Complainant

Respondent

Anonymised Parties

A Former Employee

An Hotel

Representatives

self 

Eoin Haverty

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00038717-001

14/07/2020

The Complainant commenced employment with the Respondent on 25/11/2019 and her employment ceased on 30/6/2020. In the course of her employment the Complainant was placed on temporary layoff which commenced on the 19th March 2020. The Complainant did not return to work after this date.

The Complainant is seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act [1994-2017] and has submitted that she was not notified of nor agreed a change to her terms of employment in respect of her probationary period. The Complainant submitted her complaint to the WRC on the 14th July 2020.

The Complainant’s employment offer letter of the 15th November 2019, provided for a probationary period of six months. The Complainant stated that she was not notified that her probation was being suspended during the period of temporary lay-off which commenced on the 19th March 2020. The Complainant maintained that any such suspension was a change to her contract of employment and that she was not notified of and did not agree any such change to her contract. In this regard, the Complainant maintained that “the Covid 19 crisis has not paused any probationary period in relation to [her] contract”. The Complainant submitted “that unless a change in [her] initial contract is agreed by both parties in writing, the contract for employment is deemed to exist….”.

In an email to the Respondent of 10/6/20 the Complainant stated that “Noting that this 6 months probationary period fell due on May 25th 2020. I amrequesting that I am offered either confirmation of my being made permanent in writing, or, receive four weeks payment of my salary along with any outstanding holidays…”. In her submission to the WRC, the Complainant reiterated that she had requested the Respondent “to either send me my permanent contract for employment now that the probationary period has elapsed as of the 25 May 2020 or my 1 month notice of termination, as per the original signed contract.”  

The Complainant also raised the following:

·       That she had sought clarification regarding the matter from the Respondent on several occasions but to no avail;

·       That whilst she was placed on temporary layoff, other employees were retained and that a Duty Manager was employed which is a job she was capable of fulfilling in addition to other posts;

·       That she found the whole situation in relation to her contract of employment “unnerving with her future employment at stake; not knowing if [she] will be getting a permanent contract or not”;

·       That she was the subject of inappropriate comments and bullying, that she had sought advice from the Respondent’s HR on this matter but considers that if she hadn’t gone to HR “no doubt I would have being kept on even at 3 days a week…”;

·       That the lay-off placed her under financial pressure, that she had sought to work three days/week but in the end, she considered that she had no option but to resign. In this regard, the Complainant’s email to the Respondent of the 30th June 2020 stated:

“…..with no clarity on a permanent contract, despite a permanent contract being promised to me, having served my probationary period, and with no agreement in writing or verbally that the probationary period was on hold during the Covid crisis and with no date to return to work…..it is with sincere regret I am tendering my resignation.….”.

It is the Complainant’s position that the Respondent acted in breach of the Terms of Employment (Information) Act [1994-2017] by virtue of its suspension of her probationary period during the period of temporary lay-off and that she did not agree nor was not notified of this change.

The Respondent refuted the Complainant’s claim that she had not been notified of a change to her terms and conditions of employment. In that regard, the Respondent outlined the following:

·       That the employment letter of offer of the 15th November, 2019 stated that “This offer is subject to a six-month probationary period”;

·       That the Respondent’s Employee Handbook (which was furnished to the Complainant with the letter of offer of the 15th November, 2019) provided that during the probationary period “…the Department Manager assesses them”. The Handbook also provided that employees may be laid off;

·       That the Respondent had arranged a town hall meeting on the 19th March 2020 to advise staff that in response to the impact of the Covid-19 pandemic on its business “it would be reducing its operations temporarily to cater for a minimal level of occupancy and that staff members would be temporarily laid off as a result”;

·       That the Respondent communicated with all staff – including the Complainant - by letter on the 19th March 2020 to this effect. Staff temporarily laid off were paid by the Respondent under the Government Temporary Wage Subsidy Scheme;

·       The Respondent disputed that it had not responded to the Complainant and stated that it had received no correspondence from the Complainant between the 27th March and the 9th June, 2020 and that the Complainant had not furnished copies of the communications which she had claimed were not replied to;

·       The Respondent replied to the Complainant’s email of the 10th June, 2020, by email of the 16th June 2020 wherein it advised the Complainant that due to the fact that she had been placed on temporary lay-off, her probationary period would resume on her return to work. The Respondent stated that the Complainant had completed approximately seventeen weeks of her six-month probationary period up to the date on which she was placed on temporary lay-off;

·       In response to the Complainant’s request for confirmation of permanency, the Respondent’s emails of the 16th and 22nd June 2020 stated:

“….we are unable to issue the letter that you requested, as you have not completed your probationary period. We cannot assess your performance due to being temporarily laid off as per your letter dated 19th March 2020. Your probationary period will resume on your return to the business”

·       That in response to the Complainant’s letter of resignation of the 30th June, 2020, the Respondent reverted back to the Complainant by email of the 2nd July 2020, asked her to re-consider her decision and offered the Complainant the opportunity to pursue a grievance in accordance with the company’s Grievance Procedure copy of which was attached to the email. The Respondent stated that the Complainant did not respond to this email of the 2nd July 2020.

In relation to the Complainant’s probation, it is the position of the Respondent that she could not “have possibly passed the probationary period as set out in the contract of employment, as the performance of the Complainant could not be assessed during this period due to the fact that she was on temporary lay-off, and therefore not working”. Accordingly, the Respondent deemed that the probationary period was suspended during the lay-off period “and would resume at such time as the Complainant could return working”.   In the course of the adjudication hearing the Respondent accepted that it had not notified the Complainant in advance of the commencement of the period of temporary lay-off that her probation would be suspended. The Respondent stated that it was a difficult and uncertain time for the company due to the impact of the pandemic, that “certain things may have slipped through the cracks” but that once the Complainant sought information this was provided to her.

It is the Respondent’s position that the Complainant was notified and provided with all terms and conditions of her employment prior to commencing with the company and that accordingly, it has fully complied with the Terms of Employment (Information) Act [1994-2017].

In support of its position the Respondent cited case ADJ-00026715 in relation to the purpose of probation.

Section 5 (1) of the Terms of Employment (Information) Act [1994-2017] states that “….whenever a change is made or occurs in any of the particulars of the statement furnished by the employer under section 3, 4 or 6 the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than – (a) 1 month after the change takes effect, or….”.

While several matters have been raised by both parties in the submissions and at the adjudication hearing, for the purpose of establishing the merits of this complaint, the key issue for me to consider is whether or not the Complainant’s contract of employment was changed. In that regard, the Complainant has argued that her contract was changed due to the suspension of her probationary period during the lay-off period and that she was not notified of this change nor agree it. The Respondent maintains that the purpose of probation was to assess the performance of the Complainant and that this could not take place during the lay-off period.

The Complainant’s employment letter of offer of the 15th November 2019 stated:

“This offer is subject to a six-month probationary period. On completion of this period, a 4-week notice period is required by the Hotel in the event of the termination of your employment”

The Respondent’s Employee Handbook which was furnished to the Complainant with the letter of the 15th November 2019 stated the following as regards probation and lay-off:

“All new employees will complete a probationary period as set out in the letter of offer, during which the Department Manager assesses them. Provided a satisfactory standard is achieved and maintained, employment will be confirmed. Should the probation prove unsuccessful the contract of employment will be terminated….”

The Company reserves the right to lay you off from work or reduce your working hours where, through circumstances beyond its control, it is unable to maintain you in employment or maintain you in full-time employment”

I note that Section 11(1) of the Redundancy Payments Act [1967-2016] states that lay-off arises:

“Where an employee’s employment ceases by reason of his employer’s being unable to provide the work for which the employee was employed to do, and –

(a) it is reasonable in the circumstances for that employer to believe that the cessation of employment will not be permanent, and

(b) the employer gives notice to that effect to the employee prior to the cessation, that cessation…..shall be regarded as lay-off”

Whilst I appreciate that the Complainant expected her probation would ordinarily be completed in May 2020, taking all of the submissions into account, I find that it was not unreasonable of the Respondent to maintain that the probation could not be completed during the lay-off period. In this regard, I am of the view that an assessment by a Department Manager as specified in the Employee Handbook, required the Complainant to be in employment and that because the employment had ceased during the lay-off period, the activity of assessment could not proceed.

Given the content of the letter of the 15th November 2019 and the provisions of the Employee Handbook, I am satisfied that the Complainant was on notice from the commencement of her employment with the Respondent that she could be laid off and that her employment was subject to a six months probationary period which involved assessment by a Department Manager. In my view the suspension of the Complainant’s probation during the lay-off period did not change or run counter to her terms and conditions of employment.

In light of the foregoing, I find that the Complainant’s terms and conditions of employment vis-à-vis the suspension of her probation were not changed within the meaning of Section 5 (1) of the Terms of Employment (Information) Act [1994-2017].

CA-00038717-001

For the reasons outlined I find this complaint is not well founded.

Contractual Change; Terms of Employment; Probation