UDD1838

Background

The Complainant commenced employment with the Respondent in 2007 as a Horticultural Farm Worker. He was employed on a season to season basis and his tasks included husbandry work such as “tunnels” and soft fruit picking. It is the Respondent’s position that the Complainant was dismissed as he lacked the competence to “pick fruit” in line with the standard required by the Respondent which is the primary task of a Horticultural Farm Worker. It is the Complainant’s position that in the early years of his employment he was assigned in the main to “tunnel” work and there was no issue with his performance. He had requested that he be reassigned to tunnel work but this had not been facilitated. He did not dispute that he had difficulty reaching the targets set by the Respondent. The fact of dismissal is not in dispute.

Complainant’s case

The Complainant was employed as a Horticultural Farm Worker from 07 September 2007 to the date of his dismissal 24^thDecember 2015. There were no disciplinary issues of any nature in the years 2007 to 2013 with the exception of 2011 when he was issued with a verbal warning because his performance was below average. It is the Complainant’s position that his below average performance was in relation to fruit picking which was different from the task he was normally assigned to, namely, tunnelling. It is his position that he was predominantly assigned to the tunnelling crew and not fruit picking. There were no issues with his work when he was assigned to tunnelling duties. Performance issues only arose when the Respondent unilaterally changed his duties to fruit picking duties. The Respondent could have reassigned him back to tunnelling duties and in fact on a number of occasions he had requested same. The Complainant does not dispute that he had difficulty in reaching the fruit picking targets and that he received additional coaching and retraining. It is the Complainant’s position that instead of invoking the disciplinary procedure which ultimately led to his dismissal he should have been reassigned to tunnelling work where there had never been an issue with his work. It is the Complainant’s position that the targets were too high and that the method for calculating the targets was never clearly explained to him. The Complainant alleged “mobbing or bullying” and that the timing of the dismissal demonstrated hostility towards him. In his evidence to the Court the Complainant confirmed that he was employed as a Horticultural Farm Worker and that each season he would have carried out some fruit picking duties as well as the “tunnel work”. It was his evidence that other workers were faster at fruit picking than him and that he had looked to go back to the tunnel work where there were no targets. It was the Complainant’s position that the system was inherently unfair and that there was a lack of clarity in relation to the targets. However, it was accepted that the targets generally worked well for the Respondent.

Respondent’s case

It is the Respondent’s case that the dismissal was fair in all the circumstances of this case. The Respondent set out for the Court the various steps in the procedure it had followed none of which were disputed by the Complainant. It is the Respondent’s case that the Complainant was employed as a Horticultural Farm Worker. The core duty of that grade is fruit picking. When first assigned to fruit picking all workers are trained on the requirements of quality and speed of fruit picking. When the Complainant was assigned in his first few seasons as a fruit picker his pick performance was acceptable. In relation to the complaint of mobbing /bullying the Complainant never made a formal complaint despite being afforded the opportunity to do so.

In terms of the Respondent’s work processes a piece rate system is in place. The output standard is set in advance and the fruit pickers earn by piece work depending on their output. The Respondent always pay the fruit pickers at least the minimum wage for the hours worked. Where fruit pickers underperform and the piece rate calculations indicate that they would not reach the minimum wage rate then their pay is made up to the rate. The scale of “make-up” is used an objective measure of underperformance.

The Complainant was given a verbal warning in regard to his poor performance in April 2015. He was then provided with training on the 8^thJune 2015. As there was no improvement in his performance he was given a written warning on the 13^thJune 2015. On the 6^thJuly the Complainant received field coaching which amounted to one-to-one coaching in fruit picking which was an exceptional measure for a fruit picker in their ninth year. The Complainant’s performance following this deteriorated rather than improved and he was issued a final written warning on 29^thAugust 2015. His performance continued to deteriorate and he was invited to attend an investigative meeting into his performance on the 5^thOctober 2015.

The Complainant declined to bring a representative to the meeting. At the meeting the Complainant indicated that he did not think he could change his fruit picking rate. Following the meeting a report was issued which recommended a disciplinary hearing. The Complainant was invited to attend a disciplinary hearing on the 2^ndNovember 2015 and to bring a representative. At the meeting on the 2^ndNovember the Complainant was unaccompanied and asked if he could bring a solicitor. When he was asked if he wanted to bring a solicitor to the meeting or to suspend the meeting to allow him talk to a solicitor he stated “no, continue” so the disciplinary meeting proceeded. On the 24th November by letter the Complainant was advised that he was being dismissed with effect from the 24^thDecember 2015 which included his notice period which he was not required to work. He was also informed of the appeal process available.

By letter of the 30^thNovember 2015 the Complainant appealed the decision. The appeal hearing was held on the 20^thJanuary 2016 where the Complainant was represented by his Trade Union Official. However, the decision to dismiss was upheld. The Respondent gave the Complainant numerous opportunities to improve his fruit picking rate and provided additional training over and above what should be required for someone with nine years' fruit picking experience. Instead of leading to an improvement in his performance, his performance deteriorated.

The Respondent had no option but to dismiss the Complainant.

The Law

Section 1 of the Act defines dismissal in the following manner

“dismissal”, in relation to an employee, means—

• 
  (a)the termination by his employer of the employee's contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

  (b)……

“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.”

Issue for the Court

Dismissal as a fact is not in dispute and so therefore it is for the Respondent to establish that in the circumstances of this case the dismissal was fair.

Discussion

The issue before the Court on appeal is not whether the Complainant’s performance was measured correctly or whether he should have been assigned to other duties. The issue is whether or not in all the circumstances of this case the Respondent was justified in dismissing the Complainant having regard to his failure to reach the required targets set by the Respondent and the reasonableness of such targets. Dismissal for incompetence can only be justified where there has been a succession of failings and the application of a gradual staged disciplinary process.

The Court, having considered the totality of the evidence adduced in the course of the appeal, is satisfied that the Respondent afforded the Complainant numerous opportunities to improve his performance and provided additional training to assist him in achieving the required improvement. In relation to the reasonableness of the targets set the Court was informed that the majority of employees achieve the required targets and this was not disputed.

The Court is also satisfied that the Respondent afforded the Complainant the full benefits of fair procedures and in doing so had due regard to the seriousness of the consequences for the Complainant.

In all the circumstances, and having regard to the foregoing, the Courts finds that the Respondent had reasonable grounds to dismiss the Complainant. The appeal fails and the Decision of the Adjudication Officer is upheld.

The Court so determines.

Signed on behalf of the Labour Court



Louise O'Donnell
LS______________________
09 July 2018Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Louise Shally, Court Secretary.