supports were made available by the respondent to assist in achieving the stated goals of “call and email handling “.The PIP was unsuccessful.

The respondent placed the complainant on a second PIP on August 31, 2015.

On 15, September 2015, the complainant was issued with a verbal warning in response to placing another colleague’s signature on a customer communication.

On 9 October, 2015 the second PIP was reviewed and it was deemed that the complainant had not met “all of the agreed targets in the PIP. Significant gaps were identified in Product knowledge, call quality and workflow.” The respondent issued a written warning on 9 October, 2015 and commenced a third PIP. This PIP was deemed a success.

The respondent submitted background detail on contact between Developer Relations, based in the US and another US based Global Business Unit in January 2016, regarding a customer complaint about the quality of service he had received from the respondent developer team. Two of the respondent staff was found to be involved:

The respondent was directed by Global Operations to investigate the matter, noting in particular the spelling and grammar on the communique.

On January 29, 2016, Two Area Managers of the respondent conducted an official review of the case handling in conjunction with the respondent Programme Manager. This followed in a report to the Global Operations which established serious concerns regarding the level of service provided by the two advisors .The complainant was involved in two issues

1 Quality of an email sent by the complainant on December 9 , 2015

2 Raising the possibility of a refund with a customer

He received a Final Written warning on February 10, 2016.

A Fourth PIP was instigated on February 10, following the above Executive Escalation incident .On 15 March, 2016; this was deemed to have failed. At that stage the Area Manager explored other areas of the respondent business to ascertain whether there were suitable alternatives for the complainant? There were none.

The respondent submitted that the complainant was offered a re-alignment to the position of First level Advisor but he declined .The complainant, himself sought access to a fifth PIP and this was issued on March 15, 2016. At the standard review, a Quality Programme Manager, Four Senior Specialists and the complainants Team Manager reviewed The PIP to ensure that it was fair and reasonable assessment .The respondent submitted that the PIP failed.

The respondent terminated the complainants employment “due to a persistent pattern of poor performance “on April 29, 2016 and he was paid in lieu of notice. The respondent received an appeal of this decision, which was not upheld by an Area Manager.

The respondent refuted all claims. They contended that all stages of the PIP and Disciplinary procedures were followed fairly, diligently and fully in line with natural justice.

The complainant was advised that that his performance was at issue in advance of each stage of the Disciplinary procedure and was given an opportunity to prepare a considered response .He was offered representation and an appeals mechanism at all junctures, choosing to exercise that right solely post termination .

The respondent concluded the outline submission by stating that all reasonable attempts were made to accommodate alternative roles for the complainant including an option of First level advisor, which he declined.

Respondent Witnesses :

Ms AM1 ( Area Manager 1 )

Ms AM 1 told the hearing that the complainant had performed “very good” at First level customer support advisor. The first number of months post his appointment to second level were much simpler, until the new lines of business were introduced and the complainant began to “ seriously struggle” He was unable to keep up .

The respondent invested many hours into support for the complainant in the form of 1:1 coaching prior to any action plan .He was required to reach the targets set and new hires were starting and then passing the complainant out .

Ms AM1 submitted that if the complainant had remained in first level, he would have been absorbed in a 100-120 team mass, while at second level, there was a significant impact in a team of 14-15 teams mass.

The complainant presented as resistive to feedback, so multiple people were involved in collaboration to avoid a perception that it was “personal” against the complainant. The PIPS were instigated to “get him to where he needed to be “.

By June 2015, serious concerns were being flagged by his manager .He was given a full opportunity to improve. He was offered the same pay to revert to first level customer advisor, but did not discuss this.

Ms AM 1 told the hearing that the complainant.

During cross examination, Ms AM1 denied that company records were inaccurate or calls made were secret. She stated that the manager can trace calls on a daily, weekly and monthly basis and individual results were visible against the Team average.

She refuted that the judging standard of grammar was too high and confirmed that it was a reasonable standard as not every member of the Second level team were native English speakers.

The Fourth PIP outlined an 80% target requirement; the complainant recorded a 50% target.

Mr DM ( Direct Manager )

Mr DM took on responsibility as the Complainants line Manager in August 2015.He submitted that the complainant was fully supported by the respondent ,yet he was not capable of achieving the targets set .He denied that that the company had an unreal expectation for the complainant .

Mr AM2 ( Area Manager and Appeals Manager )

Mr AM2 told the hearing that he had received the file of the case from the Human Resource Dept. He engaged in an extensive review of the file between May 9 and June 13 .He concluded that the dismissal was fair and did not uphold the appeal.

The complainant worked for more than 6 years as a Customer Relations Advisor at both first and second level. He was responsible for handling customer issues in his native language of Italian and English. He had a very high work rate with the company and achieved 86% in 7 surveys when he joined the second level team in 2014.

The complainant representative submitted that the criteria used in the PIPS (Performance Review) was not based on consistent criteria and was subjective to each manager who performed the task of review.

The complainant was given a verbal warning on 15 September, 2015 ,he believed this was too harsh in relation to helping a colleague, who was on leave .He was not given a sufficient opportunity to improve .He was given a written warning when the second PIP was unsuccessful .He succeeded on the third PIP .

The complainants representative submitted that the second major incident that sealed the complainants fate occurred on 28 January , 2016 regarding a customer who was a Developer seeking support for a product he wished to publish .There was a vacuum of support in the Senior area and the complainant sought to bridge the gap by supporting the process .The situation got out of control as the Developer did not receive any concrete updates from the review team .During the investigation meeting in February, 2016,the first time the complainant was aware of a problem, Mr DM inferred that the Developer had complained about the complainants email of support .In the weeks before the investigation meeting ,the complainant had received a positive endorsement of his handling of the case .

The representative stated that the respondent was not being truthful and was covering up in relation to the “Developer” issue. The complainant had not seen the complaint made by the company at large in this case and he contended that his client had been blamed, yet, the feedback on his intervention in the case was judged positively.

The respondent submitted that he had been Unfairly dismissed due to the two issues at the centre of the disciplinary process

1 The recorded signatures of a colleague

2 The Developer issue.

The complainant was dissatisfied with the appeal and stated that the national norm was for a “ face to face “ appeal .He submitted that all the completed steps of the respondent were accepted without question .

Complainant Evidence :

The complainant stated that he had a very successful career with the respondent, where performance reviews were followed on an annual basis by a salary increase .He was promoted to a second level customer support in April 2014.He had no problems with the role, achieved good results and passed his probation .There were possibilities for the second level role in Europe .He was presented with a token of appreciation from the company as a Top performer in the third quarter of 2014.

In March 2015, his Italian colleague left the team and turmoil followed .A new manager was appointed in August and he was faced with reports that his work performance was an issue. He attended a series of meetings, without a HR presence and believed that he was not given an opportunity to be heard. He explained that there was a misunderstanding in relation to his placing his colleague’s signature on some completed work for the company .This was not intentional .He engaged in a performance improvement process, from which he emerged on 9 October, 2015. He felt good about this and throughout the following three months, no issues were presented to him.

During the Team meeting of January /February 2016, he had a perception that” something big” was going on .His Manager informed him that a Dutch Developer had made a complaint about him .He presented a copy of the email the developer sent.

He stated that he replied to the customer as the contact made by the Developer was no longer involved in the case .He submitted that a member of specific review team was dealing with his case and that he was “ happy to take on board your feedback……..and make sure that the appropriate personnel will be dealing with your case “. The complainant understood that he had helped the process in the absence of the appropriate review team and was disappointed to be faced with a fourth performance review process as a result in addition to a Final written warning .He had not seen the email from the company which led to the concerns stated .

The complainant submitted that he had issues with how the company evaluated his performance. The measurements were vague and could be inaccurate. He believed that the process was mishandled.

He complainant submitted that he had instigated the request for access to a fifth performance review as he was certain he would pass. He did not accept the proposed salary demotion as it might have reduced his pay back to level one .He felt humiliated.

He compiled his own records of statistics to assist him in achieving success on the fifth performance review. He had faith in this personalised system. He was surprised when the respondent disagreed with his numbers recorded .The official tool was a manual calculation. He believed that he was being punished for the Developer email incident .He described “seeing a fury “directed towards him and narrowed the problems down to the timing of the appointment of the new manager.

He did not have a clear recollection of the dismissal meeting, apart from the attendance there of his Team Manager and Ms AM.

He appealed the decision to dismiss him and submitted a written document in support of this. He wanted to be re-employed .He believed that he had been unfairly dismissed as his dedication to the company was overlooked.

The complainant stated that he was judged unfairly on his performance and in particular on the two instances which prompted disciplinary sanctions. He described the impact of his dismissal in the vein of “killing someone”. He believed that his high work performance did not deserve this approach.

The complainant added that he was resident in the country during May, 2016 and he disputed he respondent reference of   their understanding that he was not available for the appeal .He left the country in August, 2016.

The complainant representative presented details of loss and mitigation subsequent to the hearing, which was copied to the respondent .The complaint, is currently residing in Italy.

I have carefully considered the Oral and written submissions of the parties I have also reviewed extensive documentary evidence submitted by the respondent subsequent to the hearing on   Company operational policies on

1 Disciplinary and Appeals Procedures

2 The Performance Review Policy

.I accept that the complainant worked for the first four years of his employment in a mutually agreed satisfactory manner .I also acknowledge that the early days of his promotion to the second level position in April 2014 was followed by a period of high performance which attracted reward by the respondent .

However, I note that the disputed interpretation of the parties as to what happened in terms of the complainants’ performance from Summer 2015 to the date of dismissal at April 29, 2016.

On the complainants behalf, he submitted that he believed that he was selected for a “managed out” situation by the respondent .He placed considerable evidence on the connection he drew to the disciplinary sanctions following the “Substitution of Signatures “event in September, 2015 “the Developer “event of January 2016 and the assertion that these incidents “sealed his fate” irrespective of the performance management system running in parallel.

On the respondents behalf, a context and background of change of a pressing nature occurred via the introduction of a new line of business in late 2014 which had the affect of challenging the performance required of the complainant .It was this revised level of anticipated performance, which the respondent stated was deficient. The respondent submitted extensive evidence of an elaborate support system invoked in the aftermath of  a period of coaching. I was particularly drawn to the evidence of Ms AM when she told the hearing that the company wanted the complainant to succeed and addressed the improvement in that way, but she had awareness that new hires to level 2 positions had overtaken the complainant in performance terms and this was a concern.

I listened to an extended submission on both parties perceptions on the fall out from the “Developer “incident in February, 2016.The complainant expressed a very strong viewpoint that he had been wronged and misrepresented by the company in this episode, the respondent was very aware that the section of the company had featured negatively on both the global and worldwide stage and sought to manage the situation.

Section 6(1) of the Unfair Dismissals Act 1977,provides that :

The dismissal of an employee shall be deemed, for the purposes of the Act, to be an unfair dismissal unless, having regard to all the circumstances, there was substantial grounds justifying the dismissal.

Section 6 (4) provides for an exception –

The dismissal of an employee shall be deemed ,for the purposes of the Act , not to be an unfair dismissal ,if it results wholly or mainly from one of the following –

(a)    The capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do.

The burden of proof rests with the respondent in this respect. It is not my function to establish whether the complainant is in fact incompetent or incapable .For the respondent to avail of the defence contained in Section 6(4), I must establish that it was sufficient that the respondent honestly believed on reasonable grounds that the complainant was incapable at that time .This is a very high bar of proof and must be examined very carefully by me.

In O Brien V Professional Contract Cleaners ltd UD 184/1990, the EAT determined a dismissal to be unfair when a Wages Clerk , who was formerly a receptionist was dismissed without the decision maker in the dismissal   being made an aware of the up to date position in terms of competence .

In the instant case, I have considered the submissions  surrounding the evolution of the 5 Performance Reviews and the three disciplinary sanctions, which culminated in the complainant’s dismissal on April 29, 2016.

The letter of dismissal was framed as

“….. You have been given every opportunity over a protracted period to improve your performance to the required standards .However, having reviewed your performance against the targets set out , it is with regret I must inform you that due to your persistent pattern of poor performance, it is our assessment that you are not suitable for continued employment .”

The complainant persistently drew my attention to the “ smokescreen “ which they observed in relation to the application of the disciplinary sanction and augmented this by submitting that the Corporate Centre of the company were dissatisfied with him and there was no “ way back “ from there . I did not receive any objective evidence of this to raise it from an assertion to a proven fact. In the alternative, I was struck by the genuine concern expressed by the respondent on their discomfort at featuring unfavourably on the global and world stage and their stated need to manage their way through this quickly.

I found that the respondent was informed on the up to the minute progress reports on the complainants work performance as evidenced by both parties signatures on understanding and acceptance on the 5 PIPS, the last of which was agreed was at   the behest of the complainant.

On February , 10, 2016,in the context of the application of the final written warning , I found that these documents demonstrated feedback on the complainants performance ,notification that subsequent performance issues would be “ viewed seriously by the company and may lead to further disciplinary action ,up to and including dismissal “

I also found that he was given an opportunity to improve. I appreciate that the complainant held a strong belief that he was unfavourably and subjective managed by the respondent .However, the respondent recorded a clear identified shortfall in the performance required in relation to “ written communication and productivity “.This was to be the yardstick on which to register an improvement . From the respondent presentation at hearing, this did not follow. The complainant held an alternative viewpoint.

I noted that the complainant recorded his signature of acceptance and understanding in all documents presented under the disciplinary procedure and the PIP system .There was no evidence submitted of appeal or contrary viewpoints raised by the complainant in the context of these fora. I was struck by his participation in the PIP and Disciplinary procedures on a solitary basis without electing to address the issues with pro-offered representation. The complainant did recall seeking Union representation at the hearing, but this did not materialise.

I was struck by the evidence of Ms AM, when she confirmed that the complainant had responded in silence to the notification of dismissal and that it was her understanding that he had informed staff at the plant that he was to be dismissed the day before. This was not disputed.

In Richardson V H Williams and Co ltd UD 17/1979, the EAT found that an employee had not followed procedures regarding cheque management, meat freshness checks and had an attitude problem .The EAT set down a rule where the employee has been given a justified warning that unless his work improved in a specific area that his job would be in jeopardy. The employee must be given

1 A reasonable time within which to effect such an improvement

2 A reasonable work situation within which to concentrate on such defects

If an improvement follows, and the defect is not repeated, than the warning cannot be solely relied on in relation a dismissal for other reasons.

The complainant in the case was found to have contributed to his loss at 60%.

I have found that the respondent addressed the work performance in a measured and structured manner underpinned by coaching and specific targets .I have found that the respondent has satisfied the two step test in Richardson .I have established that the employer held an honest belief in the complainants lack of competence as evidenced in the offer of his re-alignment to a first level advisor on unaltered pay. I note that this offer was not officially recorded by the respondent, which may have led to some confusion by the complainant. However, I found the failure to engage, at least on the option by the complainant to be unreasonable.

I cannot accept the theory of being “managed out “when considered that there was a very real offer of re-alignment to level one cited by the respondent, which was not disputed. The problem for the company was consistently cited as the level two positions as a fit for the complainant and not the level one position.

I have established that the respondent held a genuine and honest belief in the complainants lack of competence in the level two role .I have also established that the respondent had reasonable grounds for sustaining this belief , through the elaborate use of PIPS .

I must now examine the overriding requirement for reasonableness and fair procedures as provided for in Section 6(7) of the Act.

The complainant submitted that he believed that he was not heard in the events leading to his dismissal. The respondent disputes this. I have already found that the complainant did not address his case through representation within the lifetime of his contract .The offer of a facility for representation by a colleague or his Union was clear throughout the case.

I have found that he was afforded an adequate opportunity to line out his defence through representation and through the addendum from Human Resource Dept. Which provide for direct contact with the Human Resource Dept.? If he was in difficulty .For reasons best known to the complainant, he chose not to exercise these rights in a formal sense. He was in contact with the Human Resource Dept. . .

I understand and respect his stated intention that he would reverse PIP no 5 to his advantage, but unfortunately, this did not happen. I understand that the complainant felt diminished at this point, but I did not find a breach in fair procedures up to and including the dismissal.

However, I had cause to consider the internal appeals process offered to the complainant. He submitted an extensive written appeal and this was considered by Mr AM. I understand that this was the first appeal managed by this Area Manager and he understood that he was to undertake a

“Paper appeal procedure “which he did.

I asked the respondent to address the “paper appeal “at the hearing in response to the complainant objection to the lack of a” face to face” appeal permitted to the complainant. I noted that the respondent understood that the complainant was out of the country and not available for the process .I requested a copy of the Appeals procedure and received same from the respondent.

I found that the respondent had provision in the Appeals process for

1 Independent Review of the grounds of appeal

2 An appeal meeting to discuss the reasons for appeal, with note taker.

3 The Appeals Manager may need to further investigate the issues raised

4 The manager may also meet with the appellant in person by phone or in person to discuss the outcome of the appeal.

I am satisfied that this was not the process afforded to the complainant on appeal. The complainant lodged his extensive document of appeal on the required form on 5 May, 2016. Mr AM, the Appeals Manager told the hearing that he was instructed to review the appeal lodged .He gave the matter serious consideration and found that the dismissal was fair and did not uphold the appeal.

In Kilsaran Concrete v Vet UDD 11/2016, the Labour Court noted that there were “certain fundamental requirements” of fair procedures that could not be disregarded. These included the requirement

(i) to make the employee who is subject of the investigation aware of all of the allegations against him or her at the outset of the process;

(ii) that an employer who has published a disciplinary procedure to its employees follow those procedures scrupulously when conducting a disciplinary process; and

(iii) in the event that an allegation against the employee is upheld, that any disciplinary sanction imposed is proportionate to the complaint that has been substantiated.

I have found that the respondent disciplinary procedure and by extension the Appeals procedure was not followed " scrupulously " in this regard , the result of which constituted the complainant not being heard on appeal . This is a serious omission and one which in my view , amounts to a shortfall in what Section 6(7) of the Act refers to :

In determining if a dismissal is an unfair dismissal ,regard may be had ,if the Adjudicator considers it appropriate to do so –

(a)   To the reasonableness or otherwise of the conduct ( whether by act or omission) of he employer in relation to the dismissal ,and

(b)   To the extent ( if any) of the compliance or failure to comply by the employer in relation to the employee , with the procedure referred to in Section 14(1) of he Act or with the provisions of any code of practice referred to in paragraph (d) of S.7(2) of the Act .

I appreciate that it was also open to the complainant to seek a seat at an appeal meeting and this did not occur. However, the burden of proof rests ultimately with the respondent in this regard .I found that the respondent did not provide an oral hearing for the complainant.

I realise that a dismissal is a rare event in most workplaces ,however, when the need arises for parties to experience this action of last resort ,the procedures set down in the employment must be followed without exception .To lose a job is a very difficult outcome and the procedures are set down to protect both parties .

I have found that the respondent has failed to comply with its own stated procedures at the internal appeal stage.

While I accept that the dismissal invoked by the respondent was substantively fair and in accordance with Section 6(4) of the Act, I have found a procedural unfairness in how the appeal was conducted which breached the complainant’s rights to fair procedures.

While I accept that the Appeals Manager engaged fully in the appeal he conducted and made a genuine and earnest assessment of his task as he understood it, the complainant was not heard and therefore the principle of natural justice was not upheld.

I have found the dismissal to be unfair on that ground.

I have considered both parties’ submissions both oral and written on this dispute. I find that this claim has already been addressed in the substantive complaint of Unfair Dismissal above.

The complainant left the respondent employment on April 29, 2016 and lodged this complaint on July 12, 2016.

In light of the overlap in the complainants and the prior decision based on the same facts, I find that this claim is without merit and cannot succeed.

Claim for Unfair Dismissal