RECOMMENDATION

INDUSTRIAL RELATIONS ACT 1969

Investigation Recommendation Reference:  IR - SC – 00004096

Parties:

Dispute:

Workplace Relations Commission Adjudication Officer:  Catherine Byrne

Date of Hearing:              07/07/2025

Procedure:

In accordance with section 13 of the Industrial Relations Act 1969 (as amended), this dispute was assigned to me by the Director General.  At a hearing on July 7th 2025, I made enquiries and gave the parties an opportunity to be heard and to put forward their positions in relation to the dispute.

The subject matter is a dispute under section 13 of the Industrial Relations Act 1969 and the hearing took place in private and the parties are not named.  In accordance with the section 8 of the Industrial Relations Act 1990, they are referred to as “the worker” and “the employer.”

The worker represented herself and the employer was represented by three members of the HR department.

1          Summary of the Worker’s Case 

1.1          The employer provides technical, recruitment and HR services to the oil and gas industry from its offices in Dublin.  The worker joined the company on Monday, January 27th 2025 as a HR assistant.  She was dismissed 10 weeks later on Monday, April 7th.  A letter given to her by the HR generalist and team lead on the same day states that she was dismissed for the following reasons:

• Gross misconduct in the workplace;
• Failure to adhere to agreed working hours;
• Performance not meeting expected standards;
• Failure to meet workplace requirements regarding presence in the office.

1.2          The worker complains that the manner of her dismissal was unfair and that the description of her behaviour as “gross misconduct” was unreasonable.  She said that she was asked to leave the workplace immediately and that her computer and keys were taken from her.  When she asked for an explanation, she said that she was told that she was looking at the ceiling when her colleague was trying to explain something to her.  She said that the disciplinary procedure wasn’t followed and she believes that her dismissal was substantively and procedurally unfair.

1.3          Referring to clause 10 of her contract of employment, the worker said that she is entitled to one month’s notice of the termination of her employment:

“Your employment may be terminated at any time by one party giving the other 1 months’ notice in writing, or in accordance with the Minimum Notice and Terms of Employment Act, 1973 (as amended), whichever is the greater.”

The worker argued that one month’s notice is greater than her entitlement under the Minimum Notice Act.  Because she had less than 13 weeks’ service with the employer, she was not entitled to any notice.

1.4          In response to the HR team lead’s concerns about how much work she was doing, the worker said that she had to learn everything from scratch and that she spent a lot of time reading and researching.  She said that her manager was detached from her and he provided no support.  She said that in a period of two months, she communicated with her manager four times.  She said that she felt that he didn’t like her from the start, and he constantly referred to the previous HR assistant and instructed her to “get into her computer” to understand how to do her job.  She said that she had to research how to do the job by herself.

1.5          On March 27th 2025, the day that the HR team lead wanted to have a meeting with her, the worker said that she wasn’t well enough to go to the office.  She said that she got an online appointment with her doctor after 18.00 on March 26th and he didn’t send her a medical certificate until later that evening.  She sent the medical cert to the employer at 23.36.  She said that she was absent for 10 days and, when she returned to work on April 7th, she was “fired.”

1.6          The worker agreed with me that she was unhappy in her job and that she was thinking about leaving.  She had been told that she wasn’t meeting the expected performance criteria.  She said that she told the HR team lead that she might leave before her probation ended.  Concluding her statements, the worker said, “it was right to let me go” but she said that she should not have been dismissed for gross misconduct.

2. Summary of the Employer’s Case

2.1          The HR team lead said that the business is divided into two parts, one involving the payment of expenses to clients and the second part provides recruitment and technical services to the oil and gas industry.  She said that she showed the worker how to use the manual for the payment of expenses, which she referred to as “the bible,” but the worker didn’t do the assignments correctly.  She was unwilling to do the work that she was asked to do, and she didn’t follow the training manual.

2.2          The HR team lead said that it is unfair to say that no training was provided for the worker.  She said that she went through training documents regarding the payment of expenses with her.  She accepted that the processes for the oil and gas side of the business are not so well documented, but there are videos and documents to support a new recruit.  The HR and operations coordinator said that she was in the office every Monday and Tuesday and that the worker was never there.  She said that she sent her all her notes on the recruitment process and she told her that she could ask for help if she was unsure of something.  She said that she tried to get the worker to read the documents, but she got very negative responses and she felt that she wasn’t listening.  The HR and payroll officer said that she didn’t work on the same team as the worker but she was in the office when the HR coordinator tried to help her.  She said that the worker didn’t look at the HR coordinator when she was training her.  The payroll officer recalled that, on her second day at work, on January 28th 2025, the worker was 20 minutes late.  She said that she told the team that it was such a nice day that she decided to walk to work in the sunshine.

2.3          On behalf of the employer, the HR team lead said that she had a discussion with the worker about her performance on February 19th 2025.  She said that she explained to her that her attitude wasn’t acceptable, and that she needed to come in to the office more frequently.  At the hearing, the HR team lead said that the policy in the company is that employees may work from home for two out of five days, but that during probation, an employee is expected to be in the office more frequently, to benefit from the support of colleagues.  During the month of March 2025, the HR team lead said that the worker attended the office on four days during the entire month.  At times, the HR team lead said that there was no output from the complainant, in the form of email, Skype calls or communication between her and her manager and she said that the employer couldn’t tell if she was working.

2.4          On March 18th 2025, the HR team lead said that she had another meeting with the worker, at which she discussed the same issues that she raised with her four weeks previously.

2.5          On Wednesday, March 26th 2025, the HR team lead said that she instructed the worker to be in the office the next day.  She said that the worker informed her that she had an appointment at 12.00 on Thursday the 27th and the HR team lead said that she told her that she was to come to work and that she could take time off to attend her appointment.  At 23.36, the worker sent the HR team lead an email in which she stated, “…since teleworking tomorrow is not an option for you, please find attached my sick leave certificate.”  The HR team lead said that she interpreted this as the worker using the excuse of an illness not to attend the office, and that she may not have been genuinely ill.  

2.6          The HR team lead referred to an incident when the worker’s manager sent her an email at 15.30 one day and told her that he wanted to through the formatting of CVs.  The worker replied at 15.56 and said that she finished work at 16.00 and that the CV formatting would take too long.  The HR team lead said that the worker was meant to finish work at 16.30.

2.7          The HR team lead referred to clause 2 of the worker’s contract of employment and the provision for termination within the probationary period and the payment of notice in accordance with the Minimum Notice and Terms of Employment Act 1973.  This clause provides that the company “may, at its discretion, pay you in lieu of notice.”  As the worker had less than 13 weeks’ service, she had no statutory entitlement to notice.  The HR team lead referred also to clause 10 of the worker’s contract which is quoted at section 1.3 above.  She said that, while this appears to provide for one month’s notice, the courts have held that probation clauses allowing for shorter notice or summary termination may operate separately from the standard notice provisions, provided the terms were clear and agreed.  In this regard, the HR team lead referred to the decision of the High Court in Kramer v Arnold[1] and the decision of the Court of Appeal in O’Donovan v Over-C Technology[2].  She submitted that clause 2 “governs the termination” of the worker’s employment.

2.8          The HR team lead submitted that the employer wasn’t required to initiate the disciplinary procedure because the worker’s contract specifically provides for the non-application of the disciplinary procedure during probation.

2.9          At the hearing, I asked the HR team lead what it was that led her to the conclusion that one of the reasons for dismissing the worker was “gross misconduct.”  She replied that it was the worker’s attitude to her job and her lack of respect for her colleagues and her manager.  She said that the worker’s decision not to attend the office as she had been instructed on March 27th, and to submit a medical certificate instead was “the cherry on the cake.”

3          Conclusions

3.1          I have considered the information provided to me at the hearing and I listened carefully to the statements of the members of the HR team and the worker herself.  It is apparent that relations were poor between them from the start, and that the worker had little contact with her direct manager who was abroad.  The worker told me that she hadn’t worked in a HR role up until this job and that it was a change of career for her.  It seems to me that she may have had a greater chance of settling in and coming to grips with the unfamiliar nature of the job if she had attended the office regularly.

3.2          My impression, based on all the information available to me is that the worker was slightly out of her depth in her new job, but that she resisted help from her colleagues.  Perhaps she realised early on that she hadn’t made the right choice for herself and she stopped trying, but it is evident that she didn’t help herself by not working more collaboratively with her colleagues.  Her decision to submit a medical certificate when she wasn’t permitted to work from home was unacceptable.

3.3          It is apparent that, when she was dismissed, the complainant knew that she was in the wrong job and she may have left if there had been an open and robust discussion about her prospects for working out in the long term.  While I agree that she had to part ways with the employer, I think some consideration could have been given to a mutual parting instead of a dismissal.

3.4          I note the findings of the Labour Court in the appeal of DHL Express (Ireland) Limited against the decision of an adjudication officer in favour of Michael Coughlan[3].  Mr Coughlan was a van driver and he was dismissed when he caused damage to his company van.  His employer considered his actions as gross misconduct.  Upholding the decision of the adjudicator that the dismissal of Mr Coughlan was unfair, the chairman, Mr Haugh, quoted from the important decision of the former Employment Appeals Tribunal in Lennon v Bredin[4]:

“Section 8 of the Minimum Notice and Terms of Employment Act 1973 saves an employer from liability for minimum notice where the dismissal is for misconduct. We have always held that this exemption applies only to cases of very bad behaviour of such a kind that no reasonable employer could be expected to tolerate the continuance of the relationship for a minute longer; we believe the legislature had in mind such things as violent assault or larceny or behaviour in the same sort of serious category.  If the legislature had intended to exempt an employer from giving notice in such cases where the behaviour fell short of being able to fairly be called by the dirty word ‘misconduct’ we have always felt that they would have said so by adding such words (after the word misconduct) as negligence, slovenly workmanship, bad timekeeping, etc. They did not do so.”

3.5          It is my view that the dismissal of an employee for gross misconduct applies in very infrequent circumstances, unlike the circumstances in which the employer here found themselves, where they were dealing with an incalcitrant and apparently disinterested employee.  I find that they were correct to dismiss the worker, although, as I have stated, her departure could have been arrived at by alternative means.

3.6          I agree that, from the perspective of her entitlement to notice, the complainant hadn’t got enough service to bring her within the protection of the Minimum Notice and Terms of Employment Act 1973.  However, it seems to me that clause 10 of her contract carries some meaning:

“Your employment may be terminated at any time by one party giving the other 1 months’ notice in writing, or in accordance with the Minimum Notice and Terms of Employment Act, 1973 (as amended), whichever is the greater.”

My role is not to adjudicate on a complaint about a contractual matter, and the worker didn’t bring a complaint under the 1973 Act.  My job is to consider if the employer acted fairly by dismissing the worker for gross misconduct, among other matters (see paragraph 1.1 above).

3.7          It is my view that the inclusion of “gross misconduct” as a part of the explanation for dismissing the worker was disproportionate and that her conduct did not come within the description set out in Lennon v Bredin of “very bad behaviour that could not be tolerated by the employer for a minute longer.”  While it was not unreasonable to dismiss her, it was unfair to attribute the cause of her dismissal to the most serious form of conduct.

3.8          In making the recommendation I am about to make, I do so not to compensate the worker because she didn’t receive notice in accordance with her contract, but as compensation for labelling the cause of her dismissal at the extreme end of the behavioural continuum.

4          Recommendation

4.1          To bring this matter to a conclusion, I recommend that the employer pays the worker compensation of €2,000, equivalent to approximately four weeks’ net pay.

Dated:   06-08-2025

Workplace Relations Commission Adjudication Officer:  Catherine Byrne

Key Words:

[1] Kramer v Arnold, [1997] ELR 208

[2] O’Donovan v Over-C Technology, [2021] IECA 37

[3] DHL Express (Ireland) Limited v Michael Coughlan, UDD1738

[4] Lennon v Bredin, M160/1978