ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00004209

Complaint and Dispute for Resolution:

Date of Adjudication Hearing: 07/12/2016

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Procedure:

In accordance with Section 8(1B) of the Unfair Dismissals Act, 1977, and Section 13 of the Industrial Relations Act, 1969, following the referral of the complaint and dispute to me by the Director General, I inquired into the complaint and dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint and dispute.The complaint under the Unfair Dismissal Act 1977 was confirmed withdrawn on August 25, 2016.

Complainant’s Submission and Presentation:

The claimant commenced employment as Security Officer with the respondent on 26 January 2016.He was based on a Factory setting and earned €387 on average per week. He was dismissed on 15 July 2016 when the respondent indicated that his performance was unsatisfactory.

The claimant worked without incident until 28 June 2016 when he was asked to attend a probationary review meeting .He was informed that his probation meeting had been brought forward by one month to address three alleged incidents .The claimant was hearing this for the first time .

The claimant was dissatisfied with the meeting and contended that it was a Disciplinary meeting dressed up as a probation meeting. Here he received an oral outline of the issues of concern:

Complaint 1: A conversation between claimant and a factory employee (no wrong doing)

Complaint 2: A complaint from a receptionist

Complaint 3: A complaint from a co worker who subsequently became an employee of the factory.

He was not given copies of the complaint, notes of the meeting and he was not permitted representation. He was informed that his probation was being extended.

After this he was on annual leave until 12 July .He was invited to a meeting at the Factory with representatives of the respondent at 4.30 pm in 14 July where he learned that he was to be dismissed with immediate effect .He understood that the dismissal arose as result of a complaint made by the factory to the respondent encompassing the earlier issues raised at the probation review meeting in June.

The claimant contended that he was not given any details of the complaints or remarks or offered the opportunity to defend himself. .He remained dissatisfied at how he was being treated and was disappointed when he was informed by the respondent that as he was on probation, he was not entitled to the complaints in writing and he could take the matter up with the respondent HR.

The claimant submitted that there was no Human resource presence at the meeting , nor was there any documentation covering the meeting .He received a letter from the respondent dated 18 July 2016 titled “ Unsuccessful Probation “ confirming his dismissal due “ to concerns raised with you previously in relation to satisfactory performance “.

The claimant contended that he remained in the dark as to why he had been dismissed and understood that he had been dismissed for gross misconduct without any corresponding use of procedures.

The claimant drew the attention of the hearing to the Employee Handbook where the company indicated that it was their intention to avoid the options of re-deployment or severance. The claimant was clear that he had not been offered an alternative base or a different placement within the company .He was denied his contractual entitlement to 4 weeks notice.

The claimants representative contended that the tool of probation should have been used to monitor the claimants performance and shortcomings should have been flagged with him .In this case, the claimant had not received notice of his extended probation and had been overtaken by a letter from the factory to the respondent.

The claimant had spent years working on building his good reputation which had now been obliterated by the company.

Respondent’s Submission and Presentation:

The respondent accepted the background facts of the case .The respondent submitted that the claimant’s employment was subject to the satisfactory completion of his probationary period. Due to some dissatisfaction with his work, the probation period was extended for a six month period in June 2016.

The respondent contended that subsequent to this extension, there were still some concerns regarding the claimant’s attitude at work and a decision was taken that the claimant was not suitable for employment with the respondent .He was dismissed and received one weeks pay in lieu of notice on 14 July, 2016.

The respondent sought a dismissal of the claim as the respondent had exercised its right to terminate employment within the probationary period on the grounds of the claimant’s suitability.

Decision:

Section 8(1B) of the Unfair Dismissals Act, 1977 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act. The complaint under the Unfair Dismissals Act 1977 was confirmed withdrawn on August 25, 2016.

Recommendation:

Section 13 of the Industrial Relations Act 1969 requires me to make a recommendation in relation to the dispute. I have listened carefully to both parties presentation in this case. I note that the claimant managed to find another job within a short period of his dismissal.

It was clear to me that both parties held a fixed view with regard to the turn of events at the conclusion of the claimant’s employment. On the claimant’s side, he believed that he had been removed from a job he liked without recourse to proper procedures or natural justice. The respondent was equally clear that the claimant was simply “not a fit with the team” and there was sufficient scope within the probationary period to cease the claimant’s employment.

I have reflected on both these perspectives and I have considered the documentation submitted by the parties.

The Contract:

The contract of employment reflects a permanent appointment and is silent on a probationary clause, outside a reference to notice of termination during probation contained in the employee handbook .The handbook was not submitted.

Probationary Review Form:

The probation form had a three stage process outlined.

1 Initial Meeting

2 3 month review

3 6 month review

The first part on initial meeting was completed on 24 June 2016 .This coincided with the completion of the second part of 3 month review on 24 June 2016. These were signed and dated by the respondent and the claimant and referred to an emphasis placed on the need for discretion and care with statements for the claimant.

I found that Part 3 was also filled in which referred to a Final review of either 6 or 9 months and was equally dated 24 June 2016 and signed by both parties .This confirmed the extension of the probation until December 2016.

I have concluded that all three stages of the probationary period were addressed on the uniform date of 24 June 2016. The claimant recalled that this meeting occurred on 28 June.

Probationary Period:

The claimant made an extensive submission on how a period of probation should run to address an employee’s performance and provide an opportunity to improve in the face of identified shortcomings. The respondent saw the period as a period of assessment of performance with a safety valve of an early termination if an employee did not fit.

It is important to consider the type of employment chosen by the claimant. This was a facilities management company which placed him in an external setting at the behest of a client , who in this case was a factory .This constitutes a tri-partite employment relationship , not unlike an Agency worker ,where the Agency places the employee at the behest of the Hirer. There were three entities in this employment relationship

1 The Claimant

2 The Respondent

3 The Factory (Client)

The employment relationship is more complex in this system as the employee has in effect two masters and this can become confusing in times of unease and the presence of complaints.

Therefore, it is vital that proper robust procedures and Induction are in place to guide the process for both parties during the early probation period .Fair Procedures and Natural Justice still apply during this period.

Dismissal:

The respondent was clear that the Factory had expressed difficulties with the claimant .This intensified in the claimants absence on annual leave .The respondent understood that in the absence of an alternative placement for the claimant that they acted fairly by dismissing him on suitability grounds during the lifetime of his probation .

I have considered this viewpoint .Statutory Instrument 146/2000 on Grievance and Disciplinary Procedures sets down a procedural path of fairness in the pursuance of grievance and disciplinary procedures:

Apart from considerations of equity and natural justice, the maintenance of a good Industrial Relations atmosphere in the workplace requires that acceptable fair procedures are in place and observed.

I was dissatisfied with a number of aspects of the July 14 meeting which led to the dismissal .The complainant was entitled to receive notice of both the meeting and the complaint against him. I appreciate that retention of a customer base is vital to the viability of the respondents business; however this must factor in a duty of care to the employee base.

I was dissatisfied at the lack of corresponding documentation in advance or aftermath of the meeting. The claimant was advised to contact Human Resource Department if he wished to follow anything up. In addition, the meeting was on the client site rather than the respondent site.

Taken together, I find that the respondent demonstrated disrespect towards the claimant. I appreciate that this may not have been intended in the pursuance of customer appeasement, however, I find that the claimant was very disturbed by his treatment at the hands of his former employer and was keen to secure an outcome to his complaint lodged with the WRC on 19 July, 2016. I note that he did not initiate the Grievance Procedure in the aftermath of the probation review meeting.

I accept that the statutory protection of the Unfair Dismissals Act 1977 is not available to the claimant. I do not agree with the respondent’s interpretation of the probationary period being void of any umbrella of protection. Everyone has a right to their good name and reputation. An employer has every right to advance shortfalls in performance, albeit grounded in a fair approach with a parallel opportunity given to improve.

I find that the issues concerning the claimant which were in the mind of the respondent on July 14 were potentially disciplinary issues and should have been presented as such .The contract of employment at clause 10 permitted an appeal to the Human Resource Manager within 5 days.

Should you be dissatisfied with any decision to take action to dismiss you on capability /disciplinary grounds, you should apply in writing to the HR Manager within 5 working days of the decision you are complaining against …..

The complainant sought to exercise this option on 18 July 2016. He received a letter confirming his dismissal on the same date .The parties did not meet again until the day of the hearing.

The claimant has found new employment, but remains very disturbed by his experience of termination of employment. I would like to make the following recommendation to the parties clear in the knowledge that the claimant does not wish to return to work there.

I recommend that the respondent introduces a Policy on Induction and Probation which is referenced in the contract of employment. All probation meetings should occur on the employer premises within the stated time frames on the probation review form.

I have found that the claimant was in fact “managed out “of employment on July 14, 2016 in breach of fair procedures and natural justice. He was not permitted an appeal. Notwithstanding that he had agreed to the extension of the period of probation prior to his annual leave. He had no prior warning that the respondent or the client had live issues with him post his annual leave.

In all the circumstances, I find the claim to be well founded and I recommend that the respondent pays the claimant €4,000 as compensation within 4 weeks of this recommendation.

Patsy Doyle, Adjudicator

Dated:   25^th April 2017