ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000066

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 15/01/2016

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 [and/or Section 8(1B) of the Unfair Dismissals Act, 1977, and/or Section 9 of the Protection of Employees (Employers’ Insolvency) Act, 1984, and/or Section 79 of the Employment Equality Act, 1998, and/or Section 25 of the Equal Status Act, 2000] following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Complainant’s Submission and Presentation:

The Complainant was appointed to a six month fixed term contract in the position of Golf Starter/Ranger. He was appointed following an interview with the Director of Golfing. The Complainant’s commencement date was 18^th April 2015 where he was required to work on an ad hoc basis. 

The Claimant alleged that after working two weekends, where he contended he had provided excellent service including the selling of one membership for the club, he was brought into the office and told without any notice that his contract was being terminated. As he had less than 12 months service he brought his complaint under the Industrial Relations Acts 1969 contending that he was wrongfully and unfairly dismissed.

Respondent’s Submission and Presentation:

The Respondent advised it is a premium hotel and golf club that operates two championship designed golf courses. The Complainant was employed as a Golf Starter/Ranger where his role was to enforce certain rules and implement sanctions within the regulations relating to the game of golf. 

However after appointing the Complainant the Director of Golfing became aware that the Complainant had previously been a member of the club, and members of the club knew the Complainant. The Respondent therefore contended that this made the Complainant’s position untenable, particularly as he would be required to enforce regulations.  The Respondent argued the Complainant’s previous membership would compromise the Complainant, and under such circumstances neither the Complainant nor the Club would benefit.  Accordingly the Respondent felt they had no option but to terminate the Complainant’s contract under the probationary clause in his contract, and dismissed him without notice.

The Respondent advised that point 14 of the Complainant’s contract of employment stated a 13 week probationary period where, in addition to completing an induction programme, the employee’s job performance, attendance, and skills will be evaluated. In addition this clause further states that your manager will carefully evaluate whether your attributes are best suited to your job assignments and whether or not the Hotel and its culture suit your career expectations. Continual assessments will take place throughout this period…The Company may terminate your contract at any stage of the probationary period. Whilst referring to this clause the Respondent acknowledged that it had not issued the Complainant with a copy of his contract at the time of his departure.

Notwithstanding the Respondent contended that it acted within the probationary clause in the contract, and the decision to dismiss was made swiftly to avoid prolonging the circumstances which, as stated, it viewed as being untenable under the circumstances.

In cross examination, the Complainant argued that the Respondent knew that he had been a member of the club before his appointment and that this would have been mentioned in the interview. In addition the Complainant stated that his ex-wife had also been a member and won the Presidents prize; and as he had been a businessman in the area his business had traded with Club prior to a change in his business circumstances. 

The Claimant also contended that he did not undergo an induction programme. Instead he was taken for a trip around the course on a buggy and then commenced his duties on the same day, which he argued he performed without any concerns.  He further advised that he had never been subject to an evaluation and was summarily dismissed on his fourth day of work, some two weeks after his appointment.  He also contended that he was never provided with a written contract of employment and therefore was not aware of the probationary or other issues contained therein and upon which the Respondent was relying on.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

In this regard, as the Complaint is not protected under the Unfair Dismissals Act 1977, the complaint is raised under the Industrial relations Act 1969, and in accordance with Section 13 of that Act I am entitled to investigate the matter and make a recommendation to the parties setting forth my opinion on the merits of the dispute.

I must therefore decide whether the Respondent adhered to proper procedures in relation to terminating the Complainant’s employment.

Based on the evidence provided it is clear the Respondent decided, only after appointing the Complainant, that his previous membership of the club made his position untenable and that they chose to dismiss him summarily in accordance with his contract of employment. Whilst relying on this contract of employment in its defence, it is clear the Respondent had not issued the contract to the Complainant.

As the Respondent’s decision was based solely on the Complainant’s previous membership of the club, I find it implausible that the club were not aware of his previous membership before his appointment. Indeed if previous membership was of such significance it is remarkable that the Respondent did not seek to verify this at the interview stage and before appointment.

Having considered the submissions of the Claimant and the written and oral submissions of the Respondent, I find that there was an absence by the employer of adherence to proper selection procedures in that it failed to identify a matter that it deemed so important and fundamental to the role that would render the position untenable for the Complainant. The Complainant, due to the decision of the Respondent, has been placed in a very unfair situation through no fault of his own.  Furthermore the reliance of the employer to legitimise the dismissal on a term in a contract where that contract was never issued to the Complainant appears, on the face of it, to be gratuitous.    

There is a need for the principles of fairness to apply in the employment relationship, and an obligation for the employer to exercise such fairness particularly where its employees do not have, due to minimum time served, the full protection under employment legislation.    

In all these circumstances, I find that the Complainant was unfairly and therefore wrongly dismissed and recommend that the employer should pay him compensation to the value of €4,000.

Dated:  10 March 2016