Complainant

Respondent

Anonymised Parties

A Restaurant Worker

A Restaurant

Act

Complaint Reference No.

Date of Receipt

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

CA-00019432-001

25/05/2018

The complainant was employed in a ‘counter assistant and front of house’ capacity on May 27th 2017 and had approximately eleven months service when his employment was terminated on April 27th 2018.

His gross pay was €370.00 for a thirty-five hour week.

The complainant was initially on probation and this was due to conclude on November 26th, six months after he commenced.

He received no indication either way about whether he had successfully navigated the probation or whether it had been extended. There had been no meeting to review his performance.

Likewise, he was not placed on notice that his position was at risk, or that he needed to achieve improvements in his performance.

Some areas which needed improvement were communicated to him, but only after his position had been terminated.

In fact, the reason he was given for the termination was that there were no hours for him, although this was subsequently denied.

The complainant believes that his sexual orientation played a part in the decision to terminate his employment.

His termination was sudden and was not subject to any process. He was simply told that he was being let go because there were no hours.

The complainant also says that he had been flexible and cooperative while an employee; agreeing to move between the respondent‘s two restaurants when required.

The respondent says that the complainant’s probation was extended although it is accepted that he was not notified of this. There were a number of reasons for the extension including timekeeping, failure to adhere to uniform standards, a poor ‘mystery shopper’ score and some other issues.

A failure to pass the probation period simply means that the person does not have the skills the respondent needs in its employees.

There was communication between the complainant and management after the termination but this did not prove productive.

The respondent accepts that the communication of the final decision regarding the complainant ‘s probation ‘could have been handled in a more formal manner’, but the decision was correct and fair based on the evidence in his employment records.

It is probably helpful to start with the statement from the respondent that it ‘accepts that the communication of the final decision regarding the complainant‘s probation could have been handled in a more formal manner’.

Put in plain English, there was no communication, formal or informal, just as there had been no communication, formal or informal at the point where the probation had been due for review. To say therefore that ‘it could have been handled better’ is a form of euphemistic acceptance that it failed to comply with the elementary obligations it had towards the complainant.

The policy of the respondent is clear enough as it what it was supposed to have done.

On joining the company new employees are employed subject to completing a satisfactory probationary period. The probationary period is intended to assess an employee’s competency, performance and suitability in relation to their continued employment with the company. An employee’s probationary period may be extended at the discretion of the company. Absence(s) due to holiday leave, sick leave, compassionate leave or unauthorised leave does not form part of an employee’s probationary period.

It goes without saying that an employee should be involved in this process. The employee’s views on their ‘competency, performance and suitability’ should, both as a matter of fair procedure and, just as importantly, efficacy be taken into account.

Similarly, the employee should be given the opportunity to remedy any deficits in these areas. Where, any perceived inadequacy might threaten their continued employment they have a right to know.

While no term for the probationary period appears to have been specified the respondent did, in fact carry out an evaluation of the complainant in his absence on May 26th, the six month anniversary of his commencement.

According to a hand written document submitted at the hearing it stated;

[The complainant] needs to improve on customer service to ensure all operational procedures are adhered to and time keeping improvement will be monitored.  

Unfortunately, the respondent apparently did not feel it necessary to communicate this assessment to the complainant so he proceeded unaware of these alleged deficits, and the fact that his timekeeping was being monitored.

The complainant had never seen the document until it was produced at the hearing.

Likewise, he was not told that these, rather mild criticisms had resulted in the extension of his probation. Indeed, at the hearing he convincingly contested allegations about absences, although again these had not been put to him the time.

Then there is the confusion about precisely why his position was terminated.

The complainant says he was told by his immediate manager that there were no hours for him, and then when he complained, the story changed. This hardly matters because the new story was not much of an improvement on the original one in terms of providing a justification of the termination of his employment.

Indeed, taking both stories together they do not add up to a justification for the termination of his employment.

The complainant felt that he was let go because he was gay. There was insufficient evidence to reach a conclusion on this and in any event, the scale of the unfairness represented by the foregoing hardly requires an additional layer of unfairness to make out his case that the termination was unfair.

The respondent could have objected to a hearing under this legislation but did not do so and attended the hearing to make its case. I detected a certain amount of good will towards the complainant.

I feel sure that it will therefore recognise, and not repeat the fundamental errors in its handling of this complainant’s case.

While what follows is only a recommendation, I also hope in the same spirit that the respondent will also recognise the complainant’s entitlement to the compensation below on the merits of his complaint and as a matter of justice.

I uphold complaint CA-00019432 and recommend payment of €6.000 to the complainant.

Unfair dismissal, Industrial Relations Act