ADJUDICATION OFFICER Recommendation on dispute under Industrial Relations Act 1969

Investigation Recommendation Reference:  IR-SC-00003333

Parties:

Dispute:

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Date of Hearing:              19/02/2026

Procedure:

In accordance with Section 13 of the Industrial Relations Act 1969 (as amended)following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any information relevant to the dispute.

Background:

The Worker claims he was unfairly dismissed.  He does not have 12 months service.

Summary of Workers Case:

Extensive written submissions were made on behalf of the Worker, summarised as follows:

A comprehensive report documenting the circumstances surrounding the dismissal of the Worker from his position on 25 October 2024 was submitted which analysed: 

• The procedural failures in the dismissal process
• The substantive unfairness of the dismissal
• The applicable legal standards
• The ongoing impact on the Worker

It was submitted that the Worker was summarily dismissed from the employment on 25 October 2024 without:

• Any prior warnings (verbal or written)
• Any performance improvement plan or opportunity to improve
• Any investigation into alleged performance issues
• Any disciplinary hearing or meeting
• Any right to respond to allegations
• Any right to be accompanied
• Any right of appeal
• Any written reasons for dismissal

It is alleged that the dismissal was characterised by verbal abuse and intimidation by Mr M (Director). The manner of dismissal caused significant psychological harm to the Worker, the effects of which continue to the present day.

An updated report (February 2026) documents the ongoing and worsening impact of the unfair dismissal, including: 

• Pattern of job instability (4 jobs in 16 months)
• Second dismissal from employment (February 2026)
• Ongoing psychological harm
• Current unemployment

The Worker was employed as a Customs Agent, a specialised role requiring:

• Knowledge of customs procedures and regulations
• Completion of customs declarations
• Liaison with Revenue and border authorities
• Customer service and communication

The Worker received initial training from a colleague who was supportive and encouraging.

He actively sought to contribute to the company:

Stayed late to complete paperwork 

Took on additional duties including health certificates and veterinary liaison

Never shied away from challenging jobs

Sought to “pull his fair share”

During his employment, the Worker experienced: 

• High-pressure working conditions
• Verbal abuse from the Director on multiple occasions
• Lack of adequate training for all aspects of the role
• Additional duties assigned beyond his original job description

EVENTS LEADING TO DISMISSAL

A number of incidents were recounted including an abusive Friday evening phone call from the Director about paperwork regarding horses, and an abusive phone call on another occasion.

The Dismissal – 25 October 2024

The Worker was called in early to the office and was expecting to get a performance review and maybe a step by step guide on how to improve. Instead he got horrible and foul mouthed abuse from the Director.

During this meeting: 

• The Director accused the Worker of not caring about the company or job
• No specific performance issues were outlined
• No opportunity was given to respond or improve
• No disciplinary procedure was followed
• The Worker was dismissed on the spot

The Worker contends that he went above and beyond what was required of him, staying late to complete paperwork and although he admits to having made mistakes, he was not given a chance to improve.

The Written submission contained a number of procedural failures including no Written disciplinary policy, no Investigation before disciplinary action, no notification of allegations in writing, no opportunity to respond to allegations, no disciplinary hearing, no verbal warning, no written warnings or right to appeal. 

The Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order 2000 (S.I. No. 146/2000) establishes minimum standards for disciplinary procedures.

None of the natural justice requirements contained in the code of practice were observed.

The Worker’s representative made extensive submissions on the outcome of the dismissal, the affect on the Worker and the losses in income.  Further submissions were made regarding DSAR issues and also a reference to the fact that there was an appeal but this was not considered a genuine process.

Summary of Employer’s Case:

The Complainant was employed as a Customs Clearence Agent for the company.

It is submitted that the Complainant had some difficulty with the IT software used by the Company. 

The Complainant made a procedural error valued at €900.00, and this error was acknowledged by the Respondent.

The Respondent denies that they ever blamed the errors of other employees on the Complainant.

The Complainant submits that on 24 October 2024, Director Mr. M contacted the Complainant in relation to the pay discrepancy that occurred as part of the procedural error.

The Respondent wholly denies that Mr. M ‘verbally abused’ the Complainant and rather, this phone call was made in order to find out what had occurred.

The Complainant refers to the dismissal meeting that took place on 25 October 2024, the Complainant was informed that he was being dismissed due to performance reasons.

The Respondent submits that the Complainant was issued a dismissal letter dated 25 October 2025.

On the same day, the Complainant lodged an appeal, the appeal process was included in the dismissal letter and emphasised that: “You have a right of appeal against my decision, and should you wish to do so you should write to (Mr M) within 5 days giving the full reasons as to why you believe your dismissal was either inappropriate or too severe.”

The Respondent submits that the dismissal was communicated to the Complainant on 25 October 2024, and the date of termination was 30 November 2024.

Appeal

The Complainant chose to appeal this decision on the same day of his dismissal in an email to the Directors.

The Respondent hired a third party, external HR company to conduct the appeal process for the Complainant.

On Tuesday, 14th Jan 2025, the HR company conducted the appeal hearing.

During this hearing, the Complainant was accompanied by his Representative to discuss the appeal. The Representative provided the grounds for the appeal and provided the HR company with additional information in January 2025.

In the appeal outcome letter, it was emphasised that the Complainant that the terms of his signed contract of employment provide for a probationary period of 6 months and states:

“during this period your work performance and general suitability will be assessed and, if it is satisfactory, your employment will continue. However, if your work performance is not up to the required standard, or you are considered to be generally unsuitable, we may either take remedial action or terminate your employment at any time” and that “we reserve the right not to apply our full contractual capability and disciplinary procedures during your probationary period”.

In addition to this, the appeal hearing highlights that the Data Subject Access Request (DSAR) falls outside the scope of the appeal hearing.

The Respondent refers to case law as follows:

The Irish High Court decision Anna Buttimer v Oak Fuel Supermarket Limited(Costcutter Rathcormac) [2023] IEHC 126, which confirms that dismissal during probation on grounds of misconduct requires the employer to provide fair procedures, even if the contract excludes disciplinary procedures during probation.

By contrast, the more widely discussed High Court decision in O'Donovan v Over C Technology Limited & Anor [2020] IEHC 291, the Court of Appeal held that in cases of performance based dismissal during probation—where the contract expressly allows termination without cause—no implied right to fair procedures applies, whereas if the dismissal is for misconduct, natural justice must be observed.

It was held that an employer is not under a strict obligation to apply fair procedures where the dismissal is for performance issues and not misconduct.

There was no evidence in relation to any misconduct. The only evidence in relation to the termination was due to poor performance. This has been very clearly outlined on the dismissal letter.

The Employer’s position is that the Worker had less than one year’s service, that he did not perform to the standard required in his role and that he was dismissed from the employment because of poor performance and because he did not have the skills and ability to perform the role for which he was employed.  He was given the right to appeal and the appeal was carried out by a professional third party.

The MD stated that he had very little direct contact with the Worker so could not understand why he was accused of being abusive towards him.  Some losses were incurred by the Worker’s mistakes so his employment could not be sustained.

Conclusions:

The Worker in this case was in the employment for in or around three months.  He clearly had some performance problems and the Employer was understandably frustrated with the repercussions.  He was called in for a “chit chat” on 25 October 2024 and was ultimately dismissed from his employment.  The letter terminating his employment stated that due to his short service, the usual procedures would not apply and he was dismissed for not having the basic skills to do the job.

However, I note the Company’s own procedure under “Capability & Competence”, states:

We reserve the right to take into account an employee’s length of service and to vary the procedures accordingly. If you have a short amount of service you may not be in receipt of any formal warnings before dismissal. However you will retain the right to a formal disciplinary hearing, the right of representation and the right to appeal.

The Worker was not given a formal disciplinary hearing and I find it was a breach of natural justice to dismiss him on foot of a “chit chat”.  In the circumstances, the Employer failed to follow the basic principles set out in S.I. 146/2000 and indeed their own policy.  I find that in order to draw a line under this dispute and for both sides to move on, the Employer should offer the Worker a compensatory sum of €2,000 in settlement of the issue.

Recommendation:

Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation in relation to the dispute.

Based on the conclusions and reasons above, I recommend that the Employer should offer the Worker a compensatory sum of €2,000 in settlement of the issue.

Dated:   17-04-26

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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