ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00013877

Parties:

Complaint

Date of Adjudication Hearing: 06/09/2018

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Procedure:

In accordance with Section 8 of the Unfair Dismissals Acts, 1977 – 2015 andfollowing the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

BACKGROUND.

The Complainant was employed from 8th June 1998 until the employment was terminated with notice on 10th November 2017. The Complainant was paid €1827.00 gross per fortnight and he worked 37.5 hours a week. The Complainant was provided with a written statement of his Terms and Conditions of Employment, including the Grievance and Disciplinary Procedures of the Company. The Complainant referred a complaint to the Workplace Relations Commission on 6th April 2018 alleging he had been unfairly dismissed.

SUMMARY OF RESPONDENT’S POSITION.

The Complainant commenced employment with the Respondent on 8th June 1998 in the Information Technology Department. His most recent role was that of Application Developer as part of a named Team and he worked as a programmer on a combination of project work, system changes and enhancements. The Respondent operates a performance management process for non-operational employees on a bi-annual basis with an annual performance rating. Those employees underperforming are managed in accordance with their Performance Improvement Policy. This Policy is corrective in nature and the Performance Improvement Plan (PIP) is designed to identify specific areas where an employee has failed to reach the required performance standards and to provide line management support to enable the employee to attain the required standard. Where the performance improves the PIP will close but will reopen if the performance is not sustained. If the requirements of the PIP is not sustained then the matter will proceed to a disciplinary hearing from which a sanction may be issued. The employee will also proceed to the next stage of the PIP.

The Complainant has had performance issues for the years 2012, 2013, 2014, 2015, 2016 and 2017. The Complainant did participate in a PIP in 2014 which did result in improved performance but was not sustained towards the latter end of 2014 and 2015.

In 2015 the Complainant’s Line Manager commenced the Complainant on Stage 1 of the PIP on 2nd June 2015 and the areas of concern were outlined to the Complainant. Management support , regular feedback discussions, and coaching was provided. Following a review it was determined that his work fell far short of the required standards. A written review document was provided to the Complainant and a formal meeting to conclude the PIP was held on 6th August 2015. As he failed to complete the PIP he was invited to attend a Disciplinary Hearing on 17th October 2015 following which he was issued with a first written warning for a period of 12 months with a right of appeal. The Complainant did not appeal. There were recommendations implemented to support the Complainant including a two day training course run by an external provider and a half day eLearning training course.

The Complainant was then progressed to Stage 2 of the PIP on 3rd June 2016 and mentoring was offered to the Complainant. Further review meetings took place on 2nd and 8th September 2016 and again he fell short and a written review document was provided to the Complainant. He was invited to attend Disciplinary Hearing on 17th October 2016 following which he was issued with a Final Written Warning to remain for a period of 12 months. He was progressed to Stage 3 of the PIP on 20th October 2016. This was expected to end in February 2017 but was extended to 7th April 2017 to accommodate the Complainant. At the conclusion of Stage 3 of the PIP and following review it was determined that the stage 3 PIP was not successfully completed by the Complainant and all the PIP documentation was provided to the Complainant on 25th April 2017. A further Disciplinary hearing took place on 25th May 2017 but was rescheduled to 30th June 2017 to accommodate the Complainant’s Union Representative. At this meeting the Complainant’s Union, FORSA requested a halt to the process to enable the Union to engage with the Respondent. It was agreed to pause for 6 weeks. The Disciplinary Hearing did not reconvene until 22nd August 2017. The outcome was to dismiss the Complainant subject to his right of appeal. The decision was appealed and the Appeal Hearing took place on 1st November 2017. The outcome was to uphold the decision to dismiss.

FORSA sought a second appeal to the Director of Employee Relations and the Respondent agreed. This second appeal was heard on 8th February 2018 and the outcome was to uphold the decision to dismiss. In their letter of 19th February 2018 the Respondent also offered funding to the value of €7500.00 to be used by the Complainant for educational/training on proof of receipt from a provider. This remained for a period of 6 months.

The Respondent addressed the applicable law and concluded that the decision to dismiss was a fair and reasonable decision in circumstances of the Complainant’s continued underperformance in his role.

SUMMARY OF COMPLAINANT’S POSITION.

FORSA and the Complainant set out in detail the process in relation to PIP and Disciplinary sanctions as set out by the Respondent above. The Complainant contended that the Respondent did not follow fair procedures and the Complainant was denied his rights under natural justice. In all three PIPs the parametres, rules and timescales were set by his named Manager who also reviewed his progress. FORSA asserted that the Manager was both the accuser and the judge in contravention of the principles of natural justice.

Secondly the Complainant asserted that he was misled as to the nature of the PIPs and was led to believe that the process was to increase his skillset and performance and not to justify his dismissal. While the possibility of dismissal was mentioned he believed this was to get him to engage and apply himself to the PIP’s. He did not realise the PIP process was a sham that was intended to result in his dismissal. They argued that disciplinary sanction should be applied to improve behaviour and performance and not simply to punish.

The Complainant has never accepted the accusation of underperformance. The Complainant asserted that his PIP coincided with the outsourcing of much of the functions of the IT Department and Management wanted to reduce the numbers and that dismissal was more cost effective than investing in employees or indeed offering a voluntary leaving scheme. Instead they took a decision to fraudently claim he was underperforming thus avoiding having to pay redundancy by then dismissing him.

The Complainant informed the Hearing that he had not secured employment since his dismissal and was in receipt of Jobseekers Benefit from the Department of Social Protection which was confirmed by the Department in a letter dated 10th September 2018. The Complainant had been requested to provide evidence of mitigation of loss as required by Section 7(2)(c) the Act but did not do so. The Complainant is seeking compensation.

FINDINGS AND CONCLUSIONS.

On the basis of the evidence at the Hearing I find as follows –

Both Parties confirmed at the Hearing that there had been no redundancies within the IT Department.

Both Parties confirmed that the Complainant did not engage with the Respondent in relation to the offer of assistance of €7500.00 towards education/training.

The Complainant and Respondent also confirmed that in their direct discussions between FORSA and the Respondent alternatives to dismissal were discussed. Both Parties confirmed that there is a Voluntary Leaving Scheme which only is applicable in the context of a post being made redundant and this was not the case with the Complainant.

Both Parties also confirmed that there is a Resource Pool where an employee can be deployed around the Company in circumstances where an employee’s post is redundant. In the current case the Complainant’s role was not redundant therefore he was not eligible for this scheme.

Both Parties also confirmed that alternative posts were advertised within the Company and that the Complainant could have applied for any of these posts. It was confirmed by both Parties that the Complainant did apply for named positions in 2017 but he was not successful.

Both Parties also confirmed that the Performance Improvement Policy in operation at the time of the Complainant’s dismissal came into operation from 16th July 2015 and replaced the previous PIP.

Both Parties confirmed that the Complainant has participated in the PIP since 2014 following performance review issues arising. In accordance with the PIP the Complainant participated in three PIP’s from 2015 to 2017 in accordance with the Policy. Both Parties also confirmed that following each of the PIP’s the Complainant was provided with supports and review meetings through each of the three stages and that in accordance with the PIP Policy the Complainant was issued with a First Written Warning following Stage 1 of the PIP – a Final Written Warning following Stage 2 of the PIP and dismissal after Stage 3 of the PIP.

I find that the Disciplinary process was conducted by the Respondent in accordance with fair procedures and natural justice and in accordance with S,I. 146/2000, Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures)(Declaration) Order, 2000, signed into law by the then Minister //// Ms Mary Harney on 26th May 2000.

Section 6(4) of the Act provides that a dismissal may not 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”.

Therefore, I find that the dismissal of the Complainant was not an unfair dismissal

Decision:

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.

On the basis of the evidence, my findings above and in accordance with Section 8(1)(c) of the Act I declare the complaint of unfair dismissal is not well founded.

Dated:   30th January 2019

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

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