Complainant

Respondent

Anonymised Parties

General Operative

Recruitment Agency

Representatives

self 

Aislin Reid (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-00036117-001

12/05/2020

The Complainant was employed from 16 April 2008 to 20 November 2019 as a General Operative. He worked on three different types of work on a rotation basis.  The Complainant states he was unfairly dismissed after 11 years of service due to underperforming during picking.

An Interpreter was present for the Complainant.

The Complainant stated he was unfairly dismissed, after 11 years’ service with the Respondent as he could not reach his expected target of 84% of performance due to working in accordance with Health and Safety rules.

The beginning of the disciplinary process which lead to his dismissal started about 12 October 2018 and was continued until the end of his employment.  The Complainant confirmed he did not have all copies and disciplinary meeting statements; he had asked the Respondent for copies and they did not want to give them to him despite his requests.

The Complainant appealed all warnings he received but nothing changed. The Employer was constantly putting pressure on him and they forced him to work faster. The Respondent with cooperation with the Employer sent other employees as a spy (even to the toilet) to watch how he worked, he referred to meeting statements as well as Respondent “trainers” opinions.

The Complainant stated he always did his best and he appealed a lot of times to his employer to start caring about Health and Safety levels on-site and stop harassing people who work according the training given. He stated that unfortunately, all his advice and requests were ignored.

The Complainant stated that working in accordance to the rules, it was impossible to compete with employees who broke these Health and Safety rules. The Complainant stated that the Employer could freely manipulate the performance of an individual, in different ways such as rotation at different positions during the day, adding extra time in the system (delay-time), heavy or light orders, assign one (light, easy) shop.

The Complainant stated that when he started the job in 2008 he was not expected to reach the expected target of 84% of performance as there were much less cases to pick per hour.  The Employer had increased the average number of cases. As he knew, the difference between years 2007 and 2018 was around 25%. He asked many times how many cases he picked per hour (average) in 2008 (his first year with the Company). They never gave him an answer.

The Complainant stated that for a long time, there was a hunt against him as he became the last employee working for an agency with an older better paid contract. They punished him for worse performance on FLT (Reach Truck). He was getting more hours on assembly. It was repeated many times.

The Complainant stated that the Respondent counted him for every second of work. They didn’t care if somebody needed to rest, go to the toilet, drink some water or even book a holiday or arrange anything with the Line Manager. Everything was impacting on individual performance.

The Complainant stated he was punished for sickness, certified by a doctor (warnings and unpaid suspension) and was discriminated against in terms of job rotation – he spent most of his hours on the hardest work among people who had the same skills as himself.

The Complainant stated he requested many times how many Kgs he was picking daily. He never got an answer.

The Complainant stated the Respondent was forcing him to lift empty pallets by hand, to save time and make better performance, which was not allowed before and he stated that other managers confirmed this, and it was against the Forklift Reach Truck Training given and doing this may lead to increased risk of injury. Risk should be minimalized by using the right equipment such as FLT.

The Complainant gave additional information in the form of his contract of employment, and he referred to what he stated was an important meeting statement dated 2 November 2018, employer’s “trainers” feedbacks about his work and all others meeting statements and notes. The Complainant confirmed he had witnesses who would confirm all his words; colleagues A, B & C and supplied Declaration of witnesses.

The Complainant stated in reference to a representative at the disciplinary meetings that he didn’t get this opportunity every time to have his chosen representative as the Employer said they wanted non-company employee v’s employer representative. He said this was new employer term. The Complainant stated he could not meet his targets without breaking Health and Safety rules.

Since his employment ceased the Complainant was doing online shopping role as a hobby with a non-profit.  He was unemployed for 7 months. He went for jobs and courses during this time and is employed for 3 months on €1 less than he was paid. 

The Complainant stated the volume of work he had to do increased during his service with the Employer.  He stated he could not compete with fellow employees who breached the Health and Safety rules and he often raised this with his Manager.  

The Respondent is a recruitment agency that provide personnel across the Industrial, Technical, Catering, Aviation, and Manufacturing sectors.

The Claimant commenced employment in April 2008 as an agency worker and was employed as a Warehouse Operative at a distribution centre until his employment was terminated in November 2019. The Claimant worked under a contract of employment with the Respondent. All policies and procedures to be utilised by the Claimant are contained within the Respondent’s handbook. The Complainant was dismissed through the company’s disciplinary procedures due to the ongoing performance issues displayed by the Complainant. Despite the Respondent attempting to rectify this issue through performance improvement methods, the Complainant continued to underperform therefore warranting dismissal.

On 22 September 2018 a 4-week coaching plan was agreed to help the Complainant with his underperformance.

On 27 October 2018, the Complainant was sent an invitation to attend an investigation meeting on 31 October 2018. The purpose of the meeting was to investigate the alleged underperformance and failure to meet necessary performance plan (the Productivity Indicator (PI) was 68.1% compared to the expected 84%). The Complainant was advised based on available information a decision would be made on whether the allegation(s) should proceed to disciplinary hearing in accordance with their Disciplinary Procedure. The Disciplinary Procedure was attached, and the Complainant was informed of his right to be accompanied by a work colleague.

On 2 November 2018 an investigation meeting took place in relation to the Complainant failing to reach the performance standards set out in the Performance Improvement Plan for 4-week period. The appeal procedure was explained to the Complainant.

On 3 November 2018, the Verbal Warning for poor performance was issued following the investigation meeting held on 2 November 2018.

On 2 November 2018, an investigation meeting took place in order to discuss alleged underperformance and failure to meet necessary performance plan. It was raised with the Complainant that the 4 weeks coaching plan with weekly targets had not been met for weeks 31-34 (76.5%, 79.0%, 81.5%, 84.0%) and it was previously highlighted that failure to meet necessary performance plan may lead to disciplinary action up to and including dismissal. The Complainant was given opportunity to provide explanation as of why he could not achieve the targets. Another 4-week coaching plan was agreed with the Complainant.

On 29 November 2018, a developmental meeting took place to review week 39 which was the final week of the 4-week coaching plan. The Complainant was informed that failure to achieve the target of 84% may lead to disciplinary procedure. The Complainant signed the meeting notes.

On 6 February 2019, an invitation letter was sent requiring the Complainant to attend an investigation meeting on 8 February 2019. The purpose was to investigate alleged underperformance and failure to meet necessary performance plan. The Disciplinary Procedure and the productivity breakdown for past 12 weeks were attached. The Complainant was informed of his right to be accompanied by a colleague.

On 8 February 2019, an investigation meeting was held in relation to the Complainant’s performance. The Complainant was accompanied by a colleague and was given opportunity to state his case and to explain any reasons for the drop-in productivity:

Week 46 – Target 74% - Actual 83%

Week 47 – Target 82% - Actual 75%

Week 48 – Target 83% - Actual 76%

Week 49 – Target 84% - Actual 69%

Meetings to discuss each weekly target took place throughout January 2019.

On 12 February 2019, a letter detailing the outcome of the investigation meeting held on 8 February 2019 was issued. The sanction of a 2nd Written Warning for underperformance was issued by the Service Delivery Manager. The Complainant was made aware of failure to meet necessary performance in following weeks may result in escalation of disciplinary sanction up to and including dismissal. The opportunity to appeal the decision was highlighted. The Complainant refused to sign the letter.

On 15 February 2019 a developmental meeting took place where a new 4-week action/coaching plan was set to assist the Complainant in resolving his performance issues. His performance would have to be monitored on a weekly basis including breaks, start up and finish times. Another shadowing was also arranged but the Complainant did not agree considering it a “spying”. The Respondent reassured the Complainant that the only reason for shadowing was to know if there was any problem on the floor the Company was not aware of. The Complainant was advised failure to achieve the final (week 3) target and maintain his productivity over the minimal expected performance level on site, it may lead to disciplinary action up to and including dismissal. The Complainant was asked if he required any other support, help or refresh training that could help him in improving his productivity. The Complainant refused to sign the meeting notes.

On 6 March 2019, a developmental meeting took place where the issue of Fork Lift Truck (FLT) productivity in week 1 was discussed. The Complainant was given the chance to provide an explanation as to why he did not reach the Performance Indicator for week 1 (the PI was 76.6% which was below the expectation). He was also asked if he would like to get any further training or take up a different skill or if there was any training gap and would he be able to improve his PI in the next week. It was submitted the Complainant was feeling ok working on FLT.

On 11 April 2019, a developmental meeting took place where a new 4-week action/coaching plan was set in order to assist the Complainant resolving the performance issue. The target was set at 84% to be reached in the next 4 weeks with reviews taking place on a weekly basis. The Complainant was advised failure to achieve the final (week 11) target and maintain his productivity over the minimal expected performance level on site, it may lead to disciplinary action up to and including dismissal. The Complainant was asked if he required any other support, help or refresh training that could help him in improving his productivity. The Complainant refused to sign the meeting notes. On 24 April 2019 a developmental meeting took place to review week 08 of the 4-week coaching plan. Complainant performed below the standard achieving a PI of 76%. The Complainant was advised that failure to achieve week 11 target i.e. 84% may lead to disciplinary action up to and including dismissal. The Complainant refused to sign the meeting notes.

On 2 May 2019 another developmental meeting took place to review week 9 of the 4-week coaching plan. The Complainant refused to engage and did not sign the meeting notes.

On 6 September 2019, the Complainant was issued a sanction in the form of a Final Written Warning and 3 days unpaid suspension by the Respondent’s Account Manager. Details about the Appeal procedure were explained to the Complainant. The letter was not signed by the Complainant.

On 9 October 2019, the Complainant attended a meeting in relation to his appeal of the imposed disciplinary sanction (Final Written Warning and 3 days unpaid suspension in relation to his underperformance).

On 12 November 2019, the Complainant was invited to attend an Appeal Hearing on 14 November 2019 that would be chaired by a Manager.

On 15 November, an email was sent to invite the Complainant to attend an investigation meeting on 19 November 2019. The purpose was to investigate the alleged underperformance and alleged failure to meet necessary performance (the PI with the employer for week 37 was 76.7% compared to the expected 84%). The Disciplinary procedure was attached and the right to be accompanied was highlighted.

On 19 November 2019 the disciplinary meeting took place. The Complainant was accompanied by a colleague. He confirmed he had received an invitation to the meeting, the Disciplinary Procedure Policy document, the DSO-LF12 and the Assignment Log report and the productivity breakdown for past 12 weeks. The Complainant was asked to explain why he could not reach the shift average level (his PI was 77.4% compared to the expected 84%).

On 20 November 2019, an invitation was sent by the Light Industrial Manager for the Complaint to attend a disciplinary meeting on 21 November 2019. The purpose of the disciplinary meeting was to discuss the recent Performance Improvement Plan which concluded on 19 November 2019 and the alleged failure to meet necessary performance standards. The Complainant was advised of his right to representation and a copy of the Disciplinary Procedure was attached. The Complainant was also informed that following the review of the matter including his response, a decision would be made on whether the above allegations had breached the company’s Disciplinary Procedure. The Claimant was made aware that should the allegation be found to be upheld, he may be subject to disciplinary action up to and including dismissal.

On 21 November 2019 a letter was issued outlining the outcome of the disciplinary meeting held on 19 November. In reaching a decision, reports dated 09 January 2017, 22 November 2017, 20 January 2018 were considered as well as Complainant’s rotation into second skill. The Complainant was advised of the shadowing before it started the only reason for being arranged it was to get different and independent opinions. Allegations of the system being manipulated, and the work studies being carried incorrectly were not accepted by the Respondent. The sanction was to terminate the Complainant employment with immediate effect. The Complainant was informed of his right to appeal the decision and further details were provided.

On 27 November 2019 the appeal hearing took place. On 6 December 2019, the outcome letter of the appeal hearing was issued. The decision to dismiss taken by the Light Industrial Manager was upheld.

The Respondent submits that the Claimant was not unfairly dismissed but was in fact fairly dismissed for reason of his underperformance in accordance with Section 6(4) of the Unfair Dismissals legislation which states as follows

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.

The Company invested significantly in improving the Claimant’s performance and at all times sought to support the Claimant in achieving his performance objectives. This was evidenced through the numerous Performance Improvement Plans that the company engaged with the Claimant, in order to assist him in improving his performance to the standard required of his role. Where he improved his performance, it was clear that this was recognised however, ultimately this improvement was not sustained and the Claimant’s performance was managed accordingly.

It was clear that a “reasonable employer in the same position and circumstances” would have done and decided as the Respondent did.  At the core of any organization is the need for satisfactory standards of behaviour and conduct.

The incident in question concerned a serious breach of the disciplinary policy on the part of the Complainant. The incident was one of continuous performance issues with failure to perform at the company standard. The Complainant was given numerous opportunities to improve through warnings and performance improvement plan but unfortunately this was to no avail. The company attempted to have the issue rectified, and tried their upmost to support the Complainant in improving his performance. The Respondent feels nothing else could have been done.

The Respondent feels they are well within its right as an employer to set the standards which it expects employees to adhere to. This is accepted by virtue of Section 6 of the Unfair Dismissals Acts and is also well established through case law. In O’Brien v FCI Ireland it was held that “the warnings issued to the claimant were warranted. It is clear from the content of the warnings that the respondent considered that the claimant had the requisite ability and so sought an improvement in his performance… In the circumstances the Tribunal finds that the respondent was reasonable in its decision to dismiss the claimant .”

In a case of dismissal for incompetence, it is not for the Court to establish whether or not the Complainant was incompetent or under-performing in the discharge of his duties. Were the Court to adopt that approach it would in effect be trying to second-guess, from a removed stand-point, the Respondent’s managers who are responsible for managing performance of subordinates and who are best placed to evaluate performance on the job.

Should the respondent have allowed this type of behaviour to continue, it would have had a serious impact on the moral of the other staff and would have set a negative precedent that the company accept this standard of performance.

The Complainant had eleven years’ experience with the Respondent and had demonstrated that he could successfully reach his performance targets in the past, therefore proving he was well aware of the standard that was expected of him.

Having considered all the facts of the case the Respondent did not consider the response or explanation of the Complainant to be reasonable one. The Complainant’s actions amounted to continuous breach of company policy, as defined by the employer and understood by the employee. Furthermore, his actions represented a fundamental breakdown in the trust relationship between the employer and employee. This misconduct goes to the root of the contract of employment because it serves to undermine the trust and confidence which is essential to the maintenance of the relationship between the employer and the employee.

All aspects of the disciplinary investigation and disciplinary process were conducted in accordance SI 146 of 2000. The Complainant was given the opportunity to state his case. The Complainant was afforded the right to representation at all meetings under the disciplinary procedure, including at investigation stage and availed of this. The Complainant was also informed of the possible disciplinary sanctions arising from the disciplinary process. All the evidence in its entirety was considered, including the Complainant’s representation before any decision was made or action taken.  In light of all of the above, the company believes the dismissal of the Complainant to be procedurally fair in all respects.

The Respondent contends that the actions of the Complainant contributed fully to his dismissal.   Accordingly, it is the Respondent’s position that the Complainant is not entitled to seek any redress under the Unfair Dismissals Acts 1977-2015.  This is in accordance with the position taken by the Employment Appeals Tribunal on multiple occasions, including in Murray v Meath County Council, UD 43/1978, where the Tribunal saw appropriate not to award any redress to the Complainant in light of his inappropriate actions. 

In the case of Glogoski v Boots Retail Ireland (UD/17/159), the Court outlined:

“In light of the foregoing and having regard to all of the circumstances in this case, the Court is satisfied that the Respondent’s decision to dismiss the Complainant for under-performance was fair and reasonable in that it was arrived at following the application of the Respondent’s Performance Leadership Policy processes and its Disciplinary Policy processes, which processes were applied in accordance with the Complainant’s rights to fair procedures”.

In the case of Corbett v Harvey Norman Trading (UD1626/2013), the complainant was employed as a warehouse operative and was dismissed due to his ongoing performance issues. In their decision, the Tribunal stated:

“The Tribunal are unanimously of the view that the Respondent in this case acted fairly and reasonably in the manner in which they approached the Claimant’s difficulties with the carrying out of his role. The Tribunal are further satisfied that they afforded the Claimant fair procedures leading up to his dismissal”.

In the case of Martynas Erkinas v Rangeland Foods Limited, UD1130/2011, 8th October 2012 the Complainant was dismissed due to multiple acts of poor performance. The Company operated a “coaching” system whereby employees were counselled/re-trained in situations where their performance was, or had become unsatisfactory. The employee was dissatisfied with this coaching however never raised a formal complaint in relation to it. There were a number of questions raised in relation to the employer’s procedures, namely, the employer included in their procedure that a final warning will only be given to an employee in the presence of his or her representative. This was not done in this case however the employer put forward that the employee declined the right to be represented at this meeting. The EAT upheld the Rights Commissioner’s decision and declared that the dismissal was not unfair.

In the case of Jean-Guy Twagirayezu v Rational FT Services (Ireland) Limited, UD1268/2014, 3rd December 2015 the complainant was dismissed after being placed on a performance improvement plan due to poor performance. The Tribunal noted that it was of the opinion that following the takeover there was a dramatic change in the work expected from the employee. Coupled with this however, the employee was given a considerable amount of training opportunities and time to improve. The Tribunal found that the employee was not unfairly dismissed.

In the case of A Pharmacist v A Retail Pharmacy Group ADJ-00005177 the complainant was dismissed because his performance was inconsistent, and he was the subject of five PIP’s. The Adjudication Officer found/ was satisfied that: the Complainant was informed of the performance issues his employer had with him, what was expected of him, the terms of his PIP and the consequences of not achieving that plan. Following the outcome of the PIP, the Complainant was afforded the opportunity to respond to and explain why his performance was inadequate. The Complainant was provided with ongoing mentoring and support throughout the PIP period and that it was extended on his request due to his circumstances. The Respondent’s procedures were clear and detailed and were available at all times to the Complainant.

"Having reviewed the above and taken into account all of the evidence, I am satisfied that the dismissal was fair. I don’t accept that the decision of the Respondent was disproportionate. I note that alternatives were considered at the appeal hearing stage and that demotion was not appropriate in the case."

In the case ofLorraine Doyle against St. Vincent’s University Hospital UD1033/2012 the claimant was employed as a nurse and dismissed due to poor performance.

"The Tribunal are satisfied that the claimant was given ample opportunity to state her case. She was informed that she could have a representative with her at all the formal disciplinary meetings. She was informed of the discrepancies being alleged against her. She was informed that the discrepancies were serious and she was given a copy of all of the supporting documentation used during the process.

In all the circumstances and on the balance of probabilities, the Tribunal find that the claimant’s claim under the Unfair Dismissal Act fails."

A Respondent Witness, Employee Supervisor stated he offered the Complainant all the support in reference to training to improve his performance prior to considering disciplinary.  He stated the same procedures apply to all staff.  He stated they gave him extra opportunity to improve in the disciplinary process here also but he did not respond. The Witness was cross examined and asked what support was given outside of the written documentation.  The Witness stated he offered the Complainant all the support as there was no issue with the job/skill.  He was given weekly targets.  The Witness stated he felt they did everything possible.

A Respondent Witness – the Manager - stated he was involved in the disciplinary. He stated they could see it was a will issue rather than a skill issue.  He was given every opportunity to improve.  The Complainant showed good performance and the ability to meet those targets prior to the PIP and disciplinary.  The Witness stated they had no issue with reference the Complainants performance for a long time.  The targets were very achievable to a new starter with 6 weeks so they could not understand why the Complainant could not achieve these targets. The Witness stated the shadowing of the Complainant was to check there was no operational or skills issue preventing him doing his job it was will based. The Respondent states that the dismissal was substantively and procedurally fair. The Complainant's dismissal resulted wholly from his own conduct and we respectfully request that the Adjudication Officer find in the favour of the Respondent.

The employer gave the employee fair and reasonable targets and support to achieve same therefore I find that the actions of the Complainant contributed fully to his dismissal.  I have considered Section 6(4) of the Unfair Dismissals legislation which states as follows:

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.

In line with the legislation failure to reach the required standard of performance is a reasonable reason for an employee’s termination of employment once fair procedures and process is afforded to the employee in accordance SI 146 of 2000.

I find that the Respondent acted/did not act within “the bands of reasonableness” in this case and the claim for unfair dismissal is not well founded based on the evidence presented and is in line with what a reasonable employer in the same position and circumstances would have done.

I find that the employee contributed to his own dismissal and that the process used during the disciplinary process was fair and in line with the rules of natural justice.

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.

The claim is not well founded based on the evidence provided. I find in this case based on the written and oral evidence presented the employee was fairly dismissed so his case fails.