ADJ-00031159

Worker

Employer

Anonymised Parties

Engineer

Electricity Provider

Representatives

Self-Represented

Mr. Barry Walsh, Fieldfisher

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00041477-001

09/12/2020

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00041477-002

09/12/2020

The Worker commenced employment with the Employer on 2nd March 2020. On 30th October 2020, almost seven months later, the Worker’s employment was terminated by the Employer.

The Worker referred the present disputes on 9th December 2020. Herein she alleged that her dismissal, purportedly on the grounds of failed probation, was unfair in nature. In particular, she alleged that the probationary review process was inconsistently applied and unfairly implemented. By response, the Employer denied this allegation, submitting that the process was fair and respected the Worker’s natural and contractual rights.

A hearing in relation to this matter was convened and finalised on 9th December 2021. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced by either side during the hearing. No objections as to my jurisdiction to hear the matter were raised at any stage of the proceedings.

The Worker was engaged as a “Senior Lead Engineer” on 2nd March 2020. The commencement of this role coincided with the implementation of the restrictions arising from the Covid-19 pandemic. As a consequence of the same, the Worker was required to work from home from 16th March 2020. The Worker was required to provide her own IT equipment during this time.

The Worker’s employment was subject to a probationary period. The first report in relation to the same, on 2nd June 2020, was satisfactory. Around this time, the Worker observed various IT and personnel failings on the part of the Employer.

Due to unforeseen circumstances, the project on which the Worker was engaged was suspended and the Worker was re-assigned to a new assignment. The Worker submitted that this assignment required skills outside of the primary job description and her core competencies.  The Worker continued to experience IT issues during this assignment. Following the second probationary meeting, a number of issues were raised regarding the Worker’s performance. In particular, the Employer alleged that the Worker did not present data to the standard required during weekly meetings. Furthermore, the Employer alleged that the Worker failed to arrange certain meetings. On foot of the same, the Employer extended the Worker’s probation and implemented a performance improvement plan (PIP).

The Worker submitted that the Employer failed to provide any feedback or training during this final probationary period. While weekly meetings were arranged to assess the Worker’s performance, the Worker did not receive any written feedback following the same. The Worker further submitted that she was verbally informed that there was “satisfaction towards progress against the goals”. The Worker did not receive any formal or informal outcome of the probationary period. Rather, she was simply informed that her employment was terminated.

The Worker submitted that shortly after the commencement of her employment she was moved to a role that was not relevant to her qualification, experience or competence. She submitted that during this assignment she endured numerous IT failings on the part of the Employer. The Worker submitted that she was not provided with a fair review of her goals during the probationary period, and that her dismissal was in contradiction of the verbal communications she received during the process. In light of the foregoing, the Worker submitted that her dismissal was procedurally and substantively unfair.

In denying the Worker’s allegation, the Employer submitted that the dismissal of the Worker on the grounds of failure to pass her probationary period was fair and reasonable in the circumstances.

It was accepted that the Worker performed well in the first three months of her employment, and that her first probationary review meeting had a positive outcome. The Employer submitted that on 21st July 2020, the Worker was seconded to another department following the unexpected suspension of her project. The Worker’s six-month probation report, which detailed her performance in this department, outlined that the Worker had some issues during this period. This report concluded by finding that the Worker had to pay more attention to the direction and requirements to ensure her work was completed to a high standard and in accordance with organisational objectives. On 8th October 2020 the Complainant was informed that that her probation was to be extended by a period of three months. A formal performance improvement plan (PIP) was implemented and commenced on 12th October 2020. This plan outlined objective, achievable goals for the period, and was monitored by way of a weekly check up meeting. Unfortunately, the PIP was unsuccessful and on 25th November 2020, the Worker was informed that she had failed her probation and that her employment was terminated.

By submission the Employer’s representative stated that the underlying issues giving rise to the extension of probation and the implementation of the PIP were serious in nature. They further submitted that the dismissal of the Worker was not unexpected and without warning. They submitted that the Worker was placed on a six week PIP and monitored on a weekly basis in order to assist her in meeting the Employer’s standards. Having regard to the foregoing, the Employer submitted that the dismissal of the Worker was in fact fair and that as a consequence of the same, the dispute should not be resolved in her favour.

In the present case, the Worker had alleged that her dismissal, on the grounds of failure to pass her probationary period was fundamentally unfair towards her. In this regard, I note that the Worker’s first probationary review was positive, and it would appear that if the Worker remained on this project, the project she was hired to work on, the present dispute would not have arisen.

Unfortunately, this is not what transpired and the Worker was seconded to a project that she submitted was not relevant to her qualification, experience or competence. At this point it should be noted that the Employer is within its rights to move the Worker to a different area in circumstances whereby the project she was engaged with unexpectedly stalled. The alternative to such an action would be to place the Worker on lay-off or to make her redundant, neither of which would appeal to most employees in this situation. It appears that this move, from the project the Worker was hired to engage with, to one in which required skills outside of her experience, was the catalyst for the difficulties the worker experienced thereafter. In this regard I note that Worker did not pass her probation, and the same was extended with a PIP implemented. Again, it should be noted that the Employer is within their contractual rights to take this course of action. I further note the Worker did not contest the same but engaged with the process thereafter.

The bulk of the Worker’s allegations relate to the PIP she engaged with during this extended probationary period. She alleged that she did not received adequate feedback, and that the feedback she did receive contradicted what she was told during the weekly one-to-one meetings in relation to the same. Having reviewed the contents of the PIP I find that the goals of the same were achievable on foot of reasonable, objective criteria. While the Worker alleges that she did not receive sufficient feedback during the same, I note that one-to-one meetings were scheduled on weekly basis for this purpose. While I note that the Worker’s position that she received no constructive feedback during the same, these meetings allowed the Worker the opportunity to seek guidance, clarification or assistance in achieving the goals of the PIP.

Probationary dismissals have been the subject of commentary by the Superior Courts in recent times. Most notably, in the matter of Donal O’Donovan v Over-C Technology Ltd and Over-C Limited [2021] IECA 37, which similarly involved a probationary dismissal on the grounds of poor performance, the Court of Appeal held that,

“During a period of probation, both parties are - and must be - free to terminate the contract of employment for no reason, or simply because one party forms the view that the intended employment is, for whatever reason, not something they wish to continue”. 

Having regard to the same, and the totality of the evidence presented, I find that the dismissal of the Worker was not unfair and consequently her application fails.

CA-00041477-001

I find that the dismissal of the Worker was not unfair. Consequently, I do not resolve the dispute in her favour.

CA-00041477-002

This dispute is a duplicate of the one outline above. In this circumstances I do not resolve the dispute in the Worker’s favour.

Probationary Dismissal, Over-C, Performance