Worker

Employer

Anonymised Parties

A Worker

An Employer

Representatives

 Self

Nicola Murphy Peninsula Business Services Ireland

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 - 00003073

03/09/2024

The Worker was engaged by the Employer as a recruitment consultant on 22nd April 2024. She was notified on 2nd August 2024 that her employment would be terminated on 8th August 2024 and, as she has less than 12 months service, she has submitted this dispute as she believes she was unfairly dismissed.

The Worker’s case is that her probation was unfairly terminated. She says that there were no performance issues and she was receiving positive feedback. There were a couple of small things noted but mostly it was all great feedback and she did whatever she was asked to do.

She was shocked in her three month appraisal when she was told that her probation was being extended for 3 months and this upset her hugely. She was determined to do whatever it took to pass probation and two days after this appraisal she was given a speech which was very motivating and a plan was put in place with tasks for her to achieve in order to pass her probation. However, on 2nd August 2024 the Worker was told that her employment was being terminated. She appealed this decision but was notified within 24 hours that it was not upheld.

The Worker said that in any area where she did not meet a target, this was due to a lack of resources being provided by the Employer and not a performance issue.

The Worker stated that she had been praised for her work, her performance reviews were largely positive and she felt that she had been let go because her manager personally knew another employee and had also headhunted a friend to come and work in the organisation so space had to be made for him and he would not dismiss his friend so she had to go instead.

The Employer’s position is that the Worker’s employment was terminated for performance issues in the probationary period. It was stated that her performance standards were not up to the level required to pass probation and maintain employment.

Targets were set for the Worker to achieve and she did not do so. In particular, she had a target of business development calls to make and she did not make the required number of calls. The Employer said that visibility was key in their particular industry and when the Worker was not achieving this target then it impacted on the amount of work coming in. The Worker’s manager accepted that he did know other employees personally, but emphasised that they had reached the target set for them.

The Employer said that all fair procedures had been afforded to the Worker, including an appeal of the decision to terminate her employment, but that her performance was not at the standard required.

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

As part of my investigatory role in this matter, I asked both parties a number of questions. The Employer was asked why, after extending the Worker’s probation for 3 months, she was then let go so soon into this extension. The response was that it was clear in that time that the Worker was not improving. Secondly, I asked the Employer to point me to the performance issues that had been raised with the Worker in her appraisals, as it was not clear to me where these were explicitly stated. The Employer directed me to comments in some of the appraisals relating to business development calls and outreach. The Employer said that the Worker had received thorough, in-depth and extensive training but performance did not match expectations.

The Employer was able to explain at the hearing what performance issues existed with the Worker and the targets that were not being met, but it is not clear to me that these were satisfactorily explained to the Worker at the time. Her self appraisals are all extremely positive and I do not see from the documents submitted where it was explained to her that the Employer’s view of her performance was not also positive. Further, I do not see any reference in this documentation to the Worker being made aware that passing her probation was in doubt before she did not pass the three month assessment.

I am mindful of the decision in the Labour Court Recommendation LCR22710 where the Court stated that:

“It is the view of the Court that whenever a worker, including a worker who is on probation, is at risk of the loss of his or her job, it is incumbent on the employer to make the worker aware of the situation and of the reasons.”

In this case, the Employer made the Worker aware of some performance issues throughout July 2024 but did not tell her that she was at risk of the loss of her job until the meeting of 22nd July 2024. At that point the Worker was told that she had not passed her probation and it was being extended by three months. Now aware that her job was at risk, the Worker believed that she was being afforded an opportunity to address these issues within a 3 month period. However, her employment was terminated the following week on 2nd August 2024.

I do not think it was consistent with fair procedures that the Worker was offered an extension of her probation for 3 months only for her employment to be terminated the following week. Up until 22nd July 2024, she was not aware that she was in danger of not passing her probation. Once she was aware of this, she was told she had time to address it only to subsequently be denied that opportunity. In my view, that is not consistent with fair procedures and for that reason the Worker was unfairly dismissed and should receive compensation for that unfair dismissal.

I recommend that the Employer pay the Worker €3,500 for unfair dismissal.

Probation extension – unfair dismissal