Worker

Employer

Anonymised Parties

A Business Analyst

A Manufacturing Company

Representatives

Self Represented

Kelvin Hyland Peninsula Business Services Ireland

Act

Dispute Reference No.

Date of Receipt

Industrial Relations Act 1969

IR - SC – 00004489

14/6/2025

The  Worker was employed as a Business Analyst and alleged he was unfairly dismissed without being given a reason and was dismissed by telephone. The Worker did not have 12 months service.

The Worker was employed as a Business Analyst for approximately  5 months.

No reason was given for dismissal and it was done over the phone in his car in front of his children listening on speaker.

The Worker claimed he was dismissed without cause and no fair procedure.

The Worker is claiming Unfair Dismissal under the Industrial Relations Acts.

The Irish High Court decision Anna Buttimer v Oak Fuel Supermarket Limited (Costcutter Rathcormac) [2023] IEHC 126, which confirms that dismissal during probation on grounds of misconduct requires the employer to provide fair procedures, even if the contract excludes disciplinary procedures during probation.

By contrast, the more widely discussed High Court decision in O'Donovan v Over C Technology Limited & Anor [2020] IEHC 291, the Court of Appeal held that in cases of performance based dismissal during probation—where the contract expressly allows termination without cause—no implied right to fair procedures applies, whereas if the dismissal is for misconduct, natural justice must be observed.

It was held that an employer is not under a strict obligation to apply fair procedures where the dismissal is for performance issues and absenteeism. There was no assertions in relation to any misconduct of the Worker.. The only evidence in relation to the termination was due to poor performance. This has been very clearly outlined on the dismissal letter.

 In ADJ-00056930, it was held that “on that basis the law clearly sets out that the Respondent was entitled to dismiss the Complainant in the absence of procedures fair or otherwise.” It is evident that the Employer had a right to dismiss an employee, considering their length of service and in this case, the employees performance.  The Employer stated in their dismissal letter that the Complainant did not demonstrate their skills and ability to perform their role efficiently.  It is clear that skills and one’s ability to perform is entirely based on their performance.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.  As a note the Worker did not have one years service to pursue a complaint under the Unfair Dismissals Act. There is a dispute about why the Worker was not present on the day of an intended meeting to discuss performance issues.  It was also disputed when the Workers start date was effective from and I have concluded from submissions that it started in September 2024 and not in June 2024 as claimed by the Worker.  The Complainant was dismissed in late January 2025 with an effective date of one week.

The contract agreed between the parties stated under the Heading “Review period” as follows” Your employment will be reviewed after one months probationary period and a follow up 6 months after”. The contract was prepared by the Respondent and it is common that the party who wrote the contract must especially be bound by the wording in the contract.  As the clause is written, I deem that the probationary period was one month and not seven months. The contract did not say there would be a 7 month probationary period, only a review after 7 months.  It is the responsibility of the person drafting a contract to ensure they clearly set out all key issues and in this case the wording as written leaves it open to conclude the probationary period was one month.

This cases therefore differs to  O'Donovan v Over C Technology Limited & Anor [2020] IEHC 291, in that the Worker was not dismissed during probation.  I understand the Employer position put forward that the Worker was not present to be dismissed and unfortunately the Owner of the Company could not be present at the Hearing due to a flight arrangement and the Representative agreed to proceed in his absence.  I find that the Respondent could have waited until the following work day to conduct the review/dismissal and I find the Worker was dismissed for performance issues outside his probationary period without any fair procedure, right of appeal or representation. I find this is not good industrial relations practice and a breach of all fair procedures.

Having considered all the factors in this case I recommend in favour of the Worker and recommend that the Employer pay the Worker a sum of 2,000 Euros for not applying good and fair procedures to his dismissal.

Unfair Dismissal