Worker

Employer

Anonymised Parties

Employee

Employer

Representatives

  Self

 Self

Act

Dispute Reference No.

Date of Receipt

Industrial Relations Act 1969

CA-000566674

15/05/23

This is a dispute concerned with the termination of the employment of the employee before the completion of his probation.

The employee was employed in a technical advisory capacity commencing on 9 January 2023 after which he was provided with training. There was a contract of employment and he received a staff handbook which contained the policy regarding those on probation. On 21 April 2023 he attended what he understood was to be a PMDS meeting at which he was informed that his employment was to be terminated. He received two weeks pay in lieu of notice. The monthly gross pay was €1647.80.

Both parties provided helpful written submissions in advance of the hearing.

The employee has over 35 years’ experience in the UK in the same area of business as the employer as an adviser and also as a manager. He had not expected to be working in that area again when he saw the ad from the employer and was successful at interview. The employment commenced with a six-month probationary period on January 9th 2023. He described his relationship with the manager as a cordial one. There were no complaints about the quality his work performance, that it was not to an acceptable standard other than a reference to his not understanding the ethos of the organisation and the client base and the differences in the approaches of the similar organisation/s in the UK. He was given the impression he was doing well. He was unaware of documents with comments about case reviews until he received the papers for the hearing.  He does not recall any formal meetings on most of the dates given by the employer for such meetings, there were discussions every day in the office which were difficult to categorise as meetings as such. He has dates for only two case review meetings in his dairy.  His dismissal came as a complete surprise. A formal written process prior to the dismissal was completely absent. He would disagree with almost all aspects of the account given by the employer regarding the meetings or events and work performance particularly any issue with his lack of understanding of the ethos of the organisation; that it is markedly different from the similar organisations in the UK or that he would have any difficulty dealing with the culture in Ireland or Irish people or people in the locality of the employment. The only notice he received of any possible issue with his probation was an email of April 4th, 2023, from the manager which reminded him that he was still on probation and that his engagement in certain processes was required. On 13 April he replied to that email explaining that any mistakes were due to the learning period and assuring the manager of his commitment and support to her and engagement with the processes within the business. There was no reply. He and no prior notice that the regional manager would be at the meeting on 21 April, that his position was considered by the Board at a meeting on April 17th or that both meetings were or were to be about the termination of his employment. The advice provided by the HR advisers would have been more fair but was not followed. He referred to S.I.146/2000. In his view there were three reasons for his dismissal:

I An internal candidate who did not secure the role he applied for

ii The manager felt uncomfortable having him on the staff because of his extensive prior experience

iii His nationality.

The employees conduct and capabilities were assessed on an ongoing basis during his probationary period. Throughout his employment there was pushback from the employee against directions from his manager; he struggled to adopt the ethos of the organisation regarding the nature of the advice to be given. He seemed to think that the UK structure that he worked under previously didn’t really differ from the one in Ireland whereas there are some fundamental differences between the two. The manager felt she was being challenged on an ongoing basis. Paperwork which she requested and required was not completed, another adviser’s work was criticised. Having reviewed the situation including issues around the work environment in the office, the organisation took the view that he was not an appropriate fit for the organisation. As the employee was on his probation and in line with the staff handbook, the employer was not required to follow its own procedures which apply to a normal employment relationship. Details of various date markers including meetings which took place between January and early April 2023 were set out with the date of the first formal meeting taking place on 9 February 2023. The manager took HR advice commencing on 8 February 2023. The ongoing difficulties being experienced by the manager were discussed for 45 minutes at a scheduled Board meeting on April 17th where it was decided that the best course of action would be the termination of the employment. As it was known that the employee was expecting a PMDS meeting on April 21sta, and not a dismissal, the Board decided that the employee should receive two weeks pay in lieu of notice, an additional week over the terms of his contract.

That the employee was dismissed due his nationality or a wish to appoint another person to the post is denied. The manager in the employment has many years of experience in her role.

As indicated to the parties to the dispute, the success or failure of an employee during a probationary period is a matter for the employer to decide i.e., whether the person is a fit or for the organisation or not, is something for the employer to determine and it is not something that an Adjudication Officer can or should decide. The termination of employment during a probationary period does not require the employer to succeed at the various tests that would apply once an employee’s tenure is regularised. I will add here that form time to time the tests in these situations which decide the fate of the employee are subjective, around feelings or instincts resulting from interactions in the workplace and the reactions of a manager or even other workers. There is a distinct element of these factors in this case. As also advised to the parties, no employer can be expected to run the full gamut of procedures during a probationary period as they apply to employees who have been made ‘permanent’. However, it is well established by reason of Labour Court Recommendations that a standard of fairness is applied to test the manner in which the employer acted during the probationary period and particularly how they went about terminating the employment. The principal in S.I.146 requires that there is a fair process, that the employee has a voice and the option of support at the meeting where the termination of the employment is to be considered and probably decided. In this case the employer did not hold any structured probationary review meetings, gave the employee a wholly inadequate indication that his employment was in jeopardy(email of 04.04.23);failed to respond to his pleadings in response to that email; failed to provide him with at least one key document containing criticisms of his work;  held a meeting at the highest level within the employment where he had no voice and, based on the report of one person albeit the manager, that body decided to dismiss him. Finally, the dismissal meeting convened and notified as a PMDS meeting was converted into a fait accompli meeting without any notice or offer of support at that meeting. As the employee pointed out, the earlier advice of the HR Consultants was ignored.

Noting the entirely different perspectives on the facts and the ability or otherwise to deliver on the ethos of the organisation, it is a great pity that the employee did not have the opportunity to have his voice heard before a decision was taken by the Board. I can see from the accounts given at the hearing and the various documents, that there was at the very least, a gap in mutual understanding. The correspondence from the manager seeking HR advice does indicate that within a few weeks she was dissatisfied with the employee on various grounds most of which appear to have been what might be terms problems with his attitude. However, allowing the employee a full opportunity to respond and to take concerns on board from an open discussion is surely the point of formal probationary reviews. That this was a devastating experience for the employee  is accepted, compounded by the manner in which it occurred. The employer should note my concern that when describing a person’s flaws by reference to a different culture or ethos, even if where that observation is ‘system’ related, is sailing very close to the wind of prejudice and bias.

An imperfect relationship was ended imperfectly by the employer. The employee lost his job and now the employer should pay some compensation as much as anything to encourage them to review their probationary systems and procedures in an otherwise commendable suite of employee relation policies and to ensure that their managers are trained accordingly. The amount to be paid reflects the relatively short duration of the employment relationship together with the payment of an additional weeks pay in lieu of notice.

Dismissal/probation