FULL RECOMMENDATION
PARTIES : MICROCHIP TECHNOLOGY IRELAND LIMITED DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No(s). ADJ-00014628 CA-00019057-001. Background The Complainant commenced employment with the Respondent as a Senior Engineer on the 16thof May 2004. The Complainant was promoted to Principal Engineer/ Team Leader on the 4thof November 2014. He was dismissed from that employment on the 31stof January 2018. Dismissal is not in dispute; therefore, it is for the Respondent to show that the dismissal was fair. The Complainant was unrepresented. The Court explained to the Complainant that cases appealed to the Labour Court are heardde novotherefore the Court would be hearing the full case and not just addressing the quantum of compensation. The Court indicated that there were limits to the amount of compensation the Court could award and limits to what the Court could award compensation in respect of, and that this was set out in the Acts. The Court went on to set out for the parties that in terms of an appeal, the Court could uphold, vary or overturn the decision of the Adjudication Officer. The Complainant confirmed that he understood and that he was happy to proceed with his appeal. It was agreed by both parties that the Court would take both submissions as read, that each party would give a ten-minute overview of their submission and that Court would then proceed to hear witness evidence. Summary of Respondent’s submission and evidence. Mr Lowey BL submitted on behalf of the Respondent that they at all times acted fairly. Following the promotion of the Complainant to a team leader position in November 2014, it became apparent within a short space of time that there were difficulties with the manner in which the Complainant interacted with other staff. Arising from a performance review in 2015 the Complainant’s Manager Mr Tony O’Byrne identified a number of areas requiring improvement including the need for the Complainant to improve his listening skills. The Complainant did not agree with the areas identified as requiring improvement and refused to add his signature to the appraisal form. Over a period of time the Complainant was given four IPF’s where he was not paid his bonus. Mr O'Byrne supported by senior members of the management team set out a six-month time plan in respect of areas that needed improvement. A Performance Improvement Plan (PIP) was put in place, but the Complainant failed to follow reasonable instructions of management. The evidence will show that he failed to address legitimate concerns of the Respondent. The failure by the Complainant to address the concerns raised led to them becoming disciplinary issues which were addressed through the disciplinary process, conducted by Mr Mc Kernan through a remote format. It is not disputed that there was a relatively quick turnaround between the hearing and the outcome meeting. The respondent submits it was approximately 45 minutes. Then they had the outcome meeting. I ncoming to the decision to dismiss the Respondent was aware that the Complainant had already turned down the opportunity to revert to his previous grade. The Respondent has written to the Complainant seeking evidence of mitigation of loss but had received no response. However, he appears to have commenced in a role with a company called Calix as C.O.O. within four months of termination. The Complainant has not provided details of jobs he has applied for other than the spread sheet which only goes up to January 2019. The Complainant's basic salary at the time of dismissal was €64,251. While he had access to bonus payments, they were not guaranteed but the Complainant has included these figures in his claim that his salary was €95,108. The first person to give evidence on behalf of the Respondent was Mr Tony O’ Byrne the Complainant’s manager who was a Senior Engineer and Manager for the European CAE. It was Mr O’Byrne’s evidence that at the grade of engineer the Complainant was a very good worker he had good negotiation and influencing skills and was very good technically. Mr O’ Byrne informed the Court that the Complainant had put himself forward for promotion as he wanted to try out a leadership role. The manager's role with the Respondent is to support staff. On the 25thof April 2016 he had an employee one on one with the Complainant. As a minimum, one on ones should be held quarterly but they can be held more often and can be formal or informal. This one was formal and aimed at flagging to the Complainant what the issues were and bringing the Individual Performance Factors (IPF) into play. There are two aspects to the bonus structure, the wider team performance and the individual performance. The IPF was known as a tool and was at the discretion of the local supervisor. They are referenced at least four times a year, so all staff are familiar with them. Mr O’ Byrne denied that this was the start of a campaign to get rid of the Complainant. He hoped that the IPF would help resolve the issue the Respondent was having with the Complainant. The Complainant had a coach at that time and all through the process. Mr O’ Byrne stated that he assigned two projects to the Complainant and advised him that he along with the Complainant’s coach were available to support him. The Complainant saw this as harassment and saw the IPF as a threat. It was Mr O’ Byrnes evidence that there were issues with two key team leaders one of which was the Complainant. The Respondent wanted them both to show visible respect for each other and to stop being hostile to each other at team meetings. The key role of a team leader is to develop people, but you do not develop people by issuing orders downstream. The idea is to develop the individual by coaching methods, you need to be able to listen to what others have to say and enable them. You need techniques to develop each individual to their best. In order to assist the Complainant, the Respondent arranged for the Complainant to attend Boot Camp with the Respondent covering the costs. These boot camps are held regularly, and staff are selected to attend them, as they are considered a good learning experience. The Respondent wanted the Complainant to succeed because he had fifteen years technical experience so would be very difficult to replace. In fact, his role was only filled twelve months after he left. Mr O’ Byrne stated that coming to the end of the first IPF he asked the Respondent if they could agree a plan and told him that this would be recognised for the IPF, but the Complainant would not agree a plan. In total there were four IPF’s over four quarters, but the Complainant would not engage with him and there was no improvement in the areas that had previously been identified as problematic. There were grievance appeals going on in parallel which slowed down the IPF process. Mr O’ Byrne submitted that the Complainant did not engage with others when he was interpreting data, he operated on the basis of his interpretation being right. The Complainant did not engage in active listening which is one of the key skills required of a team leader in the organisation. His leadership style was top-down manager whereas the Respondent operate a coaching leadership style. The Complainant sought an exit package on the 1stof November 2016. Mr O' Byrne’s evidence was that at that time he felt they had a correctable situation, and he did not see an exit package as appropriate. In terms of the Complainants allegations against him they were all held to be unfounded. Mr O’ Byrne stated that he had a one-to-one meeting with the Complainant in January and June 2017. IPF’s are purposeful rather than tick box exercises. However, the Complainant took the position that Mr O’ Byrne should withdraw the IPF and restore the money that had been stopped. Mr O’ Byrne tried to engage with the Complainant about a Performance Improvement Plan. There are two levels to the IPF the plan plus achievements it was Mr O’ Byrne’s evidence that he offered to only reduce the IPF by fifty per cent, if the Complainant would make a Performance Improvement Plan but he would not agree. The Complainant’s position was that he did not need to take any corrective action and he was not engaging with the IPF that was in place. In respect of the first disciplinary process which culminated with the Complainant being placed on a PIP three issues were identified as follows: challenges the team faced when dealing with customers on the phone, that the team leader drove his own agenda and did not address the teams concerns and the team leader was not demonstrating leadership. The Complainant was placed on a six-month PIP, it was signed by the Respondent, but the Complainant would not sign up to it. The second disciplinary process in October 2017 was in respect of the Complainant’s failure to carry out instruction in respect of dealing with customers this resulted in a written warning. The Complainant unsuccessfully appealed same. However, there was no improvement after the written warning. The Complainant was of the view that it was the Respondent who needed to change and not him. The third disciplinary procedure was commenced by letter of 23rdJanuary 2018. The Complainant would not accept that he needed to make progress and engage with the PIP. The disciplinary hearing was held at 3.00pm on the 31/1/2018. The Complainant sent in a submission on the morning of the hearing but there was nothing new in it. It was Mr O’ Byrne’s evidence that he was not involved in the decision to dismiss. The Complainant put it to Mr O’Byrne that they had a good relationship going back to 2004 and that was accepted. The Complainant opened a number of documents dating back to 2015/2016 and in particular queried why there was a delay in submitting the June 2015 performance review. Mr O’ Byrne responded indicating that he could not remember why there was a delay. The Complainant also referenced a training event of the 11thof May 2016, but the witness could not recollect the detail of that event. The Complainant put it to Mr O’ Byrne that he was only given short notice of the Disciplinary meeting and that Mr O’ Byrne remained in the room with Mr Jake Mc Kernan and Amanda Luck when the disciplinary hearing was proceeding. Mr O’ Byrne responded that he was there to clarify any issues that might arise but that he had no role in the decision-making process. Mr O’ Byrne accepted that he had been involved in a previous disciplinary hearing with the Complainant. The next witness to go into evidence for the Respondent was Mr Jake Mc Kernan Director of World-wide corporate applications who is based in Arizona and has responsibility for 150 people. It was Mr Mc Kernan’s evidence that at an earlier disciplinary hearing arising from the Complainant’s ability to perform as required in the role of a Team Leader, the Complainant had received a written warning because he was not meeting their expectations. By letter of the 5thof October, the Complainant was invited to attend a disciplinary hearing on the 10thof October 2017. The letter set out that hearing was to discuss two allegations: Unacceptable level of progress against the PIP (Performance Improvement Plan) issued 7thSeptember 2017 and Insubordination- refusal to take reasonable work instructions from your manager. The letter went on to say that Mr Mc Kernan would conduct the hearing, Mr Tony O’ Byrne would be present and that a member of HR would also be present. Mr Mc Kernan clarified for the Court the role of an IPF Individual Performance factors which allows the Respondent to adjust the discretionary bonus programme and the type of issues it might be used to address. Mr Mc Kernan when on to explain when PIPs are used and noted that they are generally coupled with one-to-one meetings to resolve the issues. It was his evidence that generally issues are resolved within one or two quarters. As a safety precaution against misuse, Managers have to justify why people are on PIPS. In this case there were behavioural issues that were concerning, and which did not appear to be getting resolved. It was Mr Mc Kernan’s evidence to the Court that exiting a person from the organisation is not the desired outcome from a PIP. However, about fifty per cent of people either choose to leave during the process or are dismissed while the other fifty per cent turn their behaviour around and continue their employment. By letter of the 12thof October 2017 sent by Mr Mc Kernan, the Complainant was advised that he was being given a written warning which would remain on his file for 12 months. He was further advised that if he continued to fail to engage in the PIP procedure in a meaningful and constructive way that he could face further disciplinary action leading to a range of sanctions including termination of his employment. The letter also set out that he could appeal the decision which he did but his appeal was not upheld. By letter of the 23rdof January 2018 the Complainant was invited to attend a further disciplinary meeting via conference call with Mr Mc Kernan and a member of HR. The invitation letter set out two allegations: Unacceptable level of progress and lack of engagement in the PIP issued on 7thSeptember 2017 and insubordination – refusal to take reasonable work instruction from your manager. The letter went on to say that the Complainant could be accompanied and that if the misconduct was considered serious, he could be issued with any sanction from the Respondent’s policy including termination. As the Complainant had a scheduling conflict the meeting didn’t happen on the 26thit was pushed back to the 31stof January 2018. It was Mr Mc Kernan’s evidence to the Court that it was normal practice for the Respondent to hold meetings by teleconference as they are a worldwide company. The earlier disciplinary meeting was also done by teleconference and the Complainant had not on either occasion raised any concerns about it being by teleconference. On the morning of the hearing, he received an email from the Complainant with a four-page document dated the 31stof January 2018 attached. It was Mr Mc Kernan’s evidence that while he did not have an opportunity to read the document before the hearing commenced, he did get to read it during the hearing. Mr Mc Kernan stated that the primary issue was the Complainant's performance and his ability to do the job they were asking him to do right. Mr Mc Kernan confirmed that he had been involved in the previous disciplinary hearing but submitted that it would have been difficult for someone who did not know the history to have come to the table and understand the dynamics that were at play in relation to the Complainant’s performance. In respect of the document submitted by the Complainant on the morning of the hearing in his opinion it was just a rehash of previous issues and grievances and allegations against Mr O'Byrne. These had all been investigated and found to be untrue. Mr O’ Byrne was present at the meeting on the day in case any clarification was required and to answer any issues that the Complainant might raise. Mr Mc Kernan stated that he did not accept that Mr O'Byrne influenced his decision. It was accepted that the Complainant was with the company for 13 years prior to promotion and that he was very good and respected as an expert in his role. The issues only arose when he was promoted to a leadership role. In respect of why he came to the conclusion that dismissal was the appropriate sanction Mr Mc Kernan submitted that previously in October 2017 he had a conversation with the Complainant about moving to an individual contributor role, but the Complainant flat out refused to entertain the idea as he said he would lose face. On that basis he did not believe there was any point in going down that road, he considered a final written warning, but the Complainant was already on a written warning had received IPF’s and PIPs, and no progress had been made. In coming to the decision to dismiss he was aware of the Complainant’s service, but he was also aware that the Complainant had been previously advised that failure to engage with the PIP in a meaningful and constructive way could lead to dismissal and still he had not engaged with the process. It was Mr Mc Kernan’s evidence that taking it all into consideration he felt dismissal was the only option. In September/October 2017 the Complainant had been sent to a boot camp which is a two-week course where he could hear and learn from other executive managers. The purpose is to instil Microchip values and help participants grow as leaders. Normally about 90 people attend a boot camp. The Respondent thought that by sending the Complainant to the boot camp it might shift his perspective and help him engage more productively. Even at this stage the Respondent was still prepared to invest in the Complainant in the hope of seeing some improvement. Once a year the Respondent offered university style sessions showing customers how to use the products. The Complainant participated in these focus groups on specific topics because of his technical expertise. It did not make commercial sense for the Respondent to let the Complainant go if there was any workable alternative. However, the Complainant was not prepared to engage with the PIP despite being afforded multiple opportunities. Mr Mc Kernan denied all the allegations made by the Complainant against him which were investigated by other senior managers and not upheld. The Complainant in cross examination put it to Mr Mc Kernan that in December 2015 he had requested an upgrade but that did not happen. Mr Mc Kernan confirmed that was correct. The Complainant put it to Mr Mc Kernan that all the European managers attended that boot camp and that in the course of the boot camp Mr Mc Kernan had demanded that he take demotion. Mr Mc Kernan's evidence was that attendance at the boot camp was not mandatory but was recommended and he had discussed the option of the Complainant returning to his original role but did not demand that he took a demotion. In response to a question from the Complainant Mr Kernan stated that he may have discussed a package with him in September 2017, but he did not demand his dismissal. The Complainant put it to Mr Kernan that the procedures booklet states that anyone put on a PIP will be offered a release option. Mr Kernan’s evidence was that the Irish version of the policy does not contain that option. Mr Kernan did not dispute that in respect of the hearing in October 2017 the Complainant was not allowed to audio record the hearing. In response to a question from the Complainant as to whether or not he was allowed to cross examine Mr O’ Byrne, Mr Mc Kernan’s response was that Mr O’ Byrne was there to answer any questions that the Complainant wanted to put to him. The Complainant put it to Mr Mc Kernan that the letter of the 12thof October 2017 had given him a twelve-month warning but he was dismissed before the twelve months had expired. In respect of the disciplinary hearing in January 2018 the Complainant put it to Mr Mc Kernan that the invitation to the meeting did not set out the level of the procedure that was being invoked. Mr Mc Kernan accepted that was probably true he also accepted that at the start of the meeting the Complainant had raised concerns about the Chair, but he went on say the Complainant did not object to the hearing going ahead. Mr Mc Kernan stated that to the best of his recollection the hearing was both audio and visual but accepted it was possible that it was only audio. The Complainant stated that Mr Mc Kernan had not read his statement before the hearing commenced and that there was only a 15-minute gap between the end of the hearing and Mr Mc Kernan coming to the decision to dismiss him. It was Mr Mc Kernan's evidence that he had received the submission in the middle of the night as they were in different time zones. but he had the opportunity to read it during the hearing. In respect of the period of time between the hearing and the outcome meeting, it was his evidence that there was a break of about 45 minutes, as he was conscious of the fact that the Complainant had told them that he had to leave at 5.00pm. In response to questions from Mr Lowey BL Mr Mc Kernan confirmed that the Complainant had previously been scheduled to attend a boot camp but that he had postponed same. Mr Mc Kernan also confirmed that he did not demand the Complainant's resignation and that a package was not offered but that the Complainant had enquired about a package. Mr Mc Kernan stated that the Complainant did not object to the proceedings going ahead with Mr Mc Kernan in the chair. The final witness for the Respondent was Ms Lorraine Mc Ghie the HR Director for Europe covering a total of 2,300 employees in 20 counties in Europe who heard the appeal. It was Ms Mc Ghie’s evidence that she had a lot of experience in dealing with disciplinary hearings, dismissals and performance management and that prior to the appeal hearing she did not know the Complainant. Ms Mc Ghie stated that in this case it was her role to review the case. It was Ms Mc Ghie’s evidence that she was not influenced by anyone and that she had the level of autonomy to overturn the decision or come up with alternatives. It was Ms Mc Ghie’s evidence that she read through all the documents and flew to Dublin to meet with the Complainant face to face for his appeal. The Complainant by letter of 12thFebruary had set out ten grounds for his appeal and was invited to an appeal hearing on the 23rdof February 2018. However, the appeal hearing was not confined to those ten issues. The Complainant was accompanied at the appeal hearing. Ms Mc Ghee stated that she found it difficult to pin the Complainant down to examples of issues that she could investigate. As nobody had questioned his technical expertise, she asked him if he had considered going back to engineering. The Complainant’s response was no that he did not want to return to an engineering role. Ms Mc Ghie stated she asked the Complainant what he was looking for, but he did not give a straight answer. It was Ms Mc Ghie’s evidence that the Complainant had never said that he would consider a technical grade. By letter of the 28thof February Ms Mc Ghie issued a letter advising him that his appeal was not upheld. In the intervening five days she considered other options including a final warning but did not think it was appropriate in this instance because he had received a written warning and there had not been any improvement or progress. The decision to dismiss was upheld and the Complainant was paid twelve weeks’ notice pay. In response to a question under cross examination from the Complainant Ms Mc Ghie stated that after the hearing she went back and read all the document before coming to her decision to uphold the decision to dismiss. Ms Mc Ghie stated that the Complainant was given the opportunity to raise any issue he wanted to raise. Ms Mc Ghie confirmed that she had given him the opportunity to discuss options, but he did not want to. During the appeal hearing the Complainant mentioned redundancy. Ms McGhie asked the Complainant if he had a figure in mind. The Complainant stated that he would have to go home and work out figures and that he would get back to Ms Mc Ghie, but he never did. Mr Lowey BL in his closing submission stated that the Complainant refused to engage with the improvement plan and treated it as a threat and re-acted to it in a very negative manner. The Complainant considered any attempts to engage with him around improvement as harassment and threatened legal proceedings. He did not co-operate with the processes put in place to assist him meet the required standards and he became entrenched in his view that he was operating correctly and that there was a plot to get rid of him despite all his complaints being investigated and not being upheld. The Complainant submitted numerous grievances which were all processed and none of which were upheld. It became apparent to the Respondent that the Complainant was not suited to the role of Team Leader, but he was not prepared to step back into an engineer role either, so the Respondent had no option but to dismiss him. There were two issues a performance issue and a conduct issue. Mr Lowey BL submitted that if there were any shortcomings in the procedures, they were not of such a magnitude as to imperil the process or to prejudice the Complainant. There was a long history of performance issues, and a product of that process was his failure to comply with instructions from his line manager and the PIP. Mr Lowey BL submitted that the decision in this case fell within “the band of reasonableness” which is set out inHennessy v Read & Write Shop LtdUD192/1978 as follows: “In deciding whether or not the dismissal of the claimant was unfair we apply a test of reasonableness to 1.The nature and extent of the enquiry carried out by the Respondent prior to the decision to dismiss the claimant, and 2.The conclusion arrived at by the respondent that, on the basis of the information resulting from such enquiry, the claimant should be dismissed.” He also drew the Court’s attention to the three-pronged test set out by the EAT in what Mr Lowey BL described as the leading test in respect of dismissal arising from poor performanceRichardson and H WilliamsUD17/1979: “That the employee has been given a justified warning that, unless his work improved in a specific area, his job would be in jeopardy That the employee has been given a reasonable time within which to affect such improvement, and: That the employee has been given a reasonable work situation within which to concentrate on such defects.” Mr Lowey BL directed the Court to other cases that he opened to the Court which he submitted were relevant to the case to hand. Mr Lowey BL submitted that should the Court find that the dismissal was unfair, that it should take into consideration the degree to which the Complainant failed to engage. Mr Lowey BL submitted that the failure to engage with the process set up to assist him by the Respondent meant that the Complainant was entirely responsible for his own dismissal and therefore it was a case where a nil award should be made. In respect of the Complainants submission on mitigation no evidence had been provided of applications submitted all that had been supplied was a list of jobs. Mr Lowey BL stated that the evidence of mitigation supplied falls far short of what is required. When the Court resumed on the second day the Complainant informed the Court that he would not be giving sworn evidence and that he would be relying on his submissions and his cross examination of the Respondent’s witnesses. Summary of Complainant’s submission The Complainant submitted that when he started work with the Respondent in 2004, he was given assurances that there was job security. In November 2014 he was promoted to team leader. At that time his performance reviews were very good, it was his submission that the problems that arose, seems to be related to two factors:- 1) Mr O’ Byrne was reluctant to promote him, and he only got the team leader after ten years.
The Complainant stated that in 2015 he received his pay rise, but three months later he was threatened with salary docking, an IPF and then 1 on 1 meetings. The Complainant submitted that Mr O’ Byrne did not consider his skills and experience as an asset, he saw them as a threat as he Mr O’ Byrne was trying to empire build. The Complainant went on to say that KPI’s, quality assurance and customer support work were no longer applied. The focus was on project work and teamwork which the Complainant felt was a move away from their primary obligations. The Complainant submitted that the performance review in 2016 was not conducted in line with the Respondent procedure or best practise. The goals he was set were very vague and not specific or measurable or related to the job he was hired to do. It was his submission that unsubstantiated allegations were made against him and that he was set unreasonable goals to achieve, contrary to the Respondent’s management policies. In 2016 he got a fifty per cent reduction in his bonus because he was issued with an IPF. The goals that were set out for him at that point in time were: Understand/ Internalisation of his subjectivity, Support for KCS project and Improve his listening skills. He was given these goals, but he did not know how they were set. The Complainant submitted that IPF was not part of his work contract, and it gave benefit to managers who issued same. The Complainant stated that Mr Mc Kernan could not explain what the goals on the IPF were to his satisfaction. The Complainant in his submissions set out a timeline of events from August 2015 when he received the first IPF and his bonus was cut by fifty per cent to date of dismissal 31stJanuary 2018 and the subsequent appeal hearing on the 23rdof February 2018. He did not dispute that he had received four IPF’s or that he was placed on a PIP it was his submission that this was part of a plan by Mr O’ Byrne and others to get rid of him. In his closing statement the Complainant stated that his efforts to somehow meet the Respondent’s vague, unrealistic and unobtainable PIP were frustrated by constantly changing goal posts, new tasks and new allegations. It was the Complainant’s submission that at the time of his dismissal 31stJanuary 2018 at least thirty-three more nit-picking allegations were added. The Complainant opened to the Court the case ofRCI- Call Centre Limited and Ibrahim SalahUDD 202 where the Court held that the introduction of two additional disciplinary allegations were a matter of concern to the Court and the Court ultimately found that the dismissal was unfair. The Complainant submitted that the barrage of new allegations in "the kitchen sink" approach adopted by the Respondent made it impossible for him to mount a defence at the PIP and disciplinary hearing. It was the Complainant’s submission that the Respondent failed to comply with the requirements set out in Code of practice S.I. no 146/2000 (Code of Practise on Grievance and Disciplinary procedures) and failed to apply the principles of natural justice and fair procedure. It was the Complainant’s submission that the decision to dismiss was unfair. In support of that position the Complainant opened several cases to the Court. The Complainant submitted that the process followed was unfair taking into account the fact that Mr Mc Kernan heard both disciplinary proceedings, that his twelve months final warning had not expired, that he was not allowed to audio record the meetings even though the Respondent had a notetaker present and the fact that Mr O’ Byrne his line manager was present at the meeting. The Complainant submitted that these facts supported his contention that the procedure. In respect of loss and mitigation the Complainant submitted a statement of loss and stated that he had one job interview and was setting up his own business with help from Enterprise Ireland. The Law Section 6 of the Unfair Dismissals Act 1977, as amended, states, in relevant part, as follows: 6.— (1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal. (4) Without prejudice to the generality of subsection (1) of this section, 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, (b) the conduct of the employee, (c) the redundancy of the employee, and (d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute. Issue for the Court Dismissal as a fact is not in dispute and therefore it is for the Respondent to establish that in the circumstances of this case the dismissal was not unfair. Discussion Dismissal in this case as submitted by the Respondent arose mainly from performance issues. The conduct issue arose in circumstances where the Complainant did not accept there were issues with his performance and declined to follow the instruction of his line manager. In considering dismissal arising from performance the issues to be considered by the Court are different to what the Court would consider in a dismissal complaint arising wholly or mainly from the conduct of a Complainant. The Court having considered the submissions of the parties both written and oral and heard the uncontested evidence of the Respondent’s three witnesses notes that the following facts were not disputed: The Complainant was promoted in November 2014, the first formal engagement around his performance was some nine months later in August 2015, when he was given an IPF, and his bonus was reduced by fifty per cent. The Complainant did not accept that he needed to improve in the areas identified by his line manager and still does not believe that his performance required improvement. The Complainant was requested to attend a boot camp run by the Respondent to try and remedy the shortcomings his line manager had identified. The Complainant attended the boot camp but there was no change after he returned from same. The Complainant had a coach available to him at all times during the process. The Complainant was issued four IPF’s and placed on a PIP. The Complainant refused to engage with the PIP. The option of reverting to his previous grade was discussed with the Complainant in the Summer/Autumn of 2017 but he was not interested in pursuing that option. The Complainant queried Mr Mc Kernan's role as chair of the final disciplinary hearing but agreed to proceed with Mr Mc Kernan in the Chair. The Complainant was advised in advance of the disciplinary hearings what the issues were and was also advised that he could be accompanied at the hearing. The Complainant was placed on a written warning for not co-operating with the PIP and advised that if he did not engage with same, he could face dismissal the Complainant continued to refuse to engage with the PIP. The Complainant at the appeal hearing of the decision to dismiss him, raised the issue of redundancy and undertook to return to Ms Mc Ghie in terms of the quantum he was looking for, but failed to do so. The issue for this Court to determine is whether or not in all the circumstances of this case the Respondent was justified in dismissing the Complainant. In coming to that decision, the Court must have regard to whether the Complainant failed to improve his performance in the areas identified to the standard required by the Respondent and if so, the reasonableness or otherwise of the Respondent’s requirements. Dismissal for performance issues can only be justified where there has been a succession of failings, the Complainant has been afforded the opportunity to remedy the failings and is on notice of the consequences of failing to do same. The Court, having considered the totality of the evidence adduced in the course of the appeal, finds that the Respondent has afforded the Complainant numerous opportunities since August 2016 to make the required improvements. The Respondent also provided coaching and training in the form of the boot camp to the Complainant, but no improvement of note was forthcoming. The Court also finds that the Respondent’s requirements in respect of the improvements required as set out above were reasonable. In coming to the decision in January 2018 to dismiss, the Court finds that the Respondent had at that time already offered the Complainant an opportunity to revert to his original grade, had placed him on a warning and advised that his job was in jeopardy some months earlier, and had actively sought to work with the Complainant to resolve the issues. The Court finds that the Complainant in this case failed to engage with the Respondent in a manner conducive to resolving the issues. The failure of the Complainant to accept that any change in his behaviour or performance was required presented an unsurmountable challenge for the Respondent. Taking all these facts into consideration the Court finds that the decision to dismiss was fair. The Court is also satisfied that the Respondent afforded the Complainant fair procedures, and while there were some flaws in the process, such the 2ndand 3rddisciplinary hearing being heard by the same person, the Court finds that in the circumstances of this case where most of the senior management team had engaged with the Complainant in one forum or another that issue is not in and of itself fatal to the process. In all the circumstances, and having regard to the foregoing, the Courts finds that the decision to dismiss the Complainant was fair. The appeal is not upheld. The determination of the adjudication is set aside.
NOTE |
