Worker

Employer

Anonymised Parties

A Financial Advisor

An Insurance Company

Representatives

none 

Aleksandra Tiilikainen IBEC

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00035726-001

16/04/2020

The worker submitted that the employer did not follow their procedures when she received a Performance Improvement Plan (PIP) and that she had no choice but to resign.

Preliminary Issue #1

The worker requested an amendment to the name of the employer.

Preliminary Issue #2

The worker commenced employment on 29/7/2018 and submits that she had to resign her position in a letter dated 23/2/2020 owing to the manner in which she treated by the employer. 

During the hearing the worker submitted that she thought that she had submitted a complaint under the Unfair Dismissals Act and was given some time to consider this.  On resumption the worker confirmed that she wished to proceed with her dispute under the Industrial Relations Act.

Substantive Issue:

The worker submitted that in October 2019 she was asked to attend a meeting by two managers. Ms A and Ms B but was not advised what the purpose of this meeting was.  At the meeting she was advised that she would be placed on a PIP which could be subject to dismissal.

Later that evening the worker received a copy of the employer’s procedure and was distressed to find out that the employer failed to follow their own procedure.  The employer’s procedure required that she should have been advised in advance of the purpose of the meeting that she had attended.  The employer also failed to provide the worker with the opportunity to have somebody in attendance with her at this meeting.  The worker raised this with her manager Ms A who said she would look into it.

The worker did not raise it through the grievance procedure as she felt that Ms A and Ms B  had both breached procedure and that no one wanted to hear her concerns.  She found that meeting with them very threatening.  Two months later her manager left and she was assigned a new manager Mr C and the worker remained on the PIP.  She raised her upset both Mr C and another manager Mr D who apologised for what had happened.

The worker outlined that her period of time with Mr C as her manager was not a matter of dispute or complaint but felt that she had no option but to resign.  She expressed her surprise with the original PIP  as she had received a nomination for an award for her customer service from her manager Ms A but did not dispute the PIP or dispute a subsequent PIP she had been placed on by Mr C.

Preliminary Issue #1

The employer agreed to the amendment to the name of the employer.

Substantive Issue:

On 17th October 2019 the worker was invited to attend a meeting with her manager Ms A and another manager to discuss concerns that her performance was falling below expected standards.  It was accepted by the employer that the worker did not appear to have received the PIP policy in advance but was provided with it thereafter.  It was also outlined that the worker raised no issues with how all other PIP review meetings took place.

Following the meeting in October 2019, the worker was allowed to move to a sales role that she had previously worked in and enjoyed and the worker replied “all appears in order.  Thanks for your offer of help and support”.

The worker never raised objections with the need for a PIP or the targets set and if the worker had, the employer would have worked with her to resolve the issues.  Furthermore, the worker never raised a grievance through the employer’s grievance procedure.  While the worker improved in some areas, other areas were highlighted and the PIP remained.  It was set out that although the complaint is not a complaint under the Unfair Dismissals Act, the contract test and reasonableness test still apply and the employer acted fair and reasonably and there was no breach of contract; such that constructive dismissal does not arise.  The targets were reasonable and the worker was given every opportunity to meet the targets and regularly thanked her managers for their assistance.

It was disputed that the worker was left with no alternative but to resign her position. The worker tendered her notice of resignation and the worker sounded positive and showed her willingness to assist with any necessary handover.  There was nothing in her letter of resignation that suggested that the worker was unhappy.  The employer rejected that the worker resigned her position owing to her allegation that the employer failed to follow the PIP procedure.

In correspondence received after the hearing, the employer confirmed that in 2019 the worker had been nominated for an award for her patience and hard work but did not win an award and that the PIP was in place for performance issues.  At that time there had been 433 nominations with a population of 380 in the worker’s work location.

Case law cited included Kenouche v Four Star Pizza, UD962/2008 and Conway v Ulster Bank Ltd UDA474/1981.

Preliminary Issue #1

The worker wished to amend the name of the employer and the employer agreed to same.  For completeness I am satisfied that the employer has not been prejudiced by the amendment to the employer’s name and therefore, I have amended the name of the employer.

Preliminary Issue #2

The worked submitted a dispute to the WRC on 16th April 2020 which sets out that the worker was seeking redress under Section 13 of the Industrial Relations Act 1969.  During the hearing, the worker submitted that she thought that she had submitted a complaint under the Unfair Dismissals Act and following a short adjournment to allow the worker to consider her position, the worker advised that her dispute stood under Section 13 of the Industrial Relations Act 1969.  I proceeded to hear the worker’s dispute under Section 13 of the Industrial Relations Act 1969

Substantive Issue:

It was accepted by the employer that Ms A and Ms B did not appear to fully follow procedure in advance of the first October 2019 PIP meeting with the worker.  It was accepted by the worker that the employer’s PIP procedures appeared to have been followed, thereafter.  The worker did not have any dispute with how Mr C managed her meetings and she accepted that he offered her support.  Mr C and Mr D confirmed that the worker expressed her upset at the management of the meeting in October 2019 and that Mr D apologised to the worker.  It was the understanding of Mr C and Mr D that that was the end of the matter and I also note that Ms A had left the organisation around January 2020.There was nothing in the worker’s letter of resignation that suggested that she was still unhappy with what had happened or that the events from the previous October were the cause of her resignation. 

It is unfortunate that Ms A and Ms B did not fully follow procedures with regard to conducting a PIP meeting but all further meetings appeared to have been conducted appropriately.  I also find it credible that Mr C and Mr D did not know that it was still causing the worker upset and that no grievance was raised nor was it raised through the employer’s bullying and harassment policy. 

Having heard all the submissions, it should be noted that the Workplace Relations Commission should not be the first port of call when a person has disputes under the Industrial Relations Act.   I note in the Labour Court case INT1014 it stated” The Court is not prepared to insert itself into the procedural process in a situation where the dispute resolution procedures have been bypassed.” 

The Worker did not dispute the fact that she was fully aware of internal procedures and that she did not exhaust the internal grievance procedure or raise bullying and harassment prior to the referral of the present dispute to the Workplace Relations Commission.

I am satisfied that it was reasonable for the employer to believe that the issue was resolved and the employer was not afforded any further opportunity to deal with the worker’s allegations prior to her resignation and her letter of resignation did not suggest that there was any dispute and therefore, it was not possible for the Employer to do anything about the said allegations.

In all of the above circumstances I do not find merit in the worker’s dispute and do not find it well founded.

In all of the above circumstances I do not find merit in the worker’s dispute and do not find it well founded.

Industrial relations act, performance improvement plan, grievance procedure, bullying and harassment