Complainant

Respondent

Anonymised Parties

Employee

Employer

Representatives

Eoin Haverty 

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00043246-001

25/03/2021

The worker commenced her employment with the employer on 25 April 2020.  Her employment ended on 25 January 2021.  The WRC received a complaint of Unfair Dismissal on 25 March 2021.

Several documents were submitted after the hearing.

The worker provided a written submission.

The worker submits that her employment was wrongfully terminated during a meeting on 12 January 2020, with her Team Lead, prior to a scheduled probation review after nine months training. The worker submits that during this meeting with her Team Lead he told her that she was to be let go and that she could either finish at the end of the week or finish on 25 January 2020.

On being informed that her employment was being terminated the worker made arrangements for her departure. However, having contacted HR about her departure the worker submits that she was told by HR that her job was still in place and to wait for a review scheduled for 26 January 2021, which would decide if she would be offered the position, depending on her performance.

The worker submits that the actions of the Team Lead in dismissing her was wrong and against the stated values and procedures of the employer.

In summary, the worker submits that she was not given the training required to improve her performance.  She also submits that she was dismissed unfairly by her Team Lead, with no recourse to due process or natural justice.

The employer provided a written submission.

The employer submits that upon beginning her employment in April 2020, the worker was subject to a six-month probationary period which could be extended by up to five months if required.

On 3 September 2020, the worker’s Team Lead met the worker to discuss her first three months performance which was deemed not to be up to the standard required; this meeting was followed up with an email summarising the meeting. The worker was provided with additional training to help her achieve the required targets.

On 23 October 2020, the worker’s Team Lead told her that her probationary period was being extended by three months due to the ongoing unsatisfactory / inconsistency in her performance.

On 7 January 2020, the Team Lead had a 1:1 meeting with the worker where the worker was informed that she was still not meeting expectations.

On 12 January 2020, the Team Lead had another 1:1 meeting with the worker where he advised her that she was not reaching the agreed targets set at the probationary meeting and that her performance had dropped significantly in certain areas.  The Team Lead told the worker that it would be difficult for her to pass the probation period and in such an event it would be up to the worker as to how she would like to convey this to her colleagues. Following their meeting, the Team Lead organised some more training for the worker.

In direct evidence at the hearing the Team Lead denied he had told the worker at the meeting of 12 January 2020 that her employment was being terminated.  In cross examination the Team Lead stated that he could not recall telling the worker that she could “finish off the week”.

On 13 January 2020, the worker emailed a HR colleague outlining concerns she had regarding the training support she was getting.

On 14 January 2020, two managers met with the worker to discuss matters and clarified for the worker that Team Leads do not make decisions in relation to the termination of an employee’s contract.

On 26 January 2020, a probation review meeting took place (the worker had been told of her right to representation but chose not to bring a representative).  At this meeting the worker was asked if there were any mitigating circumstances which may have affected her reaching her performance metrics, she did not provide nay. The worker was informed at the end of this meeting that her contract would be terminated from that day and that she would receive one week’s salary in lieu, in line with her contract of employment.

A follow-up email was sent to the worker on 26 January 2020, confirming that she would be paid up to and including 2 February 2020.  The worker was also informed of here right to appeal but did not seek an appeal.

The employer refutes the claim of unfair dismissal in its entirety as the worker was terminated from her roe in line with the clause stated in her contract of employment.  The employer submits that it has at all times remained within the realms of fair procedures and has at no point treated the worker unfairly.

The employer submits that it went above the required standard of practice in providing fair procedures throughout the course of the worker’s employment. The employer points out that it expressly states in the worker’s contract of employment that the employer is entitled to terminate employment during the probationary period if the worker’s performance is not up to standard.

This is an unfair dismissal complaint where the worker has less than one year’s service required for a complaint under the Unfair Dismissals Acts, and hence has referred the matter as a dispute to the WRC under Section 13 of the Industrial Relations Act 1969.

A recent decision of the Court of Appeal in the case of O’Donovan v Over-C Technology Limited and Over-C Limited [2001] IECA 37 provides unequivocal clarity in relation to the dismissal of an employee during a period of probation.  Mr Justice Costello noted:

“in my judgement, the trial judge failed to give adequate weight to the fact that the termination occurred during the probationary period.  That is a critical fact of this case.  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.  Neither party can hold the other to the continuation of the employment against the wishes of the other”.

The Court of Appeal did not accept that a right to fair procedures can be implied during a probationary period (for anything other than misconduct) as to do so would negate the whole process of a probationary period.  The Court of Appeal cited the principle endorsed in the Maha Lingham v Health Service Executive [2005] IESC 89, that a dismissal by reason of an allegation of misconduct attracts the right to fair procedures, whereas “a dismissal in the absence of an allegation of improper conduct does not attract such a right”.

The Court of Appeal decision makes it clear that “an employer can terminate for any reason or no reason, provided adequate notice is given. 

In this case the employer clearly outlines that the dismissal occurred entirely because of the worker’s under-performance. The worker was still in her probationary period.

The worker was offered an appeal but chose not to pursue that option.

Notwithstanding the above, the employer in this case did provide fair procedures throughout the worker’s employment.

I cannot concede to the worker’s claim that the way the employer terminated her employment was unfair.  Accordingly, I recommend that the worker should accept the decision of her employer to terminate her employment.

Section 13 of the Industrial Relations Act 1969 – termination of employment with less than one year’s service without stated reason and due process