ADJUDICATION OFFICER RECOMMENDATION

 Adjudication Reference: ADJ-00008248

Complaint:

ActDispute Reference No.Date of Receipt Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 CA-00010986-001 26/04/2017  

Date of Adjudication Hearing: 12/10/2017

Workplace Relations Commission Adjudication Officer: Enda Murphy

Procedure:

In accordance with Section 13 of the Industrial Relations Acts 1969following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.  

Background:

The Complainant was employed by the Respondent as a Sales Assistant from 3rd December, 2016 until 16th December, 2016 when she was dismissed from her employment. The Complainant claims that she was unfairly dismissed from her employment and that the manner in which the dismissal was effected was procedurally flawed.

Summary of Complainant’s Case:

The Complainant, who is a Hungarian national, commenced employment as a Sales Assistant at the Respondent’s service station on 3rd December, 2016. The Complainant was informed by her Manager that her first day of employment was “a trial day”. The Complainant completed this “trial day” without any difficulties and was informed by her Manager a few days later that she was very happy with her performance and had been chosen for the role. On the Complainant’s second week of employment, she was scheduled to commence work at 6 am to assist with the opening of the premises while accompanied by her Manager. However, the Complainant overslept on this morning and left a voice message on her Manager’s mobile phone at 7:05 am to apologise and explain the situation. The Complainant’s Manager returned her call at 7:20 am and indicated that there wasn’t any problem as she had been there to open the premises and told her to “take her time” getting to work. The Complainant arrived at work at 8:10 am and again apologised to her Manager for having overslept that morning. The Manager assured the Complainant that there wasn’t a problem and asked her to ensure her alarm clock was properly set in future. The Complainant continued to work extremely hard without any difficulty during the proceeding days and there weren’t any issues raised by her Manager in relation to her performance. The Complainant was scheduled to work from 4 pm to 10 pm on 15th December, 2016 but received a text message from her Manager to inform her that she was not required to work that day. After several failed attempts to contact her Manager by text message and telephone, the Complainant received a telephone call from her Manager later that evening, informing her that her roster was being changed to start at 10 am the following day. The Complainant attended for work on 16th December, 2016 and was immediately summoned, without prior notice, to a meeting with the General Manager and her Manager at which she was informed that her employment was being terminated with immediate effect. The Complainant submits that she was shocked by the abrupt nature of her dismissal and when she sought an explanation from the General Manager she was informed that among other things the main problem was the morning she had overslept. The Complainant contends that she did not receive any prior warning or notice that her position was in jeopardy and claims that she had only been given positive feedback in relation to her performance by her Manager during her period of employment. The Complainant subsequently sought a meeting with the Respondent’s Regional Manager in relation to her dismissal which took place on 6th January, 2017. The Regional Manager denied she had been dismissed and indicated her probation period had been terminated because she wasn’t suitable for the role. The Regional Manager also informed the Complainant that there had been difficulties in relation to her performance and proceeded to read a statement from management which purported to refer to these issues. The Complainant submits that she wasn’t provided with a copy of this statement and that this was the first occasion she had been notified of the alleged difficulties with her performance. The Complainant submits that she was unfairly dismissed from her position and that the manner in which the dismissal was effected was totally lacking in procedural fairness.  

Summary of Respondent’s Case:

The Respondent did not forward any written submissions in response to this dispute and did not attend the oral hearing. The Respondent’s legal representative informed the WRC in a letter dated 4th October, 2017 that neither it nor the Respondent would be in attendance at the hearing. The Respondent’s representative did not offer any explanation for the non-attendance of the Respondent at the hearing.  

Findings and Conclusions:

The instant case was referred by the Complainant under Section 20(1) of the Industrial Relations Act 1969 and concerns a claim for unfair dismissal. The Respondent did not attend the hearing and I find that it is regrettable that the employer was not present to avail of the opportunity to explain its version of events giving rise to this dispute. Having regard to the Complainant’s uncontested evidence, I find that the following key facts have been established in relation to the dispute: · The Complainant commenced employment with the Respondent on 3rd December, 2016 as a Sales Assistant on a permanent part-time contract. · The Complainant’s contract of employment was subject to a six-month probationary period. · The Complainant worked satisfactorily for a period of two weeks following the commencement of her employment. The only performance related issue which arose concerned her lateness for work on one occasion when she had overslept. ·The Complainant was summoned, without prior notice, to a meeting with her Manager and General Manager on 16th December, 2016 and was summarily dismissed without any explanation from her employment. ·The Complainant was not afforded any prior warning or indication that her employment was in danger of being terminated for performance related issues prior to her summary dismissal on 16th December, 2016. · The first indication given to the Complainant that her dismissal was attributable to alleged performance related issues was during a meeting which she had sought with the Regional Manager on 6th January, 2017 which occurred some three weeks after her dismissal. Having considered the uncontested evidence, I find that the Complainant was not provided with any fair or reasonable opportunity to address the alleged concerns which the company had in relation to her performance. In particular, the Respondent failed to advise the Complainant that her employment was in jeopardy prior to a decision being taken to dismiss her. In the circumstances, I find that there was a manifest failure by the Respondent to adhere to the basic requirements of procedural fairness in reaching the decision to terminate the Complainant’s employment. I find that the Complainant’s employment was terminated in a manner which was procedurally flawed and in breach of the Code of Practice on Grievance and Disciplinary Procedures (SI. No. 146 of 2000). In my opinion employers are required to act fairly in all situations and are not relieved of that obligation during an employee’s probationary period. This Code of Practice is promulgated pursuant to Section 42 of the Industrial Relations Act 1990 and an Adjudication Officer is obliged to have regard in deciding on any case to which it relates. Having regard to the foregoing, I find that the dismissal of the Complainant was unfair on procedural grounds. In the circumstances, I find that the Complainant is entitled to compensation for the manner of the dismissal and I recommend that she be paid the sum of €1,500.

Recommendation:

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute. I recommend that the Complainant be paid the sum of €1,500 within 42 days of the date of this recommendation in full and final settlement of the dispute.

Dated: 14/12/2017

Workplace Relations Commission Adjudication Officer: Enda Murphy

Key Words:Industrial Relations Act 1969 – Unfair Dismissal – Procedurally Unfair - Compensation