ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00015294
Parties:
| Worker | Employer |
Anonymised Parties | A Supervisor | A Golf Club |
Representatives |
| MK Solicitors |
Dispute:
Act | Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts | CA-00019901-001 | 20/06/2018 |
Date of Adjudication Hearing: 02/05/2019
Workplace Relations Commission Adjudication Officer: Ewa Sobanska
Procedure:
In accordance with Section 13 of the Industrial Relations Acts 1969following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.
Background:
The Worker started her employment with the Employer on 12th March 2018. She was dismissed on 15th June 2018. She claims that the dismissal was unfair. |
Summary of Worker’s Case:
The Worker submits as follows: She started working for the Employer serving in the dining room and was subsequently made Supervisor after approximately six weeks, with pay raise. She worked in this role until 15th June 2018. She did not receive a revised contract upon promotion. The Worker submits that on Friday 15th June 2018 she was asked into the office. She was told that “it’s not good news” and that the Employer would have to let her go. The duty manager told her the news but it was said it was at the request of the general manager. She asked why and was told that all the staff said that she was too strict. She claims that when she asked the staff members they were shocked and said that they hadn’t complained about her. The Worker claims that it was the first she heard of anyone complaining about her. She was given no warning of any kind. She was given one weeks’ notice. The Worker emailed the general manager asking why exactly was she let go and he responded with “we decided to terminate your employment”. The original Terms & Conditions of Employment stated that she should be entitled to two weeks notice after completion of 13 weeks service, which she completed on 15th June 2018. The Worker submits that she did not secure a new employment since her dismissal. She named three pubs where she left her CV. She worked part-time for two months (earning in total €1,385 gross) until she enrolled into a full-time beauty therapist course which she started on 4th November 2018. |
Summary of Employer’s Case:
The Employer submits as follows: The Worker was employed under a contract of employment dated 12th March 2018 where she was employed as a waitress. The Worker was provided with a Contract of Employment and a Staff Handbook whereby her contract provided that she was being employed primarily as a waitress beginning on 12th March 2018 and that her employment will be “probationary for the first six months at which time her position will be reviewed. The probation period may be extended at the company’s discretion but will not in any case exceed 11 months. Termination of this agreement within the probation period shall be at the discretion of the company an in the event of such termination you (the Worker) will receive two weeks’ notice at the completion of 13 weeks service. Likewise, where you (the Worker) intends to resign from her employment during the probation period you (she) will be required to give the company two weeks notice in writing. The company disciplinary procedure will not be applicable during the probationary period.” The purpose of the probationary period is to ascertain an employee’s suitability for employment within a Company. The Worker’s probationary period was not extended and the Worker’s employment was terminated after 13 weeks and during her initial period at the discretion of the Company whereby the Company’s disciplinary procedure was not applicable and therefore it is submitted that the Worker was not unfairly dismissed. As a general principle, an employee has a legal duty to mitigate financial loss. In a full economy employment, the Worker should have little trouble becoming re-employed. |
Findings and Conclusions:
The Employer appears to be under the misapprehension that an employee on probation, who is facing the possibility of dismissal, is not entitled to the same procedural fairness as is afforded to a permanent employee in a similar situation. Whilst an employee with less than twelve months of service is not covered by the Unfair Dismissals Acts, the fact that they may be on probation does not negate their entitlement to fair procedures in relation to grievance and disciplinary matters. In its determination LCR 21798, the Labour Court found that: “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. … 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.” The Code of Practice on Grievance and Disciplinary Procedures (S.I. 146 of 2000), which promotes best practice in the conduct of grievance and disciplinary procedures, emphasises the importance of procedures to ensure fairness and natural justice. It is clear from submissions made at the hearing that the Worker in the herein case was not provided with details of any performance issue, she was not aware that she was in danger of losing her job; she was not afforded the right to representation. Whilst the Worker was informed that colleagues had made allegations about her, she was not provided with details of the alleged complaints. The Worker was not afforded a meaningful right of reply to these allegations. The WRC and the Labour Court consistently emphasised that an employer is required to follow fair procedures before it makes a decision to impose a disciplinary sanction on a worker or to dismiss the worker. The manner in which the Respondent in this case dealt with the Complainant’s performance issues left much to be desired. I am satisfied that the Employer’s handling of the entire matter clearly breached the Worker’s right to fair procedures and natural justice. |
Recommendation:
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
I recommend that the Employer pays the Worker the sum of €4,000 in compensation for her unfair dismissal. |
Dated: 23rd July, 2019
Workplace Relations Commission Adjudication Officer: Ewa Sobanska
Key Words:
Unfair dismissal during probation |