Complainant

Respondent

Parties

A Trainee Manager

A Bakery

Act

Dispute Reference No.

Date of Receipt

Complaint    seeking adjudication by the Workplace Relations Commission under the    Industrial Relations Acts

CA-00011447-001

21/05/2017

The Claimant is an American national who submitted a   complaint to the WRC on 21 May, 2017 that she had been unfairly dismissed   .Due to her sub one year tenure , her case was advanced under the Industrial   Relations Act, 1969 , as amended .

The Claimant gave an outline of her case .She submitted   that she had worked at the Employers Bakery outlet from 10 April 2017 to 15   May 2017. She worked a 50 hour week and was paid €480 gross per week.

The Claimant submitted that she had left a job as store   supervisor for a large Coffee outlet to take up the position and was excited   as she saw it as a great opportunity in a new venture .She undertook an   unpaid training period where she had to travel out of the city to the company premises.

The Claimant submitted that she had a number of issues   with her employment surrounding accessing her signed contract of employment   and viewing her electronic pay slip.

The Claimant submitted that she had a period of certified   sick leave from 3 May to 15 May, where she was hospitalised.

On her return to work on 15 May, she was requested to   attend a meeting at the Company premises, some distance from her workplace   .She was informed by the Managing Director in the company of the Human   Resource Manager that her contract was being terminated with immediate effect.   She was informed that she hadn’t been doing her job right, and “I wasn’t   working out “.This was the first occasion where she had been informed   anything was wrong. The Claimant contended that she was denied an opportunity   to improve as the issues raised at the meeting were not flagged with her   during the course of her employment. She stated that she had a clean   Disciplinary record.

The Claimant submitted that she was denied a voice to   speak on her behalf, her keys were retained and she was escorted out of the building.   The meeting lasted 5 minutes.

The Claimant contended that she had been fired as a   consequence of being ill .She submitted that the store was understaffed as it   had been very busy since it first opened. The Claimant contended that she had   been wrongly dismissed and the claims of her poor performance had been   exaggerated by the company and were “a lie on her character”. The Claimant   stated that she had loved her job and had taken on a multitude of tasks at his   store. She was not aware that she was on probation.

The Claimant sought   an apology and compensation to resolve the dispute. The Claimant gave   evidence of financial hardship resulting from the dismissal .

The Employer disputed the claim. On 21 June, the company   made a written submission to the WRC. The Employer was subsequently   represented by HR Specialists at the hearing.

The 21 June submission outlined that the company had   opened a new retail outlet in May 2017.They had sourced management candidates   via a recruitment agency and the claimant was deemed suitable for a Trainee   Managers position with a view to developing her for potential future   management positions.

The Claimant signed a contract which incorporated a   probationary period .The Store had a very busy start up period and specific   training was provided to the claimant.

The Employer contended that the claimant had proved unsuitable   for the role and outlined instances of this dissatisfaction .The Employer   contended that these were raised with the claimant during the course of her   probation in a coaching style. The Employer confirmed that they had not   retained documentary evidence of the probation period; however, the Claimant had   failed her probation.

The Employer submitted that the company had taken the   decision to terminate the claimant’s probation in advance of her sick leave   and denied the connection made by the claimant to her sick leave leading to   her dismissal.

The Employer outlined the review meeting post the claimant’s   sick leave of May 15, where the claimant’s shortcomings were listed to her   and she was given an opportunity to question, but did not question. The Claimant   was paid one weeks pay in lieu of notice.

The Employer submitted that the claimant was offered a   lift after the meeting, but declined and the company retrieved her uniform   and work keys.

The Employer acknowledged the shock experienced by the   claimant on 15 May .The Company prided itself on a strong family ethos in business.   They wished the hearing to note that the company had offered the claimant   feedback on her work performance and this was not taken on-board by her.   Ultimately, the company found that she wasn’t suitable for the business .The   Company had taken some learning from the experience and saw the importance of   keeping notes during the probationary   period of employment.

The Company offered to apologise to the claimant in   respect of how her termination of employment was handled and reaffirmed that   the claimant had received one weeks pay in lieu of notice.

I have given careful consideration to the   submissions advanced by the parties. I note that the context and background   of the case was set against a start up of a business which soon proved   extremely popular.

I note that the claimant undertook   training for a two hour period on 11 April, 2017 and the store opened on   April 27, 2017. I understand that preparation for a start up business is   challenging for all parties. The Claimant was a new employee on probation and   while it is clear that she signed the contract of employment on 24 April,   2017, she did not participate in a formal probation process. This was to her   detriment as she understood that she was performing well.

On the Employers evidence, I detected that   the company was not satisfied with aspects of the claimant’s performance and   I accept that they sought to address these with her through feedback. They   confirmed that they had not maintained records of probation and linked this   to the business taking off at a more successful level than they anticipated.

The claimant presented as being very upset   throughout the hearing and was accompanied by a friend for support .When   asked what remedy she sought in the hearing?, she articulated that she sought   an apology for how she had been treated; she later amended this to compensation.

The Employer acknowledged that there were   shortfalls in the administrative management of both the claimants probation   and the meeting of May 15.However, they disputed the claimants contention   that her performance had gone unremarked and submitted a number of examples   of incidents which caused concern to the store manager, which she had in turn   passed on to the Management Team for action.

I have considered the probationary clause   incorporated in the contract of employment in this case. The clause allows   for a 6 month period of probation with a possibility for extension to 11   months. It provides for an assessment of performance and monitoring of progress.

“ If feedback is given, it must be   listened to ,as if you are reasonably deemed unsuitable to continue with the   business ,regrettably you will not pass probation and will be let go “

The   standard Disciplinary procedure will not be used during the probationary period.

The Labour Court has been persistently   critical where fair procedures and natural justice have been omitted in cases where a probationary period has ended   in termination.

I do not accept that an Employer may reasonably refrain from the   utilisation of a Disciplinary procedure   during a probationary period .

In Glen Patrick Water Coolers V A Worker LCR 21028,the Court found procedural deficiencies following a summary   dismissal for performance issues .The Court also remarked on the lack of adherence to the   Statutory Code on Disciplinary procedures ,S.I.146/2000.

The Employer was clear in this case that   the claimant was being considered for termination in advance of her sick   leave due to her unsuitability for the role. The Store was in its first week   of trading at that time .I accept that   the claimant was completely unaware of this .She disputed the instances where   the Employer stated that concerns were raised about her performance and in   the absence of an internal   investigation ,I could not   probe this further .

I accept the evidence of the Employer that   they were dealing with significant concerns raised by the store staff in   relation to the claimant’s performance and these matters informed their   decision to hold the meeting on May 15, 2017.

I found that this meeting was handled   insensitively in all the circumstances .The claimant was not addressed in   advance of the meeting and this added to her shock and resultant trauma   .However, I am satisfied that she was permitted an opportunity to express her   point of view on two occasions but felt unable to .I also accept that the   claimant was not being punished for being ill.

A probationary period is established as a   trial period of employment to protect the interests of both parties but it   should be underpinned by tools of support, records and an opportunity for   corrective action. I accept that the Employer has committed to learning from   the omissions in this case.

I have found that the claimants employment   was overshadowed by the economic reality of a busier than expected start up   business and insufficient time was allocated to assessing her performance in   accordance with the contractual framework .I accept that she was not permitted an opportunity to improve .

However, I accept that while she received   feedback on her performance, she had no idea that her probationary period was   in danger.

I found that the Employer was sincere in   the apology offered to the claimant at hearing; I found that the claimant   moved the goalposts in terms of redress towards compensation once that offer   was made.

• That employee grievances are fairly   examined and processed;

• That details of any allegations or   complaints are put to the employee concerned;

• That the employee concerned is given the   opportunity to respond fully to any such allegations or complaints;

• That the employee concerned is given the   opportunity to avail of the right to be represented during the procedure;

• That the employee concerned has the   right to a fair and impartial determination of the issues concerned, taking   into account any representations made by, or on behalf of, the employee and   any other relevant or appropriate evidence, factors or circumstances.

I have found that Employer did set out the   details of the issues in relation to the claimant’s performance on 15 May;   2017.I am satisfied that the claimant   was given an opportunity to respond. However, given that the decision had   been made to terminate employment in advance of the claimant’s sick leave   which commenced on May 3, I have concluded that she was denied an impartial   determination of the issues concerned .She was not afforded an appeal.   Consequently; I have found that there is some merit in the claimants Dispute   with her former employer.

The Claimant raised issues around her   application to the Company under Data Protection Legislation. This is not a   matter I can comment on.

Dated:    

Workplace Relations   Commission Adjudication Officer: Patsy Doyle

Key Words:

Unfair Dismissal , Industrial Relations Act , 1969, as amended .