Boots Retail Ireland (Represented by Irish Business and Employers' Confederation) v Luka Glogoski

 
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Labour Court (Ireland)

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UD/17/159

DETERMINATION NO.UDD187

ADJ-00005177 CA-00007259-001

PARTIES:
Boots Retail Ireland (Represented by Irish Business and Employers' Confederation)
and
Luka Glogoski
SUBJECT:
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1. Appeal Of Adjudication Officer Decision No: ADJ-00005177 CA-00007259-001

BACKGROUND:
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2. The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 9th October 2017 in accordance with Section 8(A) of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 18th January 2018. The following is the Determination of the Court:

DETERMINATION:
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This is an appeal against the Decision of an Adjudication Officer under the Unfair Dismissals Act 1977 – 2015 (the Acts) in a claim made by Mr Luka Glogoski against his former employer, Boots Retail (Ireland) Limited. The Adjudication Officer held that the complaint of unfair dismissal was not well founded and the complaint failed.

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For ease of reference the parties are given the same designation as they had at first instance. Hence Mr Glogoski will be referred to as “the Complainant” and Boots Retail (Ireland) Limited will be referred to as “the Respondent”.

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The Complainant referred his case to the Workplace Relations Commission on 30 th September 2016. Two hearings before an Adjudication Officer were held on 31 st March 2017 and 2 nd June 2017. The Adjudication Officer decision dated 31 st August 2017 was appealed by the Complainant to the Labour Court on 9 th October 2017. The appeal came before the Court on 18 th January 2017.

Background
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The Respondent is an international pharmacy-led health and beauty company. It has 87 stores throughout the Republic of Ireland, having opened its first store in this jurisdiction in 1996.

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The Complainant is a qualified pharmacist and was initially employed by the Respondent as a Relief Pharmacist in February 2007. In June 2009, he was promoted to the position of Supervising Pharmacist at the Ashbourne store, a position he remained in until the termination of his employment with effect from 28 th April 2016.

Summary of the Respondent's Position
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Ms Aisling McDevitt, Ibec, for the Respondent, provided the Court with a substantial written submission with supporting documentation and set out the following background for the Court:

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The Complainant was fairly dismissed by the Respondent for reasons of underperformance or incompetence in accordance with Section 6(4) of the Unfair Dismissals Acts.

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At the time of his dismissal in April 2016, a final written warning in connection with his underperformance and conduct was active on the Complainant's file. The final written warning was issued with effect from July 2015 in accordance with the Respondent's Disciplinary Policy and had followed an oral recorded warning, also for underperformance, which had been issued in April 2015.

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The dismissal was carried out in accordance with the Respondent's Disciplinary Policy and performance improvement mechanisms contained in the ‘Performance Leadership Policy’. Prior to his dismissal, the Respondent had been placed on a formal Performance Improvement Plan (PIP) in November 2015 which set out 19 objectives for him to achieve (a copy of the PIP was provided to the Court).

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The objectives were drawn up in accordance with the Respondent's Capability Framework document for a ‘Boots Supervising Pharmacist’ and the associated role profile document which sets out the Responsibilities/Accountabilities for the role (copies of the documents were provided to the Court). The Complainant agreed with the objectives and jointly signed the PIP document with his line manager.

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The PIP concluded in February 2016, which included an extension to account for the Christmas and New Year period and the Complainant was deemed by his line manager to have achieved 5 and failed 14 out of the 19 objectives. The Complainant's line manager, who is the Ashbourne Store Manager and a Pharmacist, carried out a formal investigation with him in March 2016 and concluded that the matter of his under-performance should proceed to be dealt with under the Respondent's Disciplinary Policy.

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A disciplinary hearing was conducted by a different Store Manager, who is also a Supervising Pharmacist at another of the Respondent's stores, on 5 th April 2016, following which the decision to dismiss the Complainant for under-performance was confirmed by letter dated 28 th April 2016. The letter provided that the Complainant would be paid in lieu of eight weeks' notice.

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The Complainant appealed his dismissal to an Area Manager, who was also a pharmacist, and an appeal hearing was held on 15 th June 2016. The appeal was unsuccessful and the dismissal was upheld.

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Ms McDevitt told the Court that the Complainant had been advised of his rights to representation throughout, including his right to avail of trade union representation. The Complainant chose to bring a colleague to some but not all meetings throughout the process. The Complainant had been provided with all relevant documentation throughout and had a full opportunity to state his case at each stage, which he did both verbally and supported by comprehensive written statements which he provided to the decision-maker at each stage.

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Ms McDevitt told the Court that the Complainant received poor performance ratings in 6 out of the 7 years preceding the termination of his employment. The Complainant's end-of-year performance ratings for the period 2010–2016 were as follows:

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2010 — ‘Below Expectations’

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2011 — ‘Below Expectations’

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2012 — ‘Below Expectations’

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2013 — ‘Performing’

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2014 — ‘Not Performing’

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2015 — ‘Not Performing’

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2016 — ‘Not Performing’

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During his employment, the Complainant was placed on five separate Performance Improvement Plans, which were managed by four different line managers, as follows:

August 2010 to January 2011 — Line Manager A

July 2012 to October 2012 — Line Manager B

February 2015 to March 2015 — Line Manager C

May 2015 to June 2015 — Line Manager D

November 2015 to February 2016 — Line Manager D

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The Court was told that at no stage during his employment did the Complainant follow the Respondent's Grievance Procedure to challenge any of the performance ratings, the disciplinary sanctions or the PIPs.

Summary of the Complainant's Position
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The Complainant represented himself at the hearing before the Court. He chose not to give evidence to the Court but he made very substantial written and oral submissions to the Court, which can be summarised as follows:

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There were no real performance issues with the Complainant. He variously described his personal performance in his role as very good, excellent and close to perfect. He believed he was at least as good if not better than any of the Respondent's other supervising pharmacists and that there was no basis for implementing PIPs, not to mind disciplining and dismissing him.

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He disagreed that he did not achieve 14 out of the 19 objectives set out in his PIP. He believed that he demonstrated sufficient improvements and achieved 99.9% of those 14 objectives, but that the Respondent had within the PIP imposed an increased workload and applied an overly strict standard for achievement of the objectives, effectively zero tolerance. Any issues of underachievement were either minor or were issues that staff struggled with generally and were not particular to him. In support of this position, the Complainant highlighted some examples from the PIP:

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With regard to Patient Safety Reviews, he stated that he completed two out of the required three reviews. He could not complete the third review, as a relevant colleague was on leave and unavailable and there was insufficient time after she returned. He believed that this was mitigating circumstances. He believed that two out of three was therefore good enough and that it should have been accepted as such by the Respondent.

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With regard to adherence to the Respondent's Standard Operating Procedures (SOP's), the Complainant told the Court that, as an example, rather than utilise the company SOP for taking prescriptions into the pharmacy, he instead developed his own procedure and documentation, and implemented that. He believed that his procedure was a better one, that he was thinking outside the box and that he was ahead of his time in this regard. The Respondent regarded his non-use of the company SOP in favour of his own procedure as non-adherence. Following an SOP audit, he believes he achieved 93% compliance – there was approximately 4 SOP's that there were persistent problems with. He believed that a 93% level of compliance should have been accepted by the Respondent as good enough.

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With regard to the ‘Model Day’ tasks (required daily tasks), the Court was told that daily required tasks were 95%+ completed in his view, and that...

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