Worker

Employer

Anonymised Parties

Content Creator

Audio Visual Company

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

IR - SC - 00002082

01/01/2024

The Worker commenced employment on 9th October 2023. The Worker’s tenure was brief, with the same being terminated by the Employer on 24th November 2023.

On 1st January 2024, the Worker referred the present dispute to the Commission. Herein, he alleged that his dismissal was fundamentally unfair towards him. In particular, he submitted that he did not have an opportunity to contest the allegations of poor performance raised by the Employer. By response, the Employer stated that the Worker was dismissed in accordance with the agreed probationary policy.

Following the Employer’s positive election to engage with the dispute, the matter proceeded to hearing. Said hearing was convened for, and finalised on, 16th April 2024. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced by either side during the hearing.

Both parties issued extensive submissions in advance of the hearing, these submissions were expanded upon and contested in the course of the hearing.   

No issues as to my jurisdiction to hear the dispute were raised at any stage of the proceedings.

By submission, the Worker stated that he commenced employment on 9th October 2023. The Worker stated that this role was a new role within a small company, and that he worked alongside the owner and company director. The Complainant’s role was that of video content creator and in the first few weeks of his employment, he believed that he was performing well. Notwithstanding the same, the Worker accepted that some issues arose regarding some of the content he created. However, on each of these occasions he submitted that the same could be explained by issues with the technology and equipment used by the Employer. The Worker further stated that he did not receive any negative feedback in relation to this content and that was never informed that his role was in jeopardy. 

Notwithstanding the foregoing, on the evening of Friday 24th November 2023, the Complainant received an email. Herein, the Employer informed him that his employment was being terminated on the grounds of poor performance, with a number of allegations cited in respect of the same. The Worker did not have an opportunity to contest the same and, at the hearing, denied each of the allegations on a factual basis. The Worker further submitted that prior to issuing the letter of dismissal, the Employer provided a letter of reference regarding the standard of his work.

By submission, the Worker stated that his dismissal was fundamentally unfair towards him. He submitted that he did he fully contested the rationale for his dismissal and that he did not have an opportunity to present his version of events or advocate for his continued employment.

In denying the allegations raised by the Worker, the Employer submitted that the Worker was engaged on a fixed-term contract, with his continued employment being subject to a probationary clause.

During this probationary period, the Employer observed several deficiencies in the standard of the Worker’s output, particularly in relation to his video output skills. Despite several conversations in relation to the same, there was no notable improvement. Having formed the view that the Worker was not a good fit for the company, the Employer elected to dismiss him in accordance with the probationary policy.

In response to the allegations raised by the Worker, the Employer confirmed that dismissal occurred by way of email. Nonetheless, he submitted that the probationary policy allows for dismissal to occur in such a manner.

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

In the present dispute, the Complainant has alleged that he was dismissed in contravention of his natural and contractual rights. In particular, he submitted that he was dismissed by way of email and without any form of process being followed. By response, the Employer placed reliance on the fact that the Worker was within his probationary period, and submitted that as such, he was entitled to dismiss the Worker once he formed the viewed that he was not performing to the standard required.

Regarding the dismissal of the Worker, it is apparent that the Employer followed no form of formal or informal procedure prior to giving effect to the same. From a purely practical perspective, it is apparent that the Worker had no opportunity to dispute the allegations of poor performance raised by the Employer, did not have an opportunity to present his case regarding his ongoing employment and was provided with no right of appeal in relation to the same. While much of the hearing of the matter was concerned with the Employer seeking to establish that the Worker was informed of his alleged non-performance in the course of his employment, a sharp distinction may be drawn between the everyday instruction of a new employee in relation to such matters and a consideration of same that serve to place the Worker’s ongoing employment at risk.

By submission, the Employer stated that the relevant probationary clause permitted him to simply dismiss the Worker once he formed the view that he was not performing to an adequate standard. However, it is not the case that such contractual clauses allow an employer an unfettered right to unilaterally dismiss an employee in the absence of some form of fair procedure. 

In the matter of Beechside Company Limited t/a Park Hotel Kenmare -v- A Worker LCR21798 the Labour Court held that,

“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.”

Likewise, in the matter of Hamilton Insurance DAC v A Worker LCR22710, the Court stated that,

“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.”

It should be noted that such a position does serve to render the terms of a probationary clause moot and entirely inoperative. During such probationary periods, the process regarding such dismissals may be truncated and the standard of non-performance or misconduct resulting in dismissal may be much lower. Nonetheless, it is apparent that some form of process must be followed prior to effecting such dismissals and some form of non-performance or misconduct must be put to the relevant Worker.

Having considered the totality of the factual matrix presented by the parties, I find that the Employer has not established such non-performance on the part of the Worker. In such circumstances, I find in favour of the Worker in relation to the dispute as referred.

Dismissal, Probationary Clause, Process