ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00005494
Parties:
Complainant
Respondent
Anonymised Parties
A Bartender
A Hotel & Bar
Representatives
Complainant
Respondent Managers
Complaint(s):
Act
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts
CA-00007699-001
17/10/2016
Date of Adjudication Hearing: 01/03/2017
Workplace Relations Commission Adjudication Officer: Michael McEntee
Location of Hearing: Room 4.05 Lansdowne House
Procedure:
In accordance with Section 13 of the Industrial Relations Act, 1969 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).
Summary of Complainant’s Case:
The Complainant was dismissed during a probationary period on alleged grounds of lateness and absenteeism. Any issues here were minor. The Complainant was not allowed any opportunity to address area where improvement might, allegedly, be required. He was not afforded any opportunity to rectify matters of concern to the Respondent.
Summary of Respondent’s Case:
The Respondent submitted in evidence a time line of numerous instances of lateness over the period from commencement of employment (27th May 2016) to the ending of employment (26th September 2016) and an instance of absenteeism/sick leave in September 2016.
Findings and Conclusions:
(1) Findings:
Oral evidence was given by the HR Administrator and Bar Manager for the Respondent as well as the Complainant himself.
It was not denied by any of the parties that there had been incidents of lateness, admittedly in the most case not that major. Seven incidents were cited by the Respondent. In addition there had been what could best be described, liberally, as misunderstandings over the dates of holidays and days off.
It was clear that the Bar Manager had come to the view that the Complainant was unreliable.
The Complainant pointed to what he maintained was a general practice of flexibility over attendance times – lates often being made up by staying late after the shift ended. He felt that he was not being afforded the flexibility that colleagues enjoyed. In relation to the Sick Leave incident in September this was a genuine once off. The Complainant lived in Malahide and was subject to the vagaries of the Bus timetables.
The Respondent pointed to well documented HR policies and the clear rules of the Bar /Hotel in regard to attendance times. The Complainant had signed for these. The Respondent had been at all times perfectly reasonable and had not treated the Complainant in any unduly harsh or inflexible manner. Copies of text messages and notes written by the Manager were presented in evidence. An incident regarding a special sales promotion in September was cited in evidence. The Complainant had not attended at very short notice to the Respondent. The Complainant had simply become unreliable and on this basis his probation was not continued.
(2) Conclusions
It is settled law, particularly in cases under the Unfair Dismissals Act, 1977, that the EAT or in this case an Adjudicator is not expected to rule on the actual merits or other wise of a dismissal decision. The Adjudicator is required to ensure that fair procedures have been followed and the rules of natural justice followed. In the case in hand the Unfair Dismissals Act, 1977 does not apply as the Complainant has not got the required employment service. None the less the basic principles can still apply even if the case is under the Industrial Relations Acts. However the Industrial Relations Act, 1969 does allow an Adjudicator a degree of flexibility in making a Recommendation.
On the basis of the evidence, both oral and written, I came to the view that the Respondent had been very patient with the Complainant. The decision not to continue with the probation period and end the Complainant’s employment was not unreasonable.
However, the Complainant was not afforded an opportunity to present his case and answer any allegations against him before being let go by means of a telephone call from the Respondent. This was a significant procedural flaw in the Respondent’s case.
SI No 146 of 2000 – Code of Practice on Grievance and Disciplinary Procedures would apply here.
Accordingly I find that the Dismissal was Unfair on Procedural grounds but that the Complainant had by his actions contributed 100% to his situation.
Recommendation:
Section 13 of the Industrial Relations Act, 1969 requires that I make a Recommendation in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions of the cited Act.
On procedural grounds the Dismissal was unfair but the actions of the Complainant contributed 100% to the Dismissal. No redress or compensation is Recommended.
Dated: 23rd May 2017
Workplace Relations Commission Adjudication Officer: Michael McEntee
Key Words: