Worker

Employer

Anonymised Parties

An Administrative Worker

A Public Body

Representatives

Forsa

 HR Manager

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00033443-001

30/12/2019

The worker had his employment terminated towards the end of his probationary period and is alleging that fair procedures were not afforded to him, and that insufficient training was provided.

The worker commenced as a Clerical Officer with the employer on 5th November 2018 with the standard 12-month probationary period in his contract.  His contract was terminated by the employer on 25th October 2019.

From the outset, the worker felt that the department was not set up for his arrival. There was a lack of adequate training and no log on facilities had been arranged which meant that the worker had to be logged onto the computer by another staff member, and had no access when that staff member wasn't available. He had no access to the clocking system etc. He was unable to log on to systems for a considerable period of time, with the worker raising this issue at several review meetings. The worker provided cover for the department during the summer months, working on his own for a period of two weeks in the month of August 2019, while the other members of staff were on leave. It would appear that Management were content to leave the department in the hands of the worker for this period.

The worker's first Probationary Appraisal Meeting took place on 12th April 2019, carried out by the Line Manager. This was some 5 months after his commencement date. In the report dated 12th April 2019 the worker’s performance was described as "completes duties and tasks with supervision and instruction from line manager" (as would be expected of a new employee to the service). The worker advised of difficulties due to the "delay in training and access to systems". Areas of improvements necessary were listed as: "line manager reporting and queries". General comments were noted "adhering to smoking policy and improved breaks after discussion on 23/11/2018". This document was not signed by the worker, nor did he receive a copy as per the employer’s policy.

The second Probationary Appraisal Meeting took place on 30th September 2019. No performance deficiencies were raised or noted. In the report dated 30th September 2019, the worker's performance was described as "Completes duties and tasks with supervision and instruction from line manager". The worker advised of difficulties due to "having to repeat tasks, instructions not clear". Areas of improvement necessary "line manager reporting, Timeline notice given for leave requests/appointments". This document was not signed by the worker, nor did he receive a copy, as per the employer’s policy.

A Return to Work Review Meeting took place on 2nd October 2019. It should be noted that a date set for next review was 6th November 2019. This date would have been after the period of probation.

On 3rd October 2019, the worker received a letter, entitled "Performance During Probation Period" requesting that he attend a meeting on 10th October 2019.

The meeting on 10th October 2019 was attended by the Assistant Section Officer and the Employee Relations Manager. The worker was accompanied by the local union representative.

During this meeting, the employer outlined concerns in relation to the worker's attendance pattern. The Forsa representative advised that all leave, both annual leave and sick leave and been fully certified and signed off/approved by management. The Forsa representative also highlighted that the worker should have received signed copies of the probation meeting reports, which was confirmed by Employee Relations Manager. Performance issues were raised and again the problems with access to systems etc. was raised by the Forsa representative and were acknowledged by the employer. The Employee Relations Manager outlined to the worker the possible outcomes of the meeting, namely: Continue as is, Extension of Probation, or Ending of employment Contract.

The worker was not given any indication that the termination of his contract was the preferred action of the employer, however it would appear from correspondence between Management dated 23rd September 2019, that discussions were already taking place with a view to terminating the employment contract before the end of the probationary period. The worker was never informed that such discussions were taking place, or that his employment was at risk. On 18th October 2019, the worker received a letter to state that the employer would terminate his contract of employment on Friday 25th October 2019. An appeal was heard on the issue but the decision to dismiss was upheld.

The employer failed to follow their procedure in relation to probationary reviews which states;

"The line manager will conduct progress reviews with the employee at regular intervals and keep a formal record of his/her assessment for the period under review. The line manager will also document any follow-up action that was agreed during the discussion. Where the new employee persistently fails to achieve the required standards, the line manager will advise the employee of his/her deficiencies. The objective at this stage will be to help the employee to improve whilst making it clear that failure to do so will result in his/her employment being terminated"

Further, they have failed to adhere to the policy "Notes for Guidance for Supervisors on Appraisal for All Staff During their Probationary Period". The employer provided only copies of two probationary appraisal reports as per the policy. They are unsigned by the worker and neither copies were provided to him.

 In the documentation in relation to the worker’s termination, the employer quoted the main issues as:

"Line Manage Reporting: Inadequate timelines for requests" - No further details were provided. It should be noted that all annual leave requests were approved by the line manager.

"Irregular Attendance: Due to a combination of annual leave and sick leave you only worked 25 full weeks (5 days per week) over a 50 week period. This included 15 single Mondays as annual leave". No identified issues were raised about performance. All of the annual leave days were granted and signed off as per the employer’s Policy. The days also do not take into account the attendance patterns in the office or indeed public holidays etc.

"Work issues as outlined by your line manager in one-to-one meetings such as registered post issue, mail merge issue".

These were not one-to-one meetings in the manner that is suggested by management. Two were probation review meetings, and some were discussions that could be regarded as normal line manager/employee interactions, or a chat in open discussion with others present, about day-to-day work. There appears to be an attempt to formalise and attach gravitas to these to convey the impression that Management were addressing ongoing issues with the worker's performance.

 "Not reporting as per sick leave" - No further details provided, however, all sick leave was recorded and signed off as per the Managing Attendance Policy.

"Excessive absences from desk" - No further details provided. Probation review form from 12th April 2019 indicated an improvement following discussion with the worker on 23rd November 2018.

It is the contention of the worker that the allegations included in the termination letter were spurious and not evidenced. Even, in the event that they were true, it certainly would not constitute dismissal or termination. No paper trail exists about bad or poor performance and the worker was never told that his position was at risk, either verbally or in writing.

The worker declared a mental health condition on the Pre-Placement Health Assessment Form. This was further disclosed to Estates Management on 25th November 2018. The worker was referred to Occupational Health, and the report from the Occupational Health Specialist states "Although he (the worker) has a medical condition, it is well controlled and with support he should be able to provide a regular and valuable service". No further assessment was conducted of the worker’s health condition in the context of his work environment. The worker’s dismissal/termination in this context and without due process, has not taken cognisance of his condition. Nor has there been an assessment, support or intervention by an appropriately qualified medical professional or the HR Department.

It is very clear that the employer did not follow procedures in place in relation to the probationary period of the worker, and showed very little interest in supporting and nurturing a new employee to their service.

The worker was employed as a Clerical Officer within the employer’s Office from 5th November 2018 until 25th October 2019 when his employment ceased due to failure to complete a successful probation period. A failure in the performance of the Estates function can have adverse consequences for vulnerable patients.

The worker alleges:

·       A failure to follow due process.

·       A failure to follow the policy 'Notes for Guidance for Supervisors on Appraisal for Staff during Their Probationary Period'

·       A failure to identify performance deficiencies as per policy

·       A failure to stipulate actions required of the worker

·       A failure to provide support for an on-going pre-disclosed health condition

·       That the worker was treated harshly, unfairly and less favourably than other comparators in similar circumstances

·       A failure to consider other options at their disposal, as per the policy, during the probationary period

·       That the worker was consciously dismissed just before 12 month service in order that the employer avoids his accrual of right under unfair dismissal legislation

The Employer’s response is as follows:

A failure to follow due process.

The Employer observed the two maxims of natural justice namely 'no one should be a judge in their own case' and 'hear all sides of the story'.

The probationary assessments were completed by the worker’s Line Manager.

The employment termination decision and the associated letter issued by a Senior Manager, following consultation with HR. The immediate line manager was not a judge in her own case. The worker was heard by the immediate line manager in his response given to the probationary assessments. The worker, accompanied by his trade union representative, was also heard in a Management Review meeting dated the 3rd October 2019. His appeal of the termination decision was heard by the Estates Manager. The Estates Manager confirmed the termination decision. The worker was afforded the opportunity to be heard and his representations considered both during the probationary process and in the appeal process.

A failure to follow the policy 'Notes for Guidance for Supervisors on Appraisal for Staff during Their Probationary Period

The above policy title is unknown to the employer. It seems to be an errant attribution of policy from another organisation.

The employer followed the 'Induction Guidelines and Checklist' and the Probation Management process as outlined within Performance Management, Module 1 of the employer’s 'People Management the Legal Framework'.

During the period the worker also availed of training over the initial 3 months including Induction Assessment, GDPR, Equality & Diversity, Dignity at Work, Health, Safety and Security, Risk and Incident Management, User Awareness in Display Server Equipment, etc.

Of fundamental note is the Contract of Employment signed by the worker on 10th March 2018, and a term of that Contract is as follows:

A probationary period of one year shall apply from commencement of employment, during which the contract may be terminated by either party in accordance with the Minimum Notice and Terms of Employment Act, 1973-2005. The probationary period may be extended at the discretion of management. Confirmation of your employment as a permanent member of staff is subject to the successful completion of the probation period.

A failure to identify performance deficiencies as per policy

Probation meetings and 'Probationary Appraisal Forms' were completed privately, in the presence of the worker. Work targets and plan for performance improvement were outlined and agreed at these meetings. Additionally, eight one-to-one meetings were held with the worker by his line manager. The issues of deficiency identified to the worker were multiple:

·       Excessive absences from department.

·       Smoking policy

·       Queries, information — not asking questions

·       Emailed OH re: desk assessment/sore knees, not mentioned to Line Manager 

·       Issues with database/addressing envelopes. Over 100  envelopes returned to the Letterkenny office, some not addressed properly

·       Issues with scanning, binding

·       Issues with registered post

·       Giving work to other colleagues

·       Reporting relationship, procedures, timelines for appointments/leave. Short time lines for appointments and leave, despite being advised of procedure by Line Manager.

·       Not reporting as per sick leave policy.

A Management Review Meeting was held on 10th October 2019 amid concerns in relation to the worker’s probation. This meeting was attended by the worker and his Forsa Trade Union Representative and management was represented by HR and the Estates Department.

At this meeting the worker stated that a page of notes had been given to him by another staff member as a form of training. This is refuted.

 A failure to stipulate actions required of the worker

Induction Guidelines and Checklist was completed by the Line Manager and the worker together, over a period and signed off by both. Work targets and plan for performance improvement were agreed at probation and at the eight one-to-one meetings.

A failure to provide support for an on-going pre-disclosed health condition

On commencement of work at the Estates Department it was noted that the worker was excessively absent for periods from the Department. These smoke / walk breaks were noticeable and remarked by several members of the team. Table of absences is supplied.

When the Line Manager addressed this, he received an email from the worker advising of an anxiety disorder. The worker’s applications for annual leave were approved where possible, when the Department could accommodate and in support of the staff member's requirements applying for leave. There were occasions when leave applications were not initially approved but were subsequently approved after conversations with the worker.

The worker worked a period of 26 full weeks (5 days per week) over a 50 week period. There were 24 weeks in which he did not work a full week; this included 15 single Mondays.

The worker was referred to Occupational Health. OH Reports received in April and September 2019, stated that the worker was fit for all duties, aware of the sick leave policy and the need to provide a regular and reliable service.

Cognitive Behavioural Therapy appointments were accommodated during working hours for a period of approx. 6 weeks.

The worker was well supported by Managers who facilitated access to Occupational Health Service, Employee Support Services and Cognitive Behavioural Therapy.

The worker was treated harshly, unfairly and less favourably than other comparators in similar circumstances

All the employer’s employees are reasonably treated; they are not treated harshly or unfairly. All staff at the Estates Department are treated fairly. The worker did not raise any issues in relation to being treated harshly, unfairly or less favourably.

The worker experienced initial delays in ICT set-up, email (25 days) and network drive which were acknowledged but did not impact the duties assigned to him. During this time opportunities for training were arranged.

A failure to consider other options at their disposal, as per the policy, during the probationary period

Satisfactory service was not provided over the preceding 335 days and the Employer was not confident that the worker had demonstrated the capacity to change to such an extent that the necessary satisfactory service would be provided after a period of extension.

The Employer was given no reason to believe that a transfer to another Office would lead to the necessary improvement to provide satisfactory service to the Employer. The Employer was given no reason to believe other than that the same or similar deficiency in service would arise in any its other Offices.

The worker was consciously dismissed just before 12 month service in order that the employer avoids his accrual of right under unfair dismissal legislation

 The Contract of Employment provided for a probationary period of one year.

The probationary period provides up to 12 months to conclude if satisfactory service can be provided in a permanent position. The worker was afforded the benefit of a full probationary period to demonstrate his capacity to provide satisfactory service, yet despite that period of time, the Employer could not form the view of the worker that satisfactory service would be provided into the future.

The requirement to use disciplinary procedures when terminating employment during the period of probation was addressed in the Court of Appeal in Donal O’Donovan v Over-C Technology, [2021] IECA 37. The decision in that case means that where allegations of misconduct ground a dismissal then fair procedures are warranted but in the absence of such allegations, they are not. Secondly, the worker’s entitlement or otherwise to procedures may be part of the contract of employment.

In accordance with the above decision, it is necessary to consider whether the reasons giving by the employer for terminating the contract relate simply to poor performance and/or were related to misconduct.  While there is a distinction between poor performance and misconduct it appears to me that repeated poor performance may at some stage be construed to be misconduct.  In this instance I think, in order to consider whether the issues arising during the probation of the worker are indeed misconduct, it would be worth considering whether any of these issues would, had a permanent employee behaved in a similar fashion, have given rise to an investigation under the disciplinary procedure.  A number of the concerns which were outlined by the employer related to poor performance such as, not asking questions, emails to Occupational Health, issues with database/addressing envelopes, issues with scanning, binding, issues with registered post and giving work to other colleagues.  I think these issues are properly issues of poor performance and could not reasonably be classified as misconduct.  Therefore, had these been the sole reasons for terminating the contract, there would have been no absolute requirement to utilise the disciplinary procedure, unless the employee’s contract contained a contrary provision.

The reasons given by the employer in the letter of 18th October for terminating the contract due to performance were:

Line Manager Reporting: Inadequate timelines for requests

 Irregular attendance: Due to a combination of annual leave and sick leave you only worked 25 full weeks (5 days per week) over a 50 week period. This included 15 single Mondays as annual leave

 Work issues as outlined by your Line Manager in 8 one-to-one meetings such as registered post issue, mail merge issue

 Not reporting as per Sick Leave Policy

 Excessive absences from desk

Of these issues, in my view, an unacceptable level of absenteeism would normally be addressed by the employer under a disciplinary procedure and could therefore be construed as misconduct.  If absences in this case were at an unacceptable level – serious misconduct - they should have been raised by the employer under the Disciplinary Procedure with the worker. I note that the position of the employer was that they did not have to use the disciplinary procedure as the was on worker probation.  However, where a matter relates to serious misconduct, using the procedure is necessary and this is confirmed in the employer’s own policies governing the supervision of employees on probation. These policies are implied terms in the worker’s contract of employment.  While the employer did deal with the matter formally, I don’t believe the process met the full requirements of the employer’s own disciplinary procedure. Given the background in relation to referrals to the Occupational Health I believe it was of particular importance that the worker received the benefit of the full procedure as he may well have been able to reasonably address the attendance patterns.

I therefore conclude that the complaint is well founded.  I do not believe reinstatement is appropriate in this instance and the worker should be compensated for the failure of the employer to utilise the appropriate procedures.

I recommend that the employer pay the worker the sum of €3,000 in compensation for its failure to utilise the appropriate procedures.

Dismissal while on probation.  Use of procedures