ADJUDICATION OFFICER RECOMMENDATION

Adjudication Reference: ADJ00037023

Parties:

	Complainant	Respondent
Anonymised Parties	A Worker	A Health Provider

Representatives

Karen Clarke, Irish Nurses, and Midwives Organisation

Andrea Montanelli, Peninsula Services Ireland

Dispute:

Act	Dispute Reference No.	Date of Receipt
Dispute seeking adjudication pursuant to section 13 of Industrial Relations Acts 1969		27/01/2022

Date of Adjudication Hearing: 20/10/2022

Workplace Relations Commission Adjudication Officer: Seamus Clinton

Procedure:

In accordance with Section 13 of the Industrial Relations Acts 1969following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard and to present any submissions relevant to the dispute. Both parties made detailed submissions in advance and at the hearing which was held on-line.

Background:

The worker commenced employment with the employer as a Practice Nurse on 4th May 2021 working 25.5 hrs per week. On 10th September 2021, the worker, at the request of management, attended a meeting to discuss her performance. The employer terminated her employment at this meeting and confirmed the decision by letter the same day. An appeal hearing took place on 9th November 2021 and the employer affirmed the decision to terminate the employment.

Summary of Worker’s Case:

The worker’s representative gave evidence that the process prior to termination was flawed. Although the termination occurred during the probationary period, the worker’s representative outlined that she only got two days’ notice of the meeting with no prior notice that her employment was in jeopardy. Management informed the worker at the meeting on 10th September 2021 that her employment was to be terminated, and she received a notice to this effect later that day. At the appeal hearing on 9th November 2021, her representative outlined the lack of advance communications and due process afforded to her.

Summary of Employer’s Case:

The employer’s representative outlined in their submission the concerns with the worker’s performance. The employer understood from the interview process that the worker had most of the relevant competencies. Subsequently, they became aware that this was not the case. They requested the worker to undertake a series of online training courses. The employer asserted that the worker was tardy in completing these courses. They also outlined other specific concerns with the worker’s performance. These concerns led to the decision to terminate the employment during the probationary period.

Findings and Conclusions:

At the hearing, the employer’s representative outlined the concerns with the worker’s performance. There was no evidence of management formally documenting these issues to the worker prior to the decision to terminate the contract on 10th September 2021. There was no formal policy within the company on performance reviews during the probationary period. The employer outlined that the management team discussed the performance concerns over a prolonged period. Despite these concerns, there was no formal notice directly to the worker. The lack of advance formal notification was a deficit in the process and left the worker unclear of the seriousness of the situation.

Although an employer has the prerogative to assess performance during the probationary period, it should always be a two-way process with ongoing formal communications to ensure the employee knows where they stand.

The employer representative cited O’Donovan v Over C Technology [2021] IECA 37 as authority that fair procedures did not apply during probation when performance is at issue. I have considered this judgment which relates to wrongful dismissal at common law.

The deficit for the employer in this case though, is the lack of any paperwork which flags the performance issues in advance. This can lead to confusion and can unnecessarily raise suspicions on the real motive if an employment is terminated.

The employer documented concerns at paragraphs 23, 43 & 47 of their submission. I do not wish to get into whether there is any basis to these particularly when the worker’s representative alleges that they were not on notice of same. The lack of direct correspondence with the worker do highlight the communication flaws during the probationary period. The overall duty is for parties to act fairly and in this case, it was unfair not to put the worker on notice of the employer’s performance concerns.

At the hearing, the employer accepted the steps required if a similar issue were to arise in the future. I therefore do not need to make a recommendation in relation to procedures.

On the merits of the dispute, I recommend that the employer should pay the worker €1,000 compensation.

Recommendation:

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

I recommend that the employer pays €1,000 compensation to the worker arising from the unfairness of her dismissal.

Dated: 16/11/2022