Worker

Employer

Anonymised Parties

A Worker

An Employer

Representatives

Nicola Murphy Peninsula Business Services Ireland

Act

Dispute Reference No.

Date of Receipt

Industrial Relations Act, 1969

IR-SC-00003211

29/09/2024

The Worker was employed with the Employer from 9 October 2023 until her termination of employment on 7 August 2024.  She contended that she was unfairly dismissed by her employer.

The Employer denied the claim, contending instead that she was dismissed during her probationary period for performance issues and for Gross Misconduct.

In her complaint form, the Worker stated that she started work with the Employer on 9 October 2023 and that she was told at interview that the person before her wasn’t a good fit and that in fact, she was fired for having raised a grievance.  She outlined that knowing that, she endured any mistreatment for a considerable period.

The Worker outlined that she had to pass her probation to apply for a mortgage by April 2024 in order to buy her ex-spouse out of their home.  She stated that in the offer that she was given, the probationary period was recorded as three months duration.  She stated that she was pressured to resign from her previous position before the contract was sent to her and that when she received the contract it confirmed a six-month probationary period.  She stated that as she had already resigned, she was afraid to negotiate, lest she be seen as “not a good fit”.  She stated that the terms she had understood were on offer, was a shorter commute and hybrid working two days per week and that these terms were very appealing to her.  She stated that she had shared custody of a neurodivergent child, and she really needed the hybrid work.

The Worker stated that in February 2024 she became an Irish citizen, and she shared that news with her supervisor.  She said that the supervisor said that people should only be allowed to apply for citizenship after 15 years and not five.  The Worker stated that similar negative comments were made about her owning a house, while other people who live here all their lives don’t.  The Worker noted that the supervisor owned a house of her own. 

The Worker stated that the atmosphere in the office was toxic, that old employees were speaking negatively about the company and that new employees were stressed until the moment when they passed their probation.  She stated that unfortunately her stress relief day never came as her probation was verbally extended to one year.

The Worker stated that she was neurodivergent, introverted and interested in science, that she doesn’t watch television and that she cannot support TV show discussions or small talk.  She stated that she is industrious and focused on bringing value to the business.  She further stated that she received no onboarding and no training and that she spent several months working through the lunch breaks and staying late and reverse engineering her job and fixing problems that caused monetary losses for years.  She outlined that she built an online system to help the sales reps with orders but that this was never mentioned in her performance review, however she was told that she wasn’t a good fit, because, when everyone else was chatting she was sitting at her desk working.  The Worker noted that her desk was in a separate office and that it was hard to participate in chats happening elsewhere but that she tried to do it whenever she could spare a moment.

The Worker stated that after 5½ months she asked about the hybrid working but that her supervisor had said that her role was not a work from home position.  The Worker noted that the supervisor had a very similar role and that she was working from home several days a week and whenever she felt under the weather.  The Worker stated that eventually the supervisor agreed to remote working on a Monday after she had spoken to the General Manager.  The Worker noted that other people had flexibility to choose and change and had two remote days a week, but that she was afraid she would lose her job if she exercised her right to request flexible working, and she noted that no terms of remote working were outlined in the contract or in the company handbook. 

The Worker stated that May and June were very busy times and that she wasn’t planning on taking any holidays until July as her supervisor would be overloaded covering her during those months.  She stated that in May she voiced her plans to take two weeks at the end of July and two weeks in the Autumn, as up to that point she had only taken one day of annual leave.  The Worker stated that the supervisor advised her that she was allowed to take one week in the Spring, two weeks in the Summer and one week in the Autumn and that she had to take her holidays as soon as possible.  The Worker stated that all her documents had been sent with her Irish Passport application and that she had an open mortgage application and that she could not plan holidays in that context.  She stated that when she advised her supervisor of those circumstances, the supervisor responded that she couldn’t care less. 

She stated that the General Manager confirmed to her that there no such time off breakdown as the supervisor had sought to impose and advised her to request tentative holidays.  She stated that she sent the request to her supervisor for leave between 22 July and 2 August and that she sent that in June and copied the General Manager.  In that email she expressed her concern about the office running with just one person for three weeks as her own leave would be followed directly by the supervisor taking a week of leave.  The Worker stated that on 22 June she fell ill.  She could not eat, drink or talk for six days.  She outlined that her supervisor was informed on Monday 24 June.  She stated that there was a meeting on 26 June and that she took painkillers and worked the full day from home, attending the meeting via Teams and texting as she couldn’t talk.  She stated that she had a medical certificate from 24 June to 28 June and that later her supervisor said that she did not work on 26 June and that she was covering for her.  She stated that all of the records in the ERP showed she wasn’t covering.

The Worker stated that she and her son were invited to stay with her partner’s parents from 19 July and that in order not to exceed the ten days of holidays in a row outlined in the contract, she asked her supervisor if she could swap 22 July for 19 July as she could work remotely on the 22 July.  She stated that having no mortgage offer and remembering “office running on one person for three weeks”, she decided to cut her holiday short and sent the updated request for 19 July and 23 to 26 July, to her supervisor, the General Manager and Payroll.  She stated that everyone that she worked with directly was aware of her holiday plans, and that she received approval on 18 July and sent a companywide email immediately advising of her holiday arrangements, notwithstanding that she was under no obligation to do so. 

The Worker stated that Head of Sales replied that she needed to be in the office on Monday 22 July for a handover.  She stated that she informed him that the handover had already been done and that she could pop up to him right away if he had any questions.  She stated that she had come to his office several times and he was always on the phone or away.  She stated that he then sent her another email saying that there was a meeting on Monday 22 July but there was no meeting in the calendar.  The sales reps had not heard anything about it and one of them had a hotel booked in Donegal and was not coming to Dublin.  She stated that she talked to the Head of Sales at the door as he was leaving the office at 4pm and that he was indignant regarding the short holiday notice. 

The Worker stated that she advised him that her leave had been requested long ago following the General Manager’s instruction and he responded that the General Manager was no one and that he was her manager.  She stated that she asked him if she had to request her holidays from him and he said no that he didn’t want to have access to the holiday schedule file.  She said that she was instructed by her supervisor to Cc the General Manager and Payroll when requesting holidays and that the Head of Sales was never mentioned. 

The Worker stated that she advised the Head of Sales that she would join the meeting on Teams (that was general practice in the company as people work hybrid) and he told her that everyone was coming into the office, including the sales rep travelling to Donegal, which the Worker said was not true.  She confirmed that the sales rep later told her that he would join on Teams if needed.  She stated that she advised the Head of Sales that she was heading to Carlow on 19 July to which he responded that he didn’t say that she was not allowed to work from Carlow.

The Worker stated that her plans changed and on Monday 22 July she was in Dublin.  She stated that on Friday 19 July, there was a “global blue screen of death day” and her laptop was still affected on Monday 22 July.  She stated that she contacted her supervisor who said she would cover for her, and she could have the day off.  The Worker stated that the week after holiday, HR asked her if she had told the Head of Sales that she was planning to work from Carlow and she confirmed that she had said that, but that she had in fact not worked there.  The HR person stated that working from any location other than what is on file, is a breach of trust.  The Working stated that she responded that there was no company policy against it and that her previous employer’s only requirement was that you had to be in the Republic of Ireland and that she had thought it was the same with the current employer.   She also stated that her address was not on file as nobody had ever asked her to provide it and in response the HR representative asked for her address.  The Worker stated that she reiterated that she didn’t work from a different location, that her laptop had a blue screen of death which was only fixed on 29 July and that in fact she did not work at all on 22 July.  She stated that there was evidence to support this via IP logs from the VPN provider. 

The Worker stated that on 7 August the HR person fired her because of working from another location other than her home.  She stated that she wouldn’t listen to what she was saying, that it hadn’t happened, and that she escorted her out of the office, promising that her belongings would be brought to her later.  She stated that she still hadn’t received her belongings at the time of submission of her complaint. 

The Worker stated that a week after she had been escorted from the office, she received the dismissal letter by email, and that apart from working from a different location, the letter also mentioned taking unauthorised leave, which was not true and violation of health and safety which was about turning off lights in the office where other people also worked. 

The Worker stated that she shared an office only with her supervisor and that on sunny days when she was in the office and ambient light was sufficient, she turned off the lights.  She stated that the lights hurt her eyes, and she stated that she had raised the issue several times and that everyone was aware of her eye pain.  She stated that in a previous workplace, she was given a desk by the window to solve the problem.  She stated that she also had an issue with her wrist and was obliged to use a graphic tablet instead of a mouse.  She stated that her previous employer had provided a tablet as well as noise cancelling headset due to her ADHD diagnosis, but she said that no accommodation was made by the current employer.  She stated that she had to bring her own graphic tablet to be able to do her job.

The Worker stated that HR was watching her working without artificial light and could clearly see that it only happened when she was alone, but that she did not say anything about it being a health and safety violation. 

The Worker outlined that the dismissal letter also mentioned three dates when she was alleged to have had meetings due to concerns regarding her behaviour and her conduct.  She stated that the first date referred to, was the date when she started her job and that no meetings took place on that date.  She outlined that the second date referred to in the dismissal letter was a week after she started and that the purpose of that meeting was to set out the objectives of her role with the General Manager and the Finance Manager. 

She further outlined that the third meeting referred to in the letter was a meeting which took place between herself, her supervisor and the General Manager, where her personality traits were discussed and where probation was extended.  She stated she was told she was perceived as rude and angry, and she stated that the General Manager said he didn’t see her as rude and angry but that was somebody else’s opinion.  She stated that it was agreed that it was due to cultural differences as she is Russian.  She stated that she is very straightforward and that she only speaks to the point.  She stated she was bringing up areas where the company was losing money for years, and that was making people who let that happen look bad.  She stated that she was advised that she needed to be more political.  The Worker stated that she also had an accent and a loud voice, and that her supervisor was constantly shushing her while she was on the phone.  She stated that she considered that to be disrespectful and rude and that her supervisor was loud too.  She also stated that the supervisor had a radio on which made it difficult for her to focus in the context of her ADHD, but that she was afraid to address it within the context of the employment. 

She stated that after the meeting she took measures to control her speech better and she said customers on the phone and by email, appeared happy with their interactions and thanked her.  She stated that she brought order to the work processes and sorted out multiple issues.  She also stated that colleagues from other departments never expressed any concerns or gave her any negative feedback and that in fact she was often asked to help with their tasks or issues and that she always did.  She stated she was always polite and responsive and had “no clue” that something was wrong.  The Worker stated that there were no warnings issued, there was no gross misconduct on her behalf and there were no violations of company policy.  The Worker stated that she submitted an appeal to the General Manager on 20 August 2024 and her appeal was denied on 29 August 2024.

The Worker’s  submission

In her submission the Worker confirmed that she was employed by the Employer from 9 October 2023 to 7August 2024.

She submitted that on 7 August 2024 she was fired on the accusation of working from a location different than her home and escorted out of the office and she stated that this was the sole reason mentioned.

She submitted that on 14 August 2024 she received an email with a dismissal letter with the following text:

“Abuse of the working from home office arrangement. You have worked from a different location in your in-law’s house, without our approval or knowledge in Carlow. Your home office is at …...

You confirmed this situation occurred at our meeting on 31 July 2024. You refused to attend a sales meeting of importance at the office.

You took a period of unauthorized leave in July 2024, providing only one day’s notice to the Sales Team, thereby violating our Holiday Policy.

Health & Safety in the workplace (When working in the office, you turn off the lights and work in the dark, other team members work in the same office)

In addition to the above there were previous episodes where concerns on your behaviours were raised as follow:

o   On 17th October 2023 & 9th of October 2023

o   On 2nd February 2024, you had a meeting with the General Manager due to concerns regarding behaviours and conduct.”

She submitted that from the day she started, she made several requests about company policies but received no answers, other than referral to the Employer handbook, which did not outline any of the situations described above but clearly described disciplinary procedures, which were violated in the process of her dismissal.

She outlined that the details of remote working arrangement were never discussed with her and were not covered in the handbook. She submitted that her previous employer required that she was to be in the Republic of Ireland, and so she believed in good faith that it was an Irish legal requirement.  She noted the HSA Guidelines on Remote Working, which was referred to by the HR Manager at the meeting of 31 July 2024 as being violated by her and which defines the Work environment as follows:

“Work environment means the place where work is carried out (for example, in a domestic setting, remote working hub or other location) and environmental conditions associated with the place of work.”

She submitted that if there was some other policy in place in the workplace, she had not been made aware of it. Furthermore, she submitted that up until August, when HR manager made enquiries, no one asked for her home address and Safety, Health, and Welfare at Work Assessment for Remote Working was not carried out as it should have been.

The Worker submitted that she had never worked remotely from any location other than her home location and she submitted that she did not confirm that she had ever done so. She outlined that she did inform the Head of Sales about her intention to do so since her 1 working day was in between her approved PTO (paid time off) days. She submitted that at the time the Head of Sales did not mention that working from another location was a company policy violation and neither did Sales Representatives, who were informed about her plans too. However, the Worker stated that her circumstances changed over that weekend necessitating her return to Dublin and her laptop had a blue screen of death, which she informed her supervisor about and that she could not have worked from anywhere when her laptop didn’t work.  She stated that the HR manager refused to listen to her account of these changed circumstances.  She stated that she wasn’t told to come to the office, that she spoke with Head of Sales who allowed her have that day off.

She submitted that the investigation which should have taken place would have been able to provide the IP address and name of the Internet provider used to access the system when she was allegedly working from her in-laws’ house. She submitted that she did not refuse to attend the meeting but said she would join via Teams, as it was a usual practice within the Employer, with people working hybrid arrangements and that a named Sales Representative had informed her that he was also doing the same.

She submitted that her supervisor gave her a day off, that she didn’t request it and that no one told her she still had to attend the meeting. Furthermore, she submitted that the meeting was not in her calendar.

The Worker submitted that she did not understand why coming to the office on Mondays was “such a big deal”.  She submitted that she had no arrangements for the care of her neurodivergent child since Mondays were normally her remote working days. She stated that she had made enquiries if it was acceptable, on the days when her child’s supervision by someone else could not be arranged, to him to the office, and she was advised she could not. She advised that the child is quite difficult to manage, so just getting a neighbour to look after him for a day was not an option and that, as a family, they were really struggling.

The Worker stated that she did not take unauthorised leave and was therefore unaware what that part of the dismissal was referring to. She submitted that all her absence was authorised by her supervisor or was medically certified. She submitted that she emailed a company-wide PTO notice as soon as her leave was approved, which happened to be 1 day prior to the start of it and that according to her contract and handbook, she was under no obligation to do so.  She further submitted that PTO was requested well in advance and approved and therefore she was not violating any policy.

The Worker submitted that in May 20204, the General Manager advised her to request tentative holidays, which she did. She stated that her reason for not being able to make any definitive plans were:

·        she had no documents on hand (all were submitted with a passport application, which took several months to be processed)

·        she had a pending mortgage application to buy her ex-husband out of the house or urgently sell the house should she not be able to buy it.

She submitted that this was done before the HR manager started work at the Employer. She stated that she was instructed to request PTO from her supervisor, and to copy the General Manager and payroll and she submitted that this was exactly what she did.

In relation to the lighting allegations, the Worker noted the Guide to the Safety, Health and Welfare at Work (General Application) Regulations does not impose any obligations on employees in this regard.  She noted that Regulation 8 states in relation to natural and artificial lighting that an employer shall ensure that— (a) places of work receive, as far as possible, sufficient natural light and are equipped with artificial lighting adequate for the protection of the safety and health of the employer’s employees. Whilst the provision of natural lighting takes precedence over artificial lighting, in practice both will be required. Artificial lighting should be adequate and properly maintained for the safety and health of persons at work. To maximise the use of natural lighting, windows, skylights and glass partitions used for lighting workrooms should be kept clean on both inner and outer surfaces. The lighting levels should be sufficient to enable persons to detect obvious hazards as well as being able to work without experiencing eyestrain. Lighting arrangements should be made so that brightness, unsuitable shading or poorly placed light sources or workstations cannot cause discomfort or injury from glare or from reflection of light into the eyes of the employees. Determining what is good, and correct lighting depends on the visual demands of the task to be performed and the nature of the work to be performed, i.e. office work, hospital work, inspection of minute work (jewellery and watchmaking, fine bench and machine work, rough bench work etc). Standards set by recognised professional bodies, such as CIBSE, should be referred to as regards determining the correct level of lighting.”

The Worker submitted that she reported having eye pain from the lights in the office on numerous occasions, including to the HR manager.  She stated that she did not experience any eye discomfort with natural light. She also stated that the only other team member working in the same office was her supervisor, and that lights were always on when she was in the office.  She submitted that there had never been a situation when she turned off the lights in the presence of other people, and that she always asked people coming into the office if they wanted the lights turned on and that she responded accordingly.   She stated that no one, including the HR manager, ever told her she had no right to regulate the lighting in her workspace to accommodate her needs. She stated that light was always sufficient to detect hazards but that when artificial lighting was on, it was shining right into her eyes, causing pain. The Worker confirmed that she had light sensitivity due to ADHD.

The Worker disputed the Employers position in relation to meetings held with her in relation to performance/behaviours and submitted that the following was an accurate account of what had occurred:

·        9  October 2023 – that was her start date

·        17 October 2023 – a meeting with General Manager and Finance manager to set the objectives

·        2  February 2024 -a meeting with the General Manager due to concerns regarding behaviours and conduct.

The Worker submitted that at the meeting there were concerns raised and to the best of her recollection the issues were as follows:

·        That she was perceived as rude.

·        That she was direct

·        That she was perceived as angry

The Worker agreed that she is direct. She stated that everyone who deals with Russians will agree that almost all are direct. She stated that Russians appreciate being communicated with in the same manner. She further stated that she took steps to address that and asked for future feedback to help her understand what exactly she was doing or saying wrong. No feedback was received but she stated that she had hoped she was making at least some progress.

The Worker stated in relation to the perception that she was angry that she did have a loud voice, which she unintentionally raised when there was ambient noise or poor audibility. She stated that she made extra effort to control her voice when she was answering the phone and she also believed her accent was contributing to being perceived as angry.

The Worker outlined that she started recording herself at home and bought a pair of loop earplugs, which allowed her to speak quieter – to the point where people could not  hear her. She also outlined that she consulted 3 psychologists/ psychotherapists / coaches asking them to help her not to sound aggressive. All 3 independently said they didn’t find her rude or aggressive, they found her assertive, and that she should stay that way.

The Worker stated that she didn’t think there were any legitimate reasons for dismissal, and there was no gross misconduct on her behalf. She stated that there were false statements made by the Company and that she acted in good faith and with the interests of the business in mind.  She submitted that on 7 August 2024 when the HR manager escorted her out of the office, she was promised that her belongings left behind would be brought to her by the HR Manager but that she had not received anything as at the date of submission of her complaint.  The Worker also submitted that she did not receive the dismissal letter by post, as was promised by the HR manager and that the electronic copy did not contain an e-signature.

Information given by the Worker at hearing:

The evidence given by the Worker at hearing was consistent with the details set out in her complaint form and her submission. 

She confirmed that on the day she was dismissed, the only reason given for the dismissal was the allegation that she had worked from Carlow on Monday 22 July, however, the letter of dismissal contained other issues that were not raised with her at that time.  She stated that on the day she was approached and asked if she had time to have a chat on that day, one minute before the meeting took place, and that she was terminated and given one month severance pay as notice. 

At the second hearing, the Worker confirmed that she had only worked with the HR representative for three weeks prior to her dismissal as the HR Manager had only just commenced employment. 

She confirmed that she commenced employment with the employer on 9 October and that her supervisor was late, so no meeting took place on that day.  She confirmed that on 17 October she had her first meeting with the General Manager and the Finance Manager.  She also confirmed that on 19 July she had a blue screen, but she was off that day.  She stated that she discovered on 22 July that there was still a problem and that she couldn’t work, and so she had contacted her supervisor who had advised her that she need not come to work and that she could apply for annual leave in writing.  She stated that she could not provide a copy of that email as she could no longer access the system.  She also confirmed that there was no meeting with them in relation to her appeal, that she simply received a correspondence outlining the outcome of the appeal and that she did not get any opportunity to respond to points raised as part of the appeal. 

In conclusion, she confirmed that her supervisor was aware of her medical conditions and aware of her son’s autism, and that despite this, no efforts were made to accommodate her in the workplace.

The Employer submitted that the Worker commenced employment on 9 October 2023 and that her employment was terminated on 7 August 2024 after nine months’ employment.  The Employer submitted that the Worker was on probation at the time of her dismissal.

The following is a summary of the Employer submission:

·        That the Worker’s contract stated in pertinent part in regard to holidays at paragraph 7: Holidays shall be taken at times convenient to and agreed to in advance by the employee’s supervisor or manager. The employee shall not be entitled to take more than 10 days’ holiday at any one time without the prior agreement of the employee’s supervisor or manager.

·        That the Worker was also provided with Employer’s Employee Handbook.  The Employee Handbook also notes in relation to holidays: It is your responsibility to provide as much notice as possible and ideally not less than four weeks so as many requests as possible can be met and effective cover arranged. We appreciate that you may on occasion need to try and book a holiday at short notice. If this is the case, we will try and be flexible depending on business needs, but we cannot guarantee your holiday will be granted.

·        That paragraph 1 of the Worker’s employment contract states: The first six months of this employment will be treated as a probationary period.

·        That the Employee Handbook addresses probation and relevantly states: Your contract will state the duration of your probationary period – this will usually be 6 months from the start of your permanent employment with the company […] We may choose to extend your probationary period to allow you time to improve your performance to the required standard. During this time, your performance will continue to be monitored. If improvements within your probationary period are not sufficient, your employment may be brought to an end at any time with the appropriate notice. In exceptional circumstances, your employment may be brought to an end with immediate effect without allowing for any further time for improvement.

·        That the contract stated in paragraph 13.2 titled ‘Gross Misconduct’ as follows: The Company has the right to dismiss you without notice in the case of gross misconduct.

·        That the Employee Handbook also stated in relation to gross misconduct that the sanction of summary dismissal is issued when: An act of gross misconduct has been committed. Colleagues are not entitled to notice or pay in lieu of notice.

·        That in February 2024, in consultation with Worker, it was agreed to extend the Worker’s probationary period by 6 months. This decision was taken in light of the Worker’s performance in relation to how she was working internally with the team and externally with customers, which the Employer felt needed additional work to come up to the required standard.

·        That on 7 August 2024, while the Worker was still on probation, she was dismissed in accordance with the dismissal letter, a copy of which was appended to the submission.

·        That the Employer also held a termination meeting with Worker on this date.

·        That the Worker was dismissed for gross misconduct in relation to a failure to adhere to company policies and procedures, in relation to three main issues:

·        Abuse of the working from home office arrangement

·        Taking a period of unauthorised leave in July 2024 and

·        Concerns in regard to Health & Safety in the office due to Worker working in the dark with no lights on in the office.

·        In relation to the abuse of the work from home relationship, the Employer had discretion to permit employees to work from their homes on certain days and pre-approved in advance and in accordance with the need of the business.

·        That on 18 July 2024, the Worker indicated that she would “work from home on Monday” 22 July 2024. Her manager requested that she work from the office on that date and a copy of that email was appended to the submission

·        That the Worker’s manager then sent the Worker an email dated 18 July 2024, relevantly stating: “The work from home privilege that the Employer grants staff is an agreed flexibility of working within the business it is also deemed flexible and can change along with the needs of the business. This is the reason why I had requested that you come in, it has however transpired that in fact you are travelling to “Carlow” this evening […] You assured me that you will have wifi and you can dial in to the meeting. As discussed, this is not working from home this is working remotely to which we don’t have an agreement on. […] I find your decision a breach of trust in our arrangement, and it was not agreed by your direct manager or any other manager.”

·        That with regards to the third ground for dismissal, a copy of Employer’s Health and Safety policy was appended to the submission

·        That the Employer’s Employee Handbook addressed notice periods and stated “(The Employer) is required to give you and you are required to give the Company one weeks’ notice in writing in the first 3 months of continuous service. After 3 months continuous service (the Employer) is required to give you and you are required to give (the Employer) one months’ notice in writing.”

·        That as the Worker was dismissed for gross misconduct, she was not entitled to notice or pay in lieu of notice in accordance with the relevant policies and procedures.

·        That, nevertheless, in an act of good faith, the Employer paid the Worker one months’ salary upon her dismissal.

·        That the Employer also provided the Worker the right to appeal her dismissal within 10 working days.

·        That the Worker filed an appeal of her dismissal. This appeal was not upheld.

·        That the Employer at all times adhered to fair procedures in its dismissal of Worker. The Worker was validly dismissed within her probationary period.

In conclusion the Employer submitted that there was no merit to Worker’s WRC complaint and denied all claims therein. Accordingly, the Employer respectfully requested that the Worker’s complaint be dismissed, and that no adverse recommendation be made against Employer.

Representations at hearing

The Group HR Manager for Ireland and the UK confirmed that the Worker was working with the Employer for ten months, that the Worker had been hired in the Sales Department, where there was just a small team of two people and that it was necessary in such a small team for those two people to work well together.  She stated that there was a supervisor (B) and a Head of Sales (AM). 

She drew attention to the provision in the contract for probation and for the option to extend probation where necessary.  She also drew attention to the Employee Handbook and the supervisor’s list of issues, absences and lates, in relation to the Worker. 

She stated that there were three meetings in total with the Worker, the first meeting being an introductory meeting and the next two meetings to address matters of concern.  She drew attention to the letter of dismissal which she confirmed was written and signed by her and confirmed that it outlined three reasons for the termination of employment.  She stated that the Worker was aware that working from home was meant to be at the home address and she stated that not everybody employed by the Employer has this arrangement but that the Worker was facilitated with one day per week. 

She stated that there were health and safety risk assessments carried out in relation to her working from home and that in that context they required her to work from the location where the risk assessment had been conducted.  She stated that AM had provided a document outlining his concerns regarding the Worker working in Carlow and she stated that she agreed with his assessment of the situation.  She stated this was the first reason for the termination of employment.

She stated that the second reason for the termination of employment was that the Worker looked for tentative holidays on many occasions and it had been explained that within a team of two, business can’t work in an uncertain environment and the correct process for seeking holidays was outlined to her on numerous occasions.  She referred to the email from the Worker requesting holidays and how the supervisor had been surprised that she was taking a few days off, that a handover was needed and that this was normal practice and that while these dates had been tentative, they had never been confirmed.  She stated that there was correspondence from AM that the Worker had not attended work on 22 July at short notice.  She further confirmed that as part of the handbook, there was a policy in relation to booking of holidays and that the Worker had a copy of that. 

The HR representative confirmed that the Worker had worked in “a nice clean office, with natural light” and that on a particular evening as she was about to lock up and leave, she saw some movement in that area and found the Worker working practically in the dark.  She said that when asked about turning on the lights, the Worker responded that she liked working in the dark.  She stated that it happened on a second occasion and that the Worker had her feet up on the desk, but she advised that it was easier for her to view the screen in a darkened room, and that she had been advised accordingly by an Optician.  The HR representative advised that in those circumstances, perhaps she should wear appropriate glasses.  She suggested a review by a Health and Safety Consultant who was coming into the premises to address other issues and that perhaps they could get some advice to rectify the situation, and she further advised the Worker that she should not put her feet up on the desk, or have the blinds down and not to work in the dark.  The HR representative stated that she believed these were valid reasons for a dismissal and that natural justice and fairness had been applied.  She stated that the company had tried to give the Worker the opportunity to improve but that she had not done so.  She stated that in the letter of dismissal, the Worker was advised of her right to appeal and that she did appeal to the General Manager and that he responded in writing. 

In response to questions put by the Worker, the HR representative confirmed that she commenced employment with the Employer on 9 July 2024 and accepted that this was less than one month prior to the termination of employment of the Worker.  She confirmed that her comments about the Worker’s behaviour were based on the factual evidence from the supervisor documentation and from the three meetings held with her. 

The Worker put it to the Employer that the meeting of 9 October was not a meeting in relation to her behaviour as that was her start date, that the meeting which took place on 17 October was for the General Manager and the Finance Manager to set out their expectations of the role and that the only meeting that addressed concerns in relation to the Worker’s performance/behaviour was the last meeting to which she had referred.

The HR representative confirmed her understanding was that all of those meetings had addressed concerns and as the HR Director could not verify this directly herself, she undertook to seek the participation of those directly involved in the next adjudication hearing, however it was her understanding that concerns were raised on 17 October and additional concerns were raised on 2 February and that as a consequence the Worker’s probation was extended for six months.  She confirmed that it was her understanding that this was not in writing, however she stated that it was clear from her own submission that she understood that probation had been extended. 

Hearing of 17 July 2025

There was no appearance by or on behalf of the Employer at the second hearing.

On 14 July 2025 the Employer emailed the WRC and stated “Please be advised that as engagement with claims under Section 13 of the Industrial Relations Act is voluntary for the employer, Respondent does not anticipate attending the hearing on 17 July.”

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties, as well as information provided at hearing by the parties.

Jurisdiction

I noted that the Employer emailed correspondence of 14 July 2025 to the WRC indicating that engagement with claims under Section 13 of the Industrial Relations Act was voluntary for the employer and so the Employer did not propose to attend the second hearing.  However, I also noted that the Employer was issued with notice of the dispute under Section 13 of the Industrial Relations Act on 16 October 2024 and advised of the requirement to submit any objection to the matter being heard within 21 days.  The Employer was, therefore required to submit any objection to the WRC by 6 November 2024 but no communication was received from the Respondent in response to the request within the period specified although the Employer did engage in email correspondence with the WRC during that time.

In these circumstances I am satisfied that I have jurisdiction in this matter.

The Substantive Issue

I summarise the Worker position as follows:

·       That she was unfairly dismissed on 7 August

·       That the dismissal as discussed with her on that date solely related to an allegation that she worked from her in-laws home in Carlow rather than her own home.

·       That when she received the letter of dismissal a week later it contained 2 further issues that were not raised with her at the meeting. 

·       That the dismissal did not follow fair procedures

·       That she was denied the opportunity to present her case in an appeal process.

·       That in relation to the issue about working in Carlow, while she had indicated her intention to do so, she had, in fact, not worked from Carlow because plans had changed and because she had a problem with her laptop

·       That in relation to the additional issues, that she had an eye condition, arising from ADHD, that resulted in her having difficulties when working under bright artificial light, that she turned off the lights while working alone and that the Employer was aware of her ADHD diagnosis and of her eye condition.

·       That she had been told by her supervisor to take leave on the day which was disputed and that she had offered to attend the meeting remotely.  She indicated that others had done so.

In the alternative it was the Respondent position

·       That the Worker had been dismissed for Gross Misconduct for breaching the terms of the Working from Home Policy

·       That there were valid reasons for the termination of her employment

·       That performance/behaviour issues had been addressed with her at 3 meetings prior to her dismissal

·       That her probation had been extended

·       That consequently she was within probation when her employment was terminated

·       That she had been afforded an appeals process

·       That she had been paid in lieu of notice though this was not required in the instance of summary dismissal

In assessing the arguments of both sides, it was evident that the Employer was confused in relation to the basis of the dismissal, on the one hand it was described as dismissal due to Gross Misconduct. Alternatively, it was described as a dismissal, following a number of meetings where performance/behavioural issues were raised during probation ultimately leading to termination of employment within an extended probationary period.  The Worker had a contractual provision of a 6-month probationary period.

In that regard it was noteworthy that the Worker was advised verbally of the extension of probation. The Employer submitted that the probation was extended in February 2024, and it appears that this occurred at a meeting on 2 February 2024.  The Worker accepted that this did occur and that issues were raised at that meeting.

It was also noteworthy that the Worker denied that prior to that meeting there had been any discussion with her regarding performance/behaviour, and she challenged the Employer position that discussions had taken place on 2 and 17 October 2023.  At the first hearing it became clear that the Employer representative had not been employed at that time and had no direct knowledge of what meetings had occurred. She undertook to attend the second hearing in the company of a manager who had been directly involved.  In the event no representative of the Employer attended that meeting to provide clarification.

The Worker continued to maintain her position that performance/behaviours were not addressed with her on either 2 or 17 October 2023 and I found her account to be credible, particularly in light of the fact that she only commenced employment on 2 October 2023.  I believe I am also entitled to draw inference from the non-attendance of the Employer at the second hearing and their failure to provide any supporting information to ground the assertion in their submission that 2 previous meetings with the Worker had ventilated their concerns in relation to her performance and behaviour.

I have, therefore, formed the view that there were no issues raised with the Worker prior to the meeting on 2 February 2024 when her probation was extended on the cusp of the expiration of the probationary period and I have concluded that the Employer’s actions at that time were carried out in avoidance of that deadline.  In these circumstances dismissal on the grounds of performance and behaviour without further engagement with the Worker would seem to be a nuclear option.

In addition, the issue relating to working in the dark, while understandably of concern, did not appear to have been considered by a medical or health and safety expert, as proposed by the HR Manager on the day she found the Worker in a dark office.  In these circumstances, to disregard and not fully examine issues relating to a disability in the workplace is inexcusable, to have issued a dismissal on that basis and in the circumstances defies all understanding.

The matters relating to the working from Carlow and the taking of leave and non-attendance at the sales meeting were seriously and consistently contested by the Worker.  However, there is no evidence that her position was considered, and no investigation or other examination of the facts was properly undertaken.

Finally, it was clear to me, that while the Worker was permitted to appeal the decision to terminate her employment, she was given no opportunity to meet with the Manager who considered her appeal, no opportunity for representation in that process and was presented with no evidence of the allegations against her in either the disciplinary or appeals process.

In all the circumstances, I find that the Worker was not afforded fair procedures, that the Employer has not demonstrated reasonable grounds for the decision to dismiss and that her dismissals was not due to failure to pass her probation.