Worker

Employer

Anonymised Parties

Special Needs Assistant

School

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

15/09/2021

The background to this dispute relates to a dismissal during a probationary period. Central to the dispute, it is alleged that the complainant was denied fair procedures during the probationary assessment and review. It is also alleged that on the date of dismissal he was summarily dismissed despite requesting that he be represented by his Union Official and the school refused to wait for 1 week to facilitate this request.

The worker stated that he was denied fair procedures. At no time was he formally reviewed and informed that his position was at risk. He was never afforded an opportunity to improve. The school failed to detail a formal improvement plan.

SI No 146/2000 code of practice requires that the worker is afforded fairness during his probationary period.

The worker relies on circular 0072/2011 Grievance and Disciplinary Procedures for Special Needs Assistants in Recognised Primary and Post -Primary Schools where the Minister of Education and Skills directs recognised Primary, Secondary, Community and Comprehensive Schools to implement the detailed disciplinary procedure.

The worker stated that the school principal without authority terminated his employment as that decision was outside her remit as per section 2.2 of Special Needs Assistants which states employment during probation maybe terminated by the Board of Management.

The worker referred to a decision of the Labour Court Beachside Company Limited LCR 21798 that considered if a worker could rely upon SI no 146 of 2000 during the probationary period. That decision 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 Court made a very substantial award in that case.

The school stated that circular SI 146/2000 and DES 0072/2011 do not apply as at paragraph 15 states:

The provisions of this circular apply to all SNAs other than SNAs serving in a probationary capacity.

The school also relies on Donal O’Donovan v Over C Technology and stated that decision of the Court of Appeal was authority for the position that there is no entitlement to fair procedures in the assessment of an employee’s performance during the probationary period. It was argued that such a provision would negate the whole purpose of a probationary period.

It is also not correct that there were no performance issues flagged to the worker during his probationary period. There are email records that show that is not the case and a meeting was had with the worker about his performance

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

The matter before me relates to a trade dispute. In that context it is very relevant to be informed by the decisions of the Labour Court as they apply to a trade dispute made under the Industrial Relations Act 1969.

On the facts there was a serious deficit concerning the performance management of the worker. There may have been meetings held by management; however, there is little evidence of a structured performance improvement plan with clear goals and reviews.

It is highly likely that the worker was terminated for poor performance and specifically for serious issues concerning student supervision. However, the decision to terminate his employment was hastily made and the trail of evidence does not show that his performance was monitored in a structured manner.

The worker did contribute to his dismissal during his probationary period very significantly. However, I find that the school did not apply reasonable employee performance assessment practices so that such a trade dispute would be avoided. This does not negate the right to dismiss during probationary period.

Arising for the deficits in the procedures applied by the school and a breach of good industrial relations practice, I recommend that the school pay the worker €2000 in full and final settlement of the claim. The worker is on fortnightly pay of €457.34.

Fair Procedures-Probationary Period