Worker

Employer

Anonymised Parties

A Worker

An Employer

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 - 00002120

11/01/2024

This matter came before the WRC dated 11/01/2024 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 she was unfairly dismissed, and she 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 29/08/2024. 

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

The Worker was employed as a Sales Representative from 09/10/2023 until 15/12/2023 when her employment was terminated by the Employer.  The Worker worked a 40-hour week for which she was paid €770.75 gross per week. 

Central to the dispute it is alleged by the Worker that she was wrongfully dismissed from her position for raising a simple question regarding something that was stated in her employment offer which she accepted. 

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

The Worker submits on the 13th of December 2023 she attended an (overdue) one-month review meeting where the Employer stated repeatedly that he was satisfied with the work she had been doing and they discussed further plans for her work for January.  The Complainant submits that afternoon the Employer scheduled two further review meetings one for 10 January and one for 31 January respectively. 

The Worker submits that on the 14th of December, a member of staff notified her that some of her colleagues had already received their Christmas bonus.   The Worker submits she messaged the Respondent enquiring about the €500 Christmas bonus and when she could expect to receive it. The Worker submits the Respondent told her that she would be receiving a Christmas bonus of €250 as opposed to the €500 outlined in her job offer.   The Worker submits she proceeded to question this, and the Respondent apologised for the confusion and offered to check.

The Worker submits that on the morning of the 15th of December she received a follow up email from the Respondent stating that the Christmas bonus is half of the amount when on probation and that he should have clarified this in the job offer.

The Worker submits she responded to this, saying that she didn’t feel that this was fair as she was never made aware of this, and the Christmas bonus was one of the main attractions presented to her in the job offer when she was approached about the role.  The Worker submits that evening after work, she received a cessation of employment email from the Employer. 

The Worker submits that in this e-mail the Employer claimed that there were a number of contributing factors for ceasing her employment.   The Worker submits the Employer stated that her ‘response and attitude towards the Christmas bonus is something he would struggle to move past’.   The Worker submits the Employer stated that he understood the Christmas bonus presented to her in the job offer, and upheld that this was a mistake and that the amount for staff on probation was different.   

The Worker submits the Employer proceeded to say that she had not yet ‘proved herself ‘ in the role and thus would not be entitled to the same bonus as the rest of the team.   The Worker submits the Employer said that in his opinion, the bonus of €250 should have been ‘appreciated given her short service’.   The Worker submits the Employer went on to critique her recent work, saying that she had put very little quotes on the system, despite him instructing her to tie-up loose ends and pursue other obligations not pertaining to quotes at all.  The Worker submits the Employer ended the email saying that they had come to the conclusion that she was not the right fit for the business.  The Worker submits this was a shock to her, especially since I had received an extremely positive review just two days prior and we had arranged further meetings in the future; before she had questioned the Christmas bonus.

The Employer submits that during the Worker’s 9 weeks of employment until 15th December, she took 5 days of annual leave and  9 days of unpaid sick leave.   The Employer submits that effectively she had only 6 weeks of active work.   The Employer submits the Worker was hired as a Telesales Agent to generate new business.  The  Employer submits they provided leads of various types and the sales pitch and process was explained to the Worker. 

The Employer submits in short, the results were very poor in this time period (very few quotations) and very little activity.  The Employer submits that during the Worker’s employemnt she was regularly late in the morning and returning after lunch.  The Employer submits this was addressed with the Worker by the General Manager. 

The Employer submtis the negative response from the Worker caused him to evaluate whether she was a good fit for their business.

The Employer submits that when he considered her overall attitude, poor timekeeping and poor sales activity he decided that the Worker was not a good fit for the business.

The Employer submits that the main reason the Worker was let go was her poor day to day attitude, which was not cohesive with the culture of their very happy and team-oriented office.   The Employer submits they have a lot of long standing staff and not once in fifteen years have they had a dispute among staff.   The Employer submits the personal family issues and health issues on record may be the main contributor to stress and anxiety. 

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 [emphasis added].   

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.  

In this I am mindful of the recommendation of the Labour Court in Beechside Company Limited T/APark 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 contract of employment exhibited by the Employer in his submission provides as follows at clause 4:

Probationary Period & Targets

A probationary period of 6 months will apply.

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. 

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…”  [emphasis added]

On the information as presented to me by the parties it seemed the employment relationship was progressing along in an uneventful manner until the matter of the Christmas bonus arose.  I cannot find fault with the manner in which the Worker’s probation was being proactively managed with a review meeting having been undertaken and two further reviews scheduled.    

The email sent to the Worker by the Employer after what he acknowledges was on overdue one month review probation meeting held on 13/12/2023 provided a quick summary of what was discussed/agreed.  I am of the view the email was constructive and positive on a plain reading of same.  The Employer submits attendance and punctuality issues were addressed with the Worker by the General Manager and submits the Worker was late on 12 instances.  The Worker submits she was late on 2 occasions. 

I note the Employer was unable to provide any details or documentation in relation to the conversations that took place with the Worker addressing time-keeping issues or of the substance or the outcome of these conversations.  There was no information made available to me that when the Worker was alerted to these time-keeping issues she was informed by the Employer of the consequence of termination of employment if indeed I am to accept this performance deficit as the catalyst for her dismissal by letter/email where the Employer states that “overall we’ve come to the conclusion you are not a fit for a business.”  

I am of the view the use of euphemisms such as the employee was not the ‘right fit’ fall far short of what is expected of a reasonable Employer in a dismissal purportedly based on performance deficits where an employee is entitled at the very minimum to meaningful feedback on why they did not meet the grade during their probationary period.    

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. 

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.  I note the Worker is now a Carer for her grandparents in receipt of Carer’s Allowance. 

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

Unfair dismissal; procedurally unfair;