ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001530

Complaint and Dispute for Resolution:

Date of Adjudication Hearing: 5th July 2016

Workplace Relations Commission Adjudication Officer: Seán Reilly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act 2015, Section 11 of the Minimum Notice & Terms of Employment Act 1973 and Section 13 of the Industrial Relations Act 1969, and following the referral of the complaint and the dispute to me by the Director General, I inquired into the complaint and the dispute and I gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint and the dispute.

Background:                                                                                                                 The Complainant was employed by the Respondent from 9^th July 2015 to 6^th October 2015 and his weekly rate of pay was €644.00c gross.  

The Complainant had presented a complaint under the Minimum Notice & Terms of Employment Act 1973 that he was summarily dismissed by Respondent and did not receive his minimum statutory period of notice in breach of his rights under the Act. In addition the Complainant had submitted a claim of unfair dismissal under the Industrial Relations Act 1969.

On 31^st May 2016, the Respondent’s Representative wrote by email to the WRC, stating that they objected to the investigation by the WRC of the Industrial Relations complaint/claim and that they would only be engaging in relation to the complaint under the Minimum Notice and Terms of Employment Act 1973.   However as the Respondent had been notified of both of the complaints by letter of 26^th January 2016, this objection was lodged well outside the 21 days time limit for the submission of objections to investigation of complaints/claims under the Industrial Relations Act and accordingly the Complainant was entitled to have his claim/complaint investigated and heard and the Respondent was so informed by email of 10^th June by the WRC and that the complaint would proceed at the Hearing.   However they still did not engage in relation to the claim under the Industrial Relations Act.

Complainant’s Submission and Presentation:

The Complainant said he was employed by the Respondent as a Sous Chef under a contract of employment dated 9^th July 2015 for a period of 12 months to 8^th July 2016.   This Contract provides that a probationary period of 3 months would apply.

The Complainant said that on 6^th October 2015, two days before the 3 month probationary period would expire, he was approached by the Respondent when he was finishing work for the day.   The Complainant was told that he was no longer needed and he was summarily dismissed, no valid explanation was provided for the dismissal and the Complainant was not offered a weeks’ notice.   The Complainant said that he was given no prior notice, verbal or otherwise of his dismissal.   No issue in respect of his performance was raised with the Complainant during his employment, nor did he receive a verbal or written warnings in relation to any issue.

The Complainant said that in the first 4 weeks of his employment he was underpaid by €44.00c per week.   On 17^th November 2015, the Complainant’s Solicitor wrote to the Respondent seeking payment of outstanding wages due and compensation for his unfair dismissal.   The Respondent’s Solicitor responded by letter of 14^th December 2015; and in that letter it was stated that the Complainant was “advised verbally on 6^th and formally on 9^th October 2015, that his contract was being terminated and accordingly no liability to any residual contractual payment on foot of the contract of employment arises.”   In a further letter from them of 18^th January 2016, it is stated that the Complainant’s “contract of employment was validly terminated within the probationary period stipulated in his employment contract.”

The Complainant said that no mention is made in either letter to any performance issue, nor any reference to a notice period of one week being afforded to the Complainant.

The Complainant said that in their statement submitted to the WRC it is stated by the Respondent that they gave him one weeks’ notice of his dismissal on 7^th October 2015; yet it is also stated in the same statement that the termination date of his employment was 8^th October 2015.   The Complainant said that this statement does not support the Respondent’s position that the Complainant was given one weeks notice; had the Respondent given the Complainant one week’s notice of dismissal the termination date of his employment should be 14^th October 2015 and not 7^th/8^th October 2015.

The Complainant said that if the date of the termination of his employment is 14^th October and not 7^th/8^th October, then the Complainant was entitled to expect the Respondent to adhere to the dismissal procedure set out in the contract of employment as his termination of employment did not take effect until 14^th October, which is after the expiration of the 3 month probation period that ends on 8^th October.

The Complainant said that in addition in the statement provided to the WRC states he was dismissed for failing to meet the standards required by the Respondent and he said this was the first indication that there was any issue with his performance.

The Complainant said that it appears his dismissal was an attempt to circumvent the fair dismissal procedures and the minimum notice period that he was entitled to in accordance with his contract of employment and in accordance with law.

Minimum Notice Complaint:                                                                                                                                 The Complainant quoted from Section 4(2)(a) of the Act and said that accordingly he was entitled to a minimum notice period of one week, or pay-in-lieu of same, but he was not provided with either of these and therefore the Respondent is in breach of his rights under the Act.   The Complainant sought redress in the form of one weeks pay in accordance with the provisions of the Act.

Industrial Relations Acts Complaint:                                                                                                               The Complaint was claiming that he had been unfairly dismissed.

The Complainant said that it is unclear whether he was dismissed for a particular reason since no valid reason was given to him: however if there was a valid reason for his dismissal he was not informed of such, nor was appropriate fair procedures applied.

The Complainant referred to and quoted from S.I. 146 of 2000, the Code of Practice on Grievance and Disciplinary Procedures in support of their claim.

The Complainant said it was clear that the procedures or more accurately the lack of procedures in his dismissal did not follow any of the principles of S.I. 146 of 2000 and therefore were in breach of fair procedures, which renders the dismissal unfair.

The Complainant said that in that case of A Worker -v- Glenpatrick Water Coolers Limited [LCR21028] the Labour Court stated:

“The Court notes that the Claimant’s contract of employment purported to provide that the normal disciplinary procedures do not apply during the probationary period.   However, this Court has consistently held that an employer is not relieved of the obligation to act fairly during a probationary period and that the requirement of the Code of Practice applies in all circumstances in which a worker is no hazard of having her or his employment terminated for alleged misconduct.”

The Complainant also referred to A Worker -v- Embankment Plastics Limited [LCR21066] in support of their position, in which the Labour Court stated:

“In all the circumstances of this case, the Court finds that the Respondent’s decision not to adhere to either its own disciplinary procedures or be bound by the provisions of the Code of Practice on Grievance and Disciplinary Procedures because the Claimant was on probation was misconceived.”

The Complainant said these case demonstrates the level of protection the Labour Court are willing to afford to employees on probation and they also highlight the need to apply disciplinary process to ensure at a minimum the right to fair procedures and natural justice are respected.   The Complainant said that any argument that purports to set out that fair procedures do not apply must and should be ignored.

The Complainant said he believes he was used by the Respondent during the busy season of the industry and than abruptly dismissed when the Summer Season ended and asked that this be taken into account in any decision.

The Complainant gave evidence of his efforts to secure alternative employment and mitigate his losses.

Following the submissions of the Respondent the Complainant referred to his discussion with the Respondent on the last day he worked for the Respondent, 6^th October 2015.   The Complainant said that when he went to clock out after finishing work he was met by the Respondent who told him: “Your probation is finishing in a few days, so we will not be extending it”.   He said that he was told that was his last working day and they wouldn’t need him, he was finished work and there was no need for him to come back any more (the next two days were his rest days).   The Complainant was adamant that he was given no notice, that he was instantly/summarily dismissed.

In relation to the two texts sent by him to the Respondent on 7^th October 2015 and 23^rd October 2015, copies of which were submitted by the Respondent, the Complainant said they were sent in the context of him having been summarily/instantly dismissed on 6^th October 2015.   He needed a letter of dismissal and/or a P45 to allow him claim Welfare Benefits and any and all monies due to him.

The Complainant sought a favourable decision and recommendation.

Summary of Respondent’s Position:

At the beginning of the Hearing the Respondent stated they would not be engaging in relation to the complainant/claim under the Industrial Relations Act 1969.

The Respondent said the Complainant has submitted a complaint under the Minimum Notice and Terms of Employment Act 1973, claiming that he was not paid his notice pay.

The Respondent said that they operate as a bar and restaurant.   They said the Complainant was employed by them as a Sous Chef from 9^th July 2015.   They said the Complainant’s employment was terminated on 7^th October 2015, during his probationary period.

The Respondent said the Complainant was issued with and signed his contract of employment, which stated he would be subject to a probationary period of 3 calendar months.

The Respondent said the Complainant was dismissed on 7^th October 2015, for failing to meet the standards they required.   The Respondent said the Complainant was required by his contract of employment to work one weeks’ notice.   The Respondent said the Complainant refused to work his notice and he demanded a letter stating he had been dismissed.   The Respondent said that they provided this letter to the Complainant and they said he was not paid for the week as he refused to work.

The Respondent quoted from Section 4(2) of the Minimum Notice and Terms of Employment Act 1973.

The Respondent said they gave the Complainant one weeks’ notice, however the Complainant refused to work this week.   The Respondent said that the Act does not provide that an employer pay in lieu of notice where the employee refuses to work the notice.

The Proprietor gave direct evidence.   He said that that on 6^th October 2015, he spoke to the Complainant and told him that they were not keeping him on and told him the reason why.   The Proprietor said the Complainant became angry and he refused to work his notice.  

The Respondent submitted a copy of two texts sent to them by the Complainant and they said the first one showed that the Complainant was not willing to work his notice.

The first text was sent on 7^th October, the day after the Complainant last worked for the Respondent (the day he was told his employment was terminated).     This text stated: “Need letter that you let me go as quick as possible….let’s say within an hour!!”    

The second text sent was on 23^rd October 2015 and it stated: “You still don’t pay me what you owe me…left me with no choice, got to go to solicitor”

The letter of dismissal sent by the Operations Manager was submitted and it states:

“7^th October 2015.

(name of complainant)                                                                                                                                          (address of complainant)

Dear (name of complainant)

                                                         Termination of Employment

Your probation period with us at (trading name of Respondent) is due to end on 08/10/2015.         We confirm that we have decided not to continue your employment beyond your probationary period.   As a result your employment will end on 08/10/2015 and the wages/holidays due will be paid on 16/10/2015 and P45 issued.

Yours Sincerely,

(Name)                                                                                                                                                                    Operations Manager                                                                                                                                                  (trading name of Respondent)

The Operations Manager confirmed that she had sent this letter.

Based on the foregoing the Respondent sought that the complaint under the Minimum Notice and Terms of Employment Act 1973 was not well founded and that it should be rejected.

Findings, Decision and Recommendation:

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

Section 11 of the Minimum Notice and Terms of Employment Act 1973, requires I make a decision in relation to the complaint consisting of a grant of redress in accordance Section 12 of that Act.

Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation setting forth my opinion on the merits of the dispute under the Act.

I have carefully considered the evidence and the submissions made and I have concluded as follows.

I find the evidence of the Respondent to be lacking in credibility and inconsistent.   The Respondent states that the Complainant was dismissed by them on 6^th October 2015 and was offered/given one weeks notice by them, but he refused to work that notice and accordingly his employment ended on 6^th October 2015.

But in the letter of dismissal, submitted by the Respondent to the Hearing, issued on the following day, 7^th October (and dated as such), submitted by the Respondent to the Hearing and quoted above, there is no mention of the dismissal being caused by any failure by the Complainant to meet standards required by the Respondent, nor is there any mention of a notice period, indeed on the contrary the dismissal letter states: “We confirm that we have decided not to continue your employment beyond your probationary period.   As a result, your employment will end on 08/10/2015 and the wages/holidays due will be paid on 16/10/2015 and P45 issued.”     It is crystal clear from this letter that the Complainant is not been afforded any notice as this letter is being issued the day before his employment is to end.

I find and decide that the Respondent’s evidence and submissions are lacking in credibility, they are rejected by me and I find and decide that I prefer the evidence of the Complainant.

Based on the foregoing findings the following are my findings and decisions in relation to the specific complaints/claims under the 2 Acts.

Minimum Notice and Terms of Employment Act 1973: CA-00002139-002:                                           . Based on the above findings I find and declare that the Complainant was not afforded his minimum notice entitlements in accordance with the provisions of Section 4 of the Act by the Respondent upon the termination of his employment by the Respondent.     I find and declare that the complaint under Section 11 of the Act is well founded and it is upheld by me.n

I note that based on his service of 13 weeks with the Respondent the Complaint was entitled to one weeks notice in accordance with the provisions of Section 4(2)(a) of the Act in the sum of €644.00c.

In accordance with the provisions of Section 12 of the Act I require the Respondent to pay the Complainant compensation in the sum of €644.00c within 6 weeks of the date of this decision

Industrial Relations Act 1969: CA-00001530-002:                                                                                       . The Respondent declined to engage with the claim/complaint under this Act.   As noted under Background on page 2 of this document the Respondent was notified of the claim/complaint under the Act by way of letter of 26^th January 2016.   An objection was not received to an investigation or hearing of the claim/complaint under the Industrial Relations Act under 31^st May 2016, some 18 weeks later (it should be noted that other correspondence was received from the Respondent dated 12^th February 2016, but no mention of any objection to an investigation or hearing of the case under the Industrial Relations Act was contained in that correspondence).     The WRC replied to the correspondence of 31^st May 2016 on 10^th June 2016, pointing out the time limits contained in the Industrial Relations Act for objections of 3 weeks and pointing out that as no objection had been received within that period the Industrial Relations Act case was automatically scheduled for the Hearing.   The Respondent was again informed of this fact by the Adjudication Officer and that the Complainant was entitled to have her case under the Industrial Relations Act heard and it would be, but they still declined/refused to engage in relation to that case or claim under the Industrial Relations Act.

The Respondent made no submissions nor did they engage in relation to the claim/complaint under the Industrial Relations Act, accordingly I only have the submissions of the Complainant to rely upon in relation to that matter.

Based on the uncontested evidence of the Complainant his claim of unfair dismissal made under the Industrial Relations Act is well founded and it is upheld

I further note that as stated in the decision on the complaint under the Minimum Notice and Terms of Employment Act 1973 the Respondent’s submissions in relation to the Complainant’s dismissal and the letter of dismissal issued are inconsistent and contradictory.

Based on the foregoing I see considerable merit in the claim/complaint and it is upheld by me.   I find and declare that the Complainant was unfairly dismissed by the Respondent.   In considering the appropriate redress I have taken all factors into account and I have concluded that there is an absence of the minimum level of trust necessary to sustain an employer/employee relationship and that accordingly the only appropriate redress is compensation.

As a full and final settlement of the matter I recommend that the Respondent pay the Complainant compensation in the sum of €12,000.00c within 6 weeks of the date of this recommendation.

Dated: 25^th October 2016