Worker

Employer

Anonymised Parties

A Language Teacher

A Language School

Act

Dispute Reference No.

Date of Receipt

Industrial Relations Act, 1949

CA-61033

12.01.2024

The complainant was employed as a teacher in a language school where he commenced his employment on October 31st, 2023.

His employment terminated on December 19th, 2023.

He says that on December 12th he received an e-mail from his manager which contained glowing praise of his performance and yet a week later his employment was terminated.

He says this termination followed a complaint to his manager about overcrowding in his classroom. The relevant regulations provide for a legal maximum of fifteen students in the class and he was asked to accommodate three more. In the event, an arrangement was made to enable him to proceed but his employment was terminated on the same day.

He says he has decided to complain because this is not an ethical way to treat employees. His employment was terminated in the week leading up to Christmas and although he secured employment on January 1st, 2024, he was out of work for that one month.

The school Director who attended the hearing stated that while she was abroad when the incident between the complainant and his manager occurred, she received an e-mail from the manager who had the interaction with the complainant on January 19th which gave her great cause for concern.

The e-mail referred to the disagreement over the numbers of students to be taught in the classroom and subsequent efforts that were made to accommodate the additional students.

However, it also referred to an incident in which it was alleged the complainant had behaved aggressively and was swearing at his manager.

The e-mail also referred to the complainant as having said that he would walk out if the manager started ‘giving out’ to him. It contained an allegation that the complainant would raise the matter to the school director. Finally, the manager said that he left it at that because he could not have a conversation with him and not see it state and also did not feel safe.

The Director stated that she could not accept this sort of conduct and decided to terminate the complainant’s employment. This was not related to the dispute about the numbers to be accommodated in the classroom but about the tone and content of the exchange between the complainant and his manager.

She read the email sent to the complainant terminating his employment. She accepted that it did not contain the reason for the termination.

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

The narrative set out above is not in dispute except insofar as the complainant disputed that he behaved in an aggressive manner towards his manager in the course of the conversation referred to, while accepting that he did swear at him in the course of the exchange, including use of the ‘F’ word.

The complaint is that the complainant  was unfairly dismissed. He has not acquired the service to make him eligible to complain under the Unfair Dismissals Act 19977 and this complaint comes by way of a referral under the Industrial Relations Act, 1969.

Whatever their source, many, if not most complaints of unfair dismissal turn on some point of procedure. This may sound like a technical basis on which to challenge a termination, but it is generally much more than that.

The reason is that the procedural issues normally relied on go to whether fair procedure and natural justice have been complied with and while these may require to be operated at a lower level when a person is on probation this does not mean 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.

A termination may be unfair for other reasons, but this is the relevant consideration in this one.

Specifically in this case, while the respondent explained to the hearing her reasons for terminating the complainant’s employment, and in principle these were sound prima facie reasons for concern, she did not think it necessary to set these out in the letter to him actually terminating it. He was given no reasons.

Also, while the allegations in the letter from the complainant’s manager were, as noted serious on a prima facie basis no steps were taken by the respondent to establish their veracity, specifically by asking the complainant for his side of the story. No effort was made to establish whether the allegations were well founded.

It does not require much effort to ask the other party in such a dispute for their version of events.

The respondent might well have concluded having done so that she wished to terminate the complainant’s employment for cause.  At the hearing she referred to the fact that the complainant was on probation.

The purpose of probation is to assess an employee’s performance and suitability for continuing employment, not to provide cover for peremptory disciplinary action. While conduct such as occurred in this case is a perfectly valid basis for reviewing the probationer’s continuing employment some minimum procedural courtesies must still be observed.

Accordingly, by reference to these established criteria I find that the termination was unfair. I take into account the complainant’s contribution to the dismissal and recommend that the respondent pay him €1,500 in compensation for the breach of his rights.

This is an award of compensation under the Industrial Relations Act and is not liable to statutory deductions and should be paid be paid in full.

Probation, Fair procedure