Worker

Employer

Anonymised Parties

Airport Security Officer

Airport Operator

Representatives

Yvonne O Callaghan SIPTU Trade Union

 Self

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 - 00003111

10/09/2024

The Worked commenced employment with the Employer on 5th February 2024. The employment was terminated on 26th July 2024. The reason given for termination was non-completion of probation. The Worker wishes to appeal this termination but is not seeking re-instatement.

The Worker was taken greatly by surprise when the employment was terminated.  All areas of training had been passed with the exception of an x-ray exam and the Worker was in the process of seeking assistance from his supervisor in relation to this.

Casually in conversation with another supervisor, on 24th July 2024, he mentioned that he had failed the x-ray exam two or three times already and the response was that if he had failed it three times then he had failed his probation. His regular supervisor had given no indication that his progress was endangering his probation and he was stunned by this response. He received a letter the next day inviting him to a meeting on the 26th July 2024. The letter said that he may bring a representative with him but did not indicate that there was any possibility of dismissal.  As the Worker only had 24 hours’ notice of the meeting, he was unable to secure anyone’s attendance to accompany him. His employment was terminated at the meeting.

The Worker’s representative sought the reasons for the termination after this meeting and was advised that it was due to failing the x-ray certification and two negative comments on the Performance Management log.

The termination of his employment had a huge adverse effect on the Worker and he asked for an award of compensation to be made to reflect this.

The Employer’s position is that the Worker failed the x-ray exam on three occasions. This is a requirement for the post and is not something that the Employer has any control over as the certification is stipulated by a third party. The employment was not terminated on any performance grounds, but solely because of the Worker’s failure to pass this exam within the given amount of tries available. Failure to achieve this certification meant that the Worker could never carry out the functions of the post.

The Employer outlined that, up until February 2024, there had been a mechanism whereby an exceptional fourth attempt could be made at the exam if the previous score was above a certain level. However, this had been changed by the third party who sets the certification and the position during the time of the Worker’s probation was that only three opportunities were available. This applied to all staff, not just new entrants. The exact requirement that there are only 3 times this exam can be sat was not written down by the Employer because it is subject to this kind of change by the third party.

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

I understand the Employer’s position that this certification is a necessary requirement for the post and that the requirements to achieve that certification are set by a third party. However, it is clear from the Worker’s description of events that it was not sufficiently highlighted to him that he had a limited number of chances to pass it. The consequences of not passing this exam in three tries only were not communicated adequately.

The Employer made the point that the position of only having three opportunities to take the exam is not written down because it is subject to change by a third party. However, I see no reason why the situation relevant to the time the Worker was taking the tests could not have been written down and communicated directly to him.

Any training period consists of a great deal of information being communicated from an employer to a worker.  If the employment is dependant on a particular aspect then solely communicating this verbally is not sufficient.

A worker should be clear on what the expectations of them are in a probationary period and every opportunity afforded to meet those expectations. There was a failure in this instance to clearly communicate to the Worker what was needed to pass his probation.

The offer from the Worker’s direct supervisor to assist in preparing for the exam gives the clear impression that this was not an issue at that time and the Worker’s shock at the events that subsequently transpired is entirely understandable.

In light of the above, I am recommending in favour of the Worker in this case.

The Worker began a new job just over three months later, on 4 November 2024, and I think it is fair and reasonable that he receives compensation for that period.

I also recommend that the Employer reviews its policies and procedures around communicating clearly to probationary employees what is expected of them, particularly with a view to ensuring all supervisors are aware of the up-to-date position regarding changeable requirements.  It is crucial for all parties to know and be able to identify what the current position is with any particular condition of employment.

Termination of probation