Complainant

Respondent

Anonymised Parties

A Sales Support Associate

An Outsource Provider

Representatives

Chris MacNaughton Vista Employer Services Limited

The worker has made a claim of unfair dismissal under the Industrial Act as he had less than 12 months service.

The worker started working for the employer on 29 July 2019 as a Sales Support Associate. On 28 April 2020 he received a phone call from the Director Global Sales Delivery and was told he was dismissed with immediate effect. In January 2020 his probation had been extended and he says his performance improved. There was no lead up to his dismissal in February, March or April and thought there were no performance issues. He received 2 weeks paid notice.

He says he was never subject to a disciplinary process or put on an Improvement Action Plan. He says he was not performing that badly to warrant dismissal.

The employer rejects the allegation that the worker was dismissed without any oral or written explanation. The Director Global Sales Delivery (DGSD) says he was closely supported for some time in relation to performance concerns, which he acknowledged.

The worker was part of a team of 10 who worked to productivity levels of 4-5 cases per day. His line manager noted he was scoring poorly with regard to accuracy of information, dealing with the case load and not addressing matters in a timely manner. She wrote to the worker on 24 January 2020 to flag the concerns with his performance and confirm that his probation period was being extended for three months to 28 April 2020, to give him time to try and improve and meet the objectives set.

His performance did not reach the necessary levels. On 20 April 2020 the worker’s line manager sent an email to the DGSD which gave an up-date with regard to ongoing performance issues. The DGSD was aware the worker’s performance standards were causing a considerable and disproportionate burden on his line manager and the wider team. He decided to bring his employment to a close as things had simply not worked out from a performance perspective. He wrote to him accordingly on 24 April 2020. He also spoke to the worker prior to sending the letter to confirm he would be writing to him to tell him he had decided to bring his employment to a close.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

Th worker says he was not aware there were performance issues after his probation was extended at the end of January so his dismissal came as a surprise and he contends it was unfair.

The employer says he would have had weekly one-to-ones with his line manager, ever week up to April 2020. They state he was not performing to the required standards, and he knew that.

The worker had his initial six month probation period extended by a further three months, to 28 April 2020. The employer submitted a number of emails sent to the worker by his line manager about his performance prior to January. The letter from the line manager confirming the extension of probation period makes no reference to the setting of any objectives or how his performance will be measured. Following this there is no record of weekly meetings between the worker and his line manager, nor any other correspondence between them about his performance. 

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).

In the dispute before me I can see no mention in correspondence prior to the dismissal letter of the possible consequences of not reaching performances. Nor of any objectives set to reach those standards. Up to January the line manager followed up weekly meetings with an email record of the meeting on at least three occasions in October and November 2019. There is no such email record after that. The employer contends the worker should have been aware of the possible consequences of under-performance during his probation period from his contract of employment.

The worker should have been aware of the provisions in his contract of employment. But there is still an onus on the employer to make the worker aware of what they see as his shortcomings and the consequences if they were not rectified, in ‘accordance with the guidelines set out in S.I. 146 of 2000. Given the deficiencies of the procedures adopted by the employer I conclude the dismissal was unfair within the confines of the dispute taken under the Industrial Relations Act.

IR Act – unfair dismissal