SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969
IBM IRELAND PRODUCT DISTRIBUTION LIMITED
- AND -
Chairman: Ms Jenkinson
Employer Member: Mr Murphy
Worker Member: Mr McCarthy
1. A claim of unfair treatment.
2. This case concerns a claim by a former employee of the Company that while working he was subject to unfair treatment, discrimination and harassment.
- The Claimant said he was subject to a Performance Improvement Plan (PIP) in 2011 which was unprofessional and stressful and when he complained about this he was moved to another area.
- The Employer said the PIP process was closed in early 2012 as successful and at no point did the Claimant raise any issue of bullying or seek to invoke any of the Employers internal procedures.
On the 18th October 2016 the Claimant referred the dispute to the Labour Court in accordance with Section 20(1) of the Industrial Relations Act, 1969 and agreed to be bound by the Court's Recommendation.
A Labour Court hearing took place on the 13th January 2016.
3. 1. He was treated unfairly during the PIP process.
2. All the documents relating to that process should be released to him.
3. He was unfairly moved due to his complaints both directly to his Manager and about him and regarding the PIP process.
4. 1. At no point did the Claimant raise any issue of bullying or seek to invoke any of the Employer's internal procedures.
2. Under Data Protection legislation, the Employer does not retain documents once they are no longer relevant. The PIP process was closed as successful.
3. The Employer has bullying and harassment procedures which allow a claimant to bypass their Line Manager and an “Open Door Policy” and which allows for two appeals.
The matter before the Court was brought under Section 20(1) of the Industrial Relations Act 1969 and concerns a number of claims by a former employee of the Company.
In submitting his claim the Claimant has in accordance with Section 20(1) of the Act undertaken to accept the Recommendation of the Court.
The Claimant was initially employed by the Company in Denmark in 2008 and was employed until 24thOctober 2014 when he left to take up alternative employment. In 2010 he was transferred to the company’s Irish base as an Inside Seller. During the summer of 2011 the Claimant was placed on the Company’s Performance Improvement Plan (PIP) for a period of 13 weeks. Within ten weeks he successfully passed the performance improvement assessment and achieved substantial sales targets. Subsequently, he was transferred to a different team. The Claimant was not satisfied with the conduct of the PIP meetings and sought the minutes of the meetings. Furthermore, he was not pleased with being transferred to another team and contended that it was as a result of his expression of dissatisfaction directly to his Manager about him and with the conduct of the PIP meetings.
The Claimant raised a number of additional complaints relating to allegations of harassment, discrimination and not being paid his appropriate remuneration on leaving the Company in October 2014.
In or around November 2011 the Claimant reported his concerns regarding the PIP meetings to HR. He received a response to the matters raised on 15thNovember 2011 at which point he was given advice on the course of action he could take and was offered levels of support to overcome the difficulties he was experiencing. The Claimant did not pursue the options given to him.
At another stage the Claimant referred his concerns regarding his alleged treatment of him as a Dane and was given the appropriate complaint form to complete. He decided not to pursue the complaint due to his lack of specific details.
The Company denied the allegations made and in any event stated that the Claimant did not submit any grievances through its “Open Door Policy” designed to deal with employee grievances including allegations of bullying/harassment and/or discrimination. This policy provides an avenue for such complaints to be made and provides two opportunities to appeal in the event that a complainant is not satisfied with the initial outcomes. Moreover, the Company stated that on the one occasion when the Claimant did make a complaint he failed to follow up on the options open to him to resolve his difficulties.
The Company stated that personnel documents are not held indefinitely on file and that in the case of the PIP meetings such documentation is purged after 18 months. Therefore, such information is no longer available to give to the Claimant.
On the issue of incorrect remuneration being paid to the Claimant on the cessor of his employment, the Company stated that he was not paid his commission payment for October in 2104. The reason for this was due to the Company’s policy that when employees are leaving they must have worked until the end of the month to be entitled to commission for that month. As the Claimant left on the 24thof the month, he was not entitled to commission for that month.
Having considered the oral and written submissions of both parties, the Court notes that the matters raised by the Claimant related to grievances he claimed occurred as far back as 2011 and in some instances up to the date he voluntarily left the Company in October 2014. The Claimant freely accepts that other than the complaint made in November 2011 to HR which he did not follow up on he made no complaints regarding the various matters now before the Court nor did he pursue any grievances through the Company’s “Open Door Policy” and when invited to do so on one occasion, when he was given the opportunity to complete a complaint form, he opted not to follow through with his complaint.
The Court notes that the Claimant did not seek to invoke claims under the various employment rights statutes nor to seek professional advice on such possibilities. His claim was submitted under the Industrial Relations Acts in October 2016, two years after he left the employment.
In all the circumstances of this case and taking account of the fact that the Claimant did not pursue or exhaust the various options open to him and due to the length of time since the alleged contraventions complained of, the Court cannot find in favour of the Claimant's claims and accordingly makes no recommendation on the matters before the Court.
The Court so Recommends.
Signed on behalf of the Labour Court
19th January, 2013Deputy Chairman
Enquiries concerning this Recommendation should be addressed to Ciaran Roche, Court Secretary.