Complainant

Respondent

Anonymised Parties

A worker

An employer

Representatives

  In person

 Hugh Hegarty, Management Support Services.

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 13 of the Industrial Relations Act

CA-00052068-001

29/07/2022

The Complainant was employed by the Respondent as a Finance Officer. Employment commenced on 23rd November 2020 and ended on 8th September 2021.

This complaint was received by the Workplace Relations Commission on 29th July 2022.

It should be noted that in complaints submitted under the Industrial Relations Act, the Complainant is referred to as a worker and the Respondent is referred to as an employer.

As per complaint form the worker has stated:

•         The worker contends that she was unfairly dismissed by the employer.

•         Two weeks prior to her dismissal the worker contends that the Managing Director stated that the company were looking for a younger workforce.

•         The worker contends that she was basically told that she was useless and had not done anything asked of her. The worker does not accept this.

•         The worker contends that she was the only member of staff in the Finance function during the summer months and everyone came to her for advice. She has also stated that the Finance Director was rarely in the office, and it was extremely difficult, if not impossible, to contact him.

At the hearing of the complaint on 21st February 2023 the worker has verbally stated the following:

•         The worker stated that she was not initially working from home and was one of the first members of staff to return to the office due to the Covid pandemic.

•         The worker stated that there was a culture of bullying and intimidation in the office and that her departmental head would bully and shout at her.

•         The work of the entire finance area was way behind schedule and the worker does not understand why she was fired.

•         In relation to work the worker felt that the goalposts were constantly being moved and that the company just used and abused the workforce.

•         The worker stated that her own self confidence was destroyed by the Finance Director.

•         The finance director was not present in the office all the time.

•         Most of the time when errors were made it was not the workers fault.

•         The worker states that she was not offered the right to be accompanied at any meetings and when she was dismissed she was not offered the right to appeal.

BACKGROUND

•         The worker began her employment with the employer on or about the 23rd November 2020, as Finance Officer. The claimant was paid €40,600.00 per annum and reported to the Director of Finance.

•         At the time of the workers employment, she was issued with a Statement of Terms and Conditions of Employment and a copy of the company handbook.

•         The workers employment started in what was a very difficult social time, due to the quarantine and restrictions caused by the Covid 19 Global Pandemic. Due to these restrictions most of the staff of the respondent including the worker were working from home. It is acknowledged by the employer that this was a difficult situation and time in which to bring new employee(s) into the organisation, it was the situation that existed at the time.

•         During the course of the next few months the workers progress was monitored and evaluated as is the standard practice with all new starts, and regular discussions were had with the worker about her progress in the position, quality of her work, her attendance and time keeping.

•         On or about the 8th of June 2021 the worker met with her manager for her Probationary review meeting. At this meeting, while some positives were noted, it was agreed with the worker that the quality and accuracy of her work required improvement and that the objectives for the probationary period had not been met. As a result, and in line with the probationary policy set out in the company handbook the workers probationary period was extended for a further 3 months.

•         In the following 3 months there was no improvement in the worker’s performance, particularly on issues like not following through on requests and directions given by her manager and repeated errors with reconciliations.

•         On or about the 6th September 2021 the worker met with her manager again and was informed of the decision to terminate her employment. A letter confirming this decision was issued to the worker on or about 8th September 2021

COMPANIES POSITION

•         The employer is aware of the jurisprudence of the Labour Court and of the Court of Appeal in relation to dismissal during probation period. In relation to the current matter, it is best to set out the two views of the Courts before the circumstances of this case are addressed.

•         The Court of appeal has in 2021 outlined in Donal O'Donovan v Over-C Technology Limited and Over-C Limited [2021] at para 49.

It is common case that Mr. O'Donovan was still serving his six-month probationary period when his employment was terminated on 7 January 2020. In my judgment, the trial judge failed to give adequate weight to the fact that the termination occurred during the probationary period. That is a critical fact in this case. During a period of probation, both parties are- and must be- free to terminate the contract of employment for no reason, or simply because one party forms the view that the intended employment is, for whatever reason, not something with which they wish to continue. Neither party can hold the other to the continuation of the employment against the wishes of the other. I do not accept that a company can imply a right to fair procedures - still less uphold a cause of action for the breach of such an alleged right - in relation to the assessment of an employee's performance by an employer (other than for misconduct, which does not arise here) during the probationary period, as this would negate the whole purpose of a probationary period. This does not prevent an employer from including a term in the contract which confers rights to fair procedures on the employee, even during the period of probation. Whether there may be other exceptions which do not arise here, l leave to another case. In my judgment, Mr. O'Donovan could not - and did not - establish that he had a strong case for an injunction restraining the termination of his employment, where this occurred during his probationary period.

•         What can be taken from the above and the decision of the Court of Appeal is that the Judiciary does not feel that it is appropriate, in circumstances where an employee is rightfully in the probationary period and the company make the decision not to continue the employment based on the performance of the employee, then the judiciary should not imply a right to fair procedures where one does not exist.

•         Further in the Over C also placed emphasis on the fact that in that case the employee had signed a contract with an express entitlement of the employer to terminate the contract during the probationary period.

•         This view of the Court of Appeal is in direct contrast with the view of the Labour Court who have repeatedly stated as they did in Hamilton Insurance DAC -v- A Worker LCR22710

It is the view of the Court that whenever a worker, including a worker who is on probation, is at risk of the loss of his or her job, it is incumbent on the employer to make the worker aware of the situation and of the reasons. In addition, where the issue arises from the conduct or performance of the worker, he or she should be afforded an opportunity to address the decision maker in his or her defence.

•         It is the submission of the respondent that the decision of the Court of Appeal is the decision that the Adjudicator should be following and applying to the circumstances of the present case. For the following reasons. (1) The terms of employment expressly set out a probationary period; (2) the worker was well aware of the shortfall in her performance, and the claimant was afforded the opportunity at the meeting on the 6th September to address the decision.

•         The Probationary Period is set out in both the terms and conditions of employment and the company handbook. The terms and Conditions state.

Your employment will be probationary for the first six months. The probationary period may be extended at the company's discretion, but will not, in any case exceed l l months. On satisfactory completion of this period, your employment will be confirmed. Should either party wish to terminate the employment during this period, the notice period given will be accordance with the current employment legislation.

•         In addition, the terms of employment make reference to the Company Handbook and at para I the handbook outlines:

2.8 Probation

A period of probation of 6 months will apply from the commencement of employment. During this time, the contract may be terminated at Company's absolute discretion. In such case, you will be entitled to I weeks' notice, after the completion of 13 weeks service. Notice will not be given in circumstances, which justify summary dismissal.

The probation period is designed to give the employee the opportunity to assess their suitability and interest in the position at hand, while at the same time enabling the company to establish the compatibility of the employee to the work environment.

The probation period may be extended at the discretion of management but in any case, will not exceed 11 months. The company reserves the right to terminate your employment during this period also.

Normal company disciplinary procedures will not apply during the probationary period. Should it be extended you will be advised of the extension and the reasons in writing.

Should you wish to resign during your probationary period you will be required to give the company one weeks' notice in writing... the company at all times reserves the right to pay you your salary in lieu of notice.

lf an employee is promoted they will be placed on probation for 3 months. If the reviews during this period indicate that you do not fulfil the requirements of the job, you may revert to the original position or an alternative position at the same level as the original grade, provided there is such a position.

•         It is clear that the company have acted in accordance with the te1ms and conditions of employment that expressly state the normal disciplinary procedures will not apply. The company have acted reasonably and in accordance with the agreement between the claimant and themselves made at the time of commencement.

•         Secondly the worker was well aware that her performance was not to standard. The workers Manager and the Finance Director had discussed with the worker on an ongoing basis throughout her probation the fact that she was not progressing as she should have been. Further the worker was told at her probation review meeting that her probation was to be extended by three months to see if the necessary progress could be made; Following the Probation review the worker and her manager continually had discussions regarding the quality of her work and repeated errors in the functions of the job.

•         Lastly the worker was brought to a meeting to be informed of the decision. The worker then discussed the matter with the Finance Director and the ultimate decision was that it was best to terminate the employment at that stage and she would be paid two weeks in lieu of notice. Subsequently a letter was issued to the claimant confirming the decision on or about 9th September 2022.

•         We say that whether the Adjudicator looks to the view of either the Labour Court or Court Of appeal the respondent has fulfilled their obligations; Under the Over C Technology Jurisprudence, the clause was set out in the terms and conditions and the claimant agreed to those terms at the time she accepted the employment, the probation period is a time for both the employer and employee to assess whether or not the job, or performance or suitability and compatibility with the organisation are what was originally expected, and each of parties have made the right decision in terms of accepting the position in the case of the employee or recruited the right person in terms of the employer.

CONCLUSIONS

•         The rational and the purpose of the probationary period is to allow time to determine the suitable of the position to both the employer and employee. The facts of the particular case are that during the probationary period the claimant had her employment terminated, the Court of Appeal in the Over C Technology judgement has made it perfectly clear that this approach is not only acceptable, but the court should not imply the right to fair procedures where one does not exist. The Labour Court has the view that at all times fair procedures should apply. While our position on the matter is that the Court of Appeal approach should be followed, we also submit that fair procedures were afforded to the claimant in these circumstances.

The representative for the Employer has quoted the judgement of the Court of Appeal in the case of DonalO'Donovan v Over-C Technology Limited and Over-C Limited [2021].

This is a clear and direct judgement in which Costello J held that an employer may, if it is contractually free to do so and upon giving adequate notice, terminate the employment of an employee on probation for any or no reason (provided that it is not for misconduct) without affording the employee fair procedures.

In view of this judgement, I am unable to recommend in favour of the worker.

This is a clear and direct judgement in which Costello J held that an employer may, if it is contractually free to do so and upon giving adequate notice, terminate the employment of an employee on probation for any or no reason (provided that it is not for misconduct) without affording the employee fair procedures.

In view of this judgement, I am unable to recommend in favour of the worker.

Probationary Period Dismissal.