ADJUDICATION OFFICER Recommendation on dispute under Industrial Relations Act 1969
Investigation Recommendation Reference: IR - SC - 00002733
| Worker | Employer |
Anonymised Parties | A worker | An employer |
Representatives | Self represented | Anthony Feeney Fergus A Feeney Solicitors |
Dispute(s):
Act | Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act | IR - SC - 00002731 | 31/05/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | IR - SC - 00002733 | 31/05/2024 |
Workplace Relations Commission Adjudication Officer: Conor Stokes
Date of Hearing: 25/09/2024
Procedure:
In accordance with Section 13 of the Industrial Relations Act 1969 (as amended) following the referral of the dispute(s) to me by the Director General, I inquired into the dispute(s) and gave the parties an opportunity to be heard by me and to present to me any information relevant to the dispute(s).
Background:
This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings |
Summary of Workers Case:
The worker stated that she was employed from 8 November 2023 but that she was given no contract until after the employer was inspected by the WRC in January 2024. The worker stated that she was informed that her hours were to be reduced in March 2024 and was told that it was because a former employee was coming back to work. She complained about the reduction to her hours and the manner in which this was conveyed to her. After this she was informed by WhatsApp notification that she was being dismissed. She said that no reason was given to her for the dismissal. The worker confirmed that the WhatsApp notification was followed up with a letter of dismissal which outline that she was being let go for poor performance. She confirmed that the employer paid her two weeks’ notice period together with her outstanding hours. The worker stated that she doesn't believe there were incidences of poor performance and that she would have expected some kind of appraisal or performance review before being let go. She said that nothing was brought to her attention. She noted that she did not expect to get dismissed by WhatsApp message. The worker noted that she has not been able to find employment since, noting that her age was against her now. The worker stated that she did not receive natural justice and referred to the Labour Court case of Beechside Company Ltd T/A Park Hotel Kenmare v Worker LCR21798 to support her complaint. |
Summary of Employer’s Case:
The employer noted that the worker was let go in line with her contract and case law. The employer noted that worker was still under probation and that her contract permitted her to be let go at any stage during probation. The employer noted that the complainant was dismissed for poor performance and cited the case of O’Donovan v Over-C Technology Ltd and Over-C Ltd [2021] IECA 37 noting that Costello, J held as follows: “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 two a 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 from misconduct, which does not arise here) during the probationary period, as this would negate the whole purpose of a probationary period.” The employer noted that disciplinary procedures did not apply in relation to this complaint. |
Conclusions:
In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties. Although this is not an employment rights complaint but rather a dispute taken under the Industrial Relations Act, I note the two cases put forward. In this instance I am persuaded by the Appeal Court case which is of more relevance to this particular dispute. It was not contested by the employer that it did not follow any procedures rather it was put forward that they were not obliged to in the circumstances of poor performance. However, I note that the workers dismissal was communicated out of the blue via a WhatsApp message. This leaves a lot to be desired. It is not ideal that an employment relationship should come to an end without a meeting of some type. I note the worker was only employed for a four-month period. Although the worker was on probation, she ought to have been given some notice as regards poor performance. At the same time, I note that the employer paid the worker two weeks’ notice when the statutory requirement was only one. |
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 should put in place an appraisal system for poor performance during probation, allowing employees the possibility to improve before taking steps to termination the employment relationship.
I recommend that the employer put on place a system for meeting with employees when bringing an employment relationship to an end. I also recommend avoiding the use of social media and communications apps when bringing an employment relationship to an end.
Dated: 12-03-25
Workplace Relations Commission Adjudication Officer: Conor Stokes
Key Words:
IR disputes – termination of employment during probation – communicating the decision to staff – appraisal system |