ADJ-00010135

Complainant

Respondent

Anonymised Parties

Clerical\Admin. Officer

Detention Facility

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00013236-001

23/08/2017

The claimant was employed on a probationary basis from Feb. to March 2017 (for ~3 weeks). At the end of this period the claimant was let go and subsequently lodged a claim for discrimination by his employer by reason of his age in respect of his training. The claimant also alleged harassment and victimisation on the part of the respondent.

The complainant’s case was that he was discriminated against, harassed and victimised. He was invited to join the probationers’ training programme one week later than his colleagues. On joining, none of the spare computers in the room had access to the training system, forcing the complainant to sit alongside a colleague. The complainant likes to engage in harmless banter, as it is natural to his personality. However, as soon as the inappropriateness of the practice was brought to his attention he desisted. With regard to his late arrival at work on March 2nd, (which he had not flagged to management), the subsequent failure to clock in was an oversight. With regard to his manager’s assessment (of the claimant), he ‘genuinely believed that she was making a mistake and I inadvertently referred to her as sweetheart in telling her so’. Whilst the claimant accepts that this was inappropriate behaviour, no malice or offence was intended. The claimant points out that it is ‘simply indicative of a man of my generation speaking to a younger lady’. The claimant does not recall the act of rubbing a managerial colleague’s hand, but does ‘readily admit that this sounds like me’.

Whilst the initial issue with the claimant was that he was not sufficiently competent on the computer system (prompting a management recommendation of further training and the re-sitting of the failed assessment), the claimant felt that his inappropriate behaviour – which he perceived to be ‘in truth .. not untypical of a person of my generation’ – to be the issue. That is, the issue was no longer his competency in operating the computer system, but rather his perceived inappropriate behaviour.

The claimant attributes his negative probationary experience almost entirely to the culture of the relevant work environment. The claimant also notes that the 1 year probationary contract of employment makes no reference to the fact that an individual may be summarily dismissed within an initial six-week period.

The claimant attended for refresher training deemed necessary after he had failed the assessment test. However, he contends that he was not then aware that the problem issue had become his failure to demonstrate the required competency for the job of Customer Service and Communication skills by reason of inappropriate behaviour. Nor was he provided with significant feedback in respect of same. The only feedback he received was an ‘informal quiet word in the ear about the inappropriateness of any form of banter’. Related thereto, the claimant was ‘not provided with the Civil Service Code of Standards and Behaviour or Dignity at Work Policy’.

The complainant attended an ‘Induction Day’ when the probation policy was fully explained to him. He commenced training 1 week later than his class arising from a delay with his security clearance, which was outside of his or the respondent’s control. The claimant’s dismissal – which was duly considered at different management levels - is attributed to inappropriate behaviour which persisted, despite the provision of significant (documented) feedback in respect of same from management. This behaviour comes into the category of the ‘Customer Service and Communication Skills’ competency. The termination of the claimant’s probation was not based on the IT assessment (or age). The respondent claims that it is not logical for the claimant to allege (on the one hand) discrimination on the grounds of age whilst (on the other hand) rely on age as justification for behaviour deemed inappropriate. At all times the complainant was afforded full\fair procedures in his employment and in the termination thereof.

Under the Department of Finance’s ‘Guidelines on Probation’, where the performance of a probationer is not satisfactory a number of steps should be considered:

• Each unsatisfactory action/poor performance should be discussed with the employee. The discussions should be recorded in writing by the line manager(s) and the record seen and noted by the employee.

• The objective should be to advise the employee that management would like to help the employee to perform his or her duties well and to achieve an acceptable standard of conduct

• It should be made absolutely clear to the employee that help is available if required. Options in relation to coaching/training and development or other support that may help the employee improve his or her performance should be explored.

• Where the problems relate to conduct or attendance the manager should make sure that the probationer fully understands the appropriate Civil Service rules and the relevant provisions in the Code of Standards and Behaviour.

These provisions are line with the law in this area, which holds that even for those employees not covered by the provisions of the Unfair Dismissals legislation (e.g. a probationer with less than 12 months’ service), the employer has some responsibility prior to termination of the probation. For example, in one such scenario the Labour Court has determined that ‘this Court has consistently held that an employer is not relieved of the obligation to act fairly during a probationary period’ (Glenpatrick Watercoolers Ltd. v A Worker – CD/15/208).     Related thereto, the charge of ‘incompetence’ prompts 2 key questions for the Adjudicator:

(i)               did the employer honestly believe that the employee was incompetent or unsuitable

              for the job? And 

(ii)          were the grounds for this belief reasonable?

The failure to alert an employee to their performance shortcoming has resulted in numerous court findings of unfair dismissal. This failure can also extend to probationer cases (i.e. those not covered by the Unfair Dismissals Act). For example, in 2004 the Labour Court awarded €20,000 to a dismissed probationer as the ‘procedures adopted by the company were inappropriate … and did not convey management’s view’ (CD/04/04 Rec. No. 18014). Hence it is relevant that the respondent did present evidence (at the hearing) in support of their contention that they furnished the claimant with significant feedback in respect of same. This feedback pertained to behaviour that comes into the category of the role’s ‘Customer Service and Communication Skills’ competency. It is also relevant that whatever the genuine aspiration of the claimant, the effect of one’s (inappropriate) behaviour normally supersedes its intent. The respondent also presented documentation confirming their right to terminate employment at any time during the probationary period.

With regard to the harassment allegation, given the (stated legal) need and recent case precedent confirming an employer’s obligation to show that they took ‘such steps as are reasonably practicable’ to prevent bullying and harassment scenarios, it is evident that employers can minimise – if not avoid – legal exposure if (amongst other things) they have an up to date and readily available policy cum procedure in the area that it is communicated, is in line with statute law and case precedents and ensures that complaints are dealt with in line with same. However, at no point did the complainant make a formal complaint under the organisation’s policy. Likewise, the A.O. can find no relevant evidence to substantiate the allegation of either harassment or victimisation.

With reference to the complaint (CA-00013236) seeking adjudication by the Workplace Relations Commission under Section 77 of the Employment Equality Act, 1998, I do not uphold the complainant’s complaint.

Discriminatory Dismissal;  Probation