Complainant

Respondent

Anonymised Parties

Part time sales assistant

Food outlet

Representatives

Self- represented.

Did not attend

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00020802-001

26/07/2018

The complainant commenced employment with the respondent on 3/2/2017. He worked 15 hours a week and earned €143.25. No issue had arisen during the course of his employment.

He was summarily dismissed on 29 June 2018.

He submitted his complaint to the WRC on 26 July 2018

The complainant had worked with the respondent serving food products to customers since 3/2/2017.

On 28 June 2018, while locking up the shop, he tried to clock out and discovered that his employee number had been removed from the system. He telephoned his manager who told him she would investigate and revert to him.

The next morning, the 29 June, the manager texted him to state that he was dismissed. The text stated that the owner had undertaken a performance evaluation of staff and had to let some staff go. The manager also emailed him to state that his performance had been under examination and that he had failed to exhibit the efficiency and attitude required of an employee. This was the first he had ever heard of any concerns. The complainant never had any contact with the owner or manager about a performance review, nor was he ever provided with any details of same.

He worked hard during his time there, had good relationships with customers and staff, and never had a customer complain about him. He was sick on just one day. During his time there he covered for sickness absences at short notice and frequently worked shifts on his own without a break. He opened and closed the shop. He was always punctual. He was shocked at the summary dismissal.

The complainant sought alternative employment. He took up a 15 hour a week position, earning €143, in the first week of September 2018.

The respondent was duly notified of the details of the hearing. He did not attend nor indicate inability to attend.

The Act

Section 6(1) of the Unfair Dismissals Act, 1977 states that

“subject to the provisions of this section the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless having regard to all the circumstances there were substantial grounds justifying the dismissal “.

Section 6(4) of the Act indicates what type of substantial grounds justify a dismissal and states “…………. the dismissal of an employee shall be deemed for the purposes of the Act, not to be an unfair dismissal if it results wholly or mainly from one of the following

a) ……………..

b)     the conduct of the employee”

1. The clichés contained in the text and email of the 29 June 2018, submitted in evidence, and used as the reason to dismiss the complainant are very far removed from the concept of “substantial grounds” as required by the Act.

The complainant’s description of how his dismissal occurred is not contested. There was no disciplinary procedure in the respondent’s workplace. There was no process. No advance notice of any concern on the respondent’s part, no examination of the alleged shortcomings or underperformance, no opportunity given to engage in any way with the respondent. No right of appeal was afforded to the complainant.

The EAT in   O ‘Halloran v Ballykisteen Hotel Ltd, UD 625/2013, a case involving a manager dismissed for allegedly interfering with company property- he had removed a security camera and re-installed it and discussed it with his manger -held that no wrongdoing had taken place on the basis of the evidence submitted. They stated that

“the company had failed on almost every conceivable ground and showed a complete lack of respect for the complainant as an employee. Where was the fairness here or indeed the basis for any action at all? Where was the investigation? At what point was the claimant given an opportunity to be heard and defend himself? Where were the principles of natural justice adhered to?”

Just as in the latter case, the complainant in the instant case was deprived of any process conforming to the requirements of natural justice.

Based on the uncontested evidence, I find no substantial grounds as set out in section 6 of the Act existed to warrant the dismissal. I find the dismissal to be also procedurally unfair.

Loss.

The complainant secured employment at the same salary 9 weeks following his dismissal.

I award him the full loss of 9 weeks salary which is €1,287.

I find the complainant to be well founded. I decide that the respondent should pay the complainant redress of €1,287.

Unfair dismissal; absence of process.