Worker

Employer

Anonymised Parties

Clerical Officer

Health Service

Representatives

Mr. Michael Kerrigan, Fórsa Trade Union

Self-Represented

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 - 00003152

19/09/2024

On 19th September 2024, the Worker referred the present dispute to the Commission. Herein, he alleged that his dismissal on the grounds of failed probation was unfair, in that it did not consider a lack of training provided and reasonable accommodation sought by the Worker. By response, the Employer submitted that the dismissal of the Worker occurred in compliance with their internal probationary policy, and that all accommodations were considered in the course of his employment.  

Following the Employer’s positive election to engage with the dispute within the statutory timeframe, the matter proceeded to hearing. Said hearing was convened for, and finalised on, 25th November 2025. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced during the hearing.

Both parties issued extensive submissions in advance of the hearing. Said submissions were expanded upon and contested in the course of the hearing.

No issues as to my jurisdiction to hear the disputes were raised at any stage of the proceedings.

By submission, the Worker stated that he commenced employment on 3rd July 2023. At all material times, his role was described as that of a “clerical officer”. The duties of the Worker involved the registration of patients for various clinics and appointments, as well as telephone reception duties. Although the role was fast paced, the Worker stated that he managed the workload effectively and enjoyed the work. On 4th September 2023, the Worker was reassigned to a different unit within the Employer. He submitted that he received approximately two hours of initial instruction from his line manager, who provided printed screenshots of the computer system and advised that he should follow those printouts. The manager in question then spent a further fifteen minutes with him at his desk before advising him to consult colleagues if he had any further queries. No structured or formal training programme was provided at this or any other time.

In October 2023, the Worker passed his three-month probation interview. In December 2023, the Worker began to experience fatigue and felt unwell, with symptoms associated with a relapse of a chronic condition which he had disclosed during the recruitment process. Upon his return from the Christmas break, the Worker submitted that his symptoms persisted. Thereafter, he was placed on sick leave on 9th January 2024 and was informed that he required an assessment by the occupational health department of the Employer. The Worker attended an appointment with occupational health on 20th February 2024. At this appointment, the Worker was advised that he should no longer engage in heavy lifting, and other restrictions were provided in relation to his employment. The Worker stated that upon his return to work, he felt he was being closely monitored and micromanaged, and that management appeared to be actively scrutinising his work in a manner he had not previously experienced.

On 22nd March 2024, the Worker attended a rehabilitation meeting with human resources and his line manager. He explained that although he was managing his symptoms, the fast pace in the unit was difficult following the relapse of his chronic condition. This was not acknowledged by the Employer, and he was advised simply to rely on the notes he had previously been provided. Thereafter, on 29th March 2024, the Worker attended his eight-month probation meeting and was advised that he had failed his probation. The Worker stated that he felt this outcome was predetermined and that neither the impact of his chronic condition, the relapse of the same, nor the information he provided at his rehabilitation meeting was considered.

Thereafter, on 16th May 2024, the Worker attended a further meeting, accompanied by union representatives. During this meeting, he was presented with a list of alleged errors undertaken on his behalf; he maintained these were minor and common and did not constitute risks to patients. He was informed that his position was at risk. The Worker waited a further nine days for the outcome of this meeting. Thereafter, on 27th May 2024, he was contacted and told his contract was terminated and that he could appeal the decision in accordance with internal procedures. Whilst the Worker engaged with the appeal, the initial decision stood. When he queried the inadequacy of the training he received, the hospital manager stated that there was no budget for training. When he inquired as to whether other staff were being monitored to the same standard, no answer was provided.

By submission, the Worker stated that he was denied a fair and reasonable probation process. In this regard, he asserted that the Employer failed to provide adequate training, failed to support him when recovering medically following the relapse of his chronic condition, and failed to follow the policies of the organisation regarding probation, performance management, and reasonable workplace support. The Worker submitted that following his return from sick leave, he experienced heightened scrutiny, micromanagement, and what appeared to be active fault finding. In this regard, the Worker submitted that common clerical errors were used to justify his dismissal. It was also submitted that reasonable accommodations in these circumstances would have included a potential move to a role that was not fast paced or difficult to manage alongside his symptoms. In light of the accumulation of these points, the Worker submitted that a recommendation should issue in his favour.

The Employer accepted that the Worker commenced employment as a clerical officer on 3rd July 2023. It was further accepted that the Worker successfully completed his three-month probation period.

On 10th January 2024, following a period of certified sick leave, the Worker’s line manager referred him to an occupational health for review to support his return to work. In this regard, the line manager expressed concern for the Worker, noting that he appeared slow during the performance of his tasks. The Worker informed his line manager that he experienced fatigue and a flare up of an existing chronic condition. Thereafter, the Worker commenced a period of certified sick leave.

Upon his return to work, on 23rd February 2024, the line manager met with the Worker to discuss a rehabilitation plan. The Worker stated that he felt well and was pleased to return. The line manager implemented the rehabilitation plan and reasonable accommodations as outlined by occupational health report, which included reduced hours in a phased return and the removal of manual handling duties. The line manager also offered ongoing support regarding any issues that might arise.

Approximately one week later, on 1st March 2024, the line manager received notification of alleged errors made by the Worker. At this time, the line manager spoke with the Worker regarding these errors and the relevant methods for rectification of the same.

Thereafter, on 8th March 2024, a further meeting was held in accordance with the rehabilitation plan. Whilst the Worker advised that he felt tired, he stated he was generally well. The line manager discussed the errors that arose in the previous weeks and others identified during his sick leave. These matters were discussed in detail, with the line manager stated that an improvement was required and again advising the Worker to request any necessary support or training. When further errors were identified on 19th March 2024, the Worker was provided with refresher training.

On 22nd March 2024, the line manager and the human resources manager met with the Worker to sign off on the rehabilitation plan. The Worker advised that he was managing his symptoms well. When asked if he required additional support, the Worker replied that the line manager was supportive and consistently reviewed errors and training with him. The Employer again inquired as to whether further supports were required to meet management standards, and confirmed such supports would be facilitated.

On 31st March 2024, the Worker’s probation assessment form was completed, and the Worker was marked as less than satisfactory in the categories of knowledge, planning, and organising. The line manager confirmed via email that she advised the Worker that he had failed his probation. Following a further period of sick leave in late April, the Worker was invited to a probation review meeting on 16th May 2024 to review the assessments and the remedial supports provided.

On 21st May 2024, the Worker requested consideration of reasonable accommodation in respect of the probation review. On 27th May 2024, the Employer issued the outcome of the assessment, finding that despite regular support and training, the Worker failed to demonstrate suitability for the role. Consequently, the Employer elected to terminate the employment in accordance with the probationary clause within the Worker’s contract of employment. Following an unsuccessful internal appeal, the dismissal stood.

In summary, the Employer stated that the Worker received frequent one to one meetings, feedback, and corrective guidance throughout his employment. It was maintained that on review of the assessments in their entirety, the Worker was deemed unsuitable for the role. Accordingly, the Employer requested that a recommendation should not issue in favour of the Worker.

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

Regarding the present dispute, the Worker submitted that his probationary dismissal was unfair and asserted that he was not provided with adequate training. He further maintained that reasonable accommodations were not sufficiently considered and that inadequate feedback was provided during the course of his employment. In response, the Employer stated that it adhered fully to its own probationary policy. The Employer claimed that multiple meetings were attended in respect of the same, including one to one meetings regarding performance issues and formal meetings under the probationary policy. During these formal meetings, matters that contributed to the Workers’ dismissal were put to him, who was entitled to provide a response. They further submitted that the Worker was granted a full de novo appeal.

In this regard, employers are frequently criticised in this forum for failing to engage in adequate probationary review meetings. In the matter of Beechside Company Limited t/a Park Hotel Kenmare -v- A Worker LCR21798 the Labour Court held 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.”

Likewise, in the matter of Hamilton Insurance DAC v A Worker LCR22710, the Court stated 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.”

Regarding the present dispute, it is apparent that the Employer adhered to its own probationary policy, with multiple formal and informal meetings being arranged to address the issues at hand. In this regard, the Worker received a three-month probationary review meeting, the outcome of which appeared to be satisfactory. Thereafter, various issues arose regarding the performance of the Worker in his role, which were contemporaneously addressed by the line manager. It was expressly stated by the line manager that these issues existed and that improvement was required. It is further apparent that the issues in question persisted until the date of the eight-month probationary review. In the course of the review meetings, these issues were again put to the Worker, who was permitted to provide a response while accompanied by his trade union representative.

While the Worker takes issue with the outcome of this procedure, it is apparent that the process was broadly conducted in accordance with the internal procedures of the Employer. The Worker was informed of the issues, provided with an opportunity to rectify them, and was subsequently informed of the matters that might lead to termination on probationary grounds in a formal setting.

By submission, the Worker further stated that the Employer failed to make reasonable accommodations in respect of a chronic condition that persisted throughout the latter part of his employment. He submitted that the failure to provide such accommodations directly impacted his ability to pass probation and should have been considered regarding the final outcome.

In this regard, it is apparent from the submissions that the Worker commenced a period of certified sick leave following a recurrence of a chronic condition. Thereafter, the Worker was referred for an occupational health assessment, on foot of which various reasonable accommodations were suggested. The Worker then engaged in a rehabilitation plan with the Employer, during which these accommodations were discussed and implemented. On at least two separate occasions, the line manager discussed the implemented accommodations with the Worker and inquired whether further supports were required. On both occasions, the Worker stated that he was managing his condition and that the accommodations were effective.

While the Worker raised further issues regarding reasonable accommodation following the decision to terminate his employment, the appropriate time for raising such matters was in the course of his employment, rather than as a ground of appeal against the probationary review. Finally, the Worker submitted that he did not receive adequate training for the role. It is noted that the Worker did receive initial training at the commencement of his duties, and further training was offered during his employment. Consequently, it is not found that this alleged failure constituted a fundamental flaw in the probationary process.

In summary, while the Worker takes issue with the outcome of the probationary procedure, it is found that the process was broadly conducted in respect of the internal procedures of the Employer and in compliance with the principles of natural justice. While the outcome might be deemed harsh, and although a reasonable employer could well have reached a different conclusion based on the available information, it is not the case that the procedure adopted was unfair or that the outcome achieved was irrational. Having regard to these factors, while it is not difficult to have sympathy for the Worker, a recommendation will not issue in his favour regarding the present dispute.

Probationary Dismissal, Reasonable Accommodation, Training