Complainant

Respondent

Parties

Lisa  Dalton

Donegal County Council

Representatives

Michelle Connaughton Forsa Trade Union

Keith Irvine Local Government Management Agency (LGMA)

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00049987-001

27/04/2022

The Complainant, a Beach Life-Guard Supervisor was dismissed by the Respondent for failing to complete her probationary period satisfactorily, nine months after her probationary period ended.

The Respondent contends that if she was unfairly dismissed, which is denied, the Complainant contributed to the dismissal by poor work performance and if any award is made, it should reflect this contribution and because she did not adequately mitigate her loss.

The Complainant gave evidence under affirmation as follows:

She started working with the Respondent in July 2018 as a clerical officer. In July 2019 she took up as position as an Assistant Librarian and in February 2020 she took up a post as a beach lifeguard supervisor, having done this previously in 2017 on a temporary contract.

The life-guard supervisor post ran from the start of February until the end of November each year, with a two month break each year.

Her probation as a beach life-guard supervisor started in February 2020. Her probation period was to last until November 2020, however in October 2020 her probation was extended until April 2021. The reason given by the Respondent for this extension was to allow the Complainant additional time to meet the requirements of the post.

The Complainant’s line manager was critical of her work and it was on his recommendation that the decision to extend her probation period was made.

In January and February and April 2021, the Complainant met with her line manager and his line manager, John McCarron (senior executive engineer) with the Donegal County Council.

During these meetings her line manager addressed his concerns about her work. His main concern lay around her supervision of the inspection of the safety ring buoys at bathing locations.

The Complainant gave evidence that there were 800 ring buoys in Co. Donegal.  As supervisor her responsibility was to personally inspect all of them twice per year, in March, in advance of the beach season and in November, when the season ended.

Of all the bathing locations in Co. Donegal there are 14 designated life guarded bathing beaches and the ring buoys at these locations need to be inspected, daily in July and August and each weekend day in June and September. This inspection is a physical inspection to ensure that the rings are there, have not been vandalised, are fit for use and that the ropes attached to the rings are free of knots/ tangles and fit for use.

The Complainant’s role included the delegation of the daily inspections to the 45 life guards (14 senior life guards and 31 cover life guards) who reported to the Complainant. They had to verify, by way of an App,  that the inspections had been done and upload a photo of the ring buoys, so that the data could be seen by the Respondent. She also was obliged to personally inspect all the ring buoys at these 14 beaches every two weeks.

The Complainant accepted that her line manager criticised her for not always having proof of these daily inspections or her own inspections. However,  she explained that the problem was that the App was glitchy and the data could not always be uploaded particularly when the phone was out of coverage.  When this happened, she kept an alternative paper record of the inspections which were then uploaded by her when she was able to access the Respondent dash-board. She accepted that the App did not act up every day but had she been provided with a lap-top (which she asked for but never received) the use of the App would have been easier to manage.

She said that the workload was heavy to manage but she did the best she could.

She said that when she was asked to attend a work performance review meeting in November 2021, her probation period having ended the previous April, she was not warned that arising from the meeting that she might be dismissed. As far as she was concerned her position had become permanent in April 2021. She was not advised to bring a representative with her. She went into the meeting with her line manager wanting to get out of it as quickly as possible. Her line manager went through a review document within which her work performance was recorded by him as being below par. She accepted that she signed the document, believing it to be an advisory document as to how she should improve her work. She did not notice that on the document, the question – as to whether he line manger would recommend her for the role - was ticked “no.” If she had known that this meeting was to determine whether she kept her job or not, she would not have signed the document. She believed that once her probation period ended in April 2021, her position was permanent.

Contribution to Dismissal

The Complainant denies that she contributed to her dismissal. She worked as well as she could and she does not accept that her work was under-par.

Failure to Mitigate Loss

The Complainant seeks financial loss is the sum of €30 87131.

This arises from a loss of income between February 2022 until November 2022 minus the income that she received for part-time work. The Complainant stated that she got new work as an SNA which started in February 2023 and she is doing this work now.

She evidenced nine job applications to show that she was actively seeking alternative work.

Cross examination

The Complainant denies that her excuses for poor performance and the inconsistent logging of the ring buoy inspection data changed throughout 2021.

She accepted that the inspection of ring buoys every day was crucially important to public safety and she accepted that the County Council were required to monitor this. She said that she had done this and did upload the data.

She accepted that life or death outcomes rely on the proven maintenance of the ring buoys and that if any criticism is made of a ring buoy being missing or being defective, that the County Council need to be able to prove that the inspections were done.

She said that the App often didn’t work. She said that depending on how remote the beach was, she could still input the date to the app off-line and when she came back into coverage, the data would then upload. She denied any poor practice in terms of using the App or following standard operating procedures.  She said that she had been trained in 2020 to keep a paper record of the inspection if the App was not working and that is what she did. She accepts that on one occasion the paper records became wet and the data could not be uploaded. She also accepted that sometimes the life guards did not input the inspection data on a daily basis but that was because sometimes where the ring buoys were located was further down the beach from the bathing area and her priority was to ensure that guards remained on guard where the bathers were swimming.

She accepts that during a period of Covid related sick leave for 6 weeks in June 2021 that her role was taken over by another employee and that when she returned from sick leave, the job became split between this employee and the Complainant, thus reducing her workload.

She accepts that from July until September 2021 her role was mainly to supervise the inspection of the ring buoys and she says that she did that, bar very few exceptions.

She denies not being contactable on the phone or taking leave days without permission.  She denies that she took a photograph of an inspected ring buoy and then uploaded the same photograph onto the App pretending it was for a variety of inspections.

Her line manager sent her the calendar in advance so she knew where, when and what inspections needed to be done. She adhered to this. She considered his criticisms of her to be unfounded.

She accepted that she signed the November 2021 review document in which her duties were reviewed and she accepts that she received poor performance on most of the sections.   She accepts that this review classed her ring buoy inspections as poor (specifically it states that she was not using the App and not following standard operating procedure.) She accepted that the review stated that  her communication skills were classed as poor. She accepts that her initiative, reliability and time keeping was classed as being poor. She accepts that her suitability for the post was not recommended. However despite signing the review document, she disagreed with its contents. When asked why she had signed it, she said she just wanted the meeting to end and to leave.

She said that had she known how much would turn on this document she never would have signed it.

Failure to Mitigate Loss

In respect of failure to mitigate the Respondent contends that she was retraining to be an SNA from February-May 2022 and therefore was unable to mitigate her loss during this time, so her full loss cannot be said to be as a result of her dismissal. The Respondent also contends that her attempts to look for work in 2022 evidence a total of nine job applications which is not adequate.

The Complainant responded that her SNA training was online, so she was free to work from February to May. She accepts however that she only applied for nine posts but she was looking for a job that suited her, her family and to further her career and she was confined to the County of Donegal. 

John McCarron (a Senior Executive Engineer with the Respondent) gave evidence by affirmation as follows:

Mr. McCarron was the line manager to the Complainant’s line manager, the Respondent’s Water Safety Development Officer. He said that in 2020 he was made aware by the Complainant’s line manager that he had a very serious and ongoing difficulty with the Complainant’s work performance and that her probation was being extended until April 2021.  He attended meetings with Complainant’s line manager and the Complainant in January, February and April 2021. These meetings were aimed at improving her performance and improving the Complainant and her line manager’s working relationship.

In the January 2021 meeting the Complainant’s line manager advised the Complainant of what the difficulties were. She was told that needed to use the App for collect the data on the ring buoy inspections. Her line manager explained precisely how a physical inspection of the ring buoys was done and how this was to be logged via the App. He explained that he would provide her with an advance calendar of where and when the inspections were to take place and that these would need to be conducted each day and logged. This involved photographing the ring buoys and confirming their fitness for use.

He said that the Complainant’s line manager later raised a concern with him that even when the App data (which she inputted) had shown that the inspection had been done, when he checked the ring buoy himself, the rope was knotted and would not unravel, so the data was unreliable. He said that the same photograph had been uploaded for multiple inspections. He said that during the summer months of 2021 the trust between the Complainant and her line manager broke down and never recovered.  He said that her line manager said that the inspections were not taking place and her excuses were multiple; that the App had tech issues (that no one else found to be the case), her paper records (that she said she needed to use because of the tech issues) had got wet and were not usable and guarding was prioritised over ring buoy inspections.

While Mr. McCarron said he did not have direct management of the Complainant after March 2021 he was made aware that after she came back from Covid sick leave in July 2021 that her workload was reduced, but even after that, her line manager told him that her work performance was inconsistent and poor.

Mr McCarron was informed around October- November 2021 that the Complainant’s line manager decided that, in light of these ongoing problems, which had not improved by when the season ended, a year after they had been identified to her, that she would not be recommended for permanent appointment.

He was informed that she was dismissed although he was not party to that decision.

The test that I have to apply in this case is,  was her dismissal actioned during the Complainant’s probation period or outside it? If it was actioned after her probation had ended, she has the benefit of the Unfair Dismissals Act 1977, as amended.

It was open to the Respondent prior to April 2021 not to offer her a permanent position but the Respondent did not do this.  

It is common case that the Complainant’s probation period ended and was not extended beyond April 2021. It is also common case that she was dismissed in November 2021.  The Respondent says she was dismissed because she did not satisfactorily pass her probation period. However that ended seven months earlier. In such circumstances, where the onus of proof is on the Respondent to justify a dismissal, and in circumstances that the Complainant was afforded none of the usual fair procedures about dismissal for poor work performance (right to know the evidence against her, right to be heard, right to be represented etc.)   I find that I have no option other than to find that the Complainant was unfairly dismissed.

I am satisfied, indeed there is no real contest to this, that when the Complainant was dismissed in November 2021, she had the protection of the Unfair Dismissals legislation and it was not open to the Respondent to dismiss the Complainant as if her probation was still extant, when it was not.

In these circumstances, I am satisfied that the Complainant was unfairly dismissed.

Contribution

Insofar as the Respondent has sought to contend that the award in respect of any unfair dismissal finding should reflect the fact that the Complainant’s poor performance contributed to her dismissal, the Respondent are at an evidential disadvantage given that the main critic of her work was the Complainant’s line manager has been on long term sick leave and was unable to give evidence at the Adjudication hearing.

While the Complainant’s representative did not object to the admission of the Complainant’s line managers emails in which her poor work performance are set out, the evidence of Mr. McCarron to contradict the Complainant relies on hearsay evidence (ie what the Complainant’s line manager told him as opposed to his experiencing the Complainant’s poor work performance directly) and as such it cannot be relied upon at this Adjudication hearing. As the employer is required to prove that her poor work performance contributed to her dismissal, that evidence, should be available to be cross examined, and it is not.

Mr. McCarron’s evidence was the only evidence relied on by the Respondent and he accepts that his dealings with the Complainant were limited to the meetings in January, February and April 2021, at which point, dismissing her prior to the end of her probation was significantly not a decision that was taken by the Respondent. Indeed, according to Mr. McCarron,  at the end of April 2021, the Respondent appeared to still be of the view that her work might improve and her relationship with her line manager might improve.

Thereafter Mr. McCarron did not evidence any direct dealings with the Complainant and he did not have any direct knowledge of what happened in the May-June-July-August-September-October period of the Complainant’s employment.

As the Complainant’s line manager was not available to be cross examined when assessing the defence of contribution by way of poor performance, I am confined to consider the evidence of the Mr. McCarron’s actual knowledge of her poor performance, as opposed to that which was reported to him.

It is the Complainant’s evidence that she did not accept the validity of any criticisms of her work in the period July (when she returned from sick leave) to October 2021 and the Respondent did not provide any evidence at the Adjudication hearing, other than hearsay evidence, to counter this.

The Complainant submits that when she signed the review form in November 2021, within which the criticism of her work is laid bare, this was not presented to her as a document that she was agreeing to the content of. It was presented as a document that reflected the opinion of her line manager, but she did not agree with his opinion. She says that she just wanted the meeting to end and did not think anything much turned on her signing the document. Again there is no Respondent evidence available to counter this.  

There being no direct evidence to counter the Complainant’s assertion that she contributed to her dismissal, I am unable to find that the Complainant contributed to the dismissal by her conduct.

Failure to Mitigate Loss

The Complainant seeks financial loss is the sum of €30 871.00

This arises from a loss of income between February 2022 until November 2022 minus part-time work that she did.  The Complainant stated that she got new work as an SNA which started in February 2023.

The Respondent contends that she was retraining to be an SNA from February- May 2022 and therefore was unable to mitigate her losses during this time, so all her loss cannot be said to arise as a result of her dismissal. The Respondent also contends that her attempts to look for work in 2022 evidence a total of nine job applications and the last attempt was in August 2022, which is not adequate proof of mitigation.

The Complainant responded that her SNA training was online, so she was free to work. She accepts that she only applied for nine posts but she contends that she was looking for a job that suited her and her family, one which would further her career and she was confined to the County of Donegal. 

The authorities on the duty to mitigate loss are clear. The obligation is to mitigate loss following a dismissal and that duty is an onerous one.

“A claimant who finds himself out of work should employee a reasonable amount of time each weekday in seeking work… The time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss”

Sheehan v. Continental Administration Co. Ltd (UD 858/1999)

For every day that the Complainant should have been employed by the Respondent, but should have been, other than she was dismissed, she should have provided evidence that work was sought by her. This is particularly so when the country in in near full employment and when there are work vacancies even in economically disadvantaged counties. I do not accept that no work existed other than the nine applications that the Complainant made. The obligation to mitigate loss is not merely confined to jobs within the parameters the Complainant applied, because these criteria are too circumscribed.

There is no evidence that the Complainant sought work after August 2022 so I discount any loss after that time.

I am also not satisfied that nine job applications that she made between December 2021 and August 2022 shows that the Complainant made every attempt to mitigate her loss that the authorities have held that she is obliged to.

I consider that the appropriate award to make with respect to this complaint is €10,000.00 This is calculated on the basis of the loss that she suffered between February 2022 and August 2022 minus her earnings during this time and then an applying a further discount to reflect the fact that her efforts to seek work were sub-optimal.

Award: €10,000.00

I find that the Complainant was unfairly dismissed.

I award the Complainant €10,000.00

Unfair Dismissal – after probation period had ended – contribution – failure to mitigate loss