Worker

Employer

Anonymised Parties

Higher Executive officer

Public Agency

Representatives

 Forsa

Ms, MP Guinness, B.L., instructed by   Holmes O’Malley Sexton Solicitors

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 - 00001526

10/07/2023

The worker has submitted a dispute that she was unfairly dismissed while on probation and in contravention of the employer’s policies.

She commenced employment in a Higher Executive Officer’s position in the HR function on a probationary contract on 17/10/22.

She was dismissed on 15 June 2023.

Her annual salary was €51,356.

The worker was represented by Forsa.

The worker was employed in a HR function in the employer’s service agency on a civil service HEO grade salary from 17/10/22 until her employment was terminated on the 8/6/23 with one week’s notice.

She contends that the reasons used to terminate her contract were invalid.

On 24 January 2023, at the end of the first three months of probation, the employer’s report   found her to be excellent in competency, efficiency and in other dimensions of her work.

 In month five, March 2023, she began to experience problems with her line manager who gave her confusing messages about assignments and deadlines.

Well in advance of her 6-month probation review meeting scheduled for 13/4/23, the employer told her in a telephone call on 29/3/23 which was a follow up to a Performance Management and Development Systems (PMDS) meeting held on 28/3/23, that her probation was being extended. This notification to her followed on a heated telephone conversation with her line manager. The next day the worker requested a completed probation form. She received it the next day with a further 3-month extension of her probation. At the meeting to review her probation, held on 13/4/23, no reasons were identified as to why her probationary period should be further extended. The line manager spoke only about operational matters. She did not minute the meeting.

The interim HR manager told the worker on the 27 April that her probation was being extended for a further three months until 16 July.  After that date her line manager did not mention any areas of concern to her.

On 8 June, prior to the end of this period of extended probation, which was scheduled to run until 16 July, the HR interim manager told her that he had spoken to her line manage and on foot of that exchange. notified the worker that her contract was to be terminated with one week’s notice. No explanation other than her line manager had told him that her performance had not improved. No appeal was offered to her. The worker believes that her line manager wished to dismiss her and bring another person in to take her place which is what in fact happened.

The worker maintains the employer contravened the agreements and policies governing probation in her workplace.

The Employer Resource Pack which is agreed with Forsa states in the Contract of Employment Section:

“Variations to Employment Contract Terms

The main terms of employment for posts in her employment (e.g., Grade, salary, annual leave and sick leave are based on comparator terms in the civil service or health service “

In addition, the General Personnel Policies section of the employer’s Employee Resource Pack states:

 “It is the employer’s aim to support staff by ensuring that their employment conditions are in accordance with current best practice in the public services.”

Current best practice concerning probation in the public service is found in the Guidelines on the Management of Probation in the Civil Service, 2019, and which are agreed nationally with Forsa as having application to the worker’s place of employment.

 Part 1, Section 1.5 provides as follows:

“Principles of probation

5. Equity, effectiveness and accountability underpin the probationary process. It is important for line managers to provide probationers with feedback on their performance throughout the probationary process and explain the standards of job performance and behaviour required. Line managers should ensure, where necessary and practicable, that probationers receive appropriate levels of training and support to reach the required standard of performance”

The probationary process should be operated in an open, clear and supportive manner.

Part 1, Section 1.7, of the Guidelines states that

“A line manager should make sure that each probationer is aware of the standards of conduct, performance and attendance required; and where necessary, provide appropriate supports to help probationers achieve these standards”

Section 2.15 of the Guidelines on the Management of Probation in the Civil Service states:

“During his or her probationary period, a probationer should be subject to probation reviews in accordance with the normal cycle determined by his or her starting date. While these probationary reviews should take account of any PMDS assessments, they should also involve a broader assessment of suitability for permanent appointment under the more general headings of the behaviours associated with satisfactory work performance, conduct and attendance.”

section 3 provides as follows:

“New entrant probationers up to and including the grade of Principal with the exception of those whose appointments have been terminated in the first 6 weeks of that appointment are eligible to seek an appeal of a decision to recommend the termination of his or her employment “

The worker maintains the probationary review process was in contravention of the standards which the employer should have met.

The worker refers to the line manager’s log of interactions with her from 9/3/23 to 24 /5/23 which are almost exclusively critiques of the worker’s work and behaviour.

The employer offered little or no effort to support the worker through her extended probation.

Given the sequence of events, Forsa sought to clarify the situation in relation to probationary procedures and at a meeting on 6/7/23, the employer informed them that no changes had occurred – the probationary policies and procedures on which the worker is relying remained in force.

There have been the multiple breaches of the above-cited collectively agreed probationary procedures:

No records kept of three-month review actions as required;

Probation decisions were made in the PMDS process;

Probation form not provided at 6-month probation meeting or during follow up Teams call;

No reasons for extending probation or measures to be taken were given in the 6-month probation form;

There were no supports offered to the worker after the 6-month review, rather simply a barrage of criticism, as evidenced by her DAR file;

There are no records of any notification to HR of any supports that she might need;

No records were kept of the meeting between the HR Manager and the line manager which made the decision to dismiss;

No appeal of the decision to dismiss was offered, which is additionally contrary to general requirements for fair procedures, as outlined in the adjudication decision ADJ-00043880.

The union contend that the decision to dismiss was taken well in advance of her 6-month probation review. The multiple failures to adhere to agreed processes, is corroborative of same. The worker has suffered greatly from this experience. 

The worker points to an award of €14,375 given to a worker in ADJ-00043880, where a probationary process was also viewed to be a sham exercise containing myriad flaws.

The employer states that they terminated the worker’s probationary contract because she was unable to perform to the standard which her HR role demanded of her nor to the standard required by the employer.

 Her first review at three months in January 2023 was satisfactory. In March 2023, however, issues with her performance arose. The previous holder of the job had one employee assisting her while the worker, in contrast, and 5 months into the job still needed more support than had been envisaged.

There were issues with non-recording of items, tracking the development of issues, with failure to follow through on items within a reasonable time frame and with her line manager having to provide more assistance than should have been necessary.

The line manager gave every assistance to the worker.

The shortfalls in performance were brought to the employee’s attention at the PMDS meeting on 28/3/2023; tasks that needed to be completed were identified to the worker. The worker was asked at this stage if she had any concerns or needed any clarification arising from the PMDS meeting, and she stated that she had none.

On 31 March the employer advised the worker, verbally, that the worker’s probation needed to be extended by a further three months. On the 14 /4/203 at the 6-month probation review meeting, the employer advised the worker that her probation needed to be extended by a further three months. She was given concrete suggestions as to how to reduce the shortfalls in her performance. It is correct that these observation and recommendation may not have been inserted in the right box on the probationary review form but were in the body of the report given to the worker, so she was well aware of what was required to rectify the situation and how to redeem the situation in the extended period of probation.

The worker emailed the Head of Division on 17/4/2023 asking to meet her about issues which she was having with her line manager, the author of the probationary report.

The Head of Division concluded that the line manager was conducting the probationary process in a fair and transparent manner.

The HR Manager wrote to the worker on the 27/4/2023 advising her probation was being extended for a further 3 months up to 16/7/2023.

On 2/6/2023 the line manager and Head of Division met and concluded that they should terminate the probationary contract. They informed the worker of this on the 8/6/2023.

The worker did not seek to appeal the decision to terminate her contract.

The employer states that they have complied with the worker’s contract of employment which expressly excluded the application of the disciplinary procedure and they have complied with the Staff Handbook which makes no reference to the provision of an appeal following the termination of a probationary contract.

While the employer acknowledges that the complaint is taken under the Industrial Relations Act, account should be had, nonetheless, to Donal O ‘Donovan v Over -C Technology 2021 IECA where the Court of Appeal held that fair procedures are only required during probation where the dismissal is for misconduct as opposed to performance.

This employee’s contract was terminated for reasons of performance. Therefore, the requirement for fair procedures does not apply

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

There is conflict on the validity of the employer’s identification of shortfalls in the worker’s performance with the employee maintaining that assignments and deadlines were unclear and that sometimes the same assignment was given to two different people.

Little explanation was given as to why her performance slumped from excellent to below par within 3 months.

Having considered the entirety of the submission, I accept that there were performance issues. I accept that the respondent did bring shortfalls to the worker’s notice. I acknowledge that these notifications were more frequently transmitted via the PMDS process rather than through a formal probationary process as required of the employer’s probationary process.

I acknowledge that there was a lax application of the guidelines on probation; minutes were not recorded, the announcement of an extended period of probation issued prior to the prescribed dates for notification of same, and an absence after the completion of the second period of probation as to what was required of her to redeem the situation. There is scant evidence in the log compiled by the line manager of supports being offered to the worker from late March to May 2023 as opposed to a focus on her shortcomings, a legitimate focus, but a focus bare of recommendations as required by the Guidelines as to how the situation could be rectified. This suggests that the employer had given up on her prior to the completion of her probation.

The employer points to their compliance with the worker’s contract which expressly excludes the appeal mechanisms of the disciplinary procedure during the life of a probationary contract; the same for the handbook which make no reference to the application of the disciplinary procedure.  

The decision to dismiss was arrived at following a discussion between the worker’s line manager and the HR Manager on grounds which were not put to the worker in advance of the decision being made nor were they recorded nor itemised to her.

The evidence submitted points to the fact that the Guidelines served at the very least as the ‘playbook ‘for determining conditions of employment in the worker’s employment. They included the right of appeal against the termination of a probationary contract which I do not find to be invalidated by virtue of her contract. The Guidelines refer to the employee activating the appeal. The worker did not do so but should have been able to rely on the employer to advise her of the facility.

I consider the employer’s hands off approach from April onwards to assisting a challenged employee as their policies demanded, their decision to present the dismissal as a fait accompli to her and omitting to offer her the option of an appeal to be a failure in their duty to act fairly towards her.

The worker’s union point to the award provided to the worker in   A Worker v An Employer ADJ-00043880. But that concerned a dismissal based on flimsier grounds than those obtaining in this dispute.

 I recommend that the employer pay the worker the sum of €7900, an amount equal to eight weeks’ salary in settlement of this dispute.

Termination of probationary contract.