Complainant

Respondent

Anonymised Parties

QA Inspector

Medical Equipment Manufacturer

Representatives

Richard Stapleton, Solicitor

Graham Bailey, 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-00028732-001

29/05/2019

The Complainant commenced employment as a Quality Inspector on 31st July 2009. Her employment was terminated by the Respondent on the grounds of alleged gross misconduct on 10th May 2019. A complaint under the Unfair Dismissals Acts was received by the Commission on 29th May 2019. A hearing in relation to this matter was convened and finalised on 25th November 2019.

It is the Complainant’s position that the procedure adopted by the Respondent in effecting her dismissal was fundamentally flawed. She further alleges that the substantive wrongdoing alleged was not proven and did not constitute gross misconduct in any event.

At the commencement of the hearing, the Complainant’s representative withdrew four other complaints bearing separate file reference numbers and confirmed that the present case was the only matter being pursued. No issues relating to my jurisdiction to hear the complaint were raised at any stage.

As the fact of dismissal was not is dispute, the Respondent accepted the onus of proof as set out in the Acts.

At the outset, the Respondent submitted that the Complainant was dismissed for committing an act of gross misconduct. They further submitted that at all times she was afforded fair procedures throughout the process leading to her dismissal.

The Complainant commenced employment on 31st July 2009 as a Quality Inspector. The Complainant’s employment was uneventful until the end of 2018 when her line manager began to raise issues regarding the Complainant’s productivity. During the Complainant’s end of year review meeting on 1st February 2019, her line manager advised that she had not met the company standards in relation to productivity. As a consequence of the same, it was advised that the Complainant would be placed on a Performance Improvement Plan (PIP), as provided for in the Complaint’s contract. On 11th February, the Complainant advised that she was unhappy with the result of the year end assessment and advised that she wished to appeal the outcome. On foot of the same, the Complainant was provided with the company grievance procedure and was advised that any such appeal would have to take the form of a formal grievance.

On 15th February, the Complainant was invited to a meeting to discuss the PIP. Shortly after receiving the invite, the Complainant declined this meeting invitation. On receiving notice of the same, the Complainant’s line manager advised her that she was required to engage with the PIP and that a failure to do so would constitute a failure to obey a reasonable management instruction. Later that day the Complainant again advised that she would not be attending the meeting.

A second invite to a meeting to discuss the PIP was issued on 18th February 2019. Again, this invitation was declined, and the Complainant did not attend the meeting as scheduled. The Complainant also failed to attend a similarity scheduled meeting on the 28th February 2019.

On 1st March, the Complainant advised that she would attend the PIP meetings if she could avail of a witness. On 4th March, the Complainant’s line manager responded advising that as the PIP meetings were informal in nature no witnesses were permitted to attend the same. At the next scheduled meeting on 5th March, the Complainant attended accompanied by a witness. As this was in contravention of the terms set previously, the meeting was vacated. Again, on 12th March, the Complainant attended a scheduled meeting in the company of a witness. Consequently, the meeting could not proceed as per her line manger’s earlier statement and the meeting was again vacated. This series of events repeated on the 19th March, with the Complainant attending a scheduled meeting with a witness in convention of her line manger’s wishes, resulting in the consequent cancellation of the meeting.

On the 26th March 2019, the Complainant was invited to a disciplinary meeting in relation to an allegation that she had failed to follow a reasonable management instruction in failing to attend these meetings at all or in the manner prescribed. Thereafter, on the 26th March 2019, the Complainant was advised that she was to receive a written warning in respect of this allegation. Following an appeal by the Complainant, a further meeting was held on the 10th April 2019, with the sanction ultimately being upheld on the 16th April 2019.

Following this interlude, an invite was issued to the Complainant in respect of a PIP meeting for the 23rd April 2019. Given that the Complainant again attended this meeting accompanied by a witness, the Complainant’s line manager allowed this witness to be present for the initial part of the meeting but asked that she leave for second “informal” part of the process. At this point the Complainant advised that her witness would be present for the entirety of the meeting. In these circumstances the Complainant’s line manager advised that the meeting could not go ahead, and it was again vacated.

On the 10th May 2019, the Complainant attended a disciplinary meeting in respect of a failure to follow a reasonable management instruction. Given that the Complainant had already received a written warning in relation to this misconduct, and that this misconduct had continued, it was determined that the Complainant’s employment was to be terminated on the grounds of gross misconduct. Despite the letter of dismissal expressly allowing for an appeal of this decision, no appeal issued from the Complainant.

In evidence, the Plant Manager (being the person that made the decision to dismiss) advised that the Respondent had considered all other alternatives to dismissal. However, given that the Complainant refused to engage with the PIP process, it was not possible to see any path forward for the Complainant in these circumstances. In answer to a question, the Plant Manager advised that he was aware that the Complainant had a live grievance against the Respondent at the time of dismissal, but this did not change his mind in relation to the ultimate outcome. Regarding a question in regarding the speed at which the disciplinary was resolved whilst the grievance was outstanding, the plant manager advised that he was not charged with resolving the latter and could not comment on the same. When asked why the Complainant was not allowed to bring a witness to an informal meeting, if indeed these were informal, the Plant Manager answered that the purpose of these meeting had to me convened quickly and easily, allowing witnesses to attend these meetings would invariably slow them down and ultimately render them unfit for purpose. Finally, when asked whether any other person other than the Complainant’s line manager (who was implicated in the Complainant’s grievance) could hold the PIP meetings, the Plant Manager advised that given the specialised nature of the role, the line manager was the only appropriate person to chair these meetings.

The Complaint stated that her career with the Respondent had been relatively uneventful until the appointment of her most recent line manager. Throughout the C’s employment her performance and output had been deemed satisfactory. This was to change in mid-2018 when her line manager advised that she was to receive a negative mid-year review. During this meeting, the Complainant was advised that an inter-personal complaint had been made against her by another member of staff. Whilst the specifics of this complaint never formalised, the Complainant felt that she had been treated poorly in the manner in which the alleged complaint was handled and in relation to the mid-year review generally. Considering the same the Complainant elected to issue a grievance in relation to this treatment. She alleged that following the issuing of this complaint she started to be treated differently by management within the Respondent.

On 23rd November 2018, the Complainant was informed of another complaint against her. This complaint was presented in a more formal manner, with the Complainant being advised that a full investigation under the Dignity at Work procedures would be undertaken. From the outset the Complainant was anxious to have this matter concluded and defend her position, however by the time of the termination of her employment, it was apparent that this investigation had not concluded.

On 1st February 2019, the Complaint received her year end review. To the Complainant’s disappointment, this described her as an employee who “does not meet expectations”. As a result of the same, the Complainant was to be placed on a PIP and was provided with no increase in salary. In the Complainant’s view, the methodology used in the year end review was grossly unfair as it relied on complaints made against the Complainant that had been denied and were supposedly being investigated. When she asked about the apparatus by which this process could be challenged, the Complainant was informed that she would have to lodge a formal grievance in line with company procedures. A written, formal grievance was duly lodged on 18th February raising issue with the conduct of the Complainant’s line manger amongst others. To the Complainant’s disappointment, this complaint was referred to her line manager, despite her being a material subject of the same.

As the Complainant fundamentally disagreed with the outcome of the end of year review and as she had lodged a grievance in relation to the same, she refused to attend meetings to discuss the PIP until such a time as the grievance was finalised. Notwithstanding the same, the Complainant offered to attend such meetings, under protest, and with the benefit of a witness. Despite this concession, the Respondent would not allow her witness attend and she was deemed to have refused to carry out a reasonable management instruction in failing to attend the meetings.

On the 21st March 2019 the Complainant was subjected to a disciplinary process whereby she received a written warning. This disciplinary meeting was chaired by the Complainant’s line manager, who was fundamentally involved with much of the subject matter of the disciplinary.

Following an unsuccessful appeal of this sanction, Complainant continued to refuse to engage with the PIP process until such a time as she could have a witness present. On foot of this continued refusal, the Complainant was invited to a disciplinary meeting and ultimately dismissed for gross misconduct.

In evidence, the Complainant advised that she did not engage with the PIP process as to so would serve to legitimise the complaints against her and could be construed as an admission in relation to the same. She further stated that the criteria set out in the PIP itself were entirely subjective and predominantly related to inter-personal issues. The Complainant drew a contrast between the Respondent’s lethargic response to the complaints against her and the expedience with which she was disciplined and ultimately dismissed for this alleged failure to follow a management instruction and alleged gross insubordination. She stated that she was willing to engage in any process that might serve to resolve the situation but would refuse to engage in a process that was fundamentally unfair towards her and was predicated on information that she contested at all times. In answer to a question, the Complainant stated that she did not appeal the sanction of dismissal due to an overall fatigue in relation to the process and belief that such an action would ultimately prove futile.

From the evidence of both parties, it is clear that the second half of 2018 represented a difficult period for the Complainant’s department within the Respondent. It appears that a formally serene working environment became more strained and difficult, with inter-personal complaints being issued by numerous parties and evident dissatisfaction within the workforce.

Whatever the ultimate cause for this situation, the Respondent’s reaction seems to have exacerbated the difficulties experienced by the Complainant. Firstly, she was informed of a complaint against her during a performance review meeting without being provided with the full details and specifics of the same. Regarding the second, more formal complaint, while the Respondent initially took the correct approach, this matter appears not to have been properly investigated and certainly was not concluded in a timely manner. In essence, the Complainant was informed of serious inter-personal issues and was not provided with an adequate opportunity to defend herself from the allegations therein.

Undoubtedly, the Complainant’s difficulties were further exacerbated by the form and content of the end of year review. Part of this review clearly relates to the interpersonal issues discussed above and is couched in language that would imply that the fault for the same lay with the Complainant. Such conclusions could only be drawn following a comprehensive investigation, which at this point, was deemed to be ongoing and was strongly contested by the Complainant. To reach these conclusions at this point and without finalising the investigation is clearly in breach of the Complainant’s rights and fundamentally unfair towards her.

It appears the Complaint did everything within her power to challenge this outcome and lodged a formal grievance in relation to her treatment to date. Again, it appears that the Respondent did not pursue this with any vigour and this grievance remained unresolved by the termination of the Complainant’s employment.

These matters, at least in part, formed the basis of the Performance Improvement Plan imposed on the Complainant. In this regard, and given the evidence of the Complainant, I find that it was entirely reasonable for the Complainant to refuse to engage in this process. The subject matter of the same was clearly and unequivocally contested by the Complainant at all times. To engage in the process would be to, at least, imply a concession to the findings of the end of year report and legitimise the findings therein. I also find the Respondent’s absolute refusal to allow the Complainant to attend with a witness to be unreasonable in the circumstances. At all times the Respondent has insisted that the meetings are informal in nature, however when the Complainant sought to rely on this informality and attend with a witness, a strict rule was imposed to which no exception could be countenanced. While I understand that rationale for the Respondent’s wish to avoid formalising informal meetings, in this case a long-standing employee’s continuing employment was at stake and an exception should have been made.

Considering the foregoing, I find that the rationale for the Complainant’s dismissal; a failure to follow a reasonable management instruction and gross insubordination, has not been proven. The instruction to attend the PIP meetings cannot be said to be reasonable, rather it was the Complainant’s refusal to attend the same that was reasonable in the circumstances.

The test for proving a claim of unfair dismissal is well established and was recently endorsed the High Court case of Reilly -v- Bank of Ireland [2015] IEHC 241 in the following terms,

“The correct test is: was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably take a different view.”

In light of the foregoing I find that any no reasonable employer would have dismissed the Complainant in these circumstances.

Notwithstanding the same, I also find that the Complainant failure to appeal this finding was unreasonable. While the Complainant stated that she was “exhausted” by the process at this point and that she believed an appeal to be a futile endeavour, there remains an obligation on the Complainant to finalise the process. While this failure to appeal the finding does not absolve the Respondent of their wrongdoing, I do find that her failure to do so was unreasonable in the circumstances.

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with Section 7 of the 1977 Act.

Following from the findings outlined above, I find that the Complainant’s dismissal was unfair for the purposes of the Acts and consequently her claim succeeds.

In relation to redress, Section 7(1) empowers me to order re-instatement, re-engagement or a payment of compensation to be made to a successful Complainant under the Act. Given that neither party wished for the employment relation to recommence, compensation is the most appropriate redress in this circumstance.

In evidence, the Complainant stated that she had been seeking employment and provided written proof of the same. Despite these endeavours, the Complainant had not been successful in securing alternative employment by the date of the hearing. Nevertheless, all parties agreed that the employment market for a person of the Complainant’s skills is quite buoyant and she envisioned that she should be successful in her search in the early part of the forthcoming year. In evidence, the Complainant also outlined that she was currently acting as a carer for a family member, which further impeded her ability to mitigate her losses.

Following from the above, I award redress of €10,000 in respect of the breach of the Acts as outlined above.

Performance, Performance Improvement Plan, Gross Insubordination, Appeal