Worker

Employer

Anonymised Parties

A Technical Writer

A Software Company

Representatives

Self-Represented

  written Submission only

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 - 00004078

04/04/2025

The Worker was a Technical Writer employed by a major Software Company. The employment commenced on the 1st November 2024 and ended on the 10th March 2025. The Worker is making a claim for Unfair Dismissal.

The rate of pay was stated by the Worker to have been €5,515 Gross per month for a 40-hour week.

The Worker gave an oral testimony supported by extensive copy Employer documents.

She was Dismissed towards the end of her Probationary Period. No proper Employment or fair HR procedures were followed in what was alleged to have been a very arbitrary Management decision.

She alleged that she did not receive proper training or support in the areas of her performance that the Employer referenced in the Dismissal discussion on the 10th March 2025.

Initially, in late 2024, she had received positive feedback from her close colleagues -she was given a Managerial rating of 95% and a Bonus payment.

The dismissal was unfair and deprived the Worker of any rights to argue her case or suggest how she could meet the Employer standards.

She did not dispute the fact that her Contract had a Probation clause.

The Employer indicted that they were not attending the Hearing in Person as they felt that the case was “misconceived” under the Industrial Relations Act,1969. The Act was designed to resolve Industrial Relations disputes and not as an alternative to the Unfair Dismissals Act, 1977.

None the less, the Employer submitted a comprehensive Written submission on both the Non-Attendance issue and the Dismissal. It was supported by numerous appendices dealing with the Performance situation.

The essence of the Employer case was that the Worker was on a Probation Period in her contract. She had acknowledged this in her WRC complaint form.

The Employer had serious issues with her performance and had decided to end her probation and not continue her employment on that basis.

The landmark Probation case of O’Donovan v Over -C-Technology Limited IECA 37 was extensively quoted to sustain the positon that an ending of employment for performance issues alone, during probation, was legally acceptable. Ms Justice Costello, in the above case, was quoted at length.

The performance of the Worker had failed to meet required standards. She was not deemed suitable for continued employment.

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

It was not accepted by the Adjudication Officer that the case was, in some way, “misconstrued”. Numerous Unfair Dismissal cases, where the Worker does not have the qualifying employment service of 12 months for the Unfair Dismissals Act,1977, are accepted as “Disputes” and referred to the WRC under the Industrial Relations Act,1969. The case proceeded on this basis.

Regarding the main basis of the Dispute the Adjudication Officer had to take cognisance of the O’Donovan v Over -C-Technology Limited IECA 37 Appeal Court case. Ms Justice Costello carefully distinguished between Probation cases involving Misconduct and cases where the Performance or Failure to Perform to Work to Employer requirements was the deciding factor.

In Performance cases the Employer right to end an employment was Legally acceptable.

In this case the extensive documentation supplied indicated a serious performance issue.

However, this was not supported by any Employer attendance. No Worker cross examination of the material/evidence submitted was possible.

As the case was under the Industrial Relations Act,1969 and no sworn testimony was required the Adjudication Officer had to decide on the balance of probabilities.

The conclusion has to be that the Probation Dismissal on the grounds of Performance was not in itself, at first review, Unfair.

However, the well canvassed non-attendance of the Employer at the WRC Hearing was procedurally improper and could only result in the case being decided in the Worker’s favour. The rules of Natural Justice have to be observed.

Accordingly, the Dismissal was rendered Procedurally Unfair by the deliberate non-attendance of the Employer at a properly constituted WRC Hearing.

(It is important to note that the Employer did not object to the Hearing under the formal Objection provisions of Section 36(1) as advised by WRC letter, to them, dated the 7th April 2024)

Probation, Unfair Dismissal dispute, Non-Attendance.