Complainant

Respondent

Anonymised Parties

A Social Care Worker

A Disability Service Provider

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-00019438-001

26/05/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00019438-002

26/05/2018

The complainant submitted that he was unfairly dismissed and that he failed to receive minimum notice.

The complainant was employed on a fixed term contract from 23rd June 2015 to 3rd July 2016 and then secured a permanent part-time post from 4th July 2016 until his employment was terminated on 28th November 2017.

His role involved working on a one-to-one basis with a service user.

On 14th November 2016 the complainant advised his Line Manager Mr A that he was in trouble as he had taken some ex demo items from a stock room of his previous employer in 2014 and that he was due to appear in court two days later. The complainant also disclosed information relating to tragedy in his personal life.

The respondent provided him with time off to attend the court and to revert to his manager.   Following the court hearing, the complainant advised his manager that his case had been adjourned for one year and that he had to engage and comply with probationary services and to engage with his GP regarding mental health difficulties.

On 7th December 2016 the complainant met with the Regional Service Manager, Mr B and Ms C from HR, to discuss the situation and the complainant was advised on 5th January 2017, following further investigations that his probation was extended to the end of November 2017. The respondent advised the complainant that they recognised that there were extenuating personal circumstances at the time of the offences but that he should have been forthcoming to his manager at the start of his employment.

The complainant was advised to keep his manager updated on a weekly basis from January 2017 until March 2017 and fortnightly thereafter on the progress with his counsellor and that his situation would be reviewed in light of his “adherence to the requirements” as well as his “performance” and “in light of your work with your probation officer”. The complainant was given access to the respondent’s EAP’s counselling services.

In October 2017 the complainant’s line manager advised HR that the complainant had requested on 2nd October 2017 access to further counselling support but the respondent were not in a position to provide the complainant with any further counselling.

On 23rd October 2017, the complainant advised that he had a relapse in August 2017 whereby he had left a store without paying for his goods and had been stopped by security and the gardai had been called and he was charged in relation to theft. Between July and October 2017 the complainant had been in contact with his manager through normal day to day engagement and emails and had not disclosed this second theft.

The complainant was given time off to deal with the court situation and the respondent discovered upon engaging with the complainant’s probationary officer that the probation officer was not aware of the second charge. The complainant was advised on 27th November 2017 that he had not successfully passed his probation.

The respondent denied that the complainant had not been listened to and denied that the complainant had not been supported. It was submitted that there has been no issue with the complainant’s work performance and that although the complainant’s issues manifested outside of work, they impacted on his work particularly in relation to the bond of trust that must exist between the employer and the employee. The complainant works on a one-to-one basis with service users and is out in the community supporting such service users and the respondent could not ignore the breach in the bond of trust which is essential to any workplace but particularly that of the respondent.

The complainant’s employment commenced in June 2015 and was offered a permanent role on 28th June 2016 and it was submitted that while the permanent role referred to a probationary period, the complainant had already completed probation through his temporary role. The effect of the respondent’s actions was to have a probationary period of 18 months following completion of a 12 month fixed contract that had been satisfactorily completed.

The complainant’s work was exemplary looking after the health care needs of service users who were in the full time care of the respondent and while working in a part-time capacity, the student also studied for a Degree.

In 2014 before the complainant had commenced employment with the respondent he stole ex-demo models from his employer. This occurred at a time that there were significant issues going on in the complainant’s personal life. In November 2016 the complainant appeared in Court in respect of allegations of theft and the judge adjourned the case and placed the complainant under the probation services who regarded him as low risk of reoffending and acknowledged that he had significant tragic issues in his past within his family which was the causative factor in his behaviour. The complainant disclosed same to his employers albeit a significant period of time had passed between the incident and the court hearing.

The complainant was advised to liaise with the respondent on a weekly/fortnightly basis on his well-being which proved difficult as the complainant had to attend different counsellors which was very difficult for him. As a result of stress incurred with the impending court case as well as stress with his studies and also changes within the counsellors available to him, the complainant went into a local store and walked out without paying for €12.00 of groceries. He was prosecuted for his and around the same time stopped informing his line manager of how he was doing. His supervisor later asked him to send retrospective weekly emails which should not have happened.

The court took a compassionate approach and dismissed the charges unconditionally resulting in no conviction recorded in respect of either incident and the Probation Act was applied.

The complainant submitted that the attempt to extend the probationary period was unlawful and a breach of contract and even if considered lawful it was excessive to extend it for 12 months to see if a criminal conviction was imposed on the complainant. Furthermore, the respondent made no effort to look at potential alternatives to dismiss him and failed to apply fair procedures.

The respondent submits that the complainant was on probation and that owing to a breach of trust they were left with no alternative but to determine that the complainant had failed to pass his probation and that his employment should be terminated. The complainant submits that the complainant had completed probation and that it was unfair to dismiss the complainant owing to an incident wholly unrelated to his unemployment.

In reaching my decision I have taken into consideration of all written and verbal submissions of the parties and I have had full regard to the evidence adduced in the course of the proceedings.

The dismissal of the Complainant, as a fact, is not in dispute and therefore, it is for the Respondent to establish that in the circumstances of this case the dismissal was fair.

I note that the complainant commenced employment, on a temporary contract on 23rd June 2015 until 3rd July 2016 and that his contract made no reference to a probationary period. His subsequent contract commenced on 4th July 2016 and details that “a probationary period of six months shall apply from commencement of employment” and that this may be “extended at the discretion of management”.

The respondent submits that the probationary period applied to the complainant’s permanent role but I note that the ‘permanent’ contracts sets out that probation applies from “commencement of employment” and the respondent confirmed at the hearing that employment commenced on 23rd June 2015.  

Section 3 clearly sets out that “Except in so far as any provision of this Act otherwise provides This Act shall not apply in relation to the dismissal of an employee during a period starting with the commencement of the employment when he is on probation or undergoing training—

( a) if his contract of employment is in writing, the duration of the probation or training is 1 year or less and is specified in the contract,

Furthermore, it has also been set out in Gary Treacy v Irish Packaging Recycling Limited [2012 1504 P] that where “it was expressly provided that the plaintiff's previous employment would count as part of his continuous employment with his new employer. That being the case, the inclusion of a probation clause was ludicrous”.

As the complainant commenced employment on 26th May 2015 which was not disputed by the respondent, and the respondent submitted that the permanent role did not differ from the temporary role, I find that the complainant was on probation until 25th November 2016 and as his probation was not extended during that period I do not find that the complainant could still have been reasonably considered to have been on probation at the time of dismissal.

Section 6 of the Unfair Dismissals Acts, 1977 to 2015 provides:

“(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

…

(4) 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, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a) not relevant

(b) the conduct of the employee

(c) not relevant

(d) not relevant

(6) In determining for the purposes of this Act, whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were substantial grounds justifying the dismissal.

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so—(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7(2) of this Act.”

The Respondent contends that the Complainant was dismissed as a result of his failure to pass his probation and that there had been a fundamental breach in trust and that this is of a higher bar for the respondent as they provide a service to vulnerable people. The approach of whether a reasonable employer would have dismissed the employee in the same circumstances was explained by Noonan J. in the High Court case of Bank of Ireland –v- O’Reilly[1] where it was held that: “…the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s.6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer’s conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned …. “.

In the case of Samuel J. Frizelle v New Ross Credit Union [1997] IEHC 137 the High Court set out the following legal principles to be observed by an employer to support a decision to terminate employment for misconduct:

“Where a question of unfair dismissal is in issue, there are certain premises which must be established to support the decision to terminate employment for misconduct.

1. The complaint must be a bona fide complaint unrelated to any other agenda of the Complainant.

2. Where the Complainant is a person or body of intermediate authority, it should state the complaint, factually, clearly and fairly without any innuendo or hidden inference or conclusion.

3. The employee should be interviewed, and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment.

4. The decision of the deciding authority should be based on the balance of probabilities flowing from the factual evidence and in the light of the explanation offered.

5. The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.

Put very simply, principles of natural justice must be unequivocally applied.”.

It is relevant also that Frank Shortt v Royal Liver Assurance Limited (1998, 3571), sets out that the disciplinary process may not be perfect but it should come within the perimeter of what could reasonably be considered a fair response by the employer in the circumstances. This was also detailed in Mooney v An Post ([1994] E.L.R. 103), where what exactly is required of an employer to satisfy the requirements of natural justice may differ from case to case.  

Therefore, the issues which I must consider in the context of deciding the fairness or otherwise of the dismissal in the present complaint are whether the Respondent acted reasonably in dismissing the Complainant and whether the dismissal adhered to the principles of fair procedures.

In considering these issues, I note that the facts contained within the investigative report, that had been furnished to the complainant, were not in dispute. The complainant was invited to a meeting in a letter dated 21st November and I note that this letter references that the purpose of the meeting is to “address” ..”a report of the information gathered” and also the complainant’s “probation” but it does not mention how serious an issue this is nor does it mention that the complainant’s employment may be terminated. Neither is it mentioned in that letter if the meeting which is due to take place will be a disciplinary meeting.

At the meeting of 23rd November 2017, attended by Mr B who had also been involved in preparing the investigative report; the complainant is asked to confirm if the report is an accurate reflection of the matter.   When the complainant confirms that it is, he is advised that his employment will be terminated and the minutes of the meeting and the letter to the complainant which follows his meeting, do not suggest that the respondent explored any other alternatives to dismissal.

It is also somewhat unclear as to the exact reason for the termination as: the letter which accompanied the investigative report refers to disclosures “in relation to theft outside of work and the matter of probation”; the minutes of the meeting on 27th November 2017 when the employment was terminated refers to the complainant’s “poor judgement and had not engaged with his manager” and that the issue was about “trust” and finally in the letter of dismissal the complainant was advised that “the bond of trust…has been irrevocably damaged”. This confusion around the reason for dismissal was also reflected in the evidence given by the respondent on the day of hearing.

I note that albeit the complainant was involved with incidents that led to court proceedings, he is has able to pass garda vetting by the application of the Probation Act and indeed, secured employment with a similar type organisation following his dismissal. There was nothing, therefore, to suggest that the complainant’s contract was frustrated by the application of the probation act.   Indeed in Dowling v AO Smith Electric Motors Ireland Ltd UD1074/95 the EAT found the decision to dismiss an employee where the probation act was applied for an incident unconnected with his employment, to be unfair. I am also satisfied that as per Section 3 of the Act and the facts of the instant case, it was unreasonable to regard the complainant as still on probation. I find furthermore, that the respondent failed to give due consideration to alternatives to dismissal which amounted to a deficiency from a procedural perspective in the conduct of the disciplinary process and, I note also that there was no opportunity given to the complainant to appeal the respondent’s decision.

I do find that the complainant’s failure to engage with the respondent on the fortnightly basis which he had committed to and which was his and his responsibility alone and particularly when I consider that his work involves dealing with vulnerable service users meant that while the respondent was procedurally unfair, the complainant did contribute to his dismissal by his failure to engage with the respondent.

Having regard to the totality of the evidence adduced, I am satisfied that the dismissal was procedurally unfair and that the complaint is well founded but that the Complainant, through his failure to engage with the respondent when he was already aware of their concerns over trust; contributed to his dismissal and I have taken this into account in considering redress.

Having considered the remedies available I have decided that reinstatement or re-engagement of the Complainant is not a practical option in this case and that compensation is the appropriate redress in this case. The complainant has made efforts to mitigate his loss and has secured some temporary roles. I find that the dismissal was unfair, and I award the complainant 16 weeks’ pay at €610.90, but as the complainant has contributed to his dismissal by 20% I reduce the award to the complainant and I order the respondent to pay the complainant €7,850.

The complainant outlined that his employment was terminated unfairly, without notice and that his weekly pay had been €610.90 weekly.

The respondent detailed that as the complainant’s employment was terminated there was no entitlement to notice.

I have found in CA-00019438-002 that the complainant was unfairly dismissed.

Section 4 (1) details that “An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—

( b) if the employee has been in the continuous service of his employer for two years or more, but less than five years, two weeks,

The complainant’s weekly rate was detailed as €610.90 and I find that the respondent contravened the Act. I find the complainant’s claim is well founded and I direct that the respondent pay the complainant €1,221.80.

CA-00019438-001

I find that the dismissal was unfair and that the complainant contributed to his dismissal by 20% and I order the respondent, therefore, to pay the complainant €7,850.

CA-00019438-002

I find that the Act was contravened and I find the complainant’s claim is well founded and I direct that the respondent pay the complainant €1,221.80

Unfair dismissal, probation, probation act, procedures