ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000351

Complaint for Resolution:

Date of Adjudication Hearing: 16/02/2016

Workplace Relations Commission Adjudication Officer: Aideen Collard

Procedure:

This complaint pursuant to Section 14 of the Protection of Employees (Fixed-Term Work) Act 2003 was received by the Workplace Relations Commission (hereinafter ‘WRC’) on 28^th October 2015. Pursuant to Section 41 of the Workplace Relations Act 2015, following the referral by the Director General to me of this complaint of penalisation by dismissal, I inquired into the complaint and gave the Parties an opportunity to be heard and to present any evidence relevant to the complaint. I proceeded to hearing on 16^th February 2016 and both Parties were legally represented. Submissions and supporting documentation from both Parties were received before and during the hearing and all oral evidence presented, submissions and documentation have been taken into consideration. I also indicated that I would be relying upon the key statutory provisions and relevant case law.

1. Complainant’s Submission and Presentation:

• On 14^th April 2015, the Complainant entered into a ten month fixed-term contract of employment with the Respondent German Company as a Senior Associate with the function of 'Specialist Credit Risk Reporting' within the Credit Risk Analysis and Monitoring Team with a start date of 1^st May 2015 and termination date of 29^th February 2016. The basic salary was €58,500 per annum. As confirmed in Clause 3.1 of the contract, its purpose was to cover the Maternity Leave of another employee. Clause 3.3 also provided that the first six months of the contract would be a probationary period. The Complainant was happy with the terms of the contract. He had previously held similar senior positions and felt that he was suitably qualified and experienced to perform the role without difficulty. He was also eager to get on with his colleagues, begin work and make a valuable contribution to the Company.

• On 11^th September 2015, the Complainant became aware that an email offering end of year training had been circulated to everybody else in the team except him and he could not help but feel excluded. He still had almost six months of work left until the end of his contract. Initially he took a gentle approach to the subject and on 18^th September 2015 emailed his Line Manager, to enquire as to whether there was any training available to him. Initially The Line Manager informed him that as the qualification process for such training requires an annual appraisal it would not apply to him since he was on a 10 month contract. The Complainant felt that such a company policy discriminated against him as a fixed-term employee who would not be subject to an annual appraisal. He then took a more direct approach in seeking approval for training opportunities in an exchange of emails with various members of Management including The Line Manager on 21^st-23^rd September 2015. It was confirmed that training not assigned via an annual appraisal can in special circumstances be approved by HR and the Department Head for any employee, regardless of status. The Line Manager confirmed that she was not recommending any further training for him in his current position. The Complainant felt that this was still discriminatory and elevated the matter to the Department Head who replied stating that depending on how he progressed with his on-the-job training, he would recommend a review at the beginning of 2016 to see if any extended training would be reasonable for him and the Company then.
•  
• The Complainant felt that the promise to review his training situation at the beginning of 2016 was the Respondent’s way of avoiding having to afford him training opportunities especially as his contract was due to expire in February 2016. He felt that this was contrary to the Protection of Employees (Fixed-Term Work) Act 2003 (also referred to as the ‘2003 Act’). In his view this required that he be given the same training opportunities as his permanent colleagues from the commencement of his fixed-term contract, not at some time in the future, and not where he would have to make a case that ‘special circumstances’ applied. By reply, he sent an email to the Department Head on 23^rd September 2015 communicating this to him. The Head clarified that the training available to the other team members had been specially assigned to them in the course of their annual appraisals and that employment status is not relevant in this regard. He repeated his proposal that he would review the situation again at the beginning of 2016. The Complainant was also aggrieved in relation to a previous related situation, whereby a month after he had started working for the Respondent, all of the colleagues on his team except him and the employee he was covering for had attended a team meeting and training event in Germany. He had not wanted to raise a grievance about this at the time as he had only been with the Company for a short time but had felt excluded.
•  
• In light of the response from Management as outlined above, the Complainant emailed a worker representative and also submitted a grievance under the Respondent’s internal grievance procedures on 23^rd September 2015 before going on two weeks prearranged annual leave. During an interview with an investigator appointed by the Respondent to investigate his grievance on 20^th October 2015, the interview focused on another aspect of his grievance and he felt that the issue of training was being brushed under the carpet. He sent a follow-up email to the investigator explaining the previous situation whereby all of his team colleagues except him had been sent on training in Germany. A week later on 27^th October 2015, the Complainant was informed that his grievance was not being upheld. The following day on 28^th October 2015, he was asked to engage in a probationary review process with The Line Manager , arising from which he was summarily dismissed and told to log off his computer, take his things and leave the premises immediately. During the probationary meeting, it was put to him that he had not performed part of his duties well. He felt this was at odds with a recent review undertaken by another colleague who had told him that he had completed a work related process very well. On the same date, the Complainant emailed this colleague asking him to confirm the previous good feedback but it appears that this was not forthcoming. He also emailed the HR Manager informing her that as his work had been positively reviewed by a colleague it was his view that the termination of his contract was penalisation for having raised a grievance. The HR Manager replied by email the following day, confirming that as his grievance had been treated as a stage 3 grievance at his request there was no appeal. She also confirmed that his termination date was 28^th October 2015, that he would be paid in lieu of the one month’s notice period and that the reason for his dismissal was that he had not passed his probationary period. The Complainant felt that this sudden end to his contract had come about because he had submitted a grievance pointing to the fact that the treatment of him by the Respondent in failing to afford him the same training opportunities as his permanent colleagues because of his fixed-term status, was in breach of the 2003 Act.
•  
• The Complainant’s Solicitor outlined the legal basis for his complaint and confirmed that this claim was solely a complaint of penalisation by dismissal under Section 13 of the Protection of Employees (Fixed-Term Work) Act 2003 for raising a grievance in relation to equal training opportunities under the Act. This is in keeping with the specific complaint indicated in the Workplace Relations Complaint Form submitted. She also confirmed that he had not been in employment since his dismissal and was seeking monetary compensation by way of redress.

2. Respondent’s Submission and Presentation:

• Counsel for the Respondent confirmed that the Respondent wholly disputes the Complainant’s claim of dismissal as a result of penalisation and contends that he was dismissed as he had not passed his probation and there were numerous issues with his performance preceding his raising a grievance under the Protection of Employees (Fixed-Term Work) Act 2003. She confirmed that there is no dispute between the Parties as to the purpose and terms of the 10 month fixed-term contract to cover Maternity Leave and outlined the provisions that were most relevant to the Respondent’s defence. The hours of employment were prescribed at Clause 7.1 of the contract of employment as 40 hours per week to be worked between 8.30am and 5.30pm (Monday to Friday), inclusive of one hour for lunch. Clause 3.3 of the contract also provided: “The first 6 months of the employment will be a probationary period. The employment may be terminated on one month’s notice given in writing by the Company or the Employee at any time during this period. During this probationary period the Employee’s performance and suitability for continued employment will be monitored. The Company’s disciplinary procedure shall not apply to the employment during the probation period or any extension of the probation period. At the end of the probationary period, the Employee shall be informed, in writing, if he has successfully completed the probationary period.” The Complainant was also provided with an employee handbook at the commencement of his employment consistent with his contracted hours of work and probationary period and contained the training policy.

• The Complainant’s Line Manager, gave evidence outlining the background facts. She confirmed that it is the Respondent’s position that the Complainant’s performance, even in the early months of his employment, did not meet the requirements or the standards of the Respondent. However, Management had taken a supportive approach towards the Complainant including affording him opportunities to settle in and develop his skills. The employee whose position he was employed to cover provided him with one-to-one training until she took up her Maternity Leave on 24^th June 2015. In July 2015, the Complainant was unfit to work for a period of three weeks. On his return in early August 2015, The Line Manager had a number of meetings with him around his work performance. When she sought to set out a plan with timelines to assist him with carrying out his tasks, he disagreed with same and also offered reasons for his difficulties including stress around undertaking his duties and interpersonal difficulties. The Line Manager emphasised that she did not want him to feel under undue workplace stress and the task schedule was for the purposes of assisting him and thereby avoiding such stress. If he could not achieve a particular task or had any difficulties, The Line Manager told him to contact her to discuss. These exchanges were evidenced in emails submitted at the hearing. The tasks in question were within the remit of his job description. The Complainant was supported by Management and his team throughout his employment including receiving appropriate training in relation to learning his tasks. However by the end of his six month probationary period he was still unable to undertake many of the duties of the role.

• In relation to time-keeping, it was submitted that the Complainant frequently arrived late and left early from work and also took two hour lunch breaks. This had been noticed and observed by Management. The Line Manager met with the Complainant on 8^th and 19^th August 2015 and discussed with him his failure to work the contractually required 40 hours over a 5 day period. Due to the ongoing time keeping issues with the Complainant, he was issued with a verbal warning on 19^th August 2015, with this being notified to him by email. At this time, the Complainant was informed that if his time keeping did not improve, further disciplinary measures may be taken, including dismissal given his probationary status. The disciplinary procedure did not apply to the Complainant as he was a probationary employee but the issue of timekeeping was dealt with as a disciplinary issue. The Respondent was clear that flexibility was in place regarding start, end and break times but that the aggregate minimum hours as per employees’ contracts of employment were required. Prior to commencing his employment, the Complainant had requested that his contract reflect a 37.5 hour working week but was specifically informed in writing that standard working hours within the Respondent was 40 hours per week. The Complainant had signed and received a copy of his contract of employment prior to commencing his employment and therefore was fully aware as to the required hours of work. The Complainant’s time-keeping improved until it became an issue again in October 2015.

• From in or around 18^th September 2015, the Complainant raised issues around opportunities to participate in training processes within the Company. For employees who did not have annual appraisals or for any training needs that are in addition to the ones identified in the annual appraisal, approval from the Department Head is needed. When the Complainant asked his Department Head if he could attend external training, it was felt that the on-the-job training that he was receiving frequently was sufficient at this stage. All of the Respondent’s employees are treated in the same way so the Complainant’s contentions that he was treated less favourably and/or discriminated against in relation to any training opportunities are refuted. In addition, the Complainant took part in German lessons that are offered to all employees based in the Dublin office. The formal grievance raised by the Complainant on 23^rd September 2015 included a number of issues with his employment to date, not just in relation to his training but also regarding the hours he was required to work, his workload, feeling excluded when German was in use, his request to have the verbal warning regarding his time-keeping erased being ignored, and penalisation for raising a concern relating to health and safety. The Respondent appointed an investigator who conducted a thorough investigation, interviewing the Complainant and any relevant witnesses and issued her outcome letter on 27^th October 2015. The reason that the outcome was not issued until this date was primarily due to the Complainant being absent on annual leave immediately after raising the grievance so it could not be investigated until his return. The grievances of the Complainant were not upheld on any of the grounds and detailed reasons were provided.

• During this time, the Complainant remained a probationary employee as he was still within the first six months of his employment. Accordingly, his performance and suitability for continued employment post his probationary period were monitored during this period. As evidenced in further email exchanges, the Complainant continued to struggle with the duties entailed in his job description and he did not take up offers of assistance. Also in spite of having received a verbal warning in August 2015 and being notified that further time keeping issues could lead to the termination of his employment, The Line Manager gave evidence that whilst in the Dublin Office, she observed that the Complainant had failed to work the required 8 hours per day period on a number of subsequent occasions and particularly on 20^th and 21^st October 2015. On 28^th October 2015, the Complainant was informed by The Line Manager that he had not passed his probation due to his performance not meeting the company standards and his inability to perform the role. In particular, The Line Manager clearly explained to the Complainant that he still required assistance to complete key tasks and could not do so independently. The Complainant's employment was terminated by letter dated 28^th October 2015. This termination conformed to Clause 3.3 of the Complainant's contract of employment, and in particular with the requirement for the Respondent to inform the Complainant at the end of the probationary period if he had successfully completed this period. As he had not passed the probationary period, the option to dismiss was invoked by the Respondent entirely in conformity with this clause of the contract of employment.

• The claimant was very clear in her evidence that she had given the Complainant a final chance to improve his performance by August/September 2015 but when he still required supervision to complete key tasks at that stage despite all the assistance provided, formed the view that there was nothing more that the Respondent could do to assist him with his performance. The Line Manager further contended that this view had been reached in early October before a finding had been issued in relation to his formal grievance and in fact before she was made aware of the existence of his formal grievance.

• It is submitted on behalf of the Respondent that it is clear that the Complainant was not treated less favourably than permanent employees in relation to training or conditions of employment and in any event this complaint was not being pursued. His performance was significantly below that which the Respondent could expect for an employee at the Complainant's position, experience and salary level. The termination of the Complainant’s employment some four months prior to the date of cessation of his fixed-term contract left the Respondent with no employee to cover for an employee's Maternity Leave. It was not a decision which the Respondent took lightly but it was left with no option but to terminate his employment due to his poor performance and failure to meet the requirements of the probationary period. Indeed, another former employee who was engaged on a permanent contract also failed to successfully pass his probationary period at this time and therefore the allegations of the Complainant do not attract any rational basis and are speculative at best. The Respondent was entitled to terminate the employment of the Complainant as he was not performing to an adequate standard, this had been discussed with him and he was aware that his failure to improve could lead to termination of employment.

• The Respondent further submits that the Complainant cannot establish any such causal link between his treatment and his raising of allegations around training opportunities as a fixed-term employee. It is contended that the first time any protected act was undertaken by the Complainant was on 23^rd September 2015 when he referred, obliquely, to being treated differently regarding training opportunities on the basis of his fixed-term contract. Prior to this occasion, the Complainant had raised issues with his alleged workload and working hours, neither of which are protected acts for the purposes of the 2003 Act. There were also numerous issues with his performance preceding his raising a grievance under the 2003 Act. Therefore, the Complainant cannot cloak himself with protection from dismissal merely by taking a protected act in circumstances where he was not adhering to his terms and conditions of employment regarding hours of work and did not meet the required standards of performance. The Complainant was not penalised by reason of his having raised an issue of alleged less favourable treatment regarding training opportunities in breach of Section 13 of the 2003 Act and his claim of penalisation must therefore fail. In this respect, the Respondent relied upon the ‘but for’ test set out by the Labour Court in O'Sullivan -v- Toni & Guy Blackrock Limited [2013] 21 E.L.R. 1 and Tesco Ireland Limited -v- Kowalski HDA1310 where it was found that disciplinary action taken against him, including termination of his employment, was unrelated to representations he had made regarding health and safety issues.

• The Complainant’s submissions did not address the aforesaid issues that the Respondent had with his performance including the verbal warning in August 2015 for time-keeping. There was no dispute as to most of the facts save that the Complainant’s Solicitor put it to The Line Manager that any issues regarding time keeping were down to confusion over the precise terms of the contract and/or were overplayed. Additionally, it was contended that the Complainant had not been underperforming in relation to his duties to the extent contended by the Respondent and in fact had been making progress before his dismissal. She also objected to the admission in evidence of an email exchange between the Complainant’s Managers regarding his work performance in early October 2015.

• Solicitor for the Complainant confirmed that this claim is solely one of penalisation by way of dismissal for undertaking a protected act, pursuant to Section 13 of the Protection of Employees (Fixed-Term Work) Act 2003, the relevant portions providing:
• “(1) An employer shall not penalise an employee -
• (a) for invoking any right of the employee to be treated, in respect of the employee' s conditions of employment, in the manner provided for by this Part,
• (2) For the purposes of this section, an employee is penalised if he or she –
• (a) is dismissed or suffers any unfavourable change in his or her conditions of employment or any unfair treatment (including selection for redundancy), or
• (b) is the subject of any other action prejudicial to his or her employment.”

• It is therefore not necessary for me to determine whether or not the Complainant’s complaint of less favourable treatment in relation to his conditions of employment, in this case training under the 2003 Act was well-founded. I simply have to be satisfied that he sought to invoke a right under the Act, so as to proceed to consider whether he was penalised as a result of same. There was no dispute between the Parties that the Complainant sought to invoke such a right from 23^rd September 2015 onwards.

• In terms of establishing penalisation within the meaning of Section 13 of the Protection of Employees (Fixed-Term Work) Act 2003, it is clear that the Complainant must establish that he was subjected to detrimental action by the Respondent as a result of his having invoked a right pursuant to the 2003 Act. In this regard, reliance was placed by the Respondent on O'Sullivan -v- Toni & Guy Blackrock Limited [2013] 21 E.L.R. 1, where the necessity for a causal link in claims of penalisation pursuant to the Safety, Health and Welfare at Work Act 2005 was established. I accept the Respondent’s submission that this approach should be adopted in the instant case given the similar wording of Section 13 of the 2003 Act. I also note that there was no objection to the application of this test in the instant case from the Solicitor for the Complainant. The Labour Court held as follows in that decision: “It is clear from the language of this section that in order to make out a complaint of penalisation it is necessary for a claimant to establish that the determent of which he or she complains was imposed "for" having committed one of the acts protected by subsection 3. Thus the detriment giving rise to the complaint must have been incurred because of or in retaliation for, the claimant having committed a protected act. This suggested that where there is more than one causal factor in the chain of events leading to the detriment complained of the commission of a protected act must be an operative cause in the sense that "but for" the claimant having committed the protected act he or she would not have suffered the detriment. This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned determent… Thus the claimant must establish, on the balance of probabilities, that he made complaints concerning health and safety. It is then necessary for him to show that, having regard to the circumstances of the case, it is apt to infer from subsequent events that his complaints were an operative consideration leading to his dismissal. If those two limbs of the test are satisfied it is for the respondent to satisfy the Court, on credible evidence and to the normal civil standard, that the complaints relied upon did not influence the claimant' s dismissal."

• In applying the aforesaid test to the instant circumstances, I must ask myself whether the Respondent would have dismissed the Complainant at the end of his probationary period had he not raised any issue regarding obtaining the same training opportunities as his permanent counterparts under the Protection of Employees (Fixed-Term Work) Act 2003. Even if I accept that there were genuine performance issues regarding his duties, I also have to consider whether the Respondent would have taken alternative action such as extending the probationary period ‘but for’ the fact that he had sought to invoke a right under the Act.

• Having weighed up all of the evidence on the balance of probabilities and applying the relevant test, I am satisfied that the Respondent would have terminated the Complainant’s contract at the end of the six month probationary period notwithstanding that he sought to invoke his right to the same training opportunities as his permanent counterparts under the 2003 Act. I am particularly influenced by the overwhelming evidence that notwithstanding ongoing support, the Complainant was still unable to undertake many of the duties in his job description by the end of the six month probationary period. Although issue was taken with whether he had completed the last monthly run independently, his underperformance was substantially uncontested and not addressed in his submissions. I am also inclined to think that his generally defensive attitude and argumentative responses to emails from his Line Manager, The Line Manager , in August 2015 containing a suggested plan with timelines to assist him in carrying out his tasks did not help matters. I am further satisfied that related to his performance issues, his time keeping became a real issue for The Line Manager leading to the initial verbal warning in August 2015 and re-emerging in late October 2015. Nor is it disputed that these issues preceded his emails to Management from 18^th September 2015 and formal grievance of 23^rd September 2015 regarding his complaint of not being afforded the same training opportunities as his permanent counterparts under the 2003 Act.

• I have examined the Respondent’s motives and reasons for the detriment complained of by the Complainant in circumstances where there was clearly more than one causal factor in what was a chain of cumulative events leading to his dismissal. In this regard, I am satisfied that the performance and time-keeping issues were genuinely held and supported by the evidence. I also find that they were already well established before the Complainant had sought to invoke a right under the 2003 Act. Having done all that it could to support and assist him in undertaking his role, I do not believe that the Respondent would have extended the probationary period even if he had not sought to invoke a right under the Act. Therefore, I do not find that seeking to invoke a right under the Act was the operative cause for his dismissal in the sense that ‘but for’ the Complainant having committed the protected act he would not have suffered this detriment. In other words, I am satisfied that his dismissal was not because of or in retaliation for the protected act in question. Although The Line Manager was clearly aware of his disquiet about not being afforded the same training opportunities as his permanent counterparts from their exchange of emails, whether or not she became aware of his grievance before deciding to let him go has little consequence given the overwhelming evidence that he was dismissed for not passing his probation. I therefore find it unnecessary to consider or rely upon the exchange of emails between The Line Manager and another Manager in early October 2015 regarding same. Whilst the timing of the Complainant’s dismissal the day after his grievance outcome is somewhat unfortunate, I am satisfied that this is adequately explained by the fact that the he had submitted the grievance before going on annual leave and shortly before his probationary review which could not be investigated until after he had returned.

• I therefore find that the Complainant was not penalized by dismissal pursuant to Section 13 of the Protection of Employees (Fixed-Term Work) Act 2003 and accordingly his claim fails.

• Dated: 24/05/2016