Worker

Employer

Anonymised Parties

A Complainant

A Company

Representatives

McInnes Dunne Murphy LLP McInnes Dunne Murphy LLP

Act

Dispute Reference No.

Date of Receipt

Industrial Relations Act, 1969

CA-00063922-001

05/06/2024

The complainant was employed as a Biddable Account Manager with the Respondent from 18 October 2023 until her termination of employment on 20 May 2024.  She contended that she was unfairly dismissed by her employer.

The Respondent denied the claim, contending instead that she was dismissed during her probationary period for performance issues.

In her complaint form, the Complainant submitted that she was employed by the Respondent from 16 October 2023 as a Biddable Account Executive and that on 22 April 2024 she was dismissed from her role.  She submitted that the reason given for her dismissal was that her performance was not at the required company standard to pass the 6-month probationary period.

The Complainant outlined that she followed the company’s procedures and appealed the decision to Manager 5 on 26 April 2024 in order to try to resolve the matter before taking the case to the WRC.  She outlined that an appeal hearing was held on 14 May 2024 where she set out the reasons why she believed her dismissal to be unfair.  Manager 5 issued the outcome of the appeal on 21 May 2024 confirming that his decision was not to overturn the original decision to dismiss.

The Complainant outlined the following reasons why she believed her dismissal to be “unfair, discriminatory and incompatible with (her) contract of employment and Irish employment legislation”:

·       The performance issue raised related exclusively to time management and “held no basis”

·       Examples used were factually incorrect and based solely on hearsay (The Complainant referenced her performance review meeting of 3 April and an email of 21 April including screenshots of team meeting chats and emails to demonstrate this)

·       No evidence provided to her to indicate issues with time management

·       She described herself as a very hard worker wo got work done promptly and on schedule

·       The appeal officer did not make a finding on this issue yet he sided with the employer decision

·       Not afforded fair procedures

·       If such issues did exist, she believed she was not given a fair opportunity to address them

·       A task tracker was put in place to monitor her tasks but nothing was provided to assist her to manage those tasks and she was not shown how to improve

·       No measurable metrics were put in place to quantify the improvement

·       There was no follow up meeting with her manager from the discussion which took place regarding her performance until the probation meeting at which she was dismissed

·       She wasn’t given sufficient time to improve as she was only working for 7 days between the performance review meeting and the probation meeting at which she was dismissed

·       At her probationary meeting Manager 3 had inadvertently given an example that showed good time management yet this was “dismissed out of hand”

·       No verbal or written warning was given before her summary dismissal

·       Clause 2.4 of her contract stated that “Your probation period is deemed to be satisfactory when confirmed in writing by the Company or on successful expiration of the six months…without written notice to the contrary”.  The Complainant stated that 6 months had expired since commencement of her probation and no letter had been received from the company to the contrary. In such circumstances the Complainant contended that she had completed her probation prior to the meeting at which she was dismissed

·       The contract did not provide the level of detail one would reasonably expect to clearly define her roles and responsibilities.

·       Thirty minutes after her probationary meeting had concluded, a general email was sent to the teams she worked with which stated that “with effect from today (the Complainant) is no longer working with us”  The Complainant contended that this email made it very obvious to everyone that she was dismissed.  This, she stated had damaged her reputation and had impacted on her future employment prospects.  More particularly, given that the Respondent appeal timeline allows for at least 5 days the earliest such a notice should have issued was after the appeal was complete, if there was an intention for the appeal process to be genuine.

The Complainant provided a submission in advance of the hearing, together with a number of documents in support of her complaints.

The Complainant submitted that shortly after she was recruited by the Respondent she made her line manager aware of a chronic sleep condition from which she suffered.  She submitted that initially her manager seemed to be supportive and concerned but that she believed, in hindsight, that the Respondent made the decision, behind the scenes, that her position should not be made permanent, regardless of her performance.

The Complainant submitted that the first time her performance was critically reviewed was in March 2024 and that a number of concerns were expressed by the Respondent at that time.  She submitted that when she rebutted each of the performance issues raised as being untrue, this was dismissed.  She further submitted that only 6 weeks later, at her probation meeting, the same unsubstantiated issues were used as reasons to summarily dismiss her. She submitted that she was unfairly dismissed as the performance issues raised by the Respondent were contrived as the Respondent did not want to keep her as a permanent employee due to her sleep disability.

The Complainant submitted that her appeal was already predetermined and she based this on the email sent out by Manager 3 immediately after the probationary meeting despite her having advised that she would appeal the decision and despite the appeal procedure providing a 5-day timeline for such an appeal.

In addition, the Complainant pointed to the decision of the appeal officer, Manager 5, where he stated that he “had no finding” regarding the performance issues but still upheld the company’s decision to summarily dismiss her.

The Complainant contended that the performance issues raised, exclusively related to time management absolutely held no basis and she provide examples of what had been brought to her attention and how she had refuted those challenges.  She also provided testimonials from external partners who acknowledged her professionalism, helpfulness and responsiveness and showed where she had completed work in advance of deadlines set.  In addition the Complainant provided detailed examples of assignments where she completed work within the timelines set  which she submitted demonstrated that the reasons given for the termination of her employment were valid.

The Complainant submitted that fair procedures were not followed in the termination of her employment and she again outlined the basis for this contention as set out above.

The Complainant submitted that during her first week of employment she had informed Manager 1 and Manager 4 of her chronic sleep disorder.  She stated that “on the surface” they appeared to be supportive and almost immediately sent an email detailing the conversation and offering support.  She stated that she had mentioned a standing desk might be beneficial and asked about using a high table she had seen on the premises.  She confirmed that her request was granted but that this was not a long-term solution as it was not a proper standing desk with a monitor.  No further action was taken by the Respondent.

The Complainant outlined a number of relevant meetings as follows:

·       12 March 2024

On line PDP meeting with Manager 3 where a discussion took place with the Complainant about areas where she was working well and areas for improvement.  One of the areas for improvement was time management and she expressed surprise and confusion about this.  She submitted that the manager brushed over it stating that it was just something she could work on.  She submitted that the manager enquired about her sleep issue and that she advised that it was more or less the same but that she found working from home beneficial.  She submitted that the manager was not very happy with this and said that the Respondent would most likely be starting to move towards in-person working.  She submitted that she suggested the possibility of a rest area at work and that the manager followed up on this with an email to HR after the meeting but that again, no action was taken.

·       13 March 2024

Meeting with Manager 2 requested by the Complainant – the purpose of this meeting was for the Complainant and other new colleagues to learn what exactly a PDP was.  As the Complainant had just had her PDP meeting she submitted that she used the opportunity to privately discuss her confusion about some of the issues raised in that meeting.  She was advised by Manager 2 that all managers should know that they need to have specific examples to back up any feedback given and that she should ask Manager 3 for some examples.

·       21 March 2024

Task Tracker implemented by Manager 3 – The manager had set up a document that the Complainant was asked to fill out with all tasks she needed to complete to assist her to manage her time and tasks better.  The Complainant submitted that the Manager had advised her that by filling out the sheet it would assist the manager to see if she had too much work and if necessary, reassign some tasks.  She submitted that in that meeting, as advised by Manager 2 she asked for some examples of poor time management as described at her PDP meeting. The Complainant noted that at the outset she was deleting tasks once completed so that she could easily see what was outstanding but she was asked not to do so, in order that management had a log of her activity.  She also noted that completing the task tracker became a task in itself which she contended was not best use of her time.

·       3 April 2024

Performance Review Meeting – This meeting was called by Manager 3 on the basis that she was concerned that the Complainant had missed deadlines on 2 campaigns.  (Full details of both examples was provided)

The Complainant submitted that she came prepared to the meeting with multiple screenshots of Microsoft Teams chats and emails to give a day-to-day account of her activity and how she had not missed any deadlines.  Manager 3 undertook to revert to the account managers who had given her feedback to understand if there was miscommunication but the Complainant submitted she was of the view that it was still implied that she had issues with time management.

·       11 April 2024

The Complainant sought a follow up meeting with Manager 3 as she did not feel that issues were resolved at the previous meeting.  This meeting was never granted.

·       22 April 2024

Probation Meeting – This meeting was attended by Manager 2,3, and 4.  The Complainant submitted that at the meeting the same points were raised that had been discussed at the previous meeting although she had sought a meeting for follow up discussion.  The Complainant submitted that she rebutted the allegations in the meeting but that despite this, Manager 3 stated that she had received feedback from some Account Managers that they did not feel they could trust her or rely on her to get the work done.

The Complainant contended that this was unfair as one of the Account Managers had been “quite unprofessional” towards her and that the 3 managers were aware of the circumstances and had agreed that the Account Managers behaviour was unacceptable.  The Complainant confirmed that the Account Manager had apologised but that she remained concerned that any feedback from her could be invalid or biased.  At this meeting the Complainant’s employment was terminated.

·       14 May 2024

Appeal hearing

·       21 May 2024

Outcome of appeal issued.  The Complainant drew attention to the fact that the appeal officer decided to uphold the decision to dismiss her despite him having made (no finding regarding the performance issues”  She contended that his findings regarding other issues did not matter if he could not see reason or justification for the alleged performance issues which gave rise to her dismissal.

The Complainant submitted that the appeal process was a sham, that the Respondent was never going to re-instate her and that this was evidenced by the fact that the Respondent sent out an email saying that she had been dismissed before the appeal process was over.  She submitted that within 30 minutes of her probation meeting concluding the email was sent to tow teams she had worked with stating that she was “no longer working with us”. She raised concerns that the widespread circulation of the email made it obvious that she had been dismissed and was damaging to her reputation and her future employment prospects.  The Complainant submitted that she was looking for a new role for months and that despite her extensive qualifications she had to take a job as a legal secretary in order to obtain a reference for prospective employers.

She submitted that in those circumstances it was “practically impossible” for the appeal officer to act as an independent and neutral party.  The Complainant also submitted that while she was offered the opportunity of representation at the appeal hearing, the probation meeting, at which she was dismissed made no such provision and she was left on her own to face 3 senior managers. 

In addition to the above the Complainant raised concerns in relation to the inaccuracy of minutes of her performance review meeting and her probation meeting.

The Complainant submitted that the reason stated for the termination of her employment was that she had not passed her probation.  In that regard she drew attention to Clause 2.4 of her contract which stated that “Your probation period is deemed to be satisfactory when confirmed in writing by the Company or on successful expiration of the six months…without written notice to the contrary.”  She submitted that as of 22 April 2024, 6 months had expired since her probation commenced and no letter had been received from the company to the contrary.  She submitted that therefore she had completed her probationary period and required, at a minimum, seven weeks’ notice or pay in lieu.  She acknowledged that she was not expert in this area but asked that the Adjudication Officer would review relevant documents and consider this matter.

The Complainant submitted that she had been part of a WhatsApp Group and that while she was removed from the group, she was still able to view messages posted.  She drew attention to a message which was put up which stated “will have to start getting rid of dead wood too.”  She submitted she was in no doubt that the message was about her as she was the only person removed from the group. She submitted that she was even more shocked to see a director of the company respond with a laughing emoji to that message.  She submitted that she raised the matter at the appeal hearing but there was no mention of it in the letter of outcome of the appeal.

Information given by the Complainant at hearing

The evidence given by the Complainant was consistent with the details set out above in her submission.

She confirmed that she was employed by the Respondent from 16 October 2023, that she was a new graduate, that she had 2 offers of employment and ultimately accepted the position with the Respondent.  She stated that during her first week of employment she advised HR of her medical concerns, that she described her symptoms, that she was awaiting a consultant appointment and she described the wider impact of the issues on her social and day to day activities.  She stated that regardless of her performance she believed her “disorder” was a key factor in her dismissal.  She stated that the complaints against her were unsubstantiated and that the appeal officer was unable to make clear findings in relation to those allegations.  She stated that 7 days after issues were first raised with her, she was dismissed.

The Complainant described earlier interactions with Mr. S and stated that he had been instructed by HR to provide her with a written apology and that in these circumstances it was evident that he was negatively biased towards her.  She stated that the Respondent did not seem to accept that she had a sleep disorder, that they certainly made no allowance for her disorder.  She advised that it was an undiagnosed condition but that she was medically certified as having an “as yet undiagnosed condition.”

The Complainant drew attention to the fact that she only worked for 7 days between her performance meeting and her dismissal.

At the hearing the Complainant expressed concern that an email had issued to her colleagues within minutes of the meeting at which her employment was terminated advising that she was no longer working for the Respondent.  She noted that under policy she had 5 days within which she could lodge an appeal and she posed the question if the appeal process was genuine why send out such an email.  She stated that it would have been possible for the Respondent to have sent a different message redirecting work.

In conclusion the Complainant stated that she believed that issues relating to her performance were retrospectively exaggerated.  She drew attention to her salary level, at just above minimum wage and she noted that at entry level it would be normal to expect a level of support.

Concluding Remarks

The Complainant stated that she stood over her contention that the Respondent had worked backwards to make the case fit, that the evidence submitted by the Respondent form her colleagues was gathered after her dismissal.  She noted again the apology given by Mr. S and stated that he had demonstrated a clear bias against her.

The Complainant outlined her view that the Task Tracker was in no way supportive but rather was used to gather information to be used against her.  She also drew attention to the positive references provided to her from with the company and from clients with whom she worked.

The Complainant made reference to the email sent to colleagues immediately following her dismissal, to the timeline for appeal, to the allegations which were unsubstantiated by the appeal officer and to the content of the WhatsApp message and contended  that all of the foregoing showed that regardless of performance the Respondent was not going to make her permanent.

The Respondent submitted that the Complainant’s continued employment was subject to her passing the probationary period provided for at section 2.4 of her contract of employment which stated, amongst other things, that the company had the right to terminate the Complainant’s employment if her “performance [was] not up to the required standard during [her] probationary period.” Following continuous review of her employment during her probationary period, it was ultimately determined at her probationary review on 22 April 2024 that the Complainant had not passed her probation and that her employment should be terminated accordingly. She was offered an opportunity to appeal this decision, which she availed of however, the decision was confirmed following the appeal hearing on 14 May 2024.

The Respondent referenced the Court of Appeal decision in Donal O’Donovan v Over-C Technology Limited and Over-C Limited [2021] IECA 37 which provided clarity to employers on termination during probation which the Respondent submitted was consistent with the above contractual provision and the manner in which it was applied: “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 provided the following account of the events that took place leading up to the Complainant’s dismissal which it submitted demonstrated that her performance was evaluated periodically and objectively during her probation period, that her deficiencies were identified to her and that she was given both support and adequate time to improve to the requisite standard.

·       In the Complainant’s submission to the WRC she stated in error that her employment commenced with the Respondent on the 16th of October 2023, which is factually incorrect. It was initially agreed that the Complainant would commence employment on the 16th of October 2023, however by agreement of both parties her commencement date was moved to the 18th of October 2023 and payroll records reflect same. The Respondent provided pay records and a copy of the contract of employment to verify this position.

·       On the 17th of January 2024 the company arranged a meeting with a number of new employees, including the Complainant, the purpose of which was to discuss the roles and responsibilities of everyone on the team to ensure transparency. Everyone was given the opportunity to ask questions or get further clarification on any aspect of the roles, therefore the Complainant had an opportunity to seek clarity on any aspect of her role she was unsure of. In addition, she could have raised any such issue on an ongoing basis with her managers.

·       In February 2024 a manager (Mr. S), raised concerns regarding the Complainant’s performance, and they were verbally addressed with her at that point. Mr. S was becoming very frustrated with the Complainant not paying attention while he was delivering training and her coming back multiple times to ask to be shown the same things over and over again. On one occasion he asked her “if she was even paying attention” and for that he later apologised on the basis that he had not spoken to her professionally, but the issue still stood. Mr. S had a follow up conversation with Manager 3, to make clear he had serious concerns about the Complainant’s ability to understand tasks and her attention span during training sessions.

·       On12th of March, (6 weeks prior to termination) Manager 3, met with the Complainant for her Performance Development Plan. In this meeting Manager 3 stated that the Complainant was not at the required standard of a Biddable Account Executive yet and there was cause for concern that she might not pass her probationary period unless her performance improved. There were 3 areas of concern discussed at this meeting:

o   Time management

o   Prioritising tasks

o   Lack of understanding of the role.

·       Day to day training was provided on an on-going basis for the Complainant. In addition to this she was asked if she required any additional training to improve and she stated she didn’t require this. The Respondent noted that in the Complainant’s submission she stated that she was only given 7 days to improve her performance, however, this is incorrect as the said meeting took place 6 weeks in advance of her termination. Moreover, she had been notified verbally in February of issues in relation to her performance in the role of Biddable Account Executive following the feedback from Mr. S.

·       On 21st of March 2024, Manager 3 met the Complainant to discuss her job responsibilities and to implement a task tracker. Manager 3 explained the purpose of the task tracker was to support the Complainant in managing her work loads, enabling the company to view what her workload was at any given time and assist her by helping her to prioritise her tasks. Manager 3 also had a call with the Complainant to bring her through the task tracker. Manager 3 explained that her direct managers would be able to monitor her time management and ability to prioritise tasks and support her by using this tracker. The task tracker also gave exact details of her required tasks, asks and deadlines along with constant feedback and check-ins to see if she was clear. The sole purpose of the task tracker was to assist the Complainant in reaching the requisite performance standard.

·       On 2nd of April 2024, Manager 3 invited the Complainant to a Performance Meeting on the 3rd of April. Manager 3 outlined in the email invite she had some concerns around missing deadlines particularly in relation to a specific campaign due to go live on the 18th March and another campaign build. She stated the meeting was to highlight the missed steps that resulted in the campaigns not going live at the agreed time and to give her an opportunity to discuss what happened. Manager 3 also highlighted once more that the Complainant’s probationary period was coming to a close, and she wanted to give the Complainant the opportunity to learn from this experience and to perform at the standard required of her role in the coming weeks to enable her to pass her probationary period. Manager 3 mentioned Manager 4 was going to join the call to be a support for the Complainant and to take notes.

·       On 3rd of April 2024 the Performance Meeting was held, during which it was highlighted once again that there were continuing performance issues regarding the Complainant’s time management, ability to prioritise tasks and her understanding of the role. Issues regarding work for 2 specific clients were discussed by way of example.

·       On 11th of April 2024, the Complainant requested a meeting with Manager 3, who replied to confirm that she would schedule this for the following week, but that she would like Manager 2 to join the meeting when she returned from annual leave.  The meeting was consequently agreed and arranged for the 17th of April. 12. The Complainant was given 24 hours’ notice of the meeting, the invite for which was sent on the 16th of April.  Manager 2, Manager 3 and Manager 4 (note taker) were accordingly due to meet the Complainant on 17th of April (probation was expiring on the 18th of April).

·       The Complainant called in sick on the morning of the 17th of April, so that the meeting had to be rescheduled for the Thursday 18th. She called in sick again on 18th April and provided a cert from her doctor with a return-to-work date of the 22nd of April, so the meeting was rescheduled for her return to work on Monday 22nd of April.

·       On 22nd of April 2024 Manager 3, Manager 2 & Manager 4 met with the Complainant, they outlined the case to date, and the performance issues that had previously been raised with the Complainant were discussed:

o   Time management - taking longer to complete tasks, impacting deadlines and managing workload.

o   Prioritising tasks – turning down work from managers as still working on tasks that should have been completed in a timely fashion.

o   Lack of understanding of role - Showing lack of understanding of the tools and that The Complainant had previously been trained on and needed extra support from other members of the team, more than would normally be required at this stage.

·       Examples were given for all of the above. and Manager 2 terminated the Complainant’s employment with the Respondent based on her failure to pass her probationary period effective the 22nd of April and stated that the company would pay the Complainant 4 weeks in lieu of notice.  On numerous occasions during the meeting the Complainant raised her voice, was aggressive and used bad language and communicated personal insults about other colleagues’ performance. Manager 2 had to interrupt the Complainant a number of times to ask her not to speak over Manager 3 while she spoke.

·       On 22nd of April 2024 Manager 2 wrote to The Complainant confirming the termination of employment.

The Respondent submitted that the Complainant was terminated during her probation period, since this was extended to 22 April by reason of her absence on sick leave between 17 and 22 April, that  the Complainant was offered the opportunity to appeal the decision, that the appeal was heard by Manager 5, who upheld the decision to terminate the employment.

The Respondent drew attention to the Complainant’s submission where she questioned why the company did not extend her probation period. By way of response, the Respondent submitted that it was felt that the Respondent had given the Complainant ample time (six weeks) for her to improve her performance. Not only was sufficient time given to her, but additional training and support was given also.  The Respondent also noted that the Complainant had indicated in her submission that her colleagues would verify there were no concerns regarding her time management skills and the Respondent provided documentary evidence from colleagues to demonstrate that this was factually incorrect.

The Respondent submitted that during the Complainant’s employment she was offered verbal and written feedback to warn her that she was not reaching the desired level of performance of a Biddable Account Executive and to identify for her where she was falling down. In addition, there was constant support being offered to help the Complainant when she was stuck on any aspect. The Respondent submitted that, on balance, any positive feedback received by her was regrettably outweighed by negative feedback from the team.

The Respondent drew attention to the Complainant’s submission where she stated that the example given to her regarding her time management was not true and no evidence was provided. The Respondent provided documentary evidence which it submitted demonstrated that this was incorrect, and which contained details of various conversations held with her to verify there were numerous concerns regarding her time management. Additionally, attention was drawn to the Complainant’s submission where she stated she did not receive any warning that she may not pass her probationary period. The Respondent submitted that, in fact, Manager 3 first notified the Complainant on the 12th of March (six weeks prior to her termination with ample time to improve) that this was a possibility, and notified her again at the meeting of 2 April.

The Respondent submitted that regarding the extension of The Complainant’s probationary period to accommodate her sick leave, the company was due to meet her on Wednesday 17th of April, however she called in sick that morning so that the meeting was rescheduled for Thursday 18th, she then called in sick again and provided a cert with a return-to-work date of the 22nd of April the meeting was rescheduled for her return to work on Monday 22nd of April. The Respondent submitted that it was accordingly entitled to extend the Complainant’s probationary period by the duration of her absence on sick leave, both as a matter of implied contractual entitlement, and by reference to Regulation 10 of the EU (Transparent & Predictable Working Conditions) Regulations 2022. 23.

The Respondent further submitted that the Complainant’s assertion that her role was not clearly defined to her is not accepted. In this regard a comprehensive job description for the Complainant’s role was advertised prior to her appointment. Moreover, when the Complainant joined the Respondent she was brought through her role in detail and trained with other members of the team in all aspects of the role. In addition, there was a meeting held on Wednesday 17th of January at 3pm that brought the Biddable Account Executives through their roles and responsibilities. Everyone was given the opportunity to ask questions or get further clarification on any aspect of the roles, therefore The Complainant had an opportunity to seek clarity on any aspect of her role she was unsure of. A one-page summary document was then shared with the team to ensure a quick reference back if needed. The Respondent submitted that the Task Tracker also gave the Complainant exact details of her required tasks, asks and deadlines along with constant feedback and check-ins to see if she was clear on what was required.

The Respondent noted the Complainant’s objection to the Respondent notifying her team on 22 April that she was no longer working with the Respondent and submitted that the relevant email was factually correct as the Respondent had terminated her employment on that date.  The Respondent submitted that it was fully confident in its decision; and that it was fully within its right to terminate an employee based on performance during probation.  The Respondent further submitted that it was an operational necessity to advise the team that the Complainant was no longer an employee, so that no sensitive client information would be sent to her while it made arrangements to have her accounts closed.  The Respondent submitted that it was also necessary to advise the remaining employees to ensure they knew that work was being reassigned on a permanent basis, ensure deadlines were being met and ensure that clients continued to be serviced in the Complainant’s absence. The Respondent stated that at no time did it ever discuss the circumstances regarding the Complainant’s termination, however, the Respondent submitted that it had come to its attention that the Complainant was notifying staff and ex-employees that she had been let go by the Respondent.  The Respondent submitted that in the interest of natural justice it afforded the Complainant the opportunity to appeal the termination of employment and it was stated in the appeal, that should the appeal go in her favour, the Respondent would be happy to agree a communication with the Complainant that would suit both parties.

In conclusion, the Respondent submitted that it had invested huge time and effort in recruiting, training and inducting the Complainant and that it truly wanted her to succeed in the role.  The Respondent submitted that the requirement to terminate her employment put additional pressure on the team until a suitable replacement was in place.  The Respondent submitted that despite all efforts it was very clear that the Complainant was not meeting the required standard for the role, that the Respondent then followed a thorough, robust process and that it stands over its decision.

The Respondent provided copies of all correspondence, minutes of meetings and other documentation referred to as appendices to the submission.

Representations at hearing

The Respondent stated that it was not credible to suggest that from Day 1 the Respondent intended to dismiss the Complainant, for such a premise to be correct would mean that having gone through a recruitment and induction process the Respondent would have spent 6 months setting about trying to dismiss the Complainant.

In relation to the matter of the Complainant’s disability the Respondent acknowledged that the Complainant had disclosed an undiagnosed sleep disorder to HR and had confirmed that she was awaiting a medical appointment.  In this regard it stated that this was a case where the Complainant believed she had a disability but that this was an unsupported ascertain pending medical evidence. Notwithstanding this, the Respondent submitted that it did make accommodation for the Complainant by providing a standing desk and by accommodating 2/3 days per week working from home.  The Respondent noted that if medical advice determined other interventions these would have been accommodated and further noted that as at the date of dismissal there was still no medical report to verify a disability.

The Respondent drew attention to the Complainant contract and the provision therein that the Complainant’s employment was subject to a probationary period.  The Respondent submitted that a fair assessment of the Complainant’s performance was conducted, that the Respondent met with the Complainant on 12 March to give her the outcome of the initial assessment based on the previous 4/5 months.  It was submitted that Manager 3 spoke to Account Managers in advance of that meeting and that they had identified an issue with the Complainant’s inability to manage her time effectively.

The Respondent noted that Manager 3 had advised the Complainant of the concerns and of the improvement required 6 weeks before the probation meeting, that at the next meeting with her the Task Tracker was put in place and that this was aimed at supporting the Complainant and identifying if there was any issue with her workload, as well as time management.

The Respondent outlined that there was a plan to meet the Complainant on 17 April for her probation meeting but that she went out sick.  The Respondent noted that it was reasonable and appropriate that the probation period be extended by the period of absence and in that context the probation meeting was reconvened for 22 April upon the Complainant’s return from sick leave.

The respondent noted that the Complainant was afforded the opportunity to make any representations in relation to the issues raised and that it was only after she was advised of the decision to dismiss that she related the issues to her “disability”.  The Respondent further noted that, not once, during her employment did the Complainant say that her sleep issues were impacting her performance.

The respondent drew attention to issues in relation to 3 separate clients and indicated that these would demonstrate that the performance issues were not contrived.

Concluding Remarks

The Respondent outlined that the email sent following the Complainant’s dismissal was sent for valid operational reasons and that the manager who sent that email made no efforts to interfere with Manager 5’s decision making in relation to the appeal.  The Respondent stated that the Complainant was operating under a fundamental misunderstanding of the situation and failed to recognise and accept that she was on probation and that her employment could legitimately be terminated during that time.  The Respondent reference case law and the employment contract in that regard.

The Respondent submitted that it was not credible to argue that it planned to “get rid” of the Complainant and pointed to the time and investment in hiring, inducting etc to then be planning from the outset to terminate the employment.

The Respondent stated that it had no evidence of a sleep disorder, that there was no statable case in relation to disability and that it was merely the Complainant’s belief unsupported by medical evidence. Notwithstanding this, the Respondent had made some accommodations pending medical certification but that the Complainant did not furnish any such medical evidence throughout her employment nor to Manager 5 as part of her appeal.

The Respondent noted that Manager 3 took a holistic view of the Complainant’s performance from the various Account Managers based on their experience.  The respondent had held a number of catch up meetings with the Complainant and that everything had been positive at the last catch up meeting in November.  However, matters had escalated between February and March and that these concerns were put to the Complainant at a catch up meeting in February.  The Respondent noted that the PDP meeting took place on 12 March, the Task Tracker was put in place on 21 March and the Performance Review Meeting took place on 3 April.  The Probation meeting was due to take place on 17 April but was deferred to 22 April due to the Complainant being on sick leave.

In all the above circumstances the Respondent submitted that the dismissal of the Complainant was reasonable and lawful and in compliance with the general understanding of what a probationary period is for.

 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 and their representatives.  

I noted that the Complainant alleged that she was unfairly dismissed by the Respondent on 22 April 2024 and I summarise her contentions in that regard as follows:

1.     that her dismissal was linked to a disability which she disclosed to the Respondent soon after she commenced employment. 

2.     that she was dismissed in a probation meeting while her probation period had expired.  She relied on Clause 2.4 of her contract which stated that probation was “deemed to be satisfactory when confirmed in writing by the Company or on successful expiration of the six months …without written notice to the contrary”

3.     that the procedures followed by the Respondent in the management of her probation and in the termination of her employment were unfair

Dismissal based on Disability

It is settled law that, even in a probationary period, an employer cannot dismiss an employee for any discriminatory reason, including for a disability.

I noted that this was not a complaint of discrimination under the Employment Equality Act, nonetheless I must consider if the Complainant’s potential sleep disorder was a contributing factor in her dismissal.

In that regard I noted that the Complainant brought this matter to the attention of the HR Department in the early days of her employment and that she received a very supportive response.  I noted that she was given accommodations in the provision of a standing desk and a significant working from home arrangement.  I noted that the Respondent sought medical confirmation of the diagnosis from the Complainant, both verbally and in writing.  I noted that the Complainant was awaiting a consultant appointment and was not in a position to provide the certification required.  In that context I formed the view that while the Complainant had medical concerns she was never diagnosed with any disability.

I noted that no issues of concern were raised regarding the Complainants performance at the time she disclosed her potential medical condition, nor were any raised for several months thereafter. 

Having reviewed all submissions and information provided I can find no link between the Complainant’s disclosure of her potential medical condition and the termination of her employment.  I consider that the Respondent was very supportive of the Complainant and went to some lengths to support her medical issues.  In that context I conclude that the Complainant’s dismissal was not linked to her medical issues or any potential disability.

Dismissal after Expiration of Probationary Period

I noted the Complainant’s contention that she was dismissed after the expiry of her probationary period and that once that time had passed without written notice to the contrary from the Respondent she could, in accordance with the provisions of Clause 2.4 of the contract consider that she had successfully completed her probation. In considering this issue I took account of relevant dates as follows:

·       The Complainant had entered a start date of 16 October 2023 on her complaint form, and this was the original intended start date.  However, both parties accepted that by mutual agreement, the Complainant’s actual first date of employment was 18 October 2023, and her signed contract was amended to reflect that change.

·       Clause 2.4 of the Complainant’s contract provided for a 6-month probationary period

·       The contract provided for an option to extend the probationary period, however, based on the submissions and evidence provided by both parties it is clear that the probation was never extended.  In that context the end date of the probation would ordinarily be 18 April 2024

·       The Respondent called a meeting to address the probation on 17 April 2024, giving a days’ notice of that meeting and the Complainant went out sick from 17 April, returning to work on 22 April.

In circumstances where the Complainant was absent from work due to sick leave it was reasonable and acceptable for the Respondent to consider that the probation had been extended by the period of the absence and to treat it accordingly.  Based on the above listed dates and on the dates of the Complainant’s sick leave absence I conclude that the Complainant was within her probationary period at the time of the probation meeting at which her employment was terminated.  In those circumstances the provisions of Clause 2.4 in relation to the requirement for written confirmation of the status of her probation were not relevant or applicable.

Procedural Issues

The Complainant raised the following procedural issues to demonstrate that her probation was not appropriately managed and that she was unfairly dismissed:

·       Insufficient time to improve performance

·       No right to representation at the meeting where employment was terminated

·       Bias demonstrated prior to the Appeal process

·       Insufficient consideration of issues at appeal

Insufficient time to improve performance

It is established law that dismissal during a probationary period must be carried out in accordance with the requirements of natural justice.  It is clear that in order to achieve that standard fair procedures must be applied throughout the probationary period.  I noted that, other than the provisions of Clause 2.4 referred to above, the contract made no further provisions in relation to the management of probation.  I also noted that no probationary policy was provided by either party, nor was any documentation provided which set out the standards to be achieved by the Complainant in order that she might pass probation.

I noted that the Respondent held an early meeting with the Complainant and others to outline the role being taken up and that no further meetings were specified by either party as having taken place until the meeting of 12 March 2024.  This was a PDP meeting.  I noted that at that meeting a discussion took place in relation to time management concerns.  This appears to be the first conversation to address concerns and I noted that this took place in the fifth month of a 6-month probationary period.  I also noted that this was not a meeting to review performance during the probationary period.

I noted that an informal meeting took place in relation to a “To do” list on 21st March, and to put in place a Task Tracker but again this meeting was not held to review performance under the probationary period.  I noted that the actual performance review meeting took place on 3rd April and at that meeting a discussion took place in relation to concerns regarding time management and two examples of specific client campaigns were highlighted by Manager 3.  I noted that those issues were a matter of dispute between the Complainant and Manager 3.  It is worth noting that there was a total of 10 working days between the PDP meeting and the performance review meeting.

I further noted that there was a total of 12 working days between the performance review meeting and the probation meeting at which the Complainant was dismissed, and that the Complainant was absent from work for 5 of those days arising from sick leave and annual leave.  This clearly resulted in the Complainant having only 7 working days to address concerns raised at the first review meeting.  By any standard this was unreasonable on the part of the Respondent, and it is apparent that once concerns regarding performance were “on the radar” the Respondent rushed to dismissal due to the time constraints of the probation period.  It is evident that the Complainant was left with no real opportunity to improve her performance at the end of the 6-month period when the Respondent failed to raise any concerns it had during the first 5 months of her probation.

A key principle of natural justice is that a person is made aware of any allegation or issue of concern.  In this instance, if such concern existed and if it was sufficiently serious to warrant dismissal it is simply not credible that this would only have arisen at the eleventh hour.  The Complaint should have been advised if such concern existed earlier in the probation, she should have been given a fair opportunity to address any deficiency, she was not and I conclude accordingly.

No right to representation at the meeting where employment was terminated

In relation to the conduct of the review meeting the Complainant raised concern that she was on her own in that meeting with three managers.  I noted that the Respondent denied this and clarified that one of the managers was there in the capacity of a note taker.  I further noted that the correspondence inviting the Complainant to that meeting advised that the Manager in question would be present as a support to the Complainant and as a note taker.    In these circumstances it is not difficult to comprehend how an employee would feel vulnerable.  The Complainant should have been given the opportunity to have a representative of her choosing present, most especially when the intention of that meeting was to terminate her employment.  In that regard I conclude that the right to representation was not afforded to the complainant and that the Respondent was not mindful of the power imbalance in that meeting.

Bias demonstrated prior to the Appeal process

The Complainant raised concerns about bias in relation to the appeal process and relied upon the circulation of an email announcing that she was no longer employed by the Respondent and the fact that this email issued within minutes of the conclusion of the probation meeting at which her employment was terminated.  I noted the Respondent position that this was necessary for business operational and continuity reasons.  I have considered both positions on this and while I accept that the Respondent needed to make arrangements for the handover of the Complainant’s work it seems to me that this could have been achieved in a more discreet fashion and without the need to circulate information to the entire team.  There was no dispute between the parties that the Complainant had only 5 days within which she could submit an appeal and at a minimum it would have been reasonable for the Respondent to allow those 5 days to elapse to ascertain if she intended to submit such an appeal.  I noted the Respondent position that it would have agreed a further statement to issue if the Complainant’s appeal was upheld. However, I consider that having issued the email announcing to all that the Complainant was no longer employed with the Respondent before the Complainant had any opportunity to submit an appeal and have the outcome of that appeal determined it does demonstrate that in the mind of the Respondent this was a settled matter.  In those circumstances, on the balance of probabilities, I conclude that this action does demonstrate a bias on the part of the Respondent.

Issues relating to the Appeal Process

In considering this matter I paid particular attention to the letter of appeal, to the minutes of the appeal meeting held on 14 May 2024 and to the appeal outcome report of 21 May 2024. 

I noted that the Complainant was given the right to representation at that meeting and declined the offer.  I noted that the meeting was recorded at the request of the Complainant, as were recordings of the witness interviews and that a transcript of those recordings was provided to the Complainant.

In addition, I noted that the author of the report (Manager 5) described the purpose of the appeal process as to:

“Conduct a hearing into a formal appeal submitted by (the Complainant) against the decision of the Company on 22nd April 2024 to dismiss (the Complainant) by reason of her performance in the role;

Meet with (the Complainant) and investigate with all other parties and consider all information and documentation relevant to the appeal grounds; and

Issue an outcome in respect of the appeal process for noth (the Complainant) and the Company.”

I noted further that Manager 5 stated that “when conducting an appeal by way of a review of the original decision it is the role of the Appeal Officer to make a determination on whether or not the original decision was a fair and reasonable one to make in the prevailing circumstances.”

Having noted the above it seems to me to be an iteration of the terms of reference for the appeal and I consider it appropriate to determine if, in fact, the appeal process met the terms as set out.

I noted that the Complainant raised 6 grounds for appeal as follows:

·       Performance issues raised, exclusively relating to time management, held no basis

·       Fair Procedures not afforded

·       Minutes of performance review meeting were inaccurate

·       Contract provided was insufficient to outline her duties and responsibilities

·       The Complainant’s probation period had expired at the time of her dismissal

·       The email sent 30 minutes after her dismissal demonstrated that the Complainant was not going to receive a fair appeal process

The role of the Adjudication Officer in considering the appeal is not to substitute my opinion for that of the Appeal Officer but rather to consider if the Appeal Officer conducted a fair process and if their findings were evidence based.

I was satisfied that Manager 5 took reasonable steps to ensure a fair process, providing for the right to representation, providing for recording of interviews at the Complainant’s request, providing the Complainant with transcripts of all interviews and in the manner in which he conducted the interview with the Complainant. I also acknowledge that he provided a clear report of his findings and set out the basis for those findings and that he completed the process in a timely manner. 

I consider that Manager 5 set out reasonable ground for his findings in relation to grounds 3,4 and 5 and while I do not concur with his finding in relation to ground 6 he had a clear reason for makings his finding in that regard.

I noted that Manager 5 made a composite report of his considerations in relation to Grounds 1 and 2 and that having done so he concluded that “there was sufficient basis to run a Performance Improvement Process (PIP) from 12 March onwards” and he stated that he would describe the process thereafter as a PIP.  He stated that the Company would not choose to invest resources in this process without good reason and that he did not believe that the final outcome was predetermined.  I noted further that he stated that the Complainant “can also have an opinion whereby that she feels that there was no basis to these time management issues as it is a subjective issue.”  He further stated that “I do not believe these are mutually exclusive perspectives as both sides can have different expectations.”  As a consequence of these deliberations Manager 5 determined that he did not have a finding in relation to Ground 1.

I was concerned to see that Manager 5 did not give any consideration to the documentation provided by the Complainant that she was not provided with certain information relevant to the timeline in the examples referred in the probation review meeting and that she was only advised of certain deadlines after the event.  Neither did he appear to have considered changes that occurred in relation to the timelines that might have impacted on her delivery.  In this regard I consider this omission to be a serious deficiency in the process.  Without a proper consideration of these issues, the very basis of the Complainants dismissal was never considered at appeal stage.  It should also be noted that a PDP meeting does not constitute a performance review meeting and that while concerns may have been raised at that meeting the formal review under the probationary period did not stake place until 3 April 2024.

The arguments put forward by the Complainant at appeal in relation to Ground 2 were substantially different to those outlined at hearing.  Based on those arguments I consider that Manager 5 made a reasoned decision in relation to that ground.