ADJ-00035724

Worker

Employer

Anonymised Parties

Project Specialist

Social Media Company

Representatives

Jessica Bielenberg Mason Hayes & Curran

The employee commenced employment on the 22nd of October 2018 and was subject to a probationary clause that stated:

The first six calendar months of your employment shall be a probationary period during which time your performance and suitability for continued employment will be monitored.

The Company reserves the right to extend your probationary period by up to five (5) months for a total of eleven (11) months.

The contract also provides that after successful completion of the probationary period a 4 week notice period would apply.

The employee was absent due to certified illness from the 16th of May until the 1st August 2019.

The company wrote to the employee on the 19th June 2019 to state that while on sick leave from 17th June 2019 to 14th July 2019 the probationary period will be suspended. This was based on the most recent sick certificate. The company argues that this meant during this period of sick leave the probationary period would be extended for the period of certified absence and not literally up to the 14th of July 2019.

This suspension or pause placed on the probationary period arose as the company had concerns about the employee’s suitability for permanent appointment and which they had discussed with the employee.

The employee returned work on the 1st August 2019 and her employment was terminated on the 27th August 2019, which the company state was during the probationary period. The employee states that the termination occurred outside of her probationary period; which was suspended as per the written  company record up to the 14th July 2019. In effect this meant; it is argued, she was terminated after the probationary period had ended.

The probationary period originally was expected to run from 22nd of October to 21st of May 2019. The company argued that in fact what had been communicated was an extension of the probationary period equating to the period of sick leave. As the employee returned to work on the 1st of August 2019 the extension was for 6 weeks and the company argues that the employee was in fact terminated during the probationary period.

The company contends that the employee was notified by her manager from about early March that there were performance concerns. The company also states that during successive one to ones that occurred monthly the employee was told that she was not meeting the standards expected of the role.

The employee states that she was pregnant when terminated and that she was out of work for 13 months.

She stated that the assessments carried out by her manager were not based on best practice; no clear goals were set; no measures or proper performance improvement plan was detailed. In essence the decision to terminate her employment was subjective, unfair and not informed by the reality of the project demands and what could be achieved.

The employee states that she experienced stress arising from a pattern of interactions with her manager that were about placing her under the maximum amount of pressure and had nothing to do with ensuring a fair and objective performance improvement plan was put in place. This breached the company’s obligations to ensure a safe place of work where an employee is not undermined by a pattern of behaviour that was intended to undermine and not to fairly assess and help an employee to improve. On this basis the employee made a bullying complaint about her manager.

The employee maintains that she was unfairly dismissed and that it was inextricably linked to a pattern of behaviour by her manager that was intended to undermine her and led to a sham termination based on performance.

The company has not adhered to the relevant code of practice relating to the investigation of a harassment or bullying complaint and at no time did the employee receive a copy of the report/investigation completed by the company.

The company refutes this account and states that over 10 one to one meetings the issue of performance was consistently raised and reached a stage where it was serious. The company has a right to use the probationary period to assess suitability and it exercised its right to do so.

The bullying complaint only was raised when performance issues and the risk of the employment being terminated became a very real possibility. The allegations were independently investigated and completed in accordance with the policy of the company. The employee was told the outcome of the investigation before any other action took place. While it may appear that the two processes were linked; they were not. The probationary review and decision to terminate are totally separate matters.

There are 2 disputes referred:

1.       The company outside of the probationary period dismissed the employee without applying a fair procedure that had the intent of improving performance

2.       The company failed to implement a fair process concerning the investigation of the bullying complaint.

The company acted within its legal right to terminate the contract and argued that the employee was terminated during probation, as the probation period had been extended as provided for under the contract.

The company conducted a thorough; fair and independent investigation of the complaint concerning bullying.

CA 00034875-002/004

These two complaints are the same complaint concerning unfair dismissal. The company states that it followed a robust and fair process regarding assessing the worker’s performance during probation. However, the decision to dismiss on the 27th of August 2019, on the facts was outside the probationary period. The employee was formally notified of one extension to a specific date; however, she was not informed that her probation would be extended for the entirety of her absence from work. When the employee was terminated on the 27th of August 2019 she was out of probation as the company had not properly informed her of an extension to a different date.

 However, the contract does contain a clause that provides for termination; subject to being given 4 weeks -notice. The employee in this case received 1 weeks’ notice having regard to the belief that the worker was subject to the probationary clause.

The company argues that this was correct as the probation period was extended. The evidence would tend to show that in fact the employee was technically  out of probation. Based on this fact, I recommend that the employee should be paid an additional 3 weeks’ notice as she already has received 1 weeks’ notice, based on the belief that the probationary period had not elapsed.

The contract clearly provides that the employer has the right to terminate; however, it draws a distinction between termination during probation and after probation.

 There is no evidence that the employer in fact followed a well-structured performance improvement plan. No evidence was relied upon by the employer concerning smart objectives; to show that the process was objective and reasonable: Specific; Measurable; Attainable; Relevant and Time Based. While the employer places emphasis on the frequency of one to ones held with the employee; it is not possible based on this sole assertion; without concrete documentary evidence, to conclude that the performance review process followed by the company was fair. In fact it appears to have been seriously deficient when assessed against good practice. Based on these shortfalls and the subsequent hasty decision to terminate; I recommend that the employer compensate the employee for these deficits with a payment of 12 weeks’ pay.

CA 00034875-003

On request by the Adjudicator; the company provided a copy of their relevant policy concerning the investigation of bullying and harassment complaints and the report finalised by the company. It is a fact that the company never provided the employee with a copy of the report until requested to do so by the Adjudicator. As the maters complained off occurred during 2019 the relevant code to assess how the investigation was conducted is the Code of Practice on Addressing Bullying in the Workplace 2002, as the matter complained of occurred in 2019 before the new code came into operation.

The employee was informed of the outcome of the investigation on the 27th August 2019 the same date that her employment was terminated.

Under General Provisions of the code-at (h) both parties should be given the opportunity to comment on the findings before any action is decided upon my management.

While the report on the face of it records a process that is fair; the actions of the company do not demonstrate a considered and open process.

The exercise appears to be a tick box exercise and significantly fails to live up to the stated policy of the company to investigate such matters fairly.  I recommend that the employer pay the employee a further 12 weeks based on the undue haste to dismiss the  bullying complaint and the failure to provide a written report for the worker to comment on before finalising a course of action.

CA-000034875-02/04

These two complaints are the same complaint concerning unfair dismissal.

The employee has left the organisation and this recommendation is based on the policy of the company to apply best practice and to be open when to an independent review of that practice if it finds shortcomings.

The company argues that the probation period was extended. The evidence would tend to show that in fact the employee was technically  out of probation.

The contract clearly provides that the employer has the right to terminate; however, it draws a distinction between termination during probation and after probation.

There is no evidence that the employer in fact followed a well-structured performance improvement plan/process. No evidence was relied upon by the employer concerning smart objectives; to show that the process was objective and reasonable: Specific; Measurable; Attainable; Relevant and Time Based. This in particular is what the company itself no doubt would see as what should have occurred. In the absence of a performance improvement programme based on S.M.A.R.T. objectives, an independent review must conclude that the process was unfair. It also a fact, allowing for the period of sick absence, the extension of probation to fairly access in reality was not used.

 While the employer places emphasis on the frequency of one to ones held with employee; it is not possible based on this sole assertion; without concrete documentary evidence, to conclude that the performance review process followed by the company was fair; and in fact appears to have been seriously deficient when assessed against good practice. This is not the stated practice of this company and on this basis the recommendation should be viewed.

Based on these shortfalls and what appears to be a hasty decision to terminate not based on the values of the company; I recommend that the employer compensate the employee for these deficits with a further payment of 12 weeks.

In total I recommend that the employer pay the employee 15 weeks compensation for Unfair Dismissal.

This recommendation is made based on the fact that the employer unfairly terminated  a pregnant employee without following practices that are fair and objective, giving rise to 13 months of  unemployment, compounded by the pandemic. This is not what the company would have wanted to have occurred, but that is the unintended consequences of a process that was not completed according to the practices that this company states it applies.

CA-00034875-03

Under General Provisions of the Code of Practice on Addressing Bullying in the Workplace relevant at the time of the complaint made in 2019-at (h) both parties should be given the opportunity to comment on the findings before any action is decided upon my management.

While the report on the face of it records a process that is fair; the actions of the company do not demonstrate a considered and open process.  The employee received no report, was not allowed to comment on the report and was terminated on the same day that the outcome of the investigation was communicated to her. It does not reflect the values relating to dignity and respect that the company clearly is committed to. It also is a breach of the Code of Practice by failing to provide an opportunity for the employee to comment on the findings of the investigator.

The exercise appears to be a tick box exercise and significantly fails to live up to the stated policy of the company.  I recommend that the employer pay the employee a further 12 weeks’ pay based on the undue haste to dismiss the  bullying complaint and the failure to provide a written report for the worker’s comment before finalising a course of action. I would also recommend that the company update it’s own policy to reflect the most recent recommended code of practice so that what has occurred in this case does not repeat itself.

Unfair Dismissal- Probationary Period-Code of Practice on Addressing Bullying in the Workplace