ADJ-00006487

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00006487

Parties:

Complaints:

Date of Adjudication Hearing: 11/07/2017

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Procedure:

In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015, and 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.

The Complainant was employed as a Warehouse Operative from 1^st July 2002 until the Employment was terminated with six weeks’ notice on 5^th October 2016. The Complainant was paid €500.00 gross per week and he worked 39 hours a week. The Complainant was provided with a written statement of his Terms and Conditions of Employment, including the Grievance and Disciplinary Procedures of the Company. The Complainant referred a complaint to the Workplace Relations Commission on 15^th December 2016 alleging he had been unfairly dismissed.

The Complaint CA-00008806-002 under the Minimum Notice and Terms of Employment Act, 1973 was withdrawn.

SUMMARY OF RESPONDENT’S POSITION.

The Respondent recognises SIPTU for Collective Bargaining purposes. All policies and procedures are agreed with the Trade Union, including the disciplinary procedures, performance management systems, work targets etc.   A work study is carried out on site every 2 to 3 years and SIPTU have an industrial engineer involved in the process. There is an agreed performance programme (SYP) in operation since 2008 and in 2010 performance standards were agreed in relation to one element of the role – specified. This also provides for a 14 week average in calculating performance.

Since its introduction in 2010 the Complainant has struggled to maintain performance. The Respondent has met with him numerous times to discuss his performance and examples were provided in evidence. The Complainant’s Warehouse Team Manager also meet with the Complainant between 2010 and 2014 about his performance. On 25^th February 2015 the Complainant was invited to his first formal meeting to discuss his performance. This was not a disciplinary meeting. Following this the Complainant was placed on a Monitoring Plan on 6^th March 2014 to support him to achieve minimum standard of performance. Following this 4 week programme the Complainant’s performance improved but dropped again and he was placed on another programme for 4 weeks on 17th June 2014 and again he achieved the targets. Further meetings took place on 20^th November 2014 and on 1^st December 2014 and on 12^th February 2015 he attended his second formal monitoring meeting and again entered a programme which was supported. But the Complainant fell below the minimum standard and he was invited to his first disciplinary meeting under the agreed process on 5^th March 2015. The Complainant was issued with a verbal warning on 19^th March 2015 for a period of 6 months. He attended a second disciplinary meeting on 13^th August 2015 and following which he was issued with a written warning for a period of 9 months. He was afforded a right of appeal but did not do so. A further disciplinary meeting took place on 3^rd December 2015 and he was issued with a final written warning for a period of 12 months. This was not appealed. The Complainant continued to underperform and he attended a further Disciplinary Meeting on 18^th January 2016 and following a request from the Complainant’s Representative it was agreed to put a buddy system in place to assist the Complainant. A plan was again put in place with the Training Team.

The Complainant attended a Disciplinary Meeting on 20^th April 2016 following which he was offered a further opportunity to improve but he was invited to attend a further meeting on 24^th August 2016 in respect of his performance levels which were provided to him prior to the meeting. His Employment was terminated on 24^th August 2016 and the Complainant appealed this decision on 25^th August 2016 which was heard on 1^st September 2016 and the decision to dismiss was upheld. The Respondent argued that fair procedures were applied to the process from 2014 up to the date of his dismissal with the Complainant being supported during 2 years to enable him to reach the agreed target which he repeatedly failed to do.

SUMMARY OF COMPLAINANT’S POSITION.

The Complainant commenced employment as a Warehouse Operative in 2002. The Complainant has a history with his performance and discussions have been ongoing with the Respondent since 2010. Around March 2015 the Complainant received a verbal warning for performance which was followed with a written warning in August 2015 and a final written warning in December 2015. Following this the Complainant was assigned additional training which consisted of a 4 hour training session in which the trainer deemed the Complainant capable of meeting the agreed targets. The Complainant was placed on a performance improvement plan in January 2016 with a Disciplinary Meeting in April 2016 the outcome was that the Complainant was to bring his performance to the agreed level within 4 weeks. The Complainant was unable to do so and he attended a Disciplinary Meeting on 18^th August 2016 and he was informed that his employment was to be terminated on 24^th August 2016.

The Union argued that any disciplinary sanction imposed by an Employer must be proportionate and argued that the decision to dismiss was not proportionate as the issue in relation to the Complainant was one of ability. They also argued that the decision to dismiss was not reasonable in all the circumstances. The Complainant has 14 years of service with the Company and the Respondent failed to attach any weight to the length of service of the employee.

The Complainant has been in receipt of Illness Benefit from the Department of Social Protection since the date of his dismissal.

FINDINGS AND CONCLUSION.

On the basis of the evidence and written submissions from both Parties I find there was no dispute between the Parties in relation to the management of the Complainant’s performance issues from 2014 to the date of his dismissal on 24^th August 2016. I note that the Complainant was afforded all opportunities by the Respondent to improve his performance, however the Complainant failed to do so.

I note that these performance targets are agreed by way of a Collective Agreement between the Company and the Trade Union SIPTU and that the set targets are examined every two to three years.

I find that the Respondent applied all fair procedures to the disciplinary process resulting in the dismissal of the Complainant and complied fully with S.I. 146/2000 – Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) Order, 2000

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.

On the basis of the evidence and my findings above and in accordance with Section 8(1) (c) of the Act, I declare this complaint is not well founded

Dated:  23/8/17

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

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