Complainant

Respondent

Anonymised Parties

A Clerical Officer

A Government Department

Representatives

Cliodhna Mcnamara Forsa

Conor Quinn BL                                         Karen McNamara                                Chief State Solicitors Office          

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00024212-001

18/12/2018

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

CA-00024212-002

18/12/2018

The Complainant was engaged by a Department of the State and commenced a one-year probationary period. The Employment was ultimately terminated by the stated reason of not having reached a satisfactory level of performance despite ongoing support – per letter of the 12th of March 2018.

The Complainant’s employment terminated in June of 2018 and he issued a Workplace Relations Complaint Form dated the 18th of December 2018.

It should be noted that one day after the hearing of this case I was contacted directly by the Complainant by email and he provided me with a Medical report dated the 1st of June 2017. I understand that this was forwarded to the Respondent.

The Complainant was represented at the hearing and I was provided with two separate submissions (and supporting documents) dealing with each of the legal Complaints raised. The Complainant’s case is that he was Unfairly Dismissed and that he was additionally discriminated against by reason of a failure of the Employer to recognise his disability and/or act on their knowledge of his disability by making reasonable accommodation so as to allow him to retain his position.

The Respondent was represented, and I was provided with a comprehensive submission (and supporting documents). The Employer’s case is that it is not obliged to retain an employee (including an employee with a disability) in a job where that employee is not fully competent to carry out that job.

On the issue of Reasonable Accommodation, the Employer states that such reasonable accommodation as was sought was made.

I have carefully considered the evidence adduced by the parties. This included the oral evidence presented by the Respondent which was tested on cross-examination. Both parties made their submission on the issues of fact and on the application of the the law. The Complainant opted not to give direct evidence and was therefore not tested in cross-examination. The fact that the Complainant was not going to give oral evidence was not made known to me or to the Respondent until after the Respondent had already established its case through the evidence of its own witnesses, and their evidence was tested by the Complainant’s representatives.

The Complainant commenced his employment with a Government Department in May of 2017. I note that the Complainant had worked in different temporary positions within different Civil and Public Services in the ten-year period leading up to this appointment. This was the first time that he had secured a permanent position. There is no doubt that the Complainant knew that the permanent nature of this employment would be predicated on his having completed a satisfactory one-year probationary period and this is allowed for under the Civil Service Regulation Acts. The probationary Contract of Employment dated the 7th of April 2017 provides that there will be periodic reviews (every three months) which will determine whether or not the position will become permanent and there can be no doubt that the Complainant knew that his performance in three key areas would become the determining factors. Per the Contract:

“During the period of your probationary contract, your performance will be subject to review by your Manager(s) to determine whether you:

(i)      have performed in a satisfactory manner,

(ii)    have been satisfactory in general conduct, and

(iii)   are suitable from the point of view of health and with particular regard to sick leave.

The Contract goes on to state:

Prior to completion of the probationary contract, a decision will be made as to whether or not you will be retained pursuant to Section 5A(2) of the Civil Service Regulation Acts 1956-2005. This decision will be based on your performance assessed against the criteria set out in (i) to (iii) above…

In the event that you are not considered suitable to the position of Clerical Officer having been assessed against stated criteria, you will be notified in writing of the action to be taken prior to the expiry of this contract and any extensions thereof”.

In general terms I accept the evidence of the Respondent’s first witness MC who indicated that the Employer will, as far as may be practicable, support a new employee through the probationary period. The expectation is that there will be a steep learning curve but that it will not be unreasonable or impossible. She indicated that during her period of time in this department she had about 400 probationary entrants of which only ten failed to get through the probationary period.

I was advised that the standard Civil Service Disciplinary code was not applicable to officers serving in a probational capacity and that these new entrants are instead made familiar with the Guidelines on Probation – Department of Finance and the Probation Policy Handbook – Department of Justice and Equality which operate during the probation period. The probationary entrant will understand that there will be three monthly reviews with other monitoring and discussion going on between such meetings. The reviews will focus on the headings already set out on the Contract -

Performance in a satisfactory manner

Satisfactory general conduct

Suitable for the point of view of health

It is envisaged that at any time job training, coaching, learning and specific training might be required to boost the chances of success in the probationary year. There can be no doubt that if the employee fails to meet standards he or she should be informed of this fact at the review meetings of any such deficiencies. The objective is to help the employee to improve but also making it clear that failure to improve will result in termination. The Employee should be kept therefore fully appraised of how his performance is being viewed.

I accept that with only a year to prove himself or herself the fairest thing is to have the Complainant in one steady position and preferably under the watchful eye of one steady Manager. In fact, there is a policy of not allowing or encouraging transfers in a probationary period, and I understand and accept the rationale behind this.

It was noted that the Complainant had worked in archives in another Government Department and for this reason he was selected to become a part of the archiving Team within the Respondent Department. The Complainant worked very closely with a trained Archivist (RM) who was contracted into that department at that time. However, the Complainants’ line Manager was not RM but a Mr. OB who gave evidence at the hearing. Mr OB said that the Complainant was only with him about two weeks before he started looking for a transfer and in particular a transfer to his department of choice (Department of Culture) wherein the Complainant had worked on contract before. This was not something within Mr OB’s gift. At the Complainant’s request and in recognition of the Complainant’s health status, Mr OB was open to allowing the Complainant to operate and work out of the city centre office rather than out of the Santry premises which the Complainant had found to be cold and uncomfortable. Mr OB facilitated this. The role was simple enough, but the Complainant believed he was not particularly suited to it. He found it to be monotonous. MrOB states that the Complainant was repeatedly making simple mistakes such that MrOB eventually had to pare back the role so that the Complainant was doing the bare minimum in identifying the start date and the finish date of files that were intended to be archived. Even this he was constantly getting wrong. Mr OB states that he found the Complainant reluctant to own his own mistakes and instead the Complainant challenged whether or not things had been adequately (or ever) explained to him. I accept Mr. OB’s evidence that he did not demand amounts of work to be gotten through- his only concern was ensuring that each file was recorded accurately. In August of 2017 it fell to MrOB to conduct the first of the three probationary review meetings due in the probationary year. The Complainant’s review was not particularly good, though it was noted that the simplification of tasks had led to some improvement.

At around about this time the HR department (overseen by MC) was also considering the findings of the in-house occupational nurse to whom the Complainant had been referred in response to a medical letter from the Complainant ‘s GP. This GP’s letter stated that the Complainant was finding the work to be stressful. The occupational nurse had suggested that management might want to consider “other suitable work options available for him within the department.” In response to this suggestion and even though it was contrary to their own well-thought-out best practices, the Complainant was moved within the department. It is noted that the move was not in accordance with the Complainant’s request to be transferred to another department altogether (Department of Culture). I accept the evidence that a transfer request of this nature (i.e. to another Department altogether) cannot be done on a whim and that there are appropriate channels to go through and that Complainant’s name had been put on to a list for Transfer but that this would take time and there would have to be an opening for him in his chosen department and he cannot be moved there if his services are not required. I accept that there was a not unreasonable expectation that the Complainant should at the very least work out his Probationary year with the Department that had engaged him in the first place.

It is worth noting here that there are two letters dated the 1st of June written by the Complainant’s GP one to Ms MC and one to the Public Appointments Service. The one to Ms. C does specifically state that the Complainant was “. uncomfortable with the facilities provided for Insulin administration”.

In any event, on the 11th of September the Complainant was moved to a different location in the same department and was no longer archiving and was now dealing with requests for information form the public. I heard evidence to the effect that the complainant did not perform this new function to a very high standard and again there was a need to whittle back the tasks originally given to him so that he would perform only the most basic information requests and even at that there was a need to constantly monitor and review and correct his work. I note that within a month of being placed in this position the Complainant received his role profile and performance goals under the PMDS process. This was established by his immediate line Manager YM. Why this was not created in the Archivist position was not fully explained to me. However, the expectation was that the Complainant – now working in customer services would acquire and demonstrate certain competencies as he got more familiar with his job. Unfortunately, his Line manager LR (who gave evidence concerning the Complainant’s performance in this new position) found that instead of having a learning curve the Complainant’s progress “flatlined”. Mr LR found himself to be obliged to review every item of the complainant’s work – i.e. responses going out to members of the public. LR found that the level of mistakes to be present in at least 20% of the responses. The Complainant received intensive training and a high level of ongoing support from his managers. I have reviewed the collection of emails detailing some of the supports provided by managers dated from 4th October 2017 to 28th November 2017 as provided. The evidence from the Respondents was that throughout this period the Complainant’s manager YM spent a significant period of time almost every day providing training support and guidance to the Complainant. Furthermore, the evidence tended to show that on several occasions the Complainant declined training. The evidence also showed that the Complainant’s performance remained significantly below what was required, or what would be usual for a new recruit Clerical Officer.

It is an unfortunate fact that within six or seven weeks of his arrival at this new department that the Complainant was again due a probationary review (month six of his probationary period). This was conducted by LR. I note from correspondence that the complainant knew his standard of work was being questioned. I can see that the Complainant questioned the fairness of the expectation on him, so that he did not believe that anyone was answering up to 80 queries a day or that the level of mistakes made was as high as was being suggested. Ultimately, the Complainant ‘s review on the 8th of November found that it would be recommended to HR that he would not pass the probation process if improvements were not seen and that his employment was on risk of being terminated.

It was not long after this that the HR department felt obliged to call a meeting with the Complainant who was accompanied by his mother and which meeting was called in consequence of the many and varied communications that MC in HR was receiving from family members and the Complainant’s GP concerning his employment. This type of ongoing external intervention and pressure was most irregular, but the HR department opted to try and tease out the issues with the Complainant and his mother at that time. Once again, the Complainant was looking for a transfer either within the department or to another department altogether. From my reading of the notes of this meeting and the follow up meeting in January of 2018 I can see that the Complainant is anxious about his role. He is not enjoying the work and believes that too much is expected of him.

Time and again it has been put up to the Employer and indeed in the course of the hearing before me it was repeatedly stated that the Complainant had been very successful in acting as a clerical officer when he was on temporary assignments in the past. The Complainant was anxious that his past references should be considered as evidence of his competency. I was told by his representative that he would not have achieved the pay grade he was at, had he not demonstrated competencies in his previous positions. On balance I of course accept that this might have been the case, but I must also accept that it is very little comfort to a Manager overseeing an employee to know that he or she was deemed capable of this type work in a previous job. What matters is how the employee is currently performing. The Complainant was invited to partake in a probationary programme in the Respondent Department and not in the Department of his choice or one where he had previously worked. The Complainant was ill-advised to place such weight on past performance. The Complainant was also ill-advised to try and equate the expectations of a temporary post with that of a permanent post. The Complainant knew in accepting this position that the end game was the hope of being made a permanent employee – this hope had not been extended to him previously. The Complainant also knew that he had to successfully complete a year-long probationary period and the Contract of Employment and supporting documentation on Probationary applicants very clearly sets out the criteria.

I accept that the HR Manager gave some consideration to a further internal transfer and this is detailed in the notes of the meetings held (both before and after Christmas 2017) -

“M.. stated that she did consider the value of changing [him] to a new location however she stated it was not the right thing to do. M.. stated she had looked across the various roles within the Department and [Clerical Officer] roles are similar around the Department. M.. stated that she was looking for [him] to improve in his role and there was still an opportunity for him to improve. M… stated it was not in [his] interest or the Organisation to move him, he would have to start again in a new role and at this stage in the probation process it was not viable”.

I do note that another issue raised with HR in the course of these meetings was the issue of the Complainant’s health and/or disability. At that time the Employer was working off a letter from the Complainant’s GP and dated the 9th of November 2017. I have carefully considered the content of this letter which outlines ongoing stress which is being caused by working in this particular department. The letter goes so far as to suggest that a move to the Complainant’s department of choice would be in ease of the Complainant and suggests that this is in accord with advices already given by the Chief Medical Officer. This is factually incorrect. At no time had the CMO indicated that for reasons of health that the Complainant should be moved. It was agreed in the course of the meeting that if the Complainant had a disability that that would and could be accommodated and that the Complainant has access to the Employee Assist Officer and the Disability Liaison Officer/Chief Medical Officer in this regard. I accept that it is not for HR to make this assessment and that the onus rested with the Complainant once he was directed to those services, to avail of those services.

I should additionally state here that there is no evidence before me that the Complainant had repeatedly requested special facilities for the purpose of injecting insulin. As the evidence unfolded, it was clear to me that the Complainant did certainly raise this issue with one person in HR a Ms.W (and one of the letters from June 1st does reference the inadequacies of the facilities provided). That lady believed that she dealt with the issue appropriately and I fully accept that the Complainant never returned to the issue with Ms. W or anyone else – Management or HR. If the Complainant was being caused increased levels of stress by reason of his having to self-inject in what he considered to be less optimum surroundings I have no reason to believe that this would not have been dealt with immediately on request. However, the initiative would have to have come from him as a reverse approach would to my mind appear to be an interference in a private and sensitive matter. I therefore find the Complainant’s argument that it was for Management/HR to enquire as to whether he was satisfied with the facilities provided to be an unreasonable argument. The evidence shows this issue was not raised after the 1st of June 2017.

There was no evidence that either the Complainant or the Union constantly raised the requirement for privacy to inject his insulin and I cannot find that management failed to facilitate this request. It is also specifically claimed that the union raised this issue at the meeting of 15th December. This is not clear form the notes though I accept there was some general talk about ongoing health/disability issues that were very non-specific.

Of some significance is the fact that the Complainant was invited to contact the Disability Liaison Officer but chose not to do so. This is confirmed by an email dated the 31st of January sent by the Disability Liaison Officer.

The Complainant’s performance continued to be less than what would be expected of a new recruit and the Complainant was subject to a third and final review on the 7th of February 2018 (the nine-month mark). I note that the Complainant brought a local Union Representative to this meeting and I understand that this is unusual but that LR was happy to oblige. The observations made by the Manager LR are stark –

“The scope of work which Philip is capable of completing successfully is therefore very limited and well below that which would be expected in this role. [He] has now had three unsatisfactory probation reports and taking this into account… his line management are of the view that his performance in the role to date is unsatisfactory and does not merit that he passes the probationary period””

The outcome of this Review was communicated to the Complainant by letter dated the 12th of March wherein it was stated that –

“It has therefore been recommended by your line Managers that you should not be established in your position as clerical officer and that your probationary Contract should be terminated”

The Complainants’ representatives urged me to consider that the Complainant’s excellent conduct, incremental improvement, good time-keeping and rate of sick leave were all beyond reproach and that this should have somehow out-weighed the fact that the Complainant was not performing the functions expected of him. I cannot agree with this argument. It would push the boundaries of good-sense to expect an Employer to overlook the fact that a recruit cannot do the job he or she has been engaged to perform because said individual is agreeable and is of good conduct in the workplace. Such an approach would not work in the private sector and such a proposition would be insupportable in the Public Sector. In reaching this conclusion I am mindful of the fact that in each of the two positions held by the Complainant in the course of the Probationary year, his job was whittled down to the barest minimum in terms of expectation and he unfortunately did not achieve even at that level. And it must be remembered that I was not given the opportunity of hearing from the Complainant directly in this regard, so that he did not rebut the evidence that the tasks given to him were not capable of being performed by him. This was his choice.

In considering the issue of Unfair Dismissal the Respondent has asked that I note that it followed its own procedures, which were entirely fair. The only area in which the Respondent departed from its probationary guidelines was in acceding to the Complainant’s repeated requests for a transfer to another section of the Department. This was done in an effort to provide reasonable accommodation for his workplace stress. The Respondent says that the Complainant as a probationary employee failed to discharge the legal onus that was on him to establish that he is committed to and capable of the role. The Respondent is under an equal statutory duty pursuant to the Civil Service Regulation Act 1956, as amended, not to establish a probationary employee who has failed to satisfy the conditions of his/her probation.

The Respondent says that despite a multitude of interventions, in terms of training, support, simplification of roles, reasonable accommodation and – exceptionally – an internal transfer during probation, the Complainant’s performance remained some distance from what would be required of a probationary clerical officer and the Department had no option but to determine that he should not be established.

On balance I accept that the Complainant’s dismissal was fair and as a direct consequence of his poor performance.

In relation to the complaint of discrimination by way of failure to provide reasonable accommodation, the Respondent says that the Complainant simply has not discharged the onus that is on him to establish facts to show that any such failure to accommodate occurred. In relation to the four illnesses complained of, the Respondent fully adhered to its obligations in this area which were to firstly carry out an assessment, with appropriate medical intervention and advice, of the accommodations that might be required and secondly implement those accommodations if possible. The Respondent says that the only accommodations identified by the occupational health experts were (a) the possibility of a transfer to another Department, and (b) alternative work options within the Department of Justice or variation of his current work role. Option (a), which was presented as something to be considered, was beyond the gift of the Respondent but was nonetheless pursued; and option (b), which again was presented for consideration, was provided in a series of different ways that went above and beyond the Department’s usual practice.

Having regard to all the facts that have been presented I cannot find that the Complainant has established a Prima Facie case of discrimination. The Complainant has not proven on the balance of probabilities, the primary facts on which he relies in seeking to raise a presumption of unlawful discrimination. There is no presumption of Discrimination.

For the sake of completeness, I would say that the reasons for the delay in effecting the termination after an unsuccessful Appeal, are understood to have been unavoidable and do not impact on the facts which led up to the reasons for the Dismissal.

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00024212-001

The Complainant was not Unfairly dismissed, and his Complaint fails.

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

CA-00024212-002

The Complainant has not established a Prima Facie case herein.