Worker

Employer

Anonymised Parties

Customs Clearance Officer

A Retail Company

Representatives

  Appeared In Person

James Cleary , IBEC Executive

Act

Dispute Reference No.

Date of Receipt

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

12/05/2021

This matter was heard by way of Remote Private Hearing pursuant to Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and SI 359/2020, which designates the WRC as a body empowered to hold remote hearings.

The parties meet in this case under a claim for unfair dismissal with less than 12 months service. The claim is heard under the Industrial Relations Act, 1969.

The claim was submitted by the Complainant, a Lay Litigant, on 12 May 2021, one day in the aftermath of his unanticipated dismissal. The Employer has disputed the claim and has reasoned that the dismissal was a culmination of an unsuccessful probation period and was justified through performance concerns.

Both parties submitted extensive written and oral submissions and I have listened very carefully and have carefully considered these submissions.

It is important for me to state at the outset that this case is being heard as an Industrial Relations Dispute where the height of my powers reflect an opportunity to make a recommendation to the parties which they may then consider as way forward in the case.

This is a case where I have relied on the guiding principles of what is fair and reasonable in an employment setting. I have explained this to the parties at hearing.

The Worker commenced work as a Customs Agent on 12 April 2021 until his dismissal on 11 May 2021. He confirmed that he had been trained in Logistics and exhibited a vast array of qualifications / competences in the area he worked in and expressed a defined interest in the job.

He told the hearing that he got on well in the job and connected well with his Line Manager and senior colleagues. Informal feedback had been positive, and he was preparing for his first probation review on 12 May 2021.He said that he was looking forward to a positive future at the company.

The worker was informed that his finish time was to be extended to 4.30 pm instead of 4pm during the 3rd week of his employment. He complied with this change.

The Business faced challenges from a large supplier and an issue arose about the reliance on data which had been scrambled. The Worker was instructed to use a Pivot table to summarise the information for custom entry. This had the desired effect of efficiencies in time scale.

 There was an unexpected delay in receiving the goods and the employer communicated their dissatisfaction with the heralded due date, but the matter was directly addressed by the worker. There had been an issue of calculation of tax in the country of origin. The Worker understood that the matter had been resolved as he wasn’t told otherwise.

On May 11, the Worker attended work as normal until around 2.15pm, when the Human Resource Manager entered the door of his work area, holding a piece of paper. The Worker was informed that his employment was to be terminated with immediate effect. He said he was shocked and confused as his performance review was scheduled for the following day.

The Human Resource Manager listed 5 areas of concern

1 calling the line manager on a Friday

2 lacks adherence to 9 to 5 pm hours

3 Non use of the pivot table

4 over familiar emoji sent to Managing Director

5 Poor attitude

The Worker tried to clarify matters and put a correct context and background to his side of the story, but he was informed this was futile as the decision to dismiss had issued from a higher authority.  He said he pleaded to be heard. He was told to surrender his keys and leave the building.

The Worker tried to offer to demonstrate the pivot table and expand on the emoji incident, but this was not welcomed. He described being devastated and recalled that he broke down as a result.  

He disputed the veracity of each of the allegations placed on the piece of paper and remained dissatisfied that he had been denied a forum to clear his name.

 He confirmed that he had been completely traumatised by his experience at the business. He remained confused that his performance had been commended up until the afternoon of 11 May 2021. He said he had been in receipt of the performance management templates and instructed to prepare by his Line Manager.

The Worker confirmed that his company passwords had been simultaneously closed to him.

He managed to relaunch successfully in August 2021, in new work that he enjoyed.

He sought closure for the trauma and distress his unanticipated dismissal had caused him. He sought 3.5 months’ pay in compensation as the bridging time in the two positions.

The Worker was requested to address the Employer submission and he disputed the statement attributed to his line Manager. He submitted that the same line Manager had commended his performance in days prior to his dismissal.

He contended that he had been denied fair procedures and a chance tro participate in the Probation Policy that he had signed up to on commencement of employment.

The Worker said he had been unfairly dismissed.

The Employer operates a large, long standing   Family Run Retail Business. The Employer disputed the claim of unfair dismissal and advanced the position that the Worker had oversold himself in advance of securing the job of Customs Agent, which centred on a fast-paced area of business with high levels of performance required. The Worker had placed the business in a potential harm zone which may have had a loss-making eventuality.

The Worker was dismissed as a result of poor performance on 11 May 2021.

The Employer detailed the workers recruitment process, where he was interviewed by the Human Resource Manager. The worker confirmed that he was skilled in all aspects of the role of Customs Agent.

The Company had some reservations during the second-round phone interview that the workers experience was more centred on exports rather than imports but was reassured by the complainant that he was dual skilled.

The core aspect of the role centred on the correct customs duty being paid on goods to ensure multi store distribution.

Following his start date of 12 April 2021, the worker was inducted, trained and supported in the role.

The Employer relied on a statement within their submission attributed to the Line Manager, Mr A who did not attend the hearing.

He pointed to deficits in the workers problem solving skills which was accompanied by a tendency to want to move on and use it as a reason for not completing the task

The Employer experienced a difficulty with the workers take on the correct duty to be applied to imported goods. The Worker eventually accepted the company direction and applied the correct rate. The Employer argued that the complainant had a negative effect on shipping orders and had sought additional staff.

The Employer was dissatisfied that the worker engaged in a post termination jibe against the human resource manager and inferred that this went to his lack of accountability for his actions.

The Employer relied on recent case law in O’Donovan v Over C Technology, Court of Appeal as a framework for terminating the workers employment, while on probation. They accepted that the worker was not subject to any investigation for any issue of gross misconduct at the time of his dismissal.

The Employer expressed a very firm viewpoint that the action of dismissal during probation was permitted, and this is what happened in this case. As the worker was not the topic of an inquiry of gross misconduct, they contended that the employment relationship had not worked out and it should end. The Worker had not appealed his dismissal.

The Employer had since replaced the worker and the new worker had been a better fit for the position.

The Employer submitted that the worker should not be compensated for a failed probation. The Employer had trained him and assessed him in the role and that assessment had yielded an unsatisfactory verdict for the fast-paced company.

The Worker’s behaviour was one of someone under constant pressure and while he was under pressure, the worker showed scant regard for his behaviour and etiquette in a professional workplace.

The Employer had a genuine fear that the company was at risk of losing a supplier as a result of the workers actions.

The Employer exhibited a file note from the workers line Manager dated September 3, 2021, the author of which did not attend the hearing.

The Employer determined that the company had endeavoured to coach and mentor the worker into his role, and while they accepted that the dismissal occurred on the eve of his probation review meeting, continuance with the   workers employment was futile and he was dismissed.

I have been requested to make a decision in this claim for unfair dismissal in the case where the worker does not have 12 months   service necessary to pursue an action under the Unfair Dismissals Act, 1977. Instead, he has submitted a dispute under the Industrial Relations Act, 1969, the parameters of which, I have addressed with both parties at hearing.

I am satisfied that I have now investigated this Dispute and will shortly make recommendations for the parties to consider as a means of resolving this dispute.

I will just take a moment to outline the different climates that prevail in cases taken under IR and those through the Courts.

This case was heard in private and is aimed at identifying a resolution that both parties can explore and if necessary, apply as an antidote or “balm “for an Industrial Dispute. I think of it as an enabling ladder from a troubled spot within a workforce to permit the parties go forward in compromise and hopefully dignity within the workplace.

The entire process is enabled greatly by the WRC Code of Practice of SI 146/2000 on Best Practice handling of grievance and disciplinary procedures.

A claim for statutory unfair dismissal travels a different path, through a public process where only one party can claim victory at first instance Adjudication, the Labour Court on appeal, or to the High Court on a point of Law.

It is important to remember the context of O’Donovan was an application for an employment injunction to save employment. In this case, the employment had ended and neither party wished for it to be re-constituted. Both parties have moved on in their work.

I have considered both parties presentations at length. I will state at the outset that I cannot give weight to the statement issued by the Line Manager. He was not available to the hearing and the synopsis was not framed on the company documentation for 1, 3, 6-month appraisal form. It read as an aide memoire yet was dated almost 3 months after employment had ended.

I listened carefully to both parties in this case and I am satisfied that the Probation was unsuccessful.

However, I found the management of the communication of this message to be significantly short of best practice. It seems that it was known by the company that the worker was already sensitive in this case. I have found that they did not honour the 6-month Probation Policy when they moved to summary dismissal just 4 weeks in.

I am at a loss to understand just how an employer would deviate so acutely from their own published policies on Probation.

Should the employee’s performance not be up to standard, you will be notified during the course of your regular probationary review meetings and given a specified time to make improvements. If we ascertain that you are not suitable for employment at the company, your employment will be terminated with one weeks’ notice. 

Both parties in this case accept that the first probation meeting was to occur with 24 hrs of the dismissal. There was time for both parties to build a productive working relationship or failing that to terminate probation in a procedurally correct manner.

It would have been fairer and more reasonable to have conducted the difficult decision on termination within a procedural framework such as outlined in the Probation Policy.

Instead, I found that the employer presented a “done deal “on the afternoon of May 11 which caused severe trauma and upset to the worker. It is important for me to remind the employer of their duty of care to an employee to provide a safe workplace. I found that these parameters were severely strained on that afternoon.

The Employer ought to have set out reasons for their decision to dismiss and have offered an option of appeal.

 I appreciate that the employer was unhappy with the workers work, but they erred procedurally in not allowing the worker to be heard. instead, he was excited from a building and left to reflect on that ejection from a distance.

I found that the worker carried a high level of residual anger against his former employer. I can understand some of this. However, I would suggest that he reflect on the opportunities open to him to appeal the decision within the company handbook that were not utilised. I have found that in submitting his complaint to WRC within 24 hrs, he missed the final link open to him to appeal the decision locally.

The Labour Court has been consistently insistent that parties exhaust local procedures prior to bringing a case to the WRC.

As the employment has ended here, I am not empowered to send the parties back to talk this out at this late stage. The employment relationship is not redeemable.

I have found merit in this dispute and find that the manner in which the workers exit from the business was managed was totally unacceptable and not a standard that should ever be repeated in the 21st century.

In addition, I find that the Employer forsook their own well crafted Probation Policy when they didn’t facilitate the 6-month period or 9 months on extension to give the worker space to make   his mark at the business. they had issued the templates to accompany probation, but they remained unpopulated at the end.

I find that the Worker was treated unfairly and unreasonably when he was dismissed on May 11, 2021.

I find the Dispute has merit.

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.

I recommend that the Employer immediately review the Probation Policy to ensure that the probation template is conjointly populated by worker and employer during Probation.

I award the worker €2,500 in compensation for the distress and upset caused .

Dismissal under 12 months service