Worker

Employer

Anonymised Parties

Customer Representative

Distribution Company

Representatives

Self-Represented

Alastair Purdy SC, Alastair Purdy & Co Solicitors

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 - 00003020

20/08/2024

The Worker held the position of Customer Representative. He signed a contract of employment on the 18 September 2023. His employment was terminated on the 14 June 2024. His salary, as submitted by the Employer and uncontested by the Worker, was €875 per week. The Worker claims he was dismissed in an unfair manner without stated reason.  He   submits the opinion that it was a reaction to his application for Parental Leave.

The Employer contends that the issue with the Worker was related to his overall performance and suitability and not connected to his application for Parental Leave nor misconduct. The Employer asserts the workplace relationship was not working out and that in the circumstances the Employer was entitled to terminate employment without recourse to formal procedures.

On 16 May 2024, the Sales Manager (Mr A) issued the Worker with a Performance Improvement Plan (PIP) with the main objective of making 25 plus calls per day and increasing new business. The Worker maintains he was the only member of the sales staff to receive a PIP even though his call numbers were not the lowest. The Worker asserts he enquired of Mr A at the time as to how the PIP would apply to him but received no reply. The Worker was invited to an off-site meeting by Mr A after he had applied for Parental Leave and the worker claims that Mr A told him that his application for Parental Leave did not sit well with the company and would instead be viewed as a reaction to the PIP.

The Worker claims that his sales record improved, and this was acknowledged by Mr A in early June 2024. However, he was shocked to be issued with a dismissal letter on Friday 14 June 2024 just before the finish of business, and his last day at work before commencement of his two weeks Parental Leave. The letter of dismissal contained no reason for his dismissal.

The Worker submits he was dismissed without procedure or reason, but that the real reason was his application for Parental Leave. The Worker contends the dismissal was unfair in all respects.  

 The Employer submits that the Worker was on an extended probation period from 18 September 2023 to 14 June 2024. Due to performance concerns, a PIP was issued on 15 May 2024. The Employer asserts that despite support and feedback, the Worker's performance did not improve. On 14 June 2024, the employer issued the Worker with a dismissal letter, providing pay of 1 week in lieu of notice and 2 weeks’ pay in lieu of  Parental Leave.

The Employer argues that the termination was justified and followed fair procedures, supported by the PIP and management interventions. The Complainant's performance failed to meet expectations, and dismissal was warranted.

The Employer cited a number of  cases in support of its position:

In  Beechside Company Limited T/a Park Hotel Kenmare v. A Worker LCR21798 [2018],  the Labour Court emphasised that substantial grounds for dismissal as well as procedural fairness must be used. The Employer asserts fair procedures were followed where the  evidence confirms that it had substantial grounds to dismiss the Worker, who underperformed in the sales area despite extensive support being provided.

The Employer contends fair and proper procedure was followed throughout the dismissal process. The Complainant was clearly informed of performance concerns and given multiple opportunities to improve.

Kitchen Porter v Restaurant ADJ-00023418 [2020] where the Adjudication Officer gave the opinion that “Before a decision is made to dismiss an employee, an employer should first tell the employee of the respects in which he or she is failing... warn the employee of the possibility of dismissal... and give the employee an opportunity of improving their performance.” The Employer submits that the Worker was explicitly informed of the deficiencies in his performance and offered an opportunity for improvement.

The Employer cited the following cases to justify no-fault dismissal when an employee is on probation.

O'Donovan v Over-C-Technology Limited and Over-C Limited [2021] IECA 37: the Court of Appeal stated “During a period of probation, both parties are – and must be – free to terminate the contract of employment for no reason...”

Buttimer v Oak Fuel Supermarket Limited [2023] IEHC 126:

“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.”

The Employer contends in this case the Employee had his probation period extended to eleven months therefore procedural requirements were not applicable during probation as the  dismissal was performance-related and not due to misconduct. The Employer further argued that the intention of the Worker to take Parental Leave was never a factor in the decision to dismiss because it could clearly show that no detriment was suffered by the Worker at the time of application for the leave.

In conducting my investigation, I have considered all relevant submissions presented to me by the parties. The contract of employment in this case stated that the probation period was six months but could be extended to eleven months. The Worker stated categorically that he had no communication on the extension of the probation period nor did the Employer exhibit documents to the contrary. I therefore conclude that the Worker was dismissed outside of the probationary period. Considering this, I did not consider the cases cited above on the freedom to terminate for no reason during probation to have relevance. 

The Worker gave an uncontested account of having improved his performance after the receipt of the PIP. I conclude there were no substantial grounds for dismissal. The only reasonable conclusion I can come to is that the dismissal, on the eve of commencement of Parental Leave, was linked to the taking of the Leave. The Worker gave a convincing account that his initial application for Parental Leave was not taken well by the Employer. No proper procedures were used by the Employer and, inexplicably, no reason was given for the dismissal in the termination letter. Having considered all the above I believe that the Worker was dismissed in an unfair manner.

Industrial Relations Act 1969. Dismissal.