Worker

Employer

Anonymised Parties

A Service Manager

A specialist Engineering Consultancy Company

Representatives

Self-Represented

Ms K Duffy of Flynn O’Driscoll Solicitors & Company Managers

Act

Dispute Reference No.

Date of Receipt

Section 13 of the Industrial Relations Act 1969 (as amended

CA-00062110

08/03/2024

The dispute concerned an alleged Unfair Dismissal of a Service Manager by a specialist construction Consultancy Company.

The Employment began on the 25th September 2023 and ended on the 8th March 2024.

The rate of pay was stated to have been an annual salary of € 65,000 for a 40-hour week.

The Worker was self-represented. He gave an Oral testimony supported by a detailed complaint form. In essence, his evidence was that he was new to the role in a Data Centre environment. He was not a technically qualified Engineer for what soon became apparent was a quite Technical role. He never received any proper training or proper induction as to what the job actually involved. He was based in a porta Cabin on a major building site with major works still ongoing.

In this environment his opportunities to properly communicate with the end Client were very restricted. They were not on site on a regular basis.  The support offered from his own Company were equally limited as his immediate Manager/Supervisor was based in England. The Probation Review at two months in the job was “sprung” on him and was essentially unfair as the day-to-day physical reality of the job was not given due credence.

His Manager, Mr T, had admitted that he could have been more supportive. In his conclusion the Worker stated that he had been subjected to a very subjective probation review and was denied the opportunity to improve as there was no support made available.

The Employer was professionally represented by Ms. Duffy, Solicitor and Ms S, Company Manager. A written submission was provided.

In essence the Employer case was that they had hired, they believed, an experienced Customer Services Manager. Regrettably in the course of the employment it soon became obvious that the Worker was failing to perform to the expected standards. This was especially so in the area of being Customer proactive and building a good relationship with the main end user client.

The Employer had arranged a standard two-month Probation meeting in January 2024 with the Worker, his Manager with a HR Rep in attendance. The Manager had expressed his concerns regarding weaknesses in Relationship Building.  A detailed follow up letter, setting out requirements, had been issued from Ms S in HR on the 10th January 2024. The Worker had demonstrated some brief improvements post this meeting.  Furthermore, he had not expressed any concerns regarding lack of support or the need for further training. The improvements tailed off and the second Probation review meeting took place on the 8th March 2024.

At this meeting the Employer informed the Worker that he was not achieving the required standards. His probation was not going to be renewed and his employment would be immediately terminated.

The Employer stated in conclusion that the Worker had been unsatisfactory in the Role of Customer Service Manager. His employment /probation had ended on this basis.

Cross questioning took place between the Parties particularly in relation to the specifics of the role. It was alleged that the Worker had been asked to undertake what, the Worker claimed, was a very Technical role with no Technical background experience and was offered no support. The Employer refuted this and said that the Worker had been expected to operate in a very proactive Stand-Alone Customer liaison capacity but had clearly not done this. Any support he had required was available.

His failure in Probation was due to the inability to deliver the required Customer liaison.

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

3:1       Legal position – The industrial relations Act,1969 and significant Legal precedents.

The Worker in this case has less than 12 months service with the Employer. It follows that he is not covered by the Unfair Dismissals act ,1977 which requires a 12-month service period save in certain exceptional circumstances. These cover areas such as Trade Union membership, Pregnancy, Religious Beliefs, Race, Colour or Sexual Orientation, Membership of the Travelling Community among others. None of these exceptions were advanced by the Worker.

Accordingly, he is taking his Dispute under the industrial relations Act,1969 which allows for the making of a Recommendation by an Adjudicator on how best a dispute can be resolved.

Disputes involving Probationary Dismissals are often quite fraught.  The Labour Court has often indicated that an Employee on Probation with less than 12 months service is not devoid of all Legal protections. The issue is often one of deciding whether or not the Dismissal is due solely to Probation Performance issues or has other aspects involving serious Disciplinary Overtones.

Cases involving potentially very serious disciplinary outcomes (Theft, Assault , Damage to Property etc) require the full benefits of all natural Justice . A performance review on achievements or otherwise of Employer desired outcomes can be less procedurally vigorous as long as there is full communication between the parties.

The Landmark case is now generally taken to be O’Donovan v Over-C Technology (Court of Appeal) [2021] IECA 37 by Ms Justice Costello. Paragraph 49 is worth quoting.

“In my Judgement, the trial judge failed to give adequate weight to the fact that the termination occurred during a period of probation. That is a crucial fact in this case. During a period of probation, both parties are -and must be-free to terminate the contract of employment for no reason or simply because one party forms the view that the intended employment is, for whatever reason, not something with which they wish to continue. Neither party can hold the other to the continuation of the employment against the wishes of the other. I do not accept that a court can imply a right to fair procedures -still less uphold a cause of a action for the breach of such an alleged right – in relation to the assessment of an employee’s performance by an Employer (other than for misconduct which does not arise here) during the probationary period, as this would negate the whole process of a probationary period”

However, all cases rest on their own particular circumstances and these have to be reviewed next.

3:2          Reviewing the Evidence

Applying the Appeal Court judgment quoted above to the case in hand and after reviewing all the evidence both written and by oral testimony, it is clear that there was never any suggestions of impropriety or breach of Company rules. Misconduct was not an issue. It was a direct case of perceived failure to achieve work standards required by the Employer.

In relation to fair procedures and SI 146 of 2000, Statutory Code of Practice on Grievance and Disciplinary Procedures the Employer held two Probation reviews that were advised in advance to the Worker. The January 2024 meeting, (minutes supplied with follow up letter from Ms S) clearly indicated to the Worker that there were Employer issues that he needed to address. Regrettably the Employer, in the March 8th 2024 meeting, felt that the required standards, were not being met and ended the Probationary employment.

Obviously from the Worker’s viewpoint this was very disappointing.

However, from an Industrial relation viewpoint as required by the Act, the Recommendation has to be with the Employer.

It was a probationary ending of Employment and no firm grounds for an Unfair Dismissal case can arise.

The outcome has to be with the Employer.

Unfair Dismissal, Industrial relations Act,1969, Probationary Dismissal.