ADJUDICATION OFFICER Recommendation on dispute under Industrial Relations Act 1969

Investigation Recommendation Reference:  

ADJ-00057564

Dispute:

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Date of Hearing:              20/08/2025

Procedure:

In accordance with Section 13 of the Industrial Relations Act 1969 (as amended)following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any information relevant to the dispute.

Background:

The Worker contends that he was unfair dismissed.

Summary of Workers Case:

The Worker argues that he was dismissed without due process, when the Employer dismissed him in a 45 second phone call on 17th February 2025, stating “it’s not working out”.  He stated that he had been at a disadvantage by not being given an apprentice.   He said he didn’t design the jobs, and he found the order of work goods unsatisfactory. He stated that he got a ‘five star review’ on Trust Pilot for work carried out. 

Summary of Employer’s Case:

The Complainant was employed by the Respondent as an Electrician on 3rd September 2024. The Complainant carried out works at a number of sites on behalf of the Respondent. The quality and safety of Complainant’s work was far below what the Respondent expected. Mr W (Managing Director), and other employees of the Respondent had to on multiple occasions to attend sites to re-do and make safe work carried out by the Complainant, often outside of working hours, and with expense to both the Company and other Clients who were waiting for him to attend their site. The Respondent was required to send someone 1-2 days per week for a two month period to site to rectify the Complainant’s errors. The Complainant was frequently late, and when he did attend, was not productive. Mr W spoke to the Complainant about the quality of his work on many occasions but it never improved. The Complainant was dismissed by Mr W on 17th February 2025.

Throughout the course of his employment with the Respondent, Mr W put to the Complainant a litany of concerns, including but not limited to:

1. Performance and Quality of Work issues Lateness and failure to notify the Respondent of same,
2. Safety to fellow Employees and Client’s arising out of the quality of his work,
3. Not meeting the minimum required safety standards as a qualified Electrician
4. Absences and failure to follow policy in this regard,
5. Difficulties deciphering the Complainant’s clocking/clocking out,
6. Productivity.

Page 43 of the Employee Handbook mentions at Performance Management policy, however same clearly notes, so that there could be no confusion that: “This policy and procedure does not apply to employees who are on their probationary period with the Company.” meaning the Respondent was not obliged to initiate the Performance Management policy with the Complainant.

The Respondent’s position is that the probation process was conducted fairly, and that the Respondent behaved reasonably at all times. In particular: the Complainant was fully aware of his performance issues and these issues were flagged to the Complainant on a frequent basis. The Complainant was provided with an opportunity to respond and improve his performance throughout his employment, but failed to do so.

As the Complainant had less than 2 years’ service, this entitled to him 1 week notice as set out within the Minimum Notice and Terms Of Employment Act, 1973, which he was provided. The Complainant was not required to work for the duration of this week but did receive full pay.

It is the Respondent’s position that a “reasonable employer in the same position and circumstances” would have reached the same determination in the circumstances of the within case. Despite such regular communication with him, the Complainant showed no signs of improving, showed no interest in improving and was costing the Respondent time and resources in re-doing and making safe the work of the Complainant. As such the Respondent’s decision was reasonable and fair in the circumstances, and no unfair treatment took place.

The recent judgment of the Court of Appeal in O’Donovan v Over-C Technology Ltd & Anor [2021] IECA 37 confirms that an employee cannot be deemed to have an implied right to fair procedures where they are dismissed during the probationary period, except where the dismissal is on grounds of alleged misconduct, which was not the case here. The Court emphasised that the entire purpose of a probationary period would be undermined if such a right were to be implied.

“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……” “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,”

It is the Respondent’s position that a “reasonable employer in the same position and circumstances” would have reached the same determination in the circumstances of the within case. As such the company’s decision to dismiss was reasonable and fair in the circumstances, and no unfair dismissal took place. The Complainants mistakes represented a real safety risk to the Respondent’s employees and Client’s, and therefore these mistakes could not be tolerated any longer, particularly when the Complainant was repeatedly made aware of the issues.

Conclusions:

The Employer terminated the employment of the Worker for a number of reasons including unsatisfactory work performance, attendance issues, lack of adherence to clocking procedures and lack of providing photographs for work completed.  The Worker blamed issues such as design of jobs and ordering of materials.  While I have some sympathy with the Employer, the fact that the Worker was dismissed in a phone call, without any process or documentation is a flaw in the Employer’s handling of the situation.  I recommend that the Employer should offer the Worker a token of compensation for this flaw, in the amount of €500.

Recommendation:

Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation in relation to the dispute.

To close this dispute, I recommend that the Employer should offer the Worker a token of compensation in the amount of €500.

Dated:   09-10-25

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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