Complainant

Respondent

Anonymised Parties

A Worker

A Health Service Provider

Representatives

Cathy Mc Grady BL, instructed by Farrell McElwee Solicitors LLP

Paul Gough, Beauchamps

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00069588-001

26/02/2025

The complaint is of unfair dismissal when the complainant did not pass her probation on 22nd January 2025. The complainant was employed as a Team Leader from 20th February 2023. She was paid €2149 gross per fortnight. The complainant’s case is that the dismissal was unfair and/or arose from a protected disclosure and/or it was related to her absence on maternity leave.

The respondent denies the complaint in full.

Summary of Complainant’s Evidence

The complainant outlined her qualifications in Social Care. She said she worked in the southeast at two sites and had responsibility for 8/9 staff. Initially, she got on well with her manager. She was satisfied with her first probationary review in June 2023 as she scored good under all the competency headings. In August 2024, she returned from maternity leave. She had a handover meeting with her Team Lead colleague who had been covering the post. She said the handover meeting lasted 20 minutes and she was given a one-page sheet. She said she was seeking other documents as part of the handover which were received on 13th November 2024. On her return, she was based at a new site and her role covered another site. She had responsibility for 28 clients with one other staff member. Before she left on maternity leave there were three staff. She said she raised the staffing issue with her manager. After several weeks, some agency staff were taken on. As she did not know the extent of the experience of the agency staff she contacted the agency for further information.

In or around the beginning of September 2024, she became aware that a staff member from another team was abroad on holidays even though he was on sick leave. She informed the relevant Team Lead in that area. She said that the staff member reported was her manager’s brother.

She said that due to the nature of the service, all managers worked two extra hours which then was to be taken within a month. She said that she asked a colleague to provide cover so that she could take time off on Friday afternoons. As her manager did not agree to this, she said she continued to work her normal contractual hours.

She applied to her manager that she commence work at 8am as she had paperwork to complete along with client work. She met with her manager a few days later and this request was refused on the basis that it may set a precedent for other staff.

She had a second probation review meeting with her manager on 8th October 2024. She said this did not go well and was mind boggling. She felt her autonomy in her role was being curtailed. She said that despite the agency staff, the resources were inadequate as she had more staff before her maternity leave. The manager raised an issue that she closed the office early on one occasion. She said that she had closed the office at 3.55pm instead of 4pm.

At the probation meeting, she was accused of being sharp with staff in her communications. She said she was given no examples of this. She was also criticised about her calendar entries although she said it was set up the same as a colleague leader. Other aspects of the probation meeting included where she located herself in the office and how she engaged with staff. After the probation review she questioned herself as to how she allowed a manager to make her feel useless. She contacted HR. It was suggested to her that normally in these instances a Performance Improvement Plan (PIP) is put in place. She emailed her manger about her concerns with the probation meeting and requested supports to assist with any performance deficits.

She said that PIP meetings took place although she felt she received no support between these meetings. There was a PIP scheduled for December 2024 although this was converted to a Quality Assurance meeting at a very late stage. The PIP meeting was not rescheduled.

She said she was at a training day in January 2025 and she raised the staffing issue with her manager. She said her manager said ‘She was sick of it’ within earshot of her colleagues. She was handed a letter that day about the next probation meeting and she asked was she going to lose her job. The manager replied ‘more than likely’.

She was handed a draft document that she had seen for the first time at the final probation meeting on 21st January 2025. She was accompanied by a work colleague and the meeting lasted over five hours. The following are some of the issues discussed-

·         Early closing of the office

·         Knowledge of role

·         A risk assessment issue

·         Interactions with peers/colleagues

·         Delegation to agency staff

·         An employee assistance programme (EAP) referral  

She said the meeting was hostile from the beginning. She said that even though some amendments were made to the draft document to reflect adequate practice decisions made, the score ratings did not change. She said that towards the end of the meeting, she felt it was pointless and did not make any further comments. She was also under time pressure due to childcare. She said she was not aware that another manager was contacted during a break in the probation meeting.

She received the decision the next day that she had not passed her probation. She appealed the decision. At the appeal hearing, she felt listened to although the decision did not address the concerns she had raised. She said that she may not have articulated her issues very clearly due to her state of mind at that time.

She gave details of an incident in September 2024 at a governance meeting when she was just back from maternity leave. She said her manager made a comment that ‘she must bring them all to get the coil.’ She said that in November 2024, her manager commented that she hoped she would not get pregnant again.

She said that she was given no advance notice of a Christmas lunch and she was surprised when her manager said to close the office and attend the lunch. She said that she attended a training event and the other team leads were sitting at the front. She was left to sit with the body of attendees. She felt undermined by this.

On mitigating her loss of earnings, she said that the loss of her job had completely thrown her as she could not afford childcare. She applied for three posts and obtained a part-time post in youth training in August 2025. The salary was €19,000 although she expected to get full-time work in the near future. Her previous salary was €56,000.

Under cross-examination, Mr Gough put it to the complainant that the WRC Complaint Form did not allege dismissal due to reporting a staff member or that it was related to maternity leave. Furthermore, these issues were not raised at the final probation meeting or during the appeal. The complainant replied that her approach during the probation and at appeal was to return to her post rather than making allegations against her manager.

It was put to her that she accepted some issues with her performance during probation. She replied that everyone will have areas of improvement in a new job. She was asked about her communication with a colleague to cover Friday afternoons and her unapproved request to commence work at 8am. She replied that these were inclusive discussions and she worked her contractual hours once approval was not forthcoming.

She was asked why she did not comment towards the end of her final probation meeting and why an adjournment was not requested if she was under time pressure due to childcare. She replied that she realised her views were not being taken on board and she realised it was pointless to respond. Her focus towards the end of the meeting was on a pick-up from childcare and management were also aware of her responsibilities.

She was asked if she discussed with colleagues or raised a complaint about the alleged offensive comments by her manager. She replied that she did not raise this as governance meetings were confidential and she already felt targeted at that stage.

The Adjudication Officer asked about the ‘Advocacy Training’ as this was a reason why she was marked unsatisfactory. She replied that training was an integral part of the role and the ‘Advocacy Training’ responsibility was assigned to her by her manager.

The Adjudication Officer asked her to self-assess her practice and performance and whether she received any written adverse complaints from colleagues or service users. She replied that her practice did not change after returning from maternity leave and she was given no documents about complaints other than what arose in the PIP, Quality Conversations and Probation Reviews.      

Summary of Work Colleagues Evidence

The colleague said he accompanied the complainant to the final probation meeting and the appeal. He said the probation meeting had a highly charged tone and there were a lot of frivolous points raised. There were issues discussed and amended in the draft document supplied by management. For example, the approval of leave and the referral of a staff member to EAP. As he was familiar with these procedures, there was a lot of discussion and it was conceded eventually that the complainant had acted within her capacity. He said despite the amendments to the draft document, the ratings were not adjusted. He felt that it was a futile exercise. As the meeting was so long he said the complainant did not comment towards the end. He said that everyone knew that the complainant was under pressure to leave to attend to her childcare responsibilities.

He attended the appeal meeting which was more pleasant as the complainant was able to make her points which he felt were listened to. He felt that the appeal outcome missed out on some points such as the practice followed by the complainant on the EAP referral.

Under cross-examination, it was put to him that changes were made to the draft document on foot of the representations made. He agreed although pointed out that the ratings never changed despite the complainant being reprimanded incorrectly on a few issues.

The Adjudication Officer asked him to assess the final probation and appeal process. He replied that the complainant had undertaken significant training and wanted to improve and evolve through the probationary process.

Closing Submission

Ms McGrady submitted that the case engaged Section 6(2) of the Unfair Dismissals Act, due to reporting a staff member (protected disclosure) and/or maternity leave. As the complainant had over 12 months service, Section 6(1) of the Act was also relevant with the onus on the respondent to show a substantial reason for dismissal and that fair procedures were afforded to the complainant.

It was submitted that procedures were lacking as the PIP meeting scheduled for December 2024 did not take place, there were three probation meetings instead of four, and the entire process was driven by one manager. The manager relied and depended on alleged comments of staff without documentary evidence to allow the complainant a right of reply.

During the final probation meeting, another manager was consulted without the complainant’s knowledge. At this meeting, the complainant was handed a draft document without advance notice. The complainant and her colleague gave testimony of a hostile meeting with a decision already predetermined. Despite corrections to the assessment form, the ratings were never adjusted in favour of the complainant. The Appeals Officer did not address the content of the probation review and mainly focussed on whether the steps in the process were followed.

During the probation process, there was no recognition of the understaffing, nor the lack of experience/qualifications of agency staff. There was plenty of criticism without concrete examples given to the complainant on her failings. The manager assigned an additional responsibility of ‘Advocacy Training’ onto the complainant’s existing workload.

The reporting of another staff member was a protected disclosure in the complainant’s eyes as it was potentially a waste of public resources. The complainant went from a positive rating to a negative rating and the proximity of the disclosure to the negative rating was relevant.

The comments made by her manager to the ‘coil’ and any ‘future pregnancy’ was harassment and undermined the complainant’s dignity at work.

The complainant mitigated her loss reasonable quickly given her circumstances by finding alternative part-time work in August 2025.

Summary of Manager’s Evidence

The manager described the service and said she was in the role since 2021. She interviewed the complainant in 2022 who commenced as Team Leader in 2023. She was aware around the time the contract was signed that the complainant was due to go on maternity leave that summer.

In June 2023, at the first probation meeting, she said everything was ok with the complainant’s performance. Whilst on maternity leave, the complainant’s post was covered. On her return, there was a handover in August 2024. She said the handover included recent developments in the service, along with client/case reviews. Around this time, a staff member had left and another was commencing maternity leave so there was some dependency on agency staff.

In early October 2024, the second probation meeting took place. There was a revised probation form and training had taken place on this. She went through the various competencies for the role and outlined the reasons why the complainant was marked as unsatisfactory. She said there was an issue around start time as the complainant wanted to commence at 8am and this was not permitted due to service needs. On another occasion, when she arrived at the site, she seen the complainant leaving at 4.45pm when the office should have remained open till 5pm. The complainant was also unsatisfactory under the teamwork competency due to her tone when addressing other team members. She said she had witnessed this herself. She was critical of the complainant’s diary entries and her use of resources within the service. She said the complainant was unsatisfactory due to how she communicated confidential information and her engagement on personal issues within the team.

She said the complainant was unhappy with her ratings arising from the probation meeting and a meeting was arranged the following week to discuss her concerns. She obtained HR advice and put in place a PIP. She outlined how she supported the complainant and the training programmes that the complainant attended.

She said that advocacy training was an area that the complainant was interested in. She sat in on a training session and was critical of how she delivered this training. She said that some elements were inappropriate to the client group.

She said that after the last governance meeting, an informal lunch was arranged and the complainant was included and attended the lunch. She explained the ‘Quality Conversations’ which took place which focussed on supervision, support, person centred planning, case reviews and other concerns.

In January 2025, the final probation meeting took place. Prior to this, there had been three PIP meetings. She said the final PIP was changed to a Quality Conversation as it was too soon to do another PIP and the complainant was in agreement with this.

The complainant was advised that she could be accompanied to the final probation meeting. This took place on 21st January 2025 and it was a long meeting. A discussion on the first competency lasted over an hour and concerned the handover on return from maternity leave. There was also a protracted discussion on the complainant’s handling of a return-to-work meeting and referral to under EAP. There was an amendment to the draft document as it was recognised that the complainant had acted within the procedures.

On the competency of ‘Motivation and Interests’, she said that the advocacy work was substandard. She was concerned that only one person-centred plan had taken place and that the complainant came to meetings unprepared despite the supports in place. There was a concern around a risk assessment on the use of an external therapist. She was also critical of the complainant for spending too much time in her office and not on the floor. She was also unsatisfied with the delegation of work to agency staff. She said that the complainant’s communications were inappropriate at times and she did not recognise the dignity and confidentiality of other staff members.

After the probation meeting, it was decided not to offer a permanent position. The complainant was informed she did not have to work her notice and any wages due were paid. She gave the complainant information on her right of appeal. She said that the position advertised around this time was not the complainant’s post.

Under cross-examination by Ms Mc Grady, she was asked why the complainant returned to a different location and role. She replied that this was the preference of the complainant to be based at the different site. It was put to her that this was not the complainant’s preference and it was due to a service requirement. She was asked about the extent of the handover after maternity leave. She was asked about the deficit in staffing and the use of agency staff at that time.

She was asked why the first probation rating was excellent and why the complainant was so badly rated at the second and final probation meeting. She replied that the first probation meeting was only ok. She was questioned on how a five-week assessment was sufficient before the second probation meeting. She replied that her post as manager was covered when she was on holidays at the beginning of September 2024 and the period was sufficient to do an assessment.

She was asked about the complainant reporting a possible abuse of the sick leave policy. She replied that this was not reported to her by the complainant. It was put to her that she was aware that the complainant had reported this and evidence would be given that she suffered as a result of reporting this.

She was asked about each of the competencies and why she rated the complainant so badly. Questions followed on the adequacy of the handover, the use of agency staff, the closure of the office early on one occasion, and the request by the complainant to leave early on Fridays.

She was asked why the ratings remained unsatisfactory despite the acknowledged improvements and why some incidents were repeated under different competency headings. It was put to her that she relied on unverified comments of staff members without affording a right of reply to the complainant. She replied that the complainant was made aware of all the concerns.

She was asked why the PIP meeting scheduled for December 2024 changed to a ‘Quality Conversation.’ She replied that this was agreed to by the complainant.

It was put to her that the complainant’s colleague who attended the final probation meeting will give evidence of hostility and that matters seemed to be already predetermined with no change to ratings. She replied that she did not accept this.

She was asked about a change to the draft probation document which was not brought to the complainants notice. She replied that this was a typo error. She was questioned on why another manager was involved and consulted on the probation without the complainant’s knowledge. She replied that this was normal practice to keep a senior manager informed.

On re-examination by Mr Gough, the manager clarified that time management was not confined to calendar gaps and in general the complainant was not managing her time appropriately. She also clarified that it was not the role of agency staff to undertake certain tasks unless they were fully trained.

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The above evidence was given by the manager on 14th January 2026 and further testimony was given on 22nd January 2026 after the complainant had testified.

The manager clarified the training aspects of the role and that only one element of the ‘Advocacy Training’ was delivered. She attended this training and had a conversation with the complainant to give the survey results back to participants.

She denied that any conversation came up about contraception. She also denied a comment to the complainant ‘not to get pregnant again’. She said that 90% of the staff are female and it is accepted that absences will arise due to maternity leave.

She clarified that although there were no documented complaints that the complainant was aware of the incidents and these were raised with her during the probation meetings.  

Summary of Appeals Officer Evidence

The manager said that she was assigned to hear the complainant’s appeal. The appeal was received within time and she reviewed the documentation. The complainant attended the appeal and was accompanied. The issues raised during the appeal involved the complainant’s calendar information, performance achievement form, handover documentation, advertisement of her post prematurely, and mental health issues. She agreed to follow up on the advertised post and handover, and noted that mental health issues were not previously raised. She said her appeal function was outlined under memo to ensure that the probation process was carried out in accordance with the policy. She was satisfied that key elements of the probation process were completed and she upheld the earlier decision.

Under cross-examination, she was asked why the EAP issue and the subsequent amendment of the form did not feature in the final decision. She replied that she got the final probation document and her main aim was to ensure the probation process was followed.

Summary of HR Manager’s Evidence

The manager explained that part of her role was to advise managers on HR Policies and Procedures. In this case, she gave advice to the manager on the probation process. The advice was that the complainant be informed of the improvements necessary and to provide support on these. The advice was also to give examples and to prepare a PIP. She said she attended the final probation meeting in January 2025. She confirmed that there was a brief telephone call by the complainant’s manager to another manager during a break in the meeting.

Under cross-examination, she confirmed that the notes of the meeting were not verbatim as the meeting took over five hours. She was asked about the circumstances under which changes were made to the draft document. She confirmed that changes were made although the inclusion of an amendment was not highlighted to the complainant. She confirmed that the telephone call with the other manager lasted for around five minutes.

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The above testimony was given by the HR Manager on 14th January. On 22nd January 2026, the Adjudication Officer sought clarification from the HR Manager on whether the probation appeal was a full appeal or an appeal on the process. The HR Manager was unsure as to the nature of the appeal although she said that the Appeals Officer appeared to allow the complainant to raise any issue on her probation.

Summary of Team Leader’s Evidence

The witness confirmed her role as Programme Co-ordinator also referred to as Team Lead. She was new to the service and replaced the complainant whilst she was on maternity leave. She described the handover process which included updating on new starters and staffing, probation reviews, health and safety issues, and team meetings. She said the probation meeting lasted 45 mins to 1 hr. After the meeting, she said she forwarded further documents to the complainant. She said when the complainant suggested that she cover her on Friday afternoons she disagreed as it was not fair and equitable and she informed the complainant of this.

Under cross-examination, she gave further information on the handover. It was put to her that it was only proposed that she cover on the Fridays and when not consented to it was dropped. She replied that she thought it was more of an instruction to cover the Fridays. She was asked whether it could be described as an instruction if the complainant was not her manager. She replied that she thought it was an instruction.

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The above testimony was given by the Team Lead on 14th January 2026 and she gave further testimony on 22nd January 2026 once the complainant had given testimony.

The witness said she had no recollection of a ‘coil’ comment being made at the meeting in September 2024.

She said that an issue was brought to her attention by the complainant about a staff member who was in another country. She said she had a return-to-work meeting with this staff member and the matter was dealt with in accordance with procedures.

Closing Submission

Mr Gough submitted that the complainant’s performance dropped off after the first probation meeting and this was documented during the PIP process and two further probation meetings. There were action items in the PIP that were not completed. Although the ratings were not altered this was due to other performance issues under the same competency. Mr Gough concluded by submitting that the reporting of a colleague was not a protected disclosure as defined under the Protected Disclosure Act.

Relevant Law:

The Unfair Dismissal Acts, 1977-2015 (“the Acts”) defines “dismissal” in relation to an employee as including the termination by the employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee.

Section 6(1) of the Acts provides:

“Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal”.

(2) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal if it results wholly or mainly from one or more of the following:

(ba) the employee having made a protected disclosure,

(g) the exercise or proposed exercise by the employee of the right under the Maternity Protection Act 1994 to any form of protective leave or natal care absence, within the meaning of Part IV of that Act, or to time off from work to attend ante-natal classes in accordance with section 15A (inserted by section 8 of the Maternity Protection (Amendment) Act 2004), or to time off from work or a reduction of working hours for breastfeeding in accordance with section 15B (inserted by section 9 of the Maternity Protection (Amendment) Act 2004), of the first-mentioned Act,

Section 6(4) of the Acts provides:

“Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of 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 . . . .”

Section 6(7) of the Act provides:

“Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so—

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14 (1) of this Act [the procedure which the employer will observe before and for the purpose of dismissing the employee] or with the provisions of any code of practice referred to in paragraph (d) of section 7 (2) of this Act”.

Finding

The fact of dismissal is not in dispute and accordingly the burden of proof rests on the respondent to show that it had substantial grounds to dismiss, fair and reasonable procedures were followed, and that the sanction of dismissal was proportionate having regard to all the circumstances. In this case, substantial grounds need to be assessed in accordance with the Probation Procedures as the complainant was still under probation. This is the agreed procedure between the employer and employee as per section 14(1) of the Act.

Prior to investigating matters under the probation procedures, the complainant claims under Section 6(2) that the dismissal resulted wholly or mainly from a protected act and/or was related to maternity leave.

Dismissal Resulting from Protected Act/Maternity Leave?

Protected Act

The complainant reported a “relevant wrongdoing” about a staff member under another manager’s remit. This was that he may be in breach of the sick leave procedures. As per the definitions under the Act, relevant wrongdoing has the same meaning as the Protected Disclosures Act 2014. The complainant is relying on the relevant wrongdoing as ‘that an unlawful or otherwise improper use of funds or resources of a public body, or of other public money, has occurred, is occurring or is likely to occur’ in her reasonable belief. 

The Protected Disclosure Act also provides that ‘A matter is not a relevant wrongdoing if it is a matter which it is the function of the worker or the worker’s employer to detect, investigate or prosecute and does not consist of or involve an act or omission on the part of the employer.’

Though the matter reported may have related to a relevant wrongdoing, it is expected the complainant as a Team Lead would report this. Therefore, I am not fully satisfied that a protected act  was made.

Notwithstanding this, if it is presumed that this reporting of a staff member was a protected act, I am not satisfied that sufficient evidence was presented that the dismissal resulted wholly or mainly from this. As the timing of reporting coincided with a deterioration in the probation ratings, I have reviewed the evidence and documentation carefully.

In or around September 2024, there are documented references to gossiping with other staff and maintaining confidentiality and boundaries. It is presumed that the reporting of this matter would not be considered gossiping as a manager would be expected to raise this in the course of their duties. Despite the proximity of these events, I am not satisfied this was the reason for a failed probation. For the reasons outlined, I decide that the dismissal did not result wholly or mainly from a protected act.

Maternity Leave

Similarly, the complainant relies on a change to her autonomy when she returned from maternity leave along with alleged comments by her manager about contraception and future pregnancy to ground a claim of unfair dismissal. Also, there was no evidence to corroborate the alleged adverse comments as these were denied by the manager and a witness. Again, I am not satisfied that sufficient evidence was presented that the dismissal was related to a maternity issue.

The complainant did not make any reference to a protected disclosure or maternity leave in the long narrative on the WRC Complaint Form. Often, it takes time and reflection for a complainant to rationalise why certain events may have occurred. The complainant gave testimony that she did not raise these issues during the probation process as her objective was to maintain her job. This is understandable. However, once the employment relationship ended, there was no obstacle to flagging these issues. The reporting of a staff member allegedly abusing the sick leave scheme  (September 2024) and her return from maternity leave (August 2024) gave sufficient time for the complainant to rationalise why she had been dismissed, yet these issues were not raised on the WRC Complaint Form.

For the reasons outlined, I decide that the dismissal did not result wholly or mainly due to maternity leave.

Dismissal Procedures?

Section 14 (1) of the Act refers to the employee being on notice of procedures to be ‘observed before and for the purposes of dismissing the employee.’ Given this clarity in the Act, I find that it is the probationary procedures that are relevant to this case. During probation, an employer and employee have inherently agreed that performance will come under increased scrutiny. An employer is always advised to monitor performance closely over this period. Ultimately, an employer decides whether a permanent appointment is warranted or not.

As per the testimony, the manager and employee engaged directly in PIP, Quality Conversations, and Probation Meetings. As it is well within an employer’s remit to fail or pass a staff member on probation, I am not in a position nor is it an Adjudicators role to assess whether probation was passed or not. I have confined my focus on whether the complainant was afforded fair procedures during the probation process.

Probation Procedures

It is well established that fair procedures are warranted even during probation. Fair procedures are not perfect procedures. A central consideration is whether any purported breach of due process endangered a fair hearing or a fair result. Fair procedures for this purpose require that details of performance issues are documented and the employee is afforded a fair and impartial determination on performance.

The following facts are not in dispute. The complainant was interviewed and accepted a position. She received an initial good probation rating. Following a period of maternity leave, and after five weeks supervision, she then received an unsatisfactory rating. The final probation meeting was also rated unsatisfactory. The Recruitment, the PIP, Quality Conversations and Probation Meetings were all conducted by the complainant’s manager. After maternity leave, the role was the same, although the location changed, and there was more dependency on agency staff.

Given the disparity between the first probation and the latter two ratings, the testimony of the complainant for the most part focussed on inconsistencies with the ratings and procedural unfairness. The respondent’s testimony mainly focussed on the meetings and comprehensive process afforded to the complainant. Although Redmond below, was not describing fairness in a probation context, the principle is still the same-  

“the concept of fairness is located within a framework which accepts that the employer has the right to dismiss where this is necessary to protect its business interests. To that extent it adopts an employer perspective. At the same time, the law requires that employers should not remorselessly pursue their own interests. The employee’s interests must be considered as well. The function of fairness is to reconcile these interests.” (Redmond on Dismissal Law, 3rd ed., Bloomsbury Professional 2017 at [13.01]). 

It is common case that minor procedural omissions are not fatal once the complainant was afforded due process over the totality of the probation procedure. Therefore, I do not intend to dwell too much on minor procedural issues.

A potential unfairness arises as all interactions/meetings took place between the manager and complainant with no outside involvement or documents from other parties. From the testimony, it became clear that there was a breakdown in the working relationship. Therefore, the appeal process was very important to independently assess performance. During the hearing, clarity was sought as to whether the appeal was a full appeal or an appeal on the process followed. The HR manager was unsure, although submitted that it was likely a full appeal given the meeting notes outlined the extensive issues raised by the complainant such as-

·         The allegation of a change in autonomy after maternity leave.

·         The additional work assigned on advocacy training.

·         The final PIP meeting not taking place in December 2024.

·         Alleged inadequate support between PIP meetings.

·         Unchanged ratings despite acknowledged good practice eg EAP referral.

·         The 16th January 2025 incident of raised voices on staffing issues.

Although the above are not exhaustive of the all issues raised at appeal stage, I am not satisfied from the testimony or the appeal documentation that they were fully reviewed. The appeal outcome provided little clarity or reasoning. Instead of a mechanism to review the issues under appeal, it was a cursory review of the process followed-

‘Having considered all of the above records and information discussed at our meeting I find that the probation period was managed in line with the above policy and process and therefore I am upholding the decision communicated to you on 22nd January 2025.’

The lack of reasoning in the appeal outcome is unsatisfactory particularly given the direct conflict on a range of performance issues. For example, the assignment of the advocacy training appears to be a significant additional workload. It is unclear why this work was assigned if existing performance issues were already under review. There were twenty-eight actions required of the complainant on the PIP Form. Unusually, the advocacy training was not referenced yet it was used as an example under the competency of ‘Motivation and Interest’ for an unsatisfactory rating.

A more robust review of this and other matters may have provided more insight into the merits of the complainant’s appeal. There were two managers assigned to hear the appeal. For the reasons outlined, I am not satisfied that the complainant was afforded due process at appeal stage. The appeal stage was also an independent safeguard for the manager that she had rated the performance issues fairly. In conclusion, I find that the probation procedures were not followed adequately at appeal stage, which automatically entails that it was an unfair dismissal.

Redress

Section 7(2) of the Acts provides:

“Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid, 

(d) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,

(e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, and

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.”

As per section 7(1) of the Act, where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress. The complainant is seeking compensation, and I agree that this is the appropriate redress. Compensation is based on financial loss arising from the dismissal. The complainant submitted details of actual/prospective financial loss as €42,307.00.

Section 7(2) of the Acts provides that in determining the amount of compensation payable, I must have regard to the extent of how the complainant mitigated her loss. Although the complainant obtained part-time employment in August 2025, her attempts to mitigate her loss were inadequate. Although she gave testimony of applying for roles in March/April 2025, given her qualifications and current labour market, I am satisfied that she has not taken sufficient measures to mitigate her loss. I estimate that the failure to mitigate the loss entails a 50% reduction of the financial loss claimed.

I find it is just and equitable to direct the respondent to pay the complainant the equivalent of approx. 20 weeks’ wages which is €21,153.50.

I find that the complainant was unfairly dismissed and I find it is just and equitable to direct the respondent to pay the complainant the equivalent of approx. 20 weeks’ wages which is €21,153.50.

Probation, Unfair Dismissal