Worker

Employer

Anonymised Parties

Audio -visual Technician

Production Company

Representatives

  Self

Company Directors

Act

Dispute Reference No.

Date of Receipt

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

CA-00053762-001

18/11/2022

The worker was approached by the Employer and asked to join it on a permanent contract as an audio-visual technician.

The worker left his employment to join the Employer on the 15 August 2022.

He received notification of the termination of his employment on the 18 October 2022.

The worker's submission is that throughout his employment with the employer, he was an exemplary employee, he was never late, he was flexible and adaptable and had received no negative feedback.

Despite all of this, his employment was terminated on the 18 October 2022 in a manner which he found disrespectful and without any due process or procedures.

When the worker asked why his employment was terminated, the response from the employer was that "he felt [the worker] would not be happy here".

The Company directors asked him to leave the place of business immediately. This surprised the worker as only one third of his probationary period had passed at that stage. His probationary period was six months and he had just completed two months of employment.

The worker asked for a follow-up meeting for the following day but this was categorically refused. He explained how he was ushered into a pre-booked taxi and sent home.

The worker requested a written explanation for the termination of his employment from the Company Directors. He received an email outlining that the reason was "suitability" and "not a right fit".

The Worker explained that the way he was treated “shook his self-confidence” and he was concerned regarding his day-to-day work.  He explained that at the interview for the role, he had told the interviewers that he had been out of the business for some time and that he would need training to get up to speed on certain software that the Employer used.  He submitted that he wasn’t given a fair chance in the role. He was judged on one incident that he had no recollection of.

The Employer’s submission was that it terminated the worker's employment on the grounds of suitability.

It set out that it was clearly outlined in the worker's contract of employment under 'probation' that his employment was subject to a probationary period of six months, during which time, the workers suitability for the role would be assessed. The contract also outlined that the employer reserved the right to terminate the worker's employment during this period if he was deemed unsuitable.

The employer relied on the decision of Donal O Donovan -v- Over-C Technology Limited and Over -C Limited [2021] IECA 37 wherein the Court of Appeal set out that "both the 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".

The Employer submitted that the worker was not dismissed due to misconduct. The reason given for the dismissal was the worker's suitability for the role.  A company director explained that the worker’s skills were not in line with what the Employer wanted and that there was a misrepresentation of his skill set at the interview.  The Employer gave an example of a key incident that identified how the worker was unable to fulfil the role he was employed to do.

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

It was agreed by the parties that the worker was not notified of any performance issues prior to a meeting on 18 October 2022 at which he was informed that his employment was to be terminated immediately.

When 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 for same.

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.  These are the principles of fair procedures.

In this dispute, it was clear to me that the worker was oblivious to the fact that the employer was not happy with his performance in the role.  The employer identified a key moment that it formed the decision not to continue employing the worker.  The worker had no recollection of this key moment.  That is not good HR practice. 

I am also conscious that in this dispute, the employer headhunted the worker and asked him to come to work for it.  It offered the worker an increase of salary of €4,000.00 from his previous job.  Luckily for the worker, after the termination of his employment by the employer, he was able to find employment with his previous employer quickly.  The worker was out of work for a week.

I accept that the sudden termination of the worker’s employment without warning had a significant effect on him.

Probation.  Dismissal without warning. Industrial relations.