Complainant

Respondent

Anonymised Parties

An Engineer

A Public Body

Representatives

Martin Corbett and Gemma Mackey SIPTU

Act

Dispute Reference No.

Date of Receipt

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

CA-00023050-001

06/11/2018

This case involves an appeal of a Verbal Warning on 3 October 2018. The Claimant seeks an expungement of this sanction and this is contested by the Employer. Both parties were represented, the Claimant by her Union and the Employer by their Human Resource Team. Both parties helpfully submitted written submissions.

The Union sought to make a post hearing submission and I did not accept this as I had not canvassed it. The Employer submitted notes of both aspects of the Disciplinary hearings as requested and these were copied to the Union but did not illicit a response.

The Claimant is an Engineer with a seven-year historical link to the Local Authority. She was transferred to her current Employer in January 2014.

The Claimant worked a 5-day week spread over 3 days on a Design Team, 1 Day as a Field Engineer and 1 day on Parental Leave. She had a clean employment record.

The Claimant had certified sick leave in September 2017, on her return to work, she was redeployed to full duties as a Field Engineer on foot of an observation from her line manage that she was unreliable. She was placed on a Performance Improvement Plan during November 2017.

The Claimant had further certified sick leave from April 2018 for a four-month period. She returned to work in September and subsequently received a verbal waning for performance related issues inclusive of absenteeism. She sought to appeal the sanction but was unsuccessful.

The Union on behalf of the Claimant had sought to draw the employer’s attention to underlying personal issues experienced by the claimant but they contended that the sensitivity of these issues was not embraced by the employer.

The Union went on to state that the verbal warning should be removed as it was arrived at through an unagreed procedural framework. They argued that the claimant had been denied her right to natural justice. The claimant had been ill and not an active participant in the PIP during this period.

The Employer operates a large Semi State Business. Initially the claimant had been attached to the business by way of secondment from the Local Authority until her permanent appointment though interview and subsequent appointment in May 2015.

The role of Field Engineer is deemed as a core and highly responsible position at the business. The work on the Design Team was temporary.

The Claimant entered a new management system in October 2016 and 1:1 meeting followed and supported identified to improve the claimant’s performance. By mid-year 2017, further direction was given to the claimant in relation to a “slippage in her performance” on leave protocols.

The Employer relied on the Performance management and Performance Improvement plan as a fair and consistent process applied universally in the organisation. A PIP is designed to allow for formal evaluation at 30, 60 and 90 days.

This process was commenced in the claimant’s case in November 2017, after an initial hesitancy, the PIP was co-signed by the parties. The Claimant demonstrated a lack of awareness that the Employer had issues with her performance.

The fist 30-day feedback on PIP was promising on 4 January 2018 but faltered in the run up to the next 60-day feedback, where the parties disagreed on whether performance was at the required level. The Claimant refused to sign the assessment. The 90-day feedback was also unsuccessful in not showing any deliverable’s in the ole against the objectives outlined in PIP.

The Claimant was on leave for two weeks at the end of Mach 2018, followed by a protracted period of sick leave. Occupational Health department indicated that the claimant experienced work-related stress, but she was found fit to engage with the employer.

The Claimant returned to work on 4 September and was informed that her Manage would address the completion of the PIP and she was requested to submit examples of any issues. A further meeting followed on 13 September 2018 between the claimant and he line manager. She was found to have fallen short in her performance and what the employee required from her role.

The Employee had two options at this stage

1 Extend the PIP, if progress is of significant standing

2 Commence Disciplinary Policy

The Claimants manage determined that the final status of PIP was “behind plan “and decided to initiate disciplinary proceedings.

A Disciplinary meeting took place on October 2. The Claimant insisted in bringing her own note taker, while outside the protocol was permitted. The Claimant was represented by the Union at this hearing.

The Employee contended that they provided a fair hearing, where the claimant was given every chance to influence a positive outcome. A Verbal waning followed, which was appealed without a submission on grounds of appeal. The outcome was unchanged.

The Employer submitted that the Claimant had not fulfilled the terms of the PIP, and disciplinary action was a reasonable approach in accordance with contract. They argued that they acted reasonably in assessing an employee’s performance against objectives in line with organisational goals. The Organisation had formed the view that she had slipped below the level of performance required and she did not rebut that presumption at any of the meetings.

The Employer sought that the claim for expungement be dismissed.

The Employer submitted the full notes of both Disciplinary and appeal on request.

I have listened carefully to both parties’ oral submissions. I have also considered the written submissions and the Disciplinary Procedure notes.

The Union make a submission that the Employer was unjustified in actioning the PIP and the Disciplinary procedure post an unsuccessful PIP as the parties had yet to agree provision for this course of action. Given that this was an end stage appeal, I asked the parties whether this argument had been tested in the earlier proceedings? The Union believed it had and the Employer disagreed. For my part, I noted that the PIP Policy was dated approved on 9 September 2016 and The Disciplinary Procedure on 20 March 2015. On reviewing the notes of the Disciplinary procedure hearings, I did not ascertain that this objection had been raised and tested.

My role in this case as explained to the parties at hearing is to review the procedural framework around which the Verbal warning   dated 3 October 2018 was given.

I could see at hearing that the impact of the verbal warning had upset the claimant greatly, it was clear that she had struggled with significant personal challenges during the latter end of the PIP duration.

From the Employers perspective, I accept that they had genuine concerns that the claimant was falling behind by objective analysis. I accept that the claimant line manage was genuine and earnest in his pursuit of improvements in the claimants work performance. He displayed a consistently compassionate approach.

I find that the claimant should reflect objectively on these key PIP documents.

I have found some cause for concern in how the PIP outcome was spring boarded to Disciplinary procedure so rapidly following the claimants return to work in September 2018. I note that there is not a clear Policy direction on what weighting, if any an extended period of sick leave should have on this Spring boarding process. I would suggest that some weighting should apply.

However, I have been asked to decide on whether the Verbal waning applied on 3 October 2018 should stand.?

All Hearings, both investigative and disciplinary must be fair, free from pre-judgement and provide an opportunity for the person accused to be heard. I note that some element of political conversation peppered the first Disciplinary hearing, and this was regrettable as it placed the attention away from the core issue, that of her performance. I also note that the Appeal was deficient in submission for grounds seeking appeal.

I found that there was provision to start the Disciplinary procedure at the Informal Pre-Disciplinary stage and I could not ascertain from the parties just why this key stage was by passed in favour of a verbal warning. It is eminently sensible to abide by the incremental stages of a procedure or justify the variance. Given that the function of any Disciplinary Procedure is to correct rathe than punish, I found this hastiness to be confusing.

However, in my investigation, I found a more striking concern. Faced with robust representation by the Union, the Employer disclosed during the Disciplinary hearing that “any sanction coming from this will be low level…. Verbal waning “This demonstrated for me at least an unacceptable level of pre- judgement which tainted the process. I appreciate that it was said in kindness and empathy, however it is reflected clearly in the notes and I am surprised that it was not picked up on in Appeal.

This rendered the procedural framework surrounding the application of the verbal warning to be flawed and I have found merit in the dispute.

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.

I have found merit in the Dispute and I find that the application of the verbal warning was flawed and tainted by pre -judgement.

I recommend that the Employer removes the warning from the claimant’s records. I also recommend that the parties continue to engage on agreeing a mutual understanding of required performance. The Claimant may benefit from an appointed Mentor/ Coach in that regard.

Appeal of Verbal Warning