Complainant

Respondent

Anonymised Parties

Technical Consultant

Technical Provider

Representatives

Ray Ryan BL                       Anne Barrett Solr.                                            Hussey Fraser Solicitors

Shelly Horan BL             Simon McInerney Solr.                                        Ogletree Deakins International LLP

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-00019057-001

09/05/2018

The Complainant brings a Complaint of having been Unfairly Dismissed from his employment by way of Workplace Relations Complaint Form dated the 9th of May 2018.

The Complainant was legally represented and gave evidence on his own behalf and his evidence was tested by the Respondent Counsel. The Complainant says that his Employer’s decision to dismiss him (made on the 2nd of February 2018) was wholly Unfair and was both procedurally and substantively unlawful.

The Respondent attended with legal representation and I was provided with a Submission from the Respondent which stated that :-

“the Claimant was dismissed for reasons relating to his capability and conduct namely his poor performance and conduct over a significant period which are fair reasons in accordance with the Unfair Dismissals Act 1977 to 2015”

I have carefully considered the evidence in this matter. There is a considerable back-history to the final decision to dismiss the Complainant. This final decision was communicated to the Complainant at the end of a Disciplinary meeting conduced on the 31st of January 2018 (with letter to follow in February) and presided over by Senior Manager JM who (unusually) was conducting this meeting by conference call from the United States.

The Complainant has highlighted the many and varied flaws which they claim has tainted the process such as render the Dismissal unfair and I will deal with these issues in due course.

By way of background, I note that the Respondent company is an international corporation involved in the developing, manufacturing and selling of semi-conductor products, microcontrollers and microprocessors into all areas of industry and on a world-wide basis. The Complainant works out of the Dublin base in the technical support area and alongside his colleagues was working to resolve and troubleshoot problems which clients might have, as and when they arise. I fully accept that this is a highly pressurised job as it not only involves constantly having to interface with customers and clients but also involves trying to explain and talk through highly technical issues which may fall well outside the grasp of many.

There can be no doubt that the Complainant is highly proficient in his area of expertise and worked extremely well with the Company as a Senior Engineer from 2004. All the evidence confirmed he has a great understanding of product, design and other technical issues and was well known for being excellent with clients perceived to be difficult.

In November of 2014 the Complainant was promoted to Team Leader. This was a natural progression in the workplace and one which the Complainant sought. However, there can be no doubt that the Company’s expectations from a Team Leader are markedly different from what it expects from the Engineers. The Complainant’s Manager TOB explained in evidence that the Team Leader’s success is measured in terms of the individual contributions made by those he is appointed to lead. TOB is clearly passionate about his vision for how his Teams should work. For him it is all about collaboration, working together and equality. He emphasised the need for coaching not managing and listening not dictating. TOB manages a number of technical support teams in Europe (Germany, Ireland and Romania) but that despite this geographical separation he expected the Teams to work together and be consistent and be co-operative.

I found the evidence of TOB to be quite compelling. He says he recognised a problem with the Complainant’s manner both with other team leaders as well as with the supervision his own Team of staff in Dublin. TOB took it upon himself to take ownership of the problem as he saw it, and to address it with the Complainant. So it was, that as far back as April and May of 2016, TOB was having informal conversations with the Complainant about the levels of discomfort he observed in those working alongside and under the Complainant. To this end, I note that in a one to one meeting held in April 2016, TOB outlined his expectations as line Manager to include awareness of others, mutual respect and a commitment to working collaboratively. TOB set out projects to be completed with the other Teams and to be completed in the spirit of togetherness.

There can be no doubt that the Complainant reacted very badly to the criticisms. In the course of that meeting the Complainant accused TOB of intimidation and harassment and of having a long- term plan. The Complainant also indicated an intention to seek legal advice.

I understand that the Complainant was probably affronted by the suggestion that he was making it difficult for those around him when there were no actual concrete allegations and complaints. However, I also have to bear in mind that TOB’s role as overall Manager was to ensure he created the best possible balance and not just a workable balance. On the whole, I accept TOB’s evidence that he saw a need for improvement and was intervening for the purpose of getting the Complainant on track and not for the purpose of derailing him.

Unfortunately, the situation did become de-railed. The Complainant railed against the perception that he was being micro-managed when others were not. The evidence is that TOB was at all times working with various people (including at least one other Team Leader) to try and get the best out of them, and often sought the help of HR in this regard.

In July 2016, after a period of time when TOB could see no marked improvement and no effort on the part of the Complainant, it was decided to notify the Complainant that he was being subjected to an Individual Performance Factor. This impacted the Complainant’s bonus package and is seen as the precursor to the PIP programme with which we are more familiar in this jurisdiction. The Complainant was not happy with this and initiated a Grievance against his Manager TOB.

The Grievance itself gives a clear insight into the Complainant’s viewpoint. He accuses TOB of creating a toxic environment and of harassment and victimisation. TOB, he says, sees himself as a superior person with a tendency to stereotype the Complainant and with an inability to work in a multi-cultural environment. He says he imposes unreasonable diktats on the Complainant and that his expectations are nebulous and incomprehensible (for example the internalisation of subjectivity). The Complainant questions the legitimacy of the IPF and the says it is being used to intimidate the Complainant.

As I see it, the language and accusations levelled at the Complainant’s line-Manager were such that it was always going to be difficult to come back from. It is worth noting that the Complainant as part of this Grievance was also looking for an exit package, and I wonder if the use of such intemperate language was because there was an expectation that the Complainant would be leaving the workplace in due course?

In any event, the Complainant did not leave the workplace and operated under no less than four consecutive IPFs which sought the performance improvements in the manner already set out by his line Manager. Eventually, in August 2017 (and after a poor performance Disciplinary meeting) the Complainant had a six-month Performance Improvement Plan imposed upon him which certainly imposed a level of micro-management on him. At all times the Complainant objected to his treatment and to the fact that he was subjected to this level of scrutiny and criticism without any rational explanation.

At this juncture it is important that I note that I have been presented with no evidence of introspection on the part of the Complainant. He simply rejected completely that he was in any way at fault and was in any way difficult to work with.

The Grievance against TOB (and raised in December 2016) was found to be unsubstantiated (in January 2017 and again on Appeal) and it is worth noting that the conclusion therein was that “a lack of perception a lack of understanding and in some cases a lack of acceptance” was at the root of many of the objections raised against TOB. I dwell on this summation as I think it captures, to some extent, the difficulty in this Employer/Employee relationship. The Complainant was never able to see that TOB was simply doing his job as directed by his Superiors. The Complainant believed this was a personal and vindictive attack by TOB on him, whilst all the evidence suggests that TOB was simply trying to implement the ethos and best practice being directed through an international HR Department to this Dublin-based workplace. On balance, I cannot see that the objectives (of creating collaborative teams) were anything other than meritorious and it only remains to determine whether the implementation was arbitrary or Unfair.

I am also minded to note that TOB was fully supported in his efforts (by all levels of Management above him) and that whilst the Complainant’s technical ability was of huge value to the Company, the Company was looking for Team players. The company wanted the “techies” to have soft skills too as the evidence given by one or two of the Respondent witnesses.

For the rest of 2017 the relationship between the Complainant and TOB remained fraught. TOB could see no sign that the Complainant accepted the need to become more collaborative in his approach whilst the Complainant inevitably became more hostile.

A second poor performance disciplinary process resulted in a 12 month written warning issuing at the end of 2017. This was followed swiftly by another Grievance against TOB, and an Appeal against that said sanction. In tandem with this process it is noted that TOB was continuing to try and manage the Complainant pursuant to the PIP arrangements which involved regular meetings and performance appraisals. Things were clearly not improving.

On the 23rd of January 2018 the Complainant was invited to a Disciplinary concerning his lack of engagement with the PIP and his refusal to take work instructions from his Manager. The invitation included a warning that the outcome could lead to a dismissal.

I am bound to accept that there were a number of procedural flaws surrounding this meeting. Firstly it was difficult that JM, who was conducting the meeting, was doing so by phone or screen from the United States. Quite apart from that, it was clearly objectionable to the Complainant that TOB would be present for the duration of the meeting. This was unacceptable and no explanation was provided to me for his presence. I do not accept that the fact that the Complainant did not object made it alright.

It is also noted that it is not best practise to conduct an investigation “in the round”. The Complainant appears to have been invited to this investigation process because there was a general sense that he was not adhering to the company’s expectations. The allegations are non-specific.

It is certainly regrettable that JM had had a previous role in an earlier one of the processes to which the Complainant had been subjected in the 18-month period up to this final meeting. Again, no explanation was provided as to why (in a corporation of its size) a fresh face could not be found. I do not accept that JM did not approach this final disciplinary process without some pre-conceived idea of the Complainant’s perceived obduracy.

I further accept that the 15 minutes that JM allowed himself to reflect on making the final decision is unsatisfactory. He did not surely have time to reflect on the notes provided by the Complainant by way of Defence nor the notes taken in the course of the meeting itself?

It is noted that the Complainant argued that the PIP should have been completed before a final decision to terminate should be made – and there was still a month to run therein. It was also argued that there was no justification for jumping from a written warning sanction to dismissal, by-passing the final written warning option. These are points I am inclined to agree with where no real justification was given.

However, against these procedural matters, I am inclined to accept that the Complainant was largely to blame for his own dismissal. As I have indicated, I do not get a sense that the Complainant has reflected on his own role in the events that gave rise to the ultimate decision to Dismiss. The Complainant gave his Manager TOB nothing to work with. The Complainant was scornful of his Manager’s attempt to guide and assist and became increasingly entrenched in his unwillingness to meet performance expectations.

In the circumstances, I am finding that the Complainant was Unfairly Dismissed by reason of the application of unfair procedures. In assessing relevant compensation for financial loss, I am bound to give weight to the Complainant’s own conduct which helped to bring about the termination of the Employment.

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00019057-001 – The Complainant was Unfairly Dismissed and I award €25,000.00