Worker

Employer

Anonymised Parties

A Probationary Employee

An Employer

Act

Dispute Reference No.

Date of Receipt

Industrial Relations Act, 1969

CA-00054286

23/12/2022

The complainant was dismissed, and he submits that the first reason given for dismissal was that ‘he wasn’t a team player’.

When he asked what the manager (WG) dismissing him meant by this, he referred to a discussion regarding the availability and usage of cabinets in the office.

He had asked WG why some members of the office did not have cabinets and his answer was that as he, the complainant was on probation, he was not entitled to one, and as they could be a breach of GDPR rights nobody should have them. 

He was also advised not to persist with raising this issue.

The first argument is illogical because there were colleagues who had passed their probation who had no cabinet. The second reason is also illogical as, if cabinets are a violation of GDPR then no employee should have access to them,

The complainant has Asperger’s Syndrome, about which he had notified the respondent. It is a form of autism, a neurodevelopmental disorder in which one of the symptoms is overstimulation, particularly of joy and anxiety. The complainant was experiencing a severe anxiety attack during this argument but tried to remain calm and not give in to what he regarded as workplace bullying.

During the period of his employment, he had he had many anxiety attacks, and this was one of the incidents where he had to stay professional and keep his cool.

The second reason for dismissal was that three months into his probation, his mistakes were not improving over time and his manager said that he had created forty-seven false accounts. This is not only erroneous, but his manager had agreed that the number of mistakes was decreasing.

Account errors are also sent to every agent for rectification, and this is something he prioritised. In the month of November alone, he recalls that there were far less than forty-seven accounts erroneously created, and he was making fewer than seven mistakes.

For the accounts that were erroneously created, they were instantly re-created with the correct tasks. If there were any accounts or mistakes made, he was very nervous, suffering far more from anxiety due to an incident that occurred during late October/early November where an orange was almost thrown at him by an employee.

The incident was laughed off, but it made him far more uneasy. There was another incident where a co-worker also called him a “mediocre salesman”, with the office passively allowing this behaviour yet again.

With Asperger’s Syndrome and the autistic spectrum, one of the many symptoms is that statements are taken very literally, and these words made him question his ability as a salesman.

The third reason for dismissal was that he was regularly providing incorrect information to customers. (Further detail was provided)

Even if this were true, sales executives will often make mistakes and, as referred to above the complainant’s mistakes were disproportionately dropping.

This reason for dismissal also contradicts his manager’s statement to him during a QMS session in which he informed him the sole purpose of QMS scores is to help you rectify your own mistakes.

The ‘orange incident’ had also made him incredibly anxious and uneasy during many calls in October and November. With everything that has transpired since the dismissal, he still suffers regularly from anxiety and distress.

In his evidence to the hearing the complainant said that he had been summoned to the final meeting without any notice as to its purpose.

He was given no opportunity to be represented and escorted from the building on its conclusion.

The complainant found employment again in February some two months later.

The respondent does not dispute the termination of the complainant’s employment.

He was on probation and the termination was entirely related to his performance. He was not a good ‘fit’ for the company. He had been told about the errors he was making but was not told that his continued employment was at risk.

The respondent does not dispute that the complainant’s performance was improving but it was not sufficient to continue with his probation.

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

As will be seen the complainant in this case was on probation and had only been employed for just over three months.

The purpose of probation is well known; it is to supplement the interview process and it provides an opportunity to monitor an employee’s continuing suitability for longer term employment.

It allows the employer to review the progress of a new recruit in the practical day to day operations of the employer’s business, and to mentor and oversee a smooth induction into the employment.

In general, most recruits navigate this process successfully, some need a degree of support to get there and a few, unfortunately do not demonstrate that they have, or can acquire the necessary skills for long term employment and the relationship comes to an end.

When this happens, it is well accepted that this is not the same as the termination of a person who has a contract of indefinite duration, for example, in which case the strict requirements of fair procedure and natural justice apply.

However, that is not to say that no obligation falls on an employer to act in a fair way, in a general sense, and at a minimum to extend what might be regarded as simple normal courtesies to a person whose probation they intend to end.

There was evidence in this case of quite serious under-performance by the complainant and while it was accepted that he showed some improvement, it was considered to be insufficient to justify his continued employment. This is well within the territory that might permit a probation to be brought to a close.

That said, the use of lazy expressions such as that an employee was not the ‘right fit’ or that he was not being a ‘team player’ will always be viewed suspiciously. They suggest that an employer either could not find or could not be bothered to articulate a more intelligible explanation of the precise deficits in the person’s performance.

In addition, the employee is entitled to some meaningful feedback on why exactly they did not make the grade.

Up to the point when the complainant’s employment was terminated, he had not been told that his continued employment was at risk.

More seriously, the circumstances in which the complainant‘s employment was terminated were deplorable.

 He was summoned to a meeting but not given any indication of its purpose, he was not given the opportunity of any representation, and had his employment peremptorily terminated following which he was marched off the premises.

Even overlooking considerations of fair procedure, in whatever reduced application they may have in such a situation, this represents a level of discourtesy and disrespect that is appalling and was a totally unacceptable way to treat any worker.

For that reason, the complainant is entitled to a remedy, and I recommend that he be paid €2,500 in compensation. I take into account that he secured employment a couple of months after the termination and this payment is for the breach of his rights and is not in the nature of compensation for loss of remuneration.