Worker

Employer

Anonymised Parties

A Bar Manager

A Bar

Representatives

 Trades Council

 Leahy & Partners Solicitors

Act

Dispute Reference No.

Date of Receipt

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

CA-00026342-001

18/02/2019

The Worker commenced his employment with the Employer on 26^th March 2018.

He claims that he was unfairly dismissed on 11^th January 2019.

Additional submissions were received on 26^th and 30^th July 2019.

The Worker submits as follows:

He was employed for just over 11 months with no disciplinary issues. He was advised by email that his employment was terminated without any procedures being adhered to.

The Worker submits that on the morning of 8^th January 2018, GC of the Employer informed him that there was a complaint made against him. The complaint, he said was from BH (a barman) and related to the Worker’s performance over the Christmas period. BH stated that the Worker “didn’t do a tap” and that he was at the door doing security a lot, instead of serving.
The Worker submits that he told GC that he was shocked by the allegation. GC asked him to sit down with him and BH to discuss it. The Worker said he would. GC asked him not to mention this to BH who was due at work on that evening. The Worker agreed.

The Worker submits that on that evening BH came in and asked him if he had a meeting with GC. The Worker said that he did. BH said that he had one previous to the Worker. The Worker claims that being behind the bar and in front of customers he felt uncomfortable, so he asked BH to move to a quiet part of the bar. He claims that BH was agitated. The Worker asked him if everything was ok. BH told the Worker that his performance was not good enough. The Worker says that he explained to BH that these issues were not of his concern. The Worker claims that BH told him that in his meeting with GC they discussed the Worker’s performance and agreed that it was not up to scratch and also that GC confirmed that the Worker sales were down. The Worker ended the conversation at this point.

On Wednesday 9^th January 2019 early in the morning the Worker received a telephone call from GC asking about a meeting time for himself, BH and the Worker. The Worker explained to GC that BH questioned him first thing on arrival the night before. GC confirmed that he had spoken to BH about the Worker’s performance and his sales. The Worker submits that he stated to GC that it was the Worker’s job to answer to the Board of Directors and not BH. He also stated that his contract states so and that he was in breach by talking to his lower rank barman. GC asked the Worker to attend the meeting. The Worker asked him if he could bring representation to the meeting as he felt uncomfortable that BH and GC had met previously and talked about the Worker. The Worker felt that an independent person would be appropriate, GC said that he could not bring representation. The Worker replied that he would not attend.

The Worker was off work on Thursday and Friday and was due back on Saturday evening.

On Thursday 10^th January 2019 the GC contacted him again asking if he would attend the meeting. The Worker replied that he would attend a meeting with GC and not have BH in attendance. He also said that he would sit down with BH one-to-one. GC declined.

On Friday 11^th January 2019, GC asked the Worker if he could meet him on Saturday morning but the Worker had previous arrangements made. At lunchtime on Friday 11^th January 2019 GC sent the Worker an email terminating his employment.

The Worker claims that he was never provided with grievance and disciplinary procedures and has never seen such a document.

The Worker submits that he secured a part-time job as a barman and earned approximately €150-€200 a week. He subsequently secured a full-time job from April 2019 and earns €438 gross a week.

The Employer submits as follows:

The Employer denies that the Worker was unfairly dismissed and that it did not adhere to the appropriate termination procedures. 

On 4^th January 2019, BH issues with the Employer regarding the Worker’s behaviour and attitude in the workplace. The Employer proceeded to arrange a meeting between himself and BH in order to formally address the issues with the Worker.

One of the grievances raised by BH was that in his capacity as a manager, it was the Worker’s responsibility to organise breaks for other employees and this he failed to do. BH also informed the Employer that two members of staff have previously left as a result of the Worker’s behaviour.

The Employer submits that upon being informed of BH’s issues with the Worker, the Employer informed BH that it would also need to get the Worker’s account of events.

In order to address the aforementioned issues, the Employer endeavoured to organise a meeting between himself, the Worker and BH. BH insisted on the three of them attending this meeting, as he thought any meeting between himself and the Worker would merely deteriorate to an argument.

The Employer tried to schedule this meeting for 10.30am on Thursday 10^th January 2019. The Worker was informed of this meeting but refused to attend. The Worker claimed that his refusal was due to plans he had already made. However, when he was offered an alternative time he still refused.

Subsequently, the Employer endeavoured to re-schedule the meeting and the Worker further refused to attend a meeting in which himself, the Employer and BH were all to be in attendance. The Worker wanted to meet the Employer on a one-to-one basis. The Employer endeavoured to re-schedule this meeting for 12^th January 2019 but again the Worker refused.

The Employer claims that it asked the Worker to take 12^th January 2019 as a lieu day for New Year’s Eve and the Worker again refused. The Employer also asked for a suitable time to meet on the following Monday, but the Worker did not offer one. The Worker instead asked for an agenda for the meeting and asked if he needed representation.

The Employer reflected on the situation and concluded that the meeting was unnecessary. This meeting was intended as a courtesy to the Worker, however he had made such a meeting very difficult to organise and was not cooperating with the Employer.
On 11^th January 2019, the Employer notified the Worker that it was terminating his employment with immediate effect. The Worker was informed that he would receive pay in lieu of notice. The Worker was notified via email and a letter. The reason for dismissal given was that the Worker’s behaviour and failure to follow reasonable requests was untenable.

In conclusion, the Employer refutes any allegations of a failure to adhere to procedures.
At no time was the Worker unfairly dismissed on the ground claimed. The dismissal was fair on the grounds that the Worker was not cooperating with the Employer despite reasonable requests.

The Employer is a small business and ultimately ‘one-man operation’. The Employer argues that the matter did not require a great deal of investigation and that the Worker refused to meet. Moreover, the matter of appeal is moot as it was the Managing Director (GC) who made the decision to dismiss the Worker and there was nobody to appeal the decision to.

The Employer argues that there was ample opportunity to resolve the matter.

The Employer argues that there is a disciplinary procedure in place, it is located in the office and is available to staff.

The Employer claims that normally it tries to meet and mediate the situation with a view to resolving it. If the matter cannot be resolved there is no alternative but to dismiss. The Employer claims that such a ‘mediation meeting’ was offered to the Worker with BH and GC.

The Employer asserts that on Tuesday 9^th January 2019 it informed the Worker that failure to meet could lead to his dismissal.

Whilst an employee with less than twelve months of service is not covered by the Unfair Dismissals Acts, it 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:

“… 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 issues by the Employer. Rather, he was told that a subordinate had made allegations about his performance. He was then requested to meet with the Employer and the subordinate in question. It is not surprising that the Worker was somewhat apprehensive to attend such a meeting, particularly as he was not afforded the right to representation.

I note the Employer’s assertion that the Worker ‘refused’ to meet. However, the correspondence between the parties, as presented at the adjudication hearing shows that the Worker declined to meet at the time when he was off work and suggested to meet on Monday 14^th January 2019. He also noted that he would not meet with GC with BH in attendance and that he would meet on a one-to one basis.  On 11^th January 2019 at 11.59am he further inquired about an agenda for the meeting and a representation. In response the Employer replied as follows:

“Regarding our correspondence by text earlier, on reflection the meeting is unnecessary and was just a courtesy to you.

From our perspective the events of this week have made your position as manager untenable and for that reason we are terminating your employment with immediate effect.”

The correspondence does not specify that the reason for dismissal was that the Worker’s behaviour and failure to follow reasonable requests was untenable.

Post-hearing, the Employer furnished the WRC with a copy of its disciplinary procedure. The Worker contended in reply that this policy was not in place at the time of the WRC hearing.

The policy outlines in detail each stage of the disciplinary action from counselling through verbal warning, first written warning, final written warning to dismissal. I note that, even if it was accepted that the policy was in place at the relevant time, the Employer did not adhere to same.

The WRC and the Labour Court consistently emphasises 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 Employer in this case dealt with the matter 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.

I recommend that the Employer pays the Worker the sum of €5,000 in compensation for his unfair dismissal.

Unfair dismissal – not adhered to procedures-