FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2001 SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : VIKING DIRECT (IRELAND) LIMITED. (REPRESENTED BY MC CARTAN & HOGAN SOLICITORS) - AND - A WORKER (REPRESENTED BY FRANCES MEENAN, SOLICITOR) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr McHenry Worker Member: Mr O'Neill |
1. Alleged unfair dismissal.
BACKGROUND:
2. The worker concerned was employed by the Company as a Human Resource and Training Manager from the 28th of August, 2000. She claims she was unfairly dismissed on the 26th of January, 2001.
The Company rejects the claim stating that she was not suitable for the position.
The issue was referred to the Labour Court on the 15th of October, 2001, in accordance with Section 20(1) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 8th of January, 2002. The worker agreed to be bound by the Court's recommendation.
WORKER'S ARGUMENTS:
3. 1. The worker concerned found it difficult to communicate with the Managing Director who was located in the United Kingdom as he was seldom available.
2. The worker concerned was not aware that a review of her performance was being carried out after thirteen weeks of employment.
3. No indication was given to the worker that her performance was unsatisfactory. She received no warning that her job was in jeopardy.
COMPANY'S ARGUMENTS:
4. 1. The offer of employment was subject to a twenty six week trial period. During this period, the contract could be terminated by either party.
2. After thirteen weeks of employment, a review of the worker's performance was carried out. She was made aware that management was unhappy with her performance in particular with her lack of communication with the Managing Director. She was informed that if her performance did not improve within the trial period, her job would be in jeopardy.
3. The worker's performance deteriorated leaving management with no option but to terminate her employment.
RECOMMENDATION:
The Court has given careful consideration to both the written and oral submissions of the parties. The dismissal procedures, which were applied to the termination of employment of the claimant in this case were, in the Court's view, flawed. The employee was not afforded fair procedures in accordance with the Code of Practice on Grievance and Disciplinary Procedures S.I. No. 146 of 2000.
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 our where the employer adheres strictly to fair procedures.
In the particular circumstances of this case, where the employee was employed at a senior level in the Company, and where she had been headhunted from her previous employment where she had been employed for 11 years, the Court is of the view that there is an additional onus on the employer to ensure that the employee has an inherent ability to perform the job before employing her.
It is imperative that an employer in a dismissal case must not only show that there were substantial grounds justifying the dismissal but also that fair and proper procedures were followed before the dismissal takes place. This requirement of procedural fairness is rooted in the common law concept of natural justice.
The Court is satisfied that no indication was given to the employee that her performance was unsatisfactory prior to her dismissal; no warning was given to the employee that her
employment was in jeopardy; she was not afforded the right to representation; and she was
not afforded an opportunity to reply to the accusations made, some of which were only made known to her following the dismissal. Therefore, the Court is satisfied that she was denied natural justice, and the Court recommends that she should be compensated by the additional payment of euro 15,000, to be accepted in full and final settlement of all claims against the Company.
Signed on behalf of the Labour Court
Caroline Jenkinson
25th January, 2002______________________
G.B./B.R.Deputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Gerardine Buckley, Court Secretary.