Complainant

Respondent

Anonymised Parties

A Service Advisor

A Commercial Vehicle Dealership

Representatives

Solicitors

 IBEC

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-00019658-001

08/06/2018

The Complainant commenced employment with the Respondent in 18th of July 1983.   By way of several promotions he became a Service Advisor in 2008.      His employment was terminated on 6th of February 2018 having received notice of same on 15th of December 2017.   A Complaint Form was lodged in the WRC on 8th of June 2018.

The complainant submits that

He has been employed by the Respondent since 1983,

He was subjected to false and unsubstantiated allegations about his conduct and competence by his employer following which he was subjected to unfair investigations and disciplinary procedures in respect of each of these allegations,

He was subjected to unfair processes designed to lead to his dismissal from the Respondent Company,

He was not provided with the supports needed to effectively carry out his work at the Respondent Company,

His complaints and concerns regarding his workload were ignored by management at the Respondent Company. He was given an excessive workload and set up to fail and was set impossible targets by the Respondent Company. The explanations provided by him over the course of an extended period of time for alleged under-performance/misconduct were ignored by the Respondent. The decision to dismiss him from his employment after 35 years of loyal service was grossly disproportionate. The Appeal of the disciplinary process was carried out by the Respondent in a manner which did not comply with fair procedures and natural justice. The Respondent's decision to dismiss was unfair and not in compliance with natural justice and fair procedures.

The respondent submits that

The Complainant worked in the Respondent’s company as a Service Advisor commencing employment on 18th July 1983. His employment was terminated with eight weeks’ notice, following a robust disciplinary process, on 15th December 2017.

The complainant had a number of performance and conduct issues. The respondent put the complainant through a number of Personal Performance Reviews and a Performance Improvement Plan (PIP) to address these issues, with training and support being provided at all times. Nonetheless, due to the complainant’s failure to adhere to expected, communicated, standards, the respondent utilised their internal disciplinary policy to manage the complainant’s failure to meet these expressed expectations.

All stages of the disciplinary process were followed, with the complainant again being put on a PIP and given time and support to achieve the desired outcomes. Unfortunately, as the complainant was either unable or unwilling to deliver on expectations, he was ultimately brought through all of the stages of the respondent’s disciplinary policy and dismissed.

The respondent followed fair procedures at all times.   A dismissal did occur, but it was fair and reasonable considering the situation and steps taken. The managers who ran all stages of the processes are competent and professional, well trained individuals, not akin to managing matters of this type incorrectly.

Any reasonable manager would have made the same decisions at all stages of the process.

The Respondent advised the hearing that the complainant was dismissed by reason of continued poor performance, and as such his dismissal was not unfair in accordance with Section 6 (4) (a) of the Unfair Dismissals Act 1977 (as amended) which states:

[…] 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 the complainant was dismissed for his continuous poor performance, which rendered him unable to perform the work for which he was employed by reason of competence.

The respondent advised the hearing that Mr. C, service manager undertook an investigation in January 2017 after the complainant had received a number of unsatisfactory performance ratings in his performance review.   The investigation meeting took place on 27 January 2017 and was conducted by Mr. C.  

Further to this on 9th of February 2017 a   disciplinary meeting took place which was chaired by Mr. B and following which the complainant was issued with a First Written Warning which was not appealed.     Following continued underperformance by the complainant a further investigation was carried out by Mr. C on 21st of July 2017 and from this further disciplinary hearing took place and the complainant was issued with a formal written warning.   This also resulted in the complainant being put on a Performance Improvement Plan (PIP) for a ten-week period. Upon review of the PIP process the complainant was determined to have failed the PIP process which triggered a further investigation which took place in November 2017.     This was followed by a disciplinary hearing scheduled for 7th of December 2017 and which took place as scheduled on that date. After the hearing the complainant produced a medical cert form his doctor stating that he was unfit for work from 6th of December to 14th of December citing stress as the reason.  The complainant had not produced this before the hearing and when asked, stated that he was fit to proceed with the hearing. Following on from this on 13th of December 2017 the complainant was referred to the respondent’s Company doctor. The company doctors report issued on the 14th of December making a finding that the complainant was fit to engage in the disciplinary process but was not fit to discuss other work-related issues.     On the same day the complainant produced another cert from his own doctor stating that he was suffering from stress and covering the period from 13th of December 2018 to 8th of January 2017.

The outcome of the disciplinary process was a decision to dismiss the complainant and this was communicated to the complainant on 15th of December 2017. The complainant appealed this decision and his appeal was held on 17th of January 2018.   The outcome of this was that the decision to dismiss was upheld.

The respondent submits that the test applied to a dismissal for incompetence has been explained in McDonnell v Rooney, UD 504/1991, and has two elements:

(a) does the employer honestly believe that the employee is incompetent or unsuitable for the job, and

(b) are the grounds for this belief reasonable

The respondent submits that it held an honest belief that the complainant was not competent or suitable for the role. It is submitted that it based this belief on the evidence as viewed over the prolonged review period and the complainant’s continued failure to meet reasonable targets or to make any marked improvements in performance.

The respondent in support of its case cites Daly v Infinite Technology Limited, UD817/2000 where the complainant was dismissed for failure to meet sales targets, errors in work and unsatisfactory completion of paper work. The complainant in that case was warned that should performance not improve his job would be in jeopardy and he was ultimately dismissed. The Tribunal found that substantial grounds existed for dismissal, and the claim failed.   The respondent contends that the present case is comparable to that but that the respondent in this case provided significantly more warnings and support for the complainant than the cited case.

The respondent advised the hearing that the required standards were made explicitly clear to the complainant and were clearly discussed and codified in a series of Performance Reviews and a PIP. The respondent states that the performance targets set out in these reviews and PIP were reasonable and achievable and that the procedures utilised throughout the process leading to the complainant’s dismissal were fair and in accordance with the principles of natural justice and the Code of Practice on Grievance and Disciplinary Procedures (SI 146 of 2000).

The respondent told the hearing that the complainant was made aware of the allegations against him and that he was explicitly informed as to the specific details of the performance issues and was provided with an opportunity to respond. The respondent stated that the complainant and his manager Mr. C discussed all aspects of the performance and the complainant was provided with an opportunity to respond to the highlighted specific performance issues.   The respondent advised the hearing that the complainant’s arguments were taken into consideration before decisions were made and for example when the complainant disputed the inclusion of a number of tasks in his appraisal as they were not a particular type he was familiar with, this was considered, and these tasks were removed from the assessment of his performance.

The respondent advised the hearing that the sanctions applied to the complainant were incremental, beginning with informal actions, moving to a series of formal warnings, and finally dismissal and that the complainant was aware at all times of the consequences of failure to meet expectations.

The respondent told the hearing that the complainant was granted a fair and impartial determination of the issues concerned and that he was provided with a right to representation at all stages in the process, which he availed of. The respondent added that the complainant was also afforded a right to appeal and the appeal was heard by a more senior manager Mr. H who was unconnected with previous decisions.   The Respondent advised the hearing that the complainant was dismissed due to his continued poor performance, and as such his dismissal was not unfair.

The complainant advised the hearing that he had trained as a mechanic with the Respondent company having started an apprenticeship with them in 1983.  He told the hearing that he had been promoted to different roles through his years of employment with the respondent including Mechanic, DOE Tester, Foreman and from about 2008 he worked as Service Advisor.   The complainant stated that this role meant that he had to answer on average up to about 100 phone calls a day for which he had three phones. He also had to deal with and answer customer emails. He stated that he also had to provide all accident estimates for the company which meant that he had to photograph the vehicles and provide a breakdown of all parts and labour required.

The complainant advised the hearing that his problems began in 2017 when Mr. H took over and the Respondent Company initiated a new bookkeeping system called the “Workplace Planner” which recorded and planned the service history for all customer vehicles. The complainant told the hearing that he began to receive complaints from his manager that he was not using the ‘Workplace Planner’ correctly. The complainant told the hearing that he found the Workplace planner very difficult and time consuming to use and that he had explained that he was doing his best and pointed out that his duties in respect of the Planner had been added to an already full role in the Respondent Company.   The complainant stated that there were problems with the planner and that people sometimes showed up for services which were not booked in or which were incorrectly booked in on the system.    

The complainant advised the hearing that he had informed the Respondent that the level of work now required of him was excessive and that it was having a severe impact on his health and stress levels. The complainant stated that he told his new manager Mr. C that work issues were causing him stress and in January 2017, but he stated that Mr. C didn’t care all he wanted was to ensure that the Workplace planner was working and was being used. The complainant told the hearing that he was prescribed Xanax for his stress and that he told Mr. C about this, but that Mr. C changed the subject and started talking about his sore leg.   The complainant stated that he asked Mr. C to come and spend a day with him to see how busy he was and what is involved in his day’s work. He stated that Mr. C agreed to take some of the customer calls which the complainant received and following this Mr. C picked up the phone if it was ringing while the complainant was on another call, but he didn’t deal with the calls he just waited until the complainant was finished on one call and then passed the call on to him. This the complainant stated was not dealing with calls but was just picking up the phone until the complainant was available to deal with the query which was then passed on to him.

The complainant added that he had requested support from the Respondent in carrying out the new ‘Workplace planner’ duties.   The complainant advised the hearing that he was informed in January 2017 that he was to be subjected to an investigation for misconduct arising of alleged poor performance and a failure to adhere to company procedures.   The said investigation meeting was carried out on 27 January 2017 and was conducted by Mr. C, Service Manager at the Respondent Company.

The complainant submits that the respondent during this investigation failed to have regard to fair procedures and failed to fully inform the Complainant in detail of the matters of which he was accused or to allow him to comment on same. The complainant states that the respondent failed to conduct the investigation in an impartial manner and failed to allow him to fully explain any alleged misconduct and failed to have adequate regard to the explanations given by the Complainant. The complainant told the hearing that the respondent ignored his statements that he was overworked and that this was having a detrimental effect on his health.  This resulted in a disciplinary meeting which took place in February 2017 and which was chaired by Mr. B. The complainant told the hearing that this disciplinary meeting resulted in him being sanctioned with a First Written Warning.

The complainant told the hearing that he had asked the respondent to refer him to a doctor in order that they could be given confirmation of the fact that he was suffering from stress and anxiety due to his workload.   Witness for the respondent Mr. B who had chaired the disciplinary meetings of February and August 2017, confirmed to the hearing that the complainant had asked the respondent to refer him to the company doctor, but this request was refused.   Mr.   B when questioned about this refusal advised the hearing that the respondent did not see the need for a referral to the company doctor as they didn’t expect that the company doctor would say anything different to the complainant’s doctor.   Mr. B added that in his opinion the complainant’s stress was caused by his issues with time management. Mr. B added that if the complainant was so concerned about his health it was up to him to go to his doctor about it. Mr. B in the letter dated 10th of February 2017 which contained the outcome of the disciplinary hearing formed an opinion in relation to the complainant’s stress levels and advised the complainant that he needed to help himself by focusing on completing the tasks being asked of him and using the systems available to him which he states will make him more efficient in his role and also provide customers with a better service.    The respondent advised the hearing that the complainant persistently refused to use the workplace planner and continuously chose instead to continue doing things his own way instead of adopting the new and more efficient workplace planner system.   The complainant at the hearing acknowledged that the Workplace planner could have made his job easier if he had the time to use it, but he stated that managing the planner and using it was a full-time job itself which was added to his already full-time role.

The complainant advised the hearing that he was called to and attended an investigation meeting on 21st of July 2017 again chaired by Mr. C which purported to deal with matters of misconduct arising from alleged non-performance of tasks.    It is submitted that in carrying out the said investigation meeting, the Respondent again failed to have adequate regard to fair procedures and natural justice. The outcome of this investigation meeting was a recommendation that the Complainant attend a disciplinary hearing which was held on 1 August 2017 and which was again chaired by Mr. B.     The complainant stated that the Respondent conducted the said disciplinary meeting in a biased and unfair manner and again failed to have adequate regard to the fact that the Complainant had stated that he was overworked and suffering from stress. As a result of this process, the Complainant was issued with a Final Written Warning.  

The complainant advised the hearing that he had in September 2017 received a letter from Mr. C indicating that certain performance issues were to be dealt with by use of a Performance Improvement Plan. The complainant stated that said PIP process was not outlined in his contract of employment and was not set out in any procedures outlined to him.  This issue was raised at the hearing of the claim and witness for the respondent Mr. B stated that the PIP process had been in place for about two years.   When asked if the process was written down anywhere Mr. B stated that he didn’t know, and he couldn’t say.     He also stated that he’d be surprised if the complainant had not received a company handbook. Mr. B stated that the complainant was probably given one by his manager or someone else.

The complainant told the hearing that in a meeting in September 2017, he was asked by Mr. C whether he wanted to be facilitated in leaving his employment with the Respondent Company. The complainant stated that he was shocked at Mr. C’s approach but that this confirmed his suspicion that the Respondent was not conducting the performance review in good faith and just wanted to get rid of him.   Mr. C was not in attendance at the hearing and could not provide any evidence in respect of this assertion. The complainant told the hearing that the PIP process was conducted in a haphazard fashion consisting of a number of meetings conducted by Mr. C with the complainant and during which Mr. C filled out pre-determined answers to questions on a form.  During this process, Mr. C failed to ensure that the Complainant was fully informed of the process and did not sufficiently particularise the matters which the Complainant was accused of not performing. The complainant states that Mr. C failed to have adequate regard for the matters which had improved, in respect of the Complainant’s work performance during the currency of the PIP.   The complainant told the hearing that the respondent failed to have adequate regard to or to properly investigate the explanations provided by him for the matters complained of, failed to have any adequate regard for his complaints that he was overworked and that he was stressed as a result. It is submitted that the respondent also failed to keep a proper note of meetings conducted with the Complainant during the process and failed to procure or consider medical evidence regarding the Complainant as part of the assessment process.

The complainant told the hearing that the PIP process resulted in a recommendation that he be subjected to an investigation.     This investigation was again conducted by Mr. C despite the fact that Mr. C had conducted the PIP in the first instance.    The complainant states that during the investigation, the Respondent acted in a biased and unfair manner, in particular in appointing Mr. C to conduct the investigation in circumstances where he had arrived at a set conclusion, as part of the PIP process, concerning the matters under investigation.  The complainant submits that the respondent during this investigation failed to have any regard to the flaws in the PIP process, failed to fully outline details of the accusations against the Complainant, failed to have adequate regard to the explanations offered by the Complainant, failed to have regard to the excessive workload being borne by the Complainant and the effect on the Complainant’s health and failed in his duty as an investigator to seek out evidence which tended to exonerate as well as implicate the Complainant. Mr. C was not at the hearing to respond to these assertions.

The complainant advised the hearing that the respondent during the investigation again failed to have adequate regard to the effect of the Complainant’s health difficulties on his ability to work and/or interact with workplace performance and disciplinary processes, failed to procure or consider medical evidence in respect of the Complainant.

The complainant advised the hearing that he had on 5 December 2017, become unwell at work owing to stress and anxiety and collapsed at work. The complainant told the hearing that he was taken from the workplace to hospital by ambulance.   The complainant told the hearing that the doctors attributed this collapse to stress and anxiety.   The complainant went on to state that despite this he was called to a disciplinary hearing on the 7th of December 2017 arising out of the findings of the investigation.   This disciplinary hearing was conducted by Mr. L. The complainant told the hearing that he had confirmed to Mr. L that he was fit to proceed with the meeting as he just wanted to get it out of the way and so the disciplinary meeting proceeded.  Mr. L was not in attendance at the WRC hearing.

During the said disciplinary meeting it is submitted that the Respondent continued to fail to observe the requirements of natural justice and fair procedures again failed to have regard to the failures of the PIP process and the subsequent investigation. The complainant submits that the respondent failed to afford the him an adequate and detailed explanation of the matters of which he was accused and failed to afford him an opportunity to adequately respond to accusations and also failed to adequately investigate or consider explanations offered by him.

The complainant told the hearing that the respondent again failed to consider the impact of his health on his ability to meet demands imposed on him by the Respondent and failed to have adequate regard to his submission that he was overworked and stressed. The complainant told the hearing that the respondent again failed to have adequate regard to the impact of his health on his ability to engage in a disciplinary process and failed to procure or consider medical evidence in respect of the Complainant.  

The complainant advised the hearing that he presented his medical certificates to the Respondent directly after this meeting and that the said certificate confirmed that the Complainant was unfit to work between 6 December 2017 and 14 December 2017.   Following receipt of this certificate the Respondent arranged a medical examination for the Complainant on 14 December 2017. In a report, produced after the medical examination, the medical examiner stated that the Complainant was unfit to engage in discussion about perceived work issues for a further 2-3 weeks at least.    It is submitted that this confirmed that the Complainant had not been in a position to adequately engage with the disciplinary meeting which had been held on 7 December 2017.

The complainant submits that despite being in possession of the complainant’s medical certificate and the report of their own medical examiner, the Respondent did not reschedule the disciplinary meeting which had been held on 7 December 2017 or give the Complainant another opportunity to reengage with the disciplinary process at another time when he may have been fit to do so.  Instead the Respondent purported to use the contents of the said meeting of 7 December to found its decision to dismiss the Complainant. This decision was communicated to the Complainant by letter dated 14 December 2017.     The respondent when questioned about this at the WRC hearing stated that they knew the complainant would have another chance anyway when he appealed the decision to dismiss him.

The complainant’s appeal was heard on 17 January 2018 by Mr. H, Managing Director.   The complainant submits that the respondent failed to adhere to the principles of natural justice and fair procedures and acted in a biased and prejudiced manner, in particular by appointing Mr. H to hear the appeal in circumstances where Mr. H had a previous involvement in addressing the matters of which the Complainant was accused earlier in 2017.     In addition, Mr. C was involved in several stages of the PIP process as well as investigation and disciplinary meetings.

The complainant submits that the respondent throughout the process ignored the complainants claims that he was overworked and suffering from stress, failed to have any regard for the impact of the Complainant’s workload on his health and failed to have any regard for the impact of the Complainant’s ill health on his ability to carry a heavy workload or to engage with workplace performance and disciplinary policies.     The Complainant’s dismissal was confirmed following the Appeal.

It is submitted that the failure of the Respondent to adequately assess or have regard to the Complainant’s assertions regarding his health, or indeed to procure medical evidence to assess adequately the state of the Complainant’s health during the disciplinary process renders it impossible for the Respondent to satisfy the Commission that there was a reasonable basis for a finding that the Complainant was incompetent or incapable.   The complainant told the hearing that he had pleaded with the respondent to refer him to a doctor in order that they would gain an awareness of the state of his health and the stress which the job was causing him.

It is submitted that the Respondent could not have held a reasonable opinion that the Complainant was incapable or incompetent in circumstances where he had been employed by the Respondent since 1983 and had adequately fulfilled his duties for 34 years up to that point.  It is submitted that there was no rational basis for the change of attitude on the part of the Respondent towards the Complainant.

It is submitted that the case of an Employee v Employer (U D1455/2009) the EAT considered the decision of an employer to dismiss an employee who was suffering from depression and anxiety in circumstances where the employer had not obtained medical reports to contradict the version offered by the employee. In finding for the employee, the EAT considered that the failure of the employer to obtain and consider medical evidence as fatal to the decision to dismiss for incapacity.

It is submitted on behalf of the complainant that the decision of the EAT in UD1455/2009 makes it clear that an employer has a heavy burden to discharge in deciding to dismiss an employee for incapacity and must seek out and consider all available medical evidence. It is submitted that the failure of the Respondent in the present case to seek out any evidence and to consider adequately the Complainant’s assertions about his health amount to a breach of fair procedures and render the decision to dismiss for incapacity unsustainable.

It is further submitted that in the case of Eamonn Blair v Coverall Courier Services Ltd (UD 1263/2013) the EAT made a similar decision outlining that where an employer doubts the submission of a complainant in respect of ill-health, it should obtain medical evidence of its own in this regard before dismissing for incompetence.

It is submitted that the contents of the various investigations and PIP meetings which the Complainant attended make clear that no serious attempt was made by the Respondent to set realistic targets or to ascertain the full circumstances of the Complainant’s role or the wider circumstances of his alleged underperformance namely his health issues.  

I note that the complainant in this case was employed by the respondent for 34 years and had been promoted to Sales Advisor having started in 1983 as an apprentice mechanic.   The complainant told the hearing that prior to 2017 there were never any issues with his performance or any disciplinary issues.  The respondent did not contradict him in this assertion. The complainant advised the hearing that his problems began when Mr. H took over and the respondent introduced ‘the workplace planner’. The complainant stated that operating the workplace planner was a full-time job in and of itself and one which he was expected to take on in addition to his other already full-time role. The complainant stated that he could not manage this and that his health began to suffer as a result of this excessive workload. The complainant stated that despite his advising the respondent of the difficulties he was having and the stress it was causing him the respondent instead of referring him for medical examination instead proceeded to invoke the disciplinary process against him for his inability to manage the workload he had been complaining about.    

The complainant in the space of one year went from being an employee of 34 years with no performance or disciplinary issues to being dismissed for underperformance.   In addition, in examining the procedures adopted by the respondent it is clear that Mr. C was involved in many stages of the investigation and disciplinary process and that Mr. B was also involved in more than one stage of the process having chaired two of the disciplinary meetings.     In addition, Mr. H who chaired the appeal meeting was also the person who had raised issues with the complainant in February 2017 in respect of customer complaints which he stated were received via a phone call.  

I have considered this matter carefully, particularly in light of the Complainant’s long and largely unblemished employment record with the respondent.      In this instance the Complainant was dismissed for alleged capability and competence reasons.   Having considered the totality of the evidence adduced I am satisfied on the balance of probabilities that the complainant’s dismissal was unfair, and I find the within claim to be well founded.   The complainant at the hearing gave evidence of his mitigation of loss and advised the hearing that the had secured another job albeit on a lower salary within a few weeks of being dismissed from the respondent organisation.  Accordingly, I am satisfied based on all of the circumstances of this case that an award of €15,000 is appropriate in the circumstances of this case.

I find that the Complainant was unfairly dismissed by the Respondent within the meaning of Section 6 of the Unfair Dismissals Acts.  Accordingly, I find that the complaint is well founded, and I am satisfied based on all of the circumstances of this case that an award of €15,000 is appropriate in the circumstances of this case.