ADJ-00005702

ADJUDICATION OFFICER DECISION 

Adjudication Decision Reference: ADJ-00005702

Complaints for Resolution:  

Date of Adjudication Hearing: 07/03/2017

Workplace Relations Commission Adjudication Officer: Pat Brady

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and/or Section 79 of the Employment Equality Act, 1998, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Attendance at Hearing: 

Complainant’s Submission and Presentation: 

The complainant was on a team of four up until he took sick leave period due to stress and anxiety.

This followed an accusation of gross misconduct, which he was advised could result in immediate dismissal. The team comprised two women and two men.

The team as a whole was not meeting the required quality standard.

One female member of the team who was not reaching the required standard was moved to another team. This position was not advertised internally in the company and an equal employment opportunity was not afforded to the complainant because it was stated that he was too "lazy", less than one month after receiving a positive performance review

The other female team member who was a Team Leader was demoted but was not put on a Performance Improvement Plan as the complainant was. This employee has subsequently been also moved to another team. No member of the team was meeting the quality standard.

The complainant and the other team member were advised that immediate improvement would be required on the February 17th 2016. The other team member was not put on a Performance Improvement Plan.

The complainant was fully prepared to engage in the Performance Improvement Plan proposed by Management but felt victimised and targeted as every member on the team was individually not meeting the required 95% standard required.

He did not feel he could return to the work place due to the stress and anxiety of the whole experience and says he was left with no option but to hand in his resignation.

Respondent’s Submission and Presentation: 

The complainant has previously referred the substance of the current complaint to the WRC under the Industrial Relations Act as a trade dispute. He was not successful.

A meeting was held with the complainant to discuss his performance on February 29^th 2016 and a performance Improvement Plan (PIP) was discussed but subsequent to the meeting challenged by the complainant.

The respondent set out its position and a further meeting took place but the complainant continued to dispute the proposed PIP.

Further efforts to resolve the issue were not successful and on April 19^th the complainant went on sick leave. This continued until his resignation on October 10^th 2016.

Specifically, the respondent says that the placing of the complainant on the PIP was not gender related but a response to his own performance issues. The female comparators relied on by the complainant to support his case are not soundly based. One was his Team Leader, the other was redeployed to a different role considered more suitable to her skill set. Her deficits were purely technical.

In the complainant’s case the deficits were more substantial including a failure to follow correct procedures. Details were supplied regarding the breaches and errors.

The respondent relied on the tests set out in Southern Health Board v Mitchell [2001] ELR 201 which are not met by the complainant.

In respect of the alleged penalisation the complainant submitted his complaint to the WRC only after his resignation from the company and therefore cannot be considered penalisation.

He had not raised any complaint either with the company or the WRC in respect of which he could have been penalised so his complaint fails.

The respondent says that this applies to both penalisation complaints.

Findings and Conclusions 

The complainant has failed to discharge anything approaching a prima facie case as outlined in Southern Health Board v Mitchell case.

There is no basis on the somewhat flimsy facts relied on by the complainant to raise a presumption of discrimination.

The manner in which the respondent addressed the outcome of the performance reviews was appropriate to the particular circumstances and performance deficits in each case. In one case, that of the Team Leader there was absolutely no basis for a comparison.

Therefore, there is no evidence of gender playing any part in its decisions in relation to the comparators who were identified.

The complaints alleging penalisation also fall as no complaint had been made under the Acts by the time the alleged retaliation took place. Accordingly that too must fail.

Decision:

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

Section 79(6) of the Employment Equality Act, 1998 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

For the reasons set out above I do not uphold complaints CA-00007798-001 under section 77 of the Employment Equality Act, 1998, CA-0007720-001 under Section 28 of the Safety, Health & Welfare at Work Act, 2005, or CA-00007722-001 under section 77 of the Employment Equality Act, 1998.

They are all dismissed. 

Dated:            15 May 2017