Worker

Employer

Anonymised Parties

A Worker

An Employer

Representatives

Self-Represented

Self-Represented

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-00060942-001

11/01/2024

CA-00060942-001

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.

The specific complaint falls under Unfair Dismissal.   The Worker claims he was unfairly dismissed, and he 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 19/04/2024.

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

The Worker was employed as an Audio-Visual Technician from 11/09/2023 until 15/12/2023 when his employment was terminated by the Employer.  The Worker worked a 45-hour week for which he was paid €2667.67 gross monthly.  

Central to the dispute it is alleged by the Worker that he was given no notice of dismissal either written or otherwise and that when he was dismissed the reasons provided were poor timekeeping and some damage caused to the van while working. 

The Worker states he was employed as an audio-visual technician and he holds a Diploma in Film and TV Production.  He states the job wasn’t really what he was wanted because he was looking for a part-time job but there was only full-time work available.  The Worker states he took the job anyway when it was offered to him as he needed a job.  He states the job didn’t turn out the way he had hoped.  He states things weren’t going ok from the outset and he was not happy in the job.  He states he wouldn’t have taken the job if he had known what it would be like.

The Worker states the job was not what he was told it would be at interview and led to believe it would be.  Even if there was no work on, he still had to come in and do nothing.  The Worker states he was working 12-15 hour days and it was meant to be a 40-hour week.  The Worker states he was given TOIL (time off in lieu) instead of overtime and he didn’t like that.  The Worker states he was looking for an official record of his hours worked and he did not receive that.  The Worker states he was on emergency tax until November and he attributes this to the Employer.  The Worker states he complained to the Logistics Manager in October and November that he received no payslip, and he was on emergency tax. 

The Worker states he posted information from the citizens advice about break times on the work What’s App and he was locked out of the group.

The Worker states he was let go in December with no notification when the Employer told him it’s not working out and we have to let you go.    

The Worker submits the Employer claims his contract was terminated within the probationary period and he submits he never received a contract outlining such terms.  The Worker submits he was verbally informed of a 3-month probationary period during his interview but there was no written agreement provided.  The Worker submits he was outside the probationary period when he was dismissed. 

The Worker submits he firmly believes he was taking entitled breaks during his time in the company in response to the Employer’s claims about his attendance and punctuality. 

The Worker is aggrieved at the timing of the termination of his employment and states he has not been reimbursed for any of the expenses incurred in the purchase of his Secret Santa gift when he was uninvited to the Christmas gathering. 

The Worker asked the Employer at hearing why he had waited for 3 months before dismissing him to which the Employer responded he was waiting to see if the Worker would “turn it around.”

The Employer submits the Worker was interviewed by a director of the company while he himself was on annual leave.  The Employer submits the interviewer went through the terms and conditions of employment in detail with the Worker at interview.  The Worker commenced on 11/09/2023.  The Employer was on annual leave until the 18th of September, and he met with the Worker on the 19th of September after his return. 

The Employer states the worker was employed as an audio-visual technician and the Worker had stated in interview that he was experienced at camera work, but this turned out not to be the case.

After his first meeting with the Worker on the 19th of November he emailed him as follows:

Hi [redacted]

Nice to meet you today.  As discussed here is your contract and soft copies of the forms I gave you earlier.  If you could complete all, please and return I will get everything set up.  Thanks.

If I can be of any further assistance, please do not hesitate to contact me directly.

The attachments to the email were as follows:

1.       Employment contract

2.       Employee details document

3.       Staff driving history document

4.       Policy on company vehicles document

The Employer states the Worker completed the necessary documents at 2 to 3 above and returned them but that he did not sign and return his contract despite repeated requests to do so throughout the duration of his employment with the company. 

The Employer states the Worker would disappear in the middle of the working day.  The Employer submits his attendance and punctuality were poor.  The Employer states he was spoken to on numerous occasions by the Logistics Manager and other senior personnel on these matters.  The Employer states he himself phoned him personally about not being on the job and being continually late.  The Employer asserts the Worker would have known his job was in jeopardy as several senior people would have told him so. 

The Employer states the Worker was late on the day he let him go, the day of the Christmas Party and he said he simply could not sit across the table from the Worker knowing he was about to let him go and he decided to do it that day. 

CA-00060942-001

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.  Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the dispute and in fulfilment of my duties under statute. 

It was apparent that there was at the very least a gap of mutual understanding on certain matters in regard to the employment relationship.   The Worker and the Employer were provided with the opportunity to share information on the manner in which events unfolded throughout.  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 matter before me for adjudication is a trade dispute regarding an unfair dismissal during probation.  Other matters ventilated during hearing including the Worker’s assertion that he did not receive a contract of employment and his allegations of breaches of various employment legislation are not before me in this instance.  This claim relates solely to his claim of unfair dismissal 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 and performance should be managed and assessed in such a manner as to provide for a performance improvement plan with clear goals and reviews if and when an employee’s performance is found to be not meeting the required standard. 

Probation reviews should be conducted during the probation period in order 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. 

Notwithstanding, the success or failure of a worker’s period of probation is entirely a matter for an 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 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 as follows at clause 4:

Probationary Period

For the first four months you will be on probation.  You will be notified in advance of any such extension. During or at the end of your probationary period, the Company may terminate your employment by giving you one week’s notice (except in summary dismissal circumstances) or payment in lieu of such notice.  The Company’s Disciplinary and Grievance procedures shall not apply during your probationary period. [emphasis added]

Notwithstanding the clause set out above, whilst 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 in 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…”  [emphasis added]

On the information as presented it quickly became apparent that this is an employment relationship that was struggling from the outset.  The Worker was clearly not happy in the job which he submits involved tasks such as loading and unloading equipment, setting up televisions, taping down cables and heavy lifting.  The job was full time, but he wanted a part time job to pursue other interests referenced at hearing.  The Worker wanted to be a dedicated camera operator as camera and film is his passion as evident from his animated expression when this was raised at hearing.  On the other hand, the Employer submits that those tasks outlined above were the nature of the work he submits the Worker would have known this before he took on the job. 

The Employer submits the Worker’s disappearances during the working day, attendance and punctuality issues were addressed with the Worker by various senior personnel throughout the probationary period and he himself also spoke to the Worker on these matters.  The Employer is adamant the Worker would have been in no doubt his job was in jeopardy if things didn’t improve.  The Worker accepts people did address time keeping with him but as far as he is concerned, he was taking the breaks he was entitled to.  The Worker states he was only spoken to once about not turning up at all and he is equally adamant he did not know his job was in jeopardy and he was taken by surprise when he was let go. 

I note the Employer was unable to 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 in order to afford the Worker an opportunity to improve by addressing his attendance and punctuality shortcomings.  On the facts as presented I conclude there was a serious deficit in the performance management of the Worker during his probationary period punctuated by what appeared to be a number of ad hoc phone calls from management regarding the issues that had arisen.     

Applying the reasoning of the Labour Court set out above to the facts of 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 own contribution to his dismissal as it is clear there were issues with attendance and punctuality which the Worker accepts were addressed with him by the Employer.  I take into account also the relatively short duration of the employment relationship.  I note the Worker has since commenced employment in a different sector and continues to pursue his other interests.     

Taking into consideration all the circumstances set out above I recommend hereunder. 

Unfair dismissal; probation; probation policy; procedurally unfair;