Worker

Employer

Anonymised Parties

A sheet metal worker

A construction company

Representatives

Self-represented   

Eva Dendrinou, CIF

Act

Dispute Reference No.

Date of Receipt

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

CA-00080697-001

12/02/2026

The Worker commenced his employment with the Employer on 6 October 2025. His employment terminated on 11 February 2026.

On 12 February 2026, the Worker referred his dispute to the Director General of the WRC alleging that he was unfairly dismissed, and he did not have at least 12 months service.  The background to this dispute relates to a dismissal during a probationary period. 

The Worker alleged that he reported bullying and aggression and, without any investigation of his complaint, he was dismissed on the next day.

At the adjudication hearing, the Worker submitted that he reported a case of bullying by way of a WhatsApp message to the Ducting Manager who then dismissed him. On the next day there was an incident involving the person he had reported which strengthened his claim.

The Worker submitted that he sent a WhatsApp message to the Ducting Manager on 11 February 2026 at 7:46am stating:

“Listen pal ye wanna have a word wit that [name] fella roaring an shouting and calling people owlones this morning cause we asked we’re a tool bag was.”

The Worker asserted that subsequently at 8:08am he sent a WhatsApp voice message to the Ducting Manager lasting 25 second where he allegedly reported that the Line Manager was “bullying people”.

The Worker denied that he admitted to the Ducting Manager that he had asked the Line Manager to step outside. He asserted that he had never said anything like that to the Line Manager.

The Worker accepted that he received his contract and was aware of the Dignity at Work policy.

The Worker confirmed that he commenced new employment on 12 February 2026.

The Employer submits that the Worker was dismissed on 11 February 2026 following an unsuccessful probationary period. The Employer followed its internal process in doing so.

The Employer submits that the Worker was forewarned multiple times during his employment that his timekeeping as well as his mobile phone usage were unacceptable. These reasonable managerial instructions were given by the Ducting Manager and were addressed verbally on the spot.

The Employer submits that the Worker received a copy of the Employer’s policies and procedures, including the policy on bullying. At no point during his employment did the Worker raise bullying complaints to any member of management.

On 11 February 2026, the Ducting Manager received a call from the Worker’s Line Manager reporting that the Worker asked him, rather aggressively to “step outside”. This was reported in the context of a physical altercation.

Following the call, the Ducting Manager, while on the road, contacted the HR department, which advised him that, if allegations against the Worker were true, it would constitute gross misconduct and could result in the failure of his probation.

The Ducting Manager called the Worker shortly after and during the call he asked the Worked whether the allegations made by his Line Manager were true.

The Worker admitted that he, indeed, challenged his Line Manager to a fight. The reason that the Worker provided was that his Line Manager called him “oul one”. The Ducting Manager, acting within reason, informed the Worker that his behaviour was unacceptable and as a result he would not pass his probation.

A letter of termination due to failed probation was issued to the Worker on 12 February 2026.

On the next day, the Worker’s Line Manager was dismissed due to an altercation with another employee. The Worker is alleging that the fact that his Line Manager was involved in unrelated incident the next day of his dismissal, supports his allegation of bullying by the same Manager.

The Employer submits that it acted within the range of reasonable response based on the evidence available at the relevant time. At no point during his employment had the Worker raised a complaint of bullying. Accordingly, the Employer considered that the Worker was the only party liable for acts amounting to gross misconduct.

The Employer submits that when the Line Manager was also found to have breached the Employer’s policies, he was also dismissed. `

The Employer acknowledges that this matter has been taken under the Industrial Relations Act. However, for the purposes of the unfair dismissal allegations, the Employer refers to the Unfair Dismissals Act, 1977, as amended which at section 6 states that the dismissal of an employee shall not be deemed unfair, for the purposes of the Act, if it results wholly or mainly from the following:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

The Employer submits that the Worker was dismissed on the basis of overall behaviour and continuous breaches of the Employer’s procedures.

The Employer submits that it acted reasonably in dismissing the Worker. Dismissal was within the range of reasonable responses, especially taking his length of service into consideration. The Worker worked for the Employer for some four months and had already exhibited behaviours that called his performance into question. The dismissal was based on the Worker’s admission that he challenged his Line Manager to a fight.

At the hearing, the Ducting Manager said that he received the Worker’s text. He did not get a chance to respond, when he received a phone call from the Worker’s Line Manager about the Worker’s aggressive behaviour. The Ducting Manager said that he did not receive the Worker’s voicemail.

The Employer submitted that in accordance with the Employer’s policy and the contract, the Employer had a right to deviate from the probation and dismiss the Worker. It was submitted that bullying is a repeated behaviour. However, at no stage during his employment did the Worker make any complaints about his Line Manager. It was further suggested that the Worker’s text to a senior manager starting with “Listen pal…” suggested “venting” rather than reporting bullying.

Notwithstanding the fact that this is an industrial relations dispute, the Employer relied on the following caselaw: Barry v Precision Software Ltd. UD 624/2005; Quigley v Complex Tooling & Moulding Ltd, Travers v MBNA Ireland Ltd UD 720/2006; Looney & Co. Ltd. V Looney UD843/1984.

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

It is recognised that the purpose of a probationary period at the commencement of employment is to enable an employer to assess an employee’s suitability for the role and to identify and address any performance-related concerns. The probationary period provides the employer with an opportunity to evaluate the employee’s progress and integration into the position. In this context, an employer is expected to adopt a structured and transparent approach to the management of probation. Where concerns regarding performance arise, such matters should be addressed through a formal performance management process, incorporating clearly defined performance objectives, regular review meetings, and a performance improvement plan designed to provide the employee with a reasonable opportunity to achieve the required standards.

Probationary review meetings should be conducted throughout the probationary period to provide the employee with timely and constructive feedback on all relevant aspects of their performance, while clearly identifying any areas requiring improvement. Where performance concerns arise, the employer should explicitly communicate these concerns and advise the employee that continued failure to meet the required standards may place the successful completion of probation at risk. At a minimum, an employer must notify the employee of any deficiencies in performance, outline the improvements required, and clearly communicate that failure to achieve the expected standard may result in the termination of employment.

Whilst a worker with less than 12 months service does not enjoy the protections of the Unfair Dismissals Acts, the fact that a worker is on probation does not negate or obviate their entitlement to fair procedures. 

The Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order 2000 (S.I. 146 of 2000), which promotes best practice in the conduct of grievance and disciplinary procedures, emphasises the importance of procedures to ensure fairness and natural justice. 

The Code of Practice emphasises that good practice entails a number of stages in the disciplinary and grievance process as follows:    

·         That employee grievances are fairly examined and processed.

·         That details of any allegations or complaints are put to the employee concerned.

·         That the employee concerned is given the opportunity to respond fully to any such allegations or complaints.

·         That the employee concerned is given the opportunity to avail of the right to be represented during the procedure.

·         That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors, circumstances.

The success or failure of a worker’s period of probation is entirely a matter for an employer to determine. It is not my function to substitute my view for that of an employer.  My role is limited to an examination of the manner in which the termination of employment was undertaken by an employer.  

The WRC and the Labour Court have consistently held that an employer is required to follow fair procedures before it decides to impose a disciplinary sanction on a worker or to dismiss a worker.

In reaching my conclusions in this dispute, I am mindful of the recommendation of the Labour Court in LCR22391 C&W O'Brien Architects v A Worker, where the Court took into account the provisions of the Code of Practice which, in the words of the Court: “emphasises the importance of ensuring that an employee is aware of any disciplinary procedure which is initiated in respect of her and to know any case being made against her and to have a fair opportunity to respond to any such case. The Code also emphasises the importance of the availability of an internal mechanism wherein a sanction which has been imposed can be appealed.”

In eBay v. A Worker LCR22806 the Labour Court held as follows:

“The Court has consistently held that an employer is not relieved of the obligation to act fairly during the probationary period and that the requirement of the Code of Practice applies in all circumstances in which a worker is on hazard of having his or her employment terminated.” 

In Hamilton Insurance Dac v. A Worker LCR22710 the Labour Court held as follows:

“There is no submission before the Court that the worker was notified in advance of her termination that her employment was at risk.  Neither was there a submission before the Court which contended any procedure was followed before arriving at a decision to terminate the employment or that an opportunity was provided to the worker to know of any issues prior to the termination of her employment.  Similarly, there is no submission before the Court that she was afforded any opportunity to defend herself against any charge or contention which could lead to the termination of her employment.

It is the view of the Court 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. 

There is no submission before the Court that these basic elements of fair procedures were applied in the case of the worker…” 

In Beechside Company Limited T/APark Hotel Kenmare LCR21798 the Labour Court held as follows:

“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.” 

The Worker’s contract of employment exhibited by the Employer provides as follows:

“The first 6 calendar months of your employment will be probationary, during which time the Company will assess your performance and suitability for continued employment. A formal review will be held after 3 and 6 months.

Termination of employment within the probationary period shall be at the discretion of the company and the full disciplinary procedure will not apply during the probationary or any extension of the probationary period. The probationary period will be operated in accordance with the EU (Transparent and Predictable Working Conditions) Regulations 2022.

On an exceptional basis the probation period may be longer than six months is it would be in the interest of the employee to do so and would not exceed 12 months in total.

Your employment may be terminated by one week’s notice given in writing by either the Company or the Employee at any time during or at the end of your probationary period. The Company always reserves the right to pay salary in lieu of a notice. “

The Employer submitted that timekeeping and mobile usage issues were addressed on a number of occasions with the Worker by the Ducting Manager. I note the Employer was unable to provide any details or documentation in relation to the conversations that took place with the Worker addressing these issues or of the substance or the outcome of these conversations.  There was no information made available to me that the Worker was alerted to these issues.

I further note that the formal probationary review was not carried out after three months of employment, as outlined in the Worker’s contract of employment. There was nothing put forward to suggest that the Worker’s performance was managed or addressed by the Employer in any way or that it was proposed to extend his probationary period.

I can therefore only conclude that the decision to dismiss the Worker was made on the basis of the incident on 11 February 2026. In that context, I do not accept that the Worker made a complaint of bullying. He sent what seems to be quite discourteous in tone text message to the Ducting Manager. The substance of the 25-second voicemail remains unclear. Moreover, the Ducting Manager asserted that the message was not received by him in any event.

I note that there is a dispute between the Worker and the Ducting Manager as to where or not the Worker admitted to asking his Line Manager to “step outside”. Irrespective of that, while the Employer is fully entitled to address any performance concerns this can only be carried out where the Employer adheres strictly to fair procedures.

The WRC and the Labour Court had consistently held that an employer is required to follow fair procedures before it decides to impose a disciplinary sanction on a worker. 

I find that the manner the Employer dealt with the Worker’s performance and the subsequent dismissal fell short of what would ordinarily be expected where concerns exist regarding an employee’s performance. The Worker was not afforded a formal probation review, was not invited to a meeting in advance of the decision to terminate his employment and was not afforded an appeal. These are matters which weigh in the Worker’s favour.

Having regard to all of the circumstances, including the procedural shortcomings identified above, I can only conclude the Employer’s handling of the dismissal of the Worker was procedurally flawed and breached the Worker’s right to fair procedures and natural justice. 

In all of the circumstances, I am satisfied that the Worker was treated in a manner which fell short of the standards of fairness and reasonableness that ought to apply to the termination of an employment relationship. I recommend that the Employer pays the Worker €500 in respect of the manner in which the termination of his employment was carried out.

Dismissal on probation-