Worker

Employer

Anonymised Parties

A Worker

An Employer

Representatives

Self-Represented

Mr Niall Devitt

Mason Hayes & Curran LLP

Act

Dispute Reference No.

Date of Receipt

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

CA-00063248-001

01/05/2024

This matter came before the WRC dated 01/05/2024 as a complaint seeking adjudication by the WRC under section 13 of the Industrial Relations Act, 1969.

The specific complaint falls under Unfair Dismissal.   The Worker claims she was unfairly dismissed, and she does not have at least 12 months service.  The aforesaid dispute was referred to me for investigation.  A hearing for that purpose was scheduled to take place on 28/11/2024. 

The background to this dispute relates to a dismissal during a probationary period. 

The Worker was employed as a BizOps Engineer on an annual salary of €60,000.00 gross and the potential to earn a 7% bonus.  The Employer is a technology company. 

Both parties provided helpful written submissions in advance of hearing for which I am grateful.

The Worker submits the Employer terminated her employment stating reasons related to performance and behaviour.  The Worker submits her position in the Employer company was that of a remote worker and this is the position for which she was hired, and she could not understand it when they started asking her to attend at the office.   

The Worker submits she did not know that her work was not up to the required standard.  The Worker submits she accepted the follow up emails from her line manager issued by him after the probationary review meetings and she did not take issue or correct what she now states is incorrect information contained in those emails and not reflective of her performance.  The Worker made reference to the onerous nature of the amount of on-call allocated to her and she submits that while undertaking on-call it is not possible to work on other tasks. 

The Worker in her written submission submits the expectations set by her line manager at the probationary review meeting on 08 April were not shared earlier during the initial 5 months of probation.  The Worker in her written submission submits there were no such specific targets or metrics communicated since the start of her employment.  The Worker submits there was never a specific onboarding plan shared by her manager outlining the expectations for the 6 months of probation.  The Worker in her written submission submits there was no feedback in the 1:1 meetings with her manager that her performance was below expectations and she further submits her manager did not even mention about possibility of termination due to performance or behaviour related issues when she texted him regarding approval for annual leave on 23 April. 

At hearing the Worker submitted she had no clue that her performance was not reaching the required standard.   The Worker was requested to start attending the office in line with the hybrid working model implemented by her Employer, but she was living in Wexford and as she suffers from motion sickness she submits she was unable to take the bus.  The Worker submits that when attendance at the office was first brought up with her, she was provided with an extension to work remotely and that when that extension expired she continued to work remotely and she still did not attend the office.     

The Worker submits that if she had been given two more weeks before the termination of her employment, she would have been able to complete everything.  The Worker in her written submission submits she was impacted financially and personally (medical reasons) due to the termination and would expect a fair amount of compensation. 

The Worker in her written submission submits that her line manager had joined the company in December of 2023 and further submits that he was probably still under the standard 6-month probation / onboarding phase when he took the decision on her failure to pass the probation period. 

The Employer submits the Worker was not unfairly dismissed but was instead dismissed pursuant to a probation clause set out in her contract of employment due to performance issues.

The Worker’s employment was subject to a 6-month probation period, with her contract providing at Article 2 that her employment could be terminated at “one week’s notice given in writing by the Employer at any time during or at the end of the probationary period.”

The Employer submits that when the Worker joined the Employer a copy of the New Joiner Onboarding Spreadsheet was given to her.  This shows that extensive onboarding was received by the Worker including, but not limited to:

· A welcome conversation with her manager explaining about orientation, working timings and setting expectations in week 1.

· A dedicated ‘Tech buddy’ to assist with any technology-related problems encountered.

· Extensive training videos with weekly scheduled Q&A sessions with the Worker’s assigned Tech buddy to resolve any questions or doubts.

· Shadowing a team member on-call for a week to understand how on-call issues are handled.

The New Joiner Onboarding Spreadsheet sets out various milestones the Worker was expected to achieve on a weekly basis during the first 12 weeks with the Employer company.

The Worker failed to complete the minimum of 8 story points expected of a BizOps II Engineer. The Worker contends that she was not assigned any Work Orders until the end of her employment.  It is submitted that this is a misleading representation.  Work Orders are not assigned by management. There was a squad call every morning, and the Project Manager outlined the work that needed to be done and asked people to put their hand up for the tasks.  The Worker failed to put herself forward for work and this was highlighted to her as an issue on several occasions.

The Worker submits that she completed two weeks of on-call in April which is above the standard one-week expected by team members.  The Employer’s rota only accounts for one week of on-call. In any event, on-call runs from 11am-5pm leaving adequate time in the morning to cover additional work orders or story points required from team members.

During the 1-2-1 meetings between the Worker and her line manager, repeated concerns were raised about the Worker’s progress.  During a meeting on 7 February 2024, the Worker was requested to start coming into the office more.   She agreed that she would, but this did not transpire.  She was also asked to “ramp up work”.   During a meeting on 6 March 2024, the Worker was again asked to attend the office.  The Worker stated that she could not as she was suffering from travel sickness.  At a 1-2-1 meeting on 3 April 2024, her line manager again requested that the Worker attend the office.  This did not materialise.  It is understood that the Worker moved to Wexford around this time.

A meeting was scheduled on 7 March 2024 between the Worker and her line manager to give the Worker feedback on onboarding to date.  It was made clear to the Worker that there were areas of concern.  In particular, her line manager explained to the Worker that she was not accepting jobs to the level that was expected by a squad member.  During a meeting between the Worker and her line manager on 8 April, her line manager expressed serious concerns regarding the Worker’s progress.

In a follow-up email to the Worker, her line manager set out “some clear objectives to assess progress on as we approach to the end of you probation period.”  

The Employer submits the Worker was provided with clear, measurable and objective targets to meet during the remainder of her probation.  These targets were not unachievable or unrealistic.  These goals were not shared at an earlier date as the Worker was the first team member not performing at an adequate level.  Therefore, her manager made an assessment of minimum requirements in order to provide an objective understanding of where her performance was not up to par.  These were prepared with direct reference to the Worker’s performance so as to provide achievable goals.  They were not based on a wider team minimum and were specific to the Worker. It was clear that if the targets were not met, that the Worker would not pass her probation.

The Worker’s line manager and the Director People Business Partners met with the Worker on 1 May 2024 to discuss their concerns regarding the continued low contribution rate and lack of participation rate of the Worker in relation to key activities to her role, particularly in relation to story point and work order metric being below what would be expected for this role.  The Worker had been previously advised of these performance issues in her 1-2-1 meetings with her line manager and in the email from her line manager to the Worker on 8 April 2024.

It is submitted that the Worker was afforded adequate fair procedures during the management of her performance issues and during the dismissal process.  The Worker attended a review meeting on 8 April 2024.   At this meeting, the Worker was made aware of the Employer’s concerns with her performance and was given an opportunity by her line manager to respond.  She was provided with clear and objective expectations for the remainder of her probationary period which she did not meet.  It was made clear to the Worker that these were important targets for her to meet order for her to pass her probationary period successfully.

The Worker’s work performance, as assessed by her manager was not of the required standard.  This was communicated to the Worker in real-time and at 1-2-1 meetings.  She was also provided with specific, measurable targets to meet which she failed to do.

Following the Worker’s continued failure to improve her work performance to the requisite standard, the Employer was entitled, as the Worker’s employer, to take action to address issues with her work performance.  The Worker was informed that she had not been successful in her probation period and was terminated in accordance with the provisions agreed to in her contract of employment. 

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.   Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the dispute and in fulfilment of my duties under statute. 

It was apparent at hearing that there was at the very least a gap of mutual understanding on certain matters in regard to the employment relationship.   The Worker and the Employer were provided with the opportunity to share information on the manner in which events unfolded throughout the tenure of that relationship. 

At the outset I note the significant gap in the mutual understanding on the matter of the Worker’s physical work location on which I sought clarity at the commencement of hearing.  The Worker is adamant that the job for which she was interviewed and subsequently hired was a remote working job.  The Employer is equally adamant to the contrary and substantiates this assertion by submitting that they use specific contracts for those hired for fully remote positions and the Worker’s contract in the instant case is not such a contract. 

I note the contract of employment between the parties provides as follows at Article 1.4:

“The workplace is established at [redacted].  The Employee recognises and accepts that this location is not an essential element of this contract.   Consequently, at any time, when the Employer's operating requirement or economic circumstances justify this, the Employee may be temporarily or permanently transferred to any other location in Ireland and, in addition to such services in Ireland, the Employee may be required to carry out temporary assignments in other countries.”

I note the Worker worked remotely initially from date of commencement on 07/11/2023 until such time as she was requested to attend at the office for the first time during her second probation review meeting on 07/02/2024.  The Employer submits this request was in line with the hybrid working arrangements implemented by the company in early 2024.   I note this matter was raised with her again during the Worker’s third probation review meeting a month later on 06/03/2024 as the Worker had yet to attend the office.  On inquiry at hearing the Worker submits she was given a 30-day extension to continue to work remotely. 

I note the Worker was again requested to attend the office at her fourth probation review meeting on 03/04/2024 as she still had not attended the office by this time.  On inquiry the Worker submitted she was then living in Wexford and as she suffers from travel sickness she was unable to take the bus to Dublin. 

I find this whole situation to be quite bizarre.  I note there appeared to be no formal communication to the Worker about the requirement that she attend at the office in line with her contract of employment.  At the very least I would have expected a letter to issue to the Worker after the matter was first raised on 07/02/2024 setting out to her that she had been granted a 30-day extension to work remotely and that her attendance was expected thereafter in line with the applicable hybrid arrangements.   

I am of the view the communication deficit in respect of this matter is symptomatic of a wide range of communication deficits prevalent throughout the duration of this employment relationship which commenced from the beginning as evidenced by the apparent lack of understanding on the part of the Worker as to her work location and as to the type of contract she had signed.  I find from my careful consideration of the submissions and of the information shared at hearing that this was a communication deficit that continued up to the date of termination of the Worker’s employment. 

Probation 

It is generally understood that the purpose of a probationary period at the commencement of employment is to provide an opportunity to monitor an employee’s suitability for the role and to address any performance related issues.  It allows an employer to review the progress of a new entrant in the day-to-day operations of the employer’s business.  To this end there is an obligation on an employer to ensure a structured approach to an employee’s probation period and performance should be managed and assessed in such a manner as to provide for a performance improvement plan with clear goals and reviews if and when an employee’s performance is found to be not meeting the required standard. 

Probation reviews should be conducted during the probation period in order to offer feedback on the various aspects of the employee’s performance and to highlight areas where improvement is required.  An employer should explain to an employee that they may be at risk of failing their probation if their performance does not meet the required standard.   At a minimum an employer must alert an employee to any issues and inform him/her of the consequence of termination of employment if the required improvement is not achieved. 

Notwithstanding, the success or failure of a worker’s period of probation is entirely a matter for an employer to determine.  I am not required to determine whether the Worker should have been dismissed during the probationary period or not as the case may be.  It is not my function to substitute my view for that of a respondent employer.   My role is limited to an examination of the manner in which the termination of employment was undertaken by an employer.  

I note that whilst a worker with less than 12 months’ service does not enjoy the protections of the Unfair Dismissals Acts, the fact that a worker is on probation does not negate or obviate their entitlement to fair procedures. 

The consideration of a trade dispute and any recommendation thereto is informed and guided by previous decisions of the Labour Court as they apply to a trade dispute under the Industrial Relations Act. 

The Labour Court has consistently set a standard in its recommendations of requiring employers to operate fair procedures during and at the end of employment while the person is on probation, including the application of the principles of S.1. 146 of 2000. 

In this I am mindful of the recommendation of the Labour Court in Beechside Company Limited T/A Park Hotel Kenmare LCR21798 that provides as follows:

“Where an employee is considered unsuitable for permanent employment, the Court accepts that an employer has the right, during a probationary period, to decide not to retain that employee in employment.  However, the Court takes the view that this can only be carried out where the employer adheres strictly to fair procedures.” 

I have regard to the recommendation of the Labour Court in C&W O'BrienArchitects v A Worker LCR22391 wherethe Court took into account the provisions of the Code of Practice on Grievance and Disciplinary Procedures (S.I. 146 of 2000) which, in the words of the Court:

“emphasises the importance of ensuring that an employee is aware of any disciplinary procedure which is initiated in respect of her and to know any case being made against her and to have a fair opportunity to respond to any such case. The Code also emphasises the importance of the availability of an internal mechanism wherein a sanction which has been imposed can be appealed.”

The Code of Practice emphasises that good practice entails a number of stages in the discipline and grievance process and states at section 6 as follows:

“6.  The procedures for dealing with such issues reflecting the varying circumstances of enterprises/organisations, must comply with the general principles of natural justice and fair procedures which include:

·        That employee grievances are fairly examined and processed.

·        That details of any allegations or complaints are put to the employee concerned.

·        That the employee concerned is given the opportunity to respond fully to any such allegations or complaints.

·        That the employee concerned is given the opportunity to avail of the right to be represented during the procedure.

·        That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors, circumstances.” 

Under General Principles at section 4 the Code states as follows:

“The essential elements of any procedures for dealing with grievance and disciplinary issues are that they be rational and fair, that the basis for disciplinary action is clear, that the range of penalties that can be imposed are well-defined and that an internal appeal mechanism is available.” 

In eBay v. A Worker LCR22806 the Labour Court held as follows:

“The Court has carefully considered the written and verbal submissions it received.  The Court is satisfied on the submissions before it that the Employer failed to adhere to the requirements of the Code of Practice on Grievance and Disciplinary Procedures made under Section 42 of the Industrial Relations Act 1990 and contained in SI 146 of 2000, before the decision to dismiss the claimant was taken.

The Court has consistently held that an employer is not relieved of the obligation to act fairly during the probationary period and that the requirement of the Code of Practice applies in all circumstances in which a worker is on hazard of having his or her employment terminated. [emphasis added]

Having regard to all these considerations the Court has concluded that the worker was treated unfairly in the manner in which his employment was terminated.” 

In Hamilton Insurance Dac v. A Worker LCR22710 in January 2023 the Labour Court held as follows:

“There is no submission before the Court that the worker was notified in advance of her termination that her employment was at risk.  Neither was there a submission before the Court which contended any procedure was followed before arriving at a decision to terminate the employment or that an opportunity was provided to the worker to know of any issues prior to the termination of her employment.  Similarly, there is no submission before the Court that she was afforded any opportunity to defend herself against any charge or contention which could lead to the termination of her employment.

It is the view of the Court that whenever a worker, including a worker who is on probation, is at the risk of his or her job, it is incumbent on the employer to make the worker aware of the situation and of the reasons.  In addition, where the issue arises from the conduct or performance of the worker, he or she should be afforded an opportunity to address the decision maker in his or her defence.  [emphasis added]

There is no submission before the Court that these basic elements of fair procedures were applied in the case of the worker…”  

Probationary Period

The contract of employment exhibited by the Employer in submissions provides as follows at article 2.2:

“The first six months of your employment will be probationary.  Your employment may be terminated on one week’s notice given in writing by the Employer at any time during or at the end of the probationary period.  Your probationary period may be extended, at the discretion of the Employer, but it shall not exceed a period of 11 months.”  [emphasis added] 

I note, upon inquiry as to whether an extension of the probation period had been considered, the Employer confirmed the company had ceased extending probations unless new employees were off sick during the probation period.  I note the passing of the European Union (Transport and Predictable Working Conditions) Regulations 2022 saw changes made to the probation period here in Ireland from 01 August 2022 in situations where an employee is subject to a probationary period at the commencement of their employment, that period must not exceed six months.  I note the probationary period may, on an exceptional basis, be extended when it is deemed in the worker’s interest and must not exceed 12 months.

I note the probationary clause in the contract makes reference to a discretionary extension but it does not include the caveat that this extension is granted solely on the basis of a period of absence on sick leave during probation.  I strongly recommend the Employer amend this clause in the contract to provide the necessary clarity on the matter of a discretionary extension to the probation period and the condition precedent attaching thereto.    

I find I am unable to accept the Worker’s submission that there were no specific targets or metrics communicated to her since the commencement of her employment or her submission that there was no specific onboarding plan shared with her outlining the expectations for the 6 months of probation.  I note when the Worker commenced her employment, she was provided with a copy of the New Joiner Onboarding Spread Sheet.  I note this is a comprehensive document that very clearly sets out the various milestones a worker is expected to achieve on a weekly basis for the first 12 weeks of employment. 

I note six probationary review meetings undertaken by her line manager with the Worker commencing on 24/01/2024 up until 03/04/2024.  I am satisfied the Worker’s probation was pro-actively managed by the Employer.  However, despite the regularity and consistency of the probation review meetings the Worker appeared to be completely oblivious that there were performance deficits.  Moreover, she appeared to be completely oblivious to the fact that such deficits if not addressed by her could mean that her job was in jeopardy and that termination could follow. 

I am not satisfied that it was ever made clear to the Worker that if her performance did not meet the required standard the consequences would be termination of the contract of employment. 

I note the Employer in written submissions and again at hearing submitted that the Worker had met with a Director and a VP of BizOps who explained to her on a number of occasions the ways of working in the team and what the expectations are.  However, I note the Employer was unable to provide any details or documentation in relation to the aforesaid conversations alleged to have taken place with the Worker. 

I have come to the conclusion that the Worker did not seem to understand that which was expected of her despite the comprehensive new joiner spreadsheet provided to her when she commenced her employment.  I note there seemed to be no sense or understanding on her part that her performance might be lacking in some way until on or around 23/04/2024 when she sought to shadow a work colleague in an area that had been obliquely highlighted by her line manager in the post probation review meeting email of 08/04/2024 as follows: “We will be looking at the amount of work orders completed over the next month.  We would typically expect engineers to do 2-3 per week as well as their other ongoing work.”    

I am unable to find that it was ever explained to the Worker that she may be at risk of failing her probation if her performance did not meet the required standard.  I note the communications from her line manager following her review meetings.  I note the Worker accepted the contents of these emails at the time without question and she did not take issue or correct what she now states was incorrect information and not reflective of her performance despite being invited to revert if “she had any questions at all or have any issues with any of the above areas.”   

Having carefully reviewed the post probation review meeting communications from her line manager I find them to be lacking in candour.  The post probation review meeting communications should contain clear objectives setting out that which is necessary to meet the required standard for a role and should contain clear, unequivocal and unambiguous notification to a worker of the consequences of failure to do so.  [emphasis added]

I note the meeting referred to by her line manager in his post probation review meeting email of 08/04/2024 wherein he states “we’ll ideally have a review before the last week of probation to assess progress of all of these area’s” never took place. 

Ideally, this review meeting before the last week of probation should have taken place as advised to her by her line manager that “ideally” it would take place.  Instead, what took place was a meeting on 01/05/2024 during which her employment was terminated.  I find this was far from ideal specifically when I note the Worker was not advised prior to that meeting what the potential outcome could be.  Nor was the Worker advised she could be accompanied at that meeting.  Nor was the Worker informed of any mechanism or avenue of appeal available to her through which she could appeal the decision to dismiss. 

The Employer would like me to accept that the probationary clause in her contract of employment was sufficient to put the Worker on notice of the consequences of her performance not meeting the required standard.    However, I find I am unable to accept this taking into account all of the circumstances.  Furthermore, I am led to the conclusion that the Worker was unfairly lulled into a false sense of security throughout her probation particularly when I consider the manner in which her failure to attend the office when requested by the Employer on numerous occasions was dealt with by the Employer.   

It was simply not addressed at all by the Employer and the Worker’s non-attendance, having been requested to attend on more than one occasion, was tacitly allowed to continue.  For completeness, I note on inquiry the Employer confirmed the Worker’s failure to attend the office when requested was not a factor in the decision to dismiss.   

Applying the reasoning of the Labour Court set out above to the facts of this dispute, I can only conclude the Employer’s handling of the dismissal of the Worker was procedurally flawed and breached the Worker’s right to fair procedures and natural justice.  I note that the Worker was not afforded fair procedures in accordance with the S.I. No. 146/2000 - Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000.

On the merits of this dispute, I recommend in favour of the Worker. 

In deciding on the appropriate level of redress I have duly considered and incorporated into my recommendation the relatively short duration of the employment relationship.  I have considered the procedural shortcomings in both the probation process and in the dismissal.  However, I am bound also to consider the Worker’s apparent lack of engagement with the probation process itself.    

The Worker’s lack of engagement with the probation process is further exacerbated by her failure to take issue with or to correct what she now perceives as incorrect information on the post review meeting emails from her line manager during the probationary review process all of which she appeared to ignore at the time and on which she now seeks to rely in retrospect.             

Taking into consideration all the circumstances set out above I recommend hereunder. 

Flawed procedures; non-engagement with probation;