Complainant

Respondent

Anonymised Parties

A Shop Assistant

A Shop

Representatives

none 

Paul Mc Glynn HRS 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-00038950-001

29/07/2020

The worker commenced employment with the employer on 17 October 2019. She was employed to work on a specialist food counter.  In January 2020 she was promoted to the position of Team Leader.  The worker was dismissed on 20 July 2020.  She was paid an average hourly rate of €13.50 and worked an average of 35.00 hours per week.  A complaint was received by the WRC from the worker on 29 July 2020. A remote hearing took place on17 February 2021. The worker has not worked since her dismissal.

The worker submits that she was unfairly dismissed by the employer. 

In her complaint the worker submits that over the nine months she was employed no monthly or quarterly probation review meetings were carried out as per the Company Handbook. On 14 July 2020, the worker was invited to a probationary review meeting to take place on 16 July 2020.  In the invite she was informed that she could have a trade union representative attend.  She was also informed that the outcome of the meeting could result in her employment being terminated, her probation being extended or an offer of alternative employment. The invite made allegations of unsatisfactory performance, failure to communicate counter duties and failure to deal appropriately with the staff.

The worker submits that prior to this meeting she had not been given any feedback that she was under-performing in any way. The worker was not happy with the way the meeting was handled in that she felt she was not given an opportunity to respond to the allegations made against her. Shortly after the meeting the worker was informed that her employment was being terminated.  The decision to dismiss as confirmed in a letter to the worker dated 20 July 2020.

The worker appealed her dismissal but was unsuccessful and the dismissal was upheld.

The worker submits that there are several options listed in the company handbook to deal with under-performing staff but that none of these options were discussed in her case.

The worker submits that at no point was it communicated to her either verbally or via email that the new role of Team Leader, which she commenced in January 2020, carried an extension of the probation period. The worker submits that the probation period of seven months commenced on 17 October 2019 and was therefore two months up when she was dismissed in July 2020.

The worker submits that the procedures used in her dismissal were unfair and that she was wrongfully dismissed.

The employer submits that the worker was dismissed fairly, while she was still on probation.

The employer submits that following her commencement management had to meet with the worker to resolve conflicts she had with other members of staff.  Although the worker did not accept any fault in this matter, management believed she deserved a chance and promoted her to the position of Team Lead in January 2020, this was a position the worker had applied for.

Due to Covid-19 restrictions the employer submits that it did not get to carry out as many face-to-face reviews as normal or that they would have liked, however there were regular reviews of how things were going, standards that were required and that assistance was available if required. There were regular calls with the worker in this regard. However, the required standards were not met.  In the employer’s view the worker had failed to work in the correct way with her colleagues and this was having a detrimental impact on the business.

The employer submits that a formal probation review took place on 16 July 2020.  It was not the intention of the employer to terminate the worker’s employment at or after this review, however there were alleged issues that still required improvement.  Such meetings give the worker a chance to reply to concerns and generally a Performance Improvement Plan would be the outcome when required standards are not met.

The employer submits that the worker’s responses to concerns raised by management at the meeting of 16 July 2020 shocked them.  Several areas elicited what management believed to be unsatisfactory answers from the worker.   In particular, the employer was concerned about the worker’s attitude to her colleagues.

Following the review meeting, the management team took time out to consider what they had just seen and heard.  Considering this along with the full circumstances of the employment to date it was decided that it was not possible for the worker to pass her probation.  Consideration was given to an extension but given the fundamental requirements of the business and the concerns of the team it was decided that to keep the worker in employment would be a substantial risk to the business and the decision was made to terminate her employment.

The employer submits that the meeting of 16 July 2020 was a probationary review and not a disciplinary hearing or action and the worker presented nothing that questioned the basis of the probation review decision.

In the circumstances the employer submits that the workers claim must fail.

The Worker in this case did not have the requisite service to be covered by the protections of the Unfair Dismissals Act. The Labour Court has found consistently that employers are required to afford due process to employees before a decision to dismiss is taken, even if the employees concerned are not covered by this legislation.

The worker’s contract of employment stipulates that the worker is subject to a seven-month probationary period which may be extended.  No evidence was provided by the employer to support the contention that the worker’s probationary period had been extended beyond seven months. The worker submits that she was never told her probationary period had been extended. This being the case her probationary period ended seven months after he start date, that is 17 May 2020.

Therefore, when the worker was dismissed in July 2020 because she was passed her probationary period, she was entitled to fair procedures before a decision was made to dismiss her.

The dismissal was devoid of procedures and was fundamentally unfair. 

I recommend the employer pay the worker the sum of €5,670.00 in compensation for this wrongful dismissal.

Probation, performance, procedures