Worker

Employer

Anonymised Parties

Worker

Employer

Representatives

  N/A

Jessica O'Mullane, Ibec.

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 13 of the Industrial Relations Act

CA-00058081

01/08/2024

On 15 August 2022, the Worker commenced work with the Employer as a Project Finance Controller. The Worker earned approximately €60,000 gross per annum, working approximately 50 hours per week. These hours are disputed by the Employer. The Worker’s contract of employment provided for a probation period which on the facts of the case, was six months long.  On 3 February 2023 the probation period was extended by a further three months. The Worker was ultimately dismissed on 15 May 2023 due to performance concerns. The Worker outlined that he was unfairly dismissed and there has been a negative impact on his career and development. The Worker is seeking re-instatement and compensation. The Employer denies the allegations in their entirety.

The Worker provided detailed written and oral submissions.

The Worker outlined that he worked as a Project Finance Controller for the Employer from 15 August 2022 until 15 May 2023, when he was unfairly dismissed. The Worker took issue with the reason for his dismissal, which was due to underperformance. In essence, he outlined that he was not properly managed and that he was “confused” by the Employer’s expectations. He outlined that while he had made mistakes, he believed they were not of sufficient magnitude to merit his dismissal. He also took issue with the management of his probation process and dismissal process. He outlined his numerous concerns as follows:

·            He believed that he was never treated as a “a permanent employee”.

·            He did not have a formal handover or training when he commenced his role.

·            He did not have a performance or training review according to the company training guide.

·            He was not trained in accordance with the document entitled “Notice Regarding Training and Practice Mechanism for New PFC”.

·            He did not receive a monthly review or partake in an evaluation process.

·            He was never told of any underperformance issues and he never received any complaints. In fact, he, along with his team, was awarded the “President’s award” for the project that they worked on.

·            He should have had two mentors – one from the finance team and one from the business line. However, he had only one mentor, who did not conduct a regular review.

·            He questioned whether his mentor had the necessary qualification to mentor him.

·            He was not given any formal Positive Performance Indicators.

·            He was not provided with Key Performance Indicators (“KPI”s) until his probation period was extended.

·            He was not permitted to discuss his concerns during his probation review meeting.

·            He was not satisfied with the probation review process.

·            He believed that after his dismissal, the Employer underwent organisational change. He outlined his belief that his dismissal had nothing to do with his performance. He further outlined his belief that his role was never meant to be longer than a few months in duration and that he was essentially holding the position until his successor, a graduate, arrived.

The Worker accepted that his Line Manager sat opposite him and that they frequently discussed issues as and when they arose. He accepted that he made mistakes and that these were brought to his attention. However, the Worker took issue with the fact that the mistakes were not brought to his attention in a more formal manner.

The Worker outlined that his dismissal in May 2023 caused him family trauma and mental distress. He outlined that he started a new job in an unrelated area in early July 2023. He subsequently left that role and in his current role, he earns approximately 75% of the salary that he earned while working for the Employer.

The Employer provided details written and oral submissions.

The Employer outlined that the Worker completed a “robust onboarding program” and completed approximately 40 plus modules as part of that same program. The Employer outlined that it has a standardised probation review format for all new employees entitled “Detailed Rules for Managing New Employee Transition”. The Employer outlined that the Worker was assessed in line with the same. The Employer outlined that the Worker sat opposite his Line Manager and mentor, a senior employee. The Employer outlined that the Line Manager assisted the Worker on a daily basis and discussed matters with him as and when they arose. The Employer outlined that the Worker had worked in an area where “performance is key”. The Employer outlined that the Worker’s contract of employment provided for a probation period which could be extended at its discretion. The Employer outlined that during the Worker’s first six months, issues arose in relation to his performance. In particular, the Employer referred to an incorrect customer invoice for which the Worker was responsible, which impacted the Employer’s end-of-year goals. The Worker was invited to a probation review presentation on 30 January 2023. As the Worker’s performance was deemed “below expectation”, his Line Manager and the Worker agreed to extend his probation period by a further three months from 15 February 2023 to 15 May 2023. The Employer outlined that the Worker and his Line Manager developed a plan to improve his performance. On 3 March 2023, the Worker emailed the plan to HR.

On 6 April 2023, the Worker was invited to a probationary review meeting. The Worker was informed that he had a right to representation and that the outcome of the meeting may result in a probation-related termination. During the meeting on 7 April 2023, the Worker’s performance concerns, as well as two customer complaints regarding his work, were discussed. The Worker was given the opportunity to respond. Detailed minutes of the 45-minute-long meeting were produced. At the conclusion of the meeting the Worker was informed that his contract of employment would be terminated. The Worker received a letter dated 7 April 2023 confirming his dismissal as he did not successfully complete his probation. In the same letter, the Worker was provided with the right to appeal, which he invoked. An appeal hearing was held on 4 May 2023. On 11 May 2023, the Worker was informed that the decision to terminate his employment was upheld.

By way of response to the Worker’s comments, the Employer outlined inter alia:

·            The Worker received the “President’s Award” as he was in situ when his team received the award concerning a three-year project. The Employer outlined that the Worker was not the sole recipient and that he had only been with the Employer for approximately five months at that stage. Moreover, the Employer outlined that the award was partly motivated by the team’s rectification of one of the Worker’s errors.

·            The Worker’s mentor was his Line Manager – one of the Employer’s most senior members of staff in Ireland.

·            It was not the Employer’s common practice to allocate two mentors to employees.

·            The document entitled “Notice Regarding Training and Practice Mechanism for New PFC” is a global document and has no application to the Employer in Ireland.

·            The graduate referred to by the Worker, was not brought in to replace anyone, but had joined the team on secondment. The Employer outlined that the same graduate will soon return to China and will be replaced by another graduate.

·            The Worker’s position has been advertised and a new person is soon starting in this role.

Finally, the Employer sought to rely on:

·                The Court of Appeal decision in O’Donovan v. Over-C Technology Ltd & Anor [2021] IECA 37, which held that that "both the parties are - and must be - free to terminate the contract of employment for no reason, or simply because one party forms the view that the intended employment is, for whatever reason, not something with which they wish to continue"; and

·                The Labour Court decision in Boots Retail Ireland v. Luka Glogoski, UDD187, which held that it is “for an employer to determine its own standards in terms of what it considers are priority tasks, duties and processes, the importance it attaches to particular tasks, duties and processes and the performance objectives that it sets, subject to those standards being consistently applied and not being unachievable.”

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

I note that in Boots Retail Ireland v. Luka Glogoski, UDD187, the Labour Court largely deferred to the employer in determining a worker’s competence. The Labour Court also placed great emphasis on “whether or not the employer's decision was reasonable such that it was properly arrived at by virtue of being based on up-to-date and relevant information which had been considered through appropriate processes applied in a consistent manner in accordance with basic fairness and in observance of the rights of fair procedures.”

Findings:

The Worker was employed by the Employer for approximately nine months, which encompassed a six-month probation period that had been extended by a further three months. The Worker’s contract of employment provided for a probation period which could be extended at the Employer’s discretion.

The Worker’s extensive onboarding training was documented. The Worker sat opposite his Line Manager and mentor, a senior employee of the Employer. It was accepted that the Line Manager regularly assisted the Worker. The Line Manager also discussed issues and performance concerns with the Worker, as and when they arose. I note that there was documentary corroboration of the same – for example, an email to the Worker dated 29 September 2022 as well as the Performance Feedback document dated early 2023. As a result of these performance concerns, the Worker was invited to a probation review presentation on 30 January 2023. The Worker’s performance was deemed “below expectation” and his probation period was extended by three months from 15 February 2023 until 15 May 2023. The Worker and his Line Manager developed a plan to improve his performance, which the Worker emailed to HR on 3 March 2023.

On 6 April 2023, the Worker was invited to a probationary review meeting. The Worker was informed that he had a right to representation and that the outcome of the meeting could result in a termination. The Employer outlined that during the meeting, the Worker’s performance was discussed and he was given the opportunity to respond. The Worker was informed that there were “a number of difficulties” since he commenced, including “missed invoicing” and a failure to meet KPIs. While the Worker outlined that he was not given the opportunity to respond, this position is not borne out in the detailed minutes of the 45-minute-long meeting. The minutes reflect the fact that he provided lengthy responses and that he was accompanied by a colleague. At the conclusion of the meeting, the Worker was informed that his contract of employment would be terminated and he received a letter dated 7 April 2023 to this effect. In the same letter, the Worker was informed of his right to appeal, which he invoked. An appeal hearing was held on 4 May 2023. On 11 May 2023, the Worker was informed that the decision to terminate his contract was upheld.

Conclusion:

The Worker received extensive training and was closely managed and mentored by one of the Employer’s most senior employees. The Employer had concerns regarding the Worker’s performance and the Worker was on full notice of the same. The Worker was given targets and support to achieve those targets. However, when the performance concerns continued, the Worker was dismissed in May 2023 following a stepped process which involved a probationary review meeting on 6 April 2023 and an appeal hearing on 4 May 2023. It appears that the Employer’s decision was properly arrived at by virtue of being based on up-to-date and relevant information. This information was considered through appropriate processes. I note, in particular, that the Worker was afforded inter alia the opportunity to respond; the right to representation; and the right to appeal – all in accordance with S.I. 146 of 2000 (Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000).

In the circumstances I find that the Employer’s decision was reasonable and in accordance with fair procedure. Consequently, I find that the Worker’s dispute is without merit. I recommend that the Worker accepts that he had a full hearing of the matter.

Industrial Relation Act 1969, Unfair Dismissal, Probation.