ADJUDICATION OFFICER Recommendation
Adjudication Reference: ADJ-00032092
Parties:
| Complainant | Respondent |
Anonymised Parties | Field Service Technician | An Automotive Business |
Representatives | Worker Representative | Proprietor appeared in person |
Complaint:
Act | Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts | CA-00042756-001 | 25/02/2021 |
Date of Adjudication Hearing: 21/06/2021
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Procedure:
In accordance with Section 13 of the Industrial Relations Acts 1969, following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.
Background:
This matter was heard by way of private remote hearing pursuant to Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and SI 359/2020, which designates the WRC as a body empowered to hold remote hearings. On 25 February 2021, the Worker in the case raised a complaint of Unfair Dismissal, having less than 12 months service under the Industrial Relations Act, 1969. The Worker incorporated a written submission of the case with a further elaboration on 21 June 2021. He was represented at hearing. The Employer in the case operates an Automotive Business. He presented in person at hearing. The Employer submitted that he had forwarded a written submission. This was not to hand for me on day of hearing, and I requested it be resubmitted. The Worker had received a copy and had furnished a response prior to hearing. This was received and copied again to the Worker. It did not generate a further response. |
Summary of Workers’ Case:
The Worker commenced work as an Auto Motor Technician on 7 September 2020 and worked until 24 November 2020, when he was dismissed, receiving pay in lieu of notice. He found new work on January 4, 2021. The Worker outlined his claim for Unfair Dismissal. He accepted the position of Field Service Technician and was informed that he would be fully trained up. Before this, he had worked as a Mechanical Technician in the auto trade business. He was not participant in any defined probation plan. He did receive verbal guidance but there was no specific training on machines, oils and filters. The Worker was one of 3 Technicians employed amongst 10 employees. He recalled being advised by the Employer to reduce his driving speed in September. He interpreted this as an informal advice. The Worker said that he had been placed under a lot of pressure at work …. He was completely shocked when the Employer phoned him at work and told him that he was not suitable for the Trade on 24 November 2020. He was advised to resume work as a Mechanic. His position was terminated. He contended that what had started as a pleasant phone call, changed quickly and he couldn’t get a word in. The Worker had been actively engaged in upskilling and had no sense that his job was at risk. He was not afforded representation but thought there might be a way to resolve matters, but the Employer hung up the phone. He was subsequently informed that he should stay at home and receive 2.5 weeks payment in lieu of notice. He recorded this phone call. The Worker made the following arguments: The contract of employment reflected “During the Probation period, management will regularly assess your performance and your progress will be monitored. If feedback is given, it must be listened to, as if you are reasonably deemed unsuitable to continue with the business, regrettably you will not pass the probation period and will be let go “ The Worker contended that the Employer had not acted reasonably in bringing his employment to an abrupt end. He submitted that he had not been provided necessary apparel or with “adequate formal training/coaching” to equip him for the position. He said that he was left to fend for himself and was not a participant in Performance Appraisal. The Employer had not maintained a Training Log. He argued that specific training was necessary to assist him in acclimatising to his new role. The Worker acknowledged that he had made some mistakes in the course of his work, but he also contended that he had not been given a chance to demonstrate an improvement in his performance. He had received feedback on three instances where the Employer had raised issues with his workmanship. However, he had not received formal notification of the skills gap and fears for safety now relied on by the Employer in the case. The Worker demonstrated his extensive Portfolio of his Competence as a Motor Mechanic. The Worker concluded that he had been denied fair procedures both prior to and during his dismissal, which was at variance with SI 146/2000 on Code of Practice on Disciplinary procedures. He had been denied the opportunity to appeal. The Worker concluded that he was most dissatisfied about the way the Employer had addressed him in the context of the circumstances which led to his dismissal in November 2020. He agreed that he had felt professionally exposed at the company by being placed prematurely in service settings and without the correct training. He clarified that he had not activated the grievance procedure in respect of his training concerns. He confirmed that he had relaunched successfully in new work in January 2021, albeit with a variant in pay. He sought compensation in resolution of the Dispute. |
Summary of Employers’ Case:
The Employer disputed the claims asserted by the Worker. He outlined that his Automotive Business had been in operation for 22 years and had little staff turnover. The claim for unfair dismissal was disputed. The Worker accepted the position of Service Technician, which required a high technical ability. The Company had expended €30,000 on his training package. The Worker had signed a contract of employment and staff handbook. He was not available to the workplace during a 4-week period 5 October – 5 November 2020, due to an accident outside work. The Worker had been present in the workplace for 6 weeks and 2 days. He was paid in lieu of notice. He recalled that the Worker had presented well at interview, had assured the employer that his skills as a Mechanic were safely transferable to the role of Service Technician. Shortly after his commencement, a defined skills gap was identified which required extensive training. The Business had also hired another Service Technician prior to the Worker, who had settled well in the business. The Worker in this case was provided with constant appraisal and weekly informal feedback, where reasoning out of the faults occurred. He was also provided with Regular advice. The Employer outlined that the Worker was dismissed on safety grounds. He outlined several occurrences where customers had flagged their dissatisfaction with the workers on site work. In a number of those circumstances, the Employer himself had to intervene to resolve issues. He noted that the workers return to work in November 2020 in the aftermath of his accident was paired with an increased negativity in his attitude. He cited the contributory factors for dismissal as an erratic driving style, where 176 speed violations in 14 days occurred and the worker was unable to reason basic faults, which in turn prompted dissatisfaction from established customers. He recalled that on 24 November 2020, he visited a customer premises, where the owner was irate over a serious malfunction, details of which were shared at hearing. The Employer formed the conclusion that the worker was “out of his depth “and had not demonstrated the technical ability necessary for the position. He showed the worker a video prepared by the customer outside the work premises on 25 November. The Worker became aggressive and would did not accept his stated fears surrounding safety in the work being completed by him in the name of the company. The worker showed a marked reluctance to exploring a return to mechanical work, which was suggested in good faith by the Employer. The Employer emphasised that assurances of safe practice were integral to the company’s trading reputation over 22 years. He contended that the worker had been a danger to self and others in his work and stood over his decision to dismiss him. The Employer confirmed that he had placed the worker off site and at home for safety reasons, but his continuance in employment was not viable. He was provided with one weeks’ notice of termination. He had not committed this decision to dismiss writing. He wanted the hearing to appreciate that he had tried to shape the worker into his new role and failure was the last thing he wanted to see. The Workers termination caused a time lag for the company as the van was sitting idle against a considerable expenditure on his on-the-job training and Safe Pass.
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Findings and Conclusions:
I have been requested to investigate the merits of this Dispute in accordance with Section 13 of the Industrial Relations Act, 1969. The Workers submits that he was unfairly dismissed following a 6.5-week presence in the workplace. Both parties accept that a period of illness of 4 weeks following an external accident interspersed this timeline. The Employer has disputed the claim. In forming my recommendation in the case, I have considered all oral and written submissions advanced. I have also had regard to an extremely well drafted staff handbook, contract of employment and SI 146/2000, the Code of Practice on Grievance and Disciplinary procedures. I listened carefully as both parties shared their recollections of the events surrounding this employment. This case evolves in the shadow of a high-profile case Donal O’Donovan v Over C Technologies ltd IECA 37, decided earlier this year in the context of Injunction at the Superior Courts, where a Chief Financial Officer was dismissed during his 6-month period of probation on performance rather than misconduct grounds. The Court of Appeal stratified the approaches to be adopted by an employer in the case of a dismissal for poor performance and a dismissal for misconduct. The circumstances of this case have not lent themselves to any application for mandatory injunction. The worker has accepted that he was dismissed, albeit unfairly and has since successfully relaunched in the auto motive industry and has sought compensation to address a residual dissatisfaction in how he was addressed by his former employer. The Employer, for his part has also accepted the dismissal and in contesting the claim has put forward a justification for his actions in the interests of his business. I am to consider this case through the matrices of what was fair and reasonable from an Industrial Relations perspective and will offer my findings for consideration of both parties on conclusion. I acknowledged both parties’ preparation for and attendance at hearing. I found it very helpful to consider both parties presentations. This opportunity did not arise in the Labour Court case of Beech side Company ltd T/A Park Hotel, Kenmare v A Worker. I have found that the worker approached his new position in September 2020 with a positive attitude. He saw it as an opportunity to diversify into a specialist area, where he would acquire further skills to enhance practice. The Employer anticipated a smooth transition from mechanical to servicing work. However, the Employer outlined his reservations regarding the workers competency early in the employment. It seems to me that the Worker did not hear these reservations. He did not present details of his 4-week absence until reminded by the Employer. This brought me to the tools available to the parties in this case. I found a certain ambiguity in the wording of the contract where the document was titled as Service Technician, but further reference was made to Service Engineer. No job description accompanied the role, and the position was accepted by both parties as a Service Technician. This brings me to the Probationary period. This is a defined period in any employment relationship where both parties are permitted to assess how the employment relationship is progressing. It is a trial period which can be extended if necessary. In this case, the probationary period was 6 months with a potential to extend to up to 11 months. The Employer committed to a regular assessment and monitoring of the workers performance. It is important that this period is augmented by contemporaneous records which will serve as an objective analysis of performance. The Employer held the contractual authority to release the Worker from his job if he was reasonably deemed to be unsuitable to continue. There are times where parties to such a contract agree that things are not working out and mutually agree that it is time to conclude the employment. This mutuality is not evident here. The Worker believes that he would have improved with careful support, training and direction. The Employer believed that there was a deep fundamental skills gap in the workers approach to his work which deemed him unsafe. He said that training provided had not narrowed the skills gap and the worker had not lived up to the expectations at interview. I found that the worker held a deep unease regarding his need for further training in the job, but didn’t address that need, either informally or via the company grievance procedure. This demonstrated that the worker was aware of the skills gap, as he outlined that he felt that he had been placed in the field too early. I found that the Employer approached the case without a set of notes/records of training /feedback /measurement of improvement/disimprovement in the workers tenure. I found this unusual as I found extensive reference in the handbook to maintenance of records in a safety statement/customer care context. I found it unreasonable that the Employer did not open records of employment progression in this case. I accept that the Employer had a real time and specialised knowledge recollection of events, in particular the repeated need to supplement the workers completed tasks. However, measurement of performance must be underlined with objectivity, and I found a large vacuum in real time records in this case. It would have amounted to better practice had both parties scheduled a set time to discuss performance in line with the contractual terms. I noted that the worker had advised a fellow worker “to cool off “for a day before taking up a matter again with the Employer. I was surprised that he did not adopt that course of action himself in this case. As the case progressed, it became clear to me that both parties would have benefitted from a 1:1 engagement much earlier than the day of hearing. I found that the lack of a written declaration of dismissal or provision of an appeal to fall outside the parameters of fair procedures, particularly as part of the employer’s contention with the worker rested in misconduct in terms of site work. I appreciate that he discussed these matters with the worker, but they should have been recorded. I understand that the Disciplinary procedure was not available during probation, however in dismissal during probation, it is vital that fair procedures and natural justice are practiced. I have reflected on the Employers submitted reservations on the workers performance and I accept that he anticipated that his business built up over a long time was in immediate danger during October and November 2020. I understand his motivation to mitigate that risk. However, in all I heard at hearing, I was struck by: 1 The autonomous nature of the role was not appreciated in advance by the worker. I do not believe that he was ready for this role. This is no reflection of the workers extensive portfolio. 2 The Employer was fearful of the workers incomplete tasks while in the field, which had on occasions to be revisited and corrected. This culminated in a serious incident on November 24, which prompted the Employer to terminate employment over the phone. In this, I believe he was hasty and ought to have engaged with the worker when calm had been restored the next day, or as soon as possible and when reliant on records /incident reports and to allow the worker to be heard, at the very least. I was not happy that the worker proceeded to record a conversation with his employer, without express permission, when comprehensive disputes resolution mechanisms were available in the staff handbook. I accept that the Employer acted in what he judged to be the best interests of his business on 24th November 2020. I also accept that he deemed the worker to be unsuitable to continue in employment in a probationary setting. I respect his expertise in that regard. However, he had not conducted this assessment reasonably and as a result the worker suffered a detriment in losing his job within a largely void procedural framework. The worker was aware that he wasn’t working out at the business. I was struck by his poor recall of the critical incidents relied on by the employer which stood in sharp contrast to the clarity of the employer’s recollection. The manner in which the dismissal was conducted fell far short of best practice and while the Employer acted in good faith to preserve the integrity of his business, he forsook a fair procedural framework necessary in dismissal during probation.
In this, I have found merit in this Dispute. |
Recommendation:
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute. I recommend that the Employer introduces a Template to measure performance during Probation which has scope for input and comment by the employee and employer. I recommend that the Employer pays the Worker €1,500 in compensation for the distress and upset associated with the conclusion of his employment. This should be in full and final settlement.
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Dated: 09th September 2021
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Key Words:
Dismissal during probation, under 12 months service |