Complainant

Respondent

Anonymised Parties

Co. Rep.

Farm Product Distributor

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-00013017-001

09/08/2017

The complainant alleges unfair dismissal, having been victimised\bullied. The respondent denies the allegation, advising that the complainant’s work performance was the basis for the dismissal. Related thereto, the respondent contends that the complainant was appropriately dismissed vis-à-vis both the substantive and procedural arguments raised by the complainant.

The complainant alleges unfair dismissal, having been victimised\bullied. The case is based upon substantive and procedural arguments\points raised by the complainant. He alleges that the dismissal proceeded despite his improved performance. Related thereto, there were other co. reps. with less impressive sales and cash collection records. He alleges inadequate supports and dismissal without verbal or written warnings. He was not afforded representation at the appeal hearing due to the short notice of that hearing.

The respondent contests the allegation that the manner in which the claimant was dismissed was unfair. He had consistently failed to meet his performance targets (since 2013) and his treatment of company property (in 2015) resulted in the respondent initiating a Performance Improvement Plan (P.I.P.). This was designed to clearly set out expectations in respect of his performance, oversee and improve his treatment of company property and support and help him to improve his performance. During the course of the P.I.P. process the claimant was made fully aware of the company’ expectations, his performance gaps and the actions required to improve. At all times throughout the P.I.P. process, he was made fully aware that if he failed to meet the requisite performance standards it would result in disciplinary action up to and including dismissal. The respondent rejects claims that the claimant was singled out and bullied. He never informed any member of the organisation that he felt he was being singled out and bullied or raised this issue at any of the P.I.P. or annual review meetings. The company has a grievance procedure (and Dignity at Work policy) to address such issues. He only raised these issues after the termination of his employment with the company.

Furthermore, an analysis of the revenue summary of the organisation’s sales representatives for the period 2013-2016 shows that of all the sales representatives, the claimant (and one other representative whose territory was reduced by 20%) was the lowest performer. He is also the only sales representative who achieved lower sales year on year since 2013. With regard to cash collection, the claimant was aware that he was at all times behind the organisational average. Likewise, since 2015, the claimant’s aged debt had deteriorated annually, whereas the company’s had improved.

During the course of his P.I.P. the claimant was provided with additional individual support to improve his performance in the areas of planning sales calls and use of the diary, technical support on key products, stock storage standards, the provision of a sales training course, in addition to the usual supports provided to all sales representatives.

The claimant was met with on 10 occasions during the course of the 16 month P.I.P. process before a decision was finally made to dismiss him. He was provided with all of the appropriate rights of natural justice - including adequate notice of meetings, a robust appeal process, and the right to representation. He was also made aware at all times during the P.I.P. process that the termination of his employment was a potential outcome for failure to meet the required standards of performance.

The outcome of this case largely hinges on the practice of deploying a Performance Improvement Plan (P.I.P.). This practice has featured recently in dismissal cases coming before third parties. For example, late last year an Adjudication Officer (A.O.) at the Workplace Relations Commission (W.R.C.) upheld the employer’s decision to dismiss a supervising pharmacist after he failed the P.I.P.s he was put on (Ref.: ADJ-00005177). The Adjudicator noted that the employer provided the complainant with ongoing mentoring and support throughout the P.I.P. period and that it had even extended the plan’s duration on his request.
She also noted that the employer’s procedures ‘were clear and detailed and were available at all times to the complainant’, and the pharmacist had been informed of his performance issues, what was expected of him and the consequences of not achieving his P.I.P.


At around the same time another Adjudicator at the W.R.C. found an employer’s dismissal of an accountant to be fair, where the process included the application of a P.I.P. in a process that was deemed reasonable and in line with procedures and natural justice(ADJ-00000155). The A.O. recorded that the employer had used P.I.P.s with other employees and had tried to use one with the accountant who didn’t cooperate.

For the respondent to successfully defend their position in a dismissal case of this nature, it’s important for them to be able to show that they really committed to the P.I.P. process, otherwise – like in the 2009 Boston Scientific case – it may be held that they produced ‘no evidence ... to show that training was made available to the claimant to address his shortcomings....’ (John Mullaney v Boston Scientific – UD 1924/2009). A similar deficiency in such scenarios surfaced some years later when the Employment Appeals Tribunal determined that the Irish Wheelchair Association should have ‘engaged more constructively’ with the claimant around the implementation of the performance improvement process (Liam Whelan v I.W.A Ltd t/a Irish Wheelchair Association - UD 436/2014).


However, where it can be shown that the employer implemented a P.I.P. and (as noted by the Employment Appeals Tribunal) ‘behaved reasonably at all times and did its utmost to support the claimant ... affording him every opportunity to adapt to the particular requirements of the respondent’s business’ the decision is likely to go in the employer’s favour (Gerry Finnegan v Connaught Electronics T/A Valeo Vision Systems – UD 1475/2014).

Having reviewed the evidence presented it is apparent that the employer did devote considerable resources to the P.I.P. process over an extended period. The respondent also produced evidence in support of their contention that the process had not succeeded in bringing the claimant to the required level in the critical areas of job performance.

With regard to the procedural component of the claim, it is notable that the claimant was advised of his right to representation at the appeal hearing – of which the claimant was given little notice. However, this was not availed of, nor was there a request for an adjournment of the appeal hearing to enable same. Crucially, this was not raised or rectified (should the claimant have wished to do so) at the re-convened appeal hearing over 3 weeks later.

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim. I do not uphold the claim. The claim is dismissed.

Dismissal; Performance Improvement Plan.