ADJ-00019349

Complainant

Respondent

Anonymised Parties

Employee

Pharmaceutical Company

Representatives

WillieHamiltonMandate Trade Union

Aisling McDevittIBEC

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-00025248-001

24/01/2019

The Complainant is seeking adjudication by the Workplace Relations Commission under Section 13 of the Industrial Relations Act, 1969, and has submitted they have a trade dispute that they would like investigated and in particular the Complainant states that following a recent company appraisal the Respondent Company deemed her to be “approaching performance” which she regards as an unfair assessment and negatively impacts upon her bonus (CA-00025248-001).

The Complainant commenced employment with the Respondent Company on or about the 8^th May 2001 as a Customer Assistant and then became a dispenser in or about June 2013. The Complainants annual salary is €19,008.00 and would work 22.5 hours per week.

On the 18^th October 2018, following on from the Complainants end of year performance review she was informed that her performance rating was designated by her line manager as “approaching performance”.

The Complainant appealed this decision to her store manager using the full year rating appeals form dated the 23^rd October 2018. The Complainant provided details for her reason to appeal such findings including she felt the rating was very unfair as she had grown in her role as a Dispenser under the supervision of her pharmacist and she had taken on more responsibilities and rolls within Dispensing. Further, she was the only Dispenser out of the three dispensers deemed to be “approaching performance” which she regarded as unfair.

The appeal meeting took place on the 8^th November 2018 wherein the Complainant elaborated on her grounds for appeal. In the course of the appeal, the Store Manager indicated that the rating, the subject matter of this complaint, came from her line manager.

The Complainant sought the results of her appeal from her Store Manager on a number of occasions and was informed that it was not his decision but would come from Head Office. Ultimately, the Complainant received a letter dated the 15^th November 2018, signed by the Store Manager, that in consideration of the evidence before him he was upholding the sanction that she was awarded as “approaching performance”. The Complainant was informed that this decision was final within the Company process.

In the course of the hearing of this matter, a written statement dated the 27^th March 2019 was produced signed by both the Complainants Line Manager and Supervising Pharmacist and indicated, inter alia,  that “ I gave my feedback for the Complainants end of year review , I said the Complainant was performing and this was in agreement with the supervising pharmacist. At no stage did I have the Complainant as approaching performing at year end”. The Supervising Pharmacist attended at the hearing and confirmed that he had signed this statement and agreed with its contents.

In that regard, the Complainant submitted that had she not been “performing”, it would have been expected to have evidence of her being given feedback and regular management interventions that would have allowed her to avail of the opportunity to address and resolve any perceived shortcomings. Accordingly, the written statement provided by her management team demonstrates that no such interventions were necessary.  

The Complainant submitted that the performance review was not followed fairly by the Respondent Company and where potential earnings are in question, the Complainant is entitled to process that its of equivalent robustness as is applied in the Disciplinary and Grievance procedure.

Ultimately, it is submitted that the Complainant was not afforded fair access to the performance based payment in question and is therefore seeking to be paid in accordance with an assessment of “performing” and the decision of the Respondent Company  be overturned.

The Complainant referred this matter to the Workplace Relations Commission on the 24^th January 2019.

The Respondent Company accepts the timeline in relation to the Complainants employment and the appeal process.

The Respondent Company operates a discretionary bonus scheme which in part is based on an individual performance. The bonus scheme is as follows:

“You maybe eligible for a number of discretionary bonus schemes, designed to recognise the contribution that you make to our success. You’ll be informed of these by your line manager. Any bonus schemes are subject to change or withdrawal by the company at any time. You may not be eligible for a bonus payment due to performance ratings or disciplinary action…”

The Respondent Company operates an annualised performance assessment whereby employees are graded on their performance throughout the year. The performance standards used are non-performing, approaching performance, performing, above performing and exceptionally performing.

Each role has a set of standards attached to it and individual performance ratings are based on the performance of employees against these standards. The period under consideration for the claimants end of 2018 performance rating was September 2017 to August 2018.

The Complainant was party to a performance set up conversation on 13^th January 2018 during which annual objectives were discussed. The Complainant received a mid-year and year-end performance rating of “approaching performance”. These ratings were assigned by the Complainants Line Manager. The Complainant received a bonus of €128.49 as opposed to €367.12 if she had been rated as “performing”. A difference of €238.63. The Complainant had previously received performance ratings of “performing” in November 2015, November 2016 and November 2017.

The Respondent Company submitted they operate a fair and transparent performance management scheme and a bonus scheme and in the circumstances, it is fair and reasonable that those employees who do not perform as well as others are not rewarded in the same manner as those who perform well within the company.

In their rating of the Complainant as “approaching performance”, the Complainants performance year was considered on balance at both the end of the year review stage and the appeal stage.

Accordingly, it is submitted that the Complainant was afforded fair procedures throughout the process and that the performance rating was appropriate, proportionate and procedurally fair.

In the circumstances of this case, I have carefully listened to the evidence tendered in the course of this haring by both parties.

The Labour Court decision of Bord Gais Eireann -v- A Worker AD1377 aptly sets out my remit in relation to disputes regarding internal investigations ( and also extends to disciplinary processes brought under Section 13 of the Industrial Relations Act 1969 )as follows: “It is not the function of the Court to form a view on the merits of complaints giving rise to those investigations nor can it substitute its views for those of the investigators appointed in either case. Rather, the role of the Court is to establish if the procedures used by the Company conformed to the generally accepted standard of fairness and objectivity that would normally be used in cases such as these.”

Therefore, my role is not to substitute my views for those involved in dealing with this matter but to establish if the procedures adopted by the Respondent conformed to the generally accepted standard of fairness and objectivity that would normally be used in such cases.

As already stated and as per the Labour Court’s position confirmed in Bord Gais Eireann -v- A Worker AD1377, my role in the context of a dispute relating to disciplinary action is confined to considering the reasonableness of procedures adopted in the particular circumstances, as opposed to placing myself in the role of the employer and making findings of fact in relation to the matters alleged.  I am further guided by S.I. No. 146/2000 - Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) requiring that the procedures for dealing with workplace disciplinary matters reflecting the varying circumstances of enterprises/organisations must comply with the general principles of natural justice and fair procedures.

Having examined the disciplinary process in question and for the reasons outlined, I am   satisfied that the Respondent conformed to the generally accepted standard of fairness and objectivity that would normally be used in such cases

However, it is noteworthy that the Respondent Company submitted that in this case the managers who are responsible for managing the performance of its staff are best placed to evaluate the Complainants performance and the final decision as to her performance rating rests with her management.

In that respect, and in the circumstances of this hearing, I note the contents of the written statement dated the 27^th March 2019 which was confirmed by the supervising pharmacist. The Line Manager did not attend either of the hearings in respect of this matter.

Although, I regard the disciplinary process, per se, conformed to the generally accepted standard of fairness and objectivity, in the circumstances of this case I would recommend that the decision of the Respondent Company, of the 15^th November 2018, be overturned and Complainants appeal to be reheard.

At this juncture, I cannot recommend that the Complainant be paid in accordance with an assessment of performing.   

In the circumstances of this matter and in accordance with section 13 of the Industrial Relations Act, 1969, I recommend that the Respondent Company’s decision, of the 15^th November 2018, be overturned and  the Complainants original appeal to be reheard

Industrial Relations – Performance