Case Number: ADJ-00001457. Workplace Relations Commission

• Docket Number: ADJ-00001457
• Date: 24 November 2015
• Court: Workplace Relations Commission
• Parties: An employee v An employer

ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001457

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

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-00002042-001	19/01/2016

Date of Adjudication Hearing: 19/05/2016

Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 8(1) of the Unfair Dismissals Act, 1977 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Complainant’s Submission and Presentation:

Reasons for dismissal The letter of dismissal dated 24 November 2015 accuses the Complainant of the following: Continuously failed to achieve reasonable standards of performance by not meeting the required piece rate; Failed to improve your performance knowing that it was not satisfactory; Broke the trust and confidence inherent in the employment relationship. For weeks 10 and 11 of 2011, there are records entitled “Min Make Up & Overtime Report for week 10/11”. One column is entitled “total earned” and another column is entitled “min make up”. It is understood that where the “total earned” results in the employee recovering less then the National Minimum Wage, the shortfall is recorded in the “Min Make Up” column, and that these employees who have a “Min Make Up” value are deemed under-performers. Note that week 11 recorded details of 74 employees. The Complainant and 17 others (18 in total out of 74) have a “make Up” value added to the applicable column. For week 10, the Complainant and 28 others (total 29 out of 74) have a make-up value in their column. On 28 June 2011, the Managing Director of the respondent Farms sent an internal email with the subject line “Performance Discussions” stating “these for performance discussions for week 30 please. Let me know if there's any you think shouldn't be on the list. Make -up in bold”. The complainant's name is on the list along with 19 other names (i.e. total of 20 names). The complainant (and likely all other 19 individuals) is issued with a letter the next day inviting them to attend a meeting under the Company's disciplinary procedures. The complainant queried how many employees are subjected to complaints of under-performing at any given time. He stated that between 18 and 28 employees received such accusations from the information available in the personnel file from 2011, and it is submitted that these employees would have been consistently reminded that they were “under-performing” and either bullied out of the workplace (i.e. constructively dismissed”) or ultimately dismissed which is what happened to the complainant. These records establish that the Complainant is not alone in “under-performing”. It establishes only that he is amongst the bottom 20 or so and has been targeted by the Company for this reason alone. If all or some of the bottom 20 performers are eliminated, it results in the organic or natural average performance becoming distorted. In other words, if the bottom 20 performing employees are eliminated in a given year, the next bottom 20 performers will fill that vacant group previously occupied by these eliminated employees. Therefore, if the bottom 20 are targeted year on year and these numbers either leave a hostile workplace (constructive dismissal) or are dismissed directly, it results in a synthetic average which is constantly being squeezed upwards. Employees whose performance was previously within an acceptable range fall into the lower percentiles of performers and thus attract scrutiny and sanctions leading to poor moral, and self esteem. This in itself results in constructive dismissals in many cases, and where a constructive dismissal is not achieved, it leads to a direct dismissal which is what happened in this case following an unsuccessful attempt to constructively dismiss the complainant It is clear that he has been subjected to an exceptionally hostile workplace and this is all part of an attempt to constructively dismiss him from the business. The Respondents have over the course of years implemented what is known as Jack Welch's Vitality Model or Jack Welch's rank-and-yank system. The application of an employee ranking system here was inappropriate because the complainant was assigned to tasks other then only picking, and was in actual fact required to perform any duties assigned to him by his manager. This included the erection of greenhouses which he was able to perform to the satisfaction of his employer. All information concerning Welch's Vitality Model or Rank and Yank system indicate that the system leads to a huge increase of business revenue and productivity. However, the system does not afford due process or fair procedures which employees such as the complainant are entitled to receive under the Unfair Dismissals Acts. The complainant has had to constantly fight and struggle to stay above a minimum level which keeps on shifting upward as less productive employees are eliminated. It also is profoundly unfair to subject an employee in the complainant’s circumstances to constant ridicule, and hostility and for him to be constantly told that he is below average. Over the course of years, this results in an erosion of self confidence, and self esteem to be constantly informed that you are the worst. This amounts to an attempted constructive dismissal which undoubtedly resulted in many of his co-workers leaving without remedies. The complainant did his best to achieve reasonable standards of performance, and would do much better if measured against an organic average (i.e. not distorted by other low performers being eliminated). The Respondent implemented a controversial system known as Welch's Rank and Yank system which resulted in distorted averages being relied on which were constantly squeezed as lower performing staff were eliminated. The complainant was at other times responsible for erection of greenhouse tunnels, and it was unfair to grade him on picking assignments only when he could have been reassigned to other tasks and duties. The complainant did not do anything that could have damaged the trust and confidence inherent in the employment relationship. It is the complainant’s case that the Respondent attempted to bully him out of the workplace and constructively dismiss him because the complainant could not escape from being in the bottom 20 or so employees and in circumstances where the averages were driven upwards with many targeted employees submitting to constructive dismissals. The timing of the complainant’s dismissal is noteworthy and proves the enormous hostility which was directed at him in the workplace. He was dismissed on Christmas Eve. The Respondent had absolute discretion and power over the timing of this dismissal which did not come about as a result of gross misconduct. They selected Christmas Eve. to humiliate and demoralise him and to put him down during the Christmas holidays. There is a reference to a winter shut down during which time the Respondent required the Complainant to be on lay-off. In 2012, this ended on 14 January 2012. The Respondent required the Complainant to be on lay-off from 18 November 2013 to 20 January 2014. Therefore, it is clear that he was dismissed during the Winter Shut Down in the workplace, and primarily because he was not required during a...