Complainant

Employer

Anonymised Parties

A Business Development Director.

A Communications Service Provider

Representatives

  Self

Alison Martin DWF

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00036369-001

27/05/2020

The worker was employed by the employer from 30th of September 2019. His employment was terminated on the 31st of March 2020 by letter dated 26th of March 2020 at the end of his 6-month probationary period.  This was appealed by the worker and an appeal hearing took place on the 28th of April 2020, the outcome of the appeal in which the dismissal was upheld, was notified to him on the 7th of May 2020.   The worker does not have the required 1 years’ service to bring  a claim under the Unfair Dismissals Act and is pursuing his claim of Unfair Dismissal under the Industrial Relations Act.

The worker submits that he was  dismissed by the employer for reasons which he is still  trying to understand.

He submits that he received correspondence from his manager Mr. M on Friday March 27th, two days before the end of his probationary period.

He submits that his manager Mr. M. did call him on March 31st, but states that he was unable to take the call.

He submits that he followed up with an email on April 1st requesting a suitable time but did not receive a reply.

The worker submits that he received another unscheduled call on April 6th but again was unable to take the call.

The worker believes he has been treated very unfairly in this ‘process’.

The worker submits that during the probationary period he was never informed of any unsatisfactory performance, nor was it communicated to him that his employment was at risk if there was no improvement.

He states that he should have been made aware if his performance was unsatisfactory thus giving the opportunity to improve.

The worker submits that he was not aware of targets to be met as none were given to him.

He submits that he has on several occasions requested feedback, but it was typically not forthcoming, with several emails sent but no response received  and so he believed his performance to be satisfactory and  had no reason to believe otherwise.

The worker submits that he was also denied the opportunity of an appeal against the termination decision.

The employer submits that the workers employment was terminated during his probationary period due to performance issues.

The employer submits that the worker did not generate the expected level of sales and was nowhere near what others had generated

The employer submits that the role is a hunting role and that the worker failed to establish connections with clients having held only 7 meetings in a 6-month period even though the focus of the role was on connection with clients.

The employer submits that there were numerous attempts made to address the workers performance issues  and that he was advised that he was not performing to the required standard

The employer submits that a number of meetings were held with the worker where his performance was discussed and issues were raised, the worker even emailed his manager three days after one of these meetings asking for pointers.   

The employer submits that there are emails and responses on record in relation to issues raised and discussed at these meetings. 

The workers manager Mr. M submits that he had suggested two actions which the worker could take to improve, one of which was that he should get connected on LinkedIn to which the worker replied that in his experience this didn’t work

The worker also chose to only come into the office  1 day every two weeks and while the employer does not object to this, it reduced the workers ability to make connections with colleagues and team members in a new job.

The employer also submits that the worker expected to be micromanaged even though he was in a very senior position.

In the 6th of March meeting with his manager the worker was advised that his position would be at risk if he didn’t show an improvement.

His employment was terminated on the 31st of March 2020 by letter dated 26th of March 2020 at the end of his 6-month probationary period.  He was advised that he was unsuccessful and had not passed his probation and even though there is not an appeal process a decision was taken to allow him an appeal when he requested one.    The appeal was unsuccessful.

The employer at the hearing submitted that the workers employment was terminated during the probationary period due to performance issues.   The employer states that the worker was aware of these performance issues and that they had been raised with him a number of times and that meetings were held with his manager in which his performance issues were raised. 

Notwithstanding this, the employer also submits that the termination took place during the probationary period and that , it is thus possible to dismiss for poor performance during probation without a requirement to use fair procedures.

The employer relies on the case of A Salesperson v A Software Company in this submission in particular in relation to the assertion that

“During a probationary period, an employer has a contractual right to terminate the contract, where that assessment is based on performance or fit for the organisation”. This right was also affirmed by the Court of Appeal in O’Donovan v Over-C Technology Limited [2021] IECA 37, as follows:-

The employer also submits  that  it is now well established that the principles of fair procedures do not apply in the case of a termination during probation where that termination is on grounds of performance or “fit for the organisation”.

In any event, and without prejudice to the above, it is submitted that the Worker was fully aware of the performance standards which were expected of him during the course of his employment but, also, that he was made aware at one-to-one and ad hoc meetings with his manager, of the Employer’s concerns in respect of his performance. The Worker’s awareness of those concerns is evidenced in, inter alia, the email which he sent to his manager on 9 March 2019 in which he sought to justify his performance to his manager. The employer submits that the Worker’s contention that he was unaware of the Employer’s concerns in relation to his performance is implausible and lacking in credibility. 

 The employer advised the hearing that the Worker’s inability to secure sales, generate pipeline and secure meaningful engagement with prospective customers of the Employer (each matters which were discussed with him by his manager on numerous occasions) demonstrated, in the Employer’s view, an inability on the part of the Worker to carry out the duties of a Business Development Director. The employer acknowledges that the worker was not provided with actual targets but states that he was made aware of the standards which he was expected to meet. 

The worker has submitted that he received “no formal and structured induction or support”, the employer disputes this and states that the Worker benefited fully from the Employer’s induction and training programme (details of which are set out in the Employer’s submissions). 

The worker states that he was given little or no direction by management however the employer states that it was a fairly senior role but that the worker expected to be micromanaged.   The worker disputes that meetings were held in which his performance was raised as an issue and states that such meetings if held should have been documented and recorded.

The worker contends that he received no feedback from the Employer.   The employer states that  Worker was made well aware of the Employer’s concerns in relation to his performance and it is for precisely this reason that he chose to send an email to his manager on 9 March 2019 in which sought to justify his performance and account for the work done since the commencement of his employment.  

In any event, the employer submits that, the dicta of the Court of Appeal in the O’Donovan judgment  set out in general terms the law as it relates to performance related dismissals during probation periods. The employer states that those principles apply squarely to the Worker’s case.

The employer further submits that the  concept of “fairness” in respect of a dismissal is a statutory one – created with the commencement of the Unfair Dismissals Act 1977, as amended.  It is submitted that the provisions of the Unfair Dismissals Act do not apply in the Worker’s case. Furthermore, it is reiterated that, there is no right to fair procedures in the case of performance-related dismissals during probation.

In support of his case, the Worker made reference to a number of cases. The respondent does not accept that the facts of those cases are similar to the Worker’s claim in circumstances where the Employer has complied fully with its contractual obligations towards the Complainant; where the Worker was repeatedly informed of the concerns expressed in relation to his performance at one to one and ad hoc meetings with his manager.  It is also submitted that the worker was provided with an opportunity to respond to same (email dated 9 March 2019) and the Worker was also afforded the benefit of an appeals process during which each of his concerns were considered and addressed.

In addition, and perhaps most importantly, the employer points out that the cases raised by the worker predate the decision of the Court of Appeal in O’Donovan, in which the Court of Appeal emphatically rejected the contention that an employee being dismissed for underperformance during probation would be entitled to fair procedures. 

The employer also advised the hearing that it was very unusual for a new entrant not to pass their probation and stated that they had considered other options such as extending the workers probation but had decided that it would not have made any substantial difference to the outcome.   

Having considered the evidence adduced by both sides I am satisfied that the the worker was dismissed for performance related reasons during the probationary period and that he was not subjected to an unfair dismissal by his employer.    Accordingly, I do not recommend in favour of the worker.

Having considered the submissions of both parties to this dispute, I do not recommend in favour of the Worker.