Worker

Employer

Anonymised Parties

A Supervisor in a Retail Store

A Retail Store

Representatives

Self-represented

Represented by Management

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-00004951

11/04/2022

The employer is a retail homewares business and has around 50 stores across Ireland.  The worker joined the business on November 1st 2021 as a supervisor in a newly opened outlet in Leinster.  A contract of employment submitted by the employer shows that he was employed for a fixed term of six months at an hourly rate of €11.20.  He was dismissed on November 29th 2021 when he was informed that he failed his probation.  He was given no information about what caused him to fail his probation and he claims that the reason is because he is a member of the Traveller Community.  The employer’s case is that the worker’s employment was terminated due to issues with his performance.

Before he went to work for this employer, the worker said that he was employed by a motor company.  He gave them a week’s notice and he took a week’s holidays before he started in his new job.  He said that he left the motor company because the job with the employer was nearer his home.  For his training, he went to a store that was already open.  He was taught how to use the company’s computer system, how to handle cash on the tills and how to open and close the store.  When he moved to the store to which he was assigned, he was one of five supervisors, reporting to the store manager. 

Shortly after he joined the company, the worker said that offensive remarks were made by managers who referred to members of his community as “knackers.”  He said that there was an excessive monitoring in the store of customers who were Travellers.  He said that listening to how Travellers were described was “like a punch in the gut.”  He said however, that he tried to get on with his job.  When he was asked to keep an eye on a customer who happened to be his aunt, he told the store manager that he is a Traveller and he said that he wasn’t going to follow any more Travellers in the shop.  Following this incident, he was instructed to clean the warehouse for two days and he wasn’t allowed to work on the shop floor.  He thinks that this was a punishment for refusing to follow Travellers.  When he went to work on November 29th 2021 at 12.00pm, he was asked to go to a meeting with the store manager, who was in the office with another supervisor.  The store manager told the worker that he had failed his 13 weeks’ probation.  When he asked for a reason, he said that he was told that there was no reason.  He said that he was asked to hand back the store keys and to return his uniform.  He handed over the keys, removed his work jacket and left the office.

The employer’s case is that the worker was dismissed due to the following issues related to his performance:

(a) Failure to manage and drive the team;

(b) Unauthorised use of mobile phone on the shop floor;

(c) Failure to complete own tasks;

(d) Failure to communicate to the Line Manager.

The worker’s contract of employment provides that the company can dismiss an employee during the probationary period if it considers the person unsuitable. 

The in-house solicitor who represented the employer referred to the decision of the Court of Appeal in the matter of Donal O’Donovan v Over-C Technology Limited and Over-C Limited[1].  Mr O’Donovan was a chief financial officer and, because of problems with his performance, he was dismissed during probation.  The judgement states as follows:

“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 with which they wish to continue.  Neither party can hold the other to the continuation of the employment against the wishes of the other.  I do not accept that a court can imply a right to fair procedures – still less uphold a cause of action for the breach of such an alleged right – in relation to the assessment of an employee’s performance by an employer (other than for misconduct, which does not arise here) during the probationary period as this would negate the whole purpose of a probationary period.” 

The information set out by the worker at the hearing on January 29th 2025 leads me to believe that he was dismissed because he is a member of the Traveller Community.  This discriminatory treatment has been adjudicated on separately under the Employment Equality Act 1998 - 2015, and my task here is to consider his claim that he was dismissed without recourse to proper or fair procedures.

The worker was dismissed after four weeks’ working as a supervisor in the employer’s newly opened store.  During the hearing on this dispute, the store manager said that, at the meeting at which she informed the worker that his employment was terminated, she told him that she couldn’t answer any questions regarding why he was being dismissed.  At the hearing, I was informed that he was dismissed because of his failure to manage and drive the team, for using his mobile phone at work, for not completing tasks and for his failure to communicate with his manager.

For an employee an hourly rate of €11.20, it seems to me that the requirement to “manage and drive the team” is outside the remit of that person’s job.  I note from the role profile document for the job of supervisor that there is no reference to “managing and driving the team” and that the responsibilities of the job are focussed on supporting the store manager.  In his evidence, the worker agreed that the store manager spoke to him about using his mobile phone on the shop floor and he said that, when he was spoken to about this, he stopped using his phone.  He said that he did all the work that he was asked to do.

For the duration of his four weeks of employment, apart from the issue of the mobile phone, the store manager never raised any concerns with the worker about his work, attitude, performance, communications or conduct.  Most reasonable managers try to avoid dismissing people they have recruited and, it is my view that, having spoken to him about using his phone, if there were other problems with his performance or conduct, the store manager would have raised them with the worker.  The fact that she did not do so, and her failure to give reasons for dismissing him was entirely unfair and inconsistent with the conduct of a reasonable employer.

It is the employer’s case that the worker’s contract provides that he may be dismissed during probation.  His recollection of the meeting of November 29th is that he was told that he failed his probation of 13 weeks.  Strangely, although the contract submitted by the employer shows that the worker was employed on a fixed-term contract for six months, the contract states that he was subject to probation of 12 months.  The following statement is on page 3, under the heading, “Probation Period:” 

“A probationary period of 12 months will apply from the commencement of your employment.  This allows you time to familiarise yourself with your new role and it gives us time to assess your performance.  If any aspect of your work is not up to standard, your line manager will advise you of the same and give you time to improve.  Once you have successfully completed your probationary period, or any period of extended probation (which will not exceed 18 months), your employment will be confirmed in writing.

If however, your Line Manager considers that you are unsuitable to the Company’s requirements, and that your appointment will not be successful, your employment may be terminated either during the course of or at the end of your probationary period, this will be confirmed in writing (sic).  The Company reserves the right not to confirm your employment during this 12-month period.”

Although the in-house solicitor emphasised the entitlement of the employer to dismiss an employee during probation if they are unsuitable, it is apparent from the two paragraphs above that this provision is subject to the line manager having advised the employee about what is needed to address their performance and giving them time to improve.  While this paragraph also provides that dismissal during probation will be confirmed in writing, that didn’t happen in this case.

The employee handbook also contains a comprehensive statement regarding probation:

“On joining the company, employees are required to complete a period of probation.  Details of this will be in your contract of employment.  This allows you time to familiarise yourself with your new role and it gives us time to assess your performance potential abilities.  If any aspects of your work is not up to standard your Line Manager will advise you and give you time to improve.  If however, the Line Manager or any other Manager considers that you are unsuitable to the Company’s requirements and your appointment will not be successful your employment will be terminated during the course of or at the end of your probationary period in accordance with the Minimum Notice and Terms of Employment Acts, 1973/1991.  Your probationary period will automatically be extended to consider any period of absence, either authorised or unauthorised (sic).”

I accept that the employer was entitled to dismiss the worker during probation, but it is clear from these contractual provisions that the policy is to address issues of concern with a new employee in the first instance, and to give them time to improve on their performance or to address any problem with their conduct.  The failure to follow the company’s policy on probation is not adequately explained by plucking a sentence out of a paragraph without reference to the full meaning of the paragraph itself. 

In general, the requirement to adhere to the full rigours of a performance-management procedure doesn’t apply to employees on probation.  However, it is clear from the decision of the Labour Court in Beechside Company Limited, trading as the Park Hotel Kenmare and A Worker[2], that the requirement for fair procedures is not confined to employees who have adequate service to benefit from the protection of the Unfair Dismissals Act.  The Court has consistently determined that employees with short service come within the protection of Statutory Instrument 146 of 2000, the Code of Practice on Grievance and Disciplinary Procedures.

I am not convinced that there were problems with the worker’s performance but, if his manager had concerns then, in accordance with his contract, he should have been given an opportunity to address them.  As he had short service, it would not have been appropriate to go through each stage of a performance-management process.  I am satisfied that, if someone had explained to him what was required to ensure that he remained in the job in the longer term, he would have adapted and reached the standard required by the store manager.  Because of the failure of the employer to engage in any procedures, I find that the dismissal of this worker was unfair.

In settlement of this dispute, I recommend that the employer pay the worker compensation of €2,000, equivalent to approximately four weeks’ pay.

Probation, company procedures