Worker

Employer

Parties

Admin Worker

Third Level College

Representatives

Vivian Cullen SIPTU-Trade Union

Mark Comerford IBEC

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 - 00003124

13/09/2024

The worker was not affirmed in their role arising from a Performance Improvement Process during the probationary period. The worker is looking for compensation arising from what he sees as an unfair process. The College stated that they exercised their right to terminate a contract during the probationary period and adequate time was provided to the worker to improve.

The worker stated that the process was flawed. He stated that he was alleged to have had poor time keeping when in fact he was exercising flexibility where the policy was unclear. An incident arose when he was on a training day where it was alleged that the worker had failed to properly apply himself to his work. It was alleged that the worker failed to comply with academic and college policy relating to student subject choices when in fact decisions were made by academic staff over him.

In his submission the worker stated he started working for the College at the end November/ beginning of December 2023. He was employed as an Executive Officer working in a Social Science Department. His contract said that he would have 1 year probation. During his probation, he experienced a lot of difficulties regarding his role and function including false assertions and calling him reluctant to follow instructions and regarding the standard of his work performance, including his attention to detail.

The worker stated that timekeeping was not the issue. The main issue related to attention to detail and the requirement to following exact protocols as they relate to students. That is required based on the purpose of this job which is to make sure that key deadlines are complied with and policies as they impact on a student are consistently applied. This calls for a high level of attention to detail. That level was monitored during a period clearly flagged to the worker as requiring significant improvement. When the level of performance was deemed not to the standard achieved by other colleagues the right to terminate during probation was exercised.

It is the position of the Respondent that they are entirely within their right to terminate employment during a probationary period, when it relates to significant performance concerns, when the Complainant had been afforded the opportunity to improve in line with their performance improvement process. The Respondent stated that the performance concerns highlighted during the initial probation review were not disputed by the Complainant as occurring, rather that the Complainant was making excuses for each issue highlighted.

 Many of the performance concerns were repetitive in nature and their continuation was not conducive to the operational effectiveness of the school. Despite being provided with on-demand and extensive management guidance, supervision, and support during the PIP period, the Complainant failed to meet the required standard of performance for this position. It is important to put in context the level of support being provided to Complainant at this time which was 2 on-demand supervisors working with him daily. Most EO’s when they join have training from these two supervisors interchangeably - e.g., a couple of hours a day for the first week, and then as needed as they settle into the role. There was a weekly team meeting at which work for the week was discussed and support given, with access to supervisors provided to all team members on an ongoing basis. The Complainant required daily support from both supervisors during his time at the college which is far more than any other staff member that has ever worked in the school (and note that most EO staff would not have had the level of experience that the Complainant had). At one stage and for a period of approximately one month, there were twice daily meetings required to support the Complainant. This is an unsustainable position as both supervisors have other duties to undertake and despite the commitment to supporting the Complainant, the performance issues were not improving. Notwithstanding the support provided and concerns highlighted, the level of performance did not reach the required standard. The Complainant’s performance was measured and assessed on par with that of other Executive Officers in the School, with consistent standards applied.

In conducting my investigation, I have considered all relevant submissions presented to me by the parties.

SI No 146/2000 code of practice requires that the worker is afforded fairness during his probationary period:

6.     The procedures for dealing with such issues reflecting the varying circumstances of enterprises/organisations, must comply with the general principles of natural justice and fair procedures which include:

•    That employee grievances are fairly examined and processed;

•    That details of any allegations or complaints are put to the employee concerned;

•    That the employee concerned is given the opportunity to respond fully to any such allegations or complaints;

•   That the employee concerned is given the opportunity to avail of the right to be represented during the procedure;

•   That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors or circumstances.

The Labour Court in Beachside Company Limited LCR 21798 considered if a worker could rely upon SI no 146 of 2000 during the probationary period. That decision stated:

Where an employee is considered unsuitable for permanent employment, the Court accepts that an employer has the right, during a probationary period, to decide not to retain that employee in employment. However, the Court takes the view that this can only be carried out where the employer adheres strictly to fair procedures.

The Employer has the right to dismiss during probation and the alleged pattern of poor attention to detail would give rise to such discretion being exercised as it related to the worker’s performance of his duties. I note the Court of Appeal in Donal O’Donovan v Over-C Technology Limited and Over-C Limited [2021] IECA 37, the Court allowed an appeal against a decision of the High Court restraining the employer from dismissing an employee during his probationary period on performance related grounds.

The purpose of this referral is to assist in the resolution of a dispute. It is a voluntary process and not a legalistic process. Unfortunately, it was not possible to bridge the gap between the parties. On that basis I must look at the submissions and representations made at the hearing. I must find that while there may have been some breakdown in communication and a lack of clarity at the beginning of the contract, the school clearly set out the areas required for improvement and over months and with a formal Performance Improvement Programme put in place, with reason determined that the employment contract should end. That has caused a lot of upset to the worker and it is worth noting that not all work environments are suitable for a worker because of the nature of the work. The worker has found a new job and he is much more content in that role.

I find that the school acted reasonably and therefore cannot recommend in favour of the worker.

]

Probation