Worker

Employer

Anonymised Parties

HGV Driver

Haulage Contractor

Representatives

Marius Marosan

William Wall -  Peninsula

Act

Dispute Reference No.

Date of Receipt

Dispute  seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

IR - SC - 00001273

12/04/2023

The Worker commenced employment on probation as a HGV driver with the Employer on 19 December 2022 and his employment was terminated on 13 February 2023. The Worker was paid €16 per hour on a full-time basis. He  was dismissed by his  employer for a stated reason of not having a satisfactory probation period. He submits he  was never subjected to any review meeting, nor was he  given the opportunity to rectify or improve his  work. He further  claims that the Employer did not abide by the required disciplinary procedures,  thus rendering his dismissal unfair.   

The Employer submits that serious performance issues arose with the Worker and that he was given the opportunity to improve but did not do so. The Employer submits that it terminated the Worker’s contract lawfully in line with its probation policy  and therefore no question of unfair dismissal arises.

The Worker gave an account of how he felt that he had performed his duties carefully and well. He accepted that it was taking him three hours to unload goods but that he was gradually reducing that to the normal one and a half hours. He stated that  although he acknowledged that he was approached about upping his performance, he was not given the opportunity to do so. The Worker said he was shocked to see the letter of dismissal but intended to appeal the decision. He did not attend the appeal hearing because the Employer would not allow his external representative to attend.

The Worker argues that the wording in  his termination of contract letter suggests that he was being dismissed for disciplinary reasons, however none of the provisions of S.I 146 of 2000 were adhered to by the Employer therefore the non-compliance with the code of practice  made the dismissal automatically unfair  

The Employer gave instances of sub-standard performance which included being late of a morning for delivery of goods to a customer which led to friction developing between the Employer and the customer. The Employer reported that the unloading of goods by the Worker  from the truck was taking three hours rather than the normal one and a half hours. This matter was brought to the attention of the Worker by the Operations Manager but there was no discernible improvement. This hold-up then had a knock-on effect in that it delayed all other drivers by one and a half hours.   

Upon informing the Worker  of the decision to dismiss, the Worker informed the Employer that he wished to appeal the decision.  The Worker  was informed by email of the date of his appeal hearing, where he failed to attend. The Worker emailed the Employer following the hearing to advise that he could not attend.  The appeal hearing was heard in absentia and his appeal was dismissed. 

The Employer referred to the Employees’ Handbook where it refers to the probationary period as follows: “During this period your work performance and general suitability will be assessed and, if it is satisfactory, your employment will continue. However, if your work performance is not up to the required standard or you are considered to be generally unsuitable, we may either take remedial action or terminate your employment, without recourse to the disciplinary procedure”.

The Employer submits that it addressed the issues of concern with the Worker  regarding his  continued failure on fundamental performance issues and argues that it has not acted unlawfully in dismissing the Employee.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties. I am satisfied, after hearing submissions from both parties, that the Worker had serious performance issues and that these were brought to his attention by the Employer. The Worker stated that he was not given the opportunity to improve but I was not convinced  by his argument since he was made aware at training in December 2022 of the required unloading techniques and should have been aware of his own shortcomings, without any  intervention by management.  I am satisfied that the unloading time of his truck was twice that of the other workers on a number of occasions, and that this had a knock-on effect for the employer’s business. An employer is free to terminate an employee’s employment for no reason during probation and, even where it relates to poor performance, the employer is not obliged to observe fair procedure but where the termination is for misconduct, fair procedures must be observed.

The Worker in this case submits  that the initial paragraph of the letter of termination of employment suggests that he was to be subject to disciplinary procedures and that this necessitated the application of S.I. 146 of 2000.  However, any reasonable reading of the letter suggest that this paragraph refers to the variation of disciplinary  procedures due to his short service and there is no reference in the letter to misconduct of any kind,  rather the whole complexion  of the letter refers to the unsuitability of the  Worker for the role. Therefore, I am satisfied that the dismissal of the Worker was within the terms of his contract of employment as it related to performance only and there was no obligation on the Employer to observe fair procedures, notwithstanding the fact that the Employer facilitated an appeal.

Industrial Relations Act 1969, Unfair Dismissal, Probation.