Complainant

Respondent

Parties

Punam  Chuniyani

CORU

Representatives

 Karen Talbot

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00040769-001

04/11/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00040769-002

04/11/2020

The complainant was on probation which was eventually terminated. However, delay carried the period employment just over twelve months and she complains that she was unfairly dismissed.

The complainant says her employment was unfairly terminated by the respondent, without just and proper procedures, and that she was not afforded rights to representation before the termination or any appeal following it.

The employment ended on June 5th with one week’s notice that would bring her continuous service of employment up to the June 12th, 2020, one day over twelve months of continuous service work.

She should have been able to avail of the Full Disciplinary Procedures.

 The respondent’s Probation Policy states that her eleven-month probation period should not be extended and in the contract, it states she need only complete the period of eleven months to pass her probation. 

It states in the contract that her position is permanent on satisfactory completion of an eleven-month probationary period. There are no stipulations or criteria in her contract that says she must meet these in order to pass her probation other than the fact that she must successfully complete an eleven-month period in CORU.

This is also stated in the probationary review forms

“The probationary period of      months as set out in the employee contract has been satisfactorily completed” Yes/No And again in the CORU Probation Policy as below: “Probation is in effect an extension of the selection process and it must be completed at 3, 6 and 11 months. The probation process should not exceed 11 months in employment.” “Staff must have completed and passed their first eleven months’ probation period”

“Extension of the probation process is not permitted”

She did not agree to any lesser of a period of notice and was not afforded their Probation Policy where it says she can appeal any decision at any stage.

She was denied fair representation by a Trade Union Representative when requested and was told several times that only work colleagues may attend, non-CORU staff are not permitted and only members of staff are allowed to attend the meeting.

This was clearly communicated to her at the meeting of 29th of May when she made her initial request, and this was reiterated to her over several emails again, and again. At no stage was she informed, verbally or in writing, of her right of representation to have a Trade Union Representative accompany her.

Also, before the probation review meeting her Trade Union Representative had sent an email requesting this meeting to be postponed and this request was denied. The Acting HR Manager insisted the meeting to go ahead and mislead her by saying “This is not a disciplinary meeting Punam, it’s only to hear your views on your probation”.

On June 5th she was called and advised her employment was terminated with no appeal.

She believes she was discriminated against and she was not treated the same as other employees working within CORU and she believe that this is partly because of her Indian nationality and being the only NON-EU working in CORU.

She believed that there was some misconception that Irish/EU working rights do not apply to her regarding trade union representation, disciplinary procedures, appeal procedures and that she did not deserve the same Dignity at Work rights.

She was told many times that she had poor English, or her English wasn’t up to a CORU standard and her education was sneered at, when she had to defend another comment at how bad her English was by mentioning that she had completed an MBA.

This was also stated in the 11-month probation form where it said despite her having an MBA, she was not able to do a Clerical Officer job.

She had never come across issues like this in her previous employments regarding this before. While working in CORU HR she was able to look into other employees’ probation forms as part of her role in HR and there was a clear difference in the way hers was being conducted.

CORU is a statutory body with responsibility for the protection of the public by promoting high standards of professional conduct, education, training and competence through statutory registration of health and social care professionals. It is made up of the Health and Social Care Professionals Council and the Registration Boards, one for each profession named in the Act.

CORU is formerly known as the Health and Social Care Professionals Council (HSCPC) and Ms Chuniyani was employed as a Clerical Officer in the HR   Department, commencing on June 12th, 2019. She was on probation for the duration of her employment. Her performance was reviewed periodically, and all reasonable support and training was provided to her. Unfortunately, it failed to reach the required standard and the decision was taken to terminate her employment.

Section 2(1) of the Unfair Dismissals Act provides that the Act shall not apply in relation to “…. (a) an employee … who is dismissed, who, at the date of [her] dismissal, had less than one year’s continuous service with the employer who dismissed [her]”. 

No exemption to this provision applies.

As the date of termination of her contract was June 5th, 2020, she had less than one year’s continuous service. Therefore, there is no jurisdiction to hear the complaint under the Unfair Dismissals Act.

On June 5th, 2020 CORU confirmed the termination of Ms. Chuniyani’s employment, which had been advised to her by phone earlier that dat. She was paid in lieu of notice, without objection, as is provided for in her contract of employment.

Paragraph 5 of the Statement of Terms and Conditions of Employment provides that the contract is “.subject to satisfactory completion of an 11- month probationary period..”. It goes on to state the first 11 months of employment “shall be a probationary period”. Further, it states that

 “[D]uring the probationary period […] performance and suitability for continued employment will be monitored.  The Council may terminate […] employment at any time during or at the end of the probationary period (or any extension thereof by the giving of one week’s notice… or by making a payment in lieu of such notice or part thereof”.

At section 7, the Probation Policy provides that there may be circumstances where the probation process should be extended. Further, it states that the Unfair Dismissals Act does not apply to a dismissal during the probation period once the contract is in writing and the period of probation is specified clearly in the contract. All these provisions were complied with.

Section 3 of the Policy sets out the applicable principles, which include that the “objectives of probation for an employee are that it provides an opportunity to train up on the job and show that they can demonstrate and maintain satisfactory standards of job performance and behaviour” and the “objectives.. for the manager is that it allows monitoring of new employees progress in their role in order to establish employees’ suitability for continued        employment.” [sic]

It further provides that employees must be fully aware on an ongoing basis of the standards and performance against which they will be measured and that they are given the necessary support to enable them to meet the required standards, with any areas for improvement highlighted as early as possible. The respondent fully adhered to the terms of the policy.

The Stages of the Probation Process include ongoing feedback plus three formal performance review meetings during the probationary period, the first after 3 months, the second before 6 months and the third at 11months.

It requires that probation reports are completed, assessing overall performance, identifying any areas for improvement and signed and agreed by both manager and employee. Not only were these stages completed in full, there was also extensive further engagement after the three- and six-month review meetings, where full consideration was given to Ms Chuniyani’s inputs.

Section 8 of the Probation Policy details the steps relevant to circumstances where a new employee is not satisfactory. These include adequate discussion and recording of the areas of unsatisfactory performance; the availability of training; where issues with performance are raised and performance has not improved, meetings between formal probation reviews can take place; provision of supports and training which enables the employee to perform to a satisfactory level; that the employee be informed in writing where there is continued poor performance; that the employee is made aware of the specific issue each time and its potential impact on their probation; meetings to be documented.

In line with the policy three formal probation meetings were held. The three month review took place on September 23rd, 2019.         Extensive engagement followed. A number of areas were identified for  improvement, supports and training were identified and the Report was signed by Ms Chuniyani on December 10th, 2019.

The six-month meeting took place on February 3rd, 2020 with the same follow up as above and she was notified that  improvement in performance was expected by the eleven-month review.

The final review took place on June 3rd, 2020. On April 7th, 2020, Ms Chuniyani was advised that her probation was being extended by one month as a result of the emergency pandemic.

In line with the process that applies to all employees, she was afforded full opportunity to contribute towards her assessments. Throughout the process, including between the formal reviews, there was clear communication on the areas where she did not meet the required standard and she was afforded every reasonable opportunity to improve. The letter and the revised report highlight a number of areas for improvement and clarified that areas identified for improvement or satisfactory performance is not a criticism but so that she was fully aware of the areas that needed improvement before the six-month review, onDecember 12th, 2019.

Ms Chuniyani did not accept constructive criticism on her performance or the revised report which took into consideration her comments.  The Assessment Report was finally completed and signed by Ms Chuniyani on 12 December 2019.

The three-month Assessment Report identified a number of areas requiring improvement including: quality of work, ability to learn and apply skills on the job, knowledge of the job and initiative, (detail submitted)

At the meeting February 3rd, 2020, Ms Chuniyani, who was accompanied by a colleague of her choice, was advised that there was a risk of the probationary period not being successful as improvements were needed. (Detail was provided of the extensive engagement with the complainant).

On March 13th, 2020, HR responded in detail to several points raised in Ms Chuniyani’s email and noted that Ms Chuniyani’s probation was at risk of not being successfully completed and asked that she sign the revised probation document and that they could continue with the process.

It was noted as having been discussed with Ms Chuniyani that she was to be present as required during working hours. This was because there had been times that she had not been at her desk for long periods without agreed tasks. Ms Chuniyani’s overall performance was assessed as needing improvement, noting that there was still a ‘significant learning curve for her to meet the requirements of this role’.

The Recommendation at the end of the six-month assessment was that the probationary period to date had not been satisfactorily completed. It noted that the gap between understanding of the requirements of the role and delivery of requirements within the role had not progressed to a satisfactory standard. This was despite comprehensive training and support being provided.

The Recommendation went on to state that Ms Chuniyani was unwilling to take ownership in any aspect of learning within the role.  It included reference to her not having reflected on her own performance, that she did not understand she had a job description for the role however She had access to all CORU policies and procedures as well as job descriptions in the context of her role in HR.

As noted above, Ms Chuniyani’s probation was extended to June    11th. On May 29th, 2020, Ms Chuniyani was invited to the final Probation   Meeting on June 2nd. At her request that meeting was postponed to the following day.

The invitation to the meeting was accompanied by the Probation Review form.     Ms Chuniyani was invited to review all previous documentation and to bring with her any information that she thinks might be useful.The three- and six-month assessments were attached.

The purpose of the meeting was explained, i.e. to discuss her performance and that following the meeting, having considered all matters, the HR Manager would be deciding whether her probation had been successfully confirmed or if it was unsuccessful.

At that meeting, Ms Chuniyani spoke at length on extraneous matters, but did not provide coherent examples to support her perceived performance to date. She also spoke at length about the initial period within the organisation including the three month and six-month reviews, and what she believed to be a lack of training provided and not being told about certain tasks.

Following that meeting, having considered the entirety of Ms Chuniyani’s performance, the HR Manager reached the decision that she had not met the requirements of the role. His decision, with reasons was notified to Ms Chuniyani on June 5th, 2020.

The areas in which Ms Chuniyani failed to meet the required standard are consistent with areas highlighted to her throughout her probation. Her knowledge of the role had not improved  despite extensive training and the creation of a bespoke guide for her.  She has had to be guided frequently, and the cross checking/ reviewing work had not decreased.

Ms Chuniyani was provided with a high level of training and support throughout the probationary period. 

Ms Chuniyani claims that she was denied the right to be represented at the final Probation Review meeting. The Probation Policy does not provide for representation at probation review meetings.

It is not normal practice for employees to be represented in what is a performance review process. Notwithstanding this, she was afforded the opportunity to be accompanied in all meetings and she availed of this opportunity and the staff member who attended with Ms Chuniyani was the Forsa local contact person.

CORU would have permitted a union representative to attend if that request had been made. What was not possible was the delay sought by Forsa. In due course, when contact was received directly from Forsa, eleven minutes prior to the scheduled meeting, time constraints did not permit any further delay in proceeding with the review. The request from Forsa referred to the.  pandemic, implying that the probation review be postponed until after the pandemic. This was clearly unreasonable and could not be accommodated.

In addition, Ms Chuniyani was invited to submit any written records after the meeting to highlight any items that she did not raise at the meeting that she wished to have taken into consideration.

While there is no mechanism of appeal provided for in the Probationary Policy, CORU provided the opportunity to the complainant to have the assessment and outcome reviewed by the CEO.

The outcome of the review was communicated to her by way on June 16th, 2020. She did not meet the required standard of performance for the Clerical Officer role in HR in CORU. The requirements were clearly set out for her, and she was provided with guidance, support, and training. Despite these conditions, Ms Chuniyani was deemed not suitable, and her employment was terminated in line with the provisions of her contract and CORU’s policies.

Throughout the 11-month process regardless of changes in personnel, the complainant has been afforded a fair and transparent process. One example of this is when the initial 6-month review was held, the complainant’s contribution was taken into account and a revised 6-month assessment was made. Likewise, in the final assessment anything the complainant wanted to be considered could be and was submitted in writing after the meeting.

The complainant at all times was directed to the probation policy prior to meetings so that she had a full understanding of the process (Documents B1 and B3).The 6 month review was clearly articulated to the Complainant and that an improvement in performance was required, it was also further stated in  an email from the Head of Corporate Services on 13th March 2020 that “It is appropriate now that she inform you that currently your probation is at risk of not being successfully completed.”

Ms Chuniyani was deemed unsatisfactory for the role and her probation was not successfully completed.

The first issue to be determined is whether the complaint is within the jurisdiction of the Unfair Dismissals Act, 1977. To be so, a complainant (in general, subject to important exceptions that do not apply here) must have a year’s service.

The facts are that the complainant commenced her employment with the respondent on June 12th, 2019. Looking first at how the Act defines the date of dismissal, it is as follows.

Section 1 of the Unfair Dismissals Act defines ‘date of dismissal’ as:

“(a) where prior notice of the termination of the contract of employment is given and it complies with the provisions of that contract and of the Minimum Notice and terms of Employment Act 1973, the date on which that notice expires.

(b) where either prior notice of such termination is not given or the notice given does not comply with the provisions of the contract of employment or Minimum Notice and terms of Employment Act 1973, the date on which such a notice would have expired, if it had been given on the date of such termination and had been expressed to expire on the later of the following dates-

(i) the earliest date that would be in compliance with the provisions of the contract of employment,

(ii) the earliest date that would be in compliance with the provisions of the Minimum Notice and terms of Employment Act 1973

The definitions of the applicable notice/time periods are set out in the Minimum Notice and Terms of Employment Act 1973. Section 1 defines a ‘week’ as “any period of seven consecutive days” and a ‘year’ as “any period of fifty-two weeks”.

While the respondent, in seeking to deny jurisdiction says that the complainant was dismissed on June 5th, 2020, this in fact was the date on which she was given notice of the termination of her contract, and payment of one week in lieu of notice.

However, while that payment may have meant that the complainant was not required to work that final week the notice expired one-week later June 12th, which is when the contract came to an end and edged it just over the jurisdictional line.

The relevant part of Section 3 of the Act refers to probation as follows.

3) (1) This Act shall not apply in relation to the dismissal of an employee during a period starting with the commencement of the employment when he is on probation or undergoing training

(a)     If his contract of employment is in writing, the duration of the probation or training is 1 year or less and is specified in the contract.

In this case, the probation period was one year or less although the respondent failed to bring it to a conclusion within that period. This therefore must mean that the probationary employment extended beyond one year.

An overrun beyond the date on which the probation is described as ending would be normal, and unavoidable in general for practical reasons.

To explain and taking the situation of a probation where rights under the Unfair Dismissals act are not at issue, as an example, it would be somewhat unlikely, if not impossible that a six-month review would be carried out, assessed, feedback given, and conclusions reached on the final day of the sixth month.

The suggestion that somehow failure to do so creates a default position that a person working their way through the seventh or a later month has somehow automatically navigated the probationary period successfully would be somewhat ridiculous. It is reasonable to expect that there will always be a delay in concluding the outcome.

The facts of this case well illustrate how absolute deadlines are nearly impossible to achieve even when the probationary review is conducted in a timely and reasonably efficient way.

The first review was due on October 1st, 2019 and was commenced in time but and was not concluded until December 10th.

The second was due on December 12th, did not take place until February 3rd and not concluded until April 3rd, at which point the complainant’s probation was extended to June 11th, hazardously close to the one-year deadline.

The complainant contributed to these delays and, in principle I find no fault with that. It is meant to be a process of consultation and dialogue about performance improvement where that has been identified as an outcome for review.

The question that arises from Section 3 of the Act referred to above is what happens when the contracted probationary period is as defined there, i.e., in the contract and less than a year, but in fact the employment extends beyond that, in this case by a day.

It might be argued that the probation itself concluded with the probationary meeting on June 3rd, even if the employment was not brought to a conclusion within the twelve-month period.

But that would create an odd hybrid position between the conclusion of the probationary review and its termination and would not make any sense. Therefore, there is no sensible basis for distinguishing between the period when the person was under active probationary monitoring, and the period beyond this when she remained in employment, even though her review had not been concluded, as happened in this case.

Therefore, to answer the preliminary question as to whether the complaint falls to be dealt with under the Unfair Dismissals Act, 1977 I find that it does. 

Whether this makes a material difference to how consideration of the merits of the complaint is to be approached is discussed below (although it obviously does to the issue of jurisdiction and remedy, which are provided for in the statute).

The complainant appeared to argue that, in the event of the failure to conclude her probation within twelve-month period that not only did this bring her within the jurisdiction of the Unfair Dismissals Act but that it also, by default, converted her contract to a contract of indefinite duration, which could then only be terminated by some fresh disciplinary or performance review process.

However, these are quite separate issues. The answer is yes to the former but for the reasons set out below, no to the latter.

The position of the complainant is clear from the accounts set out above. She was on probation, and while the respondent’s policy states that probation cannot last more than eleven months, this will not confer a right to a contract of indefinite duration simply on the basis that the administrative conclusion to the probation review extended beyond eleven months.

The law is clear on the fact that the termination will fall to be considered under the Unfair Dismissals Act once it extends beyond twelve months but that is a different matter.

Section 6 of the Unfair Dismissals Act is as follows

6.—(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal

Subsection (4) continues

(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

There is no right of arbitrary termination at any time.

General principles of fairness apply to the review and termination of a probation even within the twelve-month period, probably even extending to a requirement that there be, if not ‘substantial grounds’, then something comparable to bring the employment to an end.

However, in a case such as this the first difference is that the burden of proof passes to the respondent to justify the termination, and, secondly in the event of an adverse finding against them that finding is legally enforceable. Findings under the Industrial Relations Act, for example are recommendations and not legally enforceable decisions.

From an Adjudicator’s point of view, an assessment of the merits of the complaint involves essentially the same approach and application of the same general criteria. viz were there substantial grounds justifying the termination and did it fall within the requirements of subsection 4, specifically 4(c) relating to the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do.

The respondent set out in very considerable detail its management of the probationary process. I find that in general it conducted that process to a high level of compliance with the requirements of a fair process, in every way, often engaging with the complainant at length following the reviews.

Nothing turns on the claim that she was denied trade union representation. While it may be helpful in some circumstances there is no right of trade union representation during the interim stages of probation review. In any event the respondent agreed to it, but the union could not attend and suggested it would have to await the conclusion of the pandemic.

The submissions show consistent failures on the part of the complainant to achieve clearly defined objectives, despite the respondent’s best efforts to do so.

The complainant suggested that once eleven months had passed then she had automatic entitlement to be appointed, but as she acknowledged in her own submission this was subject to successfully completing the probation.

She says in her submission,

It states in the contract that her position is permanent on satisfactory completion of an eleven-month probationary period. There are no stipulations or criteria in her contract that says she must meet these in order to pass her probation other than the fact that she must successfully complete an eleven-month period in CORU.

Bear in mind that the complainant worked in the HR department and here she appears to believe, in contradiction of everything that happened to her at the earlier stages of the probation, that one simply had to remain in the employment and not navigate the well-established requirements of a successful probation.

And as noted above, in the real world of the workplace some latitude must be given to employers within reason to determine probationary review outcomes a matter of some weeks after the date and the time period to which they refer; it would be administratively impossible not to have such latitude or to expect the six-month probation review to be concluded on the last day of that period.

Alternatively, she submits that there should have been a formal disciplinary process, again presuming on her alleged acquired contractual status. I reject this.

The obligation falling on the respondent in this case was to demonstrate substantial grounds for the termination and to comply with fair procedure requirements. There is no one model for doing so, provided the fair procedure principles are applied.

The fact that the process straddled the twelve-month barrier, but also straddled the probationary period and the jurisdiction of the Unfair Dismissals Act is a complicating factor.

But the central question is whether there has been any failure to comply with the essential principles set out in the Act and the jurisprudence required to bring an employee’s employment to an end and to do so in a fair way, looking at the totality of the situation.

In my opinion, it would be perverse to set aside the actual process giving rise to the termination, its purpose and its outcome simply because the termination falls to be dealt with under the Unfair Dismissals Act. It was conducted, as remarked already with good attention to fairness and the suggestion that it required some new process after the eleventh month had passed flies in the face of common sense.

I find therefore that the complaint falls to be dealt with under the Unfair Dismissals Act and having considered the submissions of both parties and the general legal principles that apply the respondent has met the test of demonstrating that there were substantial grounds justifying the termination related to the complainant’s competence, and that the process in reaching the conclusion was fair.

The dismissal was fair.

For the reasons set out above I do not uphold complaint CA-00040769-001 and find that the dismissal was fair.

Complaint CA-00040769-002 was withdrawn at the hearing.

Unfair dismissal, probation.