Worker

Employer

Anonymised Parties

A Deputy Centre Manager

A Residential Care Service

Representatives

  Self-represented

 Real HR Solutions

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-00061425

07/02/2024

The Worker commenced employment with the Employer on 4 July 2023. The Worker contends that she was unfairly dismissed on 7 February 2024, without warning and because she had raised a grievance. The Employer submits that the Worker was fairly dismissed within the probationary period as she was unable to fulfil the terms of her contract of employment.

The Worker outlined that she became unwell in August 2023 and required a hospital admission in August and October 2023. She underwent surgery in November 2023 and remained on certified sick leave until January 2024. The Worker sought clarification on her annual leave entitlements during this time but did not receive a response. The Worker then submitted a written grievance in relation to her annual leave entitlements. On 18 January 2024, the Worker was informed that her role was changing from a deputy management role to a team lead role. She sought clarification on this change but a response was not forthcoming. The Worker submitted a second written grievance on 24 January 2024 given the lack of consultation and information on the proposed contractual changes. On 6 February 2024 she was invited to attend a meeting the following day. At the outset of the meeting the Worker was told that the purpose of the meeting was to discuss her probation. The Worker outlined that she thought she was attending a meeting to discuss her grievances. The Worker was then told she had not successfully passed the probationary period as she was not a “good fit”. The Worker contends that she was not notified in advance that there was an issue with her performance, nor was she given an opportunity to improve. There was no performance reviews and the Employer did not consider the option of extending the probationary period. The Worker outlined that she had to take sick leave through no fault of her own and added that she believes that she was unfairly dismissed for raising two grievances. The Worker seeks compensation for her unfair dismissal.

The Worker was employed on a full-time contract subject to a 6-month probationary period. The probationary clause in the contract of employment provides that an employee can be dismissed at the discretion of the employer at any time during the probationary period. During her employment the Worker was absent on 6 separate occasions totalling approximately 14 weeks. For the duration of her employment she never worked a full month. On 10 January 2024, a supervision meeting was held with the Worker during which her absences were discussed and the proposed change to her role. On 24 January 2024, the Worker raised two grievances  - one in relation to her annual leave entitlements and another in relation to the proposed changes to her role. There was no opportunity to hear these grievances given the Worker’s absences and the subsequent termination of her employment. On occasion the Worker refused to work rostered shifts because she felt inadequate notice of these shifts had been given. Further, she frequently made herself unavailable for work (for reasons other than ill-health) without seeking approval, despite being contracted to work 40 hours per week. On 7 February 2024, the Worker was advised that her employment was being terminated on the basis that she had failed to pass her probationary period. The Employer provides residential care services to vulnerable children and has a duty of care and must ensure adequate staffing. It was impossible for the Employer to discharge this obligation where the Worker’s absence was 45% irrespective of the reasons for the absence. The Worker failed to perform her contractual obligations and this is why the Employer had no option to terminate her employment during her probationary period. Although the Worker had completed 7 months service, she only worked 4 months of that time. She missed critical workplace training on three occasions.

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

It was not in dispute that the Worker missed 45% of her working time. I appreciate the real difficulties this posed for the Employer given the nature of the services it provides. However, considered in the round, the manner of the Worker’s dismissal fell short of the standard of treatment that could be expected from a reasonable employer.

The Worker’s contract provided for a probationary period as follows:

“Your employment is subject to a probationary period of 6 months. The probationary period may be extended by [Employer] but will not in any case exceed 12 months. During the probationary period your performance and progress will be continuously reviewed with a formal review at the three month and six-month points. During your probation, your employment may be terminated in line with the Minimum Notice and Terms of Employment Act, and at the discretion of [Employer]”.

The Employer did not complete the three- or six-month formal review as provided for within the contract of employment. The Worker had actually been in employment for 7 months and the Employer had not formally extended the probationary period. While I accept the Employer had real concerns regarding the Worker’s ability to fulfil the terms of the contract given she had only worked 4 of the 7 months she was employed, it could have considered extending the probationary period as provided for within the contract of employment. Such an extension would also have allowed the Employer time to investigate the Worker’s grievances.

As noted by the Labour Court in Hamilton Insurance Dac and A Worker (LCR22710), whenever a worker is at risk of the loss of his or her job, it is incumbent on an employer to make the worker aware of the situation and of the reasons. The Employer failed to do this in this case. An employer is not relieved of the obligation to act fairly during a probationary period. The requirements of S.I. No. 146/2000 Code of Practice on Grievance and Disciplinary Procedures apply in all circumstances where the termination of a worker’s employment is being considered. The Worker in this dispute was dismissed without any recourse to fair procedure and the Employer failed to comply with the minimum requirements set out in S.I. No. 146/2000 before coming to the decision to dismiss the Worker. The Labour Court has consistently upheld the rights of all workers to fair and proper procedures, in the absence of which dismissals usually must be deemed to be unfair (Harvey Norman Fonthill v. A Worker, LCR22688).

In all the circumstances of this dispute, I conclude that the decision to dismiss the Worker was unfair due to the lack of fair procedures.

In full and final settlement of this dispute, as re-instatement or re-engagement is not an option due to the breakdown of the working relationship, I recommend the Employer pay the Worker compensation of €2,500 due to the lack of fair procedures as outlined above.

Unfair dismissal. Probation.