Worker

Employer

Anonymised Parties

An Administrative Worker

A State Agency

Representatives

Anne Flynn SIPTU

 Self-represented (Internal HR)

Act

Dispute Reference No.

Date of Receipt

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

IR - SC - 00000274

17/05/2022

In attendance at the hearing were:

For the Worker:

·        The Worker

·        Anne Flynn, SIPTU representative.

For the Employer:

·         Project Manager

·        HR Team Lead

The Worker, a former employee of a State agency, is seeking all retrospective monies outstanding pertaining to the relevant period - March 26th 2019 to June 7th 2022 - in respect of annual increments not awarded to her, following an initial deferral of her annual increment for a three month period on foot of an “unsatisfactory” rating on her PMDS (Performance Management and Development System). The Worker further submits that the manner in which the Employer handled this was very distressing to her, and caused significant stress, as well as financial and emotional impact; and that she utilised the Employer’s internal procedures and exhausted them – she lodged a grievance on the basis that she believed the ongoing deferral of the increment to be disproportionate and unfair. Her grievance was not upheld and she appealed each stage of the process, exhausting all internal remedies available to her. She ultimately resigned her position in 2022.

The Employer denies the Worker’s claims and submits that the Worker’s performance was unsatisfactory, which is why the Worker’s increment was initially deferred for a period of three months. It submits that it behaved reasonably and fairly, and that the Employer partnered with the Worker to identify her training needs, and to offer her all possible supports to bring her performance up to a “satisfactory” rating. It submits that several long periods of sick leave by the Worker occurred in the following period undercutting a period of three months’ continuous work during which the Worker’s work could be assessed and managed; and that when the Worker lodged a grievance under the Employer’s grievance procedure, the Employer applied its policy, at each stage – stages 1 through 4. On each occasion, the Worker’s grievance was not upheld.

Written submissions were made on the Worker’s behalf, by her union representative, and outlined at the hearing. The Worker also spoke on her own behalf, at the end of the hearing, at her own request.

The Worker is seeking the retrospective payment of all outstanding monies accrued because of non-payment of her annual increment from March 2019 to June 27th, 2022, by what she submits was a unilateral decision to defer payment of her annual increment, by the Employer.

The Worker submits that she worked for the Employer since January 6th, 2014, and received her increment every year until 2019 when an issue arose following her return from sick leave in October 2018.

On March 26th, 2019, the Worker’s submits that her then line manager came to her desk following an annual review meeting of Performance Management and Development System (PMDS) and advised that the Worker’s increment was being deferred for three (3) months.

The Worker submits that the deferral of the increment was not discussed or mentioned during the meeting and at no point was the Worker informed that her performance was not satisfactory.

Background

The Worker submits that she worked for the Employer from 2014 until her return from sick leave in 2018, without incident. She submits that following discussion with her then Programme Manager, the Worker transferred to the Communications Department in June 2019. The Worker discussed the matter of her increment with him as she was anxious to start her new role with a clean slate and was advised to take it up with her new line manager – this put the Worker in the position of the issue of her increment being transferred from one area to another.

The Worker spoke to her line manager in October 2019 as the increment was due to be paid at that time. She was advised that as the deferral of her increment related to issues prior to the Worker commencing working in her area, she was unable to address the issue.

In November 2021, the Worker was advised by her line manager that due to annual leave over the Christmas period, her increment was being deferred once more until February 28th, 2020.

While the Worker acknowledges that there may have been issues with elements of her performance, she felt that the further deferral of her increment was disproportionate and unfair.

The Worker submits that as a new member of staff, in the (new) area, she was still learning, and this warranted some consideration. She emphasises that when she had commenced her new role in June 2019, her new line manager was away from the office for the month of August.

The Worker submits that the entire issue resulted in her absence from work due to work-related stress and anxiety. She submits that this was further exacerbated when having exhausted her sick pay entitlement, she was informed that she was not entitled to payment under the income continuance scheme, and that this was a cause of further stress and anxiety and undue financial hardship for the Worker. The Worker submits that, when she was made permanent, no arrangements were put in place for deductions from her salary, with respect to the salary protection scheme. She submits that she had to pay approximately €800 to join the scheme and after many months of trying to sort this out herself with no help from the Employer, she did eventually secure payment from the underwriting insurer.

The Worker submits that she was hospitalised on two occasions in 2020 due to serious medical issues. She submits that on her return, in consultation with her line manager, it was agreed that she would undertake a Performance Improvement Plan (PIP) to include time management, completion of routine tasks and honesty (“be truthful about where tasks are at”).

On January 14th, 2021, following a review of the PIP, the Worker submits that her line manager advised that she was satisfied that all tasks had been completed satisfactorily and within the agreed time-frame. She advised that the “honesty tasks” were also achieved but that she was not satisfied that the “taking ownership of tasks” was achieved – cited in this regard was that upon the Worker’s return from sick leave in September 2020, that she did not contact the Learning and Development Unit (L&D) until October in order to organise a stress management course and that this demonstrated not taking ownership of tasks.

The Worker submits that on January 28th, 2021, the Worker was advised that there was not a consensus of agreement as to the outcome of the PIP and that the Programme Manager wanted to speak to her. The Worker submits that she became very distressed. Subsequently, a Microsoft TEAMS meeting was arranged on January 28th, 2021, and the Worker was informed that she was being referred for “Counselling” under Stage 1 of the Employer’s Disciplinary policy.

On January 31st, 2021, the Worker lodged a grievance under the Grievance and Disciplinary policy for the withholding of her increment.

Under Stage 1 of the Grievance Procedure, the grievance was heard on March 15th, 2021, and a decision was issued on March 22nd, 2001, which was to continue the deferral of the increment, subject to a review after three (3) months assessment of continuous work. The Worker appealed the outcome of the appeal hearing on March 28th, 2021.

Under Stage 2 of the grievance procedure, the appeal was held on June 8th, 2021, and the report issued on June 22nd, 2021, to uphold the original decision.

On September 29th, 2021, the Worker appealed the decision to Stage 3 of the grievance policy. The meeting was held on the October 12th, 2021, and the decision not to uphold the appeal was issued on November 4th, 2021.

The Worker appealed that decision to stage 4 of the grievance procedure on November 11th, 2021, and the meeting was held on January 6th, 2022, with the decision not to uphold the grievance being issued on February 2nd, 2022. This exhausted the internal procedures.

SIPTU referred the case for to the WRC on May 17th, 2022.

The Worker’s case:

The Worker submits that during the time period set out above, the Worker was also subject to the Disciplinary Procedures and Performance Review meetings with the Employer, and that the additional stress and anxiety caused by this took its toll on her health and she was absent on sick leave with work-related stress for extended periods of time.

The first Disciplinary Counselling hearing was held on February 12th, 2021, and a performance review arranged for 25th March 2021. Another review was scheduled for April 22nd, 2021, but the Worker was on certified sick leave from 9th April to 16th May 2021.

A performance review meeting was arranged for June 11th, 2021, and it was stated that meeting would determine if further disciplinary action would be taken. The notes of that performance review were not received by the Worker until September 24th, 2021, but she received an invitation to the Stage 2 Disciplinary meeting on September 16th, 2021.

On September 30th, 2021, the outcome of that meeting was to issue a verbal warning under Stage 2 of the policy.

This was appealed and the appeal hearing was heard on October 12th, 2021, and the outcome being that the appeal was not upheld.

She also advised that the (honesty tasks) were also achieved but was not satisfied that the taking ownership of tasks was achieved. This was in reference to the Worker’s return from sick leave in September 2020, that she did not contact L&D until October to organise a stress management course and that this demonstrated (not taking ownership of tasks). The Worker submits that the Programme Manager wanted to close out the issue but was overruled by the Line Manager on that point notwithstanding that there were no courses available during the pandemic. It was two (2) weeks before the Worker received a response from Learning and Development (L+D)

On January 28th, 2021, the Worker was advised that there was not a consensus of agreement on the outcome of the PIP and that the Programme Manager wanted to speak to her. She became very distressed and requested her Union shop steward to support her. Due to the pandemic, the Worker was working from home at this time.

Following that, a TEAMS meeting was arranged on January 28th, 2021, and the Worker was informed that she was being referred for counselling under Stage 1 of the EPA Disciplinary policy.

On January 31st, 2021, the Worker lodged a grievance under the Grievance and Disciplinary policy in respect of the withholding of her increment.

The first stage of the grievance was heard on March 15th, 2021, and the decision issued on March 22nd, 2021, was to continue the deferral subject to a review after 3 months’ assessment of continuous work.

The Worker appealed that outcome on March 28th, 2021

Stage 2 of the Grievance procedures was held on June 8th, 2021, and the report issued on June 22nd, 2021, to uphold the original decision.

On September 29th, 2021, the Worker appealed the decision to Stage 3 of the policy. The meeting was held on October 12th, 2021, and the decision not to uphold the appeal was issued on November 4th, 2021.

The Worker appealed that decision to Stage 4 of the procedure on November 11th, 2021, and the meeting was held on January 6th, 2022, with the decision not to uphold the grievance being issued on February 2nd, 2022. This exhausted the internal procedures.

The case was referred the case for adjudication to the WRC on the May 17th, 2022.

During the period set out in the points above, the Worker was also subject to the Disciplinary Procedures and Performance Review meetings with the Respondent. The additional stress and anxiety caused by this took its toll on her health and she was absent on sick leave with work related stress for extended periods of time.

The first Disciplinary counselling hearing was held on February 12th, 2021, and a performance review arranged for March 25th, 2021. Another review was scheduled for April 22nd, 2021, but the Worker was on certified sick leave from April 9th, 2021, to May 16th, 2021.

A performance review meeting was arranged for June 1st, 2021, and it was stated that meeting would determine if further disciplinary action would be taken.

The notes of that performance review were not received by the Worker until September 24th, 2021, but she received an invitation to a stage 2 disciplinary meeting on September 16th, 2021, with a date of September 27th, 2021, for the actual hearing.

On September 30th, 2021, the outcome of that meeting was to issue a verbal warning under Stage 2 of the policy.

This was appealed and the appeal hearing was heard on October 12th, 2021, and the outcome being that the appeal was not upheld.

A weekly meeting was being held with the Worker and her line manager from October 2021 until February 2022 and the Worker received no negative feedback in relation to her performance.

On February 22nd, 2022, the Worker attended a performance review meeting the outcome of which would decide whether her increment was to be restored or not. At that meeting, SIPTU expressed concern about the conduct of the two people conducting the meeting and the content of it. SIPTU subsequently wrote to the Director expressing their concerns on February 8th, 2022.

On June 20th, 2022, the Worker received an invitation to a Stage 3 disciplinary meeting to be held on June 24th, 2022. The same people who conducted the performance review complained of in February were to conduct the disciplinary hearing.

The Worker submits that while the initial decision was to monitor the Worker over a continuous period of three (3) months but the stress and anxiety of dealing with the ongoing grievance procedure and the pursuit of the Employer of disciplinary procedures together, impacted so severely on the Worker’s physical and mental health that she was out on certified sick leave for extended periods of time.

In June 2022, the Worker submits that she decided that for her own long-term wellbeing and mindfulness that she could not continue in her employment and gave notice to the Employer, terminating her employment on  July 27th, 2022.

Conclusion:

The Worker submits that the withholding of the increment for 3 years was unreasonable and disproportionate; that at the performance review meeting in March 2019, there was no mention of withholding the increment, but the Worker was informed after the meeting at her desk and it was to be initially deferred for three (3) months. It is submitted that this is a breach of the Employer’s own procedures.

The insistence on focusing on the negative aspect of some of the Worker’s performance led to an unbalanced view of her overall performance. The performance review of February 2022 demonstrates that perfectly when it is stated by [IB]: “On the 11th January 2022, [Team Lead] emailed [the Worker] with specific questions regarding her training since October 2010. [The Worker] interjected first with her own queries and that this is not courteous or demonstrating respect.” This was supposed to have violated Point 2 of Customer & Stakeholder focus “courteous and prompt” and Point 2 of Team Player “Demonstrates respect.”

It is submitted that this review took no cognisance of the Worker’s overall performance of her duties or improvements and training being undertaken. But in their view core competencies were not being met i.e. answering emails promptly or arranging a course after a return to work from sick leave in a timely fashion in the middle of a Covid pandemic; and that not enough consideration was given to the mitigating factors as described. Instead, the Worker was subjected to the disciplinary process and ongoing box ticking exercises during ongoing performance reviews.

The Worker submits that her previous good record and the stress of being involved in grievance and disciplinary procedures were not taken into consideration when deciding to continue withholding her increment; She queries how was she supposed to improve her work performance when she was constantly under pressure to answer and appear at hearings. She further queries how her could be performance measured and evaluated in a fair and equitable way when she had long bouts of absence due to the pressure she was working under.

It is submitted that the financial hardship caused was never taken into consideration or mentioned except by her union. The Worker was on the same pay scale when she left in July 2022 that she was on in March 2019 when the increment was first deferred.

The loss to the Worker up to the time she left her employment is approximately €14,000 and the Worker is seeking a finding in her favour and that all her losses be made good.

The Worker also spoke on her own behalf. She expressed distress and hurt at the events that had transpired and their impact on her life, health and well-being. In particular, she highlighted feelings of distress and upset at how she had been treated and how she believed she had been portrayed.

The Worker commenced employment with the Employer on May 1st, 2014, and worked in the capacity of a Programme Office IV (Level 6) until her resignation on July 27th, 2022.

The Employer’s Pay Policies and Procedures sets out that an increment to the next higher point on the Employer’s salary scale is granted annually to permanent employees of the Employer who have not reached the maximum of their salary scale, subject to the employee’s performance review (PMDS) being completed during the review year (taking account of attendance, performance and commitment). It sets out that in circumstances where service is not satisfactory, the Employer may defer the payment of an increment for a specified period.

The Employer submits that the Worker’s increments were withheld because performance was unsatisfactory. The Employer submits that this was discussed with the Worker at her PMDS 2018 Annual Review meeting. The Employer submits that at all times, the Employer supported the Worker to reach and maintain an acceptable standard of performance.

The Employer submits that it at all times clearly communicated to the Worker its concerns about her performance. It denies the Worker’s claims, as set out in her claim form.

The Employer submits that the Worker raised a grievance in respect of the withholding of her increment. The Employer submits that it dealt with the Worker’s grievance fairly and comprehensively, through its internal policies. It states that the Employer’s HR Policies and Procedures are made available to all staff to view through the Employer’s intranet site.

The grievance the Worker raised was that she did not receive an annual increment since 2019. On February 1st, 2021, the Worker lodged a grievance complaint alleging that the deferral of her increment was disproportionate and unfair.

Stage 1:

In accordance with Stage 1 of the Grievance Policy and Procedure (“the Policy), a grievance meeting was held with the Programme Officer I (Level 3) on March 15th, 2021. The Programme Officer concluded, in her report, that the deferral of the increment was not disproportionate and was justified. A copy of the report was submitted.

Stage 2:

On March 28th, 2021, the Worker lodged a formal complaint under Stage 2 of the Policy appealing the decision of the Stage 1 report. Under Stage 2, the Senior Programme Officer (Level 2) investigated the complaint.

Normally a stage 2 appeal would be heard by the relevant Programme Manager. However, the Programme Manager had retired and had not yet been replaced. The Senior Programme Officer (Level 2) met with the Worker on June 8th, 2021. He issued a decision on June 22nd, 2021. He found that the decision made at stage 1 was supported by evidence and should stand and recommended a review of the Worker’s performance following a 3-month period of continuous work, with this allowing time for the Worker to show sufficient improvement to warrant the payment of an increment. A copy of his decision was submitted by the Employer.

Stage 3:

On September 29th, 2021, the Worker appealed the decision reached at Stage 2, following an agreed extension of the timeline. The Programme Manager of Human Resources & Corporate Governance (“The Programme Manager”) was appointed to investigate the complaint under Stage 3 of the Policy.

The Employer submits that in accordance with the Policy, the Programme Manager reviewed the documentation and met with the Worker on October 12th, 2021. A decision was issued on November 4th, 2021. The Employer submitted a copy of the decision. The Programme Manager did not uphold the appeal.

Stage 4:

The Worker subsequently appealed the decision at Stage 3 to Stage 4 on November 11th, 2021. The Director of the Office of Communications and Corporate Services (“The Director”) was appointed to investigate the appeal. The Director met with the Worker on January 6th, 2022, and discussed the sixteen grounds put forward by the Worker. The Employer submitted a copy of the decision. The Director did not uphold the appeal.

The Employer submits that:

In coming to a decision on the appeal, (GOL) adhered to the policy and had regard to the information provided by the Worker on her historical and current performance, and subsequently verified or otherwise clarified this information.

The Employer has submitted a copy of the outcome of the Stage 4 Grievance meeting, of February 2nd, 2022. It was decided not to uphold the appeal and that the Worker’s increment should continue to be deferred.

The Employer emphasises the following points: The Worker initiated a grievance in January 2021. The grievance was comprehensively dealt with in accordance with the Employer’s Policy and the process and concluded in February 2022, with the publication of a final decision under Stage 4 of the Policy. At all times, the Worker was fully heard, and her complaint was thoroughly investigated by the Employer. The Employer’s policy was adhered to at every stage. The Worker was represented by her Trade Union Representative throughout the process. An independent and impartial person was appointed by the Employer to hear and investigate the Worker’s grievance at each stage of the Policy.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

Paragraph 7 of the Respondent’s policy sets out the following, in relation to increments:

INCREMENTS

a)      An increment is progression to the next higher point on a salary scale. Increments are granted annually to permanent employees who have not reached the maximum of their scales. The employee’s PMDS should be completed during the year, taking account of attendance, performance and commitment. Where service is not satisfactory, the Line Manager should contact Human Resources and payment of the increment may be deferred for a specified period. e.g. three, six, nine or twelve months. On the expiration of the deferral period, the employee’s performance will be reviewed and a decision made on whether the increment may then be paid and whether any retrospection of payment should apply. On renewal of contracts credit may be given for completed years of service and increments on the pay scale may be granted. Any period of leave without pay exceeding 28 days (other than Parental Leave), unpaid sick leave or sick leave at temporary rehabilitation pay does not reckon as service for incremental purposes.

Where incremental dates are deferred for any of the foregoing reasons, the revised incremental date will be calculated by reference to the number of calendar days absent. Staff who are job sharing will receive their annual increment, subject to the conditions set out above.

b)     Payment of Increments

Increments are payable in the month that they are due, subject to the conditions specified in paragraph 7(a).

It seems extraordinary that an increment could be deferred for a period of three years, in particular, in circumstances where a permanent employee who had successfully passed probation, and who each consecutive year for five years had successfully achieved her annual increment. In other words, the Worker’s work had been found to be satisfactory by the Employer for many years. The performance issues did not occur on foot of a promotion.

I accept the Worker’s view that the relationship with her original line manager had completely broken down.

I also accept that the Worker’s assertion that the move to the Communications department from ICT did not represent the fresh start it might otherwise have done, as the prior issue “followed” her to her new role, and that this also created stressful impacts on her.

It is in the Employer’s favour that it worked with the Worker to identify her training needs, and to support her in those, and provided funding and opportunities for same. I note that a great deal of this happened during the Covid pandemic, with its attendant restrictions, which makes things more difficult for both parties; and that for a significant portion of the relevant timeframe the Worker was working from home due to Covid-19 restrictions. The grievance procedure was utilised and fully exhausted once the Worker raised a grievance on January 31st, 2021.

I note that the approach of the Employer with respect to the disciplinary hearings, was challenged by the union, in particular in respect of the failure provide notes in a timely fashion. Additionally, I note that the tone and content of the performance review in February 2022 was challenged in writing by the union, a criticism denied by the Employer; and that the Stage 3 disciplinary meeting was convened by the same people, at the performance review meeting.

Aside from those highlighted issues, it seems to me that two fundamental unfairnesses preceeded that:

1.      The PIP plan, which appears to have had rolling goals and no clear end date, and does not seem to fit exactly within the increments policy – it appears, instead, as if two things were going on simultaneously. One seems to be performance based and linked to increments, and the other seems to be disciplinary based and linked to PIP. There seems to be a muddying of different processes and policies.

I note that the Worker was surprised by the final assessment of her performance, having made genuine efforts in the interim, with a consequence of a further deferral of her increment. There should be no surprises in performance review.

2.      The failure to offer the Worker a fresh start, in terms of her lateral move to the Communications department. Once she moved, her competence should simply have been assessed based on her new role, under her new line manager. The fact that the issue “followed” her in the manner in which it did, is deeply unfair to her.

I find that the Employer has breached its own policies with respect to the management of increments: If an increment is being deferred – and it is not necessarily deferred on foot of a rating of “unsatisfactory”, but it “may” be - it has to be for “a specified period. e.g. three, six, nine or twelve months.” In this instance, the specified period was three months. “On the expiration of the deferral period, the employee’s performance will be reviewed, and a decision made on whether the increment may then be paid and whether any retrospection of payment should apply.” It may have been reasonable to withhold retrospection, in relation to the three-month period, but it is not reasonable for there to be a rolling withholding of an annual increment, in this case, for a period of three years.

I find that the withholding of the increment beyond January 2021 is disproportionate, which is the point in time at which the Worker lodged a grievance having worked with the Employer over the previous twenty-two (22) months, in a bid to resolve the identified issues. That timeframe contained significant periods of sick leave, meaning that in practice the Worker and the Employer were only in a position to partner together to address the identified issues for a much shorter period of time than the headline figure of twenty-two (22) months, i.e. a shorter and more reasonable period.

The purpose of a performance improvement plan (PIP), where one is appropriate, is to support a Worker to achieve the required satisfactory standard, it is not to subject him/her to over-scrutiny, nor to require of him/her a higher standard than would have been required had he/she not been the subject of a PIP. I note that the Worker’s perception is that ‘the goals kept moving.’ PIP plans have to have achievable, measurable, agreed targets and an end date. They cannot contain a rolling set of requirements nor run on endlessly. The criticism of the Worker in relation to her slowness contacting the L&D unit regarding a stress management course strikes me as pernickety in nature (especially in the context of restricted availability of courses due to the circumstances imposed by the Covid-19 pandemic, and in the context of remote working); and could not constitute a legitimate justification for an ongoing deferral of an increment for a period of three years.

Overall, I find that the deferral of an increment for a period three years is not proportionate and is simply excessive. I further note that the PMDS requirement is a requirement of “satisfactory” performance, not exceptional performance, in order to be eligible for an annual increment. I fail to see how a long-standing employee who heretofore had received a rating of “satisfactory” from her Employer each year for a period of several years, in relation to her performance could not have had her performance brought back up to a “satisfactory” rating and confirmed to be satisfactory, in a short period of time, e.g. three months. It is also worth noting that the deferral of an increment is not in and of itself a disciplinary action – it is not a punishment – it is a performance management tool, and it cannot be used by management as a de facto punishment.

The decision to monitor the Worker’s performance over a period of three (3) months is capable of being a proportionate and reasonable approach by the Employer, along with putting in place appropriate training and supports - increments are not guaranteed and are subject to the satisfactory completion of the PMDS. However, in the ordinary course of events, a Worker would reasonably expect to advance up the salary scale each year, as the Worker had done for the first five years of her employment. The rolling withholding of an increment over a period of three years is disproportionate and excessive.

I note that the Worker estimates her losses to be in the order of €14,000.

I also note that during that time, the Worker had extended periods of sick leave and was therefore unavailable for work during those times.

I find in favour of the Worker and I recommend that the Employer pays the Worker €5,000.

Industrial Relations; PMDS; increment;