Case Number: ADJ-00000140. Workplace Relations Commission

CourtWorkplace Relations Commission
Docket NumberADJ-00000140
Date01 May 2016
PartiesAn Employee v An Insurance Company
ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000140

Complaint(s)/Dispute(s) for Resolution:

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1946

CA-00000200-001

12/10/2015

Date of Adjudication Hearing: 21/03/2016

Workplace Relations Commission Adjudication Officer: Ray Flaherty

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 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).

Complainant’s Submission and Presentation:

I received a written warning which wasn't rescinded following an appeal which I'm advised is the final stage of the Internal process. Therefore I'm appealing this decision externally.

At the Hearing the following submission was made on behalf of the Complainant:

Background:

The Complainant is employed with the Respondent under a contract of employment dated 11 November 2013. In the period between his appointment and May 2014, the Complainant worked under four different Managers.

In July 2014, his Manager recommended that the Complainant attended a training programme in order to improve his leadership abilities. The Complainant attended this program in September 2014, following which his Manager stated that he was showing improvement.

Matters between the Complainant and his Manager culminated in a meeting on 28 April 2015, at which the latter once again expressed dissatisfaction with the former's leadership abilities. According to the Complainant a number of options were suggested at the time including: alternative roles within the company, inclusion in a Performance Improvement Plan (PIP) and termination.

At a one-to-one meeting with his Manager on 19 May 2015, the Complainant was informed that he would be participating in a PIP which would last for three months. The Complainant stated in evidence that he requested the PIP to be fair, with achievable objectives and without preconceived convictions towards the outcome. According to the Complainant, his Manager agreed to these terms and assured him that the objectives set would be fair and achievable.

The Complainant stated that on 20 May 2015 he was informed by his Manager that a representative from Human Resources (HR) should have been present at the meeting the previous day and, as a result, the meeting would have to be rescheduled for 26 May 2015.

According to the Complainant, approximately one hour prior to the rescheduled meeting on 26 May 2015, he was approached by his Manager who informed him that he (the Manager) forgot to mention the Complainant's right representation at the impending meeting. The Complainant stated that as he had travelled to Dublin from the country especially for the meeting, he chose to continue without representation.

The Complainant stated that at the meeting on 26 May 2015, which was also attended by representatives from HR, the Performance Improvement Plan process was outlined to him. He was further informed that a formal review meeting would take place on 19 June 2015. The Complainant was advised that, if the outcome of that was satisfactory the performance review may be extended for a further period and, if unsatisfactory, then he would be issued with a warning. The Complainant was issued with a verbal warning at the first PIP meeting on 26 May 2015

The first PIP review meeting took place on 19 June 2015, at which the Complainant's Manager informed him that he was disappointed with the progress being made. The Complainant received a written warning following this meeting. This warning was unsuccessfully appealed by the Complainant at an appeal hearing which took place on 27 August 2015.

It was stated on behalf of the Complainant that, as a result of the above matters, he needed to take an unprecedented period of sick leave from his employment.

Complainant's Arguments:

Against the background of the matters set out above, the Complainant's legal representative made the following arguments on his behalf:

The Complainant submits that the issuing of a written warning during the Performance Improvement Plan was unwarranted and severely harsh.

As per the Company's own procedures in this regard, a Performance Improvement Plan is implemented in order to help an employee improve the standard of their work and thus should not be used to sanction an employee.

Before initiating the formal improvement process, managers should be able to show that they have exhausted all standard performance management options and that there has been insufficient improvement in performance as result of same. As per the procedure, in situations where managers are concerned about an employee's ability to do their job, they must first raise this with the employee through informal counselling. The Complainant's supervisor never mentioned any performance management options and chose only to express his dissatisfaction with the Complainant's performance without suggesting any means to improve that performance.

The PIP procedure also provided a number of steps a manager should undertake before the final formal meeting. None of these were adopted in relation to the Complainant. Contrary to the procedure, the Complainant was not given written details of his performance issues nor was he informed of his right to representation until an hour beforehand. In addition, the Complainant's manager took upon himself to informally advise him that he was initiating an improvement process in the absence of HR.

An employee must be measured against the objectives that are set out in the PIP. Therefore, the written warning issued to the Complainant must state the areas in which he failed to meet the targets of this plan. This was not done in the written warning issued to the Complainant.

The objectives set out in the Complainant's PIP where nebulous and unattainable and it is impenetrable how the Respondent expected the Complainant to achieve these subjective targets. Regardless of the fact that the Complainant set about meeting these targets, he was chastised for merely "ticking off" the objectives as they were set out. Consequently, it is unreasonable that an employee is told their efforts to improve are at fault when they are doing exactly what was requested of them.

Consequently, it was claimed, in conclusion, on behalf of the Complainant, that he had suffered a detriment contrary to the Industrial Relations Act 1946 and, as a result, he was appealing the decision of the Respondent to issue him with a written warning.

Respondent’s Submission and Presentation:

In response to the Complainant's claim, the Respondent made the following submission:

The Respondent has put in place a comprehensive procedure to assist employees with improving their performance. In line with the policy, the Complainant's manager had been having ongoing conversations with him about issues relating to his performance for a number of months following his appointment as his direct boss.

The Manager rated the Complainant as "Developing" on his performance review for 2014. This rating is...

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