Worker

Employer

Anonymised Parties

A Worker

A Health Service Provider

Representatives

Martina Weir SIPTU

 Industrial Relations Officer 

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

IR - SC - 00002183

02/02/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

IR - SC - 00002197

08/02/2024

The claimant was employed as a Multi Task Attendant with the respondent from the 1.11.2022 to the 24th.October 2023.It was submitted that the claimant was dismissed without warning on the 3rd.Oct. 2023 only a few weeks after receiving a permanent contract of employment  and with an outstanding performance review yet to take place.It was submitted that the claimant was paid in lieu of notice bringing his termination date to the 24thOctober 2023 and was not afforded any opportunity to arrange representation or obtain advice from his union.

The claimant acknowledged that he had incurred health challenges during his period of employment  and advised that he had sought appropriate treatment to address his health issues – these had culminated  in  complaints about his attendance  and led to close monitoring of his performance by his line managers.The claimant was initially assigned a Fixed Term Contract of Employment commencing on the 1st.Nov.2022 with an expected end date of the 31st.Oct. 2023.This provided for a probationary period of one year.

On the 19thSeptember 2023 the claimant signed  a permanent contract of employment  which specifically stated that “The Probationary Period does not apply to his contract of employment”. The union invoked the provisions of UD726/2007 Noeleen Keeshan v HSE Dublin / MidLeinster  and CD/05/445-AD066 Dunlaoghaire Rathdown County Council and A Worker 2020 in support of their contention that the claimant was unfairly treated,  that the sanction of dismissal was disproportionate and that the respondent had failed to observe their own disciplinary procedures in effecting the claimant’s dismissal..

The respondent submitted that during the claimant’s  employment , a temporary to permanent review of contracts commenced for all staff at the hospital arising from which the claimant was offered a permanent contract as he was occupying a permanent vacancy.He completed the required clearances for a permanent contract .The respondent submitted  that owing to human error the claimant ‘s permanent contract included a provision that there was no probationary period required.

The respondent set out a chronological account of the claimant’s performance and attendance pattern covering the period of his employment . The respondent acknowledged  that while on duty   the claimant  was a good worker but having regard to his absence record  unless there was  a significant improvement in attendance ,  the manager would have no choice but to let him go. In the respondent’s chronology of events and absences, it was submitted that on the 3rd.October 2023  a probation review was held and the claimant was issued with a verbal termination of employment due to an satisfactory attendance record .

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties. Having reviewed the submissions of the parties , I accept the merits of the union’s argument that the respondent acted unfairly in imposing a probationary period notwithstanding that the contract issued by them specifically exempted probation .I further accept that the respondent should have engaged with the claimant and his  union  when this  administrative error came to light. I  accept  that the respondent bypassed the provisions of their own procedures by failing to conduct a disciplinary hearing , by not affording the claimant a right to be represented when he was verbally dismissed on the  3rd.October 2023 , by not affording the claimant a right of appeal and by not considering alternative sanctions to termination of employment .I am satisfied that the provisions of SI/146/2000 were not observed by the respondent.I believe my findings in this regard are consistent with the principles set out in LCR21798 where the Court found that

“ 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 all of the circumstances I consider a compensatory sum of €9,000 to be the appropriate remedy.I recommend the payment of €9,000 to be paid to the claimant  in full and final settlement of this dispute .For the avoidance of  doubt this award of compensation is not subject to deductions for PAYE, PRSI, or USC.