Worker

Employer

Anonymised Parties

A Worker

An Employer

Representatives

Joseph Bradley BL instructed by Ormonde Solicitors

Ibec

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 - 00002496

17/04/2024

The Worker referred to the Workplace Relations Commission a dispute in relation to disciplinary sanctions up to and including dismissal and of unfair dismissal.

The Worker’s employment was terminated by the Employer during a probationary period.

The Worker submitted that proper probation procedure was not followed and that her employment was terminated because she raised a grievance against her manager.

The Employer disputed the submissions of the Worker and submitted that it had conducted a fair probation process and behaved reasonably at all times.  The Worker was fully aware of issues with her performance and given an opportunity to address same.  The termination of the Worker’s employment was fair and reasonable in the circumstances.  

The Worker was employed as a commis chef on a permanent, full-time basis from 9 December 2023.  Her contract of employment provided for a 6-month probationary period. 

At a probation review meeting on 11 February 2024, the Worker was advised she needed to improve on her absence record and speed in the kitchen.  The Worker applied herself to her role and, at a second probation review meeting on 26 March 2024, the Worker was advised she had shown improvement but that she still needed to keep her absence levels in mind.   The probation review meetings were conducted by the Worker’s line manager and a sous chef/food manager.    There was marked improvement in the Worker’s performance between the first and second probation review meetings.

From commencement of employment, the Worker experienced difficulties with her line manager.  On or about 5 March 2024, the Worker lodged a grievance against her manager under the bullying and harassment procedures and a grievance meeting took place on 29 March 2024.

On 15 April 2024, the Worker was requested to attend a formal probation meeting the following day.  The email request informed the Worker that she was at risk of not passing her probation. 

The Worker received two verbal warnings on the same day of her final probation review meeting on 16 April 2024 in relation to attendance and food safety. 

The termination of the Worker’s employment on 16 April 2024 was predetermined and unfair.  There was no discussion at this meeting about the Worker’s performance or progress.  The termination of the Worker’s employment was unlawful and conducted without any fair procedure. 

Following the termination of her employment, the Worker secured alternative employment for the period from October to December 2024.  The Worker is not currently working and sought compensation by way of resolution of the disputes referred to the Commission. 

The Worker worked with the Employer as a commis chef from 9 December 2023 to 16 April 2024.

There were two performance review meetings with the Worker on 11 February 2024 and 26 March 2024, during which various areas for improvement were discussed including the Worker’s high level of absenteeism.

The Worker raised a grievance with the Employer’s HR Business Partner on 5 March 2024 and a meeting took place on 29 March 2024.  

The Worker did not show any evidence of improvement and displayed challenging and disruptive behaviour towards her line manager and head chef.  The Worker’s employment was terminated at a third probation performance review meeting on 16 April 2024. The Worker was paid one week’s pay in lieu of notice.  The Employer had identified issues with the Worker’s performance and attendance before the Worker raised a grievance about her manager.

The probation process was conducted fairly and the Employer behaved reasonably at all times.  The Worker was fully aware of performance issues and provided with an opportunity to respond.  The Employer acted in accordance with the Worker’s contract of employment and its internal procedures when reviewing the Worker’s performance and terminating her employment.  The Employer’s decision to dismiss was reasonable and fair in circumstances where the Worker failed to achieve the necessary standards of performance during the probationary period.  

The disputes referred under the Industrial Relations Act 1969 in relation to disciplinary sanctions and unfair dismissal are duplicate claims.

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

CA-00062859-001

The dispute referred, under issues type disciplinary sanctions up to and including dismissal, specified wrongful dismissal during probation by reference to a failure of the Worker’s line manager to follow proper probation procedures and the Worker having referred a grievance against the line manager.

At the hearing, it was submitted on behalf of the Worker that this dispute was in respect of two verbal warnings that issued to the Worker on 16 April 2024.  The Worker however advised that the head chef spoke to the Worker on 11 April 2024 about wrapping food in accordance with the Employer’s food safety procedures, and that the issues of food safety and the Employer’s search policy were raised by the head chef at the meeting of 16 April 2024, during which the Worker was informed her employment was being terminated.

The Worker was in the probationary period of employment at the time material to this dispute.  The Worker’s conditions of employment included a provision that she would not be subject to the Employer’s disciplinary procedure during her probationary period.  Based on the information provided by the Worker at the hearing and in her complaint form, I am satisfied that the Worker was not issued with verbal warnings or any other sanction within the context of the Employer’s disciplinary procedure.  It is appropriate for an employer, and in accordance with this Employer’s policy, to raise with an employee any matters of concern, including matters relating to an employee’s work standards, and particularly so in this case where the Worker was on probation. 

The complaint of wrongful or unfair dismissal and associated issues raised by the Worker relate to the dispute referred under CA-00062859-003. 

Accordingly, I am satisfied that there is no dispute between the parties in relation to disciplinary sanctions and that the dispute referred in relation to wrongful dismissal is a duplicate of CA-00062859-003.

CA-00062859-003

The material issue in this dispute is whether the Worker’s employment was unfairly terminated during the probationary period.

There were issues with the Worker’s performance addressed at probation performance review meetings of 11 February and 26 March 2024.

The Worker raised concerns with HR on 5 March 2024 about her line manager.  In an email entitled poor management, the Worker set out instances of alleged inappropriate behaviour/harassment and raised other issues, including how the Worker did not agree that the line manager was the appropriate person to evaluate the Worker’s performance.  In the conclusion of the email, the Worker expressed a fear about the line manager treating her worse for having raised the issues especially with her probation review not reflecting the reality of her work. 

The Employer’s position was that the grievance raised by the Worker against the line manager had nothing to do with the termination of the Worker’s employment; the Worker’s line manager was unaware of the grievance raised by the Worker at the time she took the decision to terminate the Worker’s employment based on the Worker’s performance.

The Employer had the right during the probationary period to decide not to retain the Worker in employment.  In terms of the Worker’s right to fair procedures, I accept the Employer’s submissions on the Court of Appeal’s decision in O’Donovan v Over-C Technology Ltd & Anor [2021] IECA 37 insofar as it held that a right to fair procedures could not be implied in relation to assessment of an employee’s performance by an employer during the probationary period. 

The decision does not however obviate the need for an employer to adhere to workplace policies and for an employer to act fairly during a probationary period.   

The Employer had a probation policy which had as its express purpose “to support employees during their first six months with [the Employer] and if any problems arise to address them promptly in a fair and consistent manner.”

Issues arose for both parties during the probationary period. At the first probationary review meeting on 11 February 2024, the Worker was informed of inconsistent and unsatisfactory aspects of her performance.   The Worker referred grievances concerning her line manager to HR on 5 March 2024.  The grievances included a complaint of harassment and inappropriate behaviour and a complaint about the conduct of the probationary process to date.  A second probationary review meeting was held by the line manager on 26 March 2024 and whilst the majority of assessed work areas showed an improvement, the line manager detailed concerns about the Worker’s behaviour.  By email of 12 April 2024, the line manager communicated to HR her points for the Worker not passing her probation.  The points included the Worker questioning the line manager’s authority and directions in the kitchen and accusing the line manager of illegally withholding the Worker’s annual leave.   These points were not ultimately communicated to the Worker either in advance of or at the final probationary review meeting.  The Worker also did not receive copies of the probationary review reports in accordance with the probationary policy.  The Employer maintained that the line manager was not aware of the Worker’s complaints against her at the time of taking the decision to terminate the Worker’s employment.  However, it is clearly the case that HR were aware of the Worker’s grievances concerning the line manager.  Some of the points made by the line manager to HR on 12 April 2024, in support of the Worker not passing probation, fell within the scope of the grievances referred by the Worker to HR and one pertained to alleged misconduct on the part of the Worker.  The outcome of the Employer’s investigation was communicated to the complainant in January 2025. 

In such circumstances, I am not satisfied that issues arising during the probationary period were fairly addressed by the Employer in accordance with its probation policy, or that the termination of the Worker’s employment on 16 April 2024 was unconnected to the grievances raised by the complainant or to conduct on the part of the Worker.  

I therefore conclude that the Worker’s dismissal on 16 April 2024 was unfair. 

Having regard to all the circumstances, including the fact that there were issues for both parties during the probationary period, I recommend the Employer pays to the Worker €2,080.00, which is a sum equivalent to one month’s wages, in resolution of the dispute.

Industrial relations – Disciplinary sanctions – Dismissal – Probationary period – Employer’s policy