Worker

Employer

Anonymised Parties

A Worker

An Employer

Representatives

Self-Represented

Mr Ciaran Loughran IBEC

Act

Dispute Reference No.

Date of Receipt

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

IR - SC - 00003134

16/09/2024

This matter came before the WRC dated 16/09/2024 as a complaint seeking adjudication by the WRC under section 13 of the Industrial Relations Act, 1969. 

The specific complaint falls under Industrial Relations Issues Type.  The Worker has a trade dispute he would like investigated.   The aforesaid dispute was referred to me for investigation.  A hearing for that purpose was scheduled to take place on 27/01/2025. 

The background to this dispute relates to a disciplinary procedure and the imposition of a sanction. 

As per complaint form

I have been working for [redacted] since February 2019.

Up to November 2023 I had no performance issues other than normal feedback from my manager. In November 2023 my boss left the business and we appointed a new COO [redacted] who I reported to.

She was looking for a completely different leadership style from me and I struggled to adapt.  In February 2024 I spoke to [redacted] and said that I recognised that I was a bad fit for what she wanted from the role and that I would look for another role.

She wished me luck.  I had a couple of interviews, including a final round interview that unfortunately didn't work out.  I was stressed with the changes in the company and in particular by working with [redacted] so viewed the job hunt as my escape from the pressures I was feeling.

When I didn't get the role I was close to, my mental health deteriorated and I was on sick leave for much of April and May.  In June [redacted] put me on a PIP which was only six weeks long and contained 17 different goals.

I tried to work on it at first but quickly my feelings of overwhelm returned.  Especially when I realised that she was doing nothing to support me.  The meeting consisted of me explaining what I did that week and her picking holes in it.  I was demoralised and I disengaged.  I received no support from [redacted].  

In July she told me that I had failed the PIP and I was invited to a disciplinary hearing.  I told the HR team that the PIP did not follow process but I received a verbal warning regardless.  I did appeal the decision as it was not the conclusion that I disagreed with, it was the whole process that they had taken to reach that conclusion.

On August 13th I submitted a grievance.  I had explained that the process was having a negative impact on my mental health so I asked for a quick resolution.  I never received a firm timeline on when that resolution would come.  On September 6th I finally received a report which partially upheld my grievance.

Despite this, the company declined to withdraw the verbal warning.  I had asked that my sick leave during September, which came as a direct result of the stress of this situation, not be deducted from my salary but they refused this request.  During this period, they did not conduct any return to work interviews or make any enquiries about my mental health.  Insultingly, they said that it was "a tough time for everyone involved".  My direct manager has still not conducted a return-to-work interview with me.  She is US based and does not understand the Irish legislation well.

The Worker at hearing submits the PIP was rushed and there was no opportunity for him to succeed.  The Worker submits he raised a formal grievance against the sanction of a verbal warning.  The Worker submits he started with the Employer in 2019 and a new manager was appointed in November 2023.  The Worker submits his role changed and what he was being asked to do changed significantly. 

The Worker submits he spoke to his manager in February 2024 and he told her he was going to leave as he was close to getting another job.  The Worker submits it all became too much for him and his manager started talking about PIP again which increased his stress.  The Worker submits he regrets not pushing back at that time but he felt quite low. 

The Worker submits he was on the PIP for 6 weeks and he tried to engage with the plan but he felt completely overwhelmed and he realised at the end of the plan that his manager had not adhered to the PIP policy.

The Worker submits his role with the Employer is a broad role encompassing recruitment; leases; and HR up to a point.  The Worker submits he has 4 direct reports and he reports to his manager (present at hearing) who has different a management style.

Overview of written submission

On 14 March 2024 the Worker’s manager conducted an in-person performance review with the Worker.  In this review, the manager identified a clear performance deficit in the Worker’s ability to carry out their role.

She also clarified that that moving forward, the next step would be to place the Worker on a Performance Improvement Plan (PIP).  The Worker made a request in this meeting to his manager  to not start any formal PIP process at that time, as he was likely to start a new position in another company soon thereafter.

The Employer granted this request and on 25 March 2024, the Worker informed his manager that his external job enquiry had concluded, and he would continue his employment with the Employer.   At this point, his manager reiterated that the PIP process would now commence.

On 26 March 2024, the Worker informed his manager that he was unwell and would go on sick leave for two weeks.  Upon the Worker’s return to work on 17 April 2024, his manager reiterated to him that the PIP process would now commence.

On 30 April 2024, an occupational health assessment concluded that the Worker was medically unfit for work.  From 01 May 2024, the Worker remained on sick leave and annual leave until his return to work on 20 May 2024.  The Worker attended an occupational health assessment on 30 May 2024, which concluded that he was fit to work during normal business hours.

On 06 June 2024, [redacted] informed the Worker about the PIP process which started on 10 June 2024.  This formal PIP process ran until 19 July 2024, 6 weeks in total.  During this process, a meeting was held weekly in order to review the Worker’s performance during the previous week and contrast against the goals set previously for the PIP.

A formal PIP review of the first PIP was provided on 23 July 2024, which stated that the Worker had not met any of the goals in every performance area in any of the 6 weeks.   The Worker was subsequently delivered an invitation to a disciplinary hearing on 29 July 2024, which took place the following day, 30 July 2024.   In this hearing, the Worker chose to be unrepresented.  This hearing concluded with the Worker stating that he would like to come to a severance agreement. 

On 09 August 2024, a letter of verbal warning was issued to the Worker via email, as per the company disciplinary policy.  The Worker was reminded of their right to appeal.  On 13 August 2024 the Worker raised a detailed grievance on the PIP.

The Worker’s line manager (hereafter Employer) at hearing submits the Worker has a big role in the company and it is a critical role in the company and that it is a highly paid role.   The Employer submits that today most of the Worker’s job is done by her and the team leads.  The Employer submits that last week she discovered the Worker had not been in the office regularly and the team leads are now asking her what exactly does the Worker do.  The Employer submits his output is similar to that of an employee on one third of his salary.

The Employer submits they have done everything possible to help him and that the Worker told her in February that he wanted to leave and she submits that she told him that until he goes he must perform.  The Employer submits the Worker has been on sick leave and he was referred to occupational health. 

The Employer submits she has done things to take the load off him and that she did not put anything complicated into the PIP as the Employer goal was to keep the Worker and not to exit him.  The Employer submits the Worker is the author of the PIP policy in Ireland.  The Employer submits she spends more time managing the Worker than he spends on his own job.  The Employer submits she wants to help him and she wants him to succeed but that he has to do his job.  

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

Having listened to both parties in this dispute it quickly became apparent that even though there was at the very least a gap of mutual understanding on certain matters, there was a commendable level of willingness to engage on the Employer’s side.  However, I was unable to discern a similar level of willingness to engage on the Worker’s side particularly in circumstances where I had to request of the Worker that he desist from texting on his mobile phone while his line manager was sharing her information on the Employer position at hearing.   

In the exercise of orderly industrial relations, it is expected that the parties should effectively utilise their agreed procedures in the first instance before initiating a referral of the matter to the WRC.  I am satisfied there was adequate local engagement in relation to this matter.  The purpose of the hearing is to find a way forward for both parties which is fair and reasonable in order to maintain the employment relationship into the future. 

I note the Worker was a participant in a Performance Improvement Plan (PIP).  A PIP is generally understood to be a collaborative process between a worker and his/her line manager and typically spans between 30 to 90 days depending on the goals and the complexity of the areas requiring improvement.  There is a requirement for regular check-ins to track the progress and to make the necessary adjustments.    

I note performance concerns and expected measures of success were set out clearly under competency headings namely Quality and Client Satisfaction; Team Development and People Management; Resource Management and Efficiency; and Overall Leadership.    

I find it noteworthy that it is the Worker himself who is the author of the policy. 

I note the PIP commenced on 10 June 2024 and ran until 19 July 2024 for 6 weeks in total.  The Worker had been advised by the Employer at a performance review meeting on 14 March 2024 that as a clear performance deficit had been identified the Worker would be placed on a PIP.    

I note the commencement of the PIP had been delayed as the Worker had indicated that he was likely to commence employment with another company soon.  I note the Worker informed the Employer on 25 March that his external job enquiry had concluded and that he would be remaining in the employ of the Employer.  I note the Worker commenced sick leave on 26 March 2024 from which he returned on 17 April 2024.  The Worker was deemed unfit for work by occupational health and he remained on sick leave followed by a period of annual leave followed by another occupational health assessment on 30 May 2024 further to which he was deemed fit to return to work. 

I note the PIP commenced on 10 June 2024.   I note meetings were held weekly to review performance during the previous week and contrast same against the goals set.  I note the formal review of the PIP stated the Worker had not met any of the goals in any of the performance areas in any of the 6 weeks which resulted in the initiation of the Employer disciplinary procedure.    

Notwithstanding a PIP is a collaborative process I note that by week 3 the Worker had disengaged from the process and was choosing not to provide any updates on his progress.  I note the Employer  invoked the disciplinary procedure when the Worker’s performance was not meeting the standards required in the role on completion of the PIP.   

I make the observation that there were what I would consider to be shortcomings in the PIP the most notable of which was its duration albeit I cannot predict if the process had been longer it would have made any difference bearing in mind the Worker had disengaged by week 3.   However, I am of the view the number of goals could be seen as unrealistic within such a tight timeframe.   

I note a disciplinary hearing took place on 29 July 2024 at the conclusion of which the Worker stated he would like to come to a severance agreement with the Employer. 

I have nothing before me that suggests the disciplinary procedure in and of itself did not conform to the generally accepted standards of fairness and objectivity that would normally be used in such cases in compliance with the general principles set out in the Code of Practice on Grievance and Disciplinary Procedures S.I. 146 of 2000.   I am satisfied the Worker was treated fairly by the Employer in the application of the Disciplinary procedure and in the reasons for which the procedure was invoked when I take all the circumstances leading up to this dispute into account. 

I note a verbal warning arising out of the disciplinary hearing issued to the Worker on 09 August 2024 and a right to appeal was provided. 

For the avoidance of doubt the only matter properly before me is the verbal warning imposed on the Worker on 09 August 2024.  The Worker filed the within complaint with the WRC on 16 September 2024 and the specific complaint as presented is in respect of disciplinary sanctions up to and including dismissal as set out in the WRC complaint form. 

I note the sanction of a verbal warning imposed on the Worker on 09 August 2024 will expire / or has expired on 09 February 2025. 

Given that the passage of time has rendered the penalty imposed as moot, it is strongly urged that the parties now put this matter behind them.

This dispute as submitted contains a matter that is now moot and is no longer in dispute.  At this time the verbal warning in dispute has expired.  In the circumstances I make no recommendation. 

Verbal warning; moot;