Complainant

Respondent

Anonymised Parties

An Art Worker

Importation and Distribution Company

Representatives

Helen Quinn IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00032516-001

27/11/2019

The Complainant commenced employment with the Respondent on 28th May 2019, his employment ended on 1st November 2019. His gross monthly salary was €2,666.67 and he worked 40 hours per week.   The complaint was received by the WRC on 27th November 2019. The Respondent is an importer and distributor of souvenir products.

The Complainant provided a written submission.

The Complainant submits that he was unfairly dismissed as the termination of his employment came as a complete surprise, he submits that he was not afforded fair procedures or natural justice.

The Complainant submits that he began working for the Respondent on 28th May 2019. During the selection process for the job it was mentioned that the role was not specifically a design role and that the Respondent did not want another designer.

The Complainant submits that as time went on it became necessary that he have an input into the design of items, this was done in consultation with the head designer and the Respondent.

The Complainant submits that at no time during his employment were there any assessments done of his role or his capacity to carry it out. He was never made aware that his performance or capability was falling short of what was expected; he never got any negative feedback.

On 1st November 2019, the Complainant was called to a meeting with the Respondent and the HR Manager. The Complainant was unaware what the meeting was about. It therefore came as a surprise to the Complainant when the Respondent told him that he was not being kept on because he, in the words of the Respondent, didn’t suit. When the Complainant asked the Respondent to elaborate on this as he was not aware of any difficulties connected to his performance, he was told, “you just don’t suit.”

Despite the bad news being given to him and feeling humiliated, at this meeting the Complainant submits that he remained calm and polite at all times.   When the Complainant asked when he was to finish up, he was told by the Respondent that he was to finish up that evening.   The Complainant went directly to his desk and sent an email to his colleagues letting them know he was finishing up that evening.

In direct evidence, the Complainant stated that there had been no feedback meetings, no structured feedback and that he had always fallen in line with whatever instructions he was given. He was never made aware that he was doing anything wrong or that things were not going well. The Complainant denied he tried to change his role. He did agree that there had been some criticism of his work during the period. He also stated that although he has been looking for work, he has not been successful.

The Respondent provided a detailed written submission.

The Respondent denies the allegation and submits that the Complainant was given almost daily constructive feedback throughout his probation on the issues of communication, failure to take direction, and complete tasks in line with his job description.

The Respondent submits that the Complainant was employed as an Art Worker and that it was made clear to him at the interview stage and after that his role did not have creative scope, that it was a technical role supporting a team of three Graphic Designers.

The Respondent submits that during the Complainant’s probation several informal, one-to-one meetings took place with the Respondent. Initially the Complainant performed well in line with his job description. However, from month two to three of his probation, issues arose around communication and taking reasonable instruction. The Complainant’s performance deteriorated further in months four and five requiring the Respondent to repeatedly counsel him on these issues on a regular basis. Whenever the Respondent provided constructive feedback to the Complainant there was push back from him and an inability to engage with the required improvements. Matters did not improve.

The Respondent submits that due to difficulties in communicating with the Complainant the graphic designers had stopped asking for support from the Complainant as it had become too difficult for them to ask the Complainant to carry out tasks without pushback or his need to put his own creative input into the task they asked for support on. These issues became so difficult that the graphic designers approached the Respondent and advised him that it was too difficult for them to ask for the Complainant’s support and it was easier for them to do the work themselves. Because of all these issues it became clear to the Respondent that the Complainant was not suitable for the role of art worker.

The Respondent submits that a probationary review meeting took place on 1st November 2019, between the Respondent and the Complainant during which the Complainant was informed that his performance had not been satisfactory, and it was apparent he was not the right fit for the role, despite regular feedback. The Complainant had not passed the probationary period.

The Respondent paid the Complainant one month’s pay in lieu of notice.

In direct evidence, the Respondent stated that although there had been no formal review meetings with the Complainant there had been many informal meetings.   The Respondent stated that it became increasingly frustrating talking to the Complainant because he was argumentative, which was slowing down the processes. In response to a question, the Respondent stated that he had not warned the Complainant that the next step might be to terminate his employment.

The claim of Unfair Dismissal here is under the Industrial Relations Act, 1969 as it cannot come under the Unfair Dismissal Act, 1977 due to the short service of the Complainant.

However, this does not mean that the guiding legal principles of Natural Justice do not apply.

If an employee’s performance is below that expected, to the extent that their continued employment is in jeopardy, whether they be on probation or not, they must be warned that not only is their performance not adequate but also that if it does not improve it will have implications for their continued employment. In this case there were issues relating to the Complainant’s performance, however, he was never told that these issues were endangering his continued employment. The rules of Natural Justice were not applied.   The Complainant was dismissed without warning, he was not given an opportunity to defend his position and was not afforded the right of representation. There was no right of appeal.   In the circumstances, the sanction of dismissal was disproportionate, and it does not seem any other sanction was considered.

On a legal basis and put simply, not having twelve months’ service and being on probation, does not mean that all employment rights based in Natural Justice go “out the window” so to speak.

Having reviewed and considered all the evidence both written and oral I have come to the view that this was an Unfair Dismissal.

I note the Complainant was paid one month’s pay in lieu of notice.

I find that the dispute referred by the complainant pursuant to the Industrial Relations Act is well-founded and the respondent shall pay redress to the Complainant of €8,000.00.