Complainant

Respondent

Parties

A Home Advisor

A Computer Company

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00009257-001

24/01/2017

The Case concerns of   an appeal of a Dismissal undertaken during a probationary period .

The Claimant is a Croatian National who commenced a permanent contract with the Respondent on 3 August 2016. His gross monthly pay was €2,000 for a 40 hour week .He worked as an” at Home Technical Support Advisor” based in his home location. He had worked for another company prior to accepting this role in June 2016.

The Claimant was engaged in training and “nesting in “period until Mid September 2016. He was assigned to a Team and received support from his Team Leader .The Claimant contends that he was unfairly treated in his dismissal from the company on 14 December ,2016 .He received four weeks pay in lieu of notice.

The Claimant told the hearing that he understood the concept of Probation as he has passed this at his previous company. He understood that there were three stage outcomes to probation at the current company :

1 Pass

2 If not satisfactory , probation could be extended

3 Fail

The Claimant detailed a number of “occurrences “which he experienced as part of the workforce.

Occurrence 1: The Claimant lost electrical power at his home causing a 4 day absence.

Occurrence 2: The Claimant lost Broad band coverage at his home causing a 4 day absence.

Occurrence 3: I day sick leave

Occurrence 4 : 3 days certified sick leave ( family issue)

Occurrence 5: 2 days sick leave.

The Claimant gave evidence that he had been in communication with the company throughout these periods. He gave evidence of a pressing family and personal illness.

The Claimant called the company on Friday November 25 ready to start back the next day, but became ill shortly afterwards. He worked the next day .He was worried about being ill and being in danger of termination of employment and rang the company to be told that he should stay home until he felt better .He two days sick leave after this , all unpaid .

The Claimant proceeded on holidays and returned to Croatia to attend to family business .He returned to work on December 5.

At the morning team meeting on December 14, the claimant volunteered for 20   extra hours overtime as his family were still in Croatia .On the same day , he was called to a review of his probation attended by his Team Leader and another manager .The Claimant stated that he was offered representation but he did not know who to bring .

The Occurrences were discussed and acknowledged .The Claimant submitted that the episodes of sick leave should not be included in the “occurrence matrix”. He contended that if the company doubted his sick leave, they could have asked the Company Doctor to become involved.

The Complainant was informed that his 5 occurrences amounted to a failed probation and immediate dismissal .He offered to work a month without pay but this was met by a negative response. He lodged an appeal, but was unsuccessful.

The Claimant stated that he had not worked since his dismissal and gave evidence that he was subsisting on €380 payment from the Department of Social Protection.

The Complainant made two proposals for resolution of his case

1 Offer of re-engagement and compensation.

2 Monetary compensation.

He explained that his job loss had had a devastating effect on his personal and professional life.

The Claimant submitted that the Probationary period was detailed as six months in duration in his contract of employment .He understood that he was subject to a review of his performance, however his probationary period had some time to run at the time of his dismissal . He believed that he had been punished for being ill .

He was looking forward to career opportunities at the company and was deeply disappointed to have lost his job.He believed that he had more to offer the company and had applied to many companied for work inclusive of the present company .

The Employer is a large Computer Company, which employs over 5,000 people in Ireland, in three primary locations .The Employer rejected the claimant’s statement that he had been unlawfully punished for three occurrences of absences, due to sick leave.

It was common case that the claimant started work on August 3, 2016.The Employer familiarised the claimant with the company attendance policy and the contract of employment clearly outlined the importance of a probation period.

There was no dispute on the sequence of the claimants five periods of absence from work .Following the first two periods of absence in September 2016; the claimant was advised that his absence was a concern. This discussion sheet dated September 20, 2016 outlined that the company was taking the absences seriously and further incidents may lead to further action. The claimant was granted a Force Majeure absence day on October 5, 2016 which was not counted for the purposes of the occurrences.

A further Discussion sheet issued on 12 October following a day on which the claimant reported sick. On this occasion, the company outlined that should there be any further occurrences of absence, the probationary period would be at risk of termination .This document was accepted by the claimant.

Following two further periods of absence in November 2016, the claimant was invited to a review of his probation period on December 13. The claimant’s performance and attendance were reviewed and he was given the opportunity to comment .He was invited to a follow up meeting on December 14.

At this meeting, the Employer submitted that the claimant heard that he had not met the requirements of his role with specific reference to ongoing attendance concerns. The company contended that they were left with no alternative but to terminate the claimant’s employment due to a failed probation.

The Employer heard the claimants appeal ,and upheld the decision to dismiss the claimant .The Employer submitted that the company had followed the company attendance policy and probation procedures were followed fairly .The claimant was offered representation and the right to respond to the concerns raised during his probation review .This was taken into consideration in the deliberative process .The claimants level of absence was unacceptable and in excess of the guidelines outlined in the company attendance policy .

The Employer responded to the two proposals put forward by the claimant to resolve the dispute and declined both options.

The Employer submitted that the Company sought to be lenient with the claimant but they were compelled to follow their own guidelines .All absences due to illness and those linked to self reported technical issues were incorporated into the 5 occurrences in less than a six month period. The Company also had a difficulty with the claimant’s utilisation of wireless broadband when a cable connection was required .The Claimants probation was due to expire on February 3, 2016.

The Employer addressed the claimant’s contention that he had been sanctioned to do additional hours and granted same just before his employment was terminated .This was described as an operational issue which had not yet fed into the probationary review meeting.

The Employer contended that the company was not in a position to rehire the claimant.

I have given careful consideration to both parties’ submissions, both oral and written. I have also considered the company policies as outlined by the Employer and responded o by the claimant.

The period of probation was referred to in the contract of employment as being of 6 months duration, with a potential to extend to a maximum of 12 months at the Company’s discretion.

“ Termination of employment within the probationary period shall be at the discretion of the Company if you are deemed not to be suitable on the grounds of performance or conduct “

The Company Attendance Policy outlined that :

“ Attendance will be considered to be outside of guidelines and subject to corrective action when you accumulate

4 or more incidents in a rolling 6 month period ………. “

The Management reserves the right to determine appropriate corrective action for violations of the attendance guidelines, up to and including termination of employment.

The Employer outlined the company’s’ expectation of the probation period and this seemed to match with the claimants understanding of the period ,when he stated that he had passed probation at an earlier employer location . While he was a little uncertain on the status of the day’s sick leave on October 10, he accepted that 5 occurrences of absence had been incorporated in his employment span from August –December 2016.

I found the claimant to be very genuine in his reasons given for his absence .The first two episodes were technical glitches on power and broadband resulting in some days away from connection with the company. The next three were linked to both family illness and personal illness. It was clearly a challenging time for him.

I asked the employer whether there was a particular weighting/allowance made for home based workers in terms of the attendance policy?. My reasoning for this question emerged from the viewpoint that a home based worker may not have the operational supports available on a company site .I learned that the same policy covered both workers , home and company based .

I am satisfied that the Employer applied the Probation period section of the company   Attendance Policy to the claimants level of absence. I accept that the claimant was aware that his continued employment was at risk from October 12, when he acknowledged the second discussion sheet .This was reflected in his evidence when he stated that he had discussed this apprehension with his wife during the November sick leave.

I appreciate that the claimant accepted the good wishes of his Manager when she encouraged him to take time off to get better; however, I find that this was based on a good will rather than being linked to the probation review.

I have found that it is regrettable that the technical glitches which constituted the first two absences were not mitigated by the parties into some type of contingency, where the claimant could have provided a work service in another way. I saw those periods as missed opportunities for both parties, noting that the claimant was not paid during his absences.

I have given careful consideration to the circumstances surrounding the claimant’s dismissal. I find that the claimant was given advance notice of a meeting to discuss his probation .He was permitted a Representative but declined .He was appraised of the issues raised by the Employer in relation to the 5 occurrences and the shortfall in his broad band connection . I was disappointed that notes of the December 13 or 14 meetings were not submitted .These were important meetings and should have been committed to record .However, the content of the meetings were not disputed by the parties .

I have considered the Probation review meeting outcome and find that the claimant was given notice that his case was being considered, permitted representation and invited to a resumed meeting.

He was dismissed at the meeting of December 14, 2016. I did seek a copy of this letter but neither party were in possession of the letter. However, the Employer confirmed that dismissal was not disputed and was evidenced by payment of 4 weeks pay in lieu of notice followed by a two stage appeal.

In a 2015 Labour Court Determination: Glen Patrick Water Coolers V A Worker LCR 21028, the Court was critical of procedural deficiencies following a summary dismissal for performance issues. The Court found that there had been no advance notice of a meeting, no representation permitted, and no follow up meetings. In addition the Court remarked that SI 146/2000, the statutory code on Grievance /Disciplinary issues had not been adhered to.

In the instant case, the claimant chose to represent himself throughout the final meetings with the company inclusive of the appeal. I was concerned that as a home worker he may not have been acquainted with the workforce, but he assured me that he knew fellow workers but didn’t know who to ask.

The period of probation is an important time for both the employee and employer .I accept that the claimant really liked his work at the company and was devastated when he lost his job. However , the company had placed the claimant on notice of his possible termination in the face of further absences in October 2016 and he had not appealed the approach adopted   by the company.

I find that the Employer acted in accordance with fair procedures ,the contractual terms on probation and the company policy on attendance when they dismissed the claimant .I am satisfied that the facility for Appeal of the decision was provided for and availed of by the claimant. The Claimant chose not to be represented . He was not satisfied that certified sick leave was incorporated into the occurrences of absence .However; the Appeal found that the policy provided for this.

As I have stated, I am dissatisfied with certain documentary shortfalls in this case, however on the facts as presented, I find that the Employer acted in accordance with the parameters of the company’s probation procedures when they dismissed the claimant on 14 December, 2016 .I have found that based on the facts as presented that the Employer also adhered to the statutory code on Disciplinary procedures and provided an appeal of the decision. The Employer relied on the discretionary powers provided for in the attendance policy and based on the parties submissions , I found that to be a fair approach .

I have concluded that this was an employment relationship which did not survive a probationary period and therefore, I have found that the complaint cannot succeed.

Dismissal During Probation :