Complainant

Respondent

Anonymised Parties

A Sales Manager

A Retail Outlet

Representatives

Eversheds Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00005574-001

29/06/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00005574-002

29/06/2016

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

CA-00005574-003

29/06/2016

The complainant was employed as a manager by the respondent, a branch of a large chain on March 28th 2016. His employment was terminated on June 26th due to ‘failure to meet the satisfactory level of performance’ expected of a Sales Manager at his level.

The complainant said that he had been provided with insufficient training throughout his employment with the respondent. Some of the performance management conversations with him were unhelpful in that they were excessively negative and critical. They failed to take account of the pressures on him in the business.

He says that he did not receive a statement of his Terms of Employment as required by the Terms of Employment (Information) Act 1994.

He was also due wages and holiday pay which had not been paid to him.

The respondent outlined in very considerable detail the various interactions with the complainant in relation to his performance.

These began on March 29th, 2016; there were others on a regular basis; thirteen in total in the period up to June 29th when the complainant, who was a probationary employee, had his contract of employment terminated.

Detail was given of the nature of these ‘counselling’ meetings; all of which related to the complainant’s performance.

Regarding the statement of Terms of Employment the respondent operates an ‘on-line’ portal for this purpose.

All new employees are required to log on to this before turning up for work at the company. They are required to enter personal details and then navigate to the page which contains the Terms of Employment statement. It is not possible to conclude the process without seeing and accepting the Terms of Employment.

Evidence was given by the HR Manager for Ireland and Scotland that the company had two thousand employees in that region and had never experienced a problem before. This was also true of the wider group in the UK.

Regarding the complaint regarding holiday pay the respondent had payslips showing that all outstanding monies had been paid.

CA-00005574-003

The main obligation falling on an employer in any termination of employment is that it acted fairly both in relation to the subject matter of any difficulty or conflict between the parties and the processing of those difficulties.

The burden of demonstrating this is somewhat different in a case not covered by the Unfair Dismissals Act 1977, and more particularly in a situation where a complainant is on probation.

The respondent comfortably discharged that burden in this case. The complainant stated in his evidence that, while some training was given no-one ever came to help him, or that when they did (in the case of one particular manager) it had been negative and critical.

Learning often arises in situations such as this because mistakes have been made, and this is one of the purposes of a probationary period. The complainant may have been oversensitive to criticism of his performance, but the number of interactions referred to above aimed at improving it could hardly be faulted.

Certainly the respondent management is better placed to assess whether an employee is responding to its oversight of the probation than an Adjudication Officer, subject to there being evidence of having carried out an active process aimed at doing so.

I find that they did carry out such a process and did so fairly and appropriately and that the dismissal was fair.

CA-00005574-001

Regarding, the statement of Terms of Employment I think that it is highly improbable that the complainant did not ‘see’ the statement. I qualify ‘see’ here because I strongly doubt whether every user of a booking or other web based system who clicks the acceptance button in relation to Terms of Employment has actually read them. (A report in The Guardian on March 3rd 2017 of a Canadian research project showed that only a quarter of the sample group of 543 students did so!).

Of course, failing to do so may not provide a defence in any subsequent proceedings in the commercial context.

The situation is somewhat different here.

The system operated by the respondent can, in principle fulfil the obligations under section 3 of the Act but where, as in this case, a dispute arises an obligation falls on the respondent to provide evidence that it met its obligations under the Act. It did provide a screen shot of the complainant’s completion of the navigation but not of his having read the specific material relating to the statutory statement.

The complainant was adamant that he had never seen them. Accordingly I find in his favour on this point.

CA-00005574-002

The difficulty arising under the final complaint created a conundrum. The respondent provided evidence of the payment, but not of its having been cashed, and again the complainant said he did not receive it. It seems that the cheques were sent to the shop in question, but by the time it arrived he no longer worked there.

While it seems odd that the respondent took no further steps to forward the cheque to the complainant’s home address (or that the complainant failed to inquire about the whereabouts of his money) the parties were given further time to investigate what happened.

In due course the respondent established that the original cheque had not been cashed and reissued it, on foot of which the complainant withdrew this complaint.

I uphold complaint CA-00005574-001 and award the complainant €250. I do not uphold complaint CA-00005574-003 and it is dismissed. CA-00005574-002 was withdrawn.

Dismissal under twelve months’ service, Terms of Employment, Annual Leave