Worker

Employer

Anonymised Parties

Childcare Practitioner

Childcare Provider

Representatives

  Self

Peter Dunlea, Peninsula

Act

Dispute Reference No.

Date of Receipt

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

IR - SC - 00002443

02/04/2024

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

IR - SC - 00002444

02/04/2024

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

CA-00062561-001

02/04/2024

This matter came before the WRC dated 11/01/2024 as a complaint seeking adjudication by the WRC under section 13 of the Industrial Relations Act, 1969.

There is  specific dispute in relation to 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 04/04/2024.

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

The Worker was employed as a Childcare Practitioner from  28/08/2023 until 09/02/2024 when her employment was terminated by the Employer.  The Worker worked a 35-hour week for which she was paid €14.00 per hour.  

Central to the dispute it is alleged by the Worker that she was given no notice of dismissal either written or otherwise and that when she was given different reasons to explain her dismissal.  The Worker also submitted a complaint in relation to the sanction of dismissal and a further complaint in relation to bullying and harassment procedures.

The Employer refutes all claims by the Worker and stated that she was dismissed because her performance was not sufficient for the role.

The Worker provided information at the hearing that she commenced employment on 28/08/2023 and she was dismissed on 09/02/2024.  She had never received any verbal or written warnings.  She was praised by her manager for the work she was doing and then she was dismissed two weeks later.  The Worker outlined the impact this had on her, and she had to attend her GP to deal with depression and other illness associated with this event.  She had thought that she had obtained a dream job but that was now shattered, and she does not feel that she can work in the childcare sector again.  The Worker thought that she was on a three-month probation, but she told by her manager that it would be for six months. 

The Worker outlined that she did appeal the decision but there was not change to the Employer’s decision. The Worker also outlined that she was given different reasons for her dismissal.  She was told that it was because she was not working well with younger children and at the appeal hearing she was told that it was because she did not fit in.

The Worker also provided information in relation to the issues she had with some of her colleagues.  She has dyslexia and she was the recipient of some negative remarks by colleagues when she misspelt some words. These colleagues made life difficult for her and she was excluded from discussion in relation to work matters.  The Worker also stated that it was untrue to say that she told a colleague that she hated working for the Employer.  She was taken aback when she read this in the Employer’s submission.  The Worker stated that she loved the work.

The Worker informed the hearing that she told her manager about being bullied and feeling nervous when working with some of those identified.  Despite her complaints to her manager, she had to remain working in the same room as them.

The Worker told the hearing that she has not worked since her dismissal and that she is actively looking.  She checks a particular website.  She is also looking to return to college as she does not see herself working in the childcare area again because of the experience she had with the Employer.

In response to some questions from the Adjudication Officer the Worker time she met with her manager was in relation to the spelling issue and bullying in one of the rooms.  She did not have any warnings given to her.  During her probation she only had one review meeting in relation to this and she was not told that there were any issues about her performance.  The Worker also gave an illustration of where she was asked to work on a one-to-one basis with a child because she was deemed competent to do so and it does not make sense for the Employer to state that she cannot work with younger children.

The Worker stated that she is seeking an acknowledgement that she was treated unfairly by the Employer and is seeking compensation in the region of €20,000 for the loss she had incurred as a result of her dismissal.

The Employer confirms that the Worker was employed from 28/08/2023 until 09/02/2024 at which point she was dismissed.  The Employer’s managers and the Worker’s colleagues noted issues with her performance in November and December 2023.  These issues were not in any way related to any of the matters the Worker had with colleagues.  The Employer submits that there were a number of meetings with the Worker to discuss her performance and the main issue was her communication with younger children and the communication between the rooms while she was working.  The Employer also submits that “an informal plan” was devised and there was regular discussion with the Worker in relation to how she could improve.  A decision was made to continue her employment into the new year to allow her additional time to improve her performance.  The Employer stated that the Worker’s manager received a complaint that the worker hated working there and she was refusing to work with a new member of staff.  The Worker was dismissed after this.  The Employer acknowledges that the Worker’s manager stated that she was good, and this was doing in a well-meaning way.

The Worker was given an opportunity to appeal the decision and she availed of this.  The appeal process upheld the decision to dismiss the Worker.

The Employer also acknowledges that there were issued in relation to the interaction between the Worker and some of her colleagues.  These issues were addressed by a senior manager who spoke to all involved.  A mediation meeting also took place and there were regular welfare checks to ensure the well-being of all employees.  The Employer also noted that this was a completely new team, and all employees were on probation as this was an assessment period to see which employees would work best in various areas and fitted in with the new environment. 

The Employer provided information that all employees needed to be able to work with younger children who attended in the mornings and older children in the afternoon.  There were issues in relation to the Worker when she was working with small children

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

The Worker and the Employer were provided with the opportunity to provide information at the hearing on the manner in which events unfolded throughout this employment.  Both parties confirmed at close of hearing that they were satisfied they were given the opportunity to provide the hearing with all their relevant information.  

For the avoidance of any possible doubt the only matters before me for adjudication is a trade dispute regarding an unfair dismissal during probation, the sanction of dismissal and the Employer’s failure to deal with bullying and harassment.  These claims are all referred under section 13 of the Industrial Relations Act, 1969.  There are no employment rights issues properly before me for adjudication at this hearing.  

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. Performance should be managed and assessed in such a manner as to provide for a performance improvement plan with clear goals and reviews when an employee’s performance is found to be not meeting the required standard. 

Probation reviews should be conducted during the probation period 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. 

The success or failure of a Worker’s period of probation is entirely a matter for the 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.  

In this I am mindful of the recommendation of the Labour Court in the case of Beechside Company Limited T/APark 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.” 

The contract of employment provided by the Employer at hearing provides no clause in relation to a probationary period.  The Employer states that their employee handbook explains their probationary policy but a copy of this was not provided at the hearing.

However, regardless of what a policy may state,  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. 

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.

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  (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. 

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

On the information as presented in this case it is clear that there were issues in relation to this employment relationship.  The Worker had experienced several issues with colleagues and raised these on an informal basis with her manager.  The Worker undertook any tasks assigned and is clear that she was not told about any performance related issues.  The Worker was told two weeks before her dismissal that she was doing a good job by her manager, and she believes that she was only given positive feedback.  

The Employer believes that there were performance issues, and these were brought to the Worker’s attention in November and December 2023.The Employer is adamant the Worker’s dismissal is not connected to any issue she had with work colleagues.

I note the Employer did not  provide any details or documentation in relation to the conversations that took place with the Worker or of the substance or the outcome of these conversations.  I am satisfied the Employer did not undertake any structured probationary review meetings.  There was no information made available to me that suggests any form of improvement plan that might have been put in place with clear goals to afford the Worker an opportunity to improve by addressing any identified shortcomings.  As this was a new venture which was commencing, and the Employer stated that they wanted to assess the suitability of all employees it is a serious deficiency that they did not formulate a structured and transparent process to do so.

On the information as presented I conclude there was a serious deficit in the performance management of the Worker during her probationary period and if there was any punctuated by what appeared to be several ad hoc meetings regarding the issues that had arisen.     

Applying the reasoning of the Labour Court set out above to  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.  The dismissal of the Worker was unfair due to the lack of fair procedures or indeed any procedures.  In deciding on the appropriate level of redress I have duly considered and incorporated into my recommendation the Worker’s attempts to mitigate her loss and the relatively short duration of the employment relationship.  I note the Worker has not commenced employment in any capacity and would seem to have made minimal efforts to do so.

Taking into consideration all the circumstances set out above I recommend I recommend the Employer pay the former Worker two thousand Euro (€2,000.00) in full and final settlement of this dispute which I believe is just and equitable compensation in all the circumstances.  For the avoidance of doubt this award of compensation is not subject to deductions for PAYE, PRSI or USC.

In view of the apparent confusing in relation to the probationary process I also recommend the Employer formulates a specific Probation Policy which clearly outlines the way issues of performance and conduct will be handled during the probationary period.  This policy should ensure compliance with the provisions of S.I. 146 of 2000, Code of Practice on Grievance and Disciplinary Procedures.   

IR-SC – 00002444: In view of my recommendation above I do not make any further recommendation in relation to this dispute.  This dispute is a duplicate of the above.

IR-SC – 00002443:  I believe that the Employer made genuine attempts to resolve the interpersonal difficulties that arose.  I also accept that the Employer undertook the welfare checks. I do not make any recommendation in favour of the Worker.

Unfair dismissal. Probation policy.