Worker

Employer

Anonymised Parties

A Worker

A Drinks Company

Act

Dispute Reference No.

Date of Receipt

Complaint under the Industrial Relations Acts, 1969

CA-00060293

06/07/2023

The termination of the complainant’s employment in respect of which she alleges unfair dismissal took place on July 11th, 2022.

As she had only under five months’ service the complaint cannot be considered on these facts under the Unfair Dismissals’ Act and is made under the Industrial Relations Act

She submitted her complaint to the WRC on July 6th, 2023, just under one year later

The complainant submitted that she had been treated unfairly in relation to the manner in which her probation had been terminated. 

She supported this by saying that she had not been allowed to express opinions in the course of probation review meetings,  and a number of incidents including a health and safety event for which she could not provide dates or details.

The respondent pointed out that none of the issues now referred to as alleged breaches of the Act had ever been raised with it before. It set out the various stages of the management of the probationary process.

The complainant commenced employment as a Distiller on February 1st, 2022. She was dismissed on July 11th,  2022. She had been issued with terms and conditions of her employment on December 1st, 2021 which included the following probation clause:

Probation

Your employment is subject to a probation period of 6 months from the start of youremployment. During the probation period, the Company will assess your suitability for the position. At any time during the probationperiod, the Company may terminate your employment by providing 1 week notice of termination, or makingpayment in lieu of notice.In addition, the Company may extend this probation period for a further six months incircumstances where it considers it appropriate and after discussion with you.

Further to her contract of employment, the claimant was also furnished with access to policies and procedures relating to Discrimination & Harassment, Global Diversity and Inclusion, Whistleblower and Non-Retaliation Policy, Code of Ethics, specifically, in the offer letter.

At the first probation review meeting the elements requiring performance improvement were clearly set out and support measures were put in place, including a series of weekly meetings with their manager to review performance.

At the second review meeting there having been no improvement her probation was terminated, having given her the right to be represented at the meeting.

In Donal O’Donovan v Over-C Technology Limited and Over-C Limited [2021] IECA 37, the Court of Appeal did not accept that a court can imply a right to fair procedures in relation to the assessment of an employee’s performance during the probation period, as it held “this would negate the whole purpose of a probation period”.

TheCourt heldthatif an employerhas a contractual right to dismissanemployeeonnoticewithoutgivinganyreason,thenitcouldnotimplyatermthatthe dismissalmayonlytakeplaceiffairprocedureshavebeenaffordedtotheemployee.

TheCourt didpointoutthatoneexceptiontothisiswhereanemployeeisdismissedformisconduct,in whichcasetheprinciplesofnaturaljusticeapply,andfairproceduresmustbefollowed.

Although ‘poor performance’ and ‘misconduct’ may overlap at times, the Court expressed the view that an allegation that an employer is of the view that an employee has not “discharged his duties” is not sufficient to introduce an element of ‘misconduct’ and so justify the implication of the right to fair procedures for a dismissal on these grounds. This confirmed the common law position that, outside the statutory unfair dismissals’ framework, an employer can terminate employment for any reason or no reason, provided adequate (i.e., contractual or statutory) notice is given.

However,therespondentisawarethatitiswellestablishedbyreasonofLabourCourt recommendationsthatastandardoffairnessisappliedtotestthemannerinwhichtheemployer actedduringtheprobationaryperiodand,particularly,howtheywentaboutterminatingthe employment.

TheprincipalinS.I.146requiresthatthereisafairprocess,thattheemployeehasa voiceandtheoptionofsupportatthemeetingwheretheterminationoftheemploymentistobe consideredandprobablydecided.

Ascanbeseenfromthesubmitted appendices,thecomplaint wasnotperformingattherequiredlevel,andtherequiredperformancestandardswerenot reachedthroughoutherprobationperiod.

There was a first probation review meeting carried out on May  6th, 2022 (report submitted)where a number of performance-related issues were raised, and another held on 11th July 2022 (Also submitted) where, due to continued under-performance, a decision was made to terminate the employee’s probation (Also submitted)

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

There are two aspects to an evaluation of the complainant’s case.

The first, although this more obviously arises when the employment relationship remains in being, relates to what efforts were made by the complainant to seek to resolve the matter at the level of the workplace. In any event there were none.

The second, and more relevant one in this case, and taking particular account of the requirements of probation management, is whether the employer acted fairly in relation to the termination of the complainant’s employment.

Detailed submissions were made on the respondent’s management of the probation process.

Initially, the respondent undertook a thorough review of the complainant‘s performance on May 6th and then put various measures to address deficits in her performance. These included weekly meetings with her manager. The complainant did not dispute this.

The complainant’s only criticism of the process was a vague and unsubstantiated assertion that she was not permitted to express her opinion on various matters.

I am satisfied on the basis of both submissions above that the respondent complied with all due requirements of the probation and that the complainant’s probation was terminated because she had not made the necessary progress that the respondent required.

Her complaint that she was unfairly dismissed within the probationary period is not upheld and the termination was fair.

Probation. Dismissal.