ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00006767

	Complainant	Respondent
Anonymised Parties	A Procurement Officer	A Pharmaceutical Manufacturer

Representatives

Judy McNamara IBEC

Complaint(s):

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-00009297-001	24/01/2017
Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005	CA-00009297-002	24/01/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969	CA-00009297-003	24/01/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969	CA-00009297-004	24/01/2017

Date of Adjudication Hearing: 08/09/2017

Workplace Relations Commission Adjudication Officer: Roger McGrath

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015, Section 8 of the Unfair Dismissals Acts, 1977 - 2015, and Section 13 of the Industrial Relations Acts 1969 following the referral of the complaints and disputes to me by the Director General, I inquired into the complaints and disputes and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints and disputes.

Preliminary Issue:

The Complainant withdrew his complaints under the IR Act, i.e. CA-00009297-003 and 004 at the outset of the hearing.

Background:

The Complainant commenced employment with the Respondent on 5^th October 1998 in the capacity of Operator in the Respondent's Chemical Plant, transferring to the Pharmaceutical plant in 2001, when his title changed to Engineering Stores Person, and ultimately in 2008 to the position of Maintenance Procurement Coordinator, with key responsibilities being stock control and purchasing of maintenance spare parts, maintaining the computerised stock control system etc.

The Complainant was dismissed on 15^th August 2016. His gross fortnightly rate of pay at the date of dismissal was €1,561 and he worked 39 hours per week. A complaint was received by the WRC on 24^th January 2017. He was paid his notice payment and took up employment elsewhere during the notice period on slightly better terms, on a one year fixed term contract basis. The preferred redress of both parties was compensation.

CA-00009297-001 Complaint under the Unfair Dismissals Act, 1977.

Summary of Respondent’s Case:

The Respondent presented a detailed written submission.

The Respondent denies that the Complainant was unfairly dismissed. The Respondent contends that the dismissal was fair and warranted in the circumstances, having conducted its disciplinary processes in a fair and transparent manner, in accordance with the rules of natural justice. The Respondent submits that the Complainant was dismissed following fair and thorough investigation and disciplinary processes, arising out of performance issues over a protracted period, ultimately resulting in termination of the Complainant's employment.

The Respondent submitted a time-line of events. In summary, a new system of Yearly Development Review (YDR) was introduced in October 2013. All was well with the first review in November 2013 with the Complainant getting a "Met Expectations" rating. A mid-year review in March 2014 no issues were raised by the Complainant's line manager. However, the Complainant, according to the Respondent, was unhappy with the pay increase given to him in April 2014. The Complainant did not raise a formal grievance in relation to this increase. The Respondent believes that this unhappiness was the catalyst for the subsequent events.

The Complainant's line manager was unhappy with the Complainant's performance for 2013-2014 and following an investigation/disciplinary hearing in February 2015 the line manager issued the Complainant with a Formal Written Warning. This warning was appealed by the Complainant but the appeal failed.

In April 2015 the Complainant and line manager met and agreed objectives for the year 2014-2015. The following month the Complainant was advised that he would not be getting a pay increase. Several performance meetings took place between the line manager and Complainant in the period May to September 2015. In November, the line manager decided that the Complainant had not achieved his objectives and that the disciplinary procedures would be invoked. An investigation was carried out by another manager and a recommendation made that the disciplinary Procedure be invoked. A Disciplinary hearing took place on 12 January 2016 by a third manager and the outcome was that the Complainant be issued with a Final Written Waring of 12 months’ duration. The Complainant did not appeal this decision.

The Respondent submitted that between February and May 2016 there were 11 interim meetings between the Complainant and his line manager regarding his performance, however the Respondent did not believe that the Complainant was not achieving the performance expectations set for him. His line manager recommended that a formal investigation be undertaken. Around the same time there was an issue regarding a Kardex machine which the Respondent alleges the Complainant failed to carry out a legitimate instruction from his line manager.

These two issues were sent forward for investigation by the Engineering Manager. The investigation outcome was that the matter should proceed to a disciplinary hearing. This hearing took place on 29^th July 2016 and was conducted by the Quality Manager. Following the disciplinary hearing the decision was taken to dismiss the Complainant on 15^th August 216. The decision to dismiss was based on both the performance issues and the failure to carry out the instructions of the Complainant's manager.

The Respondent submitted that throughout the process appropriate training was offered to the Complainant but that he declined to take up the offers. According to the Respondent the objectives set were both necessary and achievable. The Respondent also put forward that the Complainant was of the view that he just needed to turn up at work and that he would address his objectives in his own way.

In oral evidence the Complainant's line manager stated that he believed that his 15-year relationship with the Complainant, which had been good up to April 2014 when the Complainant was upset by the amount of his pay increase. The line manager stated that the Complainant had agreed that he had not reached the required performance levels. He stated that the Complainant had turned down offers of IT training on three occasions.

In closing the Respondent stated that the Complainant was dismissed because of performance issues and categorically denied that it was he was dismissed to save money.

Summary of Respondent’s Case:

The Complainant believes he was unfairly dismissed after giving long years of dedicated service.

The Complainant submitted that he had a good career with the Respondent Company until December 2014 when he believes he was the victim of a concerted effort to force him out of the company by his line manager. The Complainant contend that a disagreement arose between himself and his line manger on foot of his pay Review in May 2014. The Complainant was astonished with the contrast between the comments made by his line manger on his performance up to this time, which were always good, and the negative comments made thereafter. Other issues such as getting annual leave also became problematic.

At the YDR meeting in December 2014 the Complainant felt he was not treated fairly, even though he did agree he did not address his objectives as well as he could have, he submitted that his line manager did not consider the demands of the work.

The Complainant does not believe the Disciplinary Hearing which took place on 26^th February 2015 was fair or impartial as his line manager was the, "complainant, judge, jury and executioner" and that the principle of "nemo judex in causa sua" was breached. The Complainant also believes that the appeal process was also flawed as it did not take this alleged procedural breach into account.

The Complainant submitted that he was called to a Disciplinary Hearing on 12^th January 2016 following which he was issued with a Final Written Waring. Regarding the Final Written Warning the Complainant submitted that the letter issued to him did not explain the rationale for the warning.

The Complainant submits that another issue arose regarding a Kardex machine and this was subject to investigation along with further allegations of failure to meet objectives. The outcome of the investigation and subsequent Disciplinary Hearing was that the Complainant was dismissed.

The Complainant believes that the whole disciplinary process was flawed from the start and that the Respondent Company breached their duty to maintain the trust and confidence of the Complainant. The Complainant submits that his line manager had a vendetta against him. He also submitted that the Respondent did not consider moving him elsewhere within the plant.

In closing the Complainant stated that the reason he was dismissed was because the Respondent Company had a cost saving mandate and to save money they decided to dismiss him rather than make him redundant.

Findings and Conclusions:

I have considered the matter carefully.

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 unfair and came as a direct result of the Respondent wishing to reduce employee numbers, influenced by the commercial interests of the company.

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.

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

In relation to performance 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 YDR and the consequences of not achieving his objectives.

As matters progressed I am satisfied that the Complainant was afforded the opportunity to respond to and explain why his performance was inadequate. However, these responses were not, in the eyes of the Respondent, nearly adequate. The Complainant's performance did not improve as necessary.

I am satisfied the Complainant was provided with ongoing mentoring and support throughout the period. Among other things he was offered IT training, which could have addressed a central performance issue, on several occasions but turned down the offers when they were made.

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

Taking all the evidence adduced I am satisfied that the Respondent genuinely held the view that the Complainant's failure to improve his level of performance was such that disciplinary procedures had to be invoked. As no discernible improvement was evident the inevitable progress along the disciplinary route was unavoidable.

Section 6(4) of the Unfair Dismissals Act states:

"Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one (or more of the following):

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

I find that the Complainant failed to carry out the work he was employed to do despite efforts by the Respondent to assist him over the period in question.

The Complainant put forward that the Respondent erred procedurally in that the first warning issued to him, a formal written warning, breached the principle of "nemo judex in causa sua", that is, that no one should be a judge in their own case. In this instant, the Complainant is correct when asserting that his line manager brought the charge against him, investigated the matter and issued a warning. However, the Company Disciplinary Procedures allow a Departmental Manager to issue warnings up to Written Warnings. This Written Warning was also subject to an appeal, heard by another manager, and the decision was upheld. It should be noted that the investigations and disciplinary proceedings that took place after the issuing of the Written Warning were carried out by managers other than the Complainant's line manager.

Although preferable that the person carrying out the investigation, disciplinary and appeal hearings should not be the same this is not always practical. It is not unusual in the workplace to find that an immediate manager has authority to administer low level warnings to his or her subordinates. I do not this facet of the dismissal renders the procedures, and therefore the dismissal, unfair.

Regarding the Complainant's allegation that his dismissal was due to a desire of the Respondent to reduce costs by reducing headcount without paying redundancy, no evidence whatsoever was adduced to support this claim.

There is however, one element of the Respondent's procedure which I do find to be less than satisfactory, namely the amalgamating of two issues into one Disciplinary Hearing/Decision. When deciding on the fate of the Complainant the decision maker had to contend with two issues, firstly the allegation of underperformance and secondly the allegation that the Complainant had failed to carry out the legitimate instruction of his manager (categorised as Misconduct in the Company Disciplinary Procedures) in relation to the matter of the Kardex machine.

In the letter of dismissal, the Quality Manager, who made the decision to dismiss the Complainant wrote, "The repeated nature of these performance issues and your breach of the disciplinary policy cannot be accepted. I have found that you were in breach of the clear management instructions given by your Manager and that you failed to meet the performance expectations of your Manager." The author goes on, "regrettably, in view of the damage to the Company's trust and confidence in you as a result of your repeated and continuing infractions, I consider dismissal (following a thorough investigation and disciplinary process) is the only appropriate sanction in the circumstances."

In my view the performance issue and the alleged refusal to carry out a legitimate instruction became fused into one when the decision to dismiss was made. I do not believe this should have happened. The two issues were serious enough to merit being dealt with separately. Because they were dealt with together it is impossible to know which issue lead to the dismissal. Merging two breaches of discipline to reach a decision to dismiss undermines the fairness of the procedures. It is well established that procedural defects make an otherwise fair dismissal automatically unfair. Because of this I find the dismissal to be unfair.

Decision:

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

I have decided that the complaint is upheld. Considering the remedies available under section 7 of the Act I determine that the most appropriate remedy, having regard to all the circumstances in this case, lies in compensation. As the Complainant sustained no financial loss (he was employed on equal pay during his notice payment), the maximum award I can make is four weeks' remuneration.

CA-00009297-002 Complaint under the Health, Safety and welfare at Work Act, 2005

Summary of Complainant's Case

The Complainant submitted that he was ordered to carry out an unsafe act to get a Kardex machine back and running. The Complainant alleges that when told to carry out a particular action he told his line manager that this action required a visit by a supplier technician as it would be a breach of safety regulations for him to carry it out. He also informed his line manager that it would be a breach of the company's contract agreement to try and carry out such a repair without first informing the supplier. When his line manager asked him to go and see what he could do the Complainant told him that it would be unproductive for him to walk 15 minutes only to confirm what he had already been told by the maintenance supervisor. The Complainant stated that he heard nothing more about this until he heard that he would be facing disciplinary action on foot of the interaction.

The Complainant believes that his disclosure to his employer that by engaging in the action requested of him could lead to a breach of health and safety procedures resulted in him being penalised by the Respondent. It is his belief that the behaviour and concerted efforts of his manager and his employer as outlined amount to a breach of the Health and safety Authority's Code of Conduct for Employers and Employees and a breach of Section 8 (2)(b) of the Safety, Health and Welfare at Work Act 2005. He submits that his employer facilitated and allowed his manager to engage in improper conduct and behaviour which put his safety, health and welfare at work in risk.

In cross examination, the Complainant agreed that he was normally the person people went to if there was a fault with the machine. When asked if had raised a Health and Safety issue at the time he replied that he may have and that he thought he told his line manager.

Summary of Respondent's Case

The Respondent denies that penalisation occurred. The Respondent's version of events was that when a fault was reported the Complainant's manager asked the Complainant to have a look at the machine and see if there was anything he could do. The manager did not ask the Complainant to do anything which breached health and safety protocols. It was the Respondent's view that the Complainant was not bothered to walk to the machine to assess the situation.

In oral evidence the line manger stated that at no time during the brief discussion on the Kardex machine did the Complainant raise a Health and Safety concern. The line manager stated that the matter had nothing to do with Health and Safety but was a case that the Complainant did not want to help resolve the problem.

The Respondent also submitted that the Complainant did not make any complaints about bullying or harassment on foot of raising a health and safety matter. The respondent was not aware of any such issues until the receipt of the complaint from the WRC. It is the Respondent's view that as no complaint was raised there cannot therefore be a causal link between the protected act (grievance complaint) and the Complainant's dismissal from employment (the alleged penalisation).

Findings and Conclusions

From the evidence adduced I do not believe there is sufficient evidence to support the complaint. I do not believe that any Health and Safety grievance was raised and as such no penalisation could have taken place.

Decision

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

The complaint is not upheld.

Dated: 20^th November 2017

Workplace Relations Commission Adjudication Officer: Roger McGrath

Key Words:

Performance, competency, dismissal, no financial loss