ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00055571
Parties:
| Complainant | Respondent |
Parties | Mr. Emiliano Quesada Killian | Druids Glen Hotel & Golf Resort |
Representatives | Ms. Josephine Jameson Roche. | Andrew Vallely, Vallely Legal, instructing Mr. Jason Murray BL. |
Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 7 of the Terms of Employment (Information) Act, 1994. | CA-00067613-001 | 22/11/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00067613-005 | 22/11/2024 |
Dates of Adjudication Hearing: 18/02/2025 and 22/05/2025.
Workplace Relations Commission Adjudication Officer: Elizabeth Spelman
Procedure:
In accordance with section 41 of the Workplace Relations Act 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the Parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Mr. Emiliano Quesada Killian (the “Complainant”), attended the Hearing. Ms. Josephine Jameson Roche represented the Complainant.
Mr. Alan Vallely, General Manager and Mr. Ronan Kenneally, HR Manager of the Druids Glen Hotel & Golf Resort (the “Respondent”) attended on behalf of the Respondent. Mr. Andrew Vallely, Solicitor, instructing Mr. Jason Murray BL represented the Respondent. Ms. Nora Maguire BL also attended.
The Hearing was held in public. The Complainant provided evidence on oath. Cross-examination was allowed. The legal perils of committing perjury were explained.
Hearing Dates:
This matter was listed for two separate Hearing dates:
- 18 February 2025 – The Complainant’s representative took issue with the late filing of the Respondent’s submissions on 17 February 2025. She stated that the Complainant required more time to consider the same. The Respondent submitted that the Complainant previously had sight of the appendices filed. The Respondent also submitted that it was prepared to proceed with its own case. The Respondent submitted that it neither consented nor objected to a postponement.
I considered the Parties’ submissions. I noted that the Complainant had filed his submissions on 13 February 2025 and that the Respondent had filed its submissions on 17 February 2025. I noted that neither Party had complied with the WRC Guidelines as regards filing submissions no later than 15 working days in advance of the Hearing. In the interest of fairness and to allow the Complainant and his representative time to consider the Respondent’s submissions, I granted the postponement application. The Complainant was invited to file any further submissions by way of response by no later than 7 March 2025; and the Respondent was invited to file its final submissions by way of response by no later than 21 March 2025.
- 22 May 2025 – The Complainant and Respondent attended the Hearing and the matter was heard in full.
Evidence regarding the Complainant’s Previous Roles:
At the outset of the Hearing, the Complainant sought to introduce evidence concerning his performance in previous roles with previous employers. The Respondent objected, stating that the evidence was not relevant and could be considered prejudicial.
I considered the Parties submissions and ruled that this evidence was not permitted as it was not relevant to the complaints against the Respondent which were before the WRC.
Evidence of a Covertly-Recorded Meeting:
After closing his case, the Complainant made an application to play a covert recording that he had made of a meeting with the Respondent dated 22 November 2024. The Respondent objected to the application. The Respondent submitted that the Complainant had already made his submissions and presented his evidence. The Respondent further submitted that the purpose of the covert recording was to impugn the Respondent’s credibility and as the Respondent was not submitting oral evidence to contest the Complainant’s evidence, the recording was irrelevant.
I considered the Parties’ submissions and ruled that I would not allow the recording for the following reasons:
- The recording had no probative value: The Complainant had already fully addressed the meeting dated 22 November 2024 in the course of his oral evidence, which was uncontested.
- The recording was not relevant: The recording concerned the Complainant’s final meeting with the Respondent dated 22 November 2024. It did not concern the probationary period extension complaint or the penalisation complaint, which are the complaints before the WRC.
- The Complainant had not provided a proper transcript of the recording in advance of the Hearing, which, if the recording were allowed, would be required.
Post-Hearing Correspondence:
During the Hearing, the Complainant sought to introduce by way of evidence, a letter from the Respondent, dated 16 September 2024. The Respondent raised no objection. Following the Hearing and at the WRC’s request, the Complainant provided a copy of the same letter for the WRC file.
Background:
The Complainant worked as a Food and Beverage Manager for the Respondent from 13 March 2024 until 22 November 2024. The Complainant’s contractual hours were 39 hours per week. The Complainant outlined that he earned €52,000 gross per annum and that he was to receive a €5,000 bonus on completion of his probationary period. The Complainant submitted his Complaint Form to the WRC on 22 November 2024. The Complainant submits that the Respondent applied a period of probation to his contract of employment, in violation of the Terms of Employment (Information) Act 1994, as amended. The Complainant further submits that he was penalised or threatened with penalisation for invoking his rights, or giving notice of his intention to do so, under the Organisation of Working Time Act 1997, as amended.
The Respondent is a five-star hotel and resort and employs approximately 240 employees. The Respondent submits that the Complainant’s probation was extended in accordance with the Terms of Employment (Information) Act 1994, as amended. The Respondent submits that the Complainant’s employment was terminated on the basis that he had failed his probationary period. The Respondent denies that any bonus is payable, as the Complainant failed his probationary period. Further, the Respondent submits that as the Complainant did not commit a protected act, as per the Organisation of Working Time Act, 1997 as amended, it follows that he could not have been penalised for doing so. Finally, the Respondent submits that the Complainant has failed to substantiate his complaints. |
Summary of Complainant’s Case:
The Complainant provided written and oral submissions. Written Submissions: The Complainant submitted that he received “no official review” and / or feedback between the commencement of his employment on 13 March 2024 and a meeting held on 29 July 2024. He stated that during this “official performance review” meeting on 29 July 2024, a “few points” were highlighted by Mr. Joe Carter, the Director of Operations and his Line Manager. These points concerned a requirement to respond to emails more promptly and a requirement to improve his communication with the Financial Controller Department. The Complainant outlined that during the meeting, the Complainant also raised his concerns regarding having to complete tasks not included in his job description. The Complainant submitted that on 16 September 2024 “all of a sudden” he was told by Mr. Carter that his probationary period was being extended for a further three months, but that he had nothing to worry about. He was also informed that he was not responding to emails promptly, specifically to the Finance Department. He was informed that he was required to rewrite the cash handling procedures policy. The Complainant then signed the “Team Member End of Probation Review” document, as requested. The Complainant submitted that he took issue with being informed that his probation was extended “after the deadline”. He further took issue with, inter alia, not receiving “official training or guidance” and that he had not received a letter from HR concerning the extension of his probationary period. The Complainant submitted that he subsequently had a number of meetings with Mr. Carter and with Mr. Alan Vallely, the (then newly) appointed General Manager. The Complainant submitted that he received a number of emails from Mr. Carter and Mr. Vallely. According to the Complainant, the general tenor of most of these meetings and emails, was that his work was not satisfactory. In response, the Complainant outlined that he felt that he was “not being valued” and he also raised concerns regarding high staff turnover. The Complainant submitted that he worked long hours in excess of his contractual hours, for which he did not receive overtime or time off in lieu. He further submitted that on 9 November 2024, he was told by Mr. Vallely, that if he were in the Complainant’s position, he would be coming into work three hours before his shift commenced, in order to impress. The Complainant submitted that on 22 November 2024, he attended a meeting with Mr. Carter and Mr. Vallely. At this meeting, the Complainant was informed that he had failed his probationary period and was asked to “leave on his own terms”. The Complainant resigned and was told to leave the building immediately. Oral Evidence: The Complainant outlined that he received his “first official review” on 29 July 2024, when he spoke with Mr. Carter, the Director of Operations and his Manager. He stated that the meeting was “mostly positive”. He said that his communication with the Financial Controller Department was addressed during the meeting. The Complainant stated that he had not received any other feedback during his first six months. He said that HR did not send him any communication about being required to improve. He stated that he assumed that his probationary period came to an end on 12 September 2024. The Complainant stated that on 16 September 2024, he was called in “for a quick chat” and a “review meeting” with Mr. Carter, who told him, “out of the blue” that his probationary period was being extended. He said that Mr. Carter told him that he had to improve his communication with the Financial Controller Department; and that the Complainant had to ensure that managers were present on the floor at all times. The Complainant stated that he was reassured by Mr. Carter that he did not have anything to worry about. He was also told that a new General Manager would be hired shortly. The Complainant said that he was asked to sign the “Team Member End of Probation Review” document which outlined the question “Has the team member passed their probation?” with one of two boxes to tick. He stated that neither box was ticked. The Complainant stated that he checked with Mr. Carter that he had to sign the document, before doing so. The Complainant stated that he believed that after the meeting, the term “extended” could have been added to the document, by hand. He also stated that the points regarding his performance ratings, referred to on the same document, were calculated incorrectly. The Complainant stated that he called the meeting a “review meeting” as he was told that his probationary period was being extended during the meeting. The Complainant subsequently contacted HR and was provided with a letter dated 16 September 2024 from Mr. Keneally, the HR Manager, which confirmed the probationary period extension. The Complainant referred to an email dated 10 October 2024 from Mr. Vallely, the General Manager, criticising his presentation levels and his restaurant overview. The Complainant stated that Mr. Vallely was not taking into account that he was required to undertake jobs outside of his department. The Complainant referred to other emails from Mr. Carter and Mr. Vallely regarding, inter alia, glasses not being properly polished etc.. The Complainant stated that he felt that “a case was being built against” him. The Complainant outlined that on 9 November 2024, he had a meeting with Mr. Carter and Mr. Vallely. The Complainant stated that during this meeting, Mr. Vallely said that the Complainant was not aware of what was happening in his department. The Complainant stated that he was also asked by Mr. Vallely why he did not attend work until 3pm. The Complainant responded that his shift, as Duty Manager, ran from 3pm until 11.30pm. The Complainant stated that Mr. Vallely told him that if it were his probationary period, he would be in work at 12pm, in order to impress. The Complainant stated that he was already working an extra two hours per day. The Complainant stated that in November 2024, he was told that he would be let go, by an unnamed person. He then spoke with Mr. Vallely on 15 November 2024, who denied it. The Complainant stated that on 21 November 2024, he received an email from HR, in which he was invited to a meeting regarding a review of his ongoing probation. The Complainant took issue with being given only 24 hours’ notice; his right to disconnect; and that he received no guidance concerning the meeting. The Complainant stated that he went to work on 22 November 2024. He subsequently met with Mr. Keneally and Mr. Vallely who informed him that his probationary period had not “work[ed] out”. The Complainant asked for a reason but was not given one. The Complainant was told that something had arisen, but it was not misconduct. The Complainant stated that he was not informed that the reason was poor performance. The Complainant was asked to resign on his own terms, which he did. The Respondent did not provide him with a letter of termination. The Complainant stated that he felt as if he was then escorted off the premises and that he was not given the chance to take items such as his notebook with him. He subsequently contacted the Respondent and asked that his emails be preserved, as he might require them as evidence, but he received no response. The Complainant stated that 12 managers were let go, while he was employed by the Respondent. The Complainant referred to the Monthly Review of Management document dated 15 August 2024. He stated that he was only kept in employment for the Respondent’s benefit. Cross-Examination: Under cross-examination, the Complainant confirmed that his initial probationary period was six months long and that he had worked with this understanding. The Complainant confirmed that he had a review meeting on 29 July 2024. He said that it was “mostly positive”. He confirmed that he was told during the meeting that he was not responding to emails. The Complainant initially denied that he left the meeting, thinking that he could improve his performance. He then stated that he left the meeting thinking that there were “aspects to improve on” such as his communication with the Financial Controller and promptly responding to emails. The Complainant confirmed that he had called the meeting dated 16 September 2024 a “review meeting” as his probationary period was extended during the meeting. The Complainant accepted that the same issues highlighted with him during the meeting on 29 July 2024 such as his communication with the Financial Controller Department and promptly responding to emails, were raised with him again during the “review meeting” on 16 September 2024. He confirmed that other areas, which required “more experience and training” were also raised with him during the meeting. The Complainant confirmed that he signed the “Team Member End of Probation Review” document, acknowledging that he had “continued issues in the workplace”. The Complainant stated that he did not object to signing the document. He stated that his employment “could have been terminated” at that stage. The Complainant later said that he did not know that his employment could have been terminated. The Complainant stated that his salary is a benefit that he receives from working. The Complainant disagreed that despite the same issues being raised during the July and September meetings, that it was to his benefit that his probationary period was extended, instead of having his contract terminated. The Complainant stated that the Respondent treated him unfairly. He stated that the probationary period could only be extended if he agreed to the extension and if it was to his benefit. The Complainant then disagreed that continued employment and salary were to his benefit. The Complainant confirmed that he believed that he was penalised on 9 November 2024 when Mr. Vallely said to him that he should come into work three hours earlier, in order to impress. The Complainant confirmed that he never came into work three hours before his shift commenced and that it was never mentioned to him again that he should come into work three hours before his shift commenced. The Complainant denied that he failed his review in September 2024. He said that he needed “more experience”. The Complainant confirmed that it was his evidence that Mr. Vallely had later told him that he did not know what was going on, on the floor. |
Summary of Respondent’s Case:
The Respondent provided written and oral legal submissions. The Respondent did not provide any witness evidence, submitting that the Complainant had failed to substantiate his complaints. CA-00067613-001 – Probationary Period Extension Complaint: The Respondent submitted that it was lawful for the Respondent to extend the Complainant’s probation and that it did so in accordance with the Terms of Employment (Information) Act 1994, as amended. The Respondent submitted that it was on an exceptional basis and in the Complainant’s interest, that the Complainant’s probationary period was extended. The Respondent further submitted that if the Complainant’s probation had not been extended, the Complainant’s employment would have been terminated. The Respondent referred, in particular, to the following elements of the Complainant’s evidence: · The Complainant confirmed that the same performance issues were raised with him during both his meetings dated 29 July 2024 and 16 September 2024;
· The Complainant acknowledged that his employment could have been terminated in September 2024, but that it was not; and
· The Complainant acknowledged that his salary was a benefit of working. The Respondent was asked to address whether there was a requirement that the probation extension be implemented before the expiry of the initial six-month probationary period. The Respondent submitted that if that “significant onus” was intended by the legislator, it would have been set out in the legislation. The Respondent further submitted that such a process is not outlined in the legislation as otherwise, probation matters would potentially stray into the area of unfair dismissal complaints. Finally, the Respondent submitted that on a clear reading of the legislation, an employer can extend a probationary period up to 12 months, at any point, on an exceptional basis, once it is in the interest of the employee and provided the initial probationary period does not exceed six months. CA-00067613-005 – Penalisation Complaint: The Respondent submitted that the Complainant provided no evidence of committing a protected act, as required by the Organisation of Working Time Act, 1997 as amended. The Respondent submitted that it therefore follows that the Respondent could not have penalised the Complainant. |
Findings and Conclusions:
Probationary Period Extension Complaint – CA-00067613-001: The Law: The Terms of Employment (Information) Act 1994, as amended, (the “TE(I)A”) provides as follows: “Maximum duration of probationary period 6D.— (1) Subject to this section, where an employee has entered into a contract of employment with an employer which provides for a probationary period, such period shall not exceed 6 months. (2) The probationary period of a public servant shall not exceed 12 months. (3) The probationary period referred to in subsection (1) may, on an exceptional basis, be longer where such longer period — (a) does not exceed 12 months, and (b) would be in the interest of the employee.” Findings and Conclusion: The Complainant’s Contract of Employment and the Employee Handbook: The Complainant’s contract of employment states at clause 8: “The probation period will normally last for a period of 6 months. This period may be extended by a period of time, which will not exceed 9 months in total. […] Where a Team Member successfully completes probation, this will be confirmed to them in writing by the Human Resources Manager. Where there are issues which affect a Team Member’s ability to successfully complete probation, then probation may be extended at the discretion of management. Where there are serious misgivings with a Team Member’s fit in the Hotel or their role, then the employment relationship may be terminated at the end of the probation period. In extreme circumstances, it may be necessary to terminate employment during probation, due to the nature of the issue(s) arising.” The Employee Handbook refers to an employee’s probationary period at clause 8.7 as follows: “All new employees are required to satisfactorily complete a probationary period of 6 months. During this period, performance on the job and potential abilities are evaluated to determine suitability for the position and The Resort. […] At the end of this probationary period, a formal performance review meeting will be held between the employee and his or manager and if satisfactory, your position will be confirmed. [The Respondent] reserves the right to extend the probationary period of an employee up to a total of 11 months, should this be deemed necessary and following discussions with the employee, in order to adequately evaluate the individual’s overall suitability”. The Complainant’s Evidence: It was the Complainant’s evidence that he had an “official performance review” meeting on 29 July 2024. He confirmed that he was told during the meeting that he was not promptly responding to emails and that he was not communicating adequately with the Financial Controller Department. While he initially denied that he left the meeting thinking that he could improve upon his performance, he later stated that he left the meeting thinking that there were “aspects to improve on”. It was also the Complainant’s evidence that he had a “review meeting” on 16 September 2024. During this meeting, the Complainant was told, inter alia, that he had to improve upon his communication with the Financial Controller Department; and that he had to ensure that managers were present on the floor at all times. Under cross-examination, the Complainant stated that he did not object to signing the “Team Member End of Probation Review” document during the meeting on 16 September 2024. He also stated that his employment “could have been terminated” at that stage. The Complainant later appeared to change this position and said that he did not know that his employment could have been terminated. This was raised with the Complainant at the Hearing. Finally, the Complainant initially stated that his salary was a benefit of working. He later appeared to change this position. Conclusion: The Complainant had an initial probationary period of six months, which could be extended, as per the terms of his contract of employment and the Employee Handbook. According to the Complainant’s own evidence, the same performance issues were raised with him during his meetings on 29 July 2024 and 16 September 2024. The Complainant was also informed that his probationary period was being extended on 16 September 2024. The Complainant subsequently received a letter from HR which confirmed the probationary period extension. There was no evidence that the Complainant received confirmation in writing from HR that he had successfully completed his probationary period, as per his contract of employment. There was no evidence that the Complainant’s position was confirmed following his probationary period, as per the Employee Handbook. The TE(I)A permits a probationary period, on an exceptional basis, up to twelve months so long as it is in the interest of the employee and so long as the initial probationary period does not exceed six months. In this case, the initial probationary period did not exceed six months. The initial probationary period was extended by three months, bringing the total probationary period to nine months. In his evidence, the Complainant stated that during the meeting on 16 September 2024, his contract “could have been terminated”. The Complainant also stated that his salary was a benefit of working. On the Complainant’s evidence, it is reasonable to find that it was in his interest to extend his probationary period, rather than terminate his employment – and consequently his salary. The Complainant has not shown how the Respondent has acted in breach of the TE(I)A as regards the extension of his probationary period. In the circumstances, I find that the Complainant’s probationary period was extended in compliance with the TE(I)A and that this complaint is not well founded. Penalisation Complaint – CA-00067613-005: The Law: Section 26 of the Organisation of Working Time Act, 1997 as amended, (the “OWTA”) provides: “Refusal by an employee to co-operate with employer in breaching Act. (1) An employer shall not penalise or threaten penalisation of an employee for— (a) invoking any right conferred on him or her by this Act, (b) having in good faith opposed by lawful means an act that is unlawful under this Act, (c) giving evidence in any proceedings under this Act, or (d) giving notice of his or her intention to do any of the things referred to in the preceding paragraphs. (2) Subsection (1) does not apply to the making of a complaint that is a protected disclosure within the meaning of the Protected Disclosures Act 2014. (3) In proceedings under Part 4 of the Workplace Relations Act 2015 in relation to a complaint of a failure to comply with subsection (1) it shall be presumed until the contrary is proved that the employee concerned has acted reasonably and in good faith in forming the opinion and making the communication concerned. (4) If a penalisation of an employee, in contravention of subsection (1), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to 2015, relief may not be granted to the employee in respect of that penalisation both under this Act and under those Acts. (5) In this section "penalisation" means any act or omission by an employer or a person acting on behalf of an employer that affects an employee to his or her detriment with respect to any term or condition of his or her employment, and, without prejudice to the generality of the foregoing, includes— (a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2015), or the threat of suspension, lay-off or dismissal, (b) demotion or loss of opportunity for promotion, (c) transfer of duties, change of location of place of work, reduction in wages or change in working hours, (d) imposition or the administering of any discipline, reprimand or other penalty (including a financial penalty), and (e) coercion or intimidation.” Findings and Conclusion: It was the Complainant’s evidence that he was penalised on 9 November 2024 when Mr. Vallely told him that he should come into work three hours earlier, in order to impress. The Complainant confirmed that he never came into work three hours before his shift commenced. He also confirmed that it was never mentioned to him again that he should come into work three hours before his shift commenced. The Complainant provided no evidence of committing a protected act as outlined under the OWTA. The Complainant has not shown how the Respondent acted in breach of section 26 of the OWTA. In the circumstances, I find that this complaint is not well founded. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under schedule 6 of that Act.
CA-00067613-001 – Probationary Period Extension Complaint: For the reasons set out above, find that this complaint is not well founded. CA-00067613-005 – Penalisation Complaint: For the reasons set out above, find that this complaint is not well founded. |
Dated: 18th September 2025.
Workplace Relations Commission Adjudication Officer: Elizabeth Spelman
Key Words:
Terms of Employment (Information) Act 1994, as amended; Probationary period; Organisation of Working Time Act, 1997 as amended; Penalisation. |