ADJUDICATION OFFICER Recommendation on dispute under Industrial Relations Act 1969

Investigation Recommendation Reference:  IR - SC - 00002645

Parties:

Dispute:

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Date of Hearing:  07/03/2025

Procedure:

This dispute was referred to the Workplace Relations Commission (hereinafter ‘WRC’) pursuant to Section 13 of the Industrial Relations Act 1969 on 17th May 2024.  A complaint relating to the same subject-matter under the Employment Equality Acts had been withdrawn.  Following delegation to me by the Director General, I inquired into this dispute and gave the Parties an opportunity to be heard and to present any relevant evidence.  There was no objection by the Employer to the WRC investigating this dispute within the requisite three-week period of notice pursuant to Section 36(1) of the Industrial Relations Act 1990.  However, the day before the scheduled hearing, the Employer’s Solicitors wrote to the WRC stating that there would be no attendance on its behalf and it would not be bound by any Recommendation of the WRC.  In the absence of a valid objection, I proceeded to hear this dispute on 7th March 2025 in Lansdowne House.  The Worker was in attendance represented by David Byrnes BL instructed by Setanta Solicitors.  There was no attendance on behalf of the Employer.  The documentation available to the Worker was furnished and further documentation was directed along with confirmation of the redress being sought.  Confirmation of redress and the Worker’s contract was provided but he did not have access to a Handbook.  Section 13(8) of the Industrial Relations Act 1969 provides that hearings shall be held in private and this Recommendation is anonymised accordingly.  The facts are abridged to avoid identification of the Parties.

Background:

The Worker was dismissed during his probation as an Inspector with the Employer.  He sought various findings and redress including compensation for what he claims was an unfair probationary process and unfair dismissal, also constituting penalisation for raising grievances contended to be protected disclosures.  The Employer has not engaged and contends that it will not be bound by any recommendation of the WRC.

Summary of Worker’s Case:

Factual Background

The factual background to this dispute was outlined on behalf of the Worker and detailed in written submissions.  He is a Spanish national and now also a naturalised Irish citizen.  He holds undergraduate and postgraduate university degrees in his area of expertise and had prior work experience in the private sector.  He was employed as an Inspector by the Employer for a period of just under ten months between 13th March 2023 and 5th December of 2023 on an entry salary of €35,360 gross per annum.  His contract of employment provided for an eleven-month probation period as follows: “Your appointment will be subject to a probationary period of eleven months.  During this probationary period your employment may be terminated on one week’s written notice at the discretion of the Employer.”  He was provided with a Probationary Plan with a timeframe of Q1 2024 to demonstrate acquisition of the required skills and tasks. 

The Worker was initially trained into his duties under the supervision of his Line Manager, Ms X throughout March and April 2023.  Information collected in the performance of his duties and resulting actions was to be recorded using specialised software package.  The Worker initially only had access to a training version.  He attended catch-up meetings with Ms X, and at one such meeting held on 25th May 2023, she informed him that he should practise his professional writing skills.  Subsequently on the same day, he emailed Ms X seeking access to the live version of the software package but received no reply.  Ms X subsequently admonished him regarding the standard of his professional writing despite her acknowledgement that he had not yet been trained in professional writing.  She informed him that training would be provided on her return from annual leave (which transpired to be an extended period from 31st May 2023 until 3rd July 2023).  The Worker was eventually granted access to the live version of the software on 20th June 2023 but was simultaneously required to undertake his duties without sufficient time for training-in on the system. 

Upon Ms X’s return to work on 3rd July 2023, she sought an update from the Worker on all duties carried out during her absence, expressing concern that the work had not been done and telling him to treat this request as urgent.  The Worker replied by email on 5th July 2023 detailing all the work he had completed in her absence and reporting that his access to the live version of the requisite software had only been granted on 20th June 2023.  He also asked her to clarify what her concerns were in light of the work he had undertaken and to let him know what he needed to do.  He received no response from Ms X.  The Worker’s progress during this period of probation had been restricted by the absence of Ms X who held responsibility for his training, whilst at the same time she was criticising him for his lack of progress.  On 26th July 2023, during his break, Ms X asked him if he was using a dictaphone and questioned his ability to understand and communicate in English.  She also allegedly subjected the Worker to other xenophobic comments about his language, accent and writing skills.  Ms X further took issue with the fact that the Worker was studying for a Specialised Master’s Degree with the Employer’s permission and queried leave granted for the purposes of same.  This caused the Worker to become distressed and take certified sick leave from 10-18th August 2023.

On 5th September 2023, Ms X unilaterally activated a document entitled ‘Performance Improvement Action Plan for Probation’ (PIP) in respect of the Worker, despite already being on a Probationary Plan.  The document made various criticisms of his performance without any specifics or evidence using phrases such as: “During supervised duties, the Worker did not demonstrate competence of an Inspector’s role fully, there were areas of improvement throughout the various duties, all elements were not demonstrated.”  Only one example of his perceived mismanagement of an inspection on 26th July 2023 was cited without any evidence to support same.  The PIP also criticised the manner in which the Worker received feedback and his requesting of supervised duties with more senior managers without prior approval from Ms X.  It further contended that study leave taken had not been sanctioned.  The progress improvements required were vague and the supports to be provided were not specified and were to be organised by Ms X.  In particular, the Worker was required to “demonstrate commitment and act as a role model for the employer’s values, including conducting oneself at all times with the high standards required by the Employer during the probationary period” and “observe inspectors in the various aspects of their role… with the objective of being able to demonstrate competence of all elements of an Inspector’s role”.  This was to be completed by 20th October 2023, appearing to bring the objectives of his Probationary Plan forward.  No corrective action including dismissal in the event of not meeting the requirements was specified.  The Worker was informed that he would receive feedback reviews from management.  The PIP overlapped with his regular probation review meetings.  It was submitted that this PIP was designed in such a manner that the Worker would fail.

On 7th September 2023, Ms X emailed the Worker indicating that contacting senior inspectors was not appropriate contrary to previous emails and in particular an email of 18th April 2023 from Ms X encouraging the Worker to accompany more senior inspectors.  Ms X had also sought to isolate and exclude the Worker by informing him not to have any contact with senior inspectors (some of whom had tried to assist and support him), whilst at the same time she had criticised him for not demonstrating effective teamwork.

By email dated 23rd October 2023, the Worker sent a detailed written grievance to Ms X copying in her supervisor and Human Resources (HR), setting out what he perceived to be her mistreatment of him causing him to become so distressed and upset that he had to take another week’s sick-leave.  In particular, he stated that since her return from annual leave she been hostile towards him, had not communicated adequately, had subjected him to persistent and unjustified criticism and had not provided him with any meaningful support on how to carry out his role.  In one instance on 9th October 2023, he had been required to travel down the country on his weekend off and stay overnight at a hotel at his own expense in order to meet Ms X on time for supervised duties.  He alleged that she had been hostile, uncommunicative and unsupportive towards him during the trip.  He expressed his concern that as a consequence, senior management were being given the impression that his position was not viable.  Ms X did not reply until 21 days later on 14th November 2023.  She responded directly with a full rebuttal to all his complaints, asserting that quite the opposite was true, he had not previously brought these matters to her attention and she was unsure as to the course of action he was seeking.  The response also detailed feedback from her own observations of his abilities from their trip and feedback purportedly received from other supervising inspectors indicating that he was not picking up key aspects of his role.  Significantly, Ms X did not refer his grievance to her superiors or to HR or offer any next stage or appeal.  It was alleged that Ms X, as part of her campaign to isolate the Worker, had sought to suppress his grievance by attempting to deal with it herself despite the blatant conflict of interest, and in clear violation of the Employer’s Policy. 

Through his Solicitors, the Worker formally referred his complaints to HR by letter emailed to the Employer on the evening of 5th December 2023 stating: “You may take this communication as a formal grievance and a protected disclosure pursuant to the Protected Disclosures Act 2014.  Please note that any penalisation of our client which occurs on foot of this protected disclosure may result in an award of up to five years’ salary.”  It set out the aforesaid complaints alleged against Ms X in detail including her micromanaging behaviours, sham PIP designed for the Worker to fail and use of xenophobic, mocking and belittling language.  It sought to have the Worker’s grievances investigated by an independent investigator and requested documentation including manuals, Code of Conduct, Dignity Policy & Customer Service Charter.

On 7th December 2023, the Worker received a letter from the Employer dated 5th December 2023, terminating his employment from that date without any reasoning and simply stating: “The purpose of this letter is to confirm the Employer’s decision to terminate your employment on one week’s notice in accordance with Clause 2 (Probation) of your contract of employment.”  This dismissal had occurred in contemporaneous succession to the Worker’s Solicitor’s correspondence to the Employer.  It was contended that the date on this letter was open to question given that it had taken two days to reach the Worker’s Solicitors, the implication being that the Worker was dismissed as a consequence of his grievance.  At the time, this summary dismissal caused the Worker considerable distress, upset and financial hardship.

The Employer sent a further letter dated 22nd December 2023 responding to the Worker’s Solicitors’ email of 5th December 2023 stating: “Your client commenced employment with the Employer on 13th March 2023.  His contractual probationary period was due to run from then until 13th February 2024.  Your client’s probationary period was managed in accordance with the very clear guidelines set out in the ‘Employers Guidelines on Managing Newly Recruited and Promoted Staff during their Probationary Period’.  Following his first interim probationary review at the end of August 2023, details of the improvements required of your client were set out in a probation performance improvement action plan.  His second interim review was conducted in October 2023 and your client’s employment was subsequently terminated with effect from 5 December 2023, your client having been paid in lieu of his contractual notice entitlement.”  The letter further stated that the delay in responding to the Worker’s grievance of 23rd October 2023 was owing to his absence on sick leave.  It also offered him a meeting (accompanied by a colleague or trade union representative) with Ms X notwithstanding the termination of his employment.  It concluded by stating that the Employer did not accept that the contents of the email of 5th December 2023 constituted a protected disclosure and contended that he had previously been furnished with the documentation being sought. 

It is submitted that both written grievances of 23rd October 2023 and 5th December 2023 constitute protected disclosures and in particular, the Worker had been subjected to an unsafe workplace in respect of various psychosocial harms that have been caused, allowed or permitted to materialise on the part of the Employer.  This wrongdoing originated at the hands of the Worker’s Line Manager, Ms X but had been essentially ignored and/or facilitated by the Employer.  In particular, the Employer’s HR and senior management had allowed M X to respond directly to his written grievance rather than intervening appropriately and ensuring that the Employer’s Grievance Policy was followed.  This culminated in the Worker being subjected to a sham ‘Performance Improvement Action Plan for Probation’, discriminatory treatment on the ground of race, and penalisation culminating in his unfair dismissal.  The Worker had further been deprived of any fair procedures in respect of his dismissal or opportunity to appeal same.

It was confirmed to this Adjudication Officer that the Worker had been unemployed for approximately four months before securing a new role with a private company at more than double the salary.  Given the nature of the redress being sought, this Adjudication Officer queried why complaints had not been pursued under the Protected Disclosures Act 2014 and/or under the Unfair Dismissal Act 1977 (as amended) given that an unfair dismissal for making a protected disclosure does not require 12 months’ continuous service.  It was confirmed that fortunately the Worker had moved on and did not wish to become embroiled in litigation.  His main concern was vindication and protection from future penalisation by this Employer who has regulatory oversight over his new employer given the history and its conduct to date.  It was confirmed that the Worker had no difficulty entering new employment and had not experienced further penalisation. 

The Law

The Worker relied upon the following legislation and policies in relation to this dispute:  Safety, Health and Welfare at Work Act 2005 (as amended); Unfair Dismissal Act 1977 (as amended); Employment Equality Act 1998 (as amended); Protected Disclosures Act 2014 (as amended): The European Convention on Human Rights Acts 2003 (as amended); Directive (EU) 2019 of 1937 e.g. Article 10 of the ECHR; The EU Charter; Council of Ministers Recommendation CM/Rec/2014 on the Protection of Whistleblowers; The Interpretative Document of the Implementation of Council Directive 89/391/EEC in relation to Mental Health in the Workplace and S.I. 146/2000.  The Worker also relied upon the following caselaw:  Braganza Principles - Braganza -v- BP Shipping Limited [2015] UKSC 17 and O’Sullivan -v- HSE [2023] IESC 11; Baranya -v- Rosderra Irish Meats Group Ltd [2022] 2 IR 97; Clarke -v- CGI Food Services Ltd [2021] 32 ELR 25; Barrett -v- Commissioner of An Garda Síochána and Minister for Justice [2022] 33 ELR 140 & [2023] 34 ELR 165; Dougan & Clarke -v- Lifeline Ambulances Ltd [2018] 29 E.L.R. 210; Monaghan -v- Aidan & Henrietta McGrath Partnership 28 ELR 8; ADJ-00051936; O’Neill -v- Toni and Guy Blackrock Ltd [2010] 21 ELR 1; Twist DX Ltd -v- Armes UK EAT-0030-20-JOJ; Byrne-Hoey PDD218; Melbury Developments -v- Arturs Valpeters (EDA191); ADJ-00043225 & Von Colson and Kamann -v- Land Nordrhein-Westfalen [1984] ECR 1891.

Counsel for the Worker submitted that the nature of the wrongdoings alleged are matters which are peculiarly within the knowledge of the Employer.  The law has made it clear that such matters are impossible for the Worker to prove, and it would therefore be manifestly unfair to fix him with any such burden.  The Employer had not participated and was unwilling to engage and provide any explanation for such matters.  In this regard, it was submitted that the inference to be drawn from this absence and non-participation is that the Employer is unable to provide any plausibly legitimate response to explain and justify its impugned conduct.  It was further submitted that given the Employer’s statutory role, it has a heightened duty to ensure that complaints are properly considered and processed.  It is through this prism, that it was remarkable that the Employer decidedly refused to participate in the investigation of this trade dispute.  Given the role of the Employer as a prescribed body for the purposes of the Protected Disclosures Act 2014 (as amended), it was also concerning that no investigation of the Worker’s protected disclosures had been carried out and nor were any interim safety measures implemented for his protection.

Having regard to the uncontested facts as set out above, the statutory function of the Employer, aforesaid legal authorities and pursuant to the mandatory requirement of Section 13(3)(b) of the Industrial Relations Act 1969, a Recommendation making the following findings and granting the following reliefs was sought:

-  A finding that the Employer failed to ensure a safe place of work and a safe system at work in breach of the requirements of the Safety, Health and Welfare at Work Act 2005 (as amended).

-  A finding that the summary dismissal of the Worker is connected to the protected disclosures he made to the Employer in respect of the unsafe place or work and unsafe system at work.

-  A finding that the Employer failed to implement any interim safety measures for the Worker’s protection.

-  A finding that the Employer breached its obligation to investigate the Worker’s protected disclosures.

-  A recommendation that the Employer investigate the complaints made by the Worker using an external investigator in a fair and transparent manner through the voluntary participation of the Worker, and indemnify him for the costs of his legal representation in respect of such voluntary participation.

-  A recommendation that the Employer comply with the Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work (published on 20th January 2021).

-  A recommendation that the Employer act as an exemplar to the public and private sectors in respect to the proper and fair handling of such protected disclosures in a transparent manner.

-  A recommendation that the Employer embrace this Industrial Relations dispute mechanism as provided for as by the Oireachtas under Section 13 of the Industrial Relations Act 1969, and in that regard encourage its regulated entities to do so with the principal aim of ensuring a safe workplace.

-  A recommendation that the Employer pay the sum of €65,000 in non-remuneration related compensation to the Worker and make a contribution towards his legal costs of €15,000 within 28 days thereof.  The aforesaid was sought on the basis that (i) the Employer had fallen short of its own statutory regulatory role constituting an aggravating factor and (ii) based upon Von Colson, the European Court of Justice had made it clear that where a right derived from European Community Law is infringed, the sanction for such breach must be effective, proportionate and dissuasive against future infractions.

Summary of Employer’s Case:

The Employer did not participate in the hearing or provide any submissions or documentation to the WRC.

Conclusions:

In relation to the referral of trade disputes to the WRC and the function of Adjudication Officers (replacing the former Rights Commissioners), Section 13(2) of the Industrial Relations Act 1969 provides as follows:

“13(2) Subject to the provisions of this section, where a trade dispute (other than a dispute connected with rates of pay of, hours or times of work of, or annual holidays of, a body of workers) exists or is apprehended and involves workers within the meaning of Part VI of the Principal Act, a party to the dispute may refer it to a rights commissioner.  (3)(a) Subject to the provisions of this section, a rights commissioner shall investigate any trade dispute referred to him under subsection (2) of this section and shall, unless before doing so the dispute is settled- (i) make a recommendation to the parties to the dispute setting forth his opinion on the merits of the dispute, and (ii) notify the Court of the recommendation.”

The primary purpose of Section 13 of the Industrial Relations Act 1969 is to provide Parties to a trade dispute with a mechanism whereby an Adjudication Officer (or in the case of objection, the Labour Court) can investigate a dispute and recommend a course of action with a view to resolving same.  In the instant case, the employment relationship between the Parties ceased upon the dismissal of the Worker during his probation period.  Apart from seeking vindication, the Worker’s main concern is ensuring protection against future penalisation from this Employer arising from his making what are contended to be protected disclosures.  The Employer has chosen not to engage albeit a formal objection within the requisite time-period would have been preferable.  Invariably, there are two sides to any trade dispute and I have only heard from one side.  Nor do I have the full paperwork pertaining to this employment and no mechanisms at my disposal by which I can compel same.  Therefore, I do not propose making any findings of fact or law. 

However, I can safely make the following observations and offer my opinion on the merits of this dispute.  Firstly, the Worker presented with an impressive education and work history and has proven his professional ability by securing alternative employment very quickly after his dismissal by this Employer at over twice the salary.  To his credit he has opted not to become embroiled in litigation against this Employer.  In my opinion the Worker was not afforded a fair chance of proving his professional ability with this Employer.  In particular, I consider that allowance should have been made for the Worker’s Line Manager’s lengthy leave.  The introduction of a PIP during his probation period when the objectives and outcomes were already set out in a Probationary Plan and subject to regular review seems unnecessary.  On any objective reading, the PIP lacked specificity in terms of the actions required for improvement and tangible outcomes such that failure was inevitable and dismissal a fait accompli.  It seems that a view had been taken that the Worker was not a good fit and his probation period was accordingly curtailed.  Given the level of conflict between the Worker and his Line Manager as exhibited in their exchanges, it would have been appropriate for HR or a more senior manager to have stepped in at that juncture with some practical interventions such as mediation or a change of supervision to try to salvage the employment relationship.  Finally, and notwithstanding a contractual clause allowing for dismissal during probation, a reasonable employer would have firstly allowed the full period to run and thereafter, provided a process in accordance with fair procedures, the standards set out in caselaw and/or S.I. No. 146/2000 - Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures) including an appeal.

Recommendation:

Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation in relation to the dispute.  To bring finality to this dispute, I recommend an ex-gratia payment of €15,000 to the Worker by the Employer within 42 days of the date herewith.  I am satisfied that the Worker has various legal protections available to him the event of any future penalisation by this Employer or any other third parties and in particular, an action in tort under Section 13 of the Protected Disclosures Act 2014 (as amended).

Dated: 12th January 2026.

Workplace Relations Commission Adjudication Officer:  Aideen Collard