ADJUDICATION OFFICER Recommendation on dispute under Industrial Relations Act 1969

Investigation Recommendation Reference:  IR - SC - 00002724

Dispute:

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Date of Hearing:             21/08/2024

Procedure:

In accordance with Section 13 of the Industrial Relations Act 1969 (as amended)following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any information relevant to the dispute.

Background:

The Worker contends that she was unfairly dismissed during her probation period without due process.

Summary of Workers Case:

The Worker in this case submitted a narrative of her complaints and disputes in the complaint form.  She supplemented this with voluminous documentation, screenshots, updates on times and performance details.  She submits that she was unfairly treated, was given many more tasks than others, and was subjected to extreme scrutiny of her performance.

In essence, her complaint is that she was unfairly dismissed.  She was told at the early stage of her employment that she was successfully completing her probation. Then she was moved to a new Team Leader who placed impossible demands on her.  She was given tasks with just 3 minutes to complete and she also worked many hours overtime without acknowledgement.  She contends that she raised the issue of the timed tasks many times with her Team Leader and with her manager.  They responded by asking her to justify why it took her so long to complete tasks in the time.

On 28th May 2024 the Manager called her to a meeting where he complained about issues, and pointed out a complaint by a client, ignoring another appreciation email from another client.  He pointed out cash posting errors which the Worker contends are natural mistakes considering the time pressures.  The Manager documented this meeting in an email and the Worker responded by promising that there would not be such an issue going forward.  On 5th June 2024 the Manager called her to another meeting at which the HR Business Partner attended.  They told the Worker that her employment was terminated as she had not been able to fulfil the requirements of the job for which she was employed.  She did not have a chance to defend herself or speak up and she contends that she was unfairly dismissed.

Summary of Employer’s Case:

The Complainant submitted a WRC Complaint Form dated 5 June 2024. In the Complaint Form, the Complainant alleges that she was unfairly dismissed during her probationary period.

The Respondent contests the claim on the grounds set out in detail below. In summary, it is the Respondent’s position that the Complainant was fairly dismissed for not having passed probation, in accordance with her contract of employment.

The Complainant commenced employment with the Respondent on 15 January 2024 as a Fund Accountant.

Pursuant to clause 8 of her Contract of employment, the Complainant was subject to a probationary period for the first six months of employment (the Probationary Period). During this time her employment could be terminated by the Respondent giving one week’s notice. Clause 8 provides, inter alia:

“8.1 The first 6 months of your employment with us will be a probationary period, during which either you or we may terminate your employment by giving to the other not less than one week's notice in writing (which may expire after the end of the probationary period)...

8.3 The Company may, at its discretion pay you in lieu of all or part of your probationary period (or extended probation). Where payment is made in lieu, your employment shall terminate with immediate effect.”

The Respondent provides employees with a comprehensive training programme upon commencement of employment which employees are expected to complete during the onboarding phase in the first 2-3 months of employment. This training involves both mandatory and non-mandatory training. The Complainant was required to complete the comprehensive training programme during the initial onboarding phase of her employment with the Respondent. However, she failed to do so and eventually contacted her manager on 17 May 2024, to inform him that she had overdue training to complete and requested that she complete these trainings instead of being allocated client-focused work. Her training log evidenced that the Complainant had a significant number of trainings that were overdue for some time and still had 13 mandatory training courses left to complete. She informed her Manager that her workload made it difficult to complete the trainings. This explanation from the Complainant is disputed by the Respondent as while not all strictly mandatory for the Complainant’s specific role, the trainings were largely due to be completed during the Complainant’s onboarding phase before she took on ‘full duties’ within her team.

During the Probationary Period, the Complainant’s performance and suitability for the role was monitored. While it is not disputed by the Respondent that the Complainant performed satisfactorily at the outset of her employment in the onboarding phase, however, the Complainant’s manager incorrectly assumed that during this period the Complainant had been completing the training assigned to her, both mandatory and non-mandatory. It became apparent to the Respondent once the Complainant transitioned from the training phase to the full-time working phase that the Complainant was failing in key areas, in particular discharging her duties in a timely manner and adhering to business-critical deadlines that are a fundamental aspect of the Complainant’s role.

The Complainant was moved to a team where it was believed this move would support the Complainant in improving her performance during the probationary period.   It soon became apparent that the Complainant’s performance was not satisfactory following a number of issues, including complaints from clients.  A number of examples were given.

The Complainant’s Manager discussed these complaints with the Complainant on 1 May 2024 and summarised the issues with the Complainant’s performance and the improvements expected from the Complainant by email.

During the week commencing 13 May 2024, the Complainant contacted her manager requesting that he formally ‘pass’ her probationary period early. The Manager met with the Complainant and made it clear to her that he could not facilitate this request and it was not a certainty that she would in fact ‘pass’ her probationary period due to the performance issues and complaints received from clients.

On 28 May 2024, the Manager invited the Complainant to a meeting to discuss “timelines and accuracy of tasks being performed over the last few months” and to let him know if there was anything the Respondent should be aware of and “if there is anything that can be done to help”.    He followed up this meeting with an email documenting what was discussed.

On 5 June 2024, he invited the Complainant to a further meeting. This meeting was also attended by a HR representative of the Respondent. At this meeting, the Complainant was informed that her employment was being terminated due to her inability to fulfil the requirements of the role of Fund Accountant. The Complainant was paid in lieu of her one week notice in line with the Contract and so her employment terminated on 5 June 2024 and the Complainant received confirmation of this in writing on the same day.

LEGAL SUBMISSIONS

The seminal decision of the Court of Appeal in Donal O'Donovan v Over-C-Technology Limited and Over- C- Limited IECA 37 is of particular relevance, wherein Costello J. held that:

"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 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 purpose of a probationary period.”

In a recent High Court case, Buttimer v Oak Fuel Supermarket Ltd [2023] IEHC 126, it was acknowledged that: “The authorities are clear that an employee may be let go during her probationary period for any reason (including poor performance) or no reason without any obligation to afford fair procedures.”

In the WRC case of A Salesperson v A Software Company ADJ-00032732 it was stated that: “During a probationary period, an employer has a contractual right to terminate the contract where that assessment is based on performance or fit for the organisation.”

It is clear from the above case law that the Respondent was entitled to do so and that the principles of fair procedures do not apply in the case of a termination during probation where that termination is on grounds of performance.

Notwithstanding the above, the Respondent submits that the Complainant was treated fairly at all times and was provided with an appropriate level of fair procedures during probation prior to the decision to terminate her employment. The Complainant received training, guidance and support from the Respondent during her employment and the Respondent assisted the Complainant in trying to improve her performance. The Complainant's manager re-assigned the Complainant to a different client with less strict deadlines and response times to enable her grow into her role and achieve satisfactory performance during the probationary period. He also provided the Complainant with constructive performance feedback and highlighted the Complainant’s performance deficiencies on a number of occasions to allow her time to work on improving her performance. In addition, the Team Leader explained and highlighted performance issues to the Complainant to assist her in the performance of the role going forward. Notwithstanding these efforts and assurances by the Complainant that actions and objectives would be met, the Complainant did not perform to the reasonable standards expected and routinely failed to meet the clear objectives set of her.

It is respectfully submitted that, having regard to the totality of the evidence, the Complainant cannot plausibly claim that she was not informed of the issues with her performance and given sufficient opportunity to improve or that she was surprised by the Respondent’s reasonable decision to terminate her employment during the probationary period.

In summary, the Respondent submits that the Complainant was fairly dismissed during the probationary period in accordance with her Contract for her repeated failure to demonstrate her ability to satisfactorily perform the role of Fund Accountant, and, as such, the Complainant's Industrial Relations Claim must fail.

Conclusions:

Recommendation:

Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation in relation to the dispute.

I recommend that to draw a line under this dispute, the Employer should offer the Worker a sum equivalent to one month’s wages.  For her part, the Worker should delete any information held in relation to Clients and provide evidence of such to the Employer as a matter of urgency.  

Dated:   11th of October 2024

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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