ADJUDICATION OFFICER Recommendation on dispute under Industrial Relations Act 1969
Investigation Recommendation Reference: IR - SC - 00002918
Parties:
| Worker | Employer |
Anonymised Parties | Service Executive | Auto Services |
Representatives |
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Dispute(s):
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 – 00002918 UD IR SC 00002917 | 27/07/2024 |
Workplace Relations Commission Adjudication Officer: Caroline Reidy
Date of Hearing: 26/11/2024
Procedure:
In accordance with Section 13 of the Industrial Relations Acts 1946 – 2015 following the referral of the disputes to me by the Director General, I inquired into the disputes and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.
I gave the parties an opportunity to be heard and to present evidence relevant to the complaint. Oral evidence was presented by both the complainant and the respondent. The parties were offered the opportunity to cross examine on the evidence submitted. Evidence was given under Oath or Affirmation. The Respondent, confirmed the correct company name of the entity that employed the Complainant and confirmed I could update the Respondent name for the case accordingly to this. The Respondent agreed to same.
There were additional claims received under statutory employment legislation and I have addressed same separately and issued a decision accordingly.
Background:
The Complainant was employed as a Service Executive for 5 months. |
Summary of Workers Case:
CA-00065022-002 – Unfair Dismissal under Section 13 of the Industrial Relations Act 1969 The Complainant stated he acknowledges he needs a set amount of service to take this claim under Unfair Dismissal Act and has taken his unfair dismissal under Section 12 of the Industrial Relations Act 1969. The Complainant stated he did not get a contract for 3 months and stated he was unfairly dismissed. The Complainant stated on 25 July 2024 he was called to attend a probation review with no sufficient notice and requested this by Whatsapp. The complainant stated he could not bring a representative or witness with him due to the short notice on 26 July 2024. He stated it was confirmed to him that his probation was not being extended due to not being a fit for the role and sensitivity of the business. The Complainant stated he received no disciplinary sanctions or meetings and was dismissed and the grievance policy was only provided along with his contract. The Complainant stated he received no meeting notes and it was a 3 month catch up of his meeting reference his probation. He stated he was terminated at this meeting and had to leave all his belongings including his contract after him. CA-00065022-003 – Industrial Relations issues under Section 13 of the Industrial Relations Act 1969 The Complainant stated he didn’t get any meeting notes, disciplinary warnings etc and he was only invited to a 3 month catch up and was then dismissed due to failing his probation. He stated he was caught off guard. The Complainant stated he only received his contract in April 2024. The contract outlined his probation period in it. The Complainant stated the Respondent paid him 2 weeks pay in lieu of notice. |
Summary of Employer’s Case:
The Respondent stated the Complainant was on probation and his work attention to detail was not at the required standard and that his data entry was not at the required standard. The Respondent stated the complainant’s work performance did improve after they told him but it disimproved again after that. The Respondent stated there was repeated mistakes, lack of attention to detail and that was the reason by him failing his probation. |
Conclusions:
In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.
Section 13 (1) and (2) of Industrial Relations Act, 1990 states the below. 13.—(1) The Minister may from time to time appoint a person who shall be known as and is in this Act referred to as a rights commissioner to carry out the functions assigned to him by this section. 13. - (2) Subject to the provisions of this section, where a trade dispute (other than a dispute connected with rates of pay of, hours or times of work of, or annual holidays of, a body of workers) exists or is apprehended and involves workers within the meaning of Part VI of the Principal Act, a party to the dispute may refer it to a rights commissioner. (3) (a) Subject to the provisions of this section, a rights commissioner shall investigate any trade dispute referred to him under subsection (2) of this section and shall, unless before doing so the dispute is settled— (i) make a recommendation to the parties to the dispute setting forth his opinion on the merits of the dispute, and (ii) notify the Court of the recommendation. (b) A rights commissioner shall not investigate a trade dispute— (i) if the Court has made a recommendation in relation to the dispute, or (ii) if a party to the dispute notifies the commissioner in writing that he objects to the dispute being investigated by a rights commissioner. CA-00065022-002 – Unfair Dismissal The Complainant was on probation therefore I find he was not unfairly dismissed. The probationary period is designed to facilitate both parties to assess suitability and the Respondent stated they required the Complainant to improve his performance which only improved for some time according to the Respondent. CA-00065022-003 – Industrial Relations issues The Complainant stated he did not receive a contract with the probation details or the disciplinary, grievance clauses until April 2024, 3 months after his employment. The Complainant claims he was given no formal disciplinary warnings prior to his probation finishing. The Respondent stated his performance was not at the required standard so he failed his probation for that reason. |
Recommendation:
Section 13 (1) and (2) of the Industrial Relations Acts, 1946 – 2015 requires that I make a recommendation in relation to the dispute.
CA-00065022-002 – Unfair Dismissal
In accordance with Section 13 of the Act I declare this complaint was on probation based on the evidence provided. I do accept that the only reason for the termination was the employee’s performance and I recommend that the Respondent ensure better HR practices regarding probation are put in place going forward. Therefore, I make no recommendation in favour of the Complainant.
CA-00065022-003 – Industrial Relations issues
In accordance with Section 13 of the Act I make the following recommendation. The Complainant should have received his contract and handbook with the relevant policies within the required timeline. The Complainant expected that a disciplinary process would have to occur to have his employment terminated. In this case no disciplinary process was followed and good HR practice would have meant that the Complainants potential failure of his probation should not have come as a surprise to him due to regular communication and documented feedback and the clear message that failure to improve would have resulted in the Complainant’s employment being terminated due to failure to pass his probation. No formal disciplinary process is required during probation however the rules of natural justice should still be considered and clear objective documented feedback is necessary to ensure no ambiguity is in place for either party in terms of expectations. Therefore, I recommend the Complainant should receive €1,000 euro compensation for the failure to have a probation process and documentation of same in relation to the management of his probation and ultimate dismissal.
Dated: 04-02-2025
Workplace Relations Commission Adjudication Officer: Caroline Reidy
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