Complainant

Respondent

Anonymised Parties

An Analysist

A Commercial Enterprise

Representatives

Appeared in Person

Human Resource Manager

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00029370-001

30/06/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00029370-002

30/06/2019

This case comes before the WRC following a 4.5-month tenure of employment. The Complainant in the case has submitted that he was unfairly dismissed and had not been notified of changes to his terms of employment. The Claims are disputed by his former employer.

The Complainant is a Lay litigant in the case and submitted a detailed statement and corresponding documentation.

The Respondent is a Commercial Enterprise and was represented by the Human Resource Manager.

I requested sight of the complainant’s dossier of documents post hearing and am grateful for their receipt on November 7, 2019. These were copied to the Respondent and a response requested. On December 8 ,2019, I wrote to the Respondent to ascertain whether a response was forthcoming and extended the response deadline to January 8, 2020. I did not receive a response and thought it prudent to press on with my outcome in the case.

CA-00029370-001   Industrial Relations

The Claimant has significant experience in the commercial field he operates in. In July 2018 he interviewed by phone for a Commercial Analyst position in a Company in the South of Ireland. At that time, he lived with his family in a more northern part of the country and had identified this position as a significant career advancement.

He undertook a second interview and secured the position. He obtained a contract of employment prior to commencing his position. His job involved a high level of responsibility, due diligence and decision making. The position carried a six-month probationary period, where performance was to be assessed. There was potential for a 6-month extension.

The Claimant submits that he hit the ground running and commenced work against the back drop of an external audit which was challenging. He found a lack of clarity in his role but pressed on with the complexities of a new job. He inputted an end of year review against set criteria and had a strong view that his performance matched the company expectation.

On 21 December 2018, he was requested to meet with his Director of Operations. He was surprised to hear him articulate concerns regarding his performance as nothing had been stated before that date. The Director told him that he was seeking enhanced vision, leadership and communication from him. The claimant disagreed with this analysis and formed the opinion that the Director did not understand his role. Both parties agreed to consider the issues and come up with an action plan in the new year. The Claimant carried on with his Projects. He concluded training teams on 15 January 2019.

On 16 January 2019, the claimant was invited to attend a Performance Review with the Director. On 18 January 2019, he was informed that he was not performing the role he was hired for. He did not agree with this analysis. A decision to terminate his employment followed, which he appealed.

The Claimant was unsuccessful on appeal.

The Claimant contended that he had been unfairly kept in the dark about the perceived shortcomings in his performance prior to December 21, 2018. He held the belief that he had been hired solely to support the company in an important audit and it was never the intention of the company to keep him on after that.

He was aggrieved that he had relocated his entire family to the area, not renowned for similar job opportunities. This has caused him to have to relocate for work, leaving his family. He further submits that his career progression has been dealt a blow by this negative experience. He found new work in early April 2019.

The Claimant told the hearing that he was running the case as he was dissatisfied with the Appeal of his dismissal.

CA -00022858-002 Terms of Employment

The Complainant submitted that he had not been notified in writing of a change in his terms of employment. He argued that the job he accepted, and the terms associated with the position were no longer valid as he was expected to take on work of a much different nature and the respondent told him that some work was expected to migrate to another European country.

CA -00022858-001 Industrial Relations

The Employer agreed to participate in the Investigation of this case on 30 July 2019.

The Human Resource Manager outline that the company, a cloud-based software company had been established in 2005 and had a connection with over 100 countries worldwide.

The Employer disputed the basis of the claim of unfair dismissal raised by the claimant and submitted that the claimant was fairly dismissed by “reason of incompetence and capability in accordance with appropriate policies and procedures.”

The Employer went on to argue that the employer was well within its rights to terminate an employment within recognised procedures if it had not worked out. He denied that the decision was pre-determined.

The Employer outlined that the claimant had demonstrated declining performance during his probationary period which culminated in the application of internal performance management procedures. Termination followed the claimant’s failure to improve.

The Employer submitted that the claimant had commenced work on 3 September 2018 and was dismissed on 25 January 2019. The Claimants salary equated with a Mid-Level Appointment in terms of responsibility attached. A Stand-alone analyst role would have been paid at €10,000 less.

The Employer had experienced inconsistencies in the claimant’s performance. and hosted a Probationary Review Meeting on 18 January 2019. An Operational Manager had highlighted these shortcomings during 2018 and had identified a problem with the capacity plan and time lines requested, which were not delivered. The Company understood that the claimant was not fitting the function required and he was being “hand held “. This was a problem for the company which was engaged in active growth. The Employer denied that he had been replaced and confirmed that the company had hired an additional Compliance officer.

In preparation for his probation review set for 18 January 2019, the complainant had been invited to provide a satisfactory explanation for matters of concern:

1 Insufficient impact as required by the role with respect to vision, leadership, and communication

2 Lack of Structure and clarity in relation to critical thinking, analysis, planning and change management on a specified area

3 Disconnection between the claimants view of his performance and that of the company

He was forewarned that if he was unable to provide a satisfactory explanation, action up to dismissal would follow.

The Claimant was given his contract of employment, his 2018 review and the employee handbook.

The Claimant did not address the matters of concern to the company satisfaction and he was dismissed with a week’s pay in lieu on that day. He was offered an appeal, and this was heard by a Senior Manager not involved in the earlier aspect of the case on 19 February 2019. The appeal was unsuccessful.

The Employer submitted that the claimant contributed fully to his dismissal and should not be permitted to seek redress under the Act. The Employer was dissatisfied with the claimant’s performance and presided over a full and fair process of engagement, where the claimant was afforded the right to representation, an opportunity to state his case, informed of the possible outcome of the probation meeting and provision of an appeal.

The Employer submitted that it was reasonable to ask the claimant to diversify within his role as the contract permitted.

The Employer referred to extensive case law which evolved under the Unfair Dismissals Act and the Industrial Relations Act 1969. In addition, The Employer contended that SI 146/200 was consistently applied to the procedural framework and concluded by submitting that the dismissal was procedurally fair in all respects. The Claimant was provided with references as requested and the company wished him well for his future.

CA -00029370-002 Terms of Employment

The respondent disputed the claim and argued that the complainant had accepted a flexibility clause. There were no changes made in the terms of his employment. In relying on Patrick Hall V Irish Water TED 161, the Respondent submitted that technical breaches did not amount to grounds to compensate a worker. The Company was on a rapid growth trajectory and flexibility was needed.

CA -00029370-001 Industrial Relations Act

I have carefully considered both parties written and oral submissions in the case. I am struck by the very short duration of the employment.

I accept that the claimant faced a high level of upheaval in relocating his family for work in September 2018. I also accept that he predicted that the role he chose would be a career enhancing role and he remains very disappointed that things did not turn out as he expected.

The Employer, on the other hand has submitted that the employment did not work out and in accordance with company policies and procedures, the claimant was exited fairly and provided with an appeal of the decision.

For my part, I must state at the outset that the Unfair Dismissals Act does not apply to the circumstances of the case. I have been asked to consider this case under the Industrial Relations Act, where fairness and reasonableness are my guides in investigating a dispute.

I have reviewed all documents submitted. The claimant stated that he had sent his supplementary documents at the time he submitted his complaint. As I had not received them, I requested him to re submit. A delay followed in seeking to secure a response from the employer.

The claimant told me that the job as he anticipated it to be had differed greatly on commencement. He endeavoured to keep up and met the company targets and honestly believed that he had done so. He reflected this in his end of year review, where he recorded that he had met expectations.

He admitted at hearing that he was overwhelmed by the impact of an external audit and was unsettled by the plan to relocate operations. He expressed a strong view that he had been discarded by the agenda to relocate some or all the business.

However, he was most aggrieved that he had not been notified of shortfalls in his performance prior to December 2018 and the probation review meeting was unfair as he had agreed to set up an improvement plan with his line manager but was not permitted time to do this prior to his dismissal.

The Employer expressed a totally different view of his tenure. I did not have the benefit of meeting with any of the company representatives who were directly involved in the probation or the dismissal or appeal. I relied on the documents they created and the Human Resource Managers analysis of same, which in summary supported the view that dismissal was justified as the claimant had not worked out during his probation. The Employer was clear that the claimant had been treated fairly and in accordance with fair procedures.

In Beechside Company ltd T/A Park Hotel, Kenmare and A Worker LCR 21798, The Labour Court considered a claim for unfair dismissal following a 3-month tenure of a General Manager. The Court observed in awarding a high award of compensation:

Where an employee is considered unsuitable for permanent employment, the Court accepts that an employer has the right, during a probationary period, to decide not to retain that employee in employment. However, the Court takes the view that this can only be carried out where the employer adheres strictly to fair procedures ….

The Court is satisfied that the Claimant was not provided with details of performance issues, no warning was given that his employment was in jeopardy, he was not afforded the right to representation, he was not provided with reasons for his dismissal and he was not afforded an opportunity to reply. The Court is satisfied that he was denied natural justice.

I reviewed the contract of employment, where the company outlined that during the probationary period of 6 months, performance was to be assessed for suitability. The Employer mentioned that they were working off a new performance management system. The Handbook also reflected that performance was to be reviewed at regular intervals by the Manager and progress to be advised to the employee. It seemed to me that the company has not delineated a specific probation reporting system.

The contract also had a provision for an end of year review, normally timetabled at the “anniversary “of the start date where objectives for the year ahead were set out.

I have established that both processes seem to have been blended in this case. I did not have a Probation Report which made provisions for 3- or 6-month review. Instead, I had an extract from a 2018 plan which seemed to have its first entry dated 26 October 2018 which was initiated by the claimant. The first entry by the Employer followed some two months later December 20 which countered the claimant’s self-assessment of his performance. I cannot accept that this document constituted a Probation Report.

The Employer submitted that the company had worked towards a performance improvement with the claimant, but I could not find supporting documentation for this. The letter of invitation to meet for a probation review was accompanied by a threat of dismissal.

I found that the claimant should have brought a representative who was au fait with company procedures to this meeting on January 18. He showed a poor judgement in approaching this meeting alone. I accept that he was permitted a representative in accordance with company procedures. I also noted that provision existed for an external representation under threat of dismissal. The claimant gave no reason why he ignored this

I accept the claimant’s submission that the confirmation of his dismissal was shared with him at the end of the Probation Review Meeting. This was followed up by letter some hours later.

The Meeting did not break to consider the claimants responses to the company stated objectives, which the claimant took issue with

The minutes of the meeting reflect:

The Director did not doubt the claimants subject matter knowledge however he pointed out that there had been considerable sentiment of frustrating from CEO, COO, and the Director about the lack of structure, process and vision within the Analyst function

I cannot conclude that he was heard at this meeting as the minutes reflect a pre-determination of the outcome which is compounded by the lack of a break to consider the outcome.

The Claimant then listed 11 grounds of appeal. The Appeal was heard by a Senior Manager who the minutes of the probation review reflect as expressing “a considerable sentiment of frustration “towards the claimant. This was not an impartial process.

At the end of the appeal meeting, the claimant was asked to declare what he wanted from the appeal process. Surprisingly, he did not ask for his job back. Instead, he requested reference and severance. Only the request for a reference was acceded to.

I accept that the claimant proved” a mis match” for the Employer in this case. Probation is in existence to provide a level playing pitch for both parties to figure out if the employment is what they both want. However, the procedural framework adopted by the Employer fell short of what I would consider fair and reasonable in this case. I have identified that the claimant acted to his detriment by not identifying a representative in his case.

SI 146/2000 provides clear direction to employers and employees that acceptable fair procedures are in place and observed.

In this case, I found the employer followed some of the guidance in SI 146/2000 in setting out the issues and affording representation. However, the claimant was not heard in response and dismissal was a precipitous action which was not remedied on appeal. He was not permitted an impartial decision-making process or perhaps most important of all, he was not permitted an opportunity to improve.

I also noted that the signature at the end of each outcome letter was that of a Human Resource manager. This is not best practice and suggests a larger involvement than that of note taker in both instances. I would have preferred to have seen the decision makers signatures recorded.

In conclusion, I accept that the claimant had a role to play in his demise, but I found his dismissal to be lacking in fair procedures and precipitous when judged against a vacuum in probation reviews and reports distinct from an annual objective. It was open to the employer to extend his probation; no reason was given as to why this was not considered.

I have found merit in the dispute.

CA -00029370-002 Terms of Employment

I have considered both parties responses to this complaint. Section 5 of the Act requires a notification of a change in any of the particulars furnished by an employer under Section 3, 4 or 6 of the Act not later than 1 month after the change takes place.

I have considered the contract issued by the Respondent. I have found a duplication in the claim submitted with that submitted under the Industrial Relations Act. The Complainant in this claim asserts that his job was changed. The Respondent denies this and explained that this was a company in a growth phase and the complainant had accepted a flexibility clause.

I have not identified a contravention of Section 5 of the Act. The claim is not well founded

Decision:

CA -00029370-002

Section 41 of the Workplace Relations Act 2015 requires that I decide in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 7 of the Terms of Employment (Information) Act, 1984 requires that I decide in accordance with Section 5 of the Act.

I have found the complaint to be unfounded.

Recommendation:

CA -00029370-001

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.

I have found merit in this dispute. The employment relationship is not redeemable in this case.

I recommend that the Employer implements a Probation Review System as reflected in the staff handbook, where employees and employers have a transparent opportunity to contribute to a mutually beneficial probation experience and record progress on a phased basis.

I am mindful that the claimant has made some contribution to his dismissal in this case. However, I find that the Employer should compensate him for the manner of his dismissal. I order the Employer to pay the claimant €6,000 in compensation for the distress caused by the procedural breaches.

Claim for Unfair Dismissal less than 12 months service, Terms of Employment.