ADJUDICATION OFFICER Recommendation on dispute under Industrial Relations Act 1969

Investigation Recommendation Reference:

ADJ-00053846  

Parties:

Dispute:

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Date of Hearing:             12/12/2024

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 he was unfairly dismissed due to sick leave.

Summary of Workers Case:

The Worker was employed as a HR Assistant from 22 January 2024 to 30th August 2024.  He believes he was unfairly dismissed.  The reason for the dismissal was due to him being on sick leave.  The Worker noted the criticisms of his performance but drew attention to his probationary review in March 2024 which stated that he was a very good worker.

Summary of Employer’s Case:

The Employer is a leading, trusted supplier of security services to a wide range of clients, including to both state bodies and many of Ireland’s best known companies. In managing and organising that business, the Employer had cause to employ the Worker within the role of HR Assistant, pursuant to a Contract of Employment entered into between the parties on the 15th January 2024 (See Booklet), with the Worker commencing within that role on the 22nd January 2024.

The Contract of Employment provides for a part time position, working Mondays, Wednesdays and Fridays. Of note, the Contract also contains standard probationary provisions at Clauses 1.2-1.4, ultimately reserving the right to terminate the contract for any or no reasons during the probation period upon the furnishing of notice. The relevant notice periods are set out at Clase 11.2 and reflect the statutory position.

It is the case that the Employer had cause after only the first month to speak with the Worker regarding his standard and quality of work, with his line manager Mr B addressing him in relation to work tasked to him that and not completed. It is the position of Mr B that the Worker’s quality improved only in the very short term and that even by the following week there were issues again regarding incomplete tasks and substandard work.

In addition to addressing these highlighted issues, the Employer had cause to also address the fact that the Worker was repeatedly and openly using his personal laptop in the workplace to access crypto currency sites. On or about the 12th of February 2024, Mr B had cause speak formally with the Worker and direct him that this was not acceptable. He was told in clear terms that he should desist from bringing his personal laptop into work and accessing crypto currency sites during his hours of work, which time should be spent instead on undertaking the tasks assigned to him as a HR Assistant.

Even as early as the middle of February 2024, such were the concerns held in relation to the Worker’s approach and output, that his first appraisal was brought forward to be conducted on the 27/03/2024, just over two months after his start date.

Three main areas under review were highlighted to the Worker at that probationary review meeting, as areas that still required improvement, namely the headings “Attitude/Respectfulness”, “Accepts Criticism” and “Organisational Skills”. It is the case that Mr B spoke to the Worker in depth in relation to these points and reminded him that he was under probationary and that improvement was needed in these areas.

Again, whilst there was an initial short-term improvement in application and attitude, issues continued to arise. The Worker did not bring his personal laptop into the workplace but instead soon started to openly use his personal phone to access and visit crypto currency sites during normal working hours, to the detriment of his tasked work. Mr B had cause to speak with the Worker on several further occasions on or about the 14th April 2024 and the 20th May 2024 about this, repeating that this was not acceptable during working hours.

As his line manager, Mr B would assign and monitor tasks for the Worker and found that the work continued to deteriorate, with assigned tasks simply not completed. This was particularly evident after Mr B went on annual leave between the 12- 19 June 2024. Before he left, specific work was assigned to the Worker (relating to a specific body of new work). However, upon his return, the work was simply not completed and when he questioned the Worker, his reply was that he didn’t have the time as he was helping the operations manager whilst Mr B was away. When Mr B took the issue up with the Operations Manager, he was informed that the Worker had completed very little work whilst Mr B was on leave and also that he had been observed repeatedly using his personal phone for significant lengths of time.

It is the case that at this point, Mr B had serious and persistent concerns regarding the quality and approach of the Worker, who remained in the early stages of probation and had now been spoken to repeatedly.

The Worker went out on certified sick leave for the two week period of 13-23 May 2024 ( Medical Certificates merely cited “Medical Condition”). It was obviously not possible to further assess his work during this period of his probation period.

In addition, on or about the 21st June 2024 Mr B had cause to speak to the Worker in relation to video footage shown by the Worker to colleagues of him fighting on the streets in the city. Mr B questioned him on this, and the Worker admitted to it, saying that it had happened some time previously. The Worker was told him that such behaviour was entirely unacceptable and against Company Policy and that he should refrain from showing such videos to any other staff members.

The Worker was under probation during this period and Mr B was reaching the view that the Worker, who had been spoken to formally and informally over the previous months, was not any nearer to reaching the level required to pass probation. Mr B discussed his concerns with his line manager and it was agreed that the Worker would be spoken to and informed that he had not passed his probationary period and furnished notice of termination on that basis, with a date of the 5th July 2024 earmarked.

The Worker absented himself on a further, extended period of leave, for the period from the 24th June right through to the 16th August 2024.

The Worker returned on Monday the 19th August 2024. The following day, Mr B met and spoke with the Worker and outlined to him that his probation period was to be extended further to account for the additional certified absences. It is accepted that the Worker was at that time wearing a support bandage and referenced an upcoming MRI relating to his arm. However, regardless of his reference to his arm, the Worker was clearly under probation and had been spoken to repeatedly about both performance and remained under extended probation. Mr B continued to monitor his work over the rest of that week and disappointingly, the Worker was repeatedly observed, again spending excessive time on his personal phone and was still failing to complete tasks that were being assigned to him. It is the position of Mr B that the Worker was well aware at that point that he was seriously at risk in terms being able to pass his probation. By the end of that first week of return, Mr B was forming the view that with no improvement, a decision now needed to be progressed. Accordingly, Mr B issued the Worker with formal extension of his probation notification and it was his intention to then consider a potential probationary termination, the following Friday 30th of August 2024.

In fact, on Monday the 26th August 2024 Mr B received a phone call from the Worker who referenced “an accident”, told him that he had a medical certificate and asked whether he could work that day from home. He was told that if he was on certified medical leave, he could not work from home and that he should send the certificate in to his employer. Additionally, Mr B reminded the Worker that he did not have equipment in any event to allow him to fulfil any duties, even were he to be working from home.

The Worker duly forwarded medical certificates/documentation covering the dates 25th August (which was a Sunday) and Monday the 26th August and then a further certificate the following day covering the 27-29 August 2024.

In any event, the Worker returned again to work on the 30th August 2024. Mr B asked him into a meeting room and informed him of the decision to serve notice of termination on the basis of an unsuccessful probationary period. As an employee on probation, the contract of employment reserves such a right to terminate and he was given a termination letter to that effect, granting him a weeks’ notice with a termination date of the 6th September 2024.

About an hour later the Worker approached Mr B outlining that did not want to work out his week’s notice and instead wished to resign with immediate effect. Whilst it placed Mr B at the loss of his services for that week, he agreed to facilitate same on the basis that the resignation was set out in writing. Mr B followed up with an email stating same and the Worker duly issued an email confirming his decision to resign effective of the 30th August 2024, which released him of the necessity to work out his week’s notice.

In is the case that the Worker was spoken to on repeated occasions regarding his accessing of crypto currency sites on his own devices during working hours, all within the context of his failure to complete tasks assigned to him. Indeed, the WRC Complaint Form acknowledges the fact that he was spoken to regarding use of his phone. It is denied that the phone he was using was his work phone. They were distinguishably different phones. The Worker was formally spoken to during his probation regarding areas that needed improvement and his probation was also extended. However, ultimately a legitimate decision was taken, which was entirely lawful and indeed provided for within his contract, to terminate during the probationary period. He was furnished one week’s notice but prior to same, acceding to his request, he was permitted by the Respondent to resign given his stated, express preference not to work out the required week.  It is thus the case that the Worker resigned from his position, albeit in the face of a week’s notice prior to termination for failure to pass probation. A dismissal as such cannot be said to have occurred. In the alternative, in so far as a dismissal was about to occur, it was an entirely legitimate, fair and orderly decision to not deem the Worker to have passed his probation and serve notice to him.

Conclusions:

The Worker was in the employment for some 7 months.  He had a number of sick leave absences and his probation was extended.  It is clear that the Employer had many issues with his behaviour at work, including phone use, access to crypto currency sites, showing a video of a fist fight to others in the workplace and not being able to take criticism.  The employer did give him a chance to improve and extended his probation.  The Worker then resigned on the spot when he was given a week’s notice.

I note the extension of the probation period was to expire on 23 September 2024 and the employment was terminated by letter dated 30 August 2024 which stated that he would receive one week’s notice.  While I accept the Employer’s point that the Worker walked out, and opted not to work out his notice, occasionally an Employer will still pay the week’s payment in lieu of notice.                    In this case, I do not find that the Worker was unfairly dismissed.  However, I recommend that the Employer pay the Worker the one week’s notice pay of €324 in full and final settlement of this dispute.

Recommendation:

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

I recommend that the Employer pay the Worker the one week’s notice pay of €324 in full and final settlement of this dispute.

Dated:   20th February 2025

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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