Worker

Employer

Anonymised Parties

A Transport Employee

A Transport Company

Representatives

Siptu

 Byrne Wallace LL. P

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 - 00000670

13/09/2022

The complainant’s case is that the respondent ‘over-reached’ in terms of the sanctions imposed upon him and has refused to engage with attempts to resolve this issue at local level.

                                                                                                                                                                                                                                 The complainant started working for the respondent in December 2005 as a customer service officer. In 2009 his designation was changed to that of a revenue protection officer

His duties for the respondent involves the monitoring of passenger tickets and issuing fines to those travelling without a valid ticket. He works a staggered shift pattern, thirty-eight hours a week.

Prior to 2021, he had a sterling employment record, and in mid-2021, the complainant was informed by management, to his surprise that he had not been reaching his daily target.

Following this he was requested to attend a formal investigation and a subsequent disciplinary meeting. Despite his protests about the validity of the existence of any such agreements being a part of any collective agreements, he participated.

Following this formal disciplinary process, SIPTU wrote to the respondent on November 23rd, 2021, protesting that these actions were not governed by any collective agreement and asking it not to pursue any further disciplinary action.

On November 25th, 2021, he was given with a six-months oral (written) warning.

The following day the employer sent a letter to the complainant stating"... changes to roles have been agreed collectively with SIPTU over the years ... "

On April 12th, 2022, there was another formal investigatory process. The respondent wrote:

"Further to a Verbal Warning (Formal) issued to you on November 25th, 2021, for a period of 6 months in relation to the performance of your Revenue Protection duties, I am writing to inform you that your performance to date has failed to achieve the required improvements and continues to fall below the minimum business requirement of 0.7 Standard Fares Notices issued per hour worked. Since November you continue to remain below the minimum Business Requirement of 0.7 SFNs per hours worked".

Following the investigation meeting, the complainant was referred to a formal disciplinary hearing in a letter dated April 29th, 2022.

On May 23rd, 2022, he was issued a nine-month written warning which came into effect on the date of the letter and put on notice of further action if his performance did not improve.

His appeal was unsuccessful.

The union says that these such actions contravene and undermine the spirit of industrial relations and collective bargaining and there is no agreement covering this type of performance management.

The doctrine of implied mutuality of trust and confidence is well grounded in the Supreme Court case of Berber v Dunne’s Stores Limited [200] IESC 10. In that case the court held that:

There is implied in a contract of employment that a mutual obligation that the employer/employee will not without reasonable and proper cause conduct themselves in a manner likely to destroyor seriously damage the relationship of confidence and trust between them" ...

The respondent has erred in both law and process by imposing an adverse sanction on the complainant despite there being no applicable agreement and the Union is seeking a recommendation that it has veered outside the scope of existing agreement.

The respondent says it has a duty to monitor the performance of its employees and it does not require agreement with the trade union to do so. The company is subject to oversight by an external regulator and therefore it is obliged to ensure that customers using its services are paying their fares and that this is enforced.

(The respondent made detailed submissions on its efforts to address performance and conduct prior to and after 2021, which it is not necessary to reproduce in this summary, but which have been fully considered in reaching the conclusions below).

The introduction of handheld scanning devices made it possible to establish the productivity of each of its employees undertaking this work, and in particular the number of penalties issued by each person.

This is best expressed as the number issued per hour in order to provide comparative evaluation of how each employee performed. The company does not have a target, but it does keep track of the variance between those who issue a relatively higher number of penalties and others.

(Again, detailed factual submissions were made in respect of the complainant’s performance.)

Even prior to 2021 there were persistent issues in respect of the complainant’s performance. These are recorded in a continuous assessment and training system which is used to provide assessment and support to employees every three months.

In April 2019 the complainant undertook to improve his timekeeping performance and his use of a tool to monitor compliance.

In July 2019 his manager had to speak to him again about timekeeping and performance and in October of that year the complainant gave another undertaking to improve on the same issues as above.

In May 2020 he underwent refresher training due to the low number of penalties which he was a shilling which was well below the average expected. In June 2020 another manager had to speak to the complainant about his performance and timekeeping and again he gave an undertaking to improve.

There was a further Incident of this in August and in September the complainant received one-to-one customer agent training. However yet again on October 6, 2020, per timekeeping had to be brought to the complainant’s attention.

Eventually on October 27th, 2021, the complainant was advised of a formal investigation in respect of this performance.  He attended a meeting on November 2nd accompanied by a trade union representative and the outcome was that he was found to have a case to answer.

The matter proceeded to a disciplinary hearing. In due course he was given a verbal warning to remain in force for six months and was put on a performance improvement plan.

The complainant contests of the companies right to apply this oversight to his performance and he was written to in November confirming that this was a proper part of the respondent’s obligations.

However, his performance did not improve and there was a second investigation outcome which was that a written warning would be placed on his file for nine months from that date. He appealed but the sanction was upheld.

Throughout the processes described in detail in the submission (and summarised here) the complainant and his union have adopted the position that management is not permitted to use any measure of performance that has not been agreed with the union.

It argued that the minimum performance threshold for assessing the complainant was not agreed by the union and therefore should not be used as a threshold for informal performance improvement action and for disciplinary action.

However, the company does and will never accept the union’s position in this regard as it is the prerogative of management to manage its employees and this extends to making reasonable decisions about what level of performance is acceptable from them.

The threshold of this particular case was at the lower end of what an average employee was achieving at that time. The complainant was one of a number of employees whose performance was not meeting expectations, and this was addressed in a reasonable manner using informal discussions and where necessary training. In most cases this led to an improvement but in the case of the complainant did not improve despite all the training and support which was given.

He was properly the subject of disciplinary action in respect of this poor performance. 

In any event the disciplinary action which was imposed has now expired.

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

There are two elements to the complaint. The first is that the respondent ‘over-reached’ in terms of the sanctions imposed upon him and has refused to engage with attempts to resolve this issue at the local level.

This must be taken to refer to the severity of the sanctions imposed on the complainant.

The second element is that the complainant, and specifically his union asserts that the respondent’s performance management is required to be authorised by being in a collective agreement.

Turning to the first of these, in his submission the actual words used about the complainant’s record are as follows.

‘Prior to 2021, the Complainant has had a sterling employment record, with no record of any adverse findings recorded on his employment file.’

If not entirely untrue, this is somewhat misleading. For space reasons I have summarised the respondent’s detailed submission but there are eight occasions referred to prior to 2021 where there had been interactions between the complainant and his management about his inadequate performance.

There may not have been formal adverse findings on his employment file but describing this pattern of poor performance as ‘a sterling employment record’ is to be somewhat economical with the facts.

In light of his continuing poor performance and following conversations with his manager in August 2021 he was eventually the subject of disciplinary proceedings.

I can detect no element of ‘overreach’ in the application of a first level warning to the complainant; indeed, it seems generous in the circumstances.

His performance did not improve and in March 2022 the disciplinary process was triggered again. On this occasion the sanction applied was a first written warning, which was upheld on appeal.

The complainant has raised no procedural issue about the conduct of these processes and indeed there is no evidence but that they were conducted to a high level of procedural fairness.

Here again I detect no evidence of overreach and I can only express a degree of surprise that a trade union, fully aware of the facts of the matter would make such an assertion.

The suggestion that performance management is required to be the subject of a collective agreement is the other element of the complaint.

Modern trade unions have extended their remit in many ways that are both beneficial to their own members and make a contribution to productivity and competitiveness in the companies in which they operate.

If the trade union in this case wishes to do so, it is quite at liberty to open up negotiations on general principles governing how the company’s performance management system might look in the future.

This could be of benefit to both sides.

However, it is quite a different argument that, absent such agreement, a company may not apply performance management tools in achieving its business goals. Indeed, as a general proposition, it is a suggestion entirely devoid of merit, to put it no more strongly.

Workers, through their trade unions have well established vehicles for contesting individual performance management outcomes, as happened in this case, and indeed this may be the best way for a trade union to provide independent representation in protecting its members against arbitrary or unfair action.

And indeed, it did so in this case, although faced with the overwhelming evidence of the complainant’s underperformance it is not a surprise that it was unable to overturn the rather moderate sanctions which were applied.

The claim has no merit and does not succeed.

Fair Procedure, performance management