Worker

Employer

Anonymised Parties

A Compliance Officer

A Food Company

Representatives

  Self-Represented

 J. Morrin, Legal Representative and Company Managers.

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00042611-001

19/02/2021

The Worker was employed, on the 27 October 2020, as a Covid 19 Compliance Officer by the Food Company. Her employment ended on the 12th of February 2021. Her Gross Pay was €2,333 per month for a 40-hour week.

The Employment began on the 27th October 2020. All went well until Monday the 14th December 2020 when the Worker’s boyfriend began to have sniffles. He was Covid tested and confirmed positive on the 17th. On the 16th the Worker had informed her Manager of the situation but as she had not seen her boyfriend since the 12th she was not a “close contact”. However, she was due a routine Covid test at work on the 16th and her Manager told her to await the results. On the 17th she informed her Manager of her boyfriend’s positive test. She was sent home to await her test results. On the Friday, the 18th December, she tested positive and began a ten-day isolation period. Unfortunately, this developed into a serious illness and she was certified as unfit until the 18th February 2021. On Friday the 15th January she developed very severe tonsilitis and was unable to speak. Her mother rang her Manager to appraise him of how seriously unwell the Worker was. Her mother was reassured that all was well – “her job was safe”. However, on the 5th February the Worker received a phone call from her Manager and the HR Department to inform her that she would not be coming back to work. It was alleged that the Employer had stated that “She had not handled things well re Covid” and had “failed her probation”. The Worker asked for a written statement of reasons which the Employer provided. It was vague and ambiguous. A meeting was offered but as the Worker was seriously unwell she had to decline. Further meetings should have been arranged when she was fit, and her employment rights protected irrespective of her probationary status.

The Worker is a professional Environmental Health Officer and her professional standing is very important to her. She was treated most unfairly in relation to simply contacting Covid and her failing of her probation period was plainly unjust.

The Employer gave extensive Oral evidence from involved Managers, including the Worker’s immediate Supervisor, Mr. P.  This evidence was open to full Worker cross examination.

Their opening Employer argument was that the Worker was on probation and it was the perfect legal right of the Employer not to continue the employment if they were of the opinion that they did not wish to do so at the end of the probation period. There is considerable legal precedent supporting his position.

Notwithstanding this opening point the Employer is a major and well know Irish food processing Company. Under Covid their reputation as a Covid compliant organisation was absolutely critical to the business and the continued employment of all their staff. The Worker was employed as a Covid Compliance Officer. As such a very high standard of professional and personal Covid compliance was expected of her.

She carried out her role very satisfactorily until the unfortunate chain of incidents beginning on the 12th December 2020.

From investigation it became clear that the domestic Covid situation of the Worker and her boyfriend’s families was a lot more complicated that had been initially informed to the Employer. It was not denied that many close relations, in addition to the boyfriend personally, had tested Positive following the weekend of the 12th. This information was very slow in being passed to the Employer.

There was no doubt that this was a difficult personal situation for the Worker. The Employer felt that the Worker had handled it badly and had not shown the high standards of professionalism required of a Covid Compliance Officer. She had not shown the required “abundance of caution”.

Taking all of the above into consideration the decision not to continue her probationary employment as a Compliance Officer was reasonable.

On a procedural basis the Employer had phoned the Worker on the morning of the 5th February to have a discussion and informed her of her failure to pass probation. This was done by Telephone as the Worker was now clearly in a Covid compromised situation and a personal meeting would not have been possible. This aspect was confirmed in the subsequent correspondence. The failure of probation decision was confirmed by letter of the 5th February 2021.

In a further exchange on the 12th February 2021, Ms. M, of the HR Dept had offered to have further exchanges/contacts with the Worker as soon as their respective schedules and the Worker’s medical situation would allow it.  There did not appear to have been any further contacts.

In final summary the Employer had the legal right to end a probationary employee’s employment and they had exercised this right. In addition, the entire series of events surrounding the weekend of the 12th December had undermined their confidence in the Worker who was in a vital role for the company.

Oral Respondent evidence was given in support of the Employer position, by Mr. P, the Worker’s direct manager. This had been open to full cross examination.

Legal precedent supported the employer’s position.

3:1        Opening Note: Industrial Relations Act, 1969, Recommendation.

This Complaint is for Unfair Dismissal under the Industrial Relations Act, 1969. The Worker does not have the required service to avail of the Unfair Dismissals Act,1977. No case was argued to seek inclusion under that 1977 Act by way of the various time limit exemptions available.

Accordingly, a Recommendation under the IR Act,1969 must be the outcome.

None the less a review of the current Legal position is warranted.

3:2        Probationary Employments and the ending of same / Legal issues.

This area has been the subject of considerable legal controversy. The current situation is best set out in the recent Court of Appeal decision Donal O’Donovan v Over-C Technology Ltd and Over-C Limited [2021] IECA 37.

A commentary is provided by Deirdre Malone of Ronan Daly Jermyn on Legal island of February 2021. The essence of the Court of Appeal decision was that unless the decision was based on an allegation of serious misconduct then an Employer had the right to terminate the probationary employment arrangement. The Appeal Court stated

“During a period of probation, 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 they wish to continue”.

The decision also highlighted the desirability for the Contract of Employment to have a clause that allowed for Termination for no reason. The Contract of Employment in this case stated that

“Termination of this agreement within the probationary period will be at the discretion of the Company”

Taking the reasoning to the case in hand the key question really is whether or not the Worker was dismissed / failed probation on the grounds of Misconduct or for Poor Performance.   Misconduct would imply rights to fair employment procedures as in SI 146 of 2000 – Statutory Code of Practice on Grievance and Disciplinary Procedures.

In almost all employment Contracts /Handbooks Misconduct covers a wide range of issues generally ascending from dipping, for personal gain, into the Office Cash Box to Assault and acting wilfully against the interest of the Employer.

In the evidence presented and particularly the oral evidence from the Employer Managers there was no suggestion that the Worker was guilty of any wrong doing that would constitute Misconduct.

What was at issue was how she had handled, as a Covid Compliance Officer, the fallout from the weekend of the 12th December. The Employer view was that she had not reached the required very high standards – Abundance of Caution - expected of a Covid Compliance Officer in a most sensitive Food Processing environment. A Covid outbreak at the Plant would have been very serious for the business and all employed there.

There was no Employer suggestion of wilful malice or anything of that nature on the Workers side. It was seen as a straight forward poor performance issue. She had handled a serious situation badly. It was appreciated that it was an exceptional time but a major well-known Food Brand, such as the Employer, required an extraordinarily high standard of Covid Compliance.

A lack of confidence in the Worker, in this area, became apparent.

A major complication in the case was the fact that the Worker had fallen seriously ill and ended up under Hospital Consultant care. This obviously prevent her from properly arguing her case with the Employer.

The Employer Managers had let matters rest until February 2021. The Worker had been on Sick Leave since December. It was noted that considerable exchanges had taken place by e-mail / text during January. Nonetheless the ending of employment by means of a phone discussion is far from desirable but has to be seen in the Covid context of limited personal interactions especially where one party is clearly ill or recovering from a serious Covid illness.

3:3          Summary and Conclusions.

In summary and following the reasoning in the Court of Appeal case - Donal O’Donovan v Over-C Technology Ltd and Over-C Limited [2021] IECA 37 the evidence pointed to the following conclusions.

1.       The Contract of Employment, in this case, allows for full Employer discretion on ending Probation.

2.       There was no suggestion of any Misconduct on the Workers part.

3.       There was an issue of serious Employer concerns regarding poor Professional Performance following the incidents of the 12th December 2021.

4.       The confidence of the Employer in the Worker was no longer there.

On balance therefore, the Recommendation has to be that the Employer’s decision is endorsed. The Worker’s case fails.

Probationary Employment, Dismissal during Probation, Covid 19 situation.