Worker

Employer

Anonymised Parties

A Worker

Online Services Company

Representatives

  Self-Represented.

Ciara Ni Longaigh Maples & Calder

Act

Dispute Reference No.

Date of Receipt

Section 13 of the Industrial Relations Act 1969, as amended.

CA-00053587

07/11/2022

The Worker commenced employment on 4 July 2022 as a designated Recruiter on a salary of €50,000 per annum. The Worker submits that her probationary period was terminated in an unfair manner by the Employer on 21 October 2022.

The Employer submits that the probationary period of the Worker was terminated fairly and in line with her contract due to performance issues.

The Worker submits that her employment was terminated for two main purported issues (1) the issuing of incorrect contract details regarding hours to employees and (2) inappropriate sharing of sensitive information online.

On issue (1) the Worker submits that the employer issues one contract for 7am-7pm shifts and the other for normal standard hours, morning shifts with the weekends off. This was the first time that the Worker had issued contracts to this team, and she believes she made a reasonable mistake.  She informed her  manager, and she  reached out to the HR Manager  to let her know and asked if the right approach would be to reissue new ones, the HR manager  said it would.

On issue (2) The Worker accepts that the sharing of a salary of a Manager online  with one based abroad for comparative reasons was a mistake but did not intend to hurt or cause any damage to the Employer’s  operation.

The performance of the Worker throughout her employment was exemplary and she was   constantly being praised for her contribution. The Worker was therefore shocked to discover that her employment was being terminated for supposedly performance issues that had never been flagged to her previously in feedback sessions.  

The Worker put in an appeal against the decision to terminate her contract on 21 October 2022. She explained in her appeal to senior management that she had no idea why her contract was terminated as she never had an issue pertaining to her performance in all the months she was employed. She received very complimentary feedback from her line Manager, Mr A. He had indicated on numerous occasions that she would have no issue passing probation. She explained in her appeal that the reasons she was given for the termination of her contract was terminated was that she shared a pay file online  and also issued an incorrect contract.

On 22 November 2022 the Worker received an email stating that the decision to terminate her  contract would be upheld. She was worried about how this would look on her CV as this had never happened before.  The Employer told her  that her  role was not being backfilled due to not having the need for another Recruitment Specialist.

The Worker’s contract of employment provides that she must serve a six-month probationary period. The contract of employment further provides that the Company will monitor and assess an employee's employment during this time.

 The Employer  prepared a detailed work plan for the Worker and the Worker's line manager, Mr. A  arranged training sessions for the Worker in respect of  the use of the various online tools that the Employer utilises to verify job descriptions.

 Throughout the Worker’s 's probationary period, Mr. A held regular meetings and coaching discussions with the Worker  to discuss her performance. This  commenced in July 2022. Mr. A met with the Worker on a weekly basis for one-to-one meetings to ensure that the Worker was receiving feedback on an ongoing basis and also gave real time feedback. Between 05 July 2022 and 17 August 2022, Mr. A met with the Worker  for one-to-one meetings on 14 separate occasions.

 On 17 August 2022, the Worker  had a meeting with Mr. A in respect of her performance. The Complainant was provided with feedback in respect of operational issues

On 21 September 2022, the Worker  challenged the proposed payment rate for a role where the Employer asserts the Worker was advised by Mr A that she not following the proper communication channels.  The Employer also asserts that the Worker inappropriately  provided direct feedback in respect of candidate  employees' performance in relation to their current roles , which was not her remit. The HR Manager informed  the Worker directly  in respect of this matter on 13 October 2022 and highlighted that the team needed to be cognisant of engagement directly by a team manager with an employee in giving formal feedback. The Employer claims that the Worker resisted  when provided with feedback from the HR Manager  and stated that she did not believe that she had done anything wrong.

On 12 October 2022, Mr. A  held a meeting with the Worker  to discuss her performance. The Worker  was advised that her performance was not of a high enough standard, and she was given the following reasons for this assessment:

(a)    Mr. A referred to a particular incident which had occurred in respect of an individual who was due to start in a new role . Mr. A  explained that the Worker  had shared a screenshot of a highly confidential compensation matrix for her location  with an Operations Manager abroad.

(b)    On 21 October 2022, a colleague  advised the Worker  had issued the wrong contracts to a number of candidates. This matter was escalated to HR.  A key aspect of the Worker's role as a Recruiter was the issuing of terms and conditions of employment to successful candidates and it is critical that employees are provided with clear and accurate information in respect of their position.

The Employer submits that the Worker was provided with feedback throughout her probationary period . At the review meeting with Mr A  on 21 October 2022  she was informed that the Employer  was unhappy with her performance in respect of two key areas: (a) Unauthorised sharing of confidential data (b) Inability to take on-board verbal feedback for process improvements.

 Mr. A  reminded the Worker  that she had been provided with specific feedback in respect of the need for the Worker to dive deeper into recruiting matters and to ask questions. The Worker  was also reminded that she had been advised to pay extra attention to details before taking action to avoid errors. Mr. A noted that both these points had been flagged to the Worker  on numerous occasions including 17 August 2022 and again on 21 September 2022. Mr. A  advised the Worker  that given her ongoing performance issues, the Respondent had made the decision to terminate her employment on the basis of poor performance.

The Worker  was advised that she had a right to appeal the Employer's decision to terminate her employment on the basis of poor performance by submitting her appeal to a senior manager.  

The Manager   held a meeting with the Worker  on 09 November 2022 to discuss the grounds of her appeal.  The Worker  was issued with the decision in respect of the  appeal process on 22 November 2022 . The manager  noted that as the Worker  was a probationary employee, the formal disciplinary process did not have to be followed and therefore she agreed with Mr. A that a disciplinary meeting did not need to be convened.

Respondent’s Arguments:

 The Worker's contract of employment clearly outlined at clause 2.2 of her contract that the Worker's employment was subject to a six-month probationary period. It is expressly stated that either party may terminate the employment by giving one week's notice in writing during the probationary period:

The first six months of the Employment shall be a probationary period and the Employment may be terminated during this period at any time on one week's prior notice. The Company may, at its discretion, extend this period for up to a further three months. During this probationary period your performance and suitability for continued employment will be monitored. At the end of your probationary period, you will be informed in writing if you have successfully completed your probationary period. If you have not been informed in writing that you have successfully completed your probationary period after the first six months of Employment, you will be deemed to have successfully completed your probationary period.

The Employer's Employee Handbook highlights that an employee's performance will be monitored throughout their probationary period at Section 4.5 :

Probation is intended to be a positive, collaborative process, which provides an opportunity to allow:

 • Give you an opportunity to assess your suitability to the role,

 • The newly recruited employee to integrate into their role and/or (XXX) and its ethos,

 • For a fair assessment of an employee's performance, behaviour, and overall suitability to the role; and

• A recommendation in relation to the employee's suitability for continued employment is made by the team manager.

 Probation Length: The first six months of the Employment shall be a probationary period and the Employment may be terminated during this period at any time on one week's prior notice. The disciplinary process does not apply during the probationary period.

 The Employer  carried out a fair and reasonable assessment of the Worker's performance issues and the decision to terminate the Worker's employment was made in accordance with the contract of employment and in accordance with fair procedures.  A range of issues arose in respect of the Worker's performance from an early stage. The Worker  was advised of the unsatisfactory performance. Further the Worker  was given both support and ample opportunity to improve her performance. The Worker  consistently had regular one-to-one meetings with her manager where she was given feedback on her performance.

The Employer cited  The Court of Appeal decision of Donal O’Donovan v Over-C Technology Limited and Over-C Limited [2021] IECA 37, as an authority for the proposition that the right to fair procedures cannot be implied in relation to the assessment of an employee's performance during a probationary period, and to do so would contradict the entire purpose of a probationary period.

The Employer cited the decision of An Administrative Worker v A Public Body [2021] ADJ-00026123, where the Adjudication Officer relied on the decision of O'Donovan v Over-C Technology Limited and Over-C Limited [2021] IECA 37 as a guide for deciding whether issues were issues of poor performance or issues of misconduct. A number of the concerns which were outlined by the employer related to poor performance, such as, not asking questions, inappropriate emails, issues with database/addressing envelopes, issues with scanning, binding, issues with registered post and giving work to other colleagues. The Adjudication Officer considered if whether any of the issues had been made by a permanent employee, they would have given rise to an investigation under the disciplinary procedure and found that such issues were properly issues of poor performance and could not reasonably be classified as misconduct. The Employer asserts that  present situation is similar  in many respects in that the Employer  has only taken issue with the Worker's adherence to talent acquisition processes.

The Employer cites the  decision of Senior Training Advisor v County Education Training Board [2021] ADJ-00025006, where the Adjudication Officer highlighted that the Court of Appeal in O'Donovan v Over-C Technology Limited and Over-C Limited [2021] IECA 37 declined to accept that "a Court 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) during the probationary period, as this would negate the whole purpose of a probationary period." In this instance, the Employer argues that the ~Worker's failure to adhere to the Respondent's recruitment processes and clear guidance from management are clearly performance issues and not separate issues of misconduct.

The Employer cites  Anna Buttimer v Oak Fuel Supermarket t/a Costcutter Rathcormac [2023] IEHC 126, Justice Dignam where it was stated that fair procedures were needed only for gross misconduct  and not performance issues during probation.

The Employer submits the  authorities are clear that an employee may be let go during her probationary period for any reason (including poor performance) or no reason without any obligation to afford fair procedures. However, the Employer further contends that  it is equally clear as a matter of general principle that while at common law an employer is free to dismiss an employee for any reason or no reason, where the dismissal or termination is for misconduct, the employer is obliged to comply with fair procedures. In this instance, the Employer submits, it is very clear that the Worker  was dismissed purely on the basis of her performance and the performance issues were raised with the Worker on multiple occasions in advance of the probationary review meeting. On the basis that the Worker's performance had not improved despite ongoing feedback and support which she was being offered by her manager, it was determined that the Worker's employment should be terminated.

The Employer argues in conclusion that it  entered into a contract of employment whereby the Worker's performance during probation would be assessed. The Employer  was contractually entitled to terminate the contract of employment at any time during or at the conclusion of the probationary period where it was not satisfied that the Worker  had reached a satisfactory standard of performance. The Employer argues that the Worker  is not entitled to imply a right to fair procedures. However,  the Employer submits ,without prejudice to that position, it  applied fair procedures in that it made the expectations of the role clear, it identified unsatisfactory performance, it warned of the consequences of unsatisfactory performance, it offered coaching and support and ample opportunity to improve. 

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties. It is well established that a worker on probation can be let go without repercussion,  if the employer decides that her performance is not up to scratch. The Employer opened  Donal O’Donovan v Over-C Technology Limited and Over-C Limited [2021] IECA 37,  as an authority for the proposition that the right to fair procedures cannot be implied in relation to the assessment of an employee's performance during a probationary period, and to do so would contradict the entire purpose of a probationary period. It is clear also that the Worker signed a contract where she accepted that: “The first six months of the Employment shall be a probationary period and the Employment may be terminated during this period at any time on one week's prior notice.”

The Worker  was clearly unhappy with the manner in which her employment was terminated on the grounds of poor performance and gave a credible account of what she did well, and how she was complimented. However, there was likewise a convincing submission from the Employer about serious performance issues which were flagged to her, particularly  regarding the issuing of incorrect contracts and the inappropriate of the sharing of what the employer considered very sensitive information. The Worker  gave a plausible account of what transpired in these instances,  but ultimately there was an acceptance by her that the incidents took place and were not without consequences. I note also that the Employer afforded the Employee the right to appeal when  ultimately there was no legal or contractual obligation to do so.

I have the greatest sympathy for the Worker, and I do not doubt that she set out to be a committed and diligent worker. However, there were convincing  incidents  of poor judgement and performance issues submitted by the Employer during her probation period from  which I can reasonably conclude that the termination of her contract was not unfair.

Industrial Relations Act 1969, Unfair Dismissal.