Worker

Employer

Anonymised Parties

An Assistant Bar Manager

A Bar Owner

Representatives

none 

none 

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-00034757-002

20/02/2020

The worker commenced employment with the employer on 11 December 2019 as an Assistant Bar Manager. His employment ended on 2 February 2020.  He was paid €576 per week.  A complaint was received by the WRC on 20 February 2020.  A remote hearing took place on 15 December 2020.

The worker submits that he started work with the employer on 11 December 2019 as an Assistant Bar Manager.  The bar was due to open on 18 December, but the worker was told that due to “problems” the bar would not be opening until the new year. He says he was told by management that they would sort out work for him and that they would subsidise his pay over the Christmas period.  The worker was available to work in the bar all over the period, but he was not asked.

The worker submits that he continually made enquiries about when the bar would be opening.  He was informed it would be re-opening on 9 January 2020.  The worker was not paid anything by the employer during the period between 18 December 2019 and 9 January 2020, even though his contract said he would be paid weekly.  The worker did not receive any payment from the employer until 31 January 2020 and he was not paid the full amount due.  He also submits that he did not receive a payslip until 10 February 2020.

The worker submits that he was then let go on 2 February 2020 for reasons he says were not well explained and in his opinion were not merited.  He submits that he was never shown a staff handbook or disciplinary procedures.  He says the first time he was told anything about his performance not being adequate was on the day he was dismissed.

The worker submits that he had been sick for two days towards the end of January, this was certified sickness for tonsillitis.  Although this absence was not given as the reason for the termination of his employment, he was told by one of the managers that he would have come into work even if his leg was broken and by another that he would have come in even if he was sick.

During the hearing the worker stated that he had been given no training or direction and he felt excluded from the team. He also stated that he had never been told that his performance was not up to scratch; only when he was being told he was being let go.

The worker feels he was let go because he had been sick for two days. He was told that he was by management that he was the weakest member of the team and that he showed no energy.  The worker believes he is due payment for the period from 18 December 2019 to 9 January 2020 when he was available for work but not given work or paid.

The employer stated that during the period before Christmas before the bar had opened, he had worked closely with the worker showing him the ropes. However, the employer came to the conclusion that the worker was not suitable for the role as assistant manager. The employer tried to find another job for the worker but was unsuccessful.  The employer stated that the reason he was let go was because his performance was unsatisfactory.  The employer stated that the worker had not been let go for another reason other than the quality of his work.  The employer denied that the worker was let go because of his two-day absence.

The employer stated that he had an obligation to make the situation work but the worker’s performance was not good enough.  The worker was let go well within his probation period.

The employer stated that the worker was not fulfilling his role as Assistant Manager, he was not able to do even basic jobs.

In response to a question about giving the worker a chance to improve his performance the employer stated that the worker only actually worked with him for three weeks and that during that period he did follow up on certain aspects of the worker’s performance and that it was not like his dismissal had come suddenly.

This complaint has been taken under the Industrial Relations Act, 1969 as it cannot come under the Unfair Dismissal Act, 1977 due to the short service of the worker.

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

If a worker’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 worker’s performance, however, he was never told that these issues were endangering his continued employment. The rules of Natural Justice were not applied.  The worker 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.

I note the worker did not receive notice or payment in lieu of notice.

I find that the dispute referred by the worker pursuant to the Industrial Relations Act is well-founded and the employer shall pay compensation to the worker an amount equivalent to six weeks’ pay, that is €3,456.

Termination, performance, natural justice