Complainant

Respondent

Anonymised Parties

An Operations Manager

An Operational Service Provider

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-00018069-001

21/03/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00019798-001

15/06/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00019798-002

15/06/2018

The Complainant commenced employment with the Respondent in April 1995. By way of several promotions he became a manger in 1999. He was paid a fortnightly rate of €2,542. His employment was terminated on 26th January 2018. A Complaint Form was lodged in the WRC on 21st of March 2018.

The Respondent submits that the Complainant commenced employment with the company in its Dublin operation in 1995 and in 2007 he was promoted to the position of as a Manager.

The Complainant was invited to attend performance review meetings with Mr. A, General Manager, Dublin, and Ms B, Head of HR, regarding concerns with his performance as manager on 28th October 2016, 9th December 2016, 22nd December 2016, 2nd February 2017, 29th March 2017, 7th April 2017.

Ultimately it was decided to commence a formal investigation into the Complainant’s performance and he was sent an invitation to attend an investigation meeting on 13th July. The Complainant did not attend the meeting and he was suspended pending investigation. The meeting was rearranged for the 17th July and was attended by Mr. A and Ms B. A large number of concerns were listed for discussion.

A comprehensive investigation report was completed on 21 July 2017 and the recommendation was to refer the Complainant’s performance to a disciplinary process. In advance of the disciplinary process getting underway the Respondent wrote to the Complainant informing him of the hearing date, a complete list of the allegations regarding his performance and of the range of sanctions available to the decision maker. The disciplinary hearing was chaired by Ms C, a manager from another location, on 8th August 2017 and the Complainant was represented at that meeting by a former union official.

The outcome of that disciplinary hearing was communicated in a detailed letter dated 21st August 2017. In her letter Ms C set out her reasons for finding against the Complainant and concluded that the Complainant had failed to perform in several key areas of his role which had resulted in significant challenges for the Respondent as well as causing significant financial losses to the business. Ms C concluded that some of the Complainant’s failings were caused by serious negligence and were of such seriousness that they constituted Gross Misconduct.

Taking the Complainant’s long service and other mitigating factors put forward by the Complainant Ms C decided to issue the Complainant with a Final Written Warning. She also recommended that the Complainant be placed on a Performance Improvement Plan (PIP). The Complainant was also warned that the Final Written Warning would remain on his file for a period of 12 months and that any further breaches of Company procedures during this period may result in the Complainant’s dismissal.

Following this the Respondent submits that the Complainant was placed on a Final Written Warning and a Performance Improvement Plan, (PIP) was put in place to address his performance.

Under the terms of the PIP, the Complainant had an initial meeting with Mr. A and the areas of performance that needed to be addressed were clearly identified and documented. After their initial meeting they were to meet on a regular basis to review progress and in the interim the Complainant would have regular meetings with Mr. D, a consultant, who provided assistance to the Complainant and took on some of his responsibilities.

Meetings with Mr. D took place on 1 September 2017, 15th September 2017, 13th October 2017, 10th November 2017 and 17th November 2017. The meetings were minuted.

The Complainant then attended follow up meetings with Mr. A to review his performance against the targets set.

The Respondent submits that at a review meeting on 13 October 2017, Mr. A reviewed the Complainant’s performance and they discussed emails received from key customers expressing concerns with the performance of the operation. Several customers had contacted the company expressing serious concerns regarding the Complainant’s area of responsibility. Customers included phrases such as “massive shortfalls”, performance falling apart, and safety concerns.

In addition to the issues raised by customers, Mr. A and the Complainant discussed issues regarding management of annual leave and absence management which had been identified on the PIP.

A further PIP meeting took place on 24th November 2017. At this meeting Mr. A reviewed the Complainant’s performance against the Objectives that were set for him in the PIP. They reviewed emails from customers and staff, including emails from senior management in the company informing the Complainant of serious delays in his area of responsibility.

It was noted that emails to the Complainant from customers had not been answered. It was noted that the Complainant had failed to respond to emails from Ms B, Head of HR regarding rosters and breaks. Further examples of concerns from customers that were not responded to, including one regarding safety concerns.

It was noted that based on this feedback, that the Complainant was clearly not meeting his objectives and he had not implemented any form of tracking KPIs.

Following this meeting Mr. A summarised the situation by writing, inter alia:

This lack of progress seriously not only puts Company’s business at risk but also puts our employees at risk from a Health & Safety incident.

As Complainant has failed to deliver any measurable improvements in any of the objectives outlined in the PIP in August 2017, I believe that I am left with no option but to refer these non-performance issues into the disciplinary process.

Accordingly, the Company implemented its disciplinary procedures and invited the Complainant to attend a disciplinary hearing.

Another manager, Mr. E, was appointed to chair the disciplinary meeting, with a member of HR attending as a note taker. Mr. E had no prior involvement in this matter and no objection was made to him chairing the disciplinary hearing. The Complainant was invited to bring a representative of his choice and a former union official attended as his representative. Issues of concern were identified at that meeting and discussed with the Complainant and his representative.

The outcome of the disciplinary hearing was communicated by letter dated 28th January 2018. In his decision Mr. E explained in detail how the Complainant’s performance had failed to meet the required standard. He wrote, among other things, that there had been little or no improvement in the objectives specified in the PIP. Mr. E found that the Complainant had failed to perform in a number of critical areas in his managerial role, that he had failed to demonstrate significant improvements in the areas defined in his PIP, which had had a detrimental effect on customers and the business. In light of this Mr. E determined that the Complainant’s employment should be terminated.

The Complainant appealed the decision but filed his complaint with the WRC prior to outcome of the appeal hearing. Nevertheless, a detailed and reasoned decision was provided to the Complainant.

The Respondent submits that in this instance the Complainant’s role was terminated for capability and competence reasons. He had attended a number of performance related meetings with HR and management in the previous 9 months. When he attended the investigation meeting the performance issues which concerned management were clearly identified to him and he was afforded an opportunity to make representations on each of the issues raised in correspondence and at the meeting.

As a consequence, he was asked to attend a disciplinary meeting with a manager from another company site. No issue has been raised regarding her impartiality or independence. The employee was represented at the meeting and the performance issues were clearly identified and both the Complainant and his representative made representations regarding those issues and his performance. A comprehensive decision was provided by the decision maker, outlining her decision on the allegations and the Complainants responses. The Complainant was given a right to appeal which he exercised, but was unsuccessful.

The Complainant was then put on a PIP plan with clear identifiable targets. It was clear from customer complaints and feedback and from a review of the issues in the PIP that he was not meeting those targets, and on several occasions he did not respond to customer’s comments or queries.

Ultimately it was decided to hold a disciplinary hearing and the outcome of that hearing was to terminate Complainant’s employment with notice.

According to the Respondent, the process complies with SI 146/2000, Code of Practice on Grievance and Disciplinary Procedures. It is submitted by the Respondent that it is clear the process complied with those requirements, in the following manner:

(i) On each occasion an independent decision maker was appointed to chair the disciplinary hearing.

(ii) Details of the performance issues were identified and comprehensively set out in correspondence prior the hearing and in the PIP.

(iii) The Complainant was given the opportunity at each stage to respond to those concerns.

(iv) He was represented throughout the process by his representative of choice.

(v) The decisions that were issued by the decision makers clearly set out the basis upon which they made their decisions.

The Respondent submits that the Complainant’s performance was impacting negatively on relations with key clients. The Respondent believes this was clear from the emails and correspondence. A number of customers had placed the Respondent on a PIP themselves, putting these contracts at risk. The termination of a major contract would affect jobs and employees and in those circumstances, despite the Complainant’s long service with the Respondent, the sanction of dismissal was appropriate in all the circumstances.

The Respondent called two witnesses to give evidence at the adjudication hearing. Ms C stated that the disciplinary hearing she had with the Complainant in July 2017 lasted four and a half hours. She stressed that for her the matter of safety was the number one priority of the Complainant’s responsibilities. She felt his failings were putting the company at risk. She did consider the disciplinary sanctions she could impose but taking several mitigating factors in the Complainant’s favour, she decided to issue a final written warning.

Mr. E also gave evidence. He stated that deciding to dismiss the Complainant was not an easy decision but what swayed him were the safety issues and the possibility of losing jobs. In response to questions from the Complainant’s representative Mr. E stated that he had considered the three-month review period and had found major safety issues and delays.

Mr. E also stated that the Complainant’s work/performance record was good up to around the time the problems covered in this case arose. He had also considered other sanctions such as extending the PIP but due to the number of safety issues highlighted through the process he did not think extending the PIP was appropriate. There had been previous dismissals for poor performance in the company.

In closing, the Respondent stated that incompetence is an accepted ground for dismissal and that the Complainant’s case was carefully considered as it progressed. The decisions to issue a final written warning and to dismiss the Complainant were both appealed, but were upheld.

The decision to dismiss was according to the Respondent, reasonable and the Complainant had been afforded fair process.

The Complainant provided a detailed written submission.

As way of background the Complainant submits that on 13th July 2017 he was suspended on full pay pending an investigation into “alleged concerns that have been raised regarding your management and control of (his department) in your role as manager”. An Investigation Hearing took place on 17th July at which the Complainant attended. On 21st July 2017 the investigation report

The Complainant submits that his dismissal was unfair. He was not given a reasonable timeframe to make improvements as required by the Respondent’s arbitrary and extremely challenging PIP objectives. To exacerbate the situation because of staff, equipment and operational shortcomings the Complainant’s working environment was in no way conducive to allow him in any meaningful way to concentrate on achieving the company’s objectives. Additionally, the way the Respondent conducted the PIP process suggests to the Complainant that it was done without sincerity or any real attempt to assist the Complainant in his endeavours.

The Complainant submitted that the PIP and disciplinary processes used were flawed, unreasonable and unachievable.

It is the Complainant’s contention that although he had serious reservations about the contents of the PIP he was advised that it was a pre-condition of returning to work that he sign it. He did sign the PIP but only “under protest”.

The PIP did not have specific measurements that had to be achieved.

The Complainant contends that his Formal PIP review meetings with Mr. A were consistently cancelled or postponed.   For example, the first review meeting scheduled for 25th September 2017 was rescheduled a number of times and did not actually take place until 13th October 2017.   Of more concern to the Complainant was that he was only provided with formal feedback from this meeting on 8th November 2017, six weeks from the original first review date.   The Complainant submits that it is difficult to comprehend how he was expected to improve his performance when the feedback on it was so extraordinarily delayed. The second review meeting was scheduled for 22nd November 2017 but this meeting was twice postponed by Mr. A until 24th November 2017. Again, feedback from this meeting was subject to a long delay and the Complainant only received it on the evening of 15th December 2017.

All-in-all the Complainant was subject to only two reviews that were regularly postponed and delayed. In fact, the Complainant submits that he was only made aware of his alleged shortcomings some 11 weeks after he returned to work.

The second review occurred on 24th November 2017, a mere two weeks after the Complainant had received the first review report. The Complainant contends that this short timeline, of itself, was totally inadequate in providing him with any reasonable opportunity to improve. In addition, the report of the second review meeting, was sent by Mr. A, in an email to the Complainant on 15th December 2017 advised, amongst other things: “Apologies for the delay in getting this report to you I had to review all of the details before reaching my decision.”

The Complainant also contends that Mr. A only communicated his performance concerns by way of unsigned formal reports. Indeed, the Complainant puts forward that in the minutes provided of the PIP meeting of 24th November Mr. A makes no negative commentary about the Complainant’s performance.

Regarding the meetings with Mr. D the Complainant submits that there was only one formal meeting between Mr. D and the Complainant; the other meetings were short, casual conversations, sometimes in front of other employees. There were three other conversations but the Complainant never received any minutes until he received same on 28th December 2017 as part of the documentation inviting him to a disciplinary hearing.

The Complainant submits that there were several mitigating factors which prevented him doing his job. These factors were:

(i) the impact of an organisational change which altered structures in the Complainant’s sphere of operations.

(ii) severe and on-going staff shortages.

(iii) abnormally high levels of staff absences and

(iv) equipment deficits.

The Complainant submits that there were also faults with the disciplinary process, namely that despite requests the Complainant was not allowed cross-examine witnesses, not all relevant witnesses were interviewed and there were extraordinary delays in providing some notes.

The Complainant also submits that the Respondent’s submission is incorrect when it states that there were six performance meetings held with the Complainant between late October and April 2017; these according to the Complainant were not performance meetings rather normal operational meetings.

The Complainant submits that he was not afforded a reasonable timeframe to make improvements as required by the Respondent’s arbitrary and extremely challenging PIP objectives. In reality, argues the Complainant, he, a dedicated employee with 23 years’ service, was given a mere 13 weeks to achieve near impossible performance goals. Exacerbating this the Complainant’s environment, with staff, equipment and operational shortcomings made it impossible for the Complainant to achieve the objectives set for him.

Additionally, the “de facto” casual way the Respondent conducted the PIP process seems to suggest a lack of sincerity in supporting the Complainant in his endeavours.

The Complainant gave evidence at the adjudication hearing. He stressed that he had signed the initial PIP form under protest but he did not think the objectives were achievable, they were almost impossible for several reasons including staff shortages, absence levels, lack of staff.

Regarding the second PIP meeting the Complainant had with Mr. A, he stated there were not really any negative comments, although some customers were not happy with how things were going. The Complainant felt things were improving and he was making progress.

In cross examination, when asked if he had raised all the issues he had raised at the adjudication hearing at his disciplinary hearing with Mr. E, the Complainant agreed that he might not have given Mr. E all the emails he had in his possession at the time.

In closing, the Complainant stated that he had 23 years of exemplary service, with no negative appraisals until the time of his dismissal. In July 2017 he was hit with a tsunami of issues and not given the time to deal with them through an unachievable PIP process. The Complainant re-iterated his view that he had not been supported by the Respondent throughout this period.

I have considered this matter carefully, particularly in light of the Complainant’s long and largely unblemished employment record.

In this instance the Complainant was dismissed for capability and competence reasons.

S6(4)(a) of the 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 the conduct of the employee.

In addition S6(7) of the Act requires that in determining if a dismissal is an unfair dismissal, regard may be had, if the Adjudication Officer considers it appropriate to do so- (a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the 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 which the employer will observe before and for the purpose of dismissing the employee …or with the provisions of any code of practice.

I must therefore consider both the fairness of the procedures adopted and substantive issues leading to the dismissal.

As to whether there were substantial grounds for the Complainant’s dismissal on the ground of , the applicable legal test is the “band of reasonable responses” test, as comprehensively set out by Mr Justice Noonan in the context of Section 6 of the Unfair Dismissals Act 1977 in the High Court case of The Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241, wherein he stated: “It is thus clear that the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s. 6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer's conduct in relation to the dismissal.

That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned - see Royal Bank of Scotland -v- Lindsay UKEAT/0506/09/DM.”

So, it is not my role to decide if the decision taken to dismiss was what I would have done in the circumstances but to decide whether the decision to dismiss the Complainant falls within the range of reasonableness as described above. In this instance I find it does. The Complainant was working in a safety critical operation where safety failings could have catastrophic consequences. In reviewing this case the decision-making processes of both Ms C, who issued the final written warning and more importantly Mr. E, who took the decision to dismiss the Complainant, were both heavily influenced by the safety aspects of the Complainant’s performance.   I am satisfied that alternative sanctions were considered by Ms C and Mr. E respectively but were deemed inappropriate.

Although the time lines given for the Complainant to improve his performance to the degree demanded was relatively short I am of the view that this, and the other blockers to him achieving the desired performance, such as staff and equipment shortages, were taken into account before the decision to dismiss him was taken, but were not deemed sufficient to prevent a decision to dismiss.

The next question I must answer is whether the procedures used by the Respondent during the process leading to the dismissal were fair. I find that they were fair and that the rules of natural justice were followed. The Complainant was always made aware of his rights and the procedures used followed the Respondent’s laid down policy.   He was represented throughout the disciplinary process and was granted appropriate appeals. There were delays in the process but not such as to make it unfair.

I do not find the dismissal unfair and the complaint fails.

Performance, competence, capability, reasonableness, procedures