Worker

Employer

Anonymised Parties

A Gardener

A Public Body

Representatives

Ms C O'Brien

Senior Human Resources Manager

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 - 00002648

20/05/2024

The issue in Dispute was the Dismissal due to an unsuccessful Probation review, of the Worker by the Employer.

The Employment began on the 13th April 2023 and ended on the 12th of February 2024.

The rate of pay was stated to have been €796.12 for a 39-hour week.

The Worker, while self-represented, was accompanied by her Daughter who assisted in presenting the case. A Written Submission was provided. Detailed Oral Testimony was given and cross examined by the Employer.

In essence the case was that the Worker had been offered a positon in late 2021 but, because of a very serious illness, which had only become know at the time, the job offer was placed on hold until the Worker was medically fit to commence work.  Accordingly ,the employment commenced on the 13th April 2023. All went well for the first four months. The job was divided between two different geographic locations with two different Managers – for convenience Manager A and Manager B. However, difficulties emerged with Manager A and the Worker was place on a PIP. The PIP was successfully “passed” but the atmosphere became very stressful with Manager A. His attitude was very belittling and nit picking. The Worker’s Probation period was extended to 10 months. Manager B left the Department and Manager A was now in sole charge. At the 8th Month review the Worker felt that Manager A had become completely unreasonable and that he was deliberately setting her up for a Probation Failure. The Worker engaged in e mail correspondence with Manager A to see how she could improve to his standards. The Worker felt very browbeaten and completely isolated without any support or clarification. HR was contacted for assistance but to no avail. Not surprisingly the Worker failed her Probation and was listed for exit.

She appealed to Head Office and an Appeal hearing took place on the 6th April 2024. A very detailed Submission was submitted outlining the very unfair approaches that Manager A had adopted, how the Internal Organisation procedures had been shortchanged and the quite obvious personal dislike that Manager A had taken to the Worker. The issue of “Communication” was raised by Manager A, but this was completely ambiguous and simply a cover up for his bullying behaviours.

 In summary the Worker, who was represented at the Appeal by Mr Glynn of SIPTU , felt that she had failed her Probation ,not for any work/duties shortfalls but simply due to the obvious personal dislike that Manager A had displayed towards her from the start of the employment. It was also obvious that no allowance was made for the fact that the Worker was a person in Cancer recovery mode and would have expected more allowance to be made for this very challenging Personal situation.

The Appeal was unsuccessful, and the employment ended on the 12th February 2024.

Considerable copies of email traffic, Appeal Submissions and other correspondence between the Parties was presented in evidence. Full cross examination of the Worker by the Employer Representative took place

The Employer was represented by Mr X, a Head Office Senior HR Manager. A comprehensive Oral testimony supported by a detailed written submission was presented.

In essence the Employer case was that this was a normal, albeit very upsetting to the Worker, Probation review case. All proper HR Procedures had been followed and regrettably the outcome had not been favourable to the Worker. The organisation is a large National Employer and has very well-developed suites of procedures in the HR and Employee Relations areas.

Extensive documentation was submitted regarding Procedures followed at two-month, four-month, six-month, eight month and a final ten-month probation review meetings.  A PIP process begun for four weeks in August 2023 was also documented.

Ms H of HR then wrote to the Worker in February 2024 terminating her contract.

The Representative Manager, Mr M, had, himself, chaired the Appeal Hearing which took place on the 3rd April 2024. It was very detailed with extensive Oral testimony and voluminous written evidence presented. He, in coming to his decision, had considered all the evidence both Oral and Written presented.

It was possible that there had been “personality” issues with Manager A but not to such a serious degree as to invalidate the PIP and Probationary process. As a Senior HR Manager, he was completely familiar with all Procedures and was conscious of the absolute need to follow these both in the spirit and the letter.

The Worker had been represented professionally by Mr Glynn of SIPTU, a well know senior official, at the Appeal Hearing.

Having considered all the materials and the evidence he had come to the decision to reject the Appel and endorse the Dismissal decision.

Allegation of bullying against Line Manager Mr A were never raised during the period of employment and no formal or informal complaints made via the Organisations Dignity at Work Policy.

In the Written submission extensive case Law precedent was cited headlined by the Court of Appeal decision in O’Donovan v Over -C Technology [2021} IECA 37

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

It is important to note that the case was taken under the Industrial Relations Act,1969. This requires an Adjudication Officer to give a Recommendation as to how best, in his/ her opinion, an industrial relations dispute can be resolved. It is then, subject to Labour Court Appeal, a voluntary process for the Parties.

The case was presented to the Adjudication Officer with voluminous Written materials and extensive Oral Testimony especially from the Worker.

 On the pure procedural facts of the case the Employer acted professionally and could be deemed to have no case to answer. The Court of Appeal in O’Donovan v Over -C Technology [2021} IECA 37 clearly examined Probationary Dismissals. An Employer is quite within his/her rights to terminate Worker on a Probation contract especially on Performance issues.

However, and notwithstanding the Legal issue above, in this case there was a major overhanging consideration – the Worker was a serious cancer Survivor.

The Employer, to their great credit, had allowed the Worker to postpone her start of Employment, for almost two years, on a compassionate basis.

The Chief Medical Officer had then cleared her for work.

Nevertheless, Work performance in her first 10 months was barely adequate. In her extensive oral testimony to the Hearing, it was a major question mark for the Adjudication as to whether or not the very compassionate extension of the start date had in a final analysis been premature on both sides. The publications of the Irish Cancer Society, regarding Cancer Recovery and Remissions, in this general area make interesting reading.

The extensive meetings and the PIP process would have tested any Worker and in this case proved particularly challenging for a Cancer recovery induvial.

 Recommendation has to reflect both the Rights of the Employer to terminate a Probation and in this case have some cognisance of the Cancer recovery positon.

Probation Dismissal, Illness recovery periods.