FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : BOOTS RETAIL IRELAND (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - LUKA GLOGOSKI DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Marie Worker Member: Ms Treacy |
1. Appeal Of Adjudication Officer Decision No: ADJ-00005177 CA-00007259-001
BACKGROUND:
2. The Worker appealed the Decision of the Adjudication Officerto the Labour Court on 9th October 2017 in accordance with Section 8(A) of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 18th January 2018. The following is the Determination of the Court:
DETERMINATION:
This is an appeal against the Decision of an Adjudication Officer under the Unfair Dismissals Act 1977 – 2015 (the Acts) in a claim made by Mr Luka Glogoski against his former employer, Boots Retail (Ireland) Limited. The Adjudication Officer held that the complaint of unfair dismissal was not well founded and the complaint failed.
For ease of reference the parties are given the same designation as they had at first instance. Hence Mr Glogoski will be referred to as “the Complainant” and Boots Retail (Ireland) Limited will be referred to as “the Respondent”.
The Complainant referred his case to the Workplace Relations Commission on 30thSeptember 2016. Two hearings before an Adjudication Officer were held on 31stMarch 2017 and 2ndJune 2017. The Adjudication Officer decision dated 31stAugust 2017 was appealed by the Complainant to the Labour Court on 9thOctober 2017. The appeal came before the Court on 18thJanuary 2017.
Background
The Respondent is an international pharmacy-led health and beauty company. It has 87 stores throughout the Republic of Ireland, having opened its first store in this jurisdiction in 1996.
The Complainant is a qualified pharmacist and was initially employed by the Respondent as a Relief Pharmacist in February 2007. In June 2009, he was promoted to the position of Supervising Pharmacist at the Ashbourne store, a position he remained in until the termination of his employment with effect from 28thApril 2016.
Summary of the Respondent’s Position
Ms Aisling McDevitt, Ibec, for the Respondent, provided the Court with a substantial written submission with supporting documentation and set out the following background for the Court:
The Complainant was fairly dismissed by the Respondent for reasons of underperformance or incompetence in accordance with Section 6(4) of the Unfair Dismissals Acts.
At the time of his dismissal in April 2016, a final written warning in connection with his underperformance and conduct was active on the Complainant’s file. The final written warning was issued with effect from July 2015 in accordance with the Respondent’s Disciplinary Policy and had followed an oral recorded warning, also for underperformance, which had been issued in April 2015.
The dismissal was carried out in accordance with the Respondent’s Disciplinary Policy and performance improvement mechanisms contained in the ‘Performance Leadership Policy’. Prior to his dismissal, the Respondent had been placed on a formal Performance Improvement Plan (PIP) in November 2015 which set out 19 objectives for him to achieve (a copy of the PIP was provided to the Court).
The objectives were drawn up in accordance with the Respondent’s Capability Framework document for a ‘Boots Supervising Pharmacist’ and the associated role profile document which sets out the Responsibilities/Accountabilities for the role (copies of the documents were provided to the Court). The Complainant agreed with the objectives and jointly signed the PIP document with his line manager.
The PIP concluded in February 2016, which included an extension to account for the Christmas and New Year period and the Complainant was deemed by his line manager to have achieved 5 and failed 14 out of the 19 objectives. The Complainant’s line manager, who is the Ashbourne Store Manager and a Pharmacist, carried out a formal investigation with him in March 2016 and concluded that the matter of his under-performance should proceed to be dealt with under the Respondent’s Disciplinary Policy.
A disciplinary hearing was conducted by a different Store Manager, who is also a Supervising Pharmacist at another of the Respondent’s stores, on 5thApril 2016, following which the decision to dismiss the Complainant for under-performance was confirmed by letter dated 28thApril 2016. The letter provided that the Complainant would be paid in lieu of eight weeks’ notice.
The Complainant appealed his dismissal to an Area Manager, who was also a pharmacist, and an appeal hearing was held on 15thJune 2016. The appeal was unsuccessful and the dismissal was upheld.
Ms McDevitt told the Court that the Complainant had been advised of his rights to representation throughout, including his right to avail of trade union representation. The Complainant chose to bring a colleague to some but not all meetings throughout the process. The Complainant had been provided with all relevant documentation throughout and had a full opportunity to state his case at each stage, which he did both verbally and supported by comprehensive written statements which he provided to the decision-maker at each stage.
Ms McDevitt told the Court that the Complainant received poor performance ratings in 6 out of the 7 years preceding the termination of his employment. The Complainant’s end-of-year performance ratings for the period 2010-2016 were as follows:
- 2010 - ‘Below Expectations’
2011 - ‘Below Expectations’
2012 - ‘Below Expectations’
2013 - ‘Performing’
2014 - ‘Not Performing’
2015 - ‘Not Performing’
2016 - ‘Not Performing’
During his employment, the Complainant was placed on five separate Performance Improvement Plans, which were managed by four different line managers, as follows:
- August 2010 to January 2011 - Line Manager A
July 2012 to October 2012 - Line Manager B
February 2015 to March 2015 - Line Manager C
May 2015 to June 2015 - Line Manager D
November 2015 to February 2016 - Line Manager D
The Court was told that at no stage during his employment did the Complainant follow the Respondent’s Grievance Procedure to challenge any of the performance ratings, the disciplinary sanctions or the PIPs.
Summary of the Complainant’s Position
The Complainant represented himself at the hearing before the Court. He chose not to give evidence to the Court but he made very substantial written and oral submissions to the Court, which can be summarised as follows:
There were no real performance issues with the Complainant. He variously described his personal performance in his role as very good, excellent and close to perfect. He believed he was at least as good if not better than any of the Respondent’s other supervising pharmacists and that there was no basis for implementing PIPs, not to mind disciplining and dismissing him.
He disagreed that he did not achieve 14 out of the 19 objectives set out in his PIP. He believed that he demonstrated sufficient improvements and achieved 99.9% of those 14 objectives, but that the Respondent had within the PIP imposed an increased workload and applied an overly strict standard for achievement of the objectives, effectively zero tolerance. Any issues of underachievement were either minor or were issues that staff struggled with generally and were not particular to him. In support of this position, the Complainant highlighted some examples from the PIP:
With regard to Patient Safety Reviews, he stated that he completed two out of the required three reviews. He could not complete the third review, as a relevant colleague was on leave and unavailable and there was insufficient time after she returned. He believed that this was mitigating circumstances. He believed that two out of three was therefore good enough and that it should have been accepted as such by the Respondent.
With regard to adherence to the Respondent’s Standard Operating Procedures (SOP’s), the Complainant told the Court that, as an example, rather than utilise the company SOP for taking prescriptions into the pharmacy, he instead developed his own procedure and documentation, and implemented that. He believed that his procedure was a better one, that he was thinking outside the box and that he was ahead of his time in this regard. The Respondent regarded his non-use of the company SOP in favour of his own procedure as non-adherence. Following an SOP audit, he believes he achieved 93% compliance – there was approximately 4 SOP’s that there were persistent problems with. He believed that a 93% level of compliance should have been accepted by the Respondent as good enough.
With regard to the ‘Model Day’ tasks (required daily tasks), the Court was told that daily required tasks were 95%+ completed in his view, and that this should therefore not have been regarded as a failed objective. He stated that aspects of incomplete tasks related to administrative omissions and that they were in his view mostly irrelevant and were related to the fact that he wasn’t afforded sufficient time for completion.
There was a senior management mandate to punish him. In 2014 the Complainant experienced difficulties with a colleague in the dispensary and with store management. He had raised issues and concerns in the store which he believed ultimately led to the Store Manager at that time being transferred to another store. His concerns were not taken seriously and subsequent under-performance issues raised against him resulting in PIP’s and disciplinary sanctions were retaliation by senior management to punish him for challenging management and to exit him from his employment. He believed that his line manager and other managers involved were carrying out this mandate from senior management.
There was insufficient time and inadequate support to complete tasks and achieve objectives. The Complainant stated that the promised additional relief cover in the pharmacy, to allow him time to complete tasks and achieve the PIP objectives, never materialised. He stated that much of the relief time he had was taken up with face time with his line manager to review progress on the PIP. This therefore did not facilitate the time he needed to complete tasks and meet the objectives.
Incorrect performance standards were applied in his case. The Complainant believed that the correct standard that should have been applied in his PIP was that of the ‘performing’ standard, which was the minimum acceptable standard of performance. He believed, however, that the highest standard within the Respondent’s performance appraisal ratings, described as ‘legendary’, was the standard that was being applied in his case.
The disciplinary process was flawed as the disciplining manager, who issued the oral and the final written warnings, previously worked with and socialises with the Complainant’s line manager who managed the PIP. He believed that there was improper influencing at play between the two managers.
Although he was made aware that he could be represented by the Respondent’s recognised trade union, the Complainant believed that the union was not relevant to his grade. He made contact with the Irish Pharmacy Union, the professional body for community pharmacists in Ireland. Ultimately, he chose to bring a colleague to meetings who acted as a silent witness.
The disciplinary process was unfairly and unnecessarily expedited from an oral warning to a final written warning, skipping the written warning stage.
The dismissal was pre-determined, with the preceding disciplinary process rushed. The Respondent initially sought to schedule the disciplinary hearing just two days after the investigation outcome meeting.
The Respondent failed to consider demotion as an alternative to dismissal.
Summary of the Evidence
Ms Jamie Maher, Respondent’s Employee Relations Partner
Ms Jamie Maher gave evidence on behalf of the Respondent. She told the Court she commenced employment with the Respondent after the termination of the Complainant’s employment. The witness’ evidence was therefore confined to the operation of the Respondent’s performance management processes and related policies.
Ms Maher said that the Respondent operates a performance appraisal system where colleagues are rated each year against three possible ratings: ‘Non-Performing’; ‘Performing’; ‘Legendary’. She said that the role profile for a particular role sets out the responsibilities and accountabilities and is the minimum standard, or ‘Performing’ standard, required of the role holder. Where the standards are not being achieved the performance management process called the ‘Performance Leadership Policy’ is followed, which aims to support the employee to achieve desired performance. This involves at least two informal conversations between the employee and the line manager where informal actions are identified. If performance does not sufficiently improve then a formal PIP is drawn up by the line manager in conjunction with the employee which will stipulate areas for improvement, clarify what needs to happen and how and what supports will be in place.
Ms Maher said that the general timeframe for the PIP is 6-8 weeks with catch-ups during that period, but timeframes can vary depending on the circumstances. If the PIP has not been successful, the line manager can commence a formal investigation under the Disciplinary Policy which can result in the line manager deciding to refer the matter for a disciplinary hearing. The line manager manages the PIP and conducts the investigation as they are best placed to evaluate the performance and determine whether or not a disciplinary hearing is required. The line manager then has no further role and HR will arrange for other managers to deal with the disciplinary hearing and appeal. The disciplinary sanctions that can be applied are provided for in the Disciplinary Policy and that Policy provides that the disciplinary sanction issued can vary according to the circumstances.
Ms Maher told the Court that line managers receive training on how to manage a PIP. They can get support from the witness and the Clinical Governance Pharmacist whilst they are managing a PIP. The witness said that at any one time there are a number of colleagues throughout the organisation going through the PIP process. A small number of Supervising Pharmacists have been on PIPs. The witness was asked about the Respondent’s Grievance Policy and she told the Court that where formal grievances are submitted in writing they are investigated in accordance with the Grievance Policy. She said that the Grievance Policy also provides that a colleague can go directly to HR with issues if they so choose.
Mr James Coughlan, Complainant’s Line Manager
Mr James Coughlan gave evidence on behalf of the Respondent. The witness told the Court that he qualified as a Pharmacist in 2013. He became Store Manager in the Ashbourne store in April 2015 and took over the managing of the Complainant’s PIP from the previous manager. He also performed duties as a Pharmacist in the store.
Mr Coughlan said that he reviewed and revised the PIP with the Complainant and they agreed an 8-week process. He told the Court that the objectives were based on the Capability Framework and role profile for a Supervising Pharmacist. The witness said that the PIP timeframe was extended by a week. When the PIP was subsequently reviewed, the Complainant had achieved only 5 of the 19 objectives. The witness told the Court that the objectives were normal appropriate objectives for the role both in terms of the number of objectives and the types of tasks contained therein. He set out some examples of underachievement.
With regard to ‘Model Day’ tasks Mr Coughlan said that these daily tasks as per the Model Day tracker were not completed. He said that the tasks were standard daily tasks involving supervising the pharmacy from the pharmacy floor. The tasks did not involve any requirement for off-line work.
With regard to SOP’s, Mr Coughlan said that the Complainant had designed his own prescription docket which contained a lot of questions to be asked of customers when handing in a prescription to the pharmacy - an example of a question was outlined for the Court. This docket was outside of company procedures resulting in the store being in breach of SOP1. In addition, the feedback that had been received was that arising from the numerous questions being asked, customers were being ‘grilled’ in respect of their prescriptions and this was causing problems. With regard to Patient Safety Reviews, the witness disagreed with the Complainant that failing to do just one review meant that it was 99% achieved and should therefore have been acceptable. He said that when it comes to patient safety 99% is not acceptable - he said that if the colleague who was not reviewed had a subsequent issue then responsibility would lie with the supervising pharmacist.
The witness told the Court that relief-cover/double-cover (a period when 2 pharmacists are in the pharmacy) was put in place for 12.30 to 2.30 on a Monday. He said that time was allocated for PIP tasks and PIP discussions and that it was the Complainant’s responsibility overall to optimise the time available. He said that utilisation of the relief-cover time was a matter for the Complainant. If he wished to utilise the time to complete tasks or to have PIP catch-ups/discussions, then that was up to him. The witness said that he was flexible in the store with his own time in terms of being available to cover in the pharmacy if the Complainant wanted it or being available for PIP catch-ups if the Complainant wanted them.
Mr Coughlan disagreed with the Complainant that 100 dispensary items per day was a substantial number. He said that he had worked in various stores during his employment with the Respondent where the dispensary numbers ranged from 150 to 200 and up to 500 in one particular store.
The witness said that after the PIP timeframe had expired he took a full month to go through everything in the PIP to determine what was and what was not achieved. He said that he was presented with a lengthy written statement by the Complainant at the investigation meeting, which necessitated a temporary adjournment so that he could go through it. He said that after the investigation meeting he went through the statement again in detail before deciding to refer matters to a disciplinary hearing.
Mr Coughlan told the Court that a significant amount of issues and matters that were unrelated to the PIP process were contained within the written statement. He said, however, that his decision to refer the matter to a disciplinary hearing was based solely on the PIP outcome. He added that he was not involved at all in the disciplinary process and had no role in selecting a manger to conduct the disciplinary hearing, which he said was a matter for HR.
With regard to a management mandate against the Complainant, the witness told the Court that the decision to refer the matter to the disciplinary process was his and his alone and he was not influenced by anyone. The witness told the Court that the Complainant’s PIP was the first one that he managed in his role. He has not managed one since. He said that the Complainant agreed to the PIP objectives and never indicated that he was unhappy with the objectives or that he wished to raise a grievance in respect of them. He said that he believed that the Complainant had an issue with his relatively short length of experience versus the Complainant’s, and with the fact that he had worked with the Complainant earlier in his career when he (the witness) was a summer intern in 2009. He said he had undertaken various management training programmes, including disciplinary policy training, store manager HR training and the Boots stepping up programme.
Mr Will Brennan, Manager who made the dismissal decision
Mr Will Brennan gave evidence on behalf of the Respondent. Mr Brennan told the Court that he worked for the Respondent since 1992 and qualified as a Pharmacist in 1996. He had worked for the Respondent in Ireland and in the UK and had worked in a variety of stores. He is currently a store manager in Portlaoise. He said that he was contacted by HR and asked to conduct a disciplinary hearing in respect of the Complainant and he agreed. He had previous experience of doing disciplinary meetings.
Mr Brennan said that he did not know the Complainant previously but had seen him at staff meetings in the past. He was briefed by HR and advised that the Complainant was at that point on a final written warning for under-performance. He was provided with a copy of the PIP, a copy of the investigation outcome document drawn up by the Complainant’s line manager and a copy of the final written warning. When he reviewed the PIP, nothing had jumped out at him as being anything other than, in his experience, normal tasks and duties for the role of a supervising pharmacist. He saw nothing that was outside of the normal remit of a supervising pharmacist. He was satisfied that the standard of the PIP objectives was based on the role profile and accorded with the ‘Performing’ standard rather than the ‘Legendary’ standard. At the disciplinary hearing the Complainant provided him with a lengthy written submission. He adjourned to read it. When they reconvened he used the Complainant’s written submission and the investigation outcome document in combination to go through matters with the Complainant.
With regard to relief-cover, Mr Brennan said that he reviewed the relevant rotas and saw nothing to suggest that cover wasn’t available to the Complainant. He noted that there were times available to the Complainant when the store was closed to customers that could have been used to achieve tasks. He saw no reason why the Complainant could not have used the time available as he needed to. He saw no reason why Patient Safety Reviews were not done.
With regard to SOP’s Mr Brennan said that he disagreed with the Complainant that failure to adhere to 4 out of 61 SOP’s was a minor failing. He said SOP’s must be adhered to. He said that a pharmacist has to live by SOP’s, that they are critical to patient safety. Following the hearing he took considerable time to go through all of the information again and make his decision. He knew that the Complainant was on a final written warning and that dismissal was an option. Overall, he believed that the evaluation of the Complainant’s performance against the PIP was correct – he had not shown sufficient improvement. He was concerned in particular that the Complainant had demonstrated an inability to adhere to SOP’s. It came across to him that the Complainant had a disregard for company procedures. He said that the Complainant’s own assessment of his performance was very different to the evidence that emerged from the PIP process. The Complainant did not believe that there was a basis for performance concerns and he expressed no regret or awareness of the situation.
Mr Brennan said that he considered whether demotion to a pharmacist role would be appropriate. He considered this at length and concluded that the concerns around non-adherence to SOP’s would be as much an issue in a pharmacist role as it was in the supervising pharmacist role. He therefore decided that the Complainant was unsuitable to remain as a pharmacist in the company and he decided to dismiss the Complainant. He told the Court that it was a tough decision which he didn’t take lightly. He said that the decision was entirely his and he was not influenced by anyone in taking it.
Mr Mark McCasker, Manager who conducted the appeal
Mr Mark McCasker gave evidence on behalf of the Respondent. Mr McCasker told the Court that he was 14 years employed with the Respondent. He was a qualified pharmacist and had been in the role of Area Manager for Southern Republic of Ireland since November 2014. He was asked by HR to conduct the appeal and he agreed.
Mr McCasker said that he was provided with the relevant paperwork by HR. At the commencement of the appeal hearing the Complainant submitted a lengthy written document which he took time to read. He said that he was satisfied that the PIP was properly based on the supervising pharmacist role profile and capability framework and all of the tasks aligned with the requirements of the supervising pharmacist role. He told the Court that he was satisfied that the timeframe for the PIP was appropriate. He added that he had noted that the Ashbourne store had 45 minutes per day of non-patient facing time which can be used for administration work. Along with the general downtime that occurs during the day he was happy that time was not a valid issue and that relief-cover was not crucial to getting normal tasks done.
Mr McCasker said that SOP’s must be implemented and substituting one’s own procedure was not permitted. He said that there was a procedure in place if one wished to give feedback on improving SOP’s. The witness told the Court that he had not been provided with any evidence of a management mandate against the Complainant and he wasn’t influenced in his decision. He wasn’t convinced that the disciplinary process had been rushed and pre-determined and believed that the process had been set up in accordance with the availability of the variety of people involved. Overall, he had seen no reason to overturn the decision to dismiss and he believed that it had been a fair decision. He considered demotion as an alternative to dismissal. But he felt that with regard to SOP’s, the Complainant, while he believed he was fully capable of complying, hadn’t shown himself of being capable of complying with the SOP’s and this was a particular concern
Mr Roland Bond, a former Pharmacy Technician with the Respondent
Mr Roland Bond appeared before the Court at the behest of the Complainant. He told the Court that he worked for the Respondent at its Ashbourne store from December 2013 to April 2017. He said that he worked with the Complainant. He told the Court that, at the request of the Complainant, he attended a number of the Complainant’s disciplinary related meetings with the Respondent managers. He told the Court that he attended these meetings in the capacity of a silent witness.
Mr Bond said he took advice from his union representative before he attended any of the meetings and he was told by the union that he was to attend as a silent witness. The witness told the Court that he understood that he was appearing before the Court to give his opinions and beliefs with regard to the Respondent’s treatment of the Complainant.
The Law
Section 6(1) of the Act states: -
- 6.Ms Majher(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.
Section 6(4) of the Act states, in relevant part: -
- (4) 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 work of the kind which he was employed by the employer to do
In a case of dismissal for incompetence, it is not for the Court to establish whether or not the Complainant was incompetent or under-performing in the discharge of his duties. Were the Court to adopt that approach it would in effect be trying to second-guess, from a removed stand-point, the Respondent’s managers who are responsible for managing performance of subordinates and who are best placed to evaluate performance on the job.
Rather the Court's role is to decide on whether or not the employer's decision was reasonable such that it was properly arrived at by virtue of being based on up-to-date and relevant information which had been considered through appropriate processes applied in a consistent manner in accordance with basic fairness and in observance of the rights of fair procedures.
This approach of whether a reasonable employer would have dismissed the employee in the same circumstances was explained by Donaldson LJ inUnion of Construction Allied Trades and Technicians v Brane[1981] IRLR 224(Court of Appel for England and Wales) in the following terms: -
- It is a very sensible approach for Tribunals to put themselves into the position of the employer, informing themselves of what the employer knew at the moment, imagining themselves in that position and then asking the question, ‘Would a reasonable employer in those circumstances dismiss?’ However, Tribunals must not fall into the error of asking themselves the question; ‘Would we dismiss?’ because there is sometimes a situation in which one reasonable employer would and one would not. It is sufficient that a reasonable employer would regard the circumstances as sufficient reason for dismissing. The statute does not require the employer to satisfy the Tribunal of the rather more difficult consideration that all reasonable employers would dismiss in those circumstances”
InDerryquin Hotels Ltd v Savage[1981] IRLR 91,Lord Denning MR stated the position thus: -
- “It must be remembered that in all these cases there is a band of reasonableness within which one employer might reasonably take one view: another quite reasonably take a different view. One would quite reasonably dismiss the man. The other would quite reasonably keep him on. Both views may be quite reasonable. If it was quite reasonable to dismiss him, then the dismissal must be upheld as fair: even if other employers may have dismissed him”
In this jurisdiction, inBunyan v United Dominions Trust[1982] ILRM 404, The EAT adopted and applied the following principle enunciated by the UK EAT inNC Watling Co Ltd v Richardson[1978] IRLR 225: -
- [T]he fairness or unfairness of dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circumstances in that line of business, would have behaved. The tribunal therefore does not decide the question whether or not, on the evidence before it, the employee should be dismissed. The decision to dismiss has been taken, and our function is to test such decision against what we consider the reasonable employer would have done and/or concluded.
Discussion & Decision
The Court is satisfied that the Respondent in this case had before it evidence of the Complainant’s performance deficiencies about which it was entitled to be concerned. The Court is further satisfied that the Complainant’s performance was dealt with in accordance with the Respondent’s Performance Leadership Policy and Disciplinary Policy. This involved the under-performance issues being dealt with informally in the first instance, before a formal PIP was initiated followed by the disciplinary process.
No evidence was presented to the Court in this case from which it could conclude that a management agenda was at play which had the intention of terminating the Complainant’s employment. Nor was there evidence that the decision to dismiss the Complainant was pre-determined, as alleged by him.
The Complainant in this case places great emphasis on what he believed to be the Respondent’s overly strict standards and expectations which he described, variously, in his written submissions as ‘impossible’, ‘not practical’ and ‘nit-picking’. However, in the Court’s view it is for an employer to determine its own standards in terms of what it considers are priority tasks, duties and processes, the importance it attaches to particular tasks, duties and processes and the performance objectives that it sets, subject to those standards being consistently applied and not being unachievable.
Having considered the evidence and all relevant information in this case, the Court, therefore, is satisfied that the material facts of the case are as follows:
A PIP was signed and agreed between the Complainant and his line manager in November 2015. The PIP contained 19 agreed objectives, which objectives were drawn up in accordance with the Respondent’s Capability Framework for a ‘Boots Supervising Pharmacist’ and the associated role profile.
At that time, in November 2015, a final written warning, which encompassed under-performance, had been issued in accordance with the Respondent’s Disciplinary Policy and was active on the Complainant’s file such that he was on notice at that time that further under-performance issues could result in his dismissal. The final written warning had been upheld on internal appeal but thereafter the warning had not been challenged.
In February 2016, following a review of the Complainant’s performance against the objectives, the line manager concluded that the Complainant had not sufficiently performed against the PIP objectives. A formal disciplinary process was initiated, in conjunction with the human resources department, which culminated in the termination of the Complainant’s employment for underperformance.
The PIP objectives agreed between the parties were based on the minimum expected standard, the ‘Performing’ standard, for the Supervising Pharmacist role. The Complainant’s PIP objectives were consistent with the type of objectives contained in comparable PIP’s within the Respondent. The timeframe applied to the PIP and the supports put in place to assist the Complainant accorded with the Respondent’s normal practice in this regard.
The investigation, disciplinary hearing and appeal were all conducted by different managers, who were also all pharmacists. Throughout the process the Complainant was aware of the details of the under-performance charge. He was given an opportunity at each stage to challenge the allegations against him and present any mitigating circumstances. At each stage he submitted a substantial written document setting out his responses, which statement was worked through with the Complainant in the hearings by each deciding manager at each stage. The disciplinary process timeframe was based on the availability of the participants, including the Complainant for whom the disciplinary hearing was put back on request.
The outcome of the investigation, the disciplinary hearing and the appeal hearing were set out comprehensively by each manager in a letter confirming their respective decisions. Each letter sets out reasoned responses to the Complainant’s submissions and clearly sets out the reasons for the conclusions and decisions arrived at by the decision-making manager in each case. Reasons why demotion as an alternative sanction was not decided upon was also set out.
The Complainant was advised of his representation rights at each stage, including the right to be represented by the Respondent’s recognised trade union. He chose to have a colleague accompany him to some of the meetings.
Therefore, in light of the foregoing and having regard to all of the circumstances in this case, the Court is satisfied that the Respondent’s decision to dismiss the Complainant for under-performance was fair and reasonable in that it was arrived at following the application of the Respondent’s Performance Leadership Policy processes and its Disciplinary Policy processes, which processes were applied in accordance with the Complainant’s rights to fair procedures.
Accordingly, the Court is satisfied that there were substantial grounds justifying the dismissal and that the dismissal was not unfair in the circumstances.
Determination
The Complainant was not unfairly dismissed by the Respondent.
The appeal is disallowed and the Adjudication Officer’s decision is affirmed accordingly.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
30th January 2018______________________
JDDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Deegan, Court Secretary.