Worker

Employer

Anonymised Parties

Manager

Health Service Provider

Representatives

 Forsa Trade Union

Employer HR

Act

Dispute Reference No.

Date of Receipt

Industrial Relations Act 1969

CA-00047480

03/12/2021

This case is concerned with the termination of the employment of the worker in November 2021, before the conclusion of his twelve-month probationary period which had commenced on 10 May 2021. The worker was employed in a distribution centre as a manager and his rate of pay commenced at €49000 on an incremental scale plus other benefit.

The unions submission can be summarised as follows:

The worker made efforts to contact his line manager about his role before he commenced, without success. On the first day he started she said she was too busy to speak to him. For the following weeks and months communications were via the person a graded below him and who was previously acting in his role. The worker acknowledges that person was a support. However, his role was undermined by this reporting and operational arrangement.

The employer breached their own guidelines regarding probation where it refers to the line manager setting aside time in the first few weeks and months to progress through a checklist and set objectives, priorities and so on. With the exception of the final meeting, on November 17th at which the employment was terminated no probationary review meetings were called. The workers accounts of the various meetings commencing on 30 July 2021 were provided. He did not bring a support person or representative to the meeting on November 17th as he understood it was an appraisal meeting. At that meeting, the letter of termination was read out. He was evidently so shocked he was offered a lift or a taxi. He was then escorted by the two managers to collect his belongings and he left the building.

A request for an appeal of the decision was denied.

HR  set out the employer position.

This was a termination of employment during a probationary period when the performance requirements of the probationary period were not met. The worker had a buddy/mentoring arrangement from the outset; there were meetings about performance issues specifically on July 30th, September 7th the following week, October 5th 7th 20th 21st and November 2nd 5th 12th and the final meeting on November 17th. Notes of these meetings were kept by the employer. The overall conclusion was that the worker had not demonstrated sufficient achievement in terms of the ability to satisfactorily perform in the areas of planning and managing resources, evaluate information, problem solve and make decisions have commitment to a quality service & develop team working skills.  It was acknowledged that the Union sought an appeal the response to which the employer replied that as the dismissal was under the probationary clause of the contract of employment, an appeal of the dismissal did not arise.

The employer went on to justify their decision to dismiss and to do so during probation on the basis of common law, specifically the Court of Appeal decision O Donovan v Over-C Technology [2021] IECA 37. A recommendation of the Labour Court LCR21396 was also cited to emphasise that there was no wrongdoing on the part of the employer in this case whereas in the recommendation cited, a small financial award was made because of a breach of natural justice in a disciplinary case-emphasising that this case did not involve wrongdoing and no disciplinary sanction or investigation arose. There was no breach of the Act in this case.

The employer asked that the AO find that the employer acted in a fair and reasonable manner, that the worker was supported throughout his probationary period, had regular engagement, and clearly communicated that the probationary period was not successful.

The comparison drawn by the Employer to a Decision of the Court of Appeal is of great concern. This employer and their employees have used the Industrial Relations Legislation to address and resolve industrial relations disputes involving individuals for many years. This is a voluntary dispute resolution procedure which is not open to judicial or other review by the civil courts. As has been said by representatives of the employer on other occasions there is a standing agreement with the Trade Unions that the employer will not oppose the reference of disputes to the WRC as the recognised third party for endeavouring to resolve disputes involving individuals, as the first external decision maker. In terms of appropriate precedents, and as pointed out to the employer at the hearing, the Labour Court has consistently set a standard in the recommendations of requiring employers to operate fair procedures during and at the end of employment while the person is on probation, including the application of the principles of S.I.146//1990.

At the same time as making reference to the decision of the Court of Appeal as a basis for denying a person on probations any rights within the employment other than on grounds of allegations of misconduct, the employer was prepared to ignore the terms of their own procedure in respect of disciplinary action, in this case a dismissal, by denying the worker an appeal. In their presentation, they stood over an entirely flawed probationary review process from start to finish including but not limited to a dismissal meeting where the outcome was clearly predetermined, noting at the same time that was the first written notice of a probationary review meeting on record. Allowing that the employer would not be expected to run the full gamut of the terms of the disciplinary procedure during a probationary period, the reality is that no procedure could be said to have applied which would conform with the standards to be expected in this employment. If the employer wishes to introduce a different procedure for those on probation, so be it, but it would hardly resemble what purported to be a probationary review procedure as was operated in this case.

This worker experienced the following:

 A delay of two months before commencing any semblance of a managed probationary procedure.

 No notice that any meetings he attended were probationary review meetings other than the dismissal one, with some of those meetings being attended by more than one manager or other employee.

No notice at any stage or that his employment was under review or at risk.

A reliance on a person graded below the worker to conduct most of the induction procedures and learning,

 A questionable authority to dismiss being exercised by one manager.

A self-evidently predetermined dismissal meeting which had been described as a probationary review meeting.

The refusal of an appeal.

Theses repeated breaches of fairness and due management processes constitute a series of breaches of appropriate standards of practice and fairness on the part of the managers involved. While his performance may have fallen short in the eyes of the same managers, the worker in this case might be entitled to take the view that he did not stand much of a chance form the outset. In arriving at this conclusion, I am taking account of the language and phrases he says wer, used towards him by a manager (not the managers present at the dismissal meeting). That language and terminology was not discussed at the hearing, but neither was it denied and it suggests an environment for the worker which one would not expect to coexist with the stated policies in this employment and which, if only fifty per cent accurate, should be completely unacceptable to this employer.

The extent of the failures of fair procedures and appropriate and responsible management of the probation period leads to a conclusion that the worker is entitled to compensation for the way in which he was treated and the effects on him. Were it not for the fact that I do think there were issues around performance probably stemming to some degree at least, from his difficulty in transitioning from a private sector to public sector environment, the amount recommended would be considerably higher.