Worker

Employer

Anonymised Parties

Human Resources Rep

Social Media Company

Representatives

  self

Hayley Maher DLA Piper/Kevin Bell BL

Act

Dispute Reference No.

Date of Receipt

Section 13 of the Industrial Relations Act 1969

28th of October 2021

The worker commenced her employment as a Human Resources Officer on or about the 15th of January 2021. Arising from a failure to take on board constructive feedback from her line manager on or about the 28th of May 2021 the worker’s contract was terminated.

The worker while accepting that she was on a probationary period believes that the decision to terminate her employment was unreasonable and shocking. She stated that at the time she was traumatised by the decision and continues to experience post traumatic stress and anxiety arising from how the process was conducted. The process does not allow for an appeal. The Company accepts that there was no fundamental problem in her work performance. The worker stated that she is a highly skilled HR professional. She had left a permanent and secure role to join the Company. The employer stated that it decided to terminate her employment arising from the failure of the employee to take constructive feedback. The matters raised by the line manager did not warrant termination of the contract during the probationary period.

It is accepted by the worker that the mid-term probationary review is comprehensive and covers several different dimensions including KPIs, behaviours and values as measured against the expectations of the Company.

The mid term review commenced in early May and raising the grievance about aspects of the review, the worker contends in turn gave rise to her dismissal. The worker alleges that to punish her in the severest way possible for raising a grievance when the company espoused an open culture is unconscionable and has caused profound upset, hurt and trauma. This is especially so as the Company provides no right of appeal during the probationary period.

The Company did complete a very comprehensive and detailed mid-probationary review. There were areas that were identified that required improvement. The crucial issues that emerged over several weeks once the initial review had occurred was the resistance and denial that any area of improvement existed at all. That is not a basis to conduct a credible review. The Company diligently followed up on the request for more detail and to explain why certain areas required improvement and in turn gave detailed examples for the avoidance of any doubt and to create certainty for the employee. However, this in turn only led to further upset and a denial that any improvement was required.

The worker’s performance was satisfactory; however, the mid term review and over reaction to genuine feedback gave rise to the decision to terminate the contract as the failure to take constructive feedback was a real concern for the company.

The Company exercised its right to end the contract during the probationary period and relies upon the recent court of appeal decision of O’Donovan v. Over-C Technology [2021] E.L.R. 191 where the court of appeal upheld the right of an employer to terminate during probationary period.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

The Respondent employer opened Donal O’Donovan v Over-C-Technology Limited and Over-C Limited [2021`] IECA 37as authority for the right to dismiss during the probationary period. At paragraph 69 the judgement states:

In my view, Orr and Carroll remain good law. The principle established was specifically endorsed in Maha Lingham were Fennelly J. confirmed that a dismissal by reason of an allegation of improper conduct attracts the right of fair procedures, whereas a dismissal in the absence of an allegation of improper conduct does not attract such a right.

As in O’Donovan, in this dispute there was no question of raising an issue of improper conduct. This decision was simply a matter of exercising the right to terminate the contract during probation, as the employer assessed that the Complainant’s fit would be problematic if she refused to take constructive feedback.

The Labour Court has affirmed the statutory code SI 146/2000 should apply to a performance assessment.In Beechside Company Limited t/a Park Hotel Kenmare v A Worker, LCR21798, the court stated:

 “Where an employee is considered unsuitable for permanent employment, the Court accepts that an employer has the right, during a probationary period, to decide not to retain that employee in employment. However, the Court takes the view that this can only be carried out where the employer adheres strictly to fair procedures”.

The code of practice SI 146/2000 at section 6 states:

6.     The procedures for dealing with such issues reflecting the varying circumstances of enterprises/organisations, must comply with the general principles of natural justice and fair procedures which include:

•    That employee grievances are fairly examined and processed.

•    That details of any allegations or complaints are put to the employee concerned.

•    That the employee concerned is given the opportunity to respond fully to any such allegations or complaints;

•   That the employee concerned is given the opportunity to avail of the right to be represented during the procedure;

•   That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors or circumstances.

And under General Principles the Code clearly states:

4. GENERAL PRINCIPLES

1.     The essential elements of any procedure for dealing with grievance and disciplinary issues are that they be rational and fair, that the basis for disciplinary action is clear, that the range of penalties that can be imposed is well-defined and that an internal appeal mechanism is available.

The concerning matters about this complaint are that an employee who is deemed to be satisfactory ultimately is dismissed for raising concerns or disagreements about the review. It is also concerning that there is no right of appeal in the company procedures when the employee is on probation.

Many employee rights statutes afford protection based on the reasonableness or otherwise of the parties. It is an objective test. Fair procedures also are a primary consideration in disciplinary matters.

The Company is relying on its unilateral right to terminate during probation based on O’Donovan. Every case has unique facts and circumstances. The matter before me is a trade dispute.

However, it is well settled law that both parties to an employment contract both have an obligation of mutual trust and confidence.

A very concerning fact in this case is the trauma that has occurred arising from how the dismissal took place. The worker continues to experience post traumatic stress and anxiety.

I note in Redmond Unfair Dismissal Law Bloomsbury 3rd Ed where the manner of a dismissal can lead to damages:

[11.54]

In Malik their Lordships held there is no bar to recovery of damages for breach of the implied term if the breach is discovered only after the employee leaves. Otherwise, an employer could conceal a breach and benefit from its own wrongdoing. Malik is potentially highly persuasive in Ireland, affording an employee an additional head of claim where his job prospects have been damaged as a result of a breach by the employer of the trust and confidence obligation. McGregor on Damages 92 describes Malik as:

‘of great importance as it recognises for the first time that damages may be recoverable for financial loss arising from damage to an employee’s reputation resulting from breach of the employment contract, thereby making an inroad upon the common understanding of Addis. As the law now stands there can be no recovery for mental distress whether regarded as arising from injury to feelings or injury to reputation, even where there is breach of the implied term of trust and confidence ... But this could now change.’

This dispute is not about the merits of the performance review. Rather it is about the fairness of the procedures applied to this grievance. An employer cannot solely rely on the right to terminate during probation without also being aware of their obligations under contract law regarding their obligation not to breach the term of trust and confidence.

There are also specific statutory protections where an employee’s wellbeing has been adversely impacted by the conduct of their employer. In this case the employee is so traumatised she cannot represent what happened to her at an oral hearing. It is also highly probable that she could not sustain a cross examination.

Fair procedures can delay a particular decision; however, they do provide checks and balances to ensure that all sides have been heard fairly. That did not occur in this case. That is a systemic problem based on the decision of this company not to afford the right of an appeal when an employee is on probation.

The worker has found alternative employment. However, allowing for the effects of this process on her and the absence of fair procedure I recommend that the employee compensate the worker with a payment of €30,000 equivalent to 6 months’ salary. I also recommend that their procedures are revised and align with SI 146/2000. This payment to be made in full and final settlement of the complaints made against the Company including the post-traumatic stress experienced to date.

Trust and Confidence-Fair Procedures-Post Traumatic Stress-