Worker

Employer

Anonymised Parties

An Accountant

A Motor Vehicle distributor

Representatives

Self-Represented

Mr Brennan of Mason Hayes & Curran LLP

Act

Dispute Reference No.

Date of Receipt

Industrial Relations Act,1969

CA-00065819

06/09/2024

The dispute concerns the alleged Unfair Dismissal of an Accountant by a major Motor Vehicle Company.  The employment began on the 15th July 2024 and ended on the 27th August 2024.

The rate of pay was stated by the Worker to have been € 5,666 per month for a 40-hour week.

The Worker made an Oral testimony supported by his Complaint form and some additional copy correspondence.

He had been initially employed on a 9-month Maternity Leave cover. The probation period was stated to have been for 8 weeks. In the 7th week (27th August 2024) he was due to have a scheduled meeting with his Manager, a Mr A at 12:00 hrs. The meeting was delayed until 16:45 hrs. The HR Director, Ms B, joined the meeting. Manager, Mr A, told the Worker that “things are not working out” and that he was being dismissed that day.

He never received any details of his alleged shortcomings or any reasoned explanation for his dismissal. Being on Probation does not mean that a Worker has no rights to fair procedures. There were no Probationary review or any normal employment procedures. He was simply dismissed without any warning or any fairness.

The Worker, in closing pointed to the fact that he was much older that his new colleagues and had been referred to, in derogatory fashion as “an old man” on occasions.

The Employer was represented by Mr Brennan of Mason, Hayes and Curran Solicitors, supported by a number of Company managers. Detailed Oral Submissions were made and supported by a comprehensive Written Submission.

In essence the Employer arguments were that the Worker had been engaged on a temporary Contract which had contained an eight-week Probation Clause. During the course of his work the supervising Managers had become very concerned regarding the performance of the Worker. Detailed examples and timelines were outlined. A significant Oral testimony was given by Manager X detailing the work issues that had arisen with the Worker.

Accordingly, the Employer decided to end the employment at the conclusion of week seven of the probation period. There was no suggestion of any impropriety or dishonesty. The work output and performance situation had not been satisfactory, and the probation was ended on that basis. As it was a pure performance issue there was no reliance on any end of employment procedures as would arise in a case of Misconduct. The Worker did not have the required employment service to bring a complaint under the Unfair Dismissals Act,1977.

The Employer cited case law of Buttimer v Oak Fuel Supermarket [2023] IEHC 126 and in oral testimony O’Donovan v Over C Technology Ltd [2021] IECA 37 in support of the case of ending an employment on purely work performance issues during a probation period.

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

3:1      Legal issues & precedents.

The principal Legal precedents were quoted by the Employer, particularly O’Donovan v Over C Technology Ltd [2021] IECA 37.

In this case Ms J Costello stated at PR 49

“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 or 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”.

In the case in hand there was no suggestion of any misconduct. It was simply a series of mis performance situations; deadlines being missed and an over reliance on superiors to address/rectify issues.

The Oral evidence given, especially by Manager, Mr X, was telling. He presented as a very credible witness to the Hearing. There was no suggestion of any personal animosity towards the Worker. Manager X had been forced to utilise his private time (10th August 2024) to try and set out work rules and procedures for the Worker. There was no agenda just trying to get the Worker to follow Company rules and understand house Accounting practices and deadlines. The Worker had been comprehensively trained by a detailed hand over from his predecessor prior to her maternity leave. It was noted that the Worker was allegedly very casual in recording notes etc of the Training and other issues that had to be explained to him. He had been recruited to a quite Senior Accounting position and a much higher standard of work had been expected.

In detailed cross examination the alleged shortfall performance issues were raised. Mr X was very detailed in his explanations. The Worker was less convincing. In relation to the Age allegation, this was vigorously denied by the Employer.

3:2       Adjudicator conclusions.

The Legal precedents are telling which when coupled with the Oral and written evidence given, only allow the conclusion that the Dismissal for detailed performance failings, while unfortunate for the Worker, was allowable during a probation period. The comments of Ms Justice Costello quoted above are persuasive.

Accordingly, the Dispute concerning an Unfair Dismissal is not sustainable.

It fails.

Unfair Dismissal, Probation Period