Employee

Respondent

Anonymised Parties

A warehouse operator

A Supermarket Chain

Representatives

Larkin Tynan Nohilly Solicitors

 Fieldfisher LLP

Act

Complaint/Dispute Reference No.

Date of Receipt

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

01/04/2021

The worker is a warehouse operator for the employer.  He alleges that, following submission of a number of grievances he was penalised by the respondent by way of a disciplinary case being taken against him.  This is the second complaint the Employee has made relating to a purported instance of penalisation for a second time.  With the agreement of both parties all of the complaints were dealt with by me on 30th April 2021.

The Employee has been employed by the employer as a Warehouse Operative since in or around the 10th of August 2009 (12 years) with an unblemished record.  

The Employee made a grievance complaint on the 31st of July 2019 on main points as follows:

(i)            Not getting paid for sick leave despite Contract and prior payments. 

(ii)           Incorrect recording of hours on payslip. 

(iii)          Incorrect recording of holiday days as sickness days. 

(iv)         Incorrect allocation of hours for holiday pay. 

(v)          Allocation as to unpaid absence viz unpaid holidays. 

(vi)         Loss of Opportunity – new position. 

None of these grievance complaints were upheld and, despite giving the appearance that the grievance was investigated, the Company instigated a Disciplinary Process against the Employee on the 30th of October 2019.  There is a significant dispute over the manner in which pick rates are calculated and the lack of transparency as to what is a “good” or “bad” pick rate and / or the lack of appropriate policies in this area.  It would seem it is very much at the discretion of each Manager which can in some instances lead to an abusive process and penalisation. 

 On the 26th of July 2019 the Employee lodged a grievance with his Employer in respect of items named above. Following the lodging of this grievance complaint a Disciplinary Process was instigated against him alleging under performance of duties.

The Employee was subjected to a further Disciplinary Process for insubordination on 22nd of July 2020 in relation to refusing to sign a Review Document, the contents of which he fundamentally disagreed with.  The document relates to an admission that the Employee had not achieved his target pick rates when the Employee himself is in darkness over the manner in which these pick rates are calculated and the lack of transparency as to what constitutes a good / bad pick rate.

The Employee alleges that the second disciplinary process instigated against him, with the result that a final warning was issued, was as a result of him questioning his initial grievance complaint and the filing of a further complaint with the W.R.C.

The Employee alleges that a disciplinary process was instigated against him in response to him raising a grievance complaint. 

 The Employee also alleges that there is no policy in place in relation to what the average team pick rate is and what are considered by management to be good or bad pick rates. The Employee is incorrect in his assertions. The pick rate target for warehouse operatives in the area that the Employee works in is 230 cases per hour. It has been the target for years and it has not changed. The Employee himself is aware of the target and has acknowledged it in his engagement with his line manager. 

 In order to achieve fairness and to take account of any issues that might impact upon the pick rate being achieved, warehouse operatives are measured against the average performance across the team. Against this metric, the Employee was, and remains, one of the poorest performers in the warehouse. 

 In an effort to assist those members of staff who are not achieving the team average, line managers will engage with those staff and as a bridging mechanism to assist in performance management will assign a target of achieving the team average pick rate. In most cases, this is successful. The Employee simply resisted any attempts to engage with him in relation to his performance. The Employee’s line managers made consistent efforts to engage with him. He resisted that engagement at every turn. 

The Employee alleges that he was subjected to a disciplinary process in response to him having raised a grievance. That is denied. The Employee instigated a grievance in relation to certain matters, as he was entitled to do. That grievance was investigated in accordance with the company's well-defined procedures. The outcome was not to the Employee’s liking. He was afforded the opportunity to appeal that outcome to a member of management who was not involved in the original process. Despite submitting his appeal five weeks after the deadline to do so had expired and despite failing to attend two scheduled appeal hearings, the Employee was afforded a further opportunity to ventilate his grievance. The appeal panel carefully considered but did not uphold the substance of his complaints. 

 Separately, the Employee was investigated for consistently poor performance over a defined period of time. The Employee was one of a number whose performance was reviewed around this time. Having undertaken an investigation in accordance with the company's well-defined procedures, it was determined that the Employee had a case to answer and he was invited to a disciplinary hearing. He was provided with all of the material to be considered in advance of the hearing. He was advised of his entitlement to be accompanied by a colleague and assisted by a translator, if he desired. He was advised that disciplinary action could follow up to and including dismissal. 

 At the disciplinary hearing, the Employee was afforded a full opportunity to make any points in his own defence. The outcome of the disciplinary process was that the Employee received a verbal warning. This is the lowest form of sanction that was available to the decision maker.  As he was entitled to do, the Employee appealed this outcome. Notwithstanding the fact that his appeal was out of time, he was afforded the benefit of an appeal hearing with an independent member of management. The points that he made were considered and that manager concluded that the original sanction was warranted in circumstances where the Employee had failed to engage with his line manager and had refused to accept that his line manager was entitled to set performance targets for him and other operatives. 

 There is absolutely no connection between the submission by the Employee of his grievance and the investigation of the Employee’s consistently poor performance. The Employee was one of a number of operatives investigated around this time. There is no causal connection between the grievance and the investigation. Had the respondent sought to penalise the Employee, it would not have allowed him to progress his grievance appeal over five weeks late and it would not have imposed the lowest form of sanction following the disciplinary process. 

The Employee alleges that he was subject to a further disciplinary process in late 2020 and cites this as a further instance of penalisation as a result of him lodging a grievance complaint and a complaint to the WRC. These claims are denied.  

Arising out of an interaction with his line manager on 22 July 2020, the Employee was investigated for alleged insubordination. The investigation concluded that he had a case to answer and the matter was referred for a disciplinary hearing. The disciplinary panel concluded that the Employee showed a complete disregard for management's efforts to engage with him and improve his demonstrably poor performance. A final written warning was imposed. The Employee was afforded the opportunity to appeal that sanction. He availed of that opportunity. His appeal was not upheld.

 The Employee seeks to link this disciplinary process to a grievance that was filed by him in July 2019. He also seeks to link it to the claims filed by him in the WRC on 21 January 2020, over 14 months previously. There is absolutely no link or causal connection between either him invoking his rights under the company's grievance process or him filing claims before the WRC and the legitimate, proportionate and reasonable attempts by management to engage with the Employee in relation to his underperformance.

Like statutory provisions aimed at preventing penalisation, the Employee must demonstrate a causal link between his lodging a grievance and of penalisation. In this case, there is no such causal link and there was no penalisation. The Employee exercised his legal right to invoke the grievance procedure. He had the benefit of an investigation and hearing into his grievance. He was afforded an appeal of the outcome to an independent manager. The subsequent investigation and disciplinary process into the Employee's performance arose in circumstances where the Employee was demonstrably one of the poorest performers in the warehouse.

The second investigation and disciplinary process arose in circumstances where the Employee consistently resisted efforts to engage in relation to his performance.  The Employee was not penalised for lodging a grievance complaint. He was investigated for his poor performance and his insubordination. 

There are two issues which I am being asked to consider;

Firstly, if the Employee was penalised for submitting a grievance and

Secondly, if the outcome of the disciplinary process was fair.

Penalisation

In cases where an Employee is claiming that he has been penalised for invoking his statutory rights the standard to be applied in determining whether or not the claim is justified is that “but for” the claimant having committed the protected act he or she would not have suffered the detriment. This involves a consideration of the motive or reasons which influenced the decision maker in imposing the penalty complained of. I propose to adopt the same standard in this case.

The second disciplinary process must be considered in the context of the earlier disciplinary process relating to under-performance which resulted in a verbal warning.  The second process had its origins in a performance review again noting the failure of the Employee to reach the desired targets. I note that the records indicating perceived under performance by the Employee had been gathered over a considerable period of time and that there was no real attempt to engage in a process of improvement.  I do not believe the Employee has established a causal connection between lodging the grievances and the disciplinary process and therefor the complaint in relation to penalisation is not well-founded.

Outcome of Disciplinary Process

The subject of the investigation leading to the second disciplinary sanction was contained in the letter of 1 Sept 2020 which referred to  ‘Alleged gross misconduct as per section 10.4 of the Employee Handbook, specifically, insubordination on 22nd July 2020 where you refused to sign your PAR reviews when requested by your Line Manager.’

 I note in the minutes of the Appeal Hearing on 28th September2020 that the Employee queried what would happen if he signed the document, effectively committing to meeting the target, and if he subsequently failed to do so.  The minutes of the hearing would indicate he was not given an answer to this question at that hearing.  Insubordination, is a failure to obey a legitimate instruction.  However, I do not believe the definition is wide enough to encompass an instruction to sign a document attesting to something, or committing to achieve something, that you do not believe or accept as achievable. I note that the employer has since ceased this particular requirement of having to sign the PAR form.  I do not believe the refusal to sign could reasonably be considered insubordination and I find the employee’s complaint in this regard is well-founded. Therefore I recommend that the final written warning given to the Employee be rescinded. 

The complaint in relation to penalisation is not well-founded

The complaint in relation to the outcome of the disciplinary process is well-founded and I recommend that the Final Written Warning be rescinded.

Industrial Relations.  Penalisation and Grievance Procedure.  Outcome of Disciplinary Process