Worker

Employer

Anonymised Parties

A Worker

An Employer

Representatives

Self-Represented

John Barry Management Support Services (Ireland) Ltd

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-00063569-001

16/05/2024

This matter came before the WRC dated 16/05/2024 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 16/09/2024. 

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

The Worker was employed as a Business Support Manager.  The Worker’s hours of work varied between 40 to 60 hours per week for which he was paid €5200.00 net monthly. 

The Employer is company engaged in the provision of catering services on a contract basis to a range of clients including the healthcare sector. 

The Worker submits that his dismissal was pre-meditated and unfair and did not align with established employment protocol.  The Worker submits he remains unclear as to the grounds for is dismissal as he has received nothing in writing. 

The Employer submits that no one has questioned the Worker’s commitment to getting the work done but it became apparent that the Worker was not suitable for the role and that it was a genuine situation of the wrong person for the job and the decision to dismiss was fair in the circumstances. 

Both parties provided helpful written submissions in advance of hearing for which I am grateful.

Overview of written submission

The Worker submits the Employer stated the reason for his dismissal was due to the poor financial performance of a newly opened contract and that the Worker was not performing to the standard required by the Employer. 

The Worker submits there was no official job description provided apart from a generic paragraph outlining duties in his terms and conditions.  The Worker states he asked for the job description many times.  The Worker submits his role was that of Business Support Manager to catering services healthcare sector. 

The Worker’s contract of employment provided a probation period of 6 months with a right to extend but not to exceed 11 months.  The Worker states his first probation review took place after three months prior to which the Worker was sent a form which provided for self-evaluation under a number of criteria and also provided for an employee’s comments in respect of assessing their own performance and any assistance or further training required.  There was also provision for an employer’s comments. 

The Worker submits during the first review meeting at three months the Employer did not share or compare her assessment of his performance with him and she advised she had not completed any assessments.  The Worker submits the Employer did not provide any input during the review meeting apart from advising him that he was “well on track”.  The Worker submits there were no minutes taken or shared and there were no new KPIs set, agreed or signed off on.

The Worker submits that leading up to the second review the same form that he had returned to the Employer after the first review was sent back to him to grade himself again.  The Worker submits he was of the mindset he would be successful in the review as he was now managing 12 sites and in view of the hours and commitment he had given to the company given the very high staff turnover and staff shortages.  The Worker submits he successfully opened two contracts during his six months.

The Worker submits he made it clear to the Employer that he would need assistance in the recruitment process and support in managing all the sites in the interim as staffing was definitely an issue in this sector and he had discovered he was the fourth business support manager in that particular sector in less than 2 years.

The Worker submits that at the six month review meeting he was told that the Employer would be extending his probation period for another two months on the basis it was felt he needed more support in his sector and that it was “only a formality” to get him up to speed and they would provide all the support required to ensure he would succeed. 

The Worker submits two weeks later he was dismissed and he is still not clear on the reason as there was nothing in writing. 

Overview of written submission

The Employer submits that during 2023 the company decided that as its activities within the healthcare industry had grown it would appoint a person directly responsible for that industry.  The position created was that of Business Support Manager to catering services healthcare sector.  The initial appointee to the position decided after three months that they did not like the healthcare sector left the company.  The Worker successfully applied for the position.

The Employer submits the responsibilities of the Worker were detailed in the job description.  The Employer submits the Worker commenced employment on 2 October 2023 and an induction programme took place with the MD and other relevant senior management within the company to allow the Worker to familiarise himself with the operation of the company.

The Employer submits the plan was that the Worker would eventually have 12 operations directly reporting to him but in the early stages he commenced with 9 operations and 4 managers reporting in to him.  The Employer submits two mangers left and the Worker had to initiate recruitment to get new people in but no one was appointed.  The Employer submits the Worker spent most of his time on a particular contract which meant other contracts very much being left to be monitored by other senior management or to work away on their own.

The Employer submits that despite this increased attention by the Worker on one operation there was no clear improvement in the operational costs or the management of that operation.

The Employer submits that at the 3-month probationary review his difficulty to get on top of things was a view based not just on the MD’s own experience but on feedback from other managers who interacted with the Worker. 

The Employer submits the MD acknowledged that the Worker appeared committed to getting the job done but she questioned his ability to deal with the type of problems and issues that were coming up in these contracts which was a concern to the MD as she was relying on the Worker to successfully operate all units once they transferred to him. 

The Employer submits over the next three months the MD hoped to see an improvement but that despite the Worker’s assertion in the 3-month review that he would get on top of things this did not happen.  The Employer submits a decision was made that rather than terminate the Worker’s employment at the end of the probation period that they would give an additional 2 months in the hope he would deliver on the type of service expected of him.  At the 5-month probation review the Worker was advised his probation would be extended.  The Employer submits the decision to terminate his employment was conveyed to the Worker soon after his 5-month review but that it was a decision that had been in the offing for a while. 

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. 

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.  

I note that 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. 

In this I am mindful of the recommendation of the Labour Court in Beechside Company Limited T/A Park 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 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…”  

On the basis of the information as presented to me by the parties I note there appeared to be an attempt made by the Employer to ensure a structured approach to the Worker’s probation period by virtue of the fact a 3-month review was in fact scheduled in a timely manner.        

However, I have to conclude on the basis of the 3-month probationary review form exhibited by the Employer that there was no assessment of performance in such a manner as to provide for a performance improvement plan with clear goals and reviews and no formal indication of the support that would be provided.  The Worker was requested to self-evaluate which he did.  The Employer provided the following commentary in assessing the Worker’s performance:

“[redacted] needs to manage his time in order to keep all elements of the role in balance.  Learning to balance and prioritise issues and juggle the demands of the role”. 

The Employer documented the following recommendations / points for action:

“Diary time in advance to complete tasks and ensure close out of actions.” 

I note the Worker submits the MD did not provide any input during the meeting apart from advising him that he was “well on track”.  I note the Worker submits there were no KPIs set agreed or signed off on and no minutes shared.  It is difficult to escape the conclusion that the 3-month review was a tick the box exercise which was hastily followed by the 6-month review at 5 months for which I note the Worker submits the same form was sent back to him.  It is noteworthy the Employer did not exhibit the 6-month / 5-month review form in their submission.  I note the aforesaid review meeting was undertaken on 21 March 2024 after which the Worker emailed the Employer that he was a bit taken aback that his probation was being extended and the Worker set out for the Employer the areas of concern in which he needed support. 

I note the Employer formally notified the Worker his probation was being extended until 8 months by letter of 3 April 2024 where the Employer sets out that she will endeavour to give all the support that she can in the areas identified.  The letter sets out as follows:

“Should you fail to successfully pass this extended probation period, it is possible that this may result in the company terminating your employment.” 

I note this extension would mean the Worker’s probation period was due to continue up until 02 June 2024 (his employment commenced on 02 October 2023). 

Notwithstanding, the Worker was informed verbally on 19 April 2024 that his employment was terminated which was 2 weeks into the extension of his probation.

I note the Worker was dismissed with immediate effect and that he received nothing in writing outlining the reasons for his dismissal.  I note the Employer accepts it implemented a quick decision to dismiss and “to ameliorate they paid the Worker six weeks’ pay” as submitted.   

I note the Workers assertion that he genuinely thought he was on top of things, and I also note the Worker’s assertion at hearing that he never would have taken the job if he had seen the job description.  The Employer submits the job description had been forwarded to the recruiter.  I note the Worker submits he was looking for a career to settle in to and he was not afforded the support and the opportunity to get it right. 

I note the Worker submits his previous area of expertise over many years was in the area of corporate hospitality and that healthcare is a “different type of animal and needs a different type of person.” 

The Employer would like me to accept this was a situation of the wrong person for the job and while this may well be the case I note the Employer interviewed the Worker, he was selected for the job and hired arising out of said interview by the Employer and subsequently he was dismissed during his probation. 

It is not my role to even attempt to speculate on what was discussed during an interview that led to a job offer by an employer to a candidate who did not seem to know what the job entailed, and who, by his own admission, would not have taken the job if indeed he had known what it entailed all of which has now culminated in this dispute between the Worker and his former Employer. 

My role is limited to an examination of the manner in which the termination of employment was undertaken by an employer. 

I can only conclude that it was unreasonable and unfair of the Employer to terminate the Worker’s employment in the manner in which this termination was executed two weeks after the Worker’s probation had been extended for two months without any warning, or any right to appeal, or any right to be accompanied, when he was informed of his dismissal with immediate effect.   

I am of the view that if the Employer had engaged with the Worker in a meaningful probationary process, rather than a process that is best described as perfunctory at its height,  and if the Employer had given the Worker a clear and unambiguous message that his performance was not up to standard rather than the platitudes including that extending his probation was “only a formality” and advising him he was “well on track” it may well have given some impetus back to the Worker that would have enabled him to decide for himself, in advance of any dismissal, whether or not the job was the right one for him. 

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. 

On the merits of this dispute, I recommend in favour of the Worker. 

In deciding on the appropriate level of redress I have duly considered and incorporated into my recommendation the relatively short duration of the employment relationship together with the 6 weeks’ pay paid to the Worker at termination. 

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

Unfair dismissal; procedurally unfair;