Complainant

Respondent

Anonymised Parties

General Assistant

Restaurant

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00010849-001

17/04/2017

The Complainant was employed as a General Assistant with the Respondent from 25th January 2017 until the employment was terminated on 14th April 2017. The Complainant was paid €1300.00 gross per month and she worked 35 hours a week. Her hourly rate was €9.28 an hour. The Complainant referred a dispute under the Act to the Workplace Relations Commission on 17th April 2017 alleging she had been unfairly dismissed by the Respondent. The Dismissal was not disputed.

The Complainant was employed from 25th January 2017 and her employment was terminated following a number of meetings with a named Manager, to discuss her poor performance together with a letter from the Company dated 29th March 2017 outlining the Company’s concerns. The Complainant had been issued with a Contract of Employment and also the Company Handbook. The primary concerns of the Respondent related to the Complainant’s attitude to her Supervisors – her interaction with customers and that she had been observed drinking water in the food service area. The Complainant attended a meeting with a named Manager on 29th March 2017 and the purpose was to advise the Complainant that her trial period was being extended as a result of the Respondent’s concerns which are set out in the letter of 29th March 2017 and also that her trial period was being extended until the end of April 2017.

Some 4 days later on 2nd April 2017 the Complainant was rostered for work from 12 noon to 6.30pm. However, she left work at 6.09pm. Her Supervisor reminded her that her shift had not finished. The Complainant walked away from her Supervisor to a seating area within the Restaurant and began using her phone and she was not wearing her uniform hat at this time. A complaint was made to HR by her Supervisor in relation to this incident. On 3rd April 2017 the Complainant was scheduled to finish work at 6.30pm but was again observed by her Supervisor on her phone and drinking water behind the counter.

The Respondent met with the Complainant on 14th April 2017, who was due to go on annual leave the following week. The Complainant was informed she would not be retained in the employment and the reasons why were put to the Complainant, namely her behaviour on 2nd and 3rd April 2017.

The Respondent argued that the Complainant had received her Terms and Conditions of Employment which includes a signed receipt of same by the Complainant. Her Contract provides for a probationary period of up to three months during which an employee’s performance is assessed.

The Respondent also outlined at the Hearing the Company policy on the use of phones and this is set out at Clause 6 of the Handbook. Although advised numerous times by her Supervisor of this policy nonetheless the Complainant continued to use her phone. The Complainant was also provided with training and records were provided to the Hearing in which the Complainant’s signature is on the training course attended by her in January and February 2017. Basic hygiene rules were outlined on these courses concerning the intake of food or drink by employees at food areas. Again, the Complainant ignored both her training and the policy in the Handbook.

Finally, the Company always supports employees to improve themselves and therefore extended the Complainant’s trial/probationary period to the end of April 2017 and this was set out in their letter of 29th March 2 017.

The Complainant stated that she was due to finish her shift on 14th April 2017 at either 2pm or 2.30pm. Her Manager called her to attend a meeting at 3pm which she did. She stated that she was handed her P45 at this meeting which was attended by another Supervisor with her Manager. The copy of the P45 however states that her dismissal is effective from 6th April 2017.

On the basis of the evidence and a written submission from the Respondent I find and recommend as follows:

The Complainant was provided with a written statement of her Terms and Conditions of Employment which included the Staff Handbook and the Complainant acknowledging receipt of these on 25th January 2017 – the date she commenced her employment. The staff handbook at paragraph 6 provides as follows – “The Company has no objection to limited number of important local calls being made provided that permission is sought from your Supervisor. Both parties confirmed at the Hearing that the Complainant had used her phone on both 2nd and 3rd April 2017 while the Complainant was rostered to work and both Parties confirmed that the Complainant had not sought permission to do so from her Supervisor.

The Complainant’s Conditions of Employment does provide for a Probationary Period where it provides as follows – “Your employment is for a probationary period of up to three months. During this time your performance will be assessed and the Company shall have the sole and absolute right of deciding on your suitability. Either during this period or at the end of it, you will be notified as to whether or not your services have been satisfactory and accordingly your employment will be: (a) Confirmed (b) Terminated without recourse to the disciplinary procedures set out elsewhere in these conditions (c) Subject to a further probationary period”. The Respondent’s Manager met the Complainant on 29th March 2017 to discuss her performance. The Manager identified some four concerns in relation to the Complainant. Following this meeting the Complainant was informed by letter dated 29th March 2017 that her probationary period had been extended until the end of April.

Following the incident of 2nd April 2017 the Complainant’s Supervisor lodged a complaint with Management in relation to the incident and a further incident on the following day, 3rd April 2017.

The Respondent met with the Complainant on 14th April 2017 at which she was informed that she was not to be kept in the employment and would not be giving her a permanent position. The Respondent explained to her, according to the notes of this meeting, that her probationary period had been extended but that some days after this there was the incidents of 2nd and 3rd April 2017. She was informed that her behaviour was unacceptable and she was dismissed.

I note that the Complainant in her complaint form to the WRC states that she had no “prior oral or written warning” prior to her dismissal, however, I note that the Complainant did have her probationary period extended by letter 29th March 2017 until the end of April for four stated reasons.

I find that the Complainant should have been entitled to fair procedures in the form of a Disciplinary Hearing where she was afforded an opportunity to respond to the Respondent in relation to the incidents of 2nd and 3rd April 2017 and she should have been afforded a right of appeal of her dismissal.

The Complainant confirmed at the Hearing that she had taken up full-time employment, earning €1500.00 gross per month on an unspecified date in June 2017

On the basis of the evidence and my findings above and in accordance with Section 13 of the Act, I declare the complaint is well founded as the Complainant was not afforded fair procedures and natural justice in relation to the termination of her employment. However, I also find that the Complainant, by her actions on 2nd and 3rd April 2017, while her probationary period had been extended, contributed significantly to her dismissal. Accordingly I recommend that the Respondent pay the Complainant compensation of €200.00 within 42 days of the date of this Decision.

Dismissal while on an extended probationary period – contributed to her dismissal – fair procedures not observed by the Respondent