Worker

Employer

Anonymised Parties

A Worker

An Employer

Representatives

Self-Represented

The Employer did not attend and was not represented at hearing.

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 - 00005700

19/11/2025

This matter came before the WRC dated 19/11/2025 as a complaint seeking adjudication by the WRC under section 13 of the Industrial Relations Act, 1969.

The specific complaint falls under Unfair Dismissal.   The Worker claims he was unfairly dismissed, and he does not have at least 12 months service.  The aforesaid dispute was referred to me for investigation.  A hearing for that purpose was scheduled to take place on 23/07/2026. 

The Worker was paid €9.50 per hour and worked 38 hours per week. 

The Employer did not attend at hearing on 23/07/2026.

Supporting documentation filed by the Worker on request post-hearing confirms the Worker was employed by the Employer from 24/03/2025 to 19/09/2025. 

The Worker got a text out of the blue saying there was no work; there was no notice; no verbal or written warnings; no appeal.  The Worker said he was told he would be an apprentice and that the Employer would register him with SOLAS.  This never happened.    

The Employer did not attend and was not represented at hearing.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the Worker.  Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the dispute and in fulfilment of my duties under statute. 

Having not had sight of a contract of employment, and in the absence of the Employer who might say otherwise had they chosen to attend, it is reasonable to come to the conclusion that this dispute relates to a dismissal during a probationary period. 

It is generally understood that the purpose of a probationary period at the commencement of employment is to provide an opportunity to monitor an employee’s suitability for the role and to address any performance related issues.  It allows an employer to review the progress of a new entrant in the day-to-day operations of the employer’s business.  To this end there is an obligation on an employer to ensure a structured approach to an employee’s probation period and performance should be managed and assessed in such a manner as to provide for a performance improvement plan with clear goals and reviews if and when an employee’s performance is found to be not meeting the required standard. 

Probation reviews should be conducted during the probation period in order to offer feedback on the various aspects of the employee’s performance and to highlight areas where improvement is required.  An employer should explain to an employee that they may be at risk of failing their probation if their performance does not meet the required standard.   At a minimum an employer must alert an employee to any issues and inform him/her of the consequence of termination of employment if the required improvement is not achieved. 

Notwithstanding, the success or failure of a worker’s period of probation is entirely a matter for an employer to determine.  I am not required to determine whether the Worker should have been dismissed during the probationary period or not as the case may be.  It is not my function to substitute my view for that of a respondent employer.   My role is limited to an examination of the manner in which the termination of employment was undertaken by an employer.  

I note that 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 consideration of a trade dispute and any recommendation thereto is informed and guided by previous decisions of the Labour Court as they apply to a trade dispute under the Industrial Relations Act. 

In this I am mindful of the recommendation of the Labour Court in Beechside Company Limited T/A Park Hotel Kenmare LCR21798 that provides 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.” 

In Hamilton Insurance Dac v. A Worker LCR22710 in January 2023 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…”  

I note the Labour Court in Baxter International Inc v A Worker LCR 23207 held as follows:

“Based on the uncontested submission of the Worker, the Court concludes that the worker was dismissed from his employment without the application of any fair process or procedures. This Court has consistently held that an employer is not relieved of the obligation to act fairly during a probationary period.”

I have regard also to the recommendation of the Labour Court in C&W O'BrienArchitects v A Worker LCR22391 wherethe Court took into account the provisions of the Code of Practice on Grievance and Disciplinary Procedures (S.I. 146 of 2000) 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.”

The Code of Practice emphasises that good practice entails a number of stages in the discipline and grievance process and states at section 6 as follows:

“6.  The procedures for dealing with such issues reflecting the varying circumstances of enterprises/organisations, must comply with the general principles of natural justice and fair procedures which include:

·        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.” 

Under General Principles at section 4 the Code states as follows:

“The essential elements of any procedures for dealing with grievance and disciplinary issues are that they be rational and fair, that the basis for disciplinary action is clear, that the range of penalties that can be imposed are well-defined and that an internal appeal mechanism is available.” 

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

“The Court has carefully considered the written and verbal submissions it received.  The Court is satisfied on the submissions before it that the Employer failed to adhere to the requirements of the Code of Practice on Grievance and Disciplinary Procedures made under Section 42 of the Industrial Relations Act 1990 and contained in SI 146 of 2000, before the decision to dismiss the claimant was taken.

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. [emphasis added]

The Worker at hearing maintains that no performance issues were ever brought to his attention during his employment with the Employer; he just got a text out of the blue to say there was no work for him. 

My role is limited to an examination of the manner in which the termination of employment was undertaken by an employer. 

Applying the reasoning of the Labour Court set out above to the facts of this dispute, 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.  The dismissal of the Worker was unfair due to the lack of fair procedures or indeed any procedures whatsoever. 

Furthermore, it is noted that the Worker was not afforded fair procedures in accordance with the S.I. No. 146/2000 - Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000.

On the merits of this dispute, I recommend in favour of the Worker. 

In deciding on the appropriate level of redress I have duly considered and incorporated into my recommendation the duration of the employment relationship together with the uncontested submission of the Worker that he was told by the Employer he would be an apprentice and that he would be registered with SOLAS which he claims did not happen. 

I have taken into consideration that throughout the tenure of his employment he was paid €9.50 per hour and I note the 1st year apprentice pay is €9.47 per hour; the uncontested information provided by the Worker is that he was never registered with SOLAS. 

The national minimum wage during the relevant period was €13.50 per hour.   

Taking into consideration all the circumstances set out above I recommend hereunder.