Worker

Employer

Anonymised Parties

A Stud Hand

A Stud Farm

Representatives

Conor O'Toole, Solicitor of  Dawson O'Toole Solicitors

Michelle Bolger of ESA Consultants

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00036638-001

12/06/2020

The issues in dispute concern the alleged Unfair Dismissal of the Worker from a Stud Farm. The employment commenced on the 23rd of September 2019 and ended on the 5th June 2020.

The rate of pay was €550 for an alleged 47-hour week.

The Worker alleged that he was dismissed without any fair procedures being followed and not in keeping with the Employer’s own Disciplinary policy. The workers representative pointed to many inconsistencies in the Employer’s case regarding proper steps in the Employee Handbook. The Handbook applied “To all employees” Chapter 8 Purpose and Scope. There was no “exclusion” for staff on probation.  The Contract of Employment details the Probationary Period conditions but has no reference to the Handbook not applying. The Employer referred to the fact that the Worker had not appealed his dismissal. This could only happen under the Procedures in the Handbook. The Employer could not pick and choose what parts of the Handbook he wished to apply.

In similar vein the Worker had never been formally advised that his Employment/Probation Period was in jeopardy and had no opportunity for proper Representation at any of the meetings with the Employer.

The Workers representative referred to a number of Employer letters that it was maintained by the Employer had been issued to the Worker -specifically the letter extending the Probation. None of these letters had even been received by the Worker. The Employer was now post factum making up an alleged correspondence trail to suit their case.

The penalty of dismissal was completely disproportionate and the Employers bullying policy was not followed. The Worker maintained that he was due two weeks’ notice but only received one.

The Worker gave direct oral evidence as did his father in his support. He accepted that he had needed to improve in certain Horse related areas but nothing of the level to justify his dismissal. This came as a shock and was in his view directly related to an incident with another Employee. A serious public verbal altercation regarding incidents outside of work had taken place. The Stud owner had intervened and forced the parties to shake hands.

He had never been warned that his job was in jeopardy and he had never been given a chance to have someone come to meetings to speak for him.

It was stated that the Worker had a severe Dyslexia condition and finds reading and writing a challenge. This had made reading the Handbook and correspondence from the Employer difficult and likewise lodging an Appeal.

The worker commenced employment in September 2019 as a Stud Hand on condition that he would get his driving licence. On his application he had listed Driving and three years’ work on other stud farms as key skills. He was provided with a contract of Employment and an Employee Handbook. His employment was subject to a six-month probation period.  On the 26th November 2019 the Employer met with the Worker and was counselled by the Employer. Stud Farm Supervisors had expressed negative feedback to the Employer regarding the Worker’s attitude and basic skill levels.  On the 13th March 2020 the Employer met with the Worker for a Performance review. The Employer had range of issues which the Worker needed to address and come up to speed on. The Worker agreed that he needed to improve and in the interim he was transferred to Farm maintenance work away from horses. He had failed his driving test on the 13th March 2020. The Employer allowed him to apply for a retest. On the 23rd March 2020 a further Performance review took place and the workers probation was extended for a further three months i.e. until the 23rd June 2020. This was confirmed in writing. Copy letter in evidence.

An Employer witness, Manager, Ms. XA, in direct evidence, said that she had always liked the Worker, he got on well with everyone and she was anxious to try and keep him. The move to Farm maintenance duties was an effort to keep him employed even if it was clear by March that he was not up to the required standard on Horse Work.

In discussions she maintained that the Worker accepted that there were areas where he could improve on and was anxious to keep his employment even if this meant doing Farm maintenance duties.  He had never raised any Grievances or made allegations of Bullying.

In late May 2020 the Worker was involved in a serious altercation with a Farm trainee. This was reported to the Employer /Owner who also gave oral evidence. He had called both sides together and made them shake hands. It was a row about sheep and allegations of animal theft. The Employer stated that it was vital that no outside work personal difficulties between staff impinge on the work of the Stud. This was why he had intervened directly to get the two Workers to settle their difficulties. The Worker had been reluctant but had been persuaded.

On the 29th May the Employer Manager, Ms. AX, again met with the Worker and informed him that his employment was ending on grounds of suitability. He had failed to obtain a driving licence and his Horse and Stud Farm skills were not what he had told the Employer at interview. In Oral evidence the Employer explained that, at that stage, they had exhausted all Farm maintenance work and had no work for the Worker. The Worker accepted this decision and left. He made no Appeals of the dismissal decision, even though this is provided for in the Employee Handbook.

According to the Employer Manager the Worker had always expressed appreciation for working at the Stud and never raised any complaints or grievances. In discussions he had accepted that he needed to improve his work standards. He had accepted the move away from Horse work to Maintenance work without complaint. He was a straight forward young lad but was weak on Stud Horse skills.

The Employer representative pointed to the High Court case of O’Donovan v Cover-C Technology [2021] IECA 37 where Ms. Justice Costello found that regarding the ending of employment during a probation period

“Both parties are -and must be free to terminate the contract of employment for no reason or simply because one party forms the view that the intended employment is, for whatever reason, not something with which they wish to continue.”

In summary the employment was ended due to the Worker not having the necessary skill set to work on a Stud Farm, had not made any real efforts to improve and he had failed his driving test. He had been counselled and formally spoken to on a number of occasions by the Employer and had been informally advised on many occasions by Supervisors and fellow workers that he needed to improve his work. In the ending of employment letter (26th June 2020) the Employer had stated that the worker was being let go as being “unsuitable” in regard to his Probationary clause in the Contract of Employment letter.

Regarding the Dyslexia the Employer had never been made officially aware of this difficulty and it had never been raised by the Worker in any of the meetings regarding his performance.

3:1         The Applicable law – the Industrial Relations Act,1969 and Dismissals during probation.

The case in hand is brought under the Industrial Relations Act, 1969 – Section 13

Rights commissioners.

13

13.—

(2) Subject to the provisions of this section, where a trade dispute (other than a dispute connected with rates of pay of, hours or times of work of, or annual holidays of, a body of workers) exists or is apprehended and involves workers within the meaning of Part VI of the Principal Act, a party to the dispute may refer it to a rights commissioner.

(3) ( a) Subject to the provisions of this section, a rights commissioner shall investigate any trade dispute referred to him under subsection (2) of this section and shall, unless before doing so the dispute is settled—

(i) make a recommendation to the parties to the dispute setting forth his opinion on the merits of the dispute, and

(ii) notify the Court of the recommendation.

In plain English the Adjudication Officer, successor to the Rights Commissioner, is asked to give his opinion on the merits of a dispute and make a Recommendation.

In this case the central issue was the ending of the Worker’s employment at the conclusion of his Probation period. He did not have the requisite 12 months service to bring a claim under the Unfair Dismissals Act,1977.

In his Complaint form and his Representative’s presentation he made significant cause of the allegation that he was denied fair Procedures and that the Employer had been grossly disproportionate. The High Court case of O’Donovan v Cover-C Technology [2021] IECA 37 was raised by the Employer side in their defence. This case was subsequently appealed to the Court of Appeal and the decision announced in [2021] IECA 37.

The key issue was the Rights to Fair Procedures in cases where dismissal took place during or at the end of a Probationary Period.

In Legal reviews the case of Naujoks v National institute of Bioprocessing Research and Training Ltd [2006] IEHC 358 and Maha Lingham v HSE [2005} IESC 89. are often quoted.  (I am indebted to the review on this area by D. Inverarity of A & L Goodbody in a recent Legal Island 2021 publication.)

In the Court of Appeal decision, the Court said that they relied on not following Naujoks but instead on Maha Lingham. In Maha Llingham Mr. Justice Fennelly in the Supreme Court confirmed that where allegations of misconduct ground a dismissal, then fair procedures are warranted and must be applied.In the absence of such allegation of misconduct the need for “Fair Procedures “relating to the ending of employment during or at the end of a Probationary period is not as onerous on an Employer.

In the Appeal Court case [2021] IECA 37 review by D. Inverarity of A& L Goodbody for Legal Island he states

What is clear is that employers will be more comfortable in not affording employees on probation the benefits of fair procedures when dismissing them for any or no reason, provided the reason for the dismissal is not misconduct.

However, all cases rest on their own facts and circumstances and these need to be considered.

3:2         Consideration of the Evidence given.

Both parties gave considerable Oral evidence supported by Written submissions.

Reviewing this evidence, it was clear and not explicitly denied by the Worker that he had not really been at the required grade of Horse Skills required by the Stud position. He had also failed to secure his driving licence, a condition of employment, although this was not made a big issue of by the Employer. In Oral evidence the Stud Farm Administrative Manager, Ms. XA, recalled meetings with the Worker on the 13th March and the 23rd March 2020. The Worker’s probation had been extended for a further Three Months at the later date. The issue was the Worker’s skill set and his performance on a Stud Farm. It was not denied by the Worker that he had moved to basic farm maintenance duties from early 2020.

In his Oral evidence the Worker basically agreed that he had not really reached the required Horse standard. He maintained that the altercation with the fellow employee in late May had been the “real reason” for his dismissal. It was also alleged that the other employee/Farm trainee had accused him of bullying, but no details were provided. However, this incident took place in late May while the Worker was already on an extended Probation. It probably did not help his case, but the key issue was one of his general work performances.

The Worker had on his application form stated that he had three years Stud Farm experience. This did not appear to be the case or certainly was not of the required standard. 

Overall the situation, from the evidence presented, was one of a lack of required performance. Following the High Court and the Court of Appeal, as discussed above, the alleged grounds of unfair procedures, inconsistencies in approach and cherry picking the handbook and the failure to give representation as pointed out by the Worker Representative do not carry the same weight in an ending of Probation context where there were no allegations of misbehaviour. This was not an Unfair Dismissals case for Misconduct under the 1977 Unfair Dismissal Act.

On balance and having heard all the evidence and read the written submissions it was clear that the Worker had not achieved the required standards and the ending of employment at the End of Probation while very disappointing was not improper behaviour by the Employer.

3:3          The Recommendation

The Recommendation is that the ending of employment was justified – the Court of Appeal decision regarding the application/non-application of understood (SI 146 of 2000 -Code of Practice on Grievance and Disciplinary Procedures) Fair Procedures regarding Probationary Performance as opposed to Misconduct is persuasive. The Employment was ended for basic work skill issues not for a misconduct situation.

The Employer Manager stated that she had liked the Worker personally and had given him maintenance duties for as long as possible. However, this had simply run out and as he was not suitable for Horse Work his probation was ended.

On balance from the evidence I Recommend in favour of the Employer.

Dismissal during Probationary Period.