Complainant

Respondent

Anonymised Parties

Supermarket Manager

Supermarket

Representatives

Gerard J Meehan & Co.

HR Department

Act

Complaint Reference No.

Date of Receipt

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

CA-00020457-001

10/07/2018

The Complainant has submitted a complaint of unfair dismissal against the Respondent. The Respondent rejects the complaint and contends that the Complainant has insufficient service to avail of the provisions of the Unfair Dismissals Act.

The Respondent submits as follows:

The Complainant commenced employment with [his previous employer] in [the first supermarket] in 2010.

In November 2016, the Complainant was asked to work in [the second supermarket] during stage 2 of a TUPE. The Complainant was aware that [the second supermarket] was being considered for takeover by [his previous employer] and his assistance in preparing the store for same would be greatly appreciated.

The Complainant was always aware that he was still employed by [his previous employer] and was paid by [his previous employer] while working in [the second supermarket] that was being taken over. In addition, the Complainant knew that his role as Store Manager in [the first supermarket] was secure and available to return to once his duties in [the second supermarket] were complete.

In January 2017, the Transferor notified its employees about the transfer. The Complainant was never identified as a member of staff included in the transfer as he was not employed by the Transferor. The Respondent submits, therefore, that there is no foundation to his claim of unfair dismissal under TUPE.

The TUPE was completed in April 2017. The Complainant was still employed by [his previous employer] and was still on their payroll.

The Complainant was offered the option to return to his role in [the first supermarket] as Store Manager or to accept a new role with the Respondent in [the second supermarket].

The Complainant, upon consideration of the job offer, accepted the new role with the Respondent. The Complainant gave notice in relation to his position as Store Manager in [the first supermarket] and was then issued with a P45 from [his previous employer] on 12th April 2017. The Respondent asserts that the Complainant was aware that he was leaving one employer and accepting a role with a new employer.

At the hearing, the Respondent’s representative confirmed that it was unable to provide any documentation in relation to the Complainant’s change of employer apart from payslips which show a change in the name and registration number of the Complainant’s employer. The Respondent asserted that the Complainant’s weekly wage increased from €450 to €600 after the move to the new employer.

It is the Respondent’s position that the Complainant contacted the Revenue Commissioners to register his PPS number to his new employer’s registration number to ensure he would not be placed on emergency tax in his new job.  The Respondent asserts that their accountant has confirmed this.   The Respondent submits that this would indicate that the Complainant was fully aware that he had ceased working with one employer and had started working with a new employer under a new set of Terms and Conditions and had entered a new probationary period with a new employer.

At the hearing the Respondent’s representative was unable to provide a copy of the Complainant’s new contract nor were they able to provide any evidence that the Complainant had been issued with an Employee Handbook.

The Respondent asserts that the Complainant was on a Performance Improvement Plan (PIP) in 2017 and that, as part of the PIP, the Respondent put support measures in place to assist the Complainant with his role and his pre-set targets. The Complainant was notified of any concerns regarding his performance and was given reasonable timelines in order to rectify same. Assistance was in place to help the Complainant achieve targets.  

In January 2018, the Complainant was invited to discuss his performance, as despite a PIP being in place, the Respondent was of the view that the Complainant was not improving in his new role despite attempts to develop and assist him.

The Respondent submits that as the Complainant was in a new role with a new employer, a clause in his contract provided for a maximum 9 month probationary period and it clearly stated that his employment could be terminated at any stage or at the end of this period. A decision was made to invoke this clause and terminate his employment.

The Complainant was provided with a letter outlining the final decision. As per the Respondent’s disciplinary process, the Complainant was afforded the opportunity to appeal this decision. The Complainant did not avail of this in-house opportunity to appeal the disciplinary action.

At the hearing, the Respondent maintained that even though the Complainant was dismissed from his position in [the second supermarket] the Complainant did have a position to return to in [the first supermarket].

The Respondent submits that, due to the change of employer in 2017, the Complainant does not have sufficient service with the Respondent to avail of the provisions of the Unfair Dismissals Act.

The Complainant submits as follows:

Continuity of Service

The Complainant started working in [the first supermarket] in September 2010 before the shop was bought by [his previous employer] in February 2014. He was first employed by [his previous employer] as Assistant Manager and was subsequently promoted to Manager in September 2014. The Complainant worked there in that capacity for more than 2 years.

On 21st November 2016 the Complainant was told by [his previous employer] that the following day he was to report for work as Manager of [the second supermarket]. The Complainant reported there as directed and worked there until his dismissal in January 2018.

With regard to the Respondent’s claims that on or about 10th April 2017 the identity of the Complainant's employer changed, and that from the time of that change the Complainant was employed by the Respondent and was no longer employed by [his previous employer], the Complainant submits that he received no notice of termination of his employment from [his previous employer] nor did he receive any payment in lieu thereof. The Complainant further submits that he did not resign his position as Manager of [the first supermarket].

The Complainant contends that for the five months before the date upon which the identity of his employer is alleged to have been changed and for the nine months afterwards until he was dismissed, the Complainant did exactly the same work and reported to exactly the same people.

The Complainant notes the Respondent’s assertion that the Unfair Dismissals Acts are of no avail to him because his employment commenced less than one year before his dismissal.

The Complainant maintains that this raises the issue of whether the Complainant may regard the period before the alleged change of employer, together with the period thereafter, as a continuous period for the purposes of the Unfair Dismissals Acts. If he may, then he has a continuous period of employment of nearly four years and a period in excess of three years as Manager and in that circumstance there can be no doubt that he may have the benefit of the Unfair Dismissals Act.

In this regard, the Complainant relies on Section 2(4) of the Unfair Dismissals Act 1977 which provides that:

“The First Schedule to the Minimum Notice and Terms of Employment Act, 1973, as amended by section 20 of this Act, shall apply for the purpose of ascertaining for the purposes of this Act the period of service of an employee and whether that service has been continuous.”

It is the Complainant’s position that this section confirms that the First Schedule of the 1973 Act (as amended) is to be used to determine whether an employee's service has been continuous.

The First Schedule to the Minimum Notice and Terms of Employment Act, 1973 provides as follows:

“The service of an employee in his employment shall be deemed to be continuous unless that service is terminated by—

( a) the dismissal of the employee by his employer, or

( b) the employee voluntarily leaving his employment.”

The Complainant submits that because he was not dismissed and did not voluntarily leave his employment with [his previous employer], the employment of the Complainant in this case must be regarded as continuous from the date he commenced employment in [the first supermarket] in 2014.

The Complainant further relies on Section 6 of the First Schedule to the Minimum Notice and Terms of Employment Act, 1973 which provides that:

"The continuous service of an employee in his employment shall not be broken by the dismissal of the employee by his employer followed by the immediate re-employment of the employee. "

The Complainant submits that, even if (which he disputes) he was dismissed in April 2017 his immediate re-employment preserves his continuity of service.

The Complainant refers further to the Minimum Notice and Terms of Employment Act, 1973 amended by section 20 of the Unfair Dismissals Act. Pursuant to that amendment the following paragraph is substituted for the original paragraph 7 of the 1973 Act:

“Where the whole or part of a trade, business or undertaking was or is transferred to another person either before or after the passing of this Act, the service of an employee before the transfer in the trade, business or undertaking, or the part thereof so transferred —

(a) shall be reckoned as part of the service of the employee with the transferee, and

(b) the transfer shall not operate to break the continuity of the service of the employee,

unless the employee received and retained redundancy payment from the transferor at the time of and by reason of the transfer.“

The Complainant submits that it is common case that the Complainant was employed in the trade or business in [the second supermarket] as an employee of [his previous employer] for five months before the alleged change of his employer to the Respondent in April 2017. He was employed during that time by [his previous employer] to work as Manager of a business in [the second supermarket] which was owned by third parties. The business which he was managing was transferred to the Respondent in April 2017.

The Complainant submits that it follows, therefore, that his service in [the second supermarket] for five months prior to the transfer should, in accordance with section 7 of the Minimum Notice and Terms of Employment Act, 1973, be reckoned as part of the Complainant's service with the Transferee (the Respondent) and that the transfer "...shall not operate to break the continuity of the service of the employee."

Accordingly, the Complainant asserts that he is entitled to reckon his continuous service with the Transferee (the Respondent) from the commencement of his five months service in [the second supermarket] in November 2016 to the date of his unfair dismissal by the Respondent in January 2018.

The Complainant submits, therefore, that he had in excess of one year’s continuous service with the Respondent at the time of his dismissal on 23rd January 2018.

Dismissal

The Complainant submits that on 21st November 2016 he was told by a Director of [his previous employer] that he was required to work at [the second supermarket] from the following day. He worked in [the second supermarket] from 22nd November 2016 until 12th April 2017 and continued to be paid by [his previous employer]. Although he was told nothing about it, [the second supermarket] was being transferred to the Respondent and the Complainant received his first payslip from the Respondent on 19th April 2017.

Following the change of employer, the Complainant contends that he continued to work at [the second supermarket] under the same conditions as before until 23rd January 2018. The Complainant asserts that when he arrived at work on that day, he was ambushed by two company directors and was told that things were not working out and he was being dismissed immediately. He was so shocked he didn't even ask why but he enquired by telephone call later that evening and was told that HR would write to him. It was only then that he realised that the Respondent was denying him his entitlement to have his employment regarded as continuous from 14th September 2010 but was instead treating him as if he only started work on 12th of April 2017.

The Complainant submits that his dismissal was unfair as there had never been any suggestion prior to his dismissal that his position was under threat. The Complainant asserts that he had never been told that his performance was poor and that it needed to improve. The Complainant disputes that he was on a Performance Improvement Plan. The Complainant submits that he never received any feedback or performance coaching. The Complainant further submits that he was never provided with any goals or targets in relation to his job.

The Respondent submitted a copy of the Complainant’s dismissal letter of 24th January 2018 to the hearing. A copy of the Respondent’s Disciplinary Appeals Procedure was attached to the letter. At the hearing, the Complainant asserted that he had never seen Disciplinary Appeals Procedure prior to the hearing.

The Complainant said that he had submitted a data access request to the Respondent and that the only documentation he received on foot of this was a copy of his medical certs. The Complainant asserts that he did not receive any of the following documentation: a copy of his Contract of Employment; a record of core requirements of his job; information relating to a disciplinary process; a notice or agenda for any disciplinary meetings; warning notices, or documentation in relation to a Performance Improvement Plan such as evidence of feedback, a record of performance coaching or a record of specific goals or targets.

Mitigation of Loss

The Complainant secured a new job seven weeks after he was dismissed from his job with the Respondent albeit at a lesser rate of pay. The Complainant calculated his loss of income from the date of his dismissal to the date of the hearing as €19,000.

Length of Service

Before I can address the matter of the Complainant’s dismissal, I must first investigate whether he has sufficient service to come within the scope of the Unfair Dismissals Act.

Section 2(1)(a) of the Unfair Dismissal Act, 1977 provides that:

“Except in so far as any provision of this Act otherwise providesthis Act shall not apply in relation to any of the following persons:

( a) an employee (other than a person referred to in section 4 of this Act) who is dismissed, who, at the date of his dismissal, had less than one year’s continuous service with the employer who dismissed him,”

I must decide, therefore, if the Complainant at least one year’s service with the Respondent.

I note the Complainant’s submission in relation to Section (2)(4) of the Unfair Dismissals Act which relies on the First Schedule to the Minimum Notice and Terms of Employment Act, 1973 for a definition of “a period of service of an employee and whether that service has been continuous”.

The First Schedule to the Minimum Notice and Terms of Employment Act, 1973 provides as follows:

“The service of an employee in his employment shall be deemed to be continuous unless that service is terminated by—

( a) the dismissal of the employee by his employer, or

( b) the employee voluntarily leaving his employment.”

Surprisingly, despite its assertion that the Complainant gave notice in relation to his role as Store Manager in [the first supermarket] when his employer changed in April 2017, the Respondent was unable to produce any documentary evidence in support of this assertion.   Furthermore, the Respondent did not adduce any evidence to suggest that the Complainant was dismissed from his previous employment in April 2017 prior to moving to a new employer.

Given the absence of cogent, persuasive evidence from the Respondent, I accept the Complainant’s contention that he was not dismissed nor did he voluntarily leave his employment with [his previous employer].   I also accept the Complainant’s contention that for the entire time he was working in [the second supermarket], both before and after the identity of his employer changed, he did exactly the same work and reported to exactly the same people.

I am of the view, therefore, that the employment of the Complainant must be regarded as continuous from the date he commenced employment in [the first supermarket] in 2014 until his dismissal on 23rd January 2018.

Accordingly, I find that the Complainant has sufficient service to enable him to avail of the provisions of the Unfair Dismissal Act.

I will now consider whether the Complainant’s dismissal by the Respondent was unfair.

Dismissal

Section 6(1) of the Unfair Dismissals Act 1977 provides that “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 Unfair Dismissals Act, 1977 provides as follows:

 (4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

The Unfair Dismissals Act places the burden of proof firmly on the employer to show that the dismissal of an employee was not unfair.

Procedural Issues

The WRC and the Labour Court have consistently emphasised that an employer is required to follow fair procedures before it makes a decision to dismiss an employee.

The Code of Practice on Grievance and Disciplinary Procedures (SI 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.

The Code of Practice emphasises that good practice entails a number of stages in the discipline and grievance process as follows:

·       That employee grievances are fairly examined and processed

·       That details of any allegations or complaints are put to the employee concerned

·       That the employee concerned is given the opportunity to respond fully to any such allegations or complaints

·       That the employee concerned is given the opportunity to avail of the right to be represented during the procedure

·       That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors, circumstances.

The Respondent was represented at the hearing by a member of its HR Department. None of the directors to whom the Complainant had reported, and who were involved in his dismissal, attended the hearing.

The dismissal letter was the only documentary evidence in relation to the disciplinary process which was adduced by the Respondent. I accept the Complainant’s assertion that the dismissal letter was only issued after he had sought it from the Respondent and that, unlike the version which was produced at the hearing, the version which was issued to the Complainant did not contain a copy of the Respondent’s Disciplinary Appeals Procedure.

In view of the paucity of documentary evidence adduced by the Respondent, I find that the Complainant was not provided with details of any performance issue, he was not aware that he was in danger of losing his job; he was not afforded any of the procedures set out under the Code of Practice on Grievance and Disciplinary Procedures.

It would appear that the Respondent relied on a probationary clause in the Complainant’s contract, which was not made available to the hearing and does not appear to have been issued to the Complainant, which the Respondent asserted gave it the right to terminate the Complainant’s employment at any time during his probationary period.

Notwithstanding my findings above that the Complainant’s employment was continuous and, therefore, he was not on probation, the Respondent cannot rely on its mistaken belief that employees who are on probation are not entitled to fair procedures to justify the absence of procedural fairness in this case.

I am of the view that the Respondent’s statement that, even though the Complainant was dismissed from his employment in the [the second supermarket] he could have returned to his position in [the first supermarket], is inconsistent with their assertion that he had resigned from his previous position when he changed employer in April 2017. Accordingly, I have not taken this assertion into consideration in coming to my decision in regard to the herein referral.

I accept the Complainant’s submission in relation to his loss of earnings.

In conclusion, and having regard to all of the circumstances of the complaint, I find that the dismissal of the Complainant was substantively and procedurally unfair and the sanction of dismissal was disproportionate. It is my considered opinion that the Respondent showed no regard to the principles of fair procedures and natural justice.

Having given careful consideration to all the evidence adduced in this case, I find that the complaint is well founded and I direct the Respondent to pay the Complainant €19,000.

Unfair dismissal, length of service, lack of fair procedures