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ADJ-00006767

 

 

 

ADJUDICATION OFFICER DECISION

 

Adjudication Reference: ADJ-00006767

 

 

Complainant

Respondent

Anonymised Parties

A Procurement Officer

A Pharmaceutical Manufacturer

 

Representatives

Judy McNamara IBEC

 

Complaint(s):

          

  

Act

  

Complaint/Dispute Reference No.

Date of Receipt

Complaint    seeking adjudication by the Workplace Relations Commission under Section 8    of the Unfair Dismissals Act, 1977

   

CA-00009297-001

  

24/01/2017

Complaint    seeking adjudication by the Workplace Relations Commission under Section 28    of the Safety, Health & Welfare at Work Act, 2005

   

CA-00009297-002

  

24/01/2017

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

   

CA-00009297-003

  

24/01/2017

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

   

CA-00009297-004

  

24/01/2017

 

Date of Adjudication Hearing: 08/09/2017

Workplace Relations Commission Adjudication Officer: Roger McGrath

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015, Section 8 of the Unfair Dismissals Acts, 1977 - 2015, and Section 13 of the Industrial Relations Acts 1969 following the referral of the complaints and disputes to me by the Director General, I inquired into the complaints and disputes and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints and disputes.

 

Preliminary Issue:

The Complainant withdrew his complaints under the IR Act, i.e. CA-00009297-003 and 004 at the outset of the hearing.

 

Background:

The Complainant commenced   employment with the Respondent on 5th October 1998 in the capacity   of Operator in the Respondent's Chemical Plant, transferring to the   Pharmaceutical plant in 2001, when his title changed to Engineering Stores   Person, and ultimately in 2008 to the position of Maintenance Procurement   Coordinator, with key responsibilities being stock control and purchasing of   maintenance spare parts, maintaining the computerised stock control system   etc.

The Complainant was dismissed on 15th   August 2016. His gross fortnightly   rate of pay at the date of dismissal was €1,561 and he worked 39 hours per   week. A complaint was received by the   WRC on 24th January 2017.   He was paid his notice payment and took up employment elsewhere during   the notice period on slightly better terms, on a one year fixed term contract   basis. The preferred redress of both   parties was compensation.

 

 

CA-00009297-001 Complaint under the Unfair Dismissals Act, 1977.

Summary of Respondent’s Case:

The Respondent presented a detailed   written submission.

 

The Respondent denies that the   Complainant was unfairly dismissed.   The Respondent contends that the dismissal was fair and warranted in   the circumstances, having conducted its disciplinary processes in a fair and   transparent manner, in accordance with the rules of natural justice. The Respondent submits that the Complainant   was dismissed following fair and thorough investigation and disciplinary   processes, arising out of performance issues over a protracted period, ultimately   resulting in termination of the Complainant's employment.

 

The Respondent submitted a   time-line of events. In summary, a new   system of Yearly Development Review (YDR) was introduced in October   2013. All was well with the first   review in November 2013 with the Complainant getting a "Met   Expectations" rating.   A mid-year   review in March 2014 no issues were raised by the Complainant's line   manager. However, the Complainant,   according to the Respondent, was unhappy with the pay increase given to him   in April 2014. The Complainant did not   raise a formal grievance in relation to this increase. The Respondent   believes that this unhappiness was the catalyst for the subsequent events.

 

The Complainant's line manager was   unhappy with the Complainant's performance for 2013-2014 and following an   investigation/disciplinary hearing in February 2015 the line manager issued   the Complainant with a Formal Written Warning. This warning was appealed by the   Complainant but the appeal failed.

 

In April 2015 the Complainant and   line manager met and agreed objectives for the year 2014-2015. The following month the Complainant was   advised that he would not be getting a pay increase. Several performance meetings took place   between the line manager and Complainant in the period May to September   2015. In November, the line manager   decided that the Complainant had not achieved his objectives and that the   disciplinary procedures would be invoked.   An investigation was carried out by another manager and a   recommendation made that the disciplinary Procedure be invoked. A Disciplinary hearing took place on 12   January 2016 by a third manager and the outcome was that the Complainant be   issued with a Final Written Waring of 12 months’ duration. The Complainant   did not appeal this decision.

 

The Respondent submitted that   between February and May 2016 there were 11 interim meetings between the   Complainant and his line manager regarding his performance, however the   Respondent did not believe that the Complainant was not achieving the   performance expectations set for him.   His line manager recommended that a formal investigation be   undertaken. Around the same time there was an issue regarding a Kardex   machine which the Respondent alleges the Complainant failed to carry out a   legitimate instruction from his line manager.

 

These two issues were sent forward   for investigation by the Engineering Manager.   The investigation outcome was that the matter should proceed to a   disciplinary hearing. This hearing   took place on 29th July 2016 and was conducted by the Quality   Manager. Following the disciplinary hearing the decision was taken to dismiss   the Complainant on 15th August 216. The decision to dismiss was   based on both the performance issues and the failure to carry out the   instructions of the Complainant's manager.

 

The Respondent submitted that   throughout the process appropriate training was offered to the Complainant   but that he declined to take up the offers.   According to the Respondent the objectives set were both necessary and   achievable. The Respondent also put forward that the Complainant was of the   view that he just needed to turn up at work and that he would address his   objectives in his own way.

 

In oral evidence the Complainant's   line manager stated that he believed that his 15-year relationship with the   Complainant, which had been good up to April 2014 when the Complainant was   upset by the amount of his pay increase.     The line manager stated that the Complainant had agreed that he had   not reached the required performance levels.     He stated that the Complainant had turned down offers of IT training   on three occasions.

 

In closing the Respondent stated   that the Complainant was dismissed because of performance issues and   categorically denied that it was he was dismissed to save money.

 

 

 

Summary of Respondent’s Case:

The Complainant believes he was   unfairly dismissed after giving long years of dedicated service.

 

The Complainant submitted that he   had a good career with the Respondent Company until December 2014 when he   believes he was the victim of a concerted effort to force him out of the   company by his line manager.  The   Complainant contend that a disagreement arose between himself and his line   manger on foot of his pay Review in May 2014.   The Complainant was astonished with the   contrast between the comments made by his line manger on his performance up   to this time, which were always good, and the negative comments made   thereafter. Other issues such as   getting annual leave also became problematic.

 

At the YDR meeting in December 2014   the Complainant felt he was not treated fairly, even though he did agree he   did not address his objectives as well as he could have, he submitted that   his line manager did not consider the demands of the work.

 

The Complainant does not believe   the Disciplinary Hearing which took place on 26th February 2015   was fair or impartial as his line manager was the, "complainant, judge,   jury and executioner" and that the principle of "nemo judex in   causa sua" was breached. The   Complainant also believes that the appeal process was also flawed as it did   not take this alleged procedural breach into account.

 

The Complainant submitted that he   was called to a Disciplinary Hearing on 12th January 2016   following which he was issued with a Final Written Waring. Regarding the   Final Written Warning the Complainant submitted that the letter issued to him   did not explain the rationale for the warning.

 

The Complainant submits that   another issue arose regarding a Kardex machine and this was subject to   investigation along with further allegations of failure to meet objectives.   The outcome of the investigation and subsequent Disciplinary Hearing was that   the Complainant was dismissed.

 

The Complainant believes that the   whole disciplinary process was flawed from the start and that the Respondent   Company breached their duty to maintain the trust and confidence of the   Complainant.   The Complainant submits   that his line manager had a vendetta against him. He also submitted that the Respondent did   not consider moving him elsewhere within the plant.

 

In closing the Complainant stated   that the reason he was dismissed was because the Respondent Company had a   cost saving mandate and to save money they decided to dismiss him rather than   make him redundant.

 

 

 

Findings and Conclusions:

       
   

I have considered the matter     carefully.

   

 

   

 In this case, the     Respondent has claimed that it implemented a fair dismissal on the grounds     of competency. The Complainant submitted that his dismissal was unfair and     came as a direct result of the Respondent wishing to reduce employee     numbers, influenced by the commercial interests of the company.

   

 

   

The Unfair Dismissals (Amendment)     Act 1993 provides that I am required to consider the “reasonableness… of     the conduct of the employer (whether by act or omission)… in relation to     the dismissal”.

   

 

   

Section 6 of the Unfair     Dismissals Act 1977 sets out the onus of proof is on the Respondent and     that all dismissals are deemed unfair unless there are substantial grounds     justifying the dismissal.

   

 

   

 

   

To decide on the issue of     reasonableness, I must look at all the circumstances of the case.

   

 

   

In relation to performance I am     satisfied that the Complainant was informed of the performance issues his     employer had with him, what was expected of him, the terms of his YDR and     the consequences of not achieving his objectives.

   

 

   

As matters progressed I am     satisfied that the Complainant was afforded the opportunity to respond to     and explain why his performance was inadequate. However, these responses     were not, in the eyes of the Respondent, nearly adequate. The Complainant's performance did not     improve as necessary.

   

 

   

I am satisfied the Complainant     was provided with ongoing mentoring and support throughout the period. Among other things he was offered IT     training, which could have addressed a central performance issue, on several     occasions but turned down the offers when they were made.

   

  

   

The Respondent’s Performance     Procedures were clear and detailed and were available at all times to the     Complainant.

   

 

   

Taking all the evidence adduced I     am satisfied that the Respondent genuinely held the view that the     Complainant's failure to improve his level of performance was such that     disciplinary procedures had to be invoked.     As no discernible improvement was evident the inevitable progress     along the disciplinary route was unavoidable.

   

 

   

Section 6(4) of the Unfair     Dismissals Act states:

   

 

   

"Without prejudice to the generality of subsection     (1) of this section, the dismissal of an employee shall be deemed, for the     purposes of this Act, not to 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 the work of the kind which he was employed by the     employer to do…"

   

 

   

I find that the Complainant     failed to carry out the work he was employed to do despite efforts by the     Respondent to assist him over the period in question.

   

 

   

The Complainant put forward that     the Respondent erred procedurally in that the first warning issued to him,     a formal written warning, breached the principle of "nemo judex in     causa sua", that is, that no one should be a judge in their own case. In     this instant, the Complainant is correct when asserting that his line     manager brought the charge against him, investigated the matter and issued     a warning. However, the Company Disciplinary     Procedures allow a Departmental Manager to issue warnings up to Written     Warnings. This Written Warning was     also subject to an appeal, heard by another manager, and the decision was     upheld. It should be noted that the     investigations and disciplinary proceedings that took place after the     issuing of the Written Warning were carried out by managers other than the     Complainant's line manager.

   

 

   

Although preferable that the person     carrying out the investigation, disciplinary and appeal hearings should not     be the same this is not always practical.     It is not unusual in the workplace to find that an immediate manager     has authority to administer low level warnings to his or her     subordinates. I do not this facet of     the dismissal renders the procedures, and therefore the dismissal, unfair.

   

 

   

Regarding the Complainant's     allegation that his dismissal was due to a desire of the Respondent to     reduce costs by reducing headcount without paying redundancy, no evidence     whatsoever was adduced to support this claim.

   

 

   

There is however, one element of     the Respondent's procedure which I do find to be less than satisfactory,     namely the amalgamating of two issues into one Disciplinary Hearing/Decision. When deciding on the fate of the Complainant     the decision maker had to contend with two issues, firstly the allegation     of underperformance and secondly the allegation that the Complainant had     failed to carry out the legitimate instruction of his manager (categorised     as Misconduct in the Company Disciplinary Procedures) in relation to the     matter of the Kardex machine.

   

 

   

In the letter of dismissal, the     Quality Manager, who made the decision to dismiss the Complainant wrote,     "The repeated nature of these     performance issues and your breach of the disciplinary policy cannot be     accepted. I have found that you were in breach of the clear management     instructions given by your Manager and that you failed to meet the     performance expectations of your Manager."   The author goes on, "regrettably, in view of the damage to the Company's trust and     confidence in you as a result of your repeated and continuing infractions,     I consider dismissal (following a thorough investigation and disciplinary     process) is the only appropriate sanction in the circumstances."

   

 

   

 In my view the performance     issue and the alleged refusal to carry out a legitimate instruction became     fused into one when the decision to dismiss was made. I do not believe this should have     happened. The two issues were     serious enough to merit being dealt with separately. Because they were dealt with together it     is impossible to know which issue lead to the dismissal. Merging two breaches of discipline to     reach a decision to dismiss undermines the fairness of the procedures. It is well established that procedural     defects make an otherwise fair dismissal automatically unfair.   Because of this I find the dismissal to     be unfair.

   

 

   

 

 

 

 

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.

I have decided that the complaint is upheld. Considering the remedies available under section 7 of the Act I determine that the most appropriate remedy, having regard to all the circumstances in this case, lies in compensation. As the Complainant sustained no financial loss (he was employed on equal pay during his notice payment), the maximum award I can make is four weeks' remuneration.

 

CA-00009297-002 Complaint under the Health, Safety and welfare at Work Act, 2005

Summary of Complainant's Case

The Complainant submitted that he was ordered to carry out an unsafe act to get a Kardex machine back and running. The Complainant alleges that when told to carry out a particular action he told his line manager that this action required a visit by a supplier technician as it would be a breach of safety regulations for him to carry it out. He also informed his line manager that it would be a breach of the company's contract agreement to try and carry out such a repair without first informing the supplier. When his line manager asked him to go and see what he could do the Complainant told him that it would be unproductive for him to walk 15 minutes only to confirm what he had already been told by the maintenance supervisor. The Complainant stated that he heard nothing more about this until he heard that he would be facing disciplinary action on foot of the interaction.

 

The Complainant believes that his disclosure to his employer that by engaging in the action requested of him could lead to a breach of health and safety procedures resulted in him being penalised by the Respondent. It is his belief that the behaviour and concerted efforts of his manager and his employer as outlined amount to a breach of the Health and safety Authority's Code of Conduct for Employers and Employees and a breach of Section 8 (2)(b) of the Safety, Health and Welfare at Work Act 2005. He submits that his employer facilitated and allowed his manager to engage in improper conduct and behaviour which put his safety, health and welfare at work in risk.

 

In cross examination, the Complainant agreed that he was normally the person people went to if there was a fault with the machine. When asked if had raised a Health and Safety issue at the time he replied that he may have and that he thought he told his line manager.

Summary of Respondent's Case

 

The Respondent denies that penalisation occurred. The Respondent's version of events was that when a fault was reported the Complainant's manager asked the Complainant to have a look at the machine and see if there was anything he could do. The manager did not ask the Complainant to do anything which breached health and safety protocols. It was the Respondent's view that the Complainant was not bothered to walk to the machine to assess the situation.

 

In oral evidence the line manger stated that at no time during the brief discussion on the Kardex machine did the Complainant raise a Health and Safety concern. The line manager stated that the matter had nothing to do with Health and Safety but was a case that the Complainant did not want to help resolve the problem.

 

The Respondent also submitted that the Complainant did not make any complaints about bullying or harassment on foot of raising a health and safety matter. The respondent was not aware of any such issues until the receipt of the complaint from the WRC. It is the Respondent's view that as no complaint was raised there cannot therefore be a causal link between the protected act (grievance complaint) and the Complainant's dismissal from employment (the alleged penalisation).

 

Findings and Conclusions

 

From the evidence adduced I do not believe there is sufficient evidence to support the complaint. I do not believe that any Health and Safety grievance was raised and as such no penalisation could have taken place.

 

Decision

 

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

The complaint is not upheld.

 

 

 

Dated:   20th November 2017

Workplace Relations Commission Adjudication Officer: Roger McGrath

Key Words:

Performance, competency, dismissal, no financial loss