Complainant

Respondent

Anonymised Parties

A Spa Manager

A Hotel

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-00023503-001

23/11/2018

The complainant submits that she was unfairly dismissed from the Hotel where she was employed as a Spa Manager.

Preliminary Issue:

The complaint form submitted by the complainant sets out that she commenced employment on 7th June 2017 and her employment ended on 22nd June 2018. The respondent disputes those dates such that the complainant does not have the requisite service under the Act.

On 29th May 2017 an email from the recruitment agency, referring to the complainant, stated, “if successful, she is available from 3 weeks of offer”.   By email dated 1st June 2017 the recruitment agency confirmed to Mr A (resort director) that the complainant could start 26th June 2017. On 2nd June 2017 the complainant emailed the recruitment agency and confirmed “I’m starting my new job on 26th June.

On 7th June 2017 the respondent emailed the complainant stating that the recruitment agency “mentioned that you might be available to come in for training and induction next week”and refers to Monday or Thursday as suitable days as the outgoing Spa Manager would be available. The Monday would have been 12th June and the Thursday would have been 15th June 2017. On 7th and 12th June 2017, the complainant confirmed by emailed “I will be out to the Spa this Thursday at 9:30 am for training”.   The contract was signed by both parties dated 14th June 2017 with a start date referred therein as 15th June 2017 and the complainant attended training at the hotel on Thursday 15th June 2017.

The respondent submitted that 15th June therefore was the complainant’s first day of work and the first day from which she was paid. Furthermore, she was only set up on the company’s system from 26th June 2017 with the system recording her start date of 15th June.   The complainant could not have attended on the 14th June as the person to train her would not have been at work as submitted by her clock-in sheets.

On 18th June 2017 the complainant was advised that she could not come to the spa but would start fully on 26th June.   It was denied that the complainant undertook work on behalf of Mr A from 7th June 2017 and it was submitted that she had only looked for details of his email address around 18th June and that furthermore under the First Schedule of the 1973 the complainant did not have a prerequisite 18 hours with this alleged work for the purpose of “computable service”.

The complainant’s employment ended on 30th May 2018 and she was given one week pay in lieu of notice and the letter to the complainant makes reference to same. It was submitted that her date of termination remained 30th May 2018 as her contract provides for payment in lieu of notice.

Substantive Issue:

The respondent submitted that the complainant was dismissed because of issues with her performance and that she had not passed probation and that these issues had been raised with her prior to the meeting on 30th May 2018. The complainant had remained on probation having not been informed that she had passed her probation.

It was put forward that the manner in which the complainant dismissed was not a ‘model’ way to deal with a dismissal and was truncated but the fact remained that the complainant did not have 12 months continuous service at the time of her dismissal. The respondent submitted that the complainant’s efforts at mitigation were very poor and do not meet the standards expected.

Case law cited included McGowan v McLoughlin [2000] ELR 106, Maher v B&I Line UD2711978 and Twomey v O’Leary Officer Supplies Ltd UD684/1994.

Preliminary Issue

In response to the preliminary issue that the complaint is out of time, the complainant submitted that she applied for the job through a recruitment agency and was offered the job on 1st June 2017 with an expected start date of 26th June 2017.

The complainant received a phone call from Mr A on 7th June who said she should start gathering information and get everything organised. This work involved sourcing and gathering details of potential suppliers and meeting with them and took approximately 14 hours work from 7th June till 14th June 2017. The complainant submitted that she signed the contract on 14th June as that was the day that she did training with the respondent. The complainant submitted that she did not look to get paid for these hours and did not dispute the start date on her contract of 15th June as she did not want to upset her new employer.

The complainant submitted that she was advised on 30th May 2018 that her employment was terminated and a letter dated 30th May referred to this termination taking effect on 6 June 2018 and on 20 June 2018 she received a lettering confirming that her employment had been terminated. If her start date is accepted as 7th June 2017 and her date of termination is determined as 6th June 2018 the complainant has 12 months service.

Substantive Issue:

The complainant submitted that her employment was terminated without any appropriate procedure and that she was not aware that there were problems with her performance and that a decision was made before the meeting of 30th May 2018. On 18th May 2018 the complainant received an email regarding the business but there was nothing in it that suggested her performance was not acceptable. On 25 May 2018 the complainant was advised of a meeting on Monday 27th May to discuss poor financial performance of the spa and unsatisfactory performance and that she could bring a colleague with her. She was shocked to receive this email. The complainant submitted that she asked could she have legal representation or a family member but that the respondent later refused this. The meeting was rescheduled to 30th May 2018 and at the meeting the complainant was shocked to hear that her employment was terminated as she had not passed her probation. The complainant was not aware that she had not passed her probation.

The complainant advised that she is not currently employed as she is looking to build up her own business as an influencer on social media and that this takes time. She submitted that she has taken on work without payment, in order to build up her profile. The complainant submitted that she had sought employment with some organisations in both beauty, hair and in a bar but had been unsuccessful to date.

Preliminary Issue

The respondent submitted that the complainant did not have the requisite service to seek redress under the Act.

The complainant submits that she was employed by Mr A on 7th June 2017 and that her employment ceased on 26 June 2018. The respondent submits that the complainant started on 15th June 2017 and her employment ceased on 30th May 2018.

I will deal firstly with the start date and I note that there are a number of suggested start dates including:

7th June 2017 is the date the complainant submitted she was engaged by Mr A to do some work

14th June 2017 is the date the contract was signed

15th June 2017 is the start date on the actual contract

26th June 2017 is the date the complainant was due to start work

Having considered all the submissions and noting that there are many inconsistencies, I find it more credible that the complainant commenced employment on 15th June 2017. I make this decision based on the emails that were sent back and forth between parties, including the complainant submitting her unavailability on a regular basis for numerous start dates and while the complainant may have been gathering information for the purpose of her new role, I do not find any evidence to support that this was specifically requested by the respondent.

I will next deal with the termination date and I note again that there are also a number of submissions regarding the termination date including:

30th May 2018 when the complainant was advised that she was dismissed

6th June 2018 the date the complainant was advised was of her termination date in the letter of 30th May.

20th June 2018 a date the complainant submitted she received a reason for her termination.

22nd June 2018 the date on the complainant’s complaint form

Having considered all the submissions and noting again that there are many inconsistencies, I find it more credible that the termination date for the complainant was 6th June 2018 and I make this assertion based on the evidence given and the letter sent to the complainant dated 30th May 2018. I find in effect that the employment commenced on 15th June 2017 and ceased on 6th June 2018.

The Act at Section 2(1)(a) provides as follows:

2 (1) Except in so far as any provision of this Act otherwise provides this 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,

It is clear that to enjoy protection of the Act, the complainant must meet the service requirement set out in the Act unless a provision of that Act exempts her from that requirement. The complainant has not contended that any provision of the Act removes from her the statutory requirement to have acquired 12 months service in order that the protection of the Act would apply to her.

I must find, therefore, based on all the evidence and submissions that the complainant had, at the date of her termination, less that the 12 months service required by the Act at Section 2(1)(a). On that basis I have no jurisdiction to adjudicate on the substantive issue of her dismissal.

The complainant had, at the date of her termination, less that the 12 months service and on that basis, I have no jurisdiction to adjudicate on the substantive issue of her dismissal.

Unfair dismissal, 12 months service