Complainant

Respondent

Anonymised Parties

A Store Manager

A Supermarket

Representatives

Self-Represented

Mary O'Brien- Williams of Tom Smyth & Associates

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00010361-001

22/03/2017

The case concerns the alleged Unfair Dismissal of a Store Manager by a Supermarket group based in the South of Ireland.

The Complainant was dismissed on the 21st September 2016 after slightly over three months’ work.

Prior to the week before the Dismissal the working relationship had been very good and there were no issues as far as the Complainant was concerned.

However, in mid-September issues regarding cash shortages arose in the Store. An Owner/ Director of the parent Company came up from Head Office in Cork and a detailed investigation into the shortages/mislodgenemts was launched. On Wednesday of the following week the Complainant was called to a meeting in the Shop and told that “her probation was being failed”. She was asked to leave immediately. The Complainant asked for an explanation for the Probation Failure but this was not forthcoming. The Respondent indicated that as the Complainant had less than a year’s service he was not obliged to say anything.

The Complainant left the employment on that day.

In further submissions and oral evidence the Complainant pointed to the very difficult situation she faced in running the Store when her Predecessor as Manager was still actively involved on a day to day basis with the Store. This lead to a considerable amount to difficulties as regards Back Office routines and staff reporting lines. The issues over the cash irregularities were symptomatic of this problem. In effect, she was in an almost impossible Managerial positon as the New Manager when the Old Manager was so actively involved and took such an active role in cash/back office routines/reconciliations. Regarding the cash irregularities, she pointed to the fact that it was commonly believed in the local area that a more junior staff member was dismissed later for the cash irregularities.

In summary, she was a very experienced Store/Retail Manager and the suggestion as to her failing her probation was based on completely unfounded and unsubstantiated grounds that were never explained to her. She had been Unfairly Dismissed.

Asa preliminary point the Respondent pointed out that the Complaint had been lodged after a six-month period and as such should be ruled out of time.

None the less the Complainant was employed on a probationary basis. In the early stages of her employment it became clear that there were issues with her ability to receive directions and guidance from Senor Management regarding he running of the Store. It became clear to Senior Group Management that the Complainant was not suitable for the Group and her probation was accordingly not successful. Various Retail, Display /Stocking issues were pointed to by the Respondent in evidence.

An issue of significance was the questions over cash irregularities in the Store. The Complainant was spoken to about these irregularities but never in any sense was she accused of wrong doing. As Store Manager, it was in this capacity that she was spoken to. As Store Manager, she should have been completely on top of this issue. It should not have required the intervention of a Head Office Director to resolve the issue.

Regarding the meeting of the 21st September the Director had gone to this meeting with an “open mind” but the negative and heated attitude of the Complainant during the meeting had convinced him that the Probation failure decision was the right course of Action.

In conclusion, the employment had a probationary period and the Complainant failed to satisfy the Respondent’s requirements. The employment ended on this basis.

3:1     Time Limits

As this is a claim under the Industrial Relations Act ,1969 there is no time limit on the lodging of a claim under this Act. Even if the claim was subject to a six month limit the Adjudication office has the power to extend the time limit to twelve months - Section 41 (6) of the Workplace Relations Act, 2015.

I was happy that this was a case of Unfair Dismissal albeit taken under the Industrial Relations Act, 1969.

3:2     The Applicable Law

The claim of Unfair Dismissal here is under the Industrial Relations Act,1969 as it cannot come under the Unfair Dismissal Act,1977 due to the short service of the Complainant.

However, this does not mean that the guiding legal principles of Natural Justice do not apply.

A landmark case is Frizelle v New Ross Credit Union Ltd, [1997] IEHC where

Flood J. stated that where a question of unfair dismissal is in issue, there are certain matters which must be established to support the decision to terminate employment for misconduct:

“1.

The complaint must be a bona fide complaint unrelated to any other agenda of the Complainant.

2.

Where the Complainant is a person or body of intermediate authority, it should state the complaint, factually, clearly and fairly without any innuendo or hidden inference or conclusion.

3.

The employee should be interviewed and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment.

4.

The decision of the deciding authority should be based on the balance of probabilities flowing from factual evidence and in the light of the explanation offered.

5.

The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.

Put very simply, principles of natural justice must be unequivocally applied.”

Furthermore, legal instrument SI 146 of 2000 – Code of Practice on Grievance and Disciplinary procedures (declaration Order) 2000 Industrial Relations Act, 2000 applies. This S.I. essentially codifies the Rules on Natural Justice.

3:3       Consideration of the Evidence both Oral and Written.

Extensive oral and written evidence was presented to the Hearing. The main oral evidence was given by the Complainant - Ms. A and by Mr. X -the Director for the Respondent.

A number of issues became clear from all the evidence.

Firstly, that the working environment for the Complainant in the Store had been made complicated and difficult by the continued presence of the former Manager. (Mr. Y). It may never have been intentional but differences of opinion arose over Cash Recording procedures/ Accounts preparations / Accounting Returns /General Staff procedures between the two Managers. Staff reporting issues also appear to have become somewhat clouded particularly in relation to the Assistant Manager and the Deli counter staff.

The issues of the Cash Shortfalls / Till reconciliations not balancing brought in my view the underlying Management problems to the surface.

The Investigations/Interventions of the Cork based Director (which lead to the “Failing of her Probation” and Dismissal of the Complainant) fell far short of the requirements of SI 146 of 2000 – the Code of Practice on Grievance and Discipline. The meeting of the 21st September was clearly an unhappy event and the Deciding Director, in oral evidence, clearly gave the impression that he had made the Dismissal decision, if not prior to the meeting, certainly on the spot during the meeting. It was clear that the meeting had got quite heated between the parties and that this was a major contributory factor in the Probation decision.

The Role of the Former Manager (Mr. Y) was one of considerable interest but he was not presented in evidence by either party to the Hearing.

The grounds mentioned in the Oral Hearing in regard to Display issues / positioning of Offers / Sale of Fuel/Coal etc. were not of any great significance in my view. The Complainant was a very experienced Retail Manager and in her first three months there would always be differences of opinion with other Mangers regarding these relatively minor issues.

In the final analysis, the till shortfalls were the major concern of the Director but to effectively summarily Dismiss the Complainant on these grounds, under the guise of “Failing Probation”, was in my view procedurally Unfair. I failed to see good evidence of factual evidence being gathered and presented to the Complainant for a response before a considered and careful decision was taken. As an example, I did not see any evidence of detailed interviews with the Former Manager Mr. Y taking place and being presented in evidence to Ms A.

On a legal basis and put simply, not having twelve months’ service and being on probation, does not mean that all employment rights based in Natural Justice go “out the window” so to speak.

Having reviewed and considered all the evidence both written and oral I came to the view that the Failing of Probation was a cover for what was, in my considered view, an Unfair Dismissal.

Accordingly, I make a Recommendation, under the Industrial Relations Act,1969, that the Complainant be awarded Compensation of € 25,000 - being one year’s salary for the Dismissal.

The Taxation, if any, of this award to be discussed with the Revenue Commissioners before payment is made.

Act

Complaint/Dispute Reference No.

Summary Decision. Refer to Section 3 above for detailed Reasoning.

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

CA-00010361-001

Claim is well founded. A Compensation award of One Year’s salary (€ 25,000) is Recommended.