Worker

Employer

Anonymised Parties

An Accounts Assistant

A Construction Company

Representatives

 Construction Industry Federation

Act

Dispute Reference No.

Date of Receipt

Industrial Relations Act, 1969

CA-00059525

10th October 2023

The complainant commenced employment with the respondent on March 9th, 2023, in “Accounts Payable”.

Her salary was €35,000 per annum paid monthly and her main duties included processing supplier invoices and payments, managing the purchase ledger, supplier reconciliations and dealing with sub-contractors.

Her employment was terminated after three months and she says she was unfairly dismissed.

The complainant accepted that she had two periods of sick leave, the second of which had just begun when her employment was terminated.  

She was hoping to return to work when the second of these concluded; it commenced on May 31st,  and her employment was terminated a few days later.

She disputes the respondent’s suggestions that she was spoken to about her performance or that the number of errors, edits and deletions is as claimed by the respondent. She says that these were never brought to her attention at the time and were discovered after she left.

She rejected the offer of the meeting with the respondent to discuss her termination because she had already resigned. She denied in response to a question from the respondent representative that her first period of sick leave was related to the €30,000 deficit.

The respondent is a building contractor with over thirty-five years’ experience in the construction industry and is a family run business employing  approximately 35 employees, 9 of those are office based and it provides services in the areas of general and civil contracting, property development, project management, timber frame manufacturing and bespoke joinery.

The complainant commenced employment on March 9th, 2023, in “Accounts Payable”. Her salary was €35,000 per annum paid monthly and her main duties included processing supplier invoices and payments, managing the purchase ledger, supplier reconciliations and dealing with sub-contractors RCT, amongst other duties outlined in her contract of employment. The complainant received her contract of employment several days before commencement of employment and the company handbook was given as part of her introductory pack.

She was trained by the Financial Controller (the FC) and was shown how to use Quick Books system in order to fulfil her duties. She was asked on numerous occasions if she required any further support or training which she declined.

From early on in her employment, the complainant made numerous errors in completing tasks outlined in her job description and there were some informal conversations regarding her task management. The FC gave evidence that she addressed these errors with the complainant  on April 24th,  May 9th,and 12th in the course of informal discussions with her.

On Tuesday the 16th May 2023, the FC became aware that the Relevant Subcontract Tax for that day was out of balance by approximately €30,000.

As this was a task to be completed by the complainant , the FC enquired with the complainant  as to why this was the case and she could provide no explanation for this large discrepancy but that . she was continuing to work to try and resolve the issue.  

On Thursday May 18th 2023, the complainant  did not attend work and a sick certificate submitteddatedMay 17th  2023 and was dueto expireonthe  June1st 2023.

During this period of absence, there was no further correspondence with the complainant however further errors were picked up by the finance department notably, mis-posting of supplier invoices to wrong accounts, posting payments to wrong supplier account, posting RCT amounts to bank account, allocating supplier invoices against the wrong project cost centre

On the 31st May 2023 the FC received a further sick certificated covering two weeks.

As there had been numerous errors in the complainant’s work it was decided that the company could not sustain the financial omissions and it was decided to end her probation effective immediately, in line with the company’s probation period clause as the complainant had less than 13 weeks service.

When thecompany ran an auditlogontheaccountsystemfortheperiod09/03/2023-16/05/2023itshowedthatthe complainant had edited anddeleted atotal number of561 transactions,whichisexcessive inthat amountof time.

She was issuedwith a terminationletter and paid outstandingholidays and public holidaypay. OnJune 21st,  2023followingonfrom a requestfromthe complainant ,the FCoutlinedthe reasons for the termination as well as offering a meeting to take place to discuss further. The complainant did nottakeupthatoffer.

The complainant was aware that her role was subject to a probationary period, as it was outlined in both her contract of employment and the company handbook which she received. Section 3 of her contract of employment outlines that she is subject to six-month probation period.

Supporting this argument, the respondent relied on Donal O'Donovan v Over-C Technology Limited and Over-C Limited [2021] (details of which were submitted and which is discussed in the Recommendation).

Section 3 of the complainant’s contract of employment outlines a one month’s notice period thereafter the probationary period. In the absence of any further stipulation, the company relies on the Minimum Notice and Terms of Employment Acts, 1973-2005: As the complainant had less than thirteen weeks service no notice was paid, however as per the complainant’s final pay slip, she was paid five days’ annual leave that were owed to her plus her public leave entitlement,

The company rejects the allegation of unfair dismissal, and the complainant was fully aware that she was subject to a six-month probationary period. The number of errors in relation to the complainant’s work had a knock-on effect on the business and could not be sustained.

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

As can be seen from the narrative above the complainant’s employment was terminated, just one week short of three months. In that period, she had a sick leave absence from May 17th to June 1st and had just submitted a second certificate to cover two weeks a few days before her employment was terminated.

There was disagreement between the parties on the extent to which alleged deficits in the complainant’s performance were brought to her attention, to which I return below.

I am satisfied on the basis of the evidence to the hearing of the Financial Controller that she did have occasion to speak informally on a number of occasions to the complainant about her performance and the fact that the complainant cannot recall this may go some way to illustrate part of the problem.

On the other hand, it is also quite clear that significant elements of the alleged performance deficits were not put to the complainant as they were only discovered after her employment was terminated. As a matter of good probation management this should have happened.

The respondent relied on the dicta in Donal O'Donovan v Over-C Technology Limited and Over-C Limited [2021] which, on the specific facts of that case, say that an employer may terminate employment during probation ‘for no reason’.

But this does not provide the respondent with the cover it may believe.

It is not authority for the proposition that an employer has carte blanche to do what it likes during a probationary period, ignore its own policies, and dispense with all fairness and common courtesy to an employee.

The letter of termination contained the somewhat bald statement by the respondent that it ‘will no longer be proceeding with your employment’ and this must be read, and interpreted in the context of its own policy which was attached to its submission. 

The probation policy on which the respondent relies states.

During this [probation] period your work performance and general suitability will be assessed and, if it is satisfactory, your employment will continue. However, if your work performance is not up to the required standard or you are considered to be generally unsuitable, we may either take remedial action or terminate your employment without recourse to the disciplinary procedure.

First, the phrase ‘will be assessed’ has to be interpreted in its ordinary meaning and once it is, this places a clear obligation on the respondent to actually undertake and be seen to undertake an assessment of work performance and general suitability and having done so, to reach a conclusion. That is the plain meaning of its own policy.

Then, if the work performance ‘is not satisfactory’ it provides for two options, one of which includes remedial action, (again, while there is no evidence that this was considered there is no obligation on it to do so), or terminate the employment.

There was no indication in this case that any of the assessment preliminary to the termination was done by the respondent.

In this case most (though not all) of the assessment of the complainant ‘s performance appears to have taken place after the decision to terminate her employment. This is confirmed in the letter from the Financial Controller to the complainant on June 21st, three weeks after her probation had been terminated, and in response to a request from her for reasons for the termination. (The first two lines are exactly as they appear in the letter).

Followinganinterimreviewofyouremploymentundertheongoingprobationperiod,

Unfortunately itbecameawarethatyouwereunablemeettheexpectationsrequiredforthe role.Wehadsome informal conversations about taskmanagement , general administration ofthe role and some errors on tasks such as RCT, Banking & invoicing inputs which were being made.

During your absence, I have come across some further errors that needed attention and this is taking time ofother resources takingthemaway fromtheirtask, whichis unacceptable. Givenyour experience,webelievetheseomissions/errorsshouldnothaveoccurred.

Ifyouwant, Icanscheduleameetingwith[anonymised] myselftodiscussthesefurther.

(Underlining added)

The identification of performance deficits during the complainant’s absence, or after she has left the employment does not meet the requirements of the respondent’s own policy.

This is why the O’Donovan case is not the last word on the matter and why employers should read their own policies before acting. There may be a tendency to think that having the policy is all that is required, as if it were some sort of collector’s item.

It is not and complying with the policy once it is there is, to put it mildly, also a requirement.  An employer who can be shown to have acted in breach of his own policy is obviously exposed to consequences. 

I do take into account the less than satisfactory performance of the complainant but in the equitable traditions of this Act she is entitled to some remedy for the serious breach of her rights.

Termination during probation