Worker

Employer

Worker

Employer

Anonymised Parties

A hotel worker

An hotel

Representatives

Peter Crean, Crean & O'Flaherty, Solicitors

 Did not attend.

Act

Dispute Reference No.

Date of Receipt

Section 13 of the Industrial Relations Act 1969 (as amended).

CA – 00061131 -001

22nd January 2024

The complainant commenced employment on 5th October 2022 and said employment ended on 2nd October 2023. The Complainant was employed as a Housekeeper at the respondent hotel.

It should be noted that in complaints heard under the Industrial Relations Act the complainant is referred to as a worker and the Respondent is referred to as an employer.

The worker was represented at the hearing by a solicitor and a full summary of her period of employment was provided orally.

By email dated 11th April 2024 the employer’s HR Manager informed the Workplace Relations Commission that they (the employer) would not be in attendance at the scheduled hearing on 24th April 2024.

The worker believes that her performance at work was acceptable and claims never to have been spoken to in relation to poor performance. During the period of her employment the employer sent three letters to the worker, these letters are summarised below:

Re: Probation Period – Extended Period – letter dated 20th March 2023

Your probation period with the XXXXX Hotel is due to end on the 28th of March 2023 and on this occasion the company have decided to extend your probation period for a further 12 weeks and it will be reviewed again after this time.

The reason for this extension is that during your time with us, you have failed to display the level of standard of work we require to service bedrooms to a 4-star standard. It is our aim over the next 12 weeks to work with you and offer support and guidance in reference to the issues outlined in this letter.

A performance improvement plan will be put in place for you……

Re: Probation period - successful. – letter dated 30th March 2023.

Your probation period with the (name of hotel redacted) ended on 28th March 2023 and I am pleased to confirm you have now successfully passed your probation period.

The terms and conditions of employment set out in your contract will continue to apply to your ongoing position.

Thank you for your continued contribution to the (name of hotel redacted) and we are looking forward to you continuing with us as a valued member of the team.

Termination of Employment – letter dated 25th September 2023.

As you are aware, your employment with the company was subject to a probationary period of 26 weeks, which was then extended. As you are aware the terms and conditions of your employment state that the first 26 weeks of your employment plus the extended period shall be probationary and that your employment may be terminated during this period at any time or at the end of this period.

It is with regret that your role here with the (name of the hotel redacted) has not worked out. Unfortunately, under the terms and conditions of your employment we are now terminating your employment under the probationary period with immediate effect. The company is giving you 1 weeks’ notice as is required in accordance with your terms and conditions………...

The Transparent and Predictable Working Conditions Regulations 2022 came into effect on 16th December 2022. The Regulations transpose the EU Directive 2019/1152 on Transparent and Predictable Working Conditions (“the Directive”). The Regulations amend a number of pieces of existing employment legislation, to include the Terms of Employment (Information) Act 1994, the Organisation of Working Time Act 1997, the Workplace Relations At 2015 and the Protection of Employees (Fixed Term Work) Act 2003.

The purpose of the Directive was to provide a level of transparency in working arrangements and protection to those employees on less secure contracts, for example, temporary contracts or gig economy workers. However, the regulations apply to all workers.

The Regulations make a number of amendments to the Terms of Employment (Information) Act, 1994 which is the legislation that requires employers to issue employees with written statements of their terms and conditions of employment.

The Regulations insert new provisions into the 1994 Act dealing with probationary periods, which can be summarised as follows:

1.       The Regulations provide that probationary periods in the private sector cannot exceed 6 months. However, the Regulations also provide that probationary periods can on an exceptional basis be longer than provided they do not exceed 12 months and it would be in the best interest of the employee to extend.

In the instant case the worker was not informed that her performance required improvement and whilst I note the letter dated 20th March 2023 states that her probation is being extended, the letter dated 30th March 2023 quite clearly brings the probation to an end.

The worker commenced employment on 5th October 2022, this employment ended on 2nd October 2023, a total of 362 days in employment, this equates to 51.71 weeks. If one is to accept that the initial probationary period was 26 weeks and that was extended by 12 weeks, that would be a total of 38 weeks.

I conclude that the worker was not on a probationary period of employment when her employment was terminated.

It should be remembered that employees on probationary periods of employment have the right to natural justice and fair procedures.

This situation has been very poorly managed by the employer, I have no hesitation in finding in favour of the worker.

I now recommend that the employer pays compensation of €5,000 (I note the worker worked 21 hours per week) to the worker and such sum should be paid within 42 days from the date of this recommendation.

s.13 Industrial Relations Act 1969.