SUBJECT:
1. Dismissal during probation
BACKGROUND:
2. This case concerns the dismissal of a worker during the probationary period.
On the 17 June 2019, the Worker referred the dispute to the Labour Court in accordance with Section 20(1) of the Industrial Relations Act, 1969 and agreed to be bound by the Court's Recommendation.
A Labour Court hearing took place on 9 August 2019.
RECOMMENDATION:
The Employer’s representative wrote to the Court advising that they “wish to object to the dispute being heard by the Labour Court”.
The Complaint was made to the Court under section 20(1) of the Industrial Relations Act 1969 and therefore the Court proceeded with the hearing.
It is the Workers case that she was employed by the Employer from the 18thJune 2018 to the 23rdof November 2018 when she was dismissed and that she was on a gross annual salary of €37,000. It is the Workers case that she was unfairly dismissed. It was her submission that the Employer did not follow any procedure in coming to the decision to dismiss. It is the Worker’s submission that she was called to a meeting on the 23rdof November 2018 where she was dismissed. She was not advised in advance what the purpose of the meeting was nor, was she afforded an opportunity to have representation at the meeting or to address the concerns raised by the Employer.
The Court is satisfied on the submission before it that the Employer failed to adhere to the requirements of the Code of Practice on Grievance and Disciplinary Procedures made under section 42 of the Industrial Relations Act 1990 and contained in (S.I 146 of 2000), before the decision to dismiss the Claimant was taken. In reaching that conclusion the Court has had regard to the following: -
A performance review meeting was held with the Worker on the 24thSeptember 2018 which identified some areas of concern. A further Performance Review meeting was to be held at the end of October 2018, but this did not occur.
The Worker was not advised in advance what the purpose of the meeting on the 23rdof November 2018 was nor was she afforded an opportunity to be accompanied at that meeting.
The Complainant was not afforded any opportunity at the meeting of the 23rdof November 2018 to address any concerns the employer had as the decision to dismiss was already made before the meeting took place.
The Court notes that the Claimant’s contract of employment states that during a probationary period a modified disciplinary procedure may be used. However, in this case it would appear that no procedure was used. This Court has consistently held that an employer is not relieved of the obligation to act fairly during a probationary period and that the requirement of the Code of Practice applies in all circumstances in which a worker is on hazard of having his or her employment terminated.
Having regard to all of these considerations the Court has concluded that Claimant was treated unfairly in the manner in which her employment was terminated. The Court notes that the letter of Dismissal did set out that the Worker had a right of appeal and who the appeal should be made to and that the Worker did not avail of the right to appeal the decision to dismiss.
The Court recommends that the Employer pay the Worker compensation in the amount of €7,000 in full and final settlement of the claim before the Court.
1. Dismissal during probation
BACKGROUND:
2. This case concerns the dismissal of a worker during the probationary period.
On the 17 June 2019, the Worker referred the dispute to the Labour Court in accordance with Section 20(1) of the Industrial Relations Act, 1969 and agreed to be bound by the Court's Recommendation.
A Labour Court hearing took place on 9 August 2019.
RECOMMENDATION:
The Employer’s representative wrote to the Court advising that they “wish to object to the dispute being heard by the Labour Court”.
The Complaint was made to the Court under section 20(1) of the Industrial Relations Act 1969 and therefore the Court proceeded with the hearing.
It is the Workers case that she was employed by the Employer from the 18thJune 2018 to the 23rdof November 2018 when she was dismissed and that she was on a gross annual salary of €37,000. It is the Workers case that she was unfairly dismissed. It was her submission that the Employer did not follow any procedure in coming to the decision to dismiss. It is the Worker’s submission that she was called to a meeting on the 23rdof November 2018 where she was dismissed. She was not advised in advance what the purpose of the meeting was nor, was she afforded an opportunity to have representation at the meeting or to address the concerns raised by the Employer.
The Court is satisfied on the submission before it that the Employer failed to adhere to the requirements of the Code of Practice on Grievance and Disciplinary Procedures made under section 42 of the Industrial Relations Act 1990 and contained in (S.I 146 of 2000), before the decision to dismiss the Claimant was taken. In reaching that conclusion the Court has had regard to the following: -
A performance review meeting was held with the Worker on the 24thSeptember 2018 which identified some areas of concern. A further Performance Review meeting was to be held at the end of October 2018, but this did not occur.
The Worker was not advised in advance what the purpose of the meeting on the 23rdof November 2018 was nor was she afforded an opportunity to be accompanied at that meeting.
The Complainant was not afforded any opportunity at the meeting of the 23rdof November 2018 to address any concerns the employer had as the decision to dismiss was already made before the meeting took place.
The Court notes that the Claimant’s contract of employment states that during a probationary period a modified disciplinary procedure may be used. However, in this case it would appear that no procedure was used. This Court has consistently held that an employer is not relieved of the obligation to act fairly during a probationary period and that the requirement of the Code of Practice applies in all circumstances in which a worker is on hazard of having his or her employment terminated.
Having regard to all of these considerations the Court has concluded that Claimant was treated unfairly in the manner in which her employment was terminated. The Court notes that the letter of Dismissal did set out that the Worker had a right of appeal and who the appeal should be made to and that the Worker did not avail of the right to appeal the decision to dismiss.
The Court recommends that the Employer pay the Worker compensation in the amount of €7,000 in full and final settlement of the claim before the Court.
The Court so recommends.
Signed on behalf of the Labour Court
Louise O'Donnell
DC______________________
13 August 2019Deputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to David Campbell, Court Secretary.