Complainant

Respondent

Parties

Elaine  Maddock

Health Products Regulatory Authority

Representatives

Brian Joyce IBEC

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-00056638-001

14/05/2023

The Complainant worked as an Accounts Assistant for the Respondent, a non-commercial semi state body which regulates health products.

The Complainant worked as an Accounts Assistant for the Respondent, a non-commercial semi state body which regulates health products.

The Complainant joined the Respondent on the 4th of July 2016 on a two-year fixed term contract. On the 14th of July 2019 the Complainant was placed on a permanent contract.

The Complainant was first placed on a Performance Improvement Plan (“PIP”) in October 2018. On the 31st of  March 2023 the Complainant was dismissed, the reason given was her performance had not improved and was not up to the standard required for her role. The dismissal took effect on the 30th of April 2023. 

The Complainant submitted a complaint under the Unfair Dismissal Act in May 2023. 

The Complainant attended the hearing and gave evidence under oath. I have referred to that evidence, where relevant, in the findings and conclusions section of this decision.

The Complainant was unrepresented in the hearing. She had been previously represented by her Union however they declined to represent her in this WRC case as she had been the one to file the complaint. Her daughter assisted her in the hearing and cross-examined Respondent witnesses.

She felt she never had the support management throughout the various PIPs she was subject to. She was very isolated and very alone at work. She had been shouted at by her manager previously and this impacted on her ability to speak to people at work about what she was facing.

She had an awful lot of work piled on her and did it to be the best of her ability. She did as instructed.

She was unfairly dismissed.

The Respondent attended the hearing represented by Mr Joyce of IBEC. The Respondent dismissed the Complainant after having made every effort to support her in improving her performance. They had recorded performance feedback for over 5 years and submitted with evidence as part of their written submissions. 

Cathy Tobin Assistant Accountant, Donal Sherry Financial Controller , Nichola Flynn-Sinnott HR Manager, Niall MacAleenan Medical Devices Director and Elizabeth Stuart, Director of HR all gave evidence under oath or affirmation.

Each Respondent witness was subject to cross examination by the Complainant’s daughter.

I have referred to their evidence, where relevant, in the findings and conclusions section of this decision.

The Complainant joined the accounts payable team of the Respondent’s Finance Department in 2016. She had worked in this area previously. She reported into Ms Cathy Tobin, Assistant Account for the entirety of her time working with the Respondent.

 Ms Tobin’s evidence was there were performance issues related to the Complainant from the outset of her employment. This included frequent coding errors, incorrect spacing of large invoices and failure to properly process cycle to work scheme. More generally there seemed to be a difficulty in communicating and understanding emails. However, Ms Tobin supported retaining the Complainant and making her permanent in the hope that these matters would improve.

Starting in 2018 the Complainant was subject to recorded performance feedback. This ultimately led to her dismissal. As that process spans 5 years I have sought to break the relevant evidence down into rough time periods. 

2018 – 2020

Ms Tobin, has worked in accounts payable for 14 years and has trained a number of people into the department. While Ms Tobin accepts there can be errors in these roles, they are detail orientated roles and a margin of error of only 1% to 2% is reasonable. The Complainant had a much higher level of error which put pressure on the wider department and generally caused problems. The Complainant in correspondence had estimated this rate of error to be 5% which Ms Tobin considers unacceptable.

These issues persisted and in June 2018 Ms Tobin initiated an informal performance improvement process. She held a series of meetings with the Complainant and outlined what she considered to be persistent issues. As she believed there was a continuing problem with the Complainant taking her feedback on board she requested that the Complainant provide her own summary of the engagement and agreed outputs.

The Complainant’s evidence regarding this period of time, and these issues generally, was that she felt isolated and unsupported.

The Complainant was uneasy about writing the above-mentioned email and instead arranged a meeting with HR. A note of this meeting was provided to the hearing and it outlined that the Complainant felt she would be admitting mistakes if she were to send such an email. She disagreed with Ms Tobin’s feedback and provided detailed reasons as to why. HR referred the Complainant back to her line manager as the appropriate person to address performance issues with.

A month later HR agreed to facilitate a meeting between the Complainant and Ms Tobin. Some of this centered around the Complainant’s concerns about notice of her contract being renewed. However, the Complainant also reiterated her refusal to send the abovementioned email. Ms Tobin explained it was a tool to ensure that the Complainant understood her feedback and that there needed to be an increased focus on performance. She notified her that they would move to a PIP in August if her performance did not improve. The agreed notes of this meeting show that the specific tasks and issues which were Ms Tobin’s focus were discussed in detail. The Complainant did accept that errors had occurred. She was also offered further training. She continued to decline to send the email.

In October 2018 Ms Tobin initiated a 4 month PIP. This focused on the Complainant’s attention to detail, her ability to communicate and to take responsibility for work. Ms Tobin held four review meetings with the Complainant and these were recorded on forms signed by both parties. The review records show a lack of progress with persistent problems detailed under each of the above headings. It also records the repeated offers of support and training by Ms Tobin. The Complainant’s self-assessment over this period disagrees with the feedback. She appears to take the view that fault is being found with whatever she does. However, it is not clear that she disputes the specifics of Ms Tobin’s feedback. During the course of the performance review the Complainant paid the wrong supplier €6554 and this revealed that the supplier paid in error also had payments outstanding. Ms Tobin considered this a serious problem.

The Complainant failed the PIP and was referred into the disciplinary process. A disciplinary meeting was held with Ms Tobin and HR and after that meeting Ms Tobin issued the Complainant with a written warning lasting 9 months.

Ms Tobin’s evidence was that she gave the Complainant some space after this sanction and did not proceed into a second PIP though she did continue to provide feedback. However, by March 20220 there was still no improvement and Ms Tobin was considering moving back to a formal process when the pandemic hit. This was corroborated by an internal note to file which noted the significant disruption that the pandemic and move to remote working had caused. In this note Ms Tobin determined that it was best to hold off proceeding with any formal process.

2021 -2022

As it transpired that demand on their team was much reduced during the course of the pandemic. There were less invoices and very little travel expenses to process. Ms Tobin’s evidence was that matters still did not improve over this period and when work had stabilised by early January 2021 she contacted HR noting that there were still issues. These mostly fell under the previous headings of attention to detail, ability to communicate and to take responsibility for work.

 Instead of moving to another PIP the Respondent initiated a disciplinary investigation and undertook an inquiry into specific allegations raised by Ms Tobin. These allegations focused on specific tasks which the Complainant had allegedly performed unsatisfactorily.  

These included the application of Relevant Contracts Tax (“RCT”) which Ms Tobin believed the Complainant was misapplying in a number of cases. Another issue involved invoices which Ms Tobin alleged she had to follow up on and when she raised queries the Complainant had said were not received, though they had been. Ms Tobin’s evidence was that these invoices concerned the Respondent’s rent and late payment could have significant implications on their operation. There was also an alleged issues with the Complainant not following up on reimbursable expenses and recording changes to invoices for audit purposes. Overall there were 10 specific examples investigated by Ms Nicola Flynn Sinnott, HR Manager. Ms Flynn’s evidence was that she held interviews with both Ms Tobin and the Complainant and that she followed fair procedures at all times. The Complainant was represented by her Union official in her interview. Ms Flynn’s evidence was that she did not put forward any mitigating factors.

The investigation report largely upheld the allegations and the Respondent moved to an “outcome meeting” chaired by Leona Carroll, Leaning and Development Manager. While the title of the meeting could have been clearer the Respondent had at all times referenced the disciplinary procedure in this process and the Complainant appears to have understood that disciplinary sanctions were a potential outcome of this meeting. In the meeting the Complainant’s Union official queried why they had gone straight to a disciplinary process on performance issues and why a PIP was not followed. When Ms Carroll issued her outcome she sought to address that point by determining that there had been regular coaching of the Complainant and she was on notice of the issues and that there had been an unsuccessful PIP in 2019. Ms Carroll issued the Complainant with a first written warning in June 2021. However, the Union official’s comments appear have hit home as the Respondent later proceeded by way of repeated PIPs.

The Complainant appealed this decision to Ms Elizabeth Stuart and an appeal outcome was issued on the 2nd of July 2021 which upheld the sanction.

Ms Tobin initiated another PIP on the 6th of August 2021 for a 3 month period. This again focused on similar issues but the attention to detail and take responsibility for work appear to have been merged. Importantly these issues were specified an numerous examples discussed at each PIP meeting. Ms Tobin was not identifying general “gripes” but specific incidences of work not being done properly. She was continuing to offer training and support.  For the most part the Complainant did not dispute the errors when they were flagged with her during the course of this process. Ms Tobin concluded the PIP process noting that the Complainant had improved in the last month of the PIP her performance but overall her performance remained below where the Respondent needed it to be.

The Respondent then proceeded by way of a disciplinary investigation to investigate the Complainant’s failure to complete the PIP successfully.  This process was initiated on the basis that the PIP outcome was a complaint, in the same way Ms Tobin’s complaint in January 2021 had been. This essentially gave the PIP an appeal stage, in that Mr Martin Clifford reviewed the PIP document and put each instance of underperformance to the Complainant in an interview with her Union official present, though he was not permitted to make any interventions.  While this was unusual, it was not unfair to the Complainant and Mr Clifford’s investigation did mean that Ms Tobin’s views were subject to review, allaying fears that these mattes were only proceeding because of a narrative formed by one manager alone. The investigation also allowed the Complainant to provide further context such as her mother being seriously unwell during these performance issues. However, Mr Clifford still concluded that the Complainant had demonstrated sub-standard performance.

A disciplinary hearing was held on the 7th of April 2022, chaired by Ms Nicola Flynn-Synnott. The Complainant was again represented by her Union official. Ms Flynn’s evidence was that he made a number of observations on the Complainant’s behalf and challenged how the PIP was being handled suggesting it was overly severe and micromanaging. The Complainant outlined that she had been unwell for the past year and it was requested that this be taken into account as a mitigating factor. Ms Flynn reviewed the PIP documentation and found it to be detailed, understandable and reasonable. She found that there was continuous engagement between the Complainant and Ms Tobin.

The outcome issued on the 22nd of April 2022 and the Complainant received a final written warning which was to remain on her file for 12 months. In that decision the Respondent noted that the Complainant had not actually sought any accommodation or support due to her mothers illness or her own underlying health problem aside from altered lunch break times.

While this more severe sanction did issue after the Complainant’s first written warning expired, the under-performance on which it was based occurred while that sanction was live. The Respondent had at this point established that under-performance was a persistent issue and I think it was reasonable to expect that the disciplinary sanctions would get more serious. Ms Flynn’s evidence was that the background over underperformance was a significant factor in deciding to issue a final written warning.

The Complainant appealed the sanction on the basis of its severity as well as an alleged lack of support for her during the PIP process and an alleged lack of flexibility given to her as a result of her mother’s illness. She also alleged that the Respondent failed to take into account her mental health given the pressures on her from her mother’s illness and being subject to a written warning. This appeal was considered by Marian Bergin, the interim HR Director. An appeal hearing was held which the Complainant’s Union official attended with her. These points were considered in an appeal outcome which issued on the 17th of June 2022 and the sanction of final written warning was upheld.

Separately the Respondent obtained a occupational health report in July 2022 which noted that the Complainant remained medically fit for work.

Final PIP and Dismissal

The Complainant was again placed on a PIP beginning the end of July 2022. For the purposes of this PIP Mr Donal Sherry, the Financial Controller acted as the manager. Ms Tobin’s evidence was that this was because she had done two previous PIPs and the situation had not improved. More generally I can understand that this would be an act of fairness to the Complainant in ensuring that her performance was not being exclusively reviewed by Ms Tobin.  This process focused again on similar headings of Quality of Work, Attention to Detail and Communication. This PIP was suspended while the Complainant was on sick leave for a scheduled surgery. Mr Sherry’s evidence was that he regularly offered her support over this period.

The PIP reviews detailed ongoing problems with accuracy of the Complainant’s work and the quality of her communication with both internal and external stakeholders. There was reference to suggestions so that the Complainant could avoid these mistakes but they either were not taken on board or not effective.  The PIP concluded in December and Mr Sherry communicated to the Complainant that it had been unsuccessful in January 2023. His evidence to WRC was that he made this decision because there had been a large volume of errors during this period.

The Complainant was again referred to a disciplinary investigation carried out by Ms Flynn Sinnott and was again represented by her Union. This investigation reviewed the PIP and focused on the Complainant’s assertion that she had not been offered sufficient supports. The investigation reviewed the PIP documentation and noted that Mr Sherry had offered the Complainant supports and was asked to identify any additional resources she needed which she failed to do.

Matters moved again to a disciplinary hearing which was held on the 21st of March 2023 and this hearing was chaired by Mr Niall McAleenan, Director of Medical Devices.  It was in this hearing that the Complainant began to raise the argument that she could not ask questions in her workplace and that had contributed to the mistakes.

Mr MacAleenan reviewed the Complainant’s comments and considered the investigation report and PIP process. He concluded they were fair assessments of the Complainant’s performance and that the issues that the Complainant had raised around her mother’s illness had been addressed in that supports were offered and a specific work schedule facilitated. For context the recent investigation process had identified that the Complainant was meeting weekly with Ms Tobin and at least monthly with Mr Sherry and that there was clearly quite a lot of engagement.

Mr MacAleenan noted that despite the extensive engagement on the issue of  the Complainant’s performance that that performance remained below the standard required of the role of Accounts Assistant. As the Complainant was still under a final written warning he determined that the appropriate sanction was dismissal.

The Complainant appealed that decision to Ms Stuart alleging that it failed to take into account her health and her mother’s condition and that the PIP was not properly evidenced. For the first time since 2018 she raised the issue of her previous complaint regarding Ms Tobin shouting. Ms Stuart considered these issues and came to the conclusion that they didn’t affect the decision to dismiss the Complainant and her appeal was not upheld.

Relationship with Ms Tobin

The Complainant’s line manager throughout this process was Ms Tobin. While over the course of the above process seven different managers, each more senior that Ms Tobin, would have a role in reviewing the different PIPs through either investigation, disciplinary hearing or appeals, Ms Tobin remained vital to the Complainant’s employment relationship.

The Complainant in her appeal and complaint form alleged that Ms Tobin shouted at her across an open plan floor. Ms Tobin in evidence did remember an incident in 2018 where she spoke to the Complainant across the office about a task she needed to redo. The Complainant brought the matter to HRs attention and it never happened again. Ms Tobin recognised that it was not an appropriate way to communicate and stated that it was a once off.

Her evidence was that the relationship remained cordial and professional throughout the PIP processes, though once they started they became less chatty and more formal in their interactions. Ms Tobin’s evidence was that she regularly offered the Complainant support and organised training for her like assertiveness training.  This is supported by the extensive records of the PIP processes and other recorded meetings.

The Complainant gave more general evidence that she did not feel supported in her role.

While I suspect the relationship did become strained and the Complainant did feel isolated as a result of the PIPs and associated processes, I do not think the relationship broke down. I conclude there was a functioning professional relationship in place and the performance issues identified by Ms Tobin were problems in the own right, not by products of an interpersonal dispute between her and the Complainant. 

The Law

It is common case that the Complainant has the requisite service to be covered by the protections afforded under the Unfair Dismissals Act.

Section 6 of the Unfair Dismissals Act outlines that any dismissal is an unfair dismissal contrary to the act, unless there are substantial grounds justifying the dismissal. It is for the Respondent to prove that such grounds exist and that they were the cause of the dismissal.

The Respondent argues they were entitled to dismiss the Complainant as Subsection 4 (a) provides that a dismissal shall not be an unfair dismissal if it results wholly or mainly from the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do.

In examining the reasons given for the Respondent’s decision to dismiss, the approach I am required to take is well established. As outlined in British Leyland v Swift and endorsed in this jurisdiction in Bank of Ireland v Reilly, my role is not to take over the role of the Respondent consider whether in my view that the performance issues related to the Complainant ought to have resulted in her dismissal, but rather whether a reasonable employer might have reasonably dismissed her for the those performance issues. An element of discretion is given to the Respondent in this approach by recognising that a band of reasonableness exists within which one employer might reasonably decide to dismiss but another might reasonably decide not to.

Section 6 requires the Respondent to demonstrate not just that “substantial grounds” exist which establish that the dismissal was within the “band of reasonableness” but that the dismissal occurred because of those “substantial grounds.” As such a key issue to be determined in any Unfair Dismissal Act case is whether the “substantial grounds” put forward by the Respondent were properly arrived at, that is arrived at following a fair process.

Conclusion

How each employee should perform their role is obviously a subjective matter for their employer and as outlined above, the law is clear that a WRC Adjudication Officer should not take over the role of an employer and determine what was appropriate in their own view. The requirement is to determine whether the employer has exercised their discretion reasonably.  While the Complainant was unrepresented her daughter did assist her in this case and cross examined the Respondent witnesses on the detail of their concerns about the Complainant’s performance. The Respondent witnesses, particularly Ms Tobin were able to establish that they were reasonably using their discretion in setting appropriate performance standards related to the Complainant’s role. They further established, through both oral evidence and copious written records, that the Complainant had been falling short of these standards

I believe there was a genuine dispute between the parties in that the Complainant believed that she was being held an unreasonable standard and the Respondent believed they were holding her to a minimum standard that she wasn’t meeting. Ultimately the standard was something the Respondent had discretion to determine once they did not exercise that discretion unreasonably.

The Unfair Dismissal Act does not incorporate the HPRA’s internal policies and the employer retains discretion in how it manages its own affairs. Where there are procedural deficiencies or instances where the policy is not followed exactly it does not automatically render the dismissal unfair. The question remains whether the dismissal resulted wholly or mainly from the capability, competence or qualifications of the employee.

There are procedural concerns present in this case that could be relevant to a performance related unfair dismissal claim. However, in the circumstances I am satisfied that they are not determinative. For instance, it could be argued that the decision to move straight to a disciplinary investigation in January 2021 rather than complete a PIP could have rendered the resulting sanction in June 2021 as unfair and thus the dismissal which was based, in part, off a subsequent escalating sanction issued in April 2022.  Similarly it could be argued that because the June 2021 written warning had expired by April 2022, Ms Flynn was incorrect to move to a final written warning at that time and therefore Mr McAleenan’s March 2023 decision to dismiss was not valid as it was, in part, based on that final written warning. I am of the view such conclusions would require me to stray far from the text Unfair Dismissals Act.

The Act clearly gives employers the right to dismiss employees were there are persistent performance issues related to their role. In this case the Respondent has extensively evidenced that there were such issues through a numerous performance reviews and investigations as well as oral evidence from the Complainant’s line manager and their line manager.

If they had not done this and had only put forward general assertions or identified a few unrelated examples of substandard performance then those procedural concerns could become more pertinent in determining whether the substantial grounds identified by the Respondent as justification for the dismissal actually existed. However, this is not such a case.

I find that the complaint is not well founded.