Worker

Employer

Anonymised Parties

A Worker

Specialist Service Provider

Representatives

 The claimant represented herself

John Barry Management Support Services (Ireland) Ltd

Act

Dispute Reference No.

Date of Receipt

Industrial Relations Act 1969 as amended

ADJ-00062178

18.04.2024

The claimant was employed as a Verification Officer  with the respondent from the 26th.Sept.2023 to the 26th.March 2024 when she submits she was unfairly dismissed. She was employed on a fixed term contract to work on average 19-22.5 hours per week.The respondent denied that the claimant was unfairly dismissed  and contended that her dismissal was fair and arose from performance deficits on the part of the claimant.

The respondent’s representative submitted that the respondent company provides a range of specialist services to client companies – in this case a Verification Service for a national licensing authority .The respondent’s representative presented  as follows:

The case before you today relates to a claim made by  the claimant, under the Industrial Relations Act, in relation to her employment with  the respondent.

 Background

 The company provide a range of specialist services to client companies and, in this case, provides a Verification service to a  National License Service. The role of a VO (VO) is to meet people making applications for  licenses, and verify all data and documents related to the application, and then to submit all details into the  system which then progresses to a  license being issued.  The company provides this service in centres around the country, there being 34 in total. These centres may be a single booth operation with one VO involved up to as many as 10 booths in the larger centres.

 The claimant commenced employment as a VO on the 26th September 2023, on a fixed term contract.  The claimants’ employment was subject to the satisfactory completion of a four-month probationary period, during which she would receive training in relation to her duties and the procedures within the company and be assessed as to suitability for the role. The role of a VO is to: - confirm the identity of the person making the application, - verify all documentation presented, - including any changes that may be requested or required, - process the documentation in accordance with the company procedures, - take photographs, signatures and payment, - issue a receipt for payment received, - advise that the license will be issued in due course, directly to the customer.

 The claimant was based in the R office, on a part-time basis. As detailed in her statement of terms she was to provide support to the permanent team, and it was expected she would average between 19 and 22.5 hours per week. This centre is a one booth centre, which is shared with another part time employee. As part of the claimants’ terms of conditions of employment, she would also be assigned to alternative centres.

In this centre she worked alongside another VO, Mr. W. The two officers covered the R centre and would also work in other centres, as rostered. At the time of the claimant joining Mr. W, who had been with the company for a number  of years, was drawing up the weekly roster after agreeing availability with the other person assigned to the centre and submitted it to their manager weekly. After receiving a full induction training programme, the claimant started working on her own on 5th October, initially with a reduced appointment schedule. The person who had been in the role prior to the claimant was also female, and had three children, and throughout her time with the company she had worked on the same basis as the claimant.

Unfortunately, after a couple of months a few issues arose with the claimant concerning the performance of her duties. As a result of these issues the respondent extended her probation, however, when similar issues arose, ended her probation, due to the further serious mistakes which were made.

 As stated above, VOs are responsible for assisting applicants with their requests for  licenses and are subject to very clear performance standards which have been set by the  client. Due the fact that we are verifying documents which are submitted to support the issuing of a legal licence, and documents which involve recording confidential personal information, we are subject to a high standard,  in relation to satisfying ourselves, that all legal requirements, obligations and personal information submitted is correct, recorded properly, and kept confidential at all times, in accordance with data protection.

 Whilst the respondent would be responsible for managing this contract and ensuring all duties properly completed, all activities are subject to independent third-party scrutiny, by an independent organisation, who has no connection whatsoever with the respondent or the R A  and whose responsibility it is to monitor the accuracy, quality and standard of the work carried out by the respondents’ staff. If the vetting authority identifies a failure to verify and submit an application correctly, it notifies A who will then raise a request for an explanation as to why the incorrect documentation had been submitted. In relation to the incidents which arose resulting in the probation being extended, these came to the attention of the company as a result of the vetting office identifying a failure to correctly submit, and we were required to investigate and provide an explanation to our client as to why an error had been made.

 These issues came to the attention of the company and involved the claimant. In this regard it was brought to our attention that on the 21st December the claimant had changed a customer’s gender to female and processed the application with an incorrect PPS number.

 The claimant accepted that she had not followed the procedure she had been trained to follow. Because of her actions, this resulted in a potential data breach occurring, as incorrect information was issued which could have resulted in any documentation arising from that, being invalid. Also, the said information could have gone to the customer who had submitted the documentation, but they would have received someone else’s personal data as part of a data breach. Naturally, had the customer had to produce their licence for any reason, it would then have been seen to be incorrect as the incorrect PPS number would have brought up a different person.

 Again, on the 2nd January 2024, the claimant filled out a customer’s medical data incorrectly, which we discovered was due to the fact that she had copied and pasted this from the booking system, which she had not been trained to do. Again, this meant the information, when issued, would have resulted in a data breach arising. All personnel trained are not trained to paste and copy but to enter each item, clearly as a means to avoid such potential mistakes.

On investigation, it was discovered the claimant had opened an incorrect customer on her appointment booking system, which is when a customer attends. Once the person is confirmed the officer moves to the separate licensing system to submit the data. By opening the wrong day, the claimant used another person’s name who was scheduled to come in the next day, and she then copied and pasted the incorrect name and PPS number to the licencing system, and continued with the verification of the application which, if it had been checked properly, she would have discovered the name did not match the details. This also meant that the person who came in the following day could not have been processed which would have resulted in additional cost and delay. These were serious mistakes to be making, and resulted in the company being notified by A that we were in breach of our obligations under our contract.

 It is of note that in relation to these problems, they were in fact created at the claimants’ end of things due to simple lack of attention and had she followed the procedures she had been trained to follow, this would not have happened. A meeting took place with the claimant on the 1st February 2024 with her supervisor, Ms. D. This meeting reviewed the issues which had come up and, arising from this, Ms. D advised the claimant that she was going to extend the claimant’s probationary period by a further two months. It was also explained to the claimant that the purpose of the extension was to give her the opportunity to show she could improve. The claimant was also advised that she would be the subject of ongoing reviews so as to ensure that she was carrying out her duties correctly.

 Unfortunately, subsequent to this meeting, a number of further incidences arose which were as follows:

 On the 9th February a medical form was submitted which had not been completed fully by the claimant. Also, on the 9th February an eyesight report was submitted which again was incomplete. These mistakes were again identified by vetting and resulted in a delay in the licence being issued to the customer.

 On the 19th February a medical form was completed which again was an invalid document and should not have been submitted. This also resulted in a delay to the customer receiving their licence and also put them to additional cost as they had to submit a new medical report, which they had to pay for.

On the 1st March we received notification from the client that a customer’s gender had been changed from male to female. On investigation it would appear the customer’s gender had been changed, in error, and on investigation it was established that the claimant was the person who had processed this application. This had been picked up by vetting as there were no documentation submitted to support a request for a change in gender. As soon as the company was made aware of this, an email was sent to the claimant to ascertain whether the customer had requested that they wanted their gender changed. When no response was received, a further communication was sent to the claimant regarding this matter. No reply was received from the claimant until a week later, on the 13th March, when Ms D met with the claimant, and she confirmed that it was a man who came in and at no time had she been requested to change it from male to female.

 When the claimant was asked why she had not responded to the first email she stated that she had not checked her work emails for a number of days. Naturally this was a serious mistake in itself but was also raised a further concern as they were similar problems to those which had arisen earlier in the probationary period, which had resulted in the extension of the probation. As a consequence of these issues Ms.D met with the claimant on the 13th March and spent a day with her. During that day Ms.D  went through the three errors that had come to her attention in the month of February and had clearly hoped that, as a consequence of her visit, the claimant would ensure that she paid better attention to the work she was doing.

 It should be noted at this stage, that the R centre would not be a busy centre and the claimant would have had plenty of time to carry out the work she was doing. When she was working in the G operation, which she had stated she liked doing, she would have been working amongst a number of other colleagues but again it would be our view at no time would she be in such a situation that she would have had to rush or be under pressure in carrying out her duties.

  Unfortunately, a week later the company received a further complaint. Again, there had been an error made in the documentation completed by the claimant. In this particular case it was identified that the claimant had incorrectly indicated the wrong answer appropriate to the application, which was being uploaded. At this stage it became clear to the company that the claimant was not reliable and the number and type of mistakes she was making were such that the company decided it was best not to allow her to continue to work as a VO.

 The claimant was invited to a meeting on the 26th March 2024. She was advised this was a final review meeting and that a decision could be made not to allow her to pass her probation, and that she could be accompanied if she wished.  At the meeting the claimant was advised that it had been decided that her performance, and explanations put forward by her regarding the mistakes she made, were such that it was felt she was not meeting the necessary standards that would be appropriate for someone in that role. Consequently, she was advised that the respondent would be terminating her employment on the basis of her unsuitability. This was confirmed in correspondence on the 27th March 2024.

 The claimant chose to appeal this decision, and this appeal was heard by Ms C , who is an operations manager. This appeal took place on the 9th April 2024. In lodging her appeal, the claimant raised a number of points which had to be considered which were as follows; - she felt she had been victimised by her co worker Mr W and also by her manager Ms D, - the claimant believed that she was not getting a fair share of the working hours that were available to staff. - There was a lack of training. We also note in the letter of appeal, the claimant stated that when she was informed that her employment was being terminated because of some errors, she indicated that she was shocked and very upset, ‘’because up until then there was no mention of any dissatisfaction of my work’. A few errors were pointed out to me in the past which I took on board’’. Yet the claimant was clearly aware that because of the previous “errors” she refers to -  At that time her four-month probation period had been extended, due to the dissatisfaction with her work, thus one would wonder why the claimant would be surprised that, when she makes further serious mistakes, there was more concern about her suitability.

  The claimant in referring to her working hours seems to be suggesting that both Mr W and Ms.D were treating her unfairly. In this regard on examining her statement of terms it is very clear that she ‘’will’’ be required to provide support to other centres. It is also of note that in correspondence that was submitted to the claimant prior to her termination of employment, reference was made to the fact that she was receiving a weekly average of 23 hours work. It is also of note that the issue of hours was only raised in March, and at the time she raised it she was correct that on that occasion she had not worked three days in the centre. This was acknowledged by Ms. D at the time. However, no suggestion was made that this was an ongoing problem, and as stated above in examining her average hours they were around 23 a week.

 The appeal was heard on the 9th April and an outcome decision was issued by letter on the 24th April. (App pg.15) In this correspondence Ms.C  concluded that the claimant’s probation had been extended before any issue concerning the querying of her hours of work and it was very clear, from the conversations which took place at that time, that the extension related to errors that were made as opposed to any other issues. It was also noted that the claimant had accepted she had made data protection errors and she did not dispute other areas which were also again identified by Ms. D during the appeal hearing. It is of note that the claimant also referred to the fact that she received lack of training. In this regard it is very clear the mistakes made were not as a result of a lack of training but were because of poor attention to the work she was doing.

 I am sure it will be appreciated, attention to detail in this job is of prime importance, otherwise we end up with delays in licenses being issued because the forms have not been checked, verified or completed properly, or breaches of data protection with personal information being released to others, and the issuing of  licenses where a person has not provided the necessary medical information to support the issue of a  license. All very serious matters.

 Ms. C  was satisfied that the claimant had received the same training as everybody else, and at no time was disadvantaged. Also, if one looks at the claimants own comments during the course of all these investigations, where she maintained she was doing a very good job with very few errors, there is no suggestion that anything arose which was a consequence of a lack of training. In considering these factors,  Ms.C  did not uphold the appeal and confirmed the termination of employment during the probation period.

 CA-00062952-001

 Unfair Dismissal

The claimant has claimed she has been unfairly dismissed. The respondent contends the claimant has based her belief she was unfairly dismissed on the grounds she was questioning her hours of work and, as a consequence of that, her manager decided her employment should be terminated. As outlined earlier, the claimant was advised that she could be reasonably expected to be working between 19 and 22.5 hours, and in fact we know from our records the claimant worked on average 23.8 hours whilst her colleague worked 25.2 hours over the same period. (App pg. 17/18) These figures would not support the claimant’s contention that Mr.W was compiling rosters to disadvantage her and to his advantage.

 The claimant was on probation, and it is well established that during the probationary period the employer has the absolute discretion to decide if a person’s employment should continue. In this case the claimant was advised in February 2024 that her probation was being extended for a further two months. This extension was because of concerns regarding the claimant’s suitability to the job she was doing. The concerns that caused the extension related to attention to detail and how the job was being carried out. It was not a criticism of the way the claimant may have interacted with customers, her overall personality or ability, but it was very clear the claimant was not applying the appropriate diligence to her job that was necessary. Because of the claimant’s actions the vetting company picked up, on several occasions, issues that were serious, such as recording the wrong gender or not submitting the appropriate medical forms, which were necessary to support an application for a  license.

These, we contend, were very serious issues, and would have been a basis in themselves to terminate employment at that stage of probation. However, her manager was willing to give an extension in order to allow the claimant the opportunity to show she was capable of doing the job. We would suggest this is not evidence of victimisation but the contrary.

 Regrettably, subsequent to the extension of probation period, further serious mistakes were made, and reports were received regarding the claimant’s performance, which made it clear she could not be relied upon to carry out her duties diligently.

 The claimant has, in her documentation, maintained that the type of mistakes she was making were common in other centres. In this fact the claimant is mistaken, and the company will address the issues that the claimant has referred to regarding the mistakes that she maintains other people have made, at the hearing itself, so as to be able to explain it correctly.

 The company maintains it followed fair procedure and had the absolute discretion to terminate the claimant’s employment if there were concerns.It was submitted that the company was satisfied  that the claimant was not carrying out her duties in accordance with its requirements and the types of mistakes she was making were serious and therefore it was within its rights to decide that , in the company’s opinion, the claimant was not suitable to the role of VO.

In presenting on behalf of the respondent  Ms.D (the claimant’s line manager) set out an account of her experience of working with the company and her involvement in managing the claimant . She  summarised the background to her career with the respondent and explained arrangements for the operation of the roster. She referenced the provision in the contract which referenced supplementary support on a casual basis  and said an as and when needed arrangement applied – availability is checked with the Verification Officer – they reply yes or no and are assigned accordingly. She advised that all VOs had the same terms and conditions of employment. The manager  said the complainant did not complain about being assigned outside of R .When the complainant referred to her family and child care responsibilities , she said she would try and reach a solution. Ms.D said that the position was part time – this had been clarified and a 3 day week was anticipated. Ms.D advised that the same job spec applied to all of the respondent’s centres.

The manager advised that some centres do their own rosters – in the instant case Mr.W did the roster -the returns with leave were submitted to her – sometimes she would have to arrange cover.

Ms.D  said the postholder who preceded  the claimant had a family and covered other centres as well as R office.

 The manager  said she had a number of conversations  about performance with the claimant  during the month of January – she referred to errors and told her that she would be extending her probation for 2 months. The claimant said she was going to try and improve .The manager  referenced incomplete medical forms and the cost in terms of time and money that could arise.Ms.D referred to an  incident with a member of the public where the claimant had given out her own email address and the manager  told her not to reply and if the member of the public enquired further to tell him the email did not come through.

Ms.D  referenced the meeting of the 13th.March 2024 – she referred to performance issues relating to correct verification , amendments to personnel files and transfers between the booking system and the Front Office System. In the course of the meeting the claimant said she was never told not to copy and paste . The manager  referenced the distinction between minor errors and serious errors for example gender which would be considered by the Independent Vetting body. In this context she also referred to protected data breaches.  Ms.D  said she explained to the claimant the importance of being correct  and emphasised that the role of the VO   was to verify each document before accepting it.  The claimant asked about her final probation meeting and Ms.D advised her that it would be scheduled before the end of the month.  Ms.D  referred to the claimant complaining about Mr.W getting more hours. Ms.D was  asked by her representative did the claimant complain that she was not getting 3 days in R – she replied in the negative. She was asked if the claimant said she did not  like travelling to G – she replied No. The manager  said that she told the claimant that she was unaware that she was unhappy  and that she was a valued member of staff.

The Probation review meeting was organised for the end of March – Ms.D said it had to happen because it could n’t be extended – the claimant was advised that she could be accompanied but she indicated she did not have anyone coming.

At the meeting on the 26th.March , the claimant presented with a number of documents .Ms.D referred to errors and data breaches .The claimant was advised she was not going to pass and her contract would not be extended.The claimant was told that she would be paid to the end of the week and that HR would provide a reference.

The manager  said the claimant received the same training as everyone else on SOP’s , training videos  courses and shadowing other VO’s. She said the claimant did not complain about inadequate training.

 In responding to questions raised by the claimant , Ms.D  confirmed that Mr.W would forward the rosters to her. When the claimant said she felt threatened by the witness’s emails – Ms.D  responded that it was not her intention to threaten the claimant. The claimant said that when she offered to respond to the member of the public who had  emailed her and she received an email telling her not to reply , the claimant said she thought she had been assisting .The complainant suggested to  Ms.D  that this was the wrong way to communicate with staff , the manager responded that protecting staff was her priority. The claimant asserted that there was no paper trail charting administrative errors. Ms.D  responded that she had spoken to Mr.W and he denied showing the claimant how to copy and paste. The claimant asserted that  the manager   told the claimant on the 13th.March that she was a valued member of the team and Ms.D  responded everyone was valued. The manager was asked why   she approved the claimant’s leave for April.The claimant referred to  the absence of paperwork about the claimant’s termination of employment and the manager responded we went through everything with you. it was  suggested to the manager  that she had terminated the claimant’s employment without giving her a chance.

When the manager referred to the Company Hnadbook , the claimant replied that she had never received a handbook .The claimant told Ms.D  she did not understand the seriousness of the errors. Ms.D  advised that at the termination meeting the claimant alleged that she was being called in because of the issue she had raised about the R rosters. The claimant complained about inadequate training and asserted that she did not have any more errors than anyone else. When asked about why she had not raised this matter earlier , the claimant – according to Ms.D  – responded that she did not want to make a fuss as she was a new employee.It was submitted by the claimant  that she  alleged that she was discriminated against as she queried her hours , she challenged Mr.W and she was a working mother. The manager  suggested that  she was only made aware of the roster issue after she informed the claimant about the probationary review.

It was submitted by the respondent that the company  had the absolute discretion to terminate the claimant’s employment if there were concerns. It was submitted that the company was satisfied the  claimant was not carrying out her duties in accordance with its requirements, and the type of mistakes she was making were serious, therefore it was within its’ right to decide that, in the company’s opinion, the claimant was not suitable to the role of VO.

In a submission to the WRC of the 7th.August , the respondent company referred to their track record on service excellence and professional standards and referenced an exemplary employment relations record having maintained zero cases against the company since having the contract awarded in 2013.It was submitted that the company had a well tested and comprehensive training  programme .It was submitted that the employment contract which had been furnished showed that the claimant never held a job share position despite her repeated references to the contrary and it was advanced that the claimant’s hours were above those detailed in the contract .It was submitted that the company’s track record spoke of reliability , professionalism and commitment to excellence.

.

In her complaint form the claimant submitted that at her dismissal meeting the respondent advised that her employment was being terminated owing to poor performance  and errors relating to policies and procedures. The claimant submitted that these errors were made every day in the other offices throughout the  country and submitted that she was never advised about the errors relating to policies and procedures. The claimant submitted that her line manager Ms.D was allowing her ”job share “ equivalent Mr.W to carry out the monthly rota each month and allocate himself extra hours while she had to travel as far as G to avail of her contracted hours. The claimant submitted this had a very negative impact on her family and child care arrangements. The claimant said she complained about this to her line manager and Mr.W to no avail. The claimant contended that in response to her complaints she received text messages to the effect that arrangements would remain the same “according to the needs of the office”. The claimant said that when she told her line manager that she would have to get the assistance of the WRC , the line manager’s attitude changed and she was summoned to her probationary review meeting on the 27th.March 2024 and was informed that owing to her performance , her contract would be terminated. The claimant submitted that she had all the Error Reports from her office as well as other offices and that her office had zero errors in October , November , December and January  and only 3 errors in Feb. 2024.The claimant advised that prior to the meeting of the 27th.March she had not been informed of any dissatisfaction with her work. The claimant submitted that her line manager should never have left Mr.W make up the office rota , giving her less hours than she was contracted to work. The claimant reiterated that  she was advised that she was a valued member of staff and the company did not want to loose her.The claimant  complained of a minimum level of training and said training was never offered to her.

The claimant said that she felt she had to travel to G to make up her hours .When she raised the matter with Mr.W – the claimant said he did not want to know.

The claimant submitted that it was untrue for the respondent  to maintain that she had adequate training. She said she did her best with the training she got. She referred to the frequent breakdown of cameras at the R Office. The claimant said that when she queried her hours – Ms.D did not like the fact that she had raised the matter with the WRC and all of a sudden they wanted rid of her.The claimant reiterated that she did her best at all times. She would never work for a private company again. She had not been appraised of faults or errors. The claimant maintained  that all VO’s made errors and tried to rectify them. The claimant said her job was advertised in Indeed before the hearing of the appeal against the termination of her employment. She said it was unfair to her to advertise the position and matters had been compounded by the respondent’s negative response to reference enquiries.The Ad was taken down when the claimant complained about this.The claimant said she was unemployed for a year .She contended that the  company reference had negatively and significantly  impacted on her  job prospects.

The claimant lodged an appeal against her dismissal and had a hearing date confirmed for the 9th.April 2024.She advised that  before the hearing was convened  that her position was advertised on Indeed. The claimant asserted that she had never been treated so badly by an employer.The claimant said she knew her performance was excellent and that she had enjoyed a good rapport with all customers. She received numerous acknowledgments of this from the clients she had dealt with. The claimant reiterated that by Mr.W allocating midweek shifts to himself she had no choice but to drive to G to make up her hours.When she raised the matter with Mr.W – according to the claimant , he did not want to know.and said training was never offered to her.

The claimant reiterated that she was advised that she was a valued member of staff and the company did not want to loose her .The claimant complained of a minimum level of training  and said training was never offered to her .

The claimant submitted that it was untrue for the respondent to maintain that she had adequate training.She said she did her best with the training she got .She referred to the frequent breakdown of cameras at the R office .The claimant said that when she queried her hours – Ms.D did not like the fact that she had raised the matter with the WRC and all of a sudden they wanted rid of her. The claimant reiterated that she did her best at all times.She would never work for a private company again .She had not been appraised of faults or errors .The claimant maintained that all VOs made errors and tried to rectify them.The claimant said  that her job was advertised in Indeed before the hearing of the appeal against the termination of her employment .She said it was unfair to her to advertise the position in advance of the process being completed and matters were compounded by the respondent’s negative response to reference enquiries.The Ad was taken down when the claimant complained about this .The claimant said she was unemployed for a year .The company reference had negatively and significantly impacted on her job prospects.

In responding to her line manager’s presentation , the  claimant said that her probationary review meeting was all to do with the rota devised by Mr.W where he was allocating himself additional hours. The claimant said he did it all to suit himself and when she submitted a Whatsapp querying the hours , Mr.W deleted it.In a written submission received by the WRC on the 12th.May 2024 , the claimant asserted that this showed that Mr.W knew exactly what he was doing was wrong  “ i.e. taking my hours on the monthly  rota and by deleting my messages proved his guilt”.The claimant said that by  having to travel to G to pick up hours  her family status was affected. The claimant confirmed she was not pursuing a complaint of victimisation under the Employment Equality Act

 The claimant   was asked if she was advised on the 13th.March that that her probation review would be done before the end of March – she did not recall this. The claimant accepted that there was no reference to job share in her contract of employment and accepted that she was a Part Time worker. The claimant  accepted that her contract did not refer to working solely in R. The respondent’s representative asserted that  the claimant had  accepted she was not a job sharer. He suggested   to the claimant that she was never told she would be working exclusively in R .The respondent’s representative submitted that when the claimant was assigned to other locations she never contended  that she was only employed in the R Office. It  was submitted that the claimant did not contact HR to say she was exclusively assigned to R Office  . The claimant replied that she did not want to rock the boat and she approached her colleague Mr.W about it. It was submitted that  from Sept. to February the claimant  did not contact the respondent to say that she was supposed to get 3 days a week. The respondent submitted that  the claimant  accepted the terms and conditions set out in her contract – and that she was required to supplement the cohort of  permanent staff. It was submitted  that the records indicate that she got in excess of the guaranteed hours provided for in her contract. The claimant  accepted that Mr.W also worked in other locations –  when the claimant was asked to identify who was treated more favourably than her – she did not respond.

The respondent’s representative advised the claimant that her probation review meeting on the 1st.Feb. resulted in an extension of her probation for 2 months owing to errors. The complainant acknowledged that at the meeting she was told about 2 errors. The claimant was asked if she knew the respondent was unhappy – she replied she did not know.  It was submitted by the respondent  that if  the employer was happy they would not have to  extend her probation. It  was further  submitted that  the claimant knew  she was subject to ongoing review and she responded there was  nobody reviewing her.

The claimant said that a meeting to discuss errors was never mentioned. The claimant said she did not have access to emails on her days off or when she was in . The claimant was asked if she accepted that her rate of pay was equivalent to other VOs .The claimant said she was not taking an equal pay complaint .

The claimant referred to an error regarding PPS details and being reassured by her colleagues  that “ this happens to all of us”.With respect to the complaints re copying and pasting , the claimant asserted that Mr.W showed her how to do it and she followed his instructions. The claimant said it was her understanding that it was R Office she was assigned to – this would address her child care commitments.

The claimant reiterated that  she was advised that she was a valued member of staff and the company did not want to loose her.The claimant  complained of a minimum level of training and said training was never offered to her.

The claimant set out a chronology of the various exchanges with her line manager and colleague Mr.W in relation to the rota. The claimant repeated   that at a meeting with her line manager on the 13th.March 2024 , she was told that she was a valuable member of the X team and they would not like to loose her.

The claimant expressed the view that her line Manager did not like the fact that she had gone to the WRC for advice and contended that her line manager was now showing favouritism to Mr.W – whom she described as her job share equivalent.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties as well as  voluminous documentation. I have considered the respondent’s reliance on alleged performance deficits and the claimant’s defence to same. I am satisfied that in her detailed submissions the claimant has set out clear and cogent explanations for the errors and has presented convincing documentary  evidence to demonstrate that the level of errors attributed to her were not inconsistent with the error rate in other locations and where appropriate has advanced compelling arguments as to the context of the errors – for example when she worked single handed while her colleague was on off leave in February 2024. I found the claimant’s response to the allegations of poor performance to be credible and accept the validity of her contention that a number of the alleged deficits related to matters of policy and procedures that she had not been made aware of and that a number of the errors were attributable to IT and camera errors – which she had brought to the attention of Mr.W – as is evidenced by the WhatsApp records that were submitted. Although Mr.W did not attend to give evidence , the respondent did not dispute the statement in a text from Mr.W to the claimant to the effect that he had never been advised that the company had committed to  a minimum working week of 3 days per week .

The submissions indicate that the process of probation was lacking in formality and paperwork.The meetings invoked by the respondent were not minuted or documented to the claimant. They were belatedly furnished to the WRC at the request of the AO.I note in the respondent’s letter of termination dated the 27th.March , Ms.D  asserts that “On the 13th.March , when discussing the areas of improvement , you were also advised of the potential outcome should standards not be met “.The respondent’s own record of that meeting contains no such provision – giving credence to the claimant’s contention that she was not  on notice of the alleged performance issues.I have considered in detail the emails being relied upon by the respondent  with respect to being on notice of performance issues and note that while explanations were sought and were forthcoming from the claimant there is no indication in any of  the emails from the respondent  that the claimant was on notice that these errors were being viewed as performance deficits   that could potentially jeopardise  her future employment if the errors were repeated. The respondent has repeatedly referenced  the claimant’s failure to complain about inadequate training and have failed to take into account her fears of loosing her job or indeed their obligation as a proactive employer to initiate  a conversation about additional training in response to the alleged performance deficits.  No compelling explanation was  advanced by the employer to excuse their failure to correspond with the claimant , identify the performance issues and put a structured procedure in place to effect an improvement in her performance .

I have considered the respondent’s record of the Probationary Review Meeting of the 26th.March 2024 – in fact 2 versions of the document were submitted.It is evident  from the respondent’s record of the meeting that the respondent had decided in advance of the meeting to effect the termination of the claimant’s employment.The record indicates that after the claimant raised a number of issues in her own defence and referred to the company ‘s record with respect to other workers  and other offices , she was told that she could not discuss anyone else’s error and Ms.D proceeded to advise the claimant that she had not passed her probationary period .There is no record of the respondent’s representatives adjourning to consider the claimant’s defence or to consider an alternative sanction .In these circumstances I must conclude that the claimant was denied her rights under natural justice and that the respondent failed to observe the provisions of SI146/2000.

The claimant has asserted that the termination of her employment was a direct result of her referencing her contact with the WRC in a conversation with her line manager when she ventilated her dissatisfaction with Mr.W’s organisation of the rota which she insisted resulted in her having to make frequent trips to G. This was categorically denied by the respondent who referred to the probation having been previously been extended in February  - owing to errors – and  I note this was   in advance of any mention by the claimant of the WRC.I must also take into account the fact that the respondent was obliged to undertake the final probation review within 6 months of commencement on the 26th.Sept. 2023.I note that in the respondent’s minutes of the 13th.March meeting Ms.D refers to the complainant asking her “ when her extended probation was over “ and she advised her “not until the end of this month, but we will have to have a meeting before this anyway”.The claimant when making her own submissions had no recall of this statement .Given the absence of an agreed minute of these exchanges I am not in  position to conclude definitively which version of events was the more accurate.The claimant’s reliance on the undisputed assurance from her line manager on the 13th.March2024 that she was a valued member of staff was not unreasonable in circumstances where 2 weeks later  - her employment was being  terminated.

In reviewing  the submissions of both parties in the instant case ,  I am taking into account the provisions of SI146/2000 and the application of the provisions contained therein to the parties to this dispute .I am also taking into account the unsatisfactory  response or lack thereof  by the respondent to the claimant’s complaint that her job was advertised before her final appeal was heard ; the claimant’s suggestion that this compromised  the objectivity of the employer’s management of the appeal was not unreasonable in the circumstances .

I am  taking into account the following  recommendations of the Labour Court:

Beechside Company Ltd.T/A Park Hotel Kenmare LCR21798

 “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.” 

In eBay v. A Worker LCR22806 the Labour Court held as follows:

 “The Court has carefully considered the written and verbal submissions it received.  The Court is satisfied on the submissions before it that the Employer failed to adhere to the requirements of the Code of Practice on Grievance and Disciplinary Procedures made under Section 42 of the Industrial Relations Act 1990 and contained in SI 146 of 2000, before the decision to dismiss the claimant was taken.

 The Court has consistently held that an employer is not relieved of the obligation to act fairly during the probationary period and that the requirement of the Code of Practice applies in all circumstances in which a worker is on hazard of having his or her employment terminated.

 Having regard to all these considerations the Court has concluded that the worker was treated unfairly in the manner in which his employment was terminated.” 

 In Hamilton Insurance Dac v. A Worker LCR22710 in January 2023 the Labour Court held as follows:

 “There is no submission before the Court that the worker was notified in advance of her termination that her employment was at risk.  Neither was there a submission before the Court which contended any procedure was followed before arriving at a decision to terminate the employment or that an opportunity was provided to the worker to know of any issues prior to the termination of her employment.  Similarly, there is no submission before the Court that she was afforded any opportunity to defend herself against any charge or contention which could lead to the termination of her employment.

 It is the view of the Court that whenever a worker, including a worker who is on probation, is at the risk of his or her job, it is incumbent on the employer to make the worker aware of the situation and of the reasons.  In addition, where the issue arises from the conduct or performance of the worker, he or she should be afforded an opportunity to address the decision maker in his or her defence. 

 There is no submission before the Court that these basic elements of fair procedures were applied in the case of the worker…”  

Taking the Labour Court determinations on the matter into account , I am satisfied that the claimant was denied her rights under natural justice and that the respondent failed to comply with the provisions of SI 146/2000 – accordingly I am recommending in favour of  the complainant.