Worker

Employer

Anonymised Parties

A worker

An employer

Representatives

  In person.

Mr Seamus Given , Solicitor: Arthur Cox

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts.

CA - 00054241

21/12/2022

The Complainant was employed by the Respondent from 8th June 2022 until 5th December 2022. The Complainant was employed as a Senior Consultant.

This complaint was received by the Workplace Relations Commission on 21st December 2022.

In complaints submitted to the Workplace Relations Commission under the Industrial Relations Acts, the Complainant is referred to as a worker and the Respondent is referred to as an employer.

I have removed or redacted all company and people names from my recommendation.

The worker contends that she was given the following reasons for failing her probationary period and being dismissed from employment:

1.      The worker was late for the meeting with one of her colleagues to which she answered:

It's my job to get there on time, so I always leave at 6:50 am. But that day, I got stuck in traffic, and if I had gotten off the bus to get a taxi, I wouldn't have been able to get to an internal meeting with (colleague named) on time. Instead, I told (line manager named) I would be 5 minutes late because I was stuck in traffic near Trinity. Added to my earlier explanation: (Line manager named) never appreciated me working early, reaching the office before 8:30 am, leaving after 5:25 pm, taking less than 30 minutes of lunch breaks, working more than 38 hours for weeks, asking me to work on the weekend, and coming regularly to the office. I accept that I have been late 2-3 times since starting with the employer, but it was not on purpose and was due to traffic.

2.      Is using Grammarly and has a grammatical error in the document. To which the worker replied:

"I have written multiple pages of content for the tender, and I accept that mistakes happen." There was only one paragraph marked as a grammatical error, which I copied from the search results. This relates to the xxxxxxx tender. I have completed writing content and asked the team for review, including you, but no one got a chance until it was due. I had to rework entire CVs and other formatting done by other members of the team while people were away for training. Added to my explanation: I have free Grammarly installed on my working laptop; that does not mean I am not good at English. English is my formal language, which I have been using for the past 20 years for school, college, and work. I have given interviews to (names redacted) in English; I do not use my native language to communicate with any of the clients or colleagues for business communication. If I am not good at English, then you would have raised this query at the beginning of my job with the employer.

3.      Background noise for one client call

On that Tuesday, I asked (line managers name redacted) if I could work from home; he said "No. Need people in office from now on. We are not making sales and having no one in office is sending the wrong message." This is exactly what he said. I took the very first bus after my scheduled meeting with(colleagues name redacted) . When I started traveling, I got a sudden invite, and that did not allow me to postpone the meeting. I mentioned on the call that I was traveling and asked if that was okay before continuing the call.

4.      Clients have given me negative feedback.

The worker explained or answered, "I have given 100% to the clients. I have received explicit feedback on the work from my team, which was good, whereas I asked (line managers name redacted) to specify the name of the client, and (line managers name redacted) mentioned that he cannot share the client's name. I am well aware that clients would not have returned to me to waste their time with training, consultation, or work if they could have used those hours for something else. I do not agree with this”. A follow-up question from me on this point: “I'd like to know if there was any negative feedback so I can improv”. (Line managers name redacted) did not have an answer for this question.

5.      The worker doesn't fit this role.

 I need an explanation as to why I am not qualified and why you hired me. I have a few logical points here and request that you please address them, as this is my time to give voice to my words.

1.      Why did (line managers name redacted) wait six months before telling me I wasn't doing well? In case of no performance or bad performance, why not have him raise concerns and warn me, guide, motivate, direct me, or highlight it in KPIs, weekly meetings, or HR objectives (which happened just once for me, after completing 3 months in the employment.

2.      There were weekly calls to see what I was working on and what I could work on; then why did (line managers name redacted) not say anything apart from listening to me and assigning work?

3.      I have completed all assigned tasks, and I have been told that HR will review the productivity for probation and appraisal, whereas I am doing the work as I have been told to do, and I always reach out whenever I do not have any work on the table. If (line managers name redacted) thinks I haven't taken any initiative, let me remind him that I've asked him for ownership and contribution on multiple tasks and been told I can only do what I've been given.

4.       For (potential client name redacted) I hope the employer wins this tender. I'm not here to cover up anyone's mistakes, and I'm not responsible if the employer  doesn't win this; that could be another reason for firing me—to blame it on me if the employer  loses and (line managers name redacted)  drags it out until the last minute after I repeatedly reminded him of missing content and a pricing chart. I have been strictly asked to just add CVs and case studies to the response document. When I finished adding CVs and case studies, I contacted him, and (line manager name redacted) advised me not to get distracted and to stay focused on adding this (CV and case study) information. I have been instructed not to look after formatting and writing content, as other colleagues were going to add content and (line manager name redacted) was going to do formatting. After no one provided information, I was eventually asked to write that on October 27. I was not well, and then I also had to work on weekends and extra hours to finish last-minute urgent tasks while keeping hold of clients' work as it was instructed by(line manager name redacted) that I should be looking after this tender only. (Line manager name redacted) stated that I messed up with grammar in those questions; I went over them with a colleague before sharing them with other members of the team. One member of the team commented on them, saying they were badly composed. I agreed with him and rewrote the sentences, but I disagreed with (line manager name redacted) because grammar was not an issue, and he humiliatedmeonacallbeforeheunderstoodwhat the other colleague haswrittenthere.Ievenobserveinappropriatespelling andgrammarin the line managers emails.Ihavecorrectedmanyoftheparagraphsintenderdocumentswrittenbyexperts, but (line managers name redacted) cannot fire himself or them for grammar mistakes, as the worker is responsible and accountable for everyone's mistakes. I have been told that I have to take up the work of the contractors as a KPI, and that is a major part of my role, and that's what I was doing: taking over the work from the contractor, whereas they already had assigned hours and some work they weren't ready to give up.

Well, the employer bought digital.ie., but no credit is given for thinking of who came up with this thought suddenly after (line manager name redacted) has managed this division for so long. The assigned work was 40% relevant to my experience, namely digital marketing, and 60% not, namely cold calling and tenders, even though I had never taken formal training on how to write tenders. There were internal trainings arranged by the business consulting department, and I have been kept out of these sessions, whereas those who were not working on the tender were sent to these trainings. I put all of my self-learned knowledge into writing the documents. I also noticed that this team was very diverse, not treated equally, and that people with disabilities were treated unfairly. When someone brought up a problem, they were told that if it didn't get in the way of work, it wasn't a problem, which made it sound like mental health is not important. This act of (line manager name redacted) was pre-planned to fire me as he asked me to leave, and when I came back to my place to download payslips, my all access has been gone. When that was my last day at work, it turned into my last few minutes. Hence, he was just getting work done and not attending HR objectives meetings with me for 3 months and not giving any feedback. I can list several incidences that are unfair to me. Now, what this decision is going to impact is: I am going to lose my visa and have to go back to my country because I chose the employer  and their values over other offers in the first place. I've been mentally challenged and harassed by my line manager  for a few weeks now. I have lost 18 months of my life and need to start from scratch as an international person. I will miss my stamp 4 because I chose this employer  and this employer doesn’t have work for their employees and didn't give a thought to job security before hiring them. I am just an experiment and a toy for the line manager to throw away when he feels it's a burden, whereas I was there when the line manager started assigning irrelevant work to my profile. I was a manager in my previous employment, and I joined this employer as a team member because it is a great value and culture company, which is not true in my experience. Stating that my line manager will pay me for December 22, I have 11+ months of leave with the company and have not been notified that I will be fired, which is not justified or acceptable. The line manager would have given me indications that I needed to look after my performance or work, but that did not happen, and (line manager name redacted) asked me to leave without thinking about the impact of his decision on my life. (Line manager name redacted) killed my emotions and support, and he finished my life.

The employer is the management and technology consultancy business who offer advice to Irish businesses and helping businesses grow in domestic and international markets in customers and revenue in an online space, employing approximately 60 people.

On 8 June 2022, the worker commenced employment with the employer as a Senior Consultant in the eCommerce division. Her role as Senior Consultant was to work directly with the Technology Partner and Director, Sales, Marketing and Delivery teams and external partners and advisors to implement and maintain a ‘best in class’ eCommerce experience for the Client’s customers. The worker was also responsible for being the primary point of contact for the Client's external eCommerce technical/development partner across all new projects A copy of the worker’s job description and contract of employment were made available at the hearing.

In relation to probation the workers contract states as follows:

“Your employment is full time, permanent and is subject to a probationary period of 6 months. The probationary period may be extended at the Firm’s discretion but will not be extended by any more than 5 months. During the probationary period, your employment may be terminated on 1 weeks’ notice or by the payment of 1 week’s salary in lieu of notice and shall be at the discretion of the Firm”.

Furthermore, the employer’s Probationary Policy was appended to the Contract, which sets out as follows:

“All new employees are required to satisfactorily complete a probationary period of a minimum of 6 months as per their contracts of employment. … During this period, performance on the job and potential abilities are evaluated to determine suitability for the position and the Firm. At the end of this probationary period, a formal performance review meeting will be held between the employee and his or her manager and if satisfactory, their position will be confirmed.  ..

During the probationary period, either party may terminate the contract by giving notice in writing as per their contract of employment. The Firm, at all times, reserves the right to pay an employee basic salary in lieu of notice, except in the case of summary dismissal outlined under the disciplinaryprocedure.”

The worker was fully aware that her employment was subject to the successful completion of a probationary period and that her employment could be terminated by the employer on probationary grounds.

On 30 August 2023, a Probationary Review meeting was held with the worker. At this meeting, issues with her performance were discussed with her line manager. The worker and her line manager reviewed and discussed the New Starter Objectives Form.

The employer determined that the worker was not able to deliver or perform at the level of a Senior Consultant. The worker’s employment was terminated on 5 December 2022 as she did not successfully pass her probationary period. As a gesture of goodwill, the worker was paid for the month of December. 

The employer’s decision to terminate the worker’s employment was based on her performance. The worker was not meeting expectations as a Senior Consultant and therefore, the employer decided to terminate her employment during probation.

RESPONDENT SUBMISSIONS

Probation is generally considered to be the period of time at the beginning of the employment relationship during which the employer assesses whether the employee is suitable for permanent employment.

Probation is an important period of time during which an employer can evaluate whether an employee is a good fit for their organisation and whether they are meeting the requirements of the role. It is a well-accepted principle that if the employment is not working out duration probation, the employer is entitled to terminate the employment. Fair procedures are necessary, and the employer has complied with same, however the elaborate investigation and disciplinary processes that generally apply to dismissal do not need to be carried out for dismissal during probation. As outlined above, the worker did not meet expectations.

By the worker’s own admission, a review took place “after completing 3 months with the employer”. This is in line with the employer’s Probation Policy and follows best practice when managing probationary periods. The worker received feedback from her line manager and was made aware at her review that there were issues with her performance. The worker also had a weekly one-on-one meeting with her line manager, at which issues and shortcomings in her performance were raised with her regularly.

There were several issues with the worker’s performance. Issues with her attention to detail were brought to her attention by her line manager, in the course of working on projects and tenders together. In addition, several issues with the worker’s communications were brought to her attention.

It is evident that the worker was not meeting expectations and was not a good fit for the employment, and therefore her employment was terminated. This was entirely just and reasonable considering the above issues. Her employment was terminated in accordance with her contract of employment and fair procedures.

THE WORKER’S COMPLAINT FORM

The worker raises several issues in her complaint form in relation to her dismissal, which are dealt with in detail below.

The worker was late to a meeting

The worker states as follows:

“It’s my job to get there on time, so I always leave at 6:50 am. But that day, I got stuck in traffic, and if I had gotten off the bus to get a taxi, I wouldn’t have been able to get to an internal meeting with (line manager) on time. Instead, I told (line manager) I would be 5 minutes late because I was stuck in traffic near Trinity. Added to my earlier explanation: (line manager) never appreciated me working early, reaching the office before 8:30 am, leaving after 5:25 pm, taking less than 30 minutes of lunch breaks, working more than 38 hours for weeks, asking me to work on the weekend, and coming regularly to the office. I accept that I have been late 2-3 times since starting with the employer, but it was not on purpose and was due to traffic.”

The employer contends that tardiness was one factor in relation to why the worker’s performance was not at the standard required. The employer submits that punctuality is a critical aspect of any job and being late to meetings can cause disruption and inconvenience to colleagues and clients. The employer submits that is reasonable to take account of a number of instances of an employee being late to work and consider this as one of a number of matters that demonstrates that the employee has not met reasonable expectations.

Messages in relation to the worker being late occurred on 9 August, 31 August, 5 October and 1 November 2022. Copies of correspondence in relation to this were made available.

The worker mentions early arrival and late departures occurring regularly. The employer does not accept the assertion that this was a frequent occurrence. Indeed, on several occasions her line manager, the Director of Technology Consulting, accommodated her working from home at short notice. Examples of such requests occurred on 16 June, 13 July, 27 September, 4 October and 19 October 2022. Copies of correspondence in relation to this were made available.

The worker was using Grammarly and had a grammatical error in a document

The worker states as follows:

“I explained or answered,” I have written multiple pages of content for the tender, and I accept that mistakes happen.” There was only one paragraph marked as a grammatical error, which I copied from the search results. This relates to the xxxxxxx tender. I have completed writing content and asked the team for review, including you, but no one got a chance until it was due. I had to rework entire CVs and other formatting done by other members of the team while people were away for training. Added to my explanation: I have free Grammarly installed on my working laptop; that does not mean I am not good at English. English is my formal language, which I have been using for the past 20 years for school, college, and work. I have given interviews to (names redacted) in English; I do not use my native language to communicate with any of the clients or colleagues for businesscommunication. If I am not good at English, then you would have raised this query at the beginning of my job with the employer.”

The employer contends that all employees must meet an acceptable standard of attention to detail in written communications. The worker made a grammatical error in an important document, which was a cause for concern for the employer as it reflects negatively on the employer’s professionalism and attention to detail. Furthermore, the worker was provided with ample opportunity to have her work reviewed by the team, including management, before the deadline and did not avail of this opportunity.

This issue brought to attention a potential area of concern and the line manager suggested tools to help the worker such as Quill Bot and Grammarly, to ensure that she had the necessary resources and support to improve her writing skills and attention to detail.

The employer expects all employees to take ownership of their professional development and to work diligently to improve their performance when issues arise. This was an incident that demonstrated a lack of attention to detail and professionalism on the worker’s behalf for a very important document for the employer.

Background Noise on a Client Call

The worker states as follows:

“On that Tuesday, I asked (name redacted) if I could work from home; you said “No. Need people in office from now on. We are not making sales and having no one in office is sending the wrong message. “This is exactly what (name redacted) said. I took the very first bus after my scheduled meeting with (name redacted). When I started traveling, I got a sudden invite, and that did not allow me to postpone the meeting. I mentioned on the call that I was traveling and asked if that was okay before continuing the call”.

A copy of the correspondence on 8 November 2022was made available. The worker requested to work from home at 6.28am that morning, which the employer contends is not adequate notice.

Under the employer’s Remote Working Policy, (a copy of which was made available), remote working arrangements should be made in agreement with the line manager/ or Partner so it is clearly within the employer’s discretion to decide there is a business need for employees to be in the office.

At this period of time, the employer made a decision that there was a need for the Senior Consultants to be in the office to address issues such as low sales, disjointed communication between team members and to create a more conducive working environment.

Prior to this, remote working requests had been facilitated on several occasions however, as a decision had been made that team members, including the worker must attend work in person due the above issues, it was not facilitated on this occasion.

The worker did not inform her line manager that she was travelling during the call in question, which represented a lack of judgment on her part. It was not acceptable to have unprofessional noise and disruption on a client call and BDO expects employees to take reasonable steps to arrange a suitable, private location to take a calls from, or inform their manager so that a call could be rescheduled.

Client Feedback

The worker queried why the identity of a client who gave confidential, negative feedback on her performance was not disclosed to her. From the employer’s perspective, it is important to prioritise client confidentiality and respect their privacy. The client feedback was received on a confidential basis. While it is understandable to seek feedback for improvement, it was not appropriate to compromise the trust and confidentiality of any client. The employer chose to give the worker constructive feedback to assist with her future development without revealing the identity of the clients in question.

Feedback from her line manager

The worker states as follows:

“Why did (name redacted) wait six months before telling me I wasn’t doing well? In case of no performance or bad performance, why not have (name redacted) raise concerns and warn me, guide, motivate, direct me, or highlight it in KPIs, weekly meetings, or HR objectives (which happened just once for me, after completing 3 months in the employment)?”

The employer rejects the assertion that they waited 6 months to alert the worker to her performance issues. The worker states herself that a review took place after 3 months and in addition, her line manager had weekly one-on-one meetings with her regarding where performance issues were addressed, and her line manager provided feedback to her during the probation period at these meetings.

Frequent calls and meetings were conducted to keep track of the worker’s progress and to assign tasks. It was the worker’s responsibility to seek clarification or guidance if she was unsure on any tasks. The worker’s lack of initiative was a concern, and the worker did not demonstrate taking ownership of work and being a proactive team member.

Diversity and Inclusion

The worker states as follows:

“I also noticed that this team was very diverse, not treated equally, and that people with disabilities were treated unfairly. When someone brought up a problem, they were told that if it didn’t get in the way of work, it wasn’t a problem, which made it sound like mental health is not important.”

The employer take Diversity and Inclusion very seriously and entirely reject the above assertion. The worker makes baseless accusations in relation to equality of treatment, however she provides no specific examples or evidence to support such claims.

Furthermore, there are several instances where the worker was unwell or had personal issues, which her line manager fully accommodated and supported her with. On 29 June 2022, when the worker was unwell with a headache, (name redacted) corresponded over Teams with the worker

There are further examples of (name redacted) ensuring that the worker took appropriate time off when unwell on 8 September, 11 October and on 3 November 2022. It is therefore untrue for the worker to allege she was not adequately supported if she raised a problem.

It should be noted that the worker never raised a grievance or a complaint under the employer’s Grievance Policy in relation to any alleged discrimination that she experienced or witnessed during her employment.

 In relation to the allegations the worker raises in relation to mental health, the employer is committed to ensuring a safe place or work and supporting employees experiencing any difficulties with their mental health. The employer has an Employee Assistance Programme that provides confidential counselling services to employees who may be experiencing mental health issues or personal problems. In addition, the employer has a Mental Health Awareness Programme that provides training and resources to help employees manage their mental health and promote a positive work environment. The employer strives to create a supportive and inclusive environment and line managers frequently check in with employees to assess their workload.

Termination and Removal of Access

The worker states as follows:

“This act of (name redacted) was pre-planned to fire me as he asked me to leave, and when I came back to my place to download payslips, my all access has been gone. When that was my last day at work, it turned into my last few minutes.”

Firstly, the removal of access from systems once an employee is leaving is standard practice in the employment and in most organisations.

Secondly, the decision to terminate the employment of anyone at the employment is never taken lightly and it is always based on the employee’s performance and adherence to the employer’s Policies and values. The worker’s probationary dismissal was entirely based on objective criteria and not meeting the standards required from the employer.

CONCLUSION

The employer submits that it acted reasonably in all the circumstances in choosing to dismiss the worker where they had concluded she was not meeting the standards required, based on objective criteria, and following a review and frequent feedback from her line manager.

The employer carried out a probationary review at 3 months and held frequent meetings with the worker, where she was given feedback on her performance.

The employer submits that probationary periods are designed to assess an employee’s suitability for the role and following on from this, there is a right to terminate the employment if the employee is not meeting expectations.

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

Many employers believe, wrongly, that they can easily dismiss an employee once they are still within the probationary period.

Employees on probation are entitled to natural justice and fundamentally fair procedures. While the employee may not have the necessary service to avail of the protection of the Unfair Dismissals Acts 1977 – 2007, a claim can be made under the Industrial Relations Act, 1969 (as amended) for unfair dismissal. There is no service qualifications under this Act. The employee in the instant case has done exactly that.

A probationary employee should be treated fairly and although he / she is not entitled to know why they are being let go, good practice suggests that where appropriate, the employer should so advise him and afford him/her the opportunity to put forward any evidence he / she can in their own defence.

The function of the Workplace Relations Commission: The Band of Reasonable Responses Test.

The Workplace Relations Commission (or the Labour Court on appeal) must not assume the mantle of an employer regarding the facts in any case before it. Its function is to decide whether, within the so-called band of reasonableness of decision-making, an employer’s decision is not unfair. The notion of a band of reasonableness was first endorsed by the Court of Appeal in British Leyland UK Ltd. v Swift [1981] IRLR91. The Court found that there is a band of reasonableness within which one employer might reasonably dismiss an employee whilst another would quite reasonably keep him on. It depends entirely on the circumstances of the case whether dismissal is one of the penalties which a reasonable employer would have dismissed, but it is not unfair if a reasonable employer might reasonably have dismissed.

In the judgement of the Circuit Court in Allied Irish Banks plc v Purcell [2012] ELR 189, Judge Linnane expressly approved the British Leyland test and she went on to state:

‘It is clear that it is not for the EAT or this court to ask whether it would dismiss in the circumstances or substitute our view but ask was it reasonably open to the respondent to make the decision it made rather than necessarily the one the EAT or the court would have taken’

(Reference to the EAT should now be read as WRC (Workplace Relations Commission)

In coming to a conclusion on this complaint I believe that substantively the decision to dismiss does fall within a band of reasonableness however the procedures adopted by the employer are extremely flawed for the following reasons:

1.      The worker was not made aware of the purpose of the meeting on 5th December 2022. She may have been totally aware that she was going to a probationary review but she was not aware that the outcome of such a review could be her dismissal.

2.      I do not believe she was offered the right to be accompanied at such a meeting.

3.      The decision to dismiss had been made prior to the meeting. Nothing said by the worker at this meeting in her defence was considered.

4.      The worker was handed a dismissal letter at the meeting.

5.      The member of the employer’s HR team attending the meeting agreed with the Adjudication Officer that the process was unfair.

I find that the complaint is well founded, the worker was unfairly dismissed and I now recommend that the employer pay compensation  to the worker of €14,375.00.

This sum should be paid within 42 days from the date of this decision.

Industrial Relations Acts. Dismissal during probationary period.