home Newsletter   December 2021 Newsletter   Case Law Reviewed - Covid compliance officer 'slow to pass on details of test results' dismissed

Case Law Reviewed - Covid compliance officer 'slow to pass on details of test results' dismissed

Case Law Reviewed - Covid compliance officer 'slow to pass on details of test results' dismissed


The Worker was employed, on the 27 October 2020, as a Covid 19 Compliance Officer by the Food Company. Her employment ended on the 12th of February 2021. Her Gross Pay was €2,333 per month for a 40-hour week.

Summary of Worker’s Case

The Employment began on the 27th October 2020. All went well until Monday the 14th December 2020 when the Worker’s boyfriend began to have sniffles. He was Covid tested and confirmed positive on the 17th. On the 16th the Worker had informed her Manager of the situation but as she had not seen her boyfriend since the 12th she was not a “close contact”. However, she was due a routine Covid test at work on the 16th and her Manager told her to await the results. On the 17th she informed her Manager of her boyfriend’s positive test. She was sent home to await her test results. On the Friday, the 18th December, she tested positive and began a ten-day isolation period. Unfortunately, this developed into a serious illness and she was certified as unfit until the 18th February 2021.

On Friday the 15th January she developed very severe tonsilitis and was unable to speak. Her mother rang her Manager to appraise him of how seriously unwell the Worker was. Her mother was reassured that all was well – “her job was safe”. However, on the 5th February the Worker received a phone call from her Manager and the HR Department to inform her that she would not be coming back to work. It was alleged that the Employer had stated that “She had not handled things well re Covid” and had “failed her probation”. The Worker asked for a written statement of reasons which the Employer provided. It was vague and ambiguous. A meeting was offered but as the Worker was seriously unwell she had to decline. The Worker is a professional Environmental Health Officer and her professional standing is very important to her. She was treated most unfairly in relation to simply contacting Covid and her failing of her probation period was plainly unjust.

Summary of Employer’s Case

The Employer gave extensive Oral evidence from involved Managers, including the Worker’s immediate Supervisor. This evidence was open to full Worker cross examination. Their opening Employer argument was that the Worker was on probation and it was the perfect legal right of the Employer not to continue the employment if they were of the opinion that they did not wish to do so at the end of the probation period. There is considerable legal precedent supporting his position. Notwithstanding this opening point the Employer is a major and well know Irish food processing Company. Under Covid their reputation as a Covid compliant organisation was absolutely critical to the business and the continued employment of all their staff. The Worker was employed as a Covid Compliance Officer. As such a very high standard of professional and personal Covid compliance was expected of her.

She carried out her role very satisfactorily until the unfortunate chain of incidents beginning on the 12th December 2020. From investigation it became clear that the domestic Covid situation of the Worker and her boyfriend’s families was a lot more complicated that had been initially informed to the Employer. It was not denied that many close relations, in addition to the boyfriend personally, had tested Positive following the weekend of the 12th. This information was very slow in being passed to the Employer. There was no doubt that this was a difficult personal situation for the Worker. The Employer felt that the Worker had handled it badly and had not shown the high standards of professionalism required of a Covid Compliance Officer. She had not shown the required “abundance of caution”.

Taking all of the above into consideration the decision not to continue her probationary employment as a Compliance Officer was reasonable. On a procedural basis the Employer had phoned the Worker on the morning of the 5th February to have a discussion and informed her of her failure to pass probation. This was done by Telephone as the Worker was now clearly in a Covid compromised situation and a personal meeting would not have been possible. This aspect was confirmed in the subsequent correspondence. The failure of probation decision was confirmed by letter of the 5th February 2021.

In a further exchange on the 12th February 2021, Ms. M, of the HR Dept had offered to have further exchanges/contacts with the Worker as soon as their respective schedules and the Worker’s medical situation would allow it. There did not appear to have been any further contacts. In final summary the Employer had the legal right to end a probationary employee’s employment and they had exercised this right. In addition, the entire series of events surrounding the weekend of the 12th December had undermined their confidence in the Worker who was in a vital role for the company.

Findings and Conclusions

Taking the reasoning to the case in hand the key question really is whether or not the Worker was dismissed / failed probation on the grounds of Misconduct or for Poor Performance. In the evidence presented and particularly the oral evidence from the Employer Managers there was no suggestion that the Worker was guilty of any wrong doing that would constitute Misconduct. What was at issue was how she had handled, as a Covid Compliance Officer, the fallout from the weekend of the 12th December. The Employer view was that she had not reached the required very high standards – Abundance of Caution - expected of a Covid Compliance Officer in a most sensitive Food Processing environment. A Covid outbreak at the Plant would have been very serious for the business and all employed there.

The Employer Managers had let matters rest until February 2021. The Worker had been on Sick Leave since December. It was noted that considerable exchanges had taken place by e-mail / text during January. Nonetheless the ending of employment by means of a phone discussion is far from desirable but has to be seen in the Covid context of limited personal interactions especially where one party is clearly ill or recovering from a serious Covid illness. In summary, the Contract of Employment, in this case, allows for full Employer discretion on ending Probation. There was no suggestion of any Misconduct on the Workers part. There was an issue of serious Employer concerns regarding poor Professional Performance following the incidents of the 12th December 2021. The confidence of the Employer in the Worker was no longer there.

On balance therefore, the Recommendation has to be that the Employer’s decision is endorsed. The Worker’s case fails.

Our Commentary

This ruling will be one noted by many employers in that it provides clarity on dismissals during Covid and the probationary period. Nevertheless, we would recommend that any employer considering dismissing an employee during probation to tread with caution. Dismissing an employee during their probation period is not without risks and the above case should be a reminder that employees with less than 12 month’s service can bring forward claims for wrongful dismissal.