Worker

Employer

Anonymised Parties

A Manager

A Research Foundation

Representatives

Self-Represented

Eamonn Gibney HR Dept

Act

Dispute Reference No.

Date of Receipt

Industrial Relations Act,1969

CA-00054154

15/12/2022

The Worker was the Manager of a Research Foundation. The employment began on the 27th of June 2022 and ended on the 20th December 2022.

The rate of pay was €4,583 per month for a 37.5-hour week.

The Worker gave a lengthy Oral Testimony supported by a Written Submission. She was claiming Unfair Dismissal under the Industrial Relations Act,1969 as she did not have the requisite service (12 months) under the Unfair Dismissals Act ,1977.

Her case was essentially that she had been employed as a Manager with a brief to develop and put in place good management structures to help the Organisation prosper into the future.

In this capacity she had attempted to make a number of changes and innovations but had been steadfastly resisted by a staff member, Ms X. This staff member was of long standing and effectively was a complete “law unto herself.”  She was rude and abusive to senior Board members and pointedly refused to take any instructions from the Worker here.  Ms X placed a number of quite abusive large print, messages on the public reception area, which were quite clearly directed at the Worker here.

The Board of the Organisation, the Chairperson, Mr Y, in particular, were not in any way supportive of the Worker. At the Probation review on the 3rd November 2022, she was effectively accused of not being able to maintain good relationships with colleagues. This was a complete travesty as the main colleague, the protagonist Ms X, appeared to be able to have a free hand irrespective of any normal managerial practices.

The Worker felt that she had been made a scapegoat for issues not of her making and was left completely without any support.

Her Dismissal was completely Unfair.

The Employer was represented by Mr G, a Consultant HR practitioner. He made an Oral testimony supported by a Written submission.

It was accepted that the Worker was dismissed as her Probation period was deemed unsuccessful.

“due to concerns around her inability to get on with other long-standing members of the team”.  The concerns were around “interpersonal issues”

The Employer cited examples of difficulties that the Worker was having with existing staff. As a HR professional she should have been able to successfully resolve these issues and encourage a good working environment. The opposite had turned out to be the case. In a Probation Review the Employer had come to the view that the Worker was not suitable for the Organisation. Sometimes appointments do not work out as expected and this was one such case.

The Employer sought to rely heavily on the “Probation dismissal” avenue which they maintained was underwritten by the Appeal Court O’Donovan V Over -C Technology case [2021] IECA 37.

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

3:1       Review of Evidence

In the Oral testimony fromthe Worker, she described a very difficult situation with Ms X.  Pictures were presented of Notices put up by, it was admitted, Ms X, that stated “No Irish need apply” and one encouraging Women to be “Aggressive, difficult and Complicated”.

The Worker was not Legally, or Trade Union represented. In a Legal/Union representational situation the posters (copies given in evidence) would easily have formed the basis for much more serious Legal challenge for the Employer than an Industrial Relations Act,1969 dispute.

The O’Donovan v Over- C O’Donovan V Over -C Technology case [2021] IECA 37 was central to the Employer defence. Effectively they were maintaining that a Dismissal during Probation was acceptable, and no great reasoning or justification was required.

However careful reading of the Appeal Court case indicted that it is not a blanket carte blanche to allow an Employer hire and fire at will during a Probation Period. SI 146 of 2000, the Statutory code of Practice on Grievance and Disciplinary Procedures would go further and emphasise the need for complete and fair procedures, irrespective of Probation status.

The first obvious caveat is that if there is any suggestion or allegations of employee misconduct, for example misappropriation of funds, then the full rules of Natural Justice apply.

Ms Justice Costello did clearly state that an employee can be dismissed during a Probationary period for effectively a genuine inability, even with the best will in the world, to do the basic requirements of a position. In this situation, unlike where serious misconduct is involved, procedures can be fairly “Light” and strict Natural Justice rules do not necessarily have to be followed to the letter.

However, in any situation there are two parties involved, the Employer and the Employee. Both Parties have to behave to certain acceptable standards. The onus is not exclusively on the Worker.

The Worker’s Oral testimony as already stated above indicated extensive difficulties with Ms X. It appeared that Ms X had a virtual fee reign to do as she pleased both in physical actions and in verbal exchanges with Board members. Responses that the behaviours of Ms X were “simply her way” were unusual.  The Investigation report by the “HR Dep” makes surprising reading to say the least.

The Probation review meeting of the 3rd November 2022 was also interesting reading. It appeared that a lot of time was devoted to the activities of Ms X and how the Worker was handling them.

The Worker was then Dismissed for “inability to get on” effectively with Ms X as per the Oral Testimony.

This Dispute has been referred under the Industrial Relations Act,1969 and a Recommendation must normally follow.

From an Adjudication viewpoint and drawing on the considerable Industrial Relations and HR Management experience of the Adjudication Officer it would appear that the Worker was recruited to basically modernise the Operation and introduce efficiencies. In this context she ran into considerable opposition, bordering on the downright abusive, from one member of staff.

The “No Irish need Apply” posters which the other staff member admitted to posting and the knowledge that the Worker here was the only non-Irish person on the administrative staff was, to be generously diplomatic, bizarre. It should have prompted an immediate Senior Board Level Management response in support of the Worker with the full weight of the disciplinary procedures being considered.

The Probation meeting of the 3rd November 2022, full details of which were provided, seemed to find fault with the Worker for failing to handle this other Staff member Ms X.

In plain English the Board and Senior Management appeared to have had a real staff issue with Ms X. To be clear she was not represented at the Hearing and the Adjudicator could only rely on oral, basically Hearsay evidence and written reports of meetings.

Nonetheless, Management and the Board by failing to properly support the Worker in this case as she attempted to tackle the situation can only have made the situation worse.

HR Managers need the open support of the Senior Managers in difficult situations, and this appeared, from all the oral evidence, to be questionable.

If the Worker had Legal representation the prospects facing the Employer could be considerable.

3:2       Summary

The Failing Probation defence is not an adequate response in the context of this case.

In this context and having read the written materials and hear the Oral testimony the Failing Probation Dismissal of the Worker can only be seen as Unfair.

Unfair Dismissal, Probation Periods.