Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00015311-001

25/10/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00015311-002

25/10/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00015311-003

25/10/2017

The complaint follows the complainant’s grievance regarding the implementation of performance management. The complaint also relates to victimisation. The respondent denies the claims.

The complainant outlined that he has worked as an engineer for the respondent for 10 years. He loves his job. Before any construction work starts, the builder had to contact the respondent to get safety advice. The complainant’s role was office-based and he dealt with customers who asked for maps to plan their activities. He managed this function over the last year as a manager retired. This did not involve a promotion. The complainant also dealt with maps submitted by engineers in the field and he inputted this information from hard copy to a digital resource.

The complainant explained that he was on the Increment Pay Model and he refused to sign the new agreement. He had not agreed to take over the high pressure transmission role. A new performance management system came into force in 2013 and there was no issue until 2015. Everything was ok in January 2015 but issues arose during the year after the transfer of the transmission function. The complainant referred to an organigram of the team that would have been in place had the transmission jobs come on stream.

The complainant outlined that in 2015 he and his manager disagreed over his score. He felt that he should have received a score of ‘5’ but his manager said that this could not be awarded. He outlined that he met expectations and was awarded his increment. In respect of the 2016 appraisal, the complainant said that he began this process one month after the close of the 2015 process. The line manager emailed him and his colleague to remove the marginal scores, i.e. ‘1’ and ‘5’ scores. No one else was told to do this. The complainant scored 3.6350 for 2016 and received his increment. The complainant said that he was told in 2015 no one gets 5s, even when they hit the targets. He did not point to an email to this effect. He did not know what he had to do to get a ‘5’, pointing to a document that states what was required for a ‘3’ or ‘4’ but not a ‘5’. In 2016, he was awarded a ‘3’.

The complainant submitted a grievance. There was one hour’s notice of meetings in 2016 and afterwards. He outlined that his 2017 assessment of ‘3’ was a consequence of his challenging the 2016 process. In the 2017 process, he wanted the line manager to agree to exclude certain things from the form. He had wanted the process to start before the 20th March 2017. He did not refuse to engage in the process but wanted to discuss the additional tasks included in the process. He was not paid an increment for 2017 and no annual review took place in May 2017. His score for 2017 was calibrated below a three, so there was no payment. He outlined that he was due an increment every May. The last increment paid to him was the 2015 increment, paid in May 2016. The complainant seeks that the increments for 2016 and 2017 be paid.

The complainant said that he wanted a fair process and wanted the respondent to respect his basic rights. He wanted measurable and goal oriented policies. He was now on sick leave. He was penalised by the respondent. There were repetitive acts and this indicated bullying. The weightings were manipulated against him. It was wrong to threaten him with a disciplinary hearing after the grievance process. His work was piecemeal so measurable but the performance management process was subjective.

The complainant said that he wanted to put this situation to bed and to flourish in the future. This required a safe place of work and he wanted to be afforded what others have. He wanted his confidentiality to be respected and a transparent performance management.

In respect of the performance management targets set out in the email of 9th March 2018, the complainant said that it was unfair to have three improvements in the first category in order to meet expectations. There was no book of errors regarding “as-laids” so the measure was subjective and unclear. Someone outside of the office assessed the quality of as-laids and this occurred after the job is finished, so they have no chance to resolve this. The complainant sought to go on training but this was rejected. He was told he had to move to Cork for particular work.

The complainant said that there were unacceptable weightings. The pre-digging work had been 100 per cent of his activities but he would start doing as-laids in June 2018. The line manager, however, only offered 30% as a weighting, even though the complainant managed this. He asked the line manager to change the weighting but he declined. This was against the performance criteria.

The respondent outlined that it developed a performance pay model which linked ratings with pay. Employees could opt in or opt out. The complainant opted out and remains on the incremental model. He is paid an increment when he meets expectations. There is no benefit for the complainant to hit a ‘4’ or a ‘5’.

The respondent stated that the 2016 process was subject to a grievance and the 2017 process went nowhere. The respondent outlined that the 2017 increment was not paid because the complainant failed to engage with the performance management process. The 2018 PM process was also going nowhere.

On the 18th October 2017, the complainant lodged a second grievance, referring to the same “consequences” as set out in the WRC complaint form. The bullying allegation was under investigation and therefore should not be included in this WRC adjudication.

The parties presented their cases and submitted detailed documentation regarding the issues arising in the complaints. I have considered this in reaching findings in relation to the disputes and complaint.

CA-00015311-001 & CA-00015311-002

The complainant raises two issues in the disputes referred pursuant to the Industrial Relations Act, the first relating to bullying and harassment and the second relating to the implementation of performance management. The complainant pursued one grievance through the process and has since lodged a second grievance. This was under investigation as of the date of the adjudication.

Having considered the submissions of the parties, I find that there was no evidence of any unfairness in the respondent’s actions in how it devised the parameters for its performance management system. While the respondent managers required that the ‘far exceeds expectations’ should not be included in a performance plan, there was no evidence that this mark could never be awarded. There was also no material impact on the complainant as he is paid the increment due once he meets expectations. I find that the complainant was not paid increments because of his lack of engagement with the performance management process. The respondent gave his grievance thorough consideration and there was no procedural and substantive failing. There is no evidence to support an allegation of bullying or harassment. I am, therefore, unable to make a recommendation in the complainant’s favour in either dispute.

CA-00015311-003

This is a complaint of victimisation made pursuant to the Employment Equality Act. Section 74(2) provides:

“(2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to —

(a) a complaint of discrimination made by the employee to the employer,

(b) any proceedings by a complainant,

(c) an employee having represented or otherwise supported a complainant,

(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,

(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,

(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or

(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.”

It is for the complainant to establish a prima facie case of victimisation, that is facts of such significance that raise the inference of victimisation. The complainant classifies actions of the respondent as attempts to undermine him and to penalise/victimise him. This includes short notice invitation to meetings, not being able to take annual leave and procedural failings with the grievance process.

In Department of Defence v Barrett (EDA 1017), the Labour Court held as follows in respect of victimisation:

“Protection against victimisation is a vital component in ensuring the effectiveness of anti-discrimination law. It enables those who considered themselves wronged by not being afforded equal treatment to raise complaints without fear of retribution. Article 11 of Directive 2000/78/EC requires Member States to introduce into their legal systems such “measures as are necessary to protect employees against dismissal or other adverse treatment by employers as a reaction to a complaint within the undertaking or to any legal proceedings aimed at enforcing compliance with the principle of equal treatment”

That obligation is given effect in Irish law by s.74(2) of the Acts. The definition of victimisation contained in that section contains essentially three ingredients. It requires that: -

1. The Complainant had taken action of a type referred to at s.74(2) of the Acts (a protected act),

2. The Complainant was subjected to adverse treatment by the Respondent, and,

3. The adverse treatment was in reaction to the protected action having been taken by the Complainant.”

The complainant is of Polish nationality. He is a longstanding employee of the respondent and has challenged the implementation of a performance management process. His grievance was not upheld by the grievance manager or on appeal. There is no evidence that the complainant has made a protected action within the ambit of section 74(2). For completeness, there is no evidence of adverse treatment or adverse treatment in reaction to a protected act. The complaint is, therefore, not well founded.

CA-00015311-001

For the reasons set out above, I am unable to make a recommendation in the complainant’s favour.

CA-00015311-002

For the reasons set out above, I am unable to make a recommendation in the complainant’s favour.

CA-00015311-003

I find that the complainant has not established a prima facie case of victimisation and the complaint does not succeed.

Industrial Relations Act / performance management

Employment Equality Act / victimization