Worker

Employer

Anonymised Parties

A Car Park Supervisor

A Car Parking Company

Representatives

Andrea Montanelli Peninsula

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 - 00002633

16/05/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

IR - SC - 00002634

16/05/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 13 of the Industrial Relations Act 1969

IR - SC - 00002651

16/05/2024

The Complainant was employed as a Car Park Supervisor from 1 September 2023 until he was dismissed from employment with effect from 20 October 2023.

In relation to the complaints that remain to be adjudicated upon the Complainant alleged that he was treated unfairly in relation to disciplinary sanctions, up to an including dismissal (IR - SC - 00002633), that he was subjected to bullying and harassment in the workplace which was left unaddressed by the Respondent (IR - SC - 00002634), and that he was unfairly dismissed (IR - SC - 00002651)

The Respondent is a Parking Solutions Provider, operating throughout Ireland.  The Respondent submitted that without prejudice to the preliminary issues raised, it strenuously denied the complaints and submitted that there was no breach of the pieces of legislation lodged by the Complainant.

IR - SC - 00002633:

The Complainant in his documentation submitted on 19 April 2024 that he was treated unfairly by the employer in relation to the termination of his employment.  He submitted that he had provided a report electronically on the internal system and that he had a telephone conversation with the Safecall Organisation on 9 October 2023 in relation to whistle blower reports and bullying of employees.  He submitted that it seemed to him that the procedure which the Respondent utilised to terminate his employment occurred suddenly while the Respondent was considering the unfair treatment (bullying) report submitted days earlier.  He submitted that the Respondent was aware from the very beginning of his whistle-blower report and that it was confirmed on 12 October 2023 that it had been received.  He stated that the dismissal was preceded by an unannounced meeting with Mr. D without any prior notice and without the opportunity to choose a witness or representative and without the opportunity to read the written protocol for the meeting, and even with the further continuation of Mr. D’s hostile actions towards him, as set out in his complaint to Safecall the week before.  He submitted that the Respondent demonstrated a lack of procedural fairness in relation to the manner in which the decision to terminate his employment was made.  He submitted that previously Mr. D had failed to engage in any consultation or mediation process in relation to the dismissal, or even to notify him in advance that his position was at risk in a probationary meeting.  He submitted that he was never provided with a staff handbook.

Moreover, the Complainant submitted that during the appeal against Mr. D’s decision, his request for a personal meeting was rejected without any reason.  He stated that he was seeking details in relation to contact details for a person he wished to have as a witness on his behalf, and he stated that this was refused to him.  He submitted that the appeal hearing was held remotely on a Teams meeting. 

The Complainant submitted that he originally had agreement to meet with Mr. C in person but that when he read his email of 3 October 2023, after the weekend on the 6 October 2023, the email indicated that Mr. C would only be in Ireland on either 7 October or 8 October.  He submitted that this was a lack of sufficient prior notice about the meeting in person and it meant that for personal reasons he had no option but to agree to the Teams meeting on 8 October.  He submitted that this was in the context of the contact details for his witness not being provided to him and thus he had to attend the meeting unaccompanied. 

Witness evidence – Complainant:

At hearing the Complainant stated that he had sent his report in relation to allegations of bullying against Mr. D on the Safecall system and that a short few days later he was called to Mr. D’s office and that Mr B came to the office.  He stated that Mr. D advised him he was going to conduct a probationary meeting there and then.  The Complainant stated that he had no witness available to him and no representation.  He stated that there was a hostile atmosphere and that he wasn’t aware of the probationary process. 

He confirmed that Mr. D had alerted him to the probationary clause in his contract, but he stated that because he was only just over a month in employment, he did not believe that the provision was relevant at that time.  He stated that subsequent to the meeting he had reviewed the protocol for the meeting.  He stated that he did not fill up the review document at the meeting and he was never given one to sign.  He stated that the meeting that was held that terminated his employment, was the first and only review meeting held with him. 

The Complainant stated that he believed that the process was procedurally unfair, that there was no consultation or mediation and that he was not provided with a staff handbook. 

He stated that he had sought a personal meeting with Ms. C and that that had been refused on 26 October.  He stated that he was advised Ms. S was hearing the appeal.  He had looked for a personal meeting then with Ms. S but that was refused too.  He stated that he asked Ms. S to provide him with contact details for the person he wished to accompany him to the meeting, and he stated that Ms. S advised him that it was his responsibility to contact his own witness.  He stated that Ms. S sent him an invite to an appeal meeting on either 7 November or 8 November but that this didn’t suit and that he only read that email on 6 November.  He stated that in those circumstances he had agreed to the Teams meeting.  He stated that he wasn’t happy with that but that he had agreed because he didn’t have any choice.  He stated that he had no witness present because he was not provided with contact details for his preferred colleague.  Following a question from the Adjudication Officer the Complainant confirmed that the witness was not a witness to any events but rather somebody who would attend and accompany him at the hearing. 

The complainant stated that the appeal hearing was heard by way of a phone call and he considered this to be procedurally unfair as well.  Following questioning from the Adjudication Officer and the Respondent representative he confirmed that there was a difficulty with the link for the Teams meeting and that as a consequence the meeting was held by way of a phone call.  He submitted that he had recorded the call and wished to provide evidence of that. 

IR - SC - 00002634:

The Complainant submitted in his documentation on 19 April 2024 that he suffered a psychiatric injury (undue stress, anxiety and clinical depression) because of Mr. D’s behaviour of bullying as an “inappropriateness and repetition pattern”, which he submitted included, not just one, but a range of the following behaviours: Exclusion with negative consequence, verbal abuse/insults, being treated less favourably than colleagues in a similar role, belittling a person’s opinion, disseminating malicious statements,  micro managing, intimidation/aggressive interaction, excessive monitoring of work, withholding information necessary for proper performance of a person’s job, repeatedly manipulating a person’s job content and targets, blaming a person for things beyond their control, use of aggressive and obscene language.

The Complainant also stated that he believed that he was considering a complaint about bullying, that the appeal HR Manager should respect the rights of both parties; the person against whom the complaint is made and the person filing the complaint.  He submitted that in his opinion, the UK HR Manager Mr. C, was wrong in his findings which were based on his opinion, a misunderstanding of the concept of bullying and a misunderstanding of the profile of people who may be victims of bullying.  The entire appellate investigation and report was flawed. 

The Complainant submitted that he still had concerns about some of the witness statements about relevance and credibility.  He stated that Mr. D had an enormous influence on subordinate employees, who, by taking the Complainant’s example and his dismissal, they may have felt that there was no way to change the conditions other than just leaving the company.  He submitted that some of the team members are non-EU students, whom Mr. D promised to help in obtaining a fulltime work permit and a longer stay in Ireland.  He stated that he knew “how terrible the situation and uncertainty regarding the intention of a person is offering a better living status and a desire to help others but risking own safety.”  He further submitted that some witnesses from Mr. C’s investigation might testify about their view of his character, in a way that was prejudicial because of job position, or the interpersonal issues referred to Mr. D for mediation by him.  He stated that most of the staff had been working with Mr. D for over a decade and he had witnessed for himself the quality of their work and Mr. D’s acceptance of this.  He cited an example where the CCTV camera in one site is turned down and not recording anything, while in another site, the CCTV camera is not set up correctly, recording ongoing work inside. 

Witness evidence – The Complainant:

The Complainant stated that he had been excluded in the workplace with negative consequences and treated less favourably, that he had lodged a complaint on 10 October at 04:17am, that there was a delay in responding to that complaint, that it wasn’t properly investigated and that he had been micromanaged throughout his employment.  He stated that Mr. C, in investigating the matter, hadn’t accessed the evidence on CCTV, and that he hadn’t asked any questions about micromanagement.  This information was in addition to the information provided under the Industrial Relations Act at IR - SC - 00002633. 

IR - SC - 00002651:

The Complainant stated that he was unfairly dismissed and that he did not have 12 months service. In his complaint form, the Complainant stated that he was unfairly dismissed from 20 October 2023 with notice from 13 October 2023, two weeks after reporting to the Respondent, among others, unfair treatment of bullying.  He stated that it seemed to him that the procedure to dismiss, which occurred suddenly, while the Respondent was considering his whistle-blower report submitted days earlier, seemed questionable. 

The Complainant noted that the Respondent was aware from the very beginning of his reports and confirmed on 12 October, that it was in receipt of same.  He stated that following that confirmation, there was then “a strange feedback” when he was contacted by Ms. Connolly and asked for details, pleading no knowledge about his whistle-blower complaint until it reached an  “unprecedented moment”, when the administrators of Safecall website, made an entry that the Respondent was up to date with information from 11 October 2023. 

The Complainant submitted that the dismissal was preceded by an unannounced meeting with Mr. D in the same day that he gave notice of employment termination, without any prior notice, either oral or written, without opportunity to bring a witness/representative and without the opportunity to read the written protocol for the meeting, and even with further continuation of Mr. D’s hostile actions towards him, which had been indicated as a pattern in the complaint already sent through Safecall.

The Complainant submitted that Mr. D demonstrated a lack of procedural fairness in relation to the manner in which the decision to terminate the employment contract was made, that he had previously failed to engage in any consultation or mediation process in relation to the dismissal, or even notify him in advance that his position was at real risk in the probation meeting.  He submitted that he was also never provided with the company procedure, for example, the staff handbook.  Moreover, the Complainant submitted that during the appeal hearing against the decision to terminate his employment, his request for a personal meeting was rejected without any reason.  He stated that the request related to his invitation for a witness, and he considered that the company’s failure to provide him with personal contact details or that employees work schedule or even availability of the witness, via electronic device, to join the Teams meeting was unfair.  He submitted that he had agreement to meet in person with Mr. C in terms of the appeal hearing, however, when he got the email dated 3 November and read it on 6 November, that Mr. C had indicated he was available in Ireland from the 7 or 8 November and that the lack of sufficient prior notice about the in-person meeting meant that for personal reasons he agreed to a meeting via Microsoft Teams on 8 November.  He stated that again Mr. C did not clarify why he would not meet with him in person.

In his submission of 19 April, the Complainant confirmed that he was unfairly dismissed at a meeting on 13 October with a weeks’ notice to 20 October 2023.  He stated that this was one week after reporting unfair treatment by the Respondent.  He stated that he had registered the report after a phone call with Safecall on 9 October and that he received confirmation that the UK HR Director had received a copy of that on 12 October.  He stated that the dismissal was preceded by an unannounced meeting with Mr. D on the same day that he dismissed him with no opportunity to bring a representative and no opportunity to read the written protocol for such a meeting.  The remainder of his submission on that day was a copy of his original complaint form.

Witness evidence – The Complainant:

The Complainant stated that he was dismissed after a pattern of bullying and harassment and after asking questions about drinking water.  He stated that the Respondent considered the drinkable water issue to be of nuisance value and that just because he was complaining about something, he was going to be removed.  He stated that in carrying out the investigation of his complaint, Mr. C was defending the company and as a consequence defending Mr. D. 

IR - SC - 00002633:

The Respondent submitted that the Complainant’s employment ended by virtue of his capability, competence and qualifications for performing work of the kind he was employed to do, even though he had received continuous training since his first day of work.  The Respondent further submitted that the reasons for his dismissal were outlined in a letter of dismissal to him which was appended to the Respondent’s submission.  In those circumstances the Respondent submitted that the alleged motive for the Complainant’s dismissal, linked to the fact that he submitted a bullying complaint was strenuously disputed. 

The Respondent submitted that in accordance with the principles of natural justice and fairness, the Complainant was afforded the right to appeal against the dismissal, and he was afforded the right to representation in the appeal meeting in line with the guidelines outlined in S.I. 146/2000. 

The Respondent submitted that an investigation was conducted by the HR Manager, Mr. C, witnesses were heard, and the outcome was provided to the Complainant.  In these circumstances the Respondent stated that it was its position that the Complainant was not unfairly dismissed and that the Complainant was dismissed during the probationary period following a performance review, due to the fact that he did not demonstrate skills and abilities to perform his role, despite all the training sessions and instructions received since day one. 

The Respondent cited the High Court decision of O’Donovan V Over-C Technology, where Mr Justice Costello decided that fair procedure issues do not arise for termination of employment for reasons other than misconduct, as follows: “It is common case that Mr O’Donovan was still serving his six month probationary period when his employment was terminated on 7 January 2020.  In my judgement, the trial Judge failed to give adequate weight to the fact that the termination occurred during the probationary period.  That is a critical fact in this case. 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.

This does not prevent an employer from including a term in the contract which confers rights to fair procedures on the employee, even during the period of probation.  Whether there may be other expectations which do not arise here, I leave to another case.  In my judgement, Mr O’Donovan could not and did not establish that he had a strong case for an injunction restraining the termination of his employment, where this occurred during his probationary period”.

The Respondent submitted that in this case the Court of Appeal found that the employees’ rights to fair procedures is limited during the probationary period.  The court stated that to imply a right to fair procedures into all dismissals during a probationary period, would effectively negate the whole purpose of probationary periods.  The Court of Appeal concluded that the right to fair procedures only arises “in cases involving dismissal for misconduct, but not to termination on other grounds” such as poor performance. 

The Respondent submitted that in relation to fair procedures, the court had stated that “…. If an employer has a contractual right – in this case a clear express right – to dismiss an employee on notice without giving any reason, the court cannot imply a term that dismissal may only take place if fair procedures have been afforded to the employee, save where the employee is dismissed for misconduct.  The court explained that there is no suggestion that the principles of natural justice must be applied where an employer terminates the employment contract of an employee on the grounds of poor performance”. 

The Respondent submitted that clause 14 of the Complainant’s statement of terms and conditions of employment states: “During your probationary period you will be assessed as to your suitability for continued employment with the company.  The company may also extend your probationary period at its discretion but will not in any case exceed 12 months”.

“Should at the end of your probationary period, or at any time during your probationary period, the company considers you unsuitable for continued employed during the probationary period, the company reserves to terminate your employment with one week’s notice”.

“If you are terminating your own employment during the probationary period, then you are required to give one week’s notice”.

“During your probationary period (and any extension), the normal disciplinary procedures outlined in the company handbook, do not apply”.

The Respondent submitted that in line with clause 14 of the contract, it exercised its right to terminate the Complainant’s employment during the probationary period in accordance with the rules established in his contract of employment, as the Complainant’s work performance was not up to the required standard.  Nonetheless, the Respondent submitted that the Complainant was also afforded the benefit of proper process in the interests of natural justice, in line with S.I. 146/2000. 

Notwithstanding the above, the Respondent submitted that should any flaws surrounding the dismissal procedures be verified in this matter, it submitted that such issues do not necessarily negate the fairness of the outcome and could have been rectified during the appeal hearing.  The Respondent submitted that when taking into consideration the capability issues along with the Complainant’s short tenure, the decision of termination of employment with notice in lieu, based on poor performance during the probationary period, was one that was reasonable for them to make. 

The Respondent outlined concerns, in particular in relation to the fire alarm reset, which it stated would have been a huge concern in relation to safety and noted that the Respondent had employed the Complainant for a period of approximately 1½ months at the time of termination of his employment.  The Respondent submitted that the Complainant was already underperforming in his role and that it was not unreasonable for an employer, due to the nature of the business, to dismiss an employee who could pose a risk to the business and his own self.  The Respondent also noted it’s duty of care to all employees. 

Witness evidence – Mr. C:

Mr. C confirmed that he conducted the investigation into the allegations of bullying made by the Complainant and that he also heard the appeal of the Complainant’s dismissal.  He confirmed that this was done on a discussion on a phone call and that all issues were dealt with together.  He stated that there was an issue raised in relation to accessing the CCTV file.  Mr. C confirmed that the process was undertaken on a phone call on either 7 November or 8 November and that the phone call lasted for a period of over two hours.  He stated that in advance he had reviewed the correspondence of 13 October 2023 to the Complainant from Mr. D, setting out the reasons for the dismissal and that there were six reasons in all listed.  He stated that on that phone call he discussed each one of them.  He stated that, ultimately, he provided a letter of the outcome of the appeal and of the safeguard complaint and that in doing so he upheld the dismissal. 

The Complainant cross examined Mr. C and stated that he did not conduct a full investigation of his complaint as the CCTV evidence was not checked and the issue of the poster on the wall regarding the use of CCTV was not considered.  He also stated that there was no investigation about the lack of fire safety training and no investigation about the fact that he did not receive a policy or a handbook.  Mr. C confirmed that it was clear to him in conducting the appeal that clause 14 of the contract set out the circumstances in which the employee’s employment could be terminated while on probation and he stated that he understood that the company handbook was made available to the Complainant and that he had formed the view that the Complainant was well aware of the details of the contract. 

Mr. C confirmed that he interviewed all witnesses in addition to the Complainant and he stated that he is not present in Ireland as he is UK based and that he had advised the Complainant that he would hear the appeal in person when he was in Ireland.  He stated that he emailed the Complainant to confirm his availability but due to child minding reasons, the Complainant could not make himself available on the dates that he was present in Ireland.  He stated that in those circumstances the Complainant had agreed to hold the Teams meeting however he stated that while on the Teams meeting, there was a difficulty with the connectivity and so both he and the Complainant had agreed that rather than adjourn to another date, they would conduct the appeal hearing by phone. 

Mr. C confirmed that on 3 November he reached out to the Complainant to introduce himself and to advise that he would be coming to Cork.  He advised that he told the Complainant, the exact dates were dependent on flight times and availability.  He confirmed that he exchanged emails in relation to organising times and dates, and that ultimately, he emailed the Complainant on 6 November.  He stated that when there were continuing difficulties arranging a time and date, he suggested a TEAMS meeting as an option and the Complainant agreed.  Mr. C advised that he felt he had a lot of information already in the various documents provided by HR and by the Complainant but that he had some points he wished to clarify.

Mr. C confirmed that the Complainant agreed to a TEAMS meeting on 8 November at 3 pm and that he had sent him on the invitation to the meeting.  He stated that he disputed that the meeting was by telephone.  He stated that he had commenced the meeting on TEAMS from his hotel room.  He acknowledged that there were some difficulties with maintaining the link and so they had both agreed, that rather than try to rearrange for another day, the meeting would continue by phone.

Mr. C stated that at the start of the meeting he had noted that the Complainant did not have representation and that he had drawn his attention to the right to representation as set out in the letter of invitation and that he clarified with the Complainant if he was agreeable to continue the meeting. He stated that the Complainant advised he was happy to continue.

The Complainant put it to Mr. C that he had never looked at the cctv footage.  Mr. C clarified that the request for him to examine cctv was in the context that the Complainant alleged he had been assaulted by Mr. D.  Mr. C stated that he had asked the Complainant if he was alleging a physical assault, to which the Complainant responded that he was not.  In those circumstances Mr. C stated that the cctv would not be of evidential benefit.

IR - SC - 00002634:

The Respondent submitted that bullying in the workplace is governed by S.I. 17/2002 - Code of Practice for addressing bullying in the workplace.  The Respondent noted that in the code of practice, bullying is defined as “repeated inappropriate behaviour, direct or indirect, whether verbal, physical or otherwise, conducted by one or more persons against another or others, at the place of work and/or in the course of employment, which could reasonably be regarded as undermining the individual's right to dignity at work. An isolated incident of the behaviour described in this definition may be an affront to dignity at work but, as a once off incident, is not considered to be bullying.”

The Respondent submitted that the Complainant was not subjected to bullying in the workplace.

The Respondent submitted that an investigation was conducted by Mr. C, HR Manager, who interviewed four employees along with Mr. D, and concluded that the alleged bullying did not take place in the Respondents’ employ.

The Respondent submitted that regarding giving lawful instructions in the workplace, the Supreme Court held in Ruffley V The Board of Management St Anne’s School [2017] IESC 33 as follows:

“Correction and instruction are necessary in the functioning of any workplace and these are required to avoid accidents and to ensure that productive work is engaged in. It may be necessary to point to faults. It may be necessary to bring home a point by requesting engagement in an unusual task or longer or unsocial hours. It is a kindness to attempt to instil a work ethic or to save a job or a career by an early intervention. Bullying is not about being tough on employees. Appropriate interventions may not be pleasant and must simply be taken in the right spirit. Sometimes a disciplinary intervention may be necessary”. 

At hearing the Respondent representative pointed out that Mr. C had interviewed all witnesses to alleged incidents and had asked Mr. D and Mr. S about CCTV training, that it was clear from the minutes of the meeting of those interviews provided, that the question of micromanaging was investigated and that Mr. S was providing training to the Complainant during his first month of employment. 

Witness evidence Mr. C:

Mr. C confirmed again that the complaint of bullying and the appeal were held at the same time because the issues were almost the same.  He said that given the substance of the complaints and the reasons for dismissal it was almost impossible to separate them.  He confirmed that he had considered this a dignity at work matter, that ordinarily such matters would initially be dealt with through the grievance procedure but that no grievance had been raised.  He confirmed that he had not provided the witness statements to the Complainant in advance of the final outcome being issued, but that he had provided those witness statements together with the outcome.  He also noted that the Complainant had not followed the procedure set down by the Respondent for dealing with such complaints, that he had not dealt with matters informally in the first instance, that he had bypassed all of the internal procedures and had gone straight to Safecall.  Mr. C noted that the Complainant could have raised concerns with Mr. D’s Line Manager and he stated that there was a poster in the company in relation to the procedures to be followed and that it was accessible to all staff. 

IR - SC - 00002651:

The Respondent noted that the Complainant had taken a claim of unfair dismissal under Section 13 of the Industrial Relations Act.  The Respondent noted that Section 2 of the Unfair Dismissal Act states;

(1) This Act shall not apply in relation to any of the following persons:

(a)    an employee (other than a person referred to in section 4 of this Act) who is dismissed, who, at the date of his dismissal, had less than one year's continuous service with the employer who dismissed him and whose dismissal does not result wholly or mainly from the matters referred to in section 6 (2) (f) of this Act.

The Respondent submitted that the Complainant did not have the years of service to submit a claim for unfair dismissal and further noted that the Complainant was dismissed in accordance with Section 6 (4) (a) of the act which states: “the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a)    the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do”.

The Respondent submitted that the Complainant’s employment ended by virtue of his capability, competence and qualifications for performing work of the kind he was employed to do, even though he had received continuous training since his first day at work.  The Respondent noted that the reasons were outlined in the dismissal letter which was appended to the Respondent’s submission.  The Respondent submitted that in these circumstances the alleged motive for the Complainant’s dismissal linked to the fact that he submitted a complaint was strenuously disputed and further submitted that the Complainant was dismissed due to his lack of skills and ability to perform his role in accordance with Section 6 (4) (a) of the Unfair Dismissals Act.

The Respondent submitted that following principles of natural justice and fairness, the Complainant was afforded the right to appeal against the dismissal, and he was afforded the right of representation in the appeal meeting in line with the guidelines set forth in S.I. 146/2000.  The Respondent further submitted that an investigation was conducted by the HR Manager, Mr. C, witnesses were heard and an outcome was provided to the Complainant.  The Respondent submitted that in these circumstances it was clear that the Complainant was not unfairly dismissed and that he was dismissed during the probationary period following a performance review and due to the fact that he did not demonstrate skills and abilities to perform his role, despite all the training sessions and instructions received. 

Without prejudice to the foregoing and in the alternative, the Respondent submitted that the Complainant was dismissed for reasons of poor performance during his probationary period and not for misconduct.  The Respondent opened the High Court Case of O’Donovan Versus Over-C Technology where Mr Justice Costello decided the fair procedure issue does not arise for termination of employment for reasons other than misconduct as follows:

“It is common case that Mr O’Donovan was still serving his six month probationary period when his employment was terminated on 7 January 2020.  In my judgement, the trial Judge failed to give adequate weight to the fact that the termination occurred during the probationary period.  That is a critical fact in this case. 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 Respondent noted that the Court of Appeal found that the employees’ right to fair procedures is limited during the probationary period and that the court stated that to imply a right to fair procedures into all dismissals during a probationary period would effectively negate the whole purpose of probationary periods.  The Respondent noted that the Court of Appeal concluded that the right to fair procedures only arises “in cases involving dismissal for misconduct, but not for termination on other grounds”, such as poor performance.”

The Respondent drew attention to clause 14 of the Complainant’s contract of employment which states;

“During your probationary period you will be assessed as to your suitability for continued employment with the company.  The company may also extend your probationary period at its discretion but will not in any case exceed 12 months”.

“Should at the end of your probationary period, or at any time during your probationary period, the company considers you unsuitable for continued employed during the probationary period, the company reserves to terminate your employment with one week’s notice”.

“If you are terminating your own employment during the probationary period, then you are required to give one week’s notice”.

“During your probationary period (and any extension), the normal disciplinary procedures outlined in the company handbook, do not apply”.

In light of the above, the Respondent submitted that it exercised its right to terminate the Complainant’s employment during the probationary period in accordance with the rules established in his contract of employment as the Complainant’s work performance was not up to the required standards. 

The Respondent also noted that the Complainant was afforded the benefit of proper process in the interest of natural justice in line with S. I. 146/2000 and that where any flaws were identified by the Complainant these could have been rectified during the appeal hearing, however, no procedural issues were raised at that hearing.  

Witness evidence – Mr. D:

Mr. D confirmed that the Complainant was dismissed for performance issues because he had proved not suitable in the role.  Mr. D refuted the Complainant’s view of the reason for his dismissal and stated that the reasons for the dismissal were set out in his letter to the Complainant of 13 October 2023 during the Complainant’s probation.  He stated that it was not an unfair dismissal, that a performance review was conducted under the Complainant’s probation and that the Complainant was found to be not suitable.  He stated that the Complainant had been continually evaluated during the approximate six weeks of his employment and that he had concluded that the Complainant was not suitable for the position. 

Mr. D stated that the Complainant allegation that there was a pattern of bully was not true, that it would serve no purpose to recruit somebody and then to continually bully them.  He stated that the Complainant had raised concerns about another employee, Mr F, and that mediation had been offered to the Complainant to resolve those matters.  He stated that Mr F was a long-term employee of the company and that there had been no previous difficulties with him.  He stated that the Complainant had refused the offer of mediation as he wanted to make the issues with Mr F, a disciplinary matter.  Mr. D stated that he had advised the Complainant that it wasn’t wise to be taking such a course of action within the first month of employment, that it wouldn’t benefit anybody and it wouldn’t help to build positive working relationships.  Mr. D stated that ultimately the Complainant accepted mediation, however he stated that the mediator had met the Complainant and Mr F separately but that they had never met together because the Complainant had been dismissed in the interim. 

Mr. D confirmed that he had no recollection of a specific conversation with the Complainant in relation to training but that he had had many conversations with him in relation to training etc.  He stated that he had never raised any concerns directly with him in relation to bullying.  He stated that there had been a meeting with him about his performance in work and that there had been feedback given, both positive and negative.  He stated that he had given feedback to the Complainant on what was not done correctly and that this was intended to be developmental.  He stated that when he gave the feedback, he got a very adversarial response and that the Complainant had no acceptance of responsibility for anything that had been done incorrectly. 

Mr. D stated that initially the Complainant had met all the criteria for the job as advertised, that he had done well at interview and based on the CV and the interview, it appeared that he would be a good fit for the team.  However, Mr. D stated that once the Complainant took up post, his skills did not match what had been set out in his CV.  He stated that he found him to be confusing and intrusive with customers and that he continually interjected between customers and car park attendants. 

In relation to the matter of water in the facility, Mr. D stated that there was always water in the office, that it was either provided by the supervisor or himself.  He stated that it was an old building, that the building was not owned by the Respondent and that the pipe work was not suitable and so the Respondent brought water on site.  He stated that the dismissal reasons were very clearly set out to the Complainant in the probationary meeting where he terminated his employment and confirmed to him in writing in the letter of 13 October 2023.  Mr. D stated that on a personal level he had been very upset by the allegation made by the Complainant, that a number of members of his family suffer from mental health issues and that he was often an advocate for people in the work place, that he always brought people’s attention to the Employee Assistance Programme available and that he had an open-door policy.  He stated that he felt the allegations were a personal attack on him. 

IR - SC - 00002633:

The Complainant contended that, in terminating his employment during the course of the probationary meeting, the Respondent operated unfair procedures. In conducting my investigation into this complaint, I have taken into account all relevant submissions, both written and oral, presented to me by the parties.

I note the case law opened by the Respondent and I concur that it is not a requirement for an employer to follow the same disciplinary procedure during probation that is required once an employee has passed their probation.  However, I note that the Complainant’s contract under clause 2.4 regarding probationary procedure, provided that “review meetings will be conducted at least every month during the probationary period and more frequently if there is a particular need to do so.  The probationary period may be extended by a further three months if there is some doubt about whether the new employee is suitable”. 

Clause 2.4 also stated that “to be effective, a probationary period requires the active participation of the employee’s supervisor/manager.  Rather than the employee being left to his or her devices for several months, regular review meetings will be held for the purpose of:

1)      Reviewing employee’s overall performance

2)      Highlighting and managing any problems or concerns

3)      Identifying any training needs

Where there are any particular performance problems or it is considered that the employees’ performance is unacceptable, this will be discussed with the employee at the earliest opportunity”.

While I accept that the reason for the termination of employment was due to performance issues, it is clear that the Respondent did not hold regular meetings with the Complainant in relation to his performance and did not alert him, as per his contractual entitlement, to any performance deficiencies during the first six weeks of his employment, and that the Respondent terminated his employment with great haste. 

I also note that the Complainant had no notice of the meeting intended to terminate his employment and had no opportunity to bring a colleague or representative to the hearing with him.  In other words, he was taken completely unawares and immediately dismissed.  I find that the procedure operated in relation to the dismissal by the Respondent was unfair and that the termination of employment was not carried out in accordance with the terms of the employment contract. 

I note the Respondent position that any deficiencies in the dismissal meeting could have been addressed at the appeal hearing, however I noted further deficiencies in the conduct of the appeal hearing.  I was concerned that this matter was not given due care and consideration by the Respondent in the following:

1.       The meeting which took place in early November was originally set up as an in-person hearing, however, that meeting was set up with two purposes,

(i)                  to investigate the Complainant’s complaint of bullying and

(ii)                (ii) to hear his appeal. 

These two matters should have been dealt with separately and by different investigators. I do not accept the position outlined by Mr. C that the matters were “so similar”.  It is clear that one was an appeal of termination of employment and what needed to be considered by the person conducting the appeal was if there was validity to the grounds set out for the appeal.  The other was a complaint of bullying and victimisation and this required the person conducting that investigation to consider the examples set out by the Complainant, to inquire into those incident/events and to determine if the behaviour described met the definition of bullying set down in the Respondent policy.  This investigation should have been conducted in such a way that the Complainant had an opportunity to respond to any evidence gathered during the course of interviews with the person alleged to have engaged in bullying behaviour, as well as witnesses interviewed in the process.  This “hybrid” investigation of both matters simultaneously served to undermine both processes.

2.       The need to change the in-person meeting to a remote hearing, which ultimately did not work and resulted in the hearing taking place over the phone, was entirely inappropriate.  The Respondent should have conducted a full appeal hearing in person or remotely and should have given that hearing sufficient time to consider fully the relevant issues. It is not credible that a complaint of bullying and harassment and an appeal of termination of employment, could all have been dealt with adequately in the course of a phone call which lasted for two hours.

In all of these circumstances, I find that the Complainant was not afforded fair procedures in relation to the termination of his employment during his probation in accordance with his contract of employment. 

IR - SC - 00002634:

In conducting my investigation, I have taken into account all relevant submissions made to me by the parties, both written and in person as well as supporting documentation provided.  Having considered those submissions, I note the position of the Complainant that he was bullied in the workplace and that he raised complaints that were not fully investigated.  In this regard, it is important that I set out the role of the Adjudication Officer in relation to such complaints.  It is for the Adjudication Officer to consider whether the Respondent appropriately and fully considered a complaint of bullying raised. It is not the role of the Adjudication Officer to make a determination as to whether a Complainant was bullied or not. 

In the context of the above, I have paid particular attention to the evidence in relation to the procedures operated by the Respondent and I commend the Respondent for having a robust procedure in place and for efforts within its workforce to bring to attention the appropriate standards of behaviour and the policy for dealing with any concerns.  However, I note the Respondent position that the Complainant did not raise his concerns in the informal procedure internally and while this is the preferred option, Section 7 (C) of S.I. 17/2002 makes clear that “A Complainant may decide, for whatever reason, to bypass the informal procedure. Choosing not to use the informal procedure should not reflect negatively on a Complainant in the formal procedure”.  In that context I draw no inference from the Complainant having bypassed the informal procedure.

However, it is of some concern that the Complainant totally bypassed the formal internal complaints procedure and went straight to the external provider, giving no opportunity to resolve the matter internally.  I have noted under IR - SC - 00002633, my concerns in relation to the investigation of the bullying complaint being carried out in conjunction with the appeal of termination of employment, notwithstanding the explanation provided by Mr. C.  I also outlined my concerns in relation to the duration of such a meeting and the ability to fully consider all matters in relation to both processes within a two-hour timeframe.  Furthermore, I note that the witness statements in relation to the bullying complaint were not provided to the Complainant in advance of that investigation reaching conclusions and he was never given an opportunity to respond to evidence contained therein. 

On the basis of the above, I can only conclude that this was a flawed investigation process.

IR - SC - 00002651:

I have considered carefully the positions of both parties in their submissions and in evidence at hearing. I note that this complaint is a complaint of unfair dismissal under the Industrial Relations Act.  I note also that the Complainant was a mere six weeks in employment and therefore well within his probationary period.  I note that the substance of his complaint related to the following two issues:

·         procedural unfairness and

·         a link between his dismissal and his submission of a bullying complaint. 

It seems to me that the Complainant has misunderstood the difference between a complaint of unfair dismissal under the Unfair Dismissals Act, with a complaint of dismissal under the Industrial Relations Act.  I accept the position as outlined in the High Court decision of O’Donovan V Over-C Technology, where Mr Justice Costello decided that fair procedure issues do not arise for termination of employment for reasons other than misconduct during the probationary period.  However, I note that there were specific provisions laid down in the contract of employment and I have already concluded that these were not adhered to in terminating his employment.  I have set out the basis for that conclusion in detail under IR - SC – 00002633 above.

Furthermore, the case in relation to penalisation for making a disclosure under the Health, Safety and Welfare at Work Act has already been determined by me under a separate reference number and this complaint appears to be a parallel complaint as it relies entirely on the same set of factual circumstances as the penalisation complaint. 

In all the circumstances I find that this complaint is not well founded. 

Disciplinary sanctions; bullying procedures