FULL RECOMMENDATION
SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : BEECHSIDE COMPANY LIMITED T/A PARK HOTEL KENMARE (REPRESENTED BY GORE AND GRIMES, SOLICITORS) - AND - A WORKER (REPRESENTED BY M.P GUINNESS B.L., INSTRUCTED BY O' MARA GERAGHTY MC COURT, SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Ms Treacy |
1. Unfair Dismissal.
BACKGROUND:
2. The case concerns a claim by the Claimant that he was unfairly dismissed.
The Employer's said it was entitled to dismiss the Claimant during his probationary period by the giving of notice to that effect, as provided for in his contract of employment.
The Claimant referred this dispute to the Labour Court on the 13th August 2018 in accordance with Section 20(1) of the Industrial Relations Act, 1969 and agreed to be bound by the Court's Recommendation.
A Labour Court hearing took place on the 28th September 2018.
WORKER'S ARGUMENTS:
3. 1. The Claimant said he was headhunted by the Employer to accept a role as General Manager of the Hotel.
2. He moved from Dublin to Kenmare to take up the role in January 2018.
3. He was dismissed without warning on 27th April 2018 by the Managing Director.
EMPLOYER'S ARGUMENTS:
4. 1. The Employer disputed that the Complainant had been headhunted.
2. The Managing Director was entitled to dismiss the Claimant.
3. The contract of employment unequivocally provides that either party can terminate the contract by giving written notice during the probationary period.
RECOMMENDATION:
The matter before the Court was brought under Section 20(1) of the Industrial Relations Act 1969 and concerns a claim of unfair dismissal.
The Claimant alleged that he was headhunted by the Respondent to accept a role as General Manager of the Hotel. He said that following negotiations on his terms and conditions of employment he moved from Dublin to Kenmare and commenced in the role on 29thJanuary 2018. The Claimant maintained that he was dismissed without warning on 27thApril 2018 when the Managing Director called him to a meeting and informed him that“this was not working out”and asked him to leave with immediate effect.
The Respondent did not appear before the Court, however, it was represented by its legal representatives, who disputed that the Claimant had been headhunted. The Respondent’s Solicitor submitted that the Respondent was entitled to dismiss the Claimant during his probationary period by the giving of notice to that effect, as provided for in his contract of employment.
The Court has given careful consideration to the submissions of both parties. The Court notes that the Claimant was furnished with a 36-month fixed term contract, which provided that“All dismissals will be carried out in accordance with the Provisions of Part Two of this Contract”.Part Two of the contract outlines the disciplinary procedures, which includes:- the carrying out a full investigation before dismissal; being informed of the reasons for the dismissal; the right to reply; the right to be accompanied at meetings and the right to appeal a decision to dismiss.
Having considered the positions of both sides, the Court is of the view that the procedures adopted in the termination of the Claimant’s employment were seriously flawed. He was not afforded fair procedures in accordance with the Code of Practice on Grievance and Disciplinary Procedures S.I. No. 146 of 2000.
Where an employee is considered unsuitable for permanent employment, the Court accepts that an employer has the right, during a probationary period, to decide not to retain that employee in employment. However, the Court takes the view that this can only be carried out where the employer adheres strictly to fair procedures.
In the particular circumstances of this case, there is no reason to doubt the Claimant’s assertion that his reputation was seriously damaged by the actions of the Respondent. The Court has consistently held the view that it is imperative that an employer in a dismissal case must not only show that there were substantial grounds justifying the dismissal but also that fair and proper procedures were followed before the dismissal takes place. This requirement of procedural fairness is rooted in the common law concept of natural justice.
The Court is satisfied that the Claimant was not provided with details of any performance issues; no warning was given that his employment was in jeopardy; he was not afforded the right to representation; he was not provided with reasons for his dismissal and he was not afforded an opportunity to reply. Therefore, the Court is satisfied that he was denied natural justice.
In all the circumstances of this case and bearing in mind the level of remuneration the Claimant was earning, the Court recommends that the Respondent should compensate the Claimant by the payment of €90,000.00 to be accepted in full and final settlement of the claim.
The Court so Recommends.
Signed on behalf of the Labour Court
Caroline Jenkinson
CR______________________
16 October, 2018Deputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Ciaran Roche, Court Secretary.