ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00005199
An IT Manager
A 3rd Level College
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969
Date of Adjudication Hearing: 23/05/2017
Workplace Relations Commission Adjudication Officer: Emer O'Shea
In accordance with Section 41 of the Workplace Relations Act, 2015 [ and/or Section 13 of the Industrial Relations Acts 1969] following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Summary of Complainant’s Case:
The claimant has been employed by the college since 2002 and is employed as an IT manager – the ISS Dept. provides IT services for 17,000 students and over 2,200 staff and receives 4,000 calls per year.Cases of service interruption are subject to an internal critical incident service review process. The union asserted that the PMDS is not agreed with the unions and set out an account of the rating system.The claimant is aggrieved with his rating of 2 for 2016 which he regards as manifestly unfair in circumstances where all of his staff scored 3 or 4.The claimant’s 15 min review took place in July 2016 – the 2 rating awarded (does not meet expectations) was grounded on “ a lack of visible effort towards meeting the core objectives” , “ his failure to meet the expectations” of someone at his level and grade and the manager conducting the review did not have “ sufficient visibility “ of what the claimant was working on or “ confidence in his ability to plan his work and deliver it to an appropriate standard”.
The union set out a chronology of the shortcomings in the review process , - the duration of the meeting – it lasted 15 minutes while the procedure states it should last 1-2 hours; the failure to invite the claimant to complete Sections D & E; the failure to issue the claimant with a Performance Improvement Plan until Oct .2016; the failure to engage with the claimant on the PIP;it was submitted that no proper appeal was undertaken and that the reviewer breached the procedures regarding confidentiality in his conduct of the appeal;it was contended that the assertion that the claimant refused to provide written weekly report in format requested by the manager was incorrect , that the reports were only sought some 12 days before the PMDS on the 19th.July and that the claimant had since provided the reports on a weekly basis “ without acknowledgement or demur”;it was contended that the accusation that the claimant absented himself from work was unsupported by evidence and that the accusation itself was in breach of the PMDS procedure as the matter had not previously been raised with the claimant;it was asserted that the claimant was unaware that he required prior permission to provide IT services at an off site location ; it was advanced that the claimant had refuted the allegation that he had commissioned a new suite without authority and clarified that the equipment at issue had been paid for from his own resources.
It was submitted that the explanations offered by the claimant demonstrated that the issues and escalations did not reflect any lack of performance on the claimant’s part .It was submitted that the respondent should be able to produce evidence of the alleged poor performance and should be open to considering any contrary evidence furnished by the claimant.It was submitted that the conduct of the review by the respondent was manifestly unfair.It was submitted that the procedure had been breached in several respects leaving the claimant “ accused and effectively found guilty of underperformance on the basis of ‘issues’ which if significant should already have been discussed with the claimant before the meeting of the the 19th.July”.
The union requested that the performance rating of 2 be vacated and replaced with a default rating of 3 – which is allowed for in the procedure when a review is not conducted.
Summary of Respondent’s Case:
It was submitted that the claimant’s complaint was practically identical to the complaint made by the claimant the previous year.
It was submitted that the college conducted the second review in full compliance with the PMDS which had been agreed with SIPTU.As the respondent was awaiting the outcome of the previous referral , they did not proceed with the next element “ which was remedial in nature”.This would have involved a PIP in light of the 2 rating.As the recommendation had not issued , the college did not want to antagonise the claimant and the college proceeded with the day to day management of a staff member.It was submitted that the claimant’s performance in year 2 was insufficient meriting a 2 rating.The appeal was unsuccessful resulting in a PIP being issued which is achieving the desired outcome.
It was advanced that the PMDS was currently on hold and awaiting a joint review by management and unions.
It was submitted that the college had applied both the letter and spirit of the Scheme to the claimant on both occasions , that the PIP was in place and that “ it should ultimately lead to a positive outcome for everyone involved”.The respondent did not accept that it treated the claimant unfairly or outside the agreed PMDS scheme .
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.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.]
Composite Recommendation for r-159280-ir-15 and ADJ -00005199
As both disputes are inextricably linked I am making a composite recommendation for settlement. Efforts towards settlement were made at the final hearing but agreement between the parties could not be reached.Conscious of the personal distress that has arisen for the claimant, I consider it imperative that closure is brought to these disputes and that trust is restored between the claimant and his managers – to that end , I am recommending as follows in full and final settlement of these complaints.
I have reviewed the entirety of the submissions and considered the evidence submitted by the parties.In their first submission on ir-159280-ir-15 the union has asked that the 2015 rating of 2 be vacated and replaced with a default rating of 3 on the basis that the process was manifestly unfair and that the conduct of the next PMDS be conducted under the close supervision of the HR Dept.It was submitted that “ we do not ask the adjudicator to substitute his or her opinion as to [the complainant’s] performance for that of his managers.We regard an employer as having the prerogative , within the terms and conditions of employment , any applicable collective agreement , and the law of the land , to conduct performance management exercises save where there is manifest unfairness.We, however submit that the conduct of the procedure in this case was manifestly unfair.”In their subsequent submission on ADJ-00005199 , the union again asks that the performance rating of 2 be vacated and replaced with a default rating of 3 and that the conduct of the next PMDS be conducted under the close supervision of the HR Dept.
In considering the respective positions of the parties I have taken into account the principles set down by the Labour Court in Moore Walsh v Waterford Institute of Technology EDA042 on an equality dispute concerning promotion where it was found that “ it is not the function of the Court to substitute its views on the relative merits of candidates for those of the designated decision makers.Rather, its role is to ensure that the selection process is not tainted by unlawful discrimination .Consequently, the Court will not normally look behind a decision unless there is clear evidence of unfairness in the selection process or manifest irrationality in the result”.
I have considered the claimant’s challenge to the 2015 assessment where the union is relying on procedural deficits to warrant the default rating.It is submitted that the respondent’s completion of Parts D and E rather than allowing the claimant to complete same was manifestly unfair.I have considered all of the submissions made and the confusion around the filling of this part of the form which arose and which was changed when the system was reviewed in the Sept. 2014 and have concluded that this was a technical breach that could not be deemed to be manifestly unfair.The main challenge related to the failure to have previous discussions with the claimant on “issues and escalations”.Subsequent to the first hearing ,the college submitted extensive documentation demonstrating that the issues had been raised with the claimant.No compelling evidence was advanced to support the union’s contention that these “issues/escalation” can only be relied upon if they are previously referenced in the context of the PMDS – this in my opinion would place an unrealistic burden on managers and supervisors on day to day operational management and render the PMDS unworkable..The system requires that these are brought to the attention of the employee and based on the email evidence , this was done.
Having said that I consider the challenges by the union with respect to the vague and nonspecific language used by the reviewer to be well founded .There was no evidence advanced to demonstrate that the objectives set out were specific , that they were measurable, achievable , relevant and time bound. Additionally , no evidence was advanced to demonstrate that the reviewer had recognised and recorded achievements and good areas of performance as documented in the introduction to the PMDS.Furthermore I accept the criticisms set out by the union in ADJ-00005199 regarding the appeal process – the process lacks objectivity and is deficient by virtue of the absence of any requirement to set out the reasoning for the outcome of the appeal.
Taking all of the foregoing into account and having regard to the Labour Court determination cited , I cannot recommend in favour of changing the PMDS score from 2 to 3 with respect to the 2015 assessment.Given the identified flaws in the respondent’s processing of the 2015 assessment – set out in the foregoing paragraph - and in light of the fact that the investigation of the first dispute was still in process when the 2016 assessment was undertaken, I recommend that the outcome of the 2016 appraisal be set aside.
I note that the respondent has confirmed that the current Performance Improvement Plan is achieving its aims and that the Scheme is currently being reviewed.I recommend that both parties engage further in their review of the Scheme with a view to achieving an agreed position on how the matters raised through these instant disputes can best be remedied to the satisfaction of all parties.
Dated: 11th October 2017
Workplace Relations Commission Adjudication Officer/Rights Commissioner: Emer O'Shea