Complainant

Respondent

Anonymised Parties

A Recruitment consultant

A Recruitment Company

Representatives

none 

none 

Act

Dispute Reference No.

Date of Receipt

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

CA-00036656-001

13/06/2020

At the start of the hearing I explained that the recent Supreme Court judgement in Zalewski v Adjudication Officer and WRC did not apply to disputes taken under the Industrial Relations Act, which do not require the administration of justice. These disputes will continue to be held in private. Also, the requirement to take evidence on oath is not applicable.

The respondent said they objected to the investigation proceeding. They had been sent a notice asking if they objected on 4 December 2021 but their offices were closed and did not become aware of it until 12 February. Section 36(1) of the Industrial Relations Act, 1990 states: “An objection under section 13 (3) (b) (ii) of the Industrial Relations Act, 1969, by a party to a trade dispute to an investigation of the dispute by a rights commissioner shall be of no effect unless it is notified in writing to the commissioner within three weeks after notice of the reference of the dispute to the commissioner has been sent by post to that party.” The respondent, because they closed their office as a result of the Covid-19 pandemic, did not notify their objection within three weeks. There is no contingency for such an event. Therefore, I have no alternative but to proceed with my investigation into the dispute.

The worker made claim of unfair dismissal under the Industrial Relations Act as she had less than 12 months service.

The worker started working for the respondent on 4 October 2019 as a recruitment consultant.

On 29 January she attended a meeting with everyone in the office who were asked to sign off on job descriptions. The worker’s job description related to business development which she had not been assigned to. Later that day she was called into a meeting with the Regional Operations Manager (ROM) and during the meeting she was told she would no longer be working on the account of a major client. At the end of the meeting she was told to “go home and really think about whether you are right for this role”.

On 30 or 31 January she was called into another meeting with the ROM and asked if she wanted to move to the Naas office. She had been asked this a couple of months previously. She said she would prefer to stay in this office. At the end of the meeting she was asked to go home and ask herself “whether or not I’m 100% committed to the role”. She said she did not understand why she was being asked the question and she assured the ROM she was completely committed to the role.

On 2 February the worker was called into another meeting with the ROM to discuss incidents that happened when her line manager was on leave. A record of discussion was held. She was called into another meeting and handed a document with several points from the record of discussion. The worker was told to go home and write her response to these points. At no point was she told her position was at risk. She felt the record of discussion had been written to show her in a poor light and did not give the full story and she drafted her response. The following morning, she was called into a follow up meeting. The ROM went through her response and said she would discuss this with her line manager and come back to her to go through things in more detail. She got an email on 4 February inviting her to a meeting on Friday, 7 February to have that discussion.

Then, on Thursday, 6 February, she was called into a meeting with the ROM and her line manager and told she had failed her Probation, effective immediately. She was told this was following a site meeting with the major client. The line manager abruptly left during the meeting. She was not given the opportunity to defend herself.

She was put under a lot of pressure during the week her line manager was on leave and expected to undertake jobs she had not done before.

The worked says she had been getting positive feedback on her performance until a week before this. She should have been told what was wrong and given an opportunity to improve her performance.

The employer says the complainant worked alongside her line manager with the major client. Her major jobs were to set up interviews and attend on site at the interviews, to contact candidates daily to inform them of the roster for the following day, record all candidates confirmed and to place the roster on the shared drive.

There was a staff meeting on 29 January 2020 to discuss the job description and the duties required for a Recruitment Consultant role. Everyone was asked to sign the job description. The complainant was brought into a meeting and told that her training period was concluded when she was assisting the office manager. She needed to commence fulfilling more of the Recruitment Consultant role.

On 31 January she was asked if she was interested in a vacancy in the Naas office, as it was closer to her home. It was noted she had been late 5 times due to problems with the bus. The complainant said she would prefer to stay in the office she was working in.

On 2 February there were a number of issues with the major client account and 8 staff members did not show up to work. The following day the worker was asked what had happened and she said she had forgotten and missed some bookings. She had also forgotten to share the roster on the shared drive, so it was not available to the person responsible for staff at the weekend and the complainant was not available. She also had not confirmed three candidates. The worker was given a copy of all the issues and was told to read them through. On 4 February there was another meeting with the ROM to go through the issues. On 6 February the worker was asked how her Business Development was coming on and she said she still had not made her first BD calls. That same day no one turned for a set of interviews the worker had arranged.

On Friday, 7 February 2020 the ROM and the line manager met the worker again and she was brought the concerns about her performance and was told she had failed her probation.

The employer says the worked was not suitable for the role of Recruitment Consultant and they decided that during her probationary period. There was not a formal procedure. If there had been the outcome would have been the same.

The worker had issues with the role, particularly when her line manager was on leave, and her performance may have fallen below that expected by the employer, as a Recruitment Consultant. The issues with the major client were very difficult for the employer and the worker was held responsible. This combined with a lack of action by the worker on the Business Development side led the employer to decide to terminate the worker’s employment, by reason of having failed her probation.

The Labour Court awarded €90,000 to a probationer at the Park Hotel, Kenmare, in response to a claim taken under the industrial relations legislation. The hotel’s legal representative submitted that the respondent was entitled to dismiss the claimant during his probationary period, by giving of notice to that effect, as provided for in his contract of employment. However, when explaining its decision, the Labour Court pointed out that ‘the Claimant was not provided with details of any performance issues; no warning was given .. the procedures adopted in the termination of the Claimant’s employment were seriously flawed’ as ‘he was not afforded fair procedures in accordance with the Code of Practice on Grievance and Disciplinary Procedures S.I. No. 146 of 2000’. Summarising the scenario, the Court pointed out that it ‘has consistently held the view that it is imperative that an employer in a dismissal case must not only show that there were substantial grounds justifying the dismissal but also that fair and proper procedures were followed before the dismissal takes place. This requirement of procedural fairness is rooted in the common law concept of natural justice’ (LCR21798). The €90,000 award in this case also underlines the onus on employers to implement fair procedures for dismissals where there may be serious reputational consequences for a claimant.

In one of its most comprehensive assessments pertaining to procedural shortcomings when dealing with a probationer’s sub-standard performance, in 2015 the Labour Court awarded compensation of over €33,000 against Embankment Plastics Ltd., as they were guilty of ‘a litany of wrong choices’ when dismissing their Quality Engineer, including the fact that:

·       ‘At no stage did the Respondent issue the Claimant with a letter outlining its concerns with the alleged underperformance;

• The Claimant was not on advance notice that the meeting he attended at which his employment was terminated was a disciplinary meeting;
• The Claimant was not advised of his right to be accompanied and/or represented at the meeting;
• The Claimant was not given advance written notice that he was at risk of having his employment terminated at the aforementioned meeting;
• The decision to dismiss the Claimant was communicated by the Managing Director in the course of an uninterrupted meeting such that there is no evidence of the Managing Director having taken a break in proceedings to reflect on anything the Claimant may have said in defence of the allegations put to him at the meeting;
• The Claimant was not issued with a letter of dismissal confirming the reasons for his dismissal and advising him of a right of appeal’ (LCR21066).

In the dispute before me the employer also made the same “litany of wrong choices”. They may have discussed the issues with the worker but they did not present them as disciplinary issues until she was dismissed. During the hearing they said the outcome would have been if they had gone through a disciplinary process but that is to pre-judge the outcome. The worker should have been made aware of what the employer saw as her shortcomings and been given the right to respond, in accordance with the guidelines set out in S.I. 146 of 2000.

In the complete absence of any such procedures I conclude the dismissal was unfair within the confines of the dispute taken under the Industrial Relations Act.

For the reasons given above I conclude the dismissal was unfair.

I recommend the employer draft disciplinary procedures for what they consider to be cases of underperformance which arise during the probationary period.

I further recommend the employer pay the worker compensation of €5,000 for the distress caused by the manner of her dismissal.

Industrial Relations Act – unfair dismissal