Workplace
Eliminate poor
PERFORMANCE Hospitality employers can’t afford to retain poor performers, however dismissal on these grounds is often difficult. So why not think about deploying a Performance Improvement Plan? Dr Gerry McMahon gives the lowdown on PIPs
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s far back as 2005, the Irish Business and Employers’ Confederation (IBEC) warned its members that the chances of being deemed to have fairly dismissed an employee on the grounds of poor performance were slim; it’s a long drawn out process with little guarantee of a successful outcome. Recent research at Technological University Dublin confirms IBEC’s warning. From a representative sample of 400 dismissals contested before third parties in recent years, performance was relevant to the judgement in just over 5% of cases and even then, not all of the judgements went in the employer’s favour. In an effort to address this issue, the practice of deploying a Performance Improvement (or Expectation) Plan (PIP) has now emerged as a means of addressing underperformance. According to the Society for Human Resource Management, a PIP “is a great way to give struggling employees the opportunity to succeed while still holding them accountable for past performance”. IBEC also recently reported that PIPs “are an increasingly common tool utilised by employers to manage cases of poor work performance”. For example, the Irish civil service now applies PIPs to those “who have not improved following interventions made through regular performance management processes” and is “built on principles of natural justice and closely reflects good HR practice in other sectors”. Under their PIP scheme, underperformance issues are initially handled informally but if unresolved and performance has not improved, the employee can be (fairly) dismissed. THE LAW AND PIPS Significantly, the PIP process now frequently features in dismissal cases coming before third parties. For example, last year an Adjudication Officer (AO) at the Workplace Relations Commission (WRC) upheld the employer’s
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decision to dismiss a long serving operations manager who failed his PIP. He concluded that the procedures used were fair and the rules of natural justice were followed. Likewise, in 2017 the employer’s decision to dismiss a supervising pharmacist after he failed the PIP was upheld, as the adjudicator noted that the employer provided the complainant with ongoing mentoring and support throughout the PIP period and that it had even extended the plan’s duration on his request. She also noted that the employer’s procedures “were clear and detailed and were available at all times to the complainant” and the pharmacist had been informed of his performance issues, what was expected of him and the consequences of not achieving his PIP. At around the same time another adjudicator at the WRC found an employer’s dismissal of an accountant to be fair, where the process included the application of a PIP in a process that was deemed reasonable and in line with procedures. The AO recorded that the employer had used PIPs with other employees and had tried to use one with the accountant who didn’t cooperate, as he claimed that it was “rigged” for him to fail. REAL COMMITMENT Of course to succeed in a contested dismissal case, Dr Gerry it’s important for the employer to be able to show that McMahon they also committed to the PIP process. Otherwise, it may be held that they “produced no evidence ... to show that training was made available to the claimant to address his shortcomings....”. A similar deficiency in such scenarios surfaced in the Irish Wheelchair Association’s case which found that they should have “engaged more constructively” with the claimant around the implementation of the performance improvement process. However, where it can be shown that the employer implemented a PIP and as held by the State’s workplace adjudication service, “behaved reasonably at all times and did its utmost to support the claimant ... affording him every opportunity to adapt to the particular requirements of the respondent’s business”, the decision is likely to go in the employer’s favour. Google (Ireland)
CATERING REVIEW | ISSUE 11 2020
020_HCR_NOV 2020_Gerard McMahon_V3.indd 20
10/12/2020 10:40
