Worker

Employer

Anonymised Parties

Compliance Analyst Security Manager

An App Company

Representatives

Sandra Walsh

Naomi Pollock DLA Piper Ireland LLP

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 - 00003288

15/10/2024

On 15 October 2024, the Worker, a Compliance Analyst Security Manager at a Tech Company submitted a Dispute regarding the circumstances of her dismissal during probation on 9 October 2024.

 She introduced herself as a Litigant in person at that time but was accompanied to hearing by Ms Sandra Walshe. Representation was welcomed .

The Employer operates a Tech Company and did not object to the proposed Investigation under the Industrial Relations Act, 1969. DLA Piper Solicitors came on record in the case on January 14, 2025.

Both Parties compiled and submitted helpful written submissions.

I am grateful for the candour that both Parties brought to hearing as I undertook to investigate just what occurred in this case.

To pave the way for my investigation, I explained to the parties that my investigation was not contingent on legal precedent but instead, I was looking at the circumstances of the case through the helpful guides of fairness and reasonableness.

 I explained that claims under the Industrial Relations Act can be very effective within a live employment relationship in terms of trying to “ fix what is broken” However, the employment relationship had ended in this case and the worker did not have the service to ground a claim under the Unfair Dismissals Act 1977 for statutory unfair dismissal .

I acknowledge that both parties’ adjustment to the narrow scope of the Industrial Relations Act, 1969 in this case.

The Worker was employed from 15 April 2024 to 9 October 2024 as a full time Compliance Analyst Security Manager, based in the Cork Office for 2 days with the remainder home working.

An early ambiguity in the job title had been resolved prior to her commencement date.

She framed her Dispute as a personal one against her manager, based in the US, who was not present at hearing.

The Worker outlined that she was perfectly aware that her employment was open to termination by either party during her probationary period of 6 months.

She enclosed a confirmation of dismissal dated 9 October 2024, which fell during that probationary period.

She disputed that her performance was not “to the standard required for the role of Compliance Analyst Security Management” and contested that the Employer had prefaced the dismissal with reviews or opportunities for corrective action. It was clear that the dismissal had affected her greatly.

The Worker was paid one month’s salary in severance, which included one weeks pay in lieu of notice.

“Instead, my employment was abruptly terminated just two days before my probation ended. If there were concerns, why wasn’t my probation extended, or the issues communicated earlier. This sudden decision feels deeply unfair.

This unjust termination has shaken my confidence and jeopardised my future career prospects. This is a significant and underserved setback in my career “

The Worker worked with one other colleague who was assigned as her “buddy / mentor “. This was not a successful relationship.

During the hearing, the worker confirmed that she had told the US based manager that she was contemplating complaining this person, but would not have done so, “if I had known I would lose my job because of this “.

Most of the communication was by means of “chat log “with the US based Manager, who was not present at hearing. Calls had lasted thirty -45 minutes.

These comprised standard operational meetings but lacked the specificity of probation or evaluation of performance.

The Worker had pursued records of the chat logs to demonstrate that the employer ahd recorded satisfaction with her performance, but these had been denied. She had maintained her own handwritten notes, none of which reflected a notification or finding of poor performance. She remains highly aggrieved that she has been denied the chat logs.

The Worker contended that by mid-August 2024, her work on a specific project had changed and her mentor had gravitated towards the work. The Worker described some hostility directed towards her.

The Worker acknowledged that she received constructive criticism from a Senior Manager on September 25, 2024, which she interpreted was to allow her to progress to the next level of seniority.

The Worker had concerns that her completed work was not properly captured and suspected that as a result, her completed tasks were miscommunicated, putting her in a bad light.

A conversation on 2 October 2024 between the worker and her manager did not address her performance.

The worker understood that she was progressing well at the business.

1 She was informed that she was about to take on duties of a senior employee in undertaking a number of audits.

2 She participated in an interview board during September / October 2024 to hire a team member.

3 She was due to make a presentation at a meeting in November 2024.

The Worker told the hearing that she was shocked by her dismissal in the presence of three Employer nominees on 9 October 2024 at 1.30pm as the feedback received had been positive up to that point.

The Worker appealed the decision to dismiss her. She was dissatisfied at the lack of depth to this investigation as she was not consulted. This occurred over a 24-hr period.

The Worker also confirmed that she had rang the Senior Manager after 9 October meeting, but did not ask him to do anything specific.

The Worker contended that she had been denied fair procedures in both the manner in which her dismissal was conducted and executed and no alternatives such as extending probation were actively considered.

This caused her financial loss. The Worker requested her job back as she had not found new work and had instead commenced a part time course.

The Worker acknowledged that both efforts made to resolve the dispute informally had been unsuccessful.

The Worker sought to reference the Law in

O’Donovan v Over-C Technology [2021] IECA

Beechside Company ltd t/a Park Hotel Kenmare v A Worker [2018]

Industrial Relations Recommendation:

Glenpatrick Water Coolers ltd v A Worker LCR 21028

In her closing comments, the worker argued that what had occurred to end her employment had been deeply unfair and unreasonable. Her dismissal came out of the blue.

She requested a re-instatement on a different team. She was a skilled security engineer specifically trained on the employers’ network.

The process of her dismissal was void of fair procedures.

The Employer is a Global Tech company with 350 employees in Ireland.

The Employer disputes any breach of contract or breach of any policy and countered that the worker had been assessed supportively during her probationary period. However, she had been unsuccessful in her probation and her employment was terminated.

She had been paid a sum in severance and the company had endeavoured to settle this case informally.

The Employer contended that re-instatement was not possible.

By way of written submission, the Employer objected to the use of the IR Act to “circumvent the very deliberate requirement in the Unfair Dismissals Act 1977 for an employee to have at least 12 months of service before being able to bring a claim for unfair dismissal.”

 The Industrial Relations Act, 1969 deals with Trade Disputes.

The Employer described the role of Compliance Analyst as a

 “Role that supports in creating / reviewing documentation, reporting, developing compliance controls, and identifying risks in a system of record. “

An early ambiguity in the job title had been resolved prior to her commencement date.

The Worker worked to the Global Security Compliance Manager, based in the US who held one to one meetings and monthly meetings with her. The worker was also provided with meticulous training during her onboarding.

The Employer detailed a long list of meetings, encounters, and reviews over 3, 9, 16 July and 2 August with the worker as concerns were growing that there were areas of her performance and work output which required improvement.

The period from April to October framed the probationary period in 2024.

In May 2024, soft skills were identified as a Goal/ Objective.

An email of 9 October 2024 was exhibited which chronicled the probation.

The author was the workers line manager and concluded that the worker had demonstrated:

1 a lack of understanding the compliance process.

2 A defensive response to feedback

3 Not yet autonomous

4 Lack of engagement in the offer of a mentor

5 a gap in desired skills for the position

The line manger recommended that:

“We do not move forward with her employment after the end of her six-month probation “.

 The Employer denied that the decision to dismiss was pre-determined.  They contended that the Company had endeavoured to support and guide the worker, but she did not meet the needs of the business.

The revision of the goals signalled that the company had reservations regarding the workers contribution. The Employer exhibited the performance measurement which accompanied the probationary period.

The Company accepted this recommendation, terminated the employment, and paid an additional 3-week salary on termination.

The Worker had been equipped with tools for conflict resolution, which were not actioned.

The Employer acknowledged that the worker had petitioned for re-instatement shortly after her dismissal and some engagement had followed on a possible enhanced severance without agreement.

The Employer contended that it was permissible to terminate the employment during probation, in accordance with the company procedure. The Worker was inducted in the company policies and did not action a grievance during her employment.

The Employer repeatedly disputed the workers recollection of her progress during probation by quiet references to the repeated measures adopted by the company to assess her progress.

The Employer was not obliged to extend the probation.

The Employer called for a dismissal of the claim at WRC.

Cases referred to:

Buttimer v Oak Fuel Supermarket ltd [2023] IEHC 126

A Salesperson v a Software Company ADJ 32732

Odonovan v Over C Technology ltd and Over C ltd IECA 37

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

The European Union (Transparent and Predictable Working Conditions) Regulations 2022 became law on 16 December 2022 by amendment of Terms of Employment (Information) Act, 1994.

 This places probation on a statutory duration of 6 mths and by extension on an exceptional basis, where it would be in the interest of the employee to a maximum of 12 mths.

Maximum duration of probationary period

6D.— (1) Subject to this section, where an employee has entered into a contract of employment with an employer which provides for a probationary period, such period shall not exceed 6 months.

(2) The probationary period of a public servant shall not exceed 12 months.

(3) The probationary period referred to in subsection (1) may, on an exceptional basis, be longer where such longer period —

(a) does not exceed 12 months, and

(b) would be in the interest of the employee.

The Parties have brought a strongly contested dispute to hearing.

The Worker carries a visible anger and sense of rejection in respect of her termination during probation. She simply doesn’t agree with how her performance was evaluated or how she was judged. She did not see dismissal coming .

The Employer, on the other hand has brought a robust dossier of contract, job description, performance goals and analysis of the workers performance during probation. For me , this demonstrated a comprehensive framework .

It Is not lost on me that the worker entered a large Global company , where her manager was not on site and she herself was working from home for part of the week . I identified this arrangement as far from ideal in a probationary setting , yet neither party set any store by that .

I believe that the hearing could have been assisted by the input from either of the two  US based Managers, as the worker maintained an incredulity regarding the reports they made , notwithstanding that she had acknowledged that the Senior Manager had communicated “ he doesn’t seem to be happy with my work so far “ on 26 September , 2024 .

Probation:

The contract of employment provided for a clearly worded probation, where both parties could call time on the work on a no-fault basis   within 6 months.

 The contract was silent on Section 6(d) (3) of the Terms of Employment (Information) Act, 1994, as amended.

The Worker detailed the probationary period she served. The Employer confirmed that there was no set policy on probation or a probation template. They confirmed that had been a regular open communication format between the worker and her manager throughout the probationary period.

The Worker repeated that she believed that her performance was strongly endorsed by the company as they began to introduce her to events and responsibilities that were due to occur post completed probation date. This raised her expectation of continuum.

For my part, this is an Industrial Relations dispute, and it involves a Worker and her Employer.

There is no doubt the Worker was excited to accept the offer of work with this company. It may have assisted the parties to draw from the revised statutory framework on probation to template a probation report rather than relying on unitary separate sheets of uncoordinated papers to record probation as these did not contain a provision for the worker to record her input in her own probation. These documents were not headlined by a Probation Report.

On the other hand, the worker activated a steadfast inquiry to raise the chat logs from the employer’s depository. She was mistaken in thinking that I had a statutory power to compel these documents.

During the course of the hearing, I could see the worker began to reflect further on the employment relationship and acknowledged that there were problems within.

I could also see that the Employer gained an awareness on just how upset the worker was and how difficult it had been for her to relaunch again.

It is my opinion that a probation report with a column for employer and employee could have resolved the deep mistrust exhibited by the worker against her former employer.

An employer is entitled to assemble and maintain the workforce they need.

 Probation is a trial period, where both parties get to try out an employment relationship to check for effectiveness ,  viability and sustainability .

It may soar or it may need to be tweaked, corrected, extended on exceptional grounds or severed.

An employment relationship is built on mutual trust, respect and fairness.

In this case, the Employer contends that the worker was given space to grow in the job but concluded that she did not match the company requirements.

The worker, fuelled by hopes and expectations in a global company is bitterly disappointed by this and has taken it personally.

For my part, I would prefer if the worker had taken a step back and requested to extend her probation as detailed above. She did not do this, and this has been to her detriment. The Appeal she referred to came as a cross over with her referral to the WRC .

 I appreciate that the employer was not obliged to grant her this extension, but it may  have been a strategic move in a difficult place. She did have this opportunity when she spoke to the most senior manager post dismissal or in her follow up communiques during Oct / Nov 2024, which overlapped with her referral to the WRC dated 15 October 2024.

I find that the Employer has demonstrated a genuine concern regarding the workers “fit “for their company. This should not be interpreted as the worker was wrong or faulty in any way , but rather that the trial was unsuccessful, and direction changed.

 It was equally open to the Employer to explore an extension of the probation period.

Communication of the cessation of employment:

I have to take issue with the lack of sensitivity involving this process on October 9. The email from the US based manager was sent half an hour before the meeting which resulted in termination occurred.

The worker was not given time to prepare or bring someone to support her and take a note. I find that she has endured a marked trauma and anger as a result.

The templated letter of dismissal was short of best practice as it lacked a dateline of events  and was an arbitrary action, not signed by any of the trio who hosted the meeting.

I found this template quite insensitive and inconsiderate .

However, I must accept the Employer position that they triggered the dismissal on genuinely held grounds within the permissible clause 2 of the contract which allows either party to call time on an unsuccessful probation.

I appreciate that the procedural framework and the oral communication of the dismissal fell far short of best practice, and this is the root of the Dispute.

However, I accept that the probation was unsuccessful.

Neither party explored an extension on exceptional grounds in the interest of the employee.

I find merit in this dispute.

Dismissal during probation