ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00007110

Parties: 

Complaint:

Date of Adjudication Hearing:  20/06/2018

Workplace Relations Commission Adjudication Officer:  Rosaleen Glackin

Procedure:

In accordance with Section 8 of the Unfair Dismissals Acts, 1977 – 2015andfollowing the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

BACKGROUND.

The Complainant was employed by the Respondent as Financial Advisor from 8th February 2016 until the employment was terminated by the Respondent on 23rd December 2016 with one month’s pay in lieu of notice. The Complainant was paid 3038.00 euro gross per month and she worked 38 hours a week. The Complainant was provided with a written statement of her Terms and Conditions of Employment. The Complainant referred a complaint to the Workplace Relations Commission on 13th February 2017 alleging she had been unfairly dismissed on the basis of her pregnancy.

SUMMARY OF COMPLAINANT’S POSITION.

The Complainant was employed by the Respondent from February 2016 and her employment was terminated by the Respondent on 24th November 2016 on discriminatory grounds relating to her pregnancy. The Complainant does not have one years continuous service with the Respondent as required by Section 1 of the Act but is relying on Section 6(f) of the Act which provides that the dismissal of an employee on the basis of “the employee’s pregnancy, attendance at ante-natal classes, giving birth or breastfeeding or any matters associated therewith”.

The Complainant did not receive any training or support for the first month of her employment nor did the Complainant work in her position or indeed in any position. She accompanied a number of advisors and the Complainant noted that each Advisor operated in a different manner. The Complainant received intensive training around 10th March 2016. This would normally take three weeks but the Complainant’s training was considerably less. The Trainer did not identify any problems with either the Complainant’s notes and did not correct any error in procedures. The Complainant had her first day working in a Branch on 14th March 2016 but she did not receive any feedback from her Line Manager. She received positive feedback in late April/early May from a named Manager but she was informed in May/June that her compliance fails required additional support. The Complainant outlined in detail the issue of what Compliance fails means. In May 2016 a named Account Manager, met with the Complainant on two occasions to assist with this problem where she was informed she could recheck after the client left the Branch. But later she received “amber warnings” fort following this.

The Complainant received her three month review in Mid-July 2016 after which she received positive feedback from a named Manager and also indicated areas of improvement. Between July and September 2016 the Complainant reduced Compliance fails to27% and she had two full months of 100% compliance and she received a bonus. During this period the Complainant was on leave as she was getting married and in early September 2016 she informed her Line Manager she was three months pregnant and later informed the Respondent’s Manager. From that date forward the Complainant asserted she was treated differently. She received negative feedback around 14th September 2016 and her 6 month review was carried out on 28th September 2016 after which she received negative feedback, and when she produced her training records these were disputed.

The Complainant stated her probation was extended from 9th November 2016 to January 2017. The Complainant was not provided with considerable supports as asserted by the Respondent and given the defective training provided to the Complainant it was asserted that it was the Respondent who had failed to provide the Complainant with sufficient and adequate training. The Complainant stated that while she expected the decision to terminate her employment and this related to the change in conduct and attitude of a named Manager and the targeted negative feedback and this commenced with the Complainant notifying her Employer of her pregnancy.

It was noted that the Respondent uses the probationary period to assess the abilities, competencies and suitability of a new employee but it is also the time to allow an employee to use the training provided to them by their employer. The Complainant noted that the Respondent relies on a national average of 7% compliance fails but this does not afford adequate consideration for the employee in training, employees who received incorrect training, insufficient supports and assistance during this training. The Complainant stated that it was accepted a pattern developed with her performance but denied this arose through her lack of understanding but resulted from the Respondent’s failures and she identified that a named Manager delayed giving feedback which did not allow the Complainant to improve.

The Complainant had her second probation review meeting in October 2016 and there was significant progress in her compliance fails. The Complainant’s employment was terminated during her extended probation period.

The Complainant stated she had commenced employment in September 2017. She was required to provide evidence of this post the hearing but did not do so. She gave birth on 11th March 2017

The Complainant gave direct evidence in which she stated she had 10 days training in February 2016 and stated that during her employment she had made mistakes she was unaware of. She stated yes there were compliance issues but she was improving and she stated she had got a Bonus for her compliance work. She stated she notified the Respondent in September 2016 that she was pregnant. She stated that she had not been provided with a dismissal letter but she had a meeting with her Line Manager who informed her of her dismissal and the reasons for her dismissal.

SUMMARY OF RESPONDENT’S POSITION.

The Complainant was employed on a Contract of Employment which provided that the Complainant could be dismissed at any time during her probationary period. The Complainant’s probationary period was not extended and her contract was terminated as she did not meet the minimum standards required in terms of compliance. Despite the considerable supports provided to the Complainant she did not illustrate a sufficient understanding of the level of compliance required of her. There was no discrimination against the Complainant on the basis of her pregnancy. The basis of the decision to terminate the employment was fully explained to the Complainant at the meeting of 24th November 2016.

The Complainant was employed as a Financial Advisor on a nine month probationary contract and the Respondent uses this period to assess the abilities and competencies and suitability of the new employee and Section 3 of the Unfair Dismissals Act expressly provides for this. The role of Financial Advisor was set out by the Respondent and the role is a “controlled function” as set out by the Central Bank Reform Act, 2010 and defined by the Fitness and Probity Regulations and Standards 2011. Any appointment is conditional on the Respondent being satisfied that the employee meets the requirements as set out by the Central Bank. To asses the new employee the Respondent has in place a mystery shopping and point of sale programme in place for Financial Advisors and these were outlined by the Respondent in detail by way of submission and at the hearing. During the Complainant’s probationary period it was necessary for the Respondent to bring her attention to five identified issues and a number of red and amber quality marks were received by the Complainant during her probation and these issues were a cause of concern. The Complainant received feedback from her Manager in relation to these issues. The Complainant’s compliance rates were at 64% in May/June 20216 and had reduced to 27% by September 2016. While this was an improvement the compliance fail rate is 7%. There was a lack of understanding by the Complainant on compliance in her role.

The Complainant was in training from 8th February 2016 until she commenced in a Branch on 14th March 2016. She had her initial 3 month review on 22nd July 2016. A number of issues of concern were identified including compliance issues. She was provided with additional supports in relation to the compliance issue. A named Manager had been appointed to the Complainant in May 2016 to assist her with this issue. The Complainant was provided with feedback from her July review and the issue of compliance fails was identified as a significant issue.  Following this the Complainant was provided with additional support in relation to three specified areas. In October 2016 a six month review took place. During this review she was informed there were issues in relation to her compliance fails and that that it was most unlikely her probationary period would be successful. This was identified as an ongoing issue and the Respondent provided copies of emails to the Complainant on 20th May –23rd, 24th, 25th 26th and 27th May – 30th May – 13th July – 18th July – 5th October 2016. The Complainant was given a 2 rating and she was advised by email that her probation would not be fulfilled.

There was a point of sale observation in September 2016 and there were multiple compliance breaches, some of which had occurred previously. There was a further mystery shop on 22nd November 2016 and there were two amber compliance breaches and an appointment was made with her for 24th November in relation to her probationary period and that her employment was to be terminated.

The following supports had been put in place to support the Complainant – May 31st a Compliance Officer attended a team meeting where the Complainant attended to explain the processes and procedures – October 4th an individual session arranged for the Complainant with a Compliance Officer – a session with a Sales Executive for Complainant on 20th October 2016 and a Named Manager requested an extension  to the Complainant’s probation to give her the best possible chance and this was sought to January 2017 and this was granted on the basis she would comply  fully with the Compliance regulations.

There was an incident, explained, with a client, a Polish Man, on 21st October 20216 and the Complainant had a further meeting with this client on 16th November 2016 in a manner that was in serious breach of “vunerable client process”. As a result the Respondent was unable to sign off on the Complainant’s probationary period and her employment was terminated with one months pay in lieu of notice.

A named Manager gave direct evidence to the Hearing.  She was the Complainant’s Line Manager. She stated she was provided with induction training with a senior financial advisor when she joined in February 2016 and the Complainant was signed off as having completed all her training. Compliance issues were ongoing and coaching was provided to the Complainant. She stated that the Complainant was on three weeks leave when she got married, hence her first review took place in July rather than June and this was a review of her first six months of employment. She stated that the Complainant did not get a bonus for her compliance work but rather all Team members got a Bonus of a One for All Voucher based on team results not individual results. She stated she conducted the performance review meetings and stated she was informed of the Complainant’s pregnancy at the meeting on 17th October 2016. She stated that yes she had suggested an extension to the probation period to 7th January 2017 but this was not agreed .

FINDINGS AND CONSLUSIONS.

Section 6(2)(f) of the Act provides as follows – Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed for the purposes of this Act, to be an unfair dismissal if it results wholly or mainly from…..(f) the employee’s pregnancy, attendance at ante-natal classes, giving birth or breastfeeding, or any matters connected therewith”.

The Labour Court has held in a number of key decision that “no employee can be dismissed while they are pregnant unless there are exceptional circumstances unconnected with the pregnancy and those exceptional circumstances are notified to the employee in writing”. I refer to Carroll v Cullen DEE 13/2001 and Trailer Care Holdings Ltd v Healy EDA 8/2012. Consequently, where a pregnant employee is dismissed during the period commencing with her pregnancy until the end of her Maternity Leave, the employer bears the burden of proving that the dismissal was in no sense connected to the pregnancy.

The Complainant was employed as a Financial Advisor with the Respondent and she was provided with a written statement of her Terms and Conditions of Employment on 4th January 2016. This contract provides under “Central Bank Fitness and Probity Standards “ that her position is a controlled position subject to the Regulations of the Central Bank. The Contract goes on to state as follows – This contract is conditional on you meeting the standards that the Company requires for holders of CF positions” – ie Controlled Position subject to Central Bank Regulations.

The Complainant was also appointed on a nine moth probation contract and this provides that “if your employment proves unsatisfactory it may be terminated at any time during the probation period”.

The evidence was that the Complainant commenced employment on 8th February 2016 and was provided with the appropriate training by the Respondent for her position and she commenced work in a branch as Financial Advisor on 14th March 2016. The Complainant had her first Probationary Review on 22nd July 2016 – copy provided – and this shows that the Complainant had a score of 2 out 5 for compliance at this review. An outcome document was provided to the Complainant with recommendations and the Complainant emailed her response accepting this. The Complainant had a Probationary Review on 17th October 2016 at which she was given a Rating of 2 – not meeting expectations. She was given a rating of 1 for Compliance out of 5. The Complainant was provided with a copy of this in where she is informed that because of the compliance issues there was no way her probationary period would be completed.

There was evidence that following this review on 17th October 2016 the Complainant sought an extension to her probationary period with the Complainant stating this was agreed up to 9th January 2017 with the Respondent stating there was no agreement to extend the probationary period. I was provided with the exchange of emails in relation to this where the Complainant’s named Line Manager who conducted the performance reviews, proposed an extension to her probation on 19th October 2016. I note the response of the named HR Business Partners Manager in which she states there would be no problem extending the probation but clearly states that if there were problems with her performance then this should be flagged and if all was going well then there would be no need to extend the probation. There was a response on 20th October 2016 identifying compliance issues in relation to her performance. There was no evidence from either Party that the probation was in fact extended.

Following this the evidence was the Complainant was involved in a breach of procedure in relation to two meetings on  21st October and again on 16th November 2016. There was a meeting with the Complainant on 24th November 2016 at which her employment was terminated as she had not met the standards required for the position she occupied which is regulated by the Central Bank. It is clear from the evidence of the checks carried out as well as the probationary reviews from May 2016 to November 2016 that the reason for the Complainant’s dismissal was her failure to reach the standards required in the position of Financial Advisor as regulated by the Central Bank.

There was no evidence presented to me that the Complainant’s termination of her employment was related to her pregnancy.  I note that the Complainant had sought an extension to her probationary period in order to reach the required standards required of the position, thereby accepting that she had not reached these standards required.

I have reviewed the probation performance reviews and also the emails sent to the Complainant concerning concerns over Compliance issues dated 20th/23rd/24th/25/26th/27th/30th May and those sent on 13th and 18th July 2016 and again on 5th October 2016.

I note the Complainant asserted she informed the Respondent of her pregnancy in September while the Respondent states the Complainant’s Line Manager was informed at the Performance Review Meeting on 17th October 2016.

I further note that the Complainant in her written and oral submission to the Hearing argued that she had not been provided with the appropriate training to pass her probationary period, an issue not connected to her pregnancy.

DECISION.

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 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. On the basis of the evidence, my findings above and in accordance with Section 8 1(c ) of the Act I declare this complaint is not well founded.

Dated:   4th September 2018

Workplace Relations Commission Adjudication Officer:  Rosaleen Glackin

Key Words: