Adjudication Reference: ADJ-000485547

Complainant: Accounts Assistant

Respondent: Construction Company

This is a case dealing with probation and made under Section 13 of the Industrial Relations Act, 1969. This case is a very good example of the factors to be considered when dismissing an employee during the probationary period.

Brief Summary of Facts

The complainant was offered a position in Accounts Payable on 3 March, 2023. Her employment was terminated after three months and she claims she was unfairly dismissed. The complainant accepted that she had two periods of sick leave, the second of which had just begun when her employment was terminated.  She disputes the respondent’s suggestions that she was spoken to about her performance or that the number of errors is as claimed by the respondent. She says that these were never brought to her attention at the time and were discovered after she left. She rejected the offer of the meeting with the respondent to discuss her termination. She denied in response to a question from the respondent representative that her first period of sick leave was related a large financial deficit.

Employer's Case

The respondent is a building contractor with over 35 years' experience in the construction industry. The complainant was trained by the Financial Controller and was shown how to use Quick Books systems in order to fulfil her duties. She was asked on numerous occasions if she required any further support or training, which she declined.  The respondent stated the complainant made numerous errors in completing tasks in her job description which led to informal conversations being had with the complainant.  The financial controller stated she addressed the errors with the complainant. On Tuesday, 13 May the FC became aware of an error on the Relevant Subcontract Tax for that day which was out of balance by approximately €30,000. The financial controller discussed this with the complainant. The complainant had no explanation and stated she was trying to resolve the issue.  The complainant went on sick leave two days later. During this period of absence further errors were picked up by the finance department. On the last day of her certified leave, the complainant issued a further sick cert for another two weeks.

The company decided due to the number of errors in the complainant's work to end her probation, effective immediately, in line with the company's probation clause. They issued a termination letter and paid any outstanding holidays. Following a request from the complainant, the financial controller outlined the reasons for termination and offered a meeting to discuss further. The complainant rejected this offer. The complainant was aware her role was subject to a probationary period as was outlined in her contract and the company handbook. The company relied on the Minimum Notice and Terms of Employments Act 1973 to 2005 as the complainant had less than 13 weeks' service, therefore no notice was paid. The employer fully rejects any claim of unfair dismissal stating the number of errors had a knock-on effect on the business and could not be sustained.

Findings and Conclusions

The complainant's employment was terminated just one week short of 3 months. There was a disagreement between both parties on the extent to which the alleged deficits in the complainant's performance were brought to her attention. The adjudicator was satisfied there was some informal discussion about the complainant's performance, however, it was clear that significant elements of the alleged performance deficits were not put to the complainant. The deficits were only discovered after her contract was terminated. The adjudicator found as a matter of good probation management this should have happened. The probation policy of the respondent relied on, had the phrase performance will be "assessed" which places a clear obligation on the respondent to actually undertake and be seen to undertake an assessment of work performance and general suitability and then having done so, reach a conclusion.  The policy then provides if work performance is not satisfactory it provides for two options, one being remedial actions or terminate the employment. The adjudicator found there was no indication in this case that any of the assessment preliminary to the termination was completed by the respondent. It appeared most of the assessment of the complainant's performance took place after the decision to terminate her employment. This did not meet the requirements of the respondent's own policy. For the reasons set out above it was found there was a serious breach of the complainants rights.

Recommendation

The Adjudication Officer made a recommendation under Section 13 of the Industrial Relations Act 1969, as follows:

1. It was recommended the complainant receive €2,500 in compensation for the breach of her rights; and
2. It was recommended that the respondent take steps to ensure it is in compliance with its own policies.

Points to note for Employers

• The first point to note that this recommendation is not legally binding on the employer and the parties are anonymised.
• However, this case serves as a good reminder that an employer should not ignore its own probation policy.
• The probation period is a good opportunity for the employer to terminate the contract of employment if the relationship is not working out but there should be some form of engagement with the employee prior to any dismissal in order to stay on the right side of a claim of this nature under the Industrial Relations Acts.
• The most important point to note is that if an allegation of misconduct is made against an employee during probation then fair procedures must be applied and if not, there is a risk of legal challenge including an application for injunctive relief.
• Employers should take legal advice as this can be a challenging area especially if there is misconduct.

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