ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00003848
| Complainant | Respondent |
Anonymised Parties | Health and Safety Consultant | A Facilities Service provider |
Dispute for Resolution:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts | CA-00005054-001 | 04/06/2016 |
Date of Adjudication Hearing: 20/03/2017
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Location of Hearing: Room 4.01 Lansdowne House
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the referral by an employee of an issue in dispute between a worker and an employer as recognised in Section 13 of the Industrial Relations Act of 1969 (as amended), made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the dispute. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered in the course of the hearing and/or made available in advance of the hearing. In this regard I can confirm that the Complainant gave a detailed submission in her Workplace Relations Complaint Form dated the 4th of June 2017 and the Respondent provided of submissions at the hearing.
The Complainant gave evidence on her own behalf. The HR Director and the Complainant’s own line Manager gave evidence on behalf of the Respondent
Background:
The Complainant is a consultant in Health and Safety and was engaged by the Respondent company on or about the 21st of September 2015. The complainant commenced her employment knowing that she had an initial probationary period of six months with the option to extend should that become necessary.
By March 2016 the probationary period was due to end and the Complainant says she was surprised to understand that there was to be an extension of the probationary period by a further three months. She says this was “out of the blue”. There is no evidence of any build up to this decision and the first documented evidence is in the nature of an email from the Complainant’s line Manager (Mr. G) to the HR Director wherein Mr. G explains that he has extended the period of Probation by reason of a number of issues having come to light in the course of the Probationary period. In particular it is clear that the Line Manager finds the Complainant to have been argumentative and belligerent and even in evidence today repeatedly referred to the Complainant as being belligerent. It is worth noting that in this communication to the HR Director on the 15th of March 2016 there is no real assessment of how the work is not coming up to the standards required and is instead a focusing on the personality of the Complainant and there is no doubt but that there is a personality dysfunction between the Complainant and her Line Manager. He talks of her speaking over him of her lack of respect for his role of her failure to communicate and her being argumentative and belligerent.
HR does attempt to put some shape on the reasons as to why this probation period has been extended in terms of performance and this is set out in an email of the 18th of March and again in an email dated the 30th of March 206 which post-dates a three way meeting held between the Complainant and Mr.G and the HR Director.
Unusually, there is an expectation that the best mode of communication is the telephone which is awkward when people are unavailable and do not have a chance to talk things through and is also bound to create problems with regards to what has been said and how it was said. Mr. G (seemingly based in the UK) insists that it works better for him rather than his getting too many emails. This speaks to his style but leaves someone in the Complainant’s position without any real leadership if she is not being afforded an opportunity to explain what difficulties she might be experiencing.
As part of the extended probationary period there are bi weekly phonecalls checking in to review and see how things are being handled. Of note was a particular project that the Complainant was originally asked to submit in June though which was subsequently moved up to having to be ready for May 1st. The Complainant was having difficulties getting a colleague in England to do his end of the work and the deadline came and went without any particular urgency on her part.
As the issue of missing deadlines had actually been a part of the original reasons for the extension of the probationary period, it is not a great surprise that this matter was raised at the next planned meeting between the Complainant and her line manager- this time in person and not over the phone. There is no way of knowing absolutely what happened at that meeting when there are two different versions but what is beyond doubt is that the Complainant appears to have been summarily dismissed. In his subsequent communication with the HR Manager dated the 6th of May there appears to be a suggestion that the decision to dismiss arose out of Complainant’s belligerence and her refusal to accept her part in the blame for the delays. For example, the lack of the Complainant’s failure to put pressure on her UK colleague who had allowed the timeline to drift had caused annoyance too.
Findings and Conclusions:
I have carefully considered the evidence adduced in this matter and have again looked at the submissions and limited evidentiary paperwork. As an Employee in a company on her probation period and well inside the 52 weeks needed to have the protection of the Unfair Dismissals legislation, the Complainant was in a vulnerable position. The extension of her Probationary period was unexpected and appears to this adjudicator to have been rooted in a personality clash as much as any other performance issue. That said, there does appear to have been communication difficulties in the workplace and a lack of understanding as to the import of the deadlines that are given. It is worth noting that there is no suggestion of a third party complaint being made about the Complainant and no person other than her line manager has suggested that she was difficult to work with and not performing well – so for example there is no build up to the email of March 15th which would suggest that HR knew there was any problem with the Complainant’s performance. On balance I find that the difficulty lay with the Mr. G’s own apparent dissatisfaction with the Complainant which resulted in his unilateral decision to terminate her employment on grounds that did not merit a dismissal. The Complainant was not afforded any natural justice and could have no idea that the meeting she was about to attend could have such a devastating outcome (her probationary period was not due to end until June). The Complainant was not assisted in the workplace and HR failed in it’s function utterly in this regard. It is impractical to expect any workplace to operate on the premise that the Line Manager will only listen if you shout at him – which is seemingly how Mr. G proposes it should work and which was, in fact, his evidence.
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Decision:
I find that there is merit in the Complainant’s dispute with her previous Employer and pursuant to Section 13 of the Industrial Relations Acts 1969 (as amended), I recommend that the Complainant be paid a sum of money and having regard to the fact that the Complainant was only out of work for a four or five month period and has moved on from this situation, I award a sum in the amount of €10,000.00 |
Dated: 12th June 2017
Workplace Relations Commission Adjudication Officer: Penelope McGrath