Complainant

Respondent

Anonymised Parties

A Sales Assistant

A Retail Store

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00035190-001

11/03/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00035190-002

11/03/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00035190-003

11/03/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00035190-004

11/03/2020

The respondent is a retail business that sells a well-known clothing brand.  The complainant commenced work with them in a shopping centre outlet on October 24th 2019.  He worked 20 hours a week and he earned €10.50 per hour.  He was dismissed 19 weeks later on Monday, March 9th 2020.  He had failed to turn up for work the previous Saturday.  He claims that his dismissal was unfair.  He also claims that he didn’t get any notice of his dismissal and finally, he claims that he never received a statement setting out the terms and conditions of his employment.

At the hearing, the complainant said that he went out with friends on Friday, March 6th and he woke up the following morning feeling unwell.  He said that he was due to be in work at 1.00pm and he sent a text message to a supervisor to let him know that he wouldn’t be in.  The complainant was at work on Monday, March 9th and he said that the store manager told him that he was being let go.  He said that the manager said something like “we can’t let it slide this time” and that he couldn’t trust the complainant not to be absent again. 

The complainant said that he spoke to another manager, who he said was the “in-store manager” and he asked him why he was being dismissed.  He said that the reason was for gross misconduct and that there would be no investigation.

The complainant said that he had a conversation with the store manager in January 2020.  He said that he was told that his performance was satisfactory and he got  the impression that he would be offered a permanent job.

Although he was dismissed in March 2020, in August that year, the complainant said that he asked for a formal termination letter and he received a letter on September 17th confirming that he had been dismissed because he had not passed his probation.

In advance of this hearing on November 5th 2020, the managing director sent a letter to the WRC setting out the reason for the complainant’s dismissal.  He said that, in accordance with a clause in his contract of employment, the company was entitled to dismiss the complainant during his probation, without a reason.  The letter said that the complainant was issued with a contract of employment on October 31st 2019.  During his probation, they decided that the complainant was not a suitable fit for the company.

At the hearing itself, another director confirmed that the complainant was not dismissed for gross misconduct.  He said that during his probation, they concluded that the complainant was not suitable for their business.  He said that they reached that conclusion at the end of December or early January.  When he didn’t show up for work on March 7th, having texted a supervisor to say that he had been out the night before, the managing director said that this was certainly a factor in their decision to let him go.  The managing director accepted that the manager of the store manager had a conversation with the complainant in January and that he told him that his performance was satisfactory, but he said that “it wasn’t on” not to come to work for his shift at 1.00pm on Saturday, March 7th.  He said that it is not the practice of their company to let someone go for a simple misdemeanour, but that they had concerns that the complainant’s absences would be ongoing. 

The store manager said that staff know that if they can’t come to work, that he is the person who should be contacted.  On March 7th, the complainant informed a part-time supervisor.  He was also absent on Saturday, December 21st 2019, which was one of the busiest shopping days of the year.

The director said that in January 2020, the store manager told the complainant that he was doing a good job, but he was not offered a permanent job because he was still on probation.

Was the Decision to Dismiss the Complainant Reasonable?

For the duration of his employment with the respondent, the complainant was on probation.  The purpose of probation is to give an employee an opportunity to learn the rudiments of a new job and for an employer to assess an employee’s suitability, from the perspectives of performance and “fit.”  It is apparent that in January 2020, the complainant was doing well in the job, and there may have been some discussion about the possibility of being made permanent at the end of his probation.   Clearly, by March 2020, his employer had a concern about the fact that, on two Saturdays in short succession, he didn’t come to work because he was sick.  On one of these days, he didn’t contact the store manager, but instead, communicated with a part-time supervisor.

Perhaps more than in other sectors, in the retail trade, the requirement for an employee to be at work when they are rostered is critical.  Failure to show up puts pressure on other staff and can result in lost sales.  The business that the respondent is in is focussed mainly on young people, most of whom go shopping on Saturdays.  Not turning up for work on a Saturday in a busy clothing store in a busy shopping centre is evidently a particular inconvenience for an employer.

The issue of the reasonableness of an employer’s response to the absence of an employee who is ill is well set out in the case of Iceland Frozen Foods v Jones [1983] 1 ICR 17, in which Browne-Wilkinson J, refers to the function of the industrial tribunal, and now my function as the adjudicator, 

“to determine whether in the particular circumstances of each case, the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted.  If the dismissal falls within the band the dismissal is fair:  if the dismissal falls outside the band it is unfair.” 

While the complainant had just 19 weeks of service with the respondent, the best-practice guidance in the Code of Practice on Grievance and Disciplinary Procedures (Statutory Instrument 146/2000) provides that all employees are entitled to be treated reasonably in respect of the risk of dismissal and that fair procedures should be followed.  Following the authority in the case referred to above, I must consider if the decision to dismiss the complainant followed from a reasonable concern on the part of his employer about sickness absence, and secondly, if his dismissal was in accordance with fair procedures.  In view of the fact that he was absent on Saturdays twice during his probation, it is my view that the respondent’s decision to dismiss the complainant fell within the band of reasonable responses expected of a reasonable employer in the circumstances which have been outlined.

Was the Process Fair?

The High Court case of Bolger V Showerings (Ireland) Ltd [1990] ELR 184, provides a useful synopsis of the requirement for a fair process where the dismissal of an employee due to illness-related absence is contemplated.  Mr Bolger’s claim of unfair dismissal was dismissed by the Employment Appeals Tribunal, but this outcome was overturned by the Circuit Court.  In the appeal to the High Court, finding in favour of the appellant (the employer at this stage) Lardner J stated:

“For the employer to show that the dismissal was fair, he must show that:

“(1)   It was the ill health that was the reason for the dismissal;

“(2)   That this was the substantial reason;

“(3)   That the employee received fair notices that the question of his dismissal for incapacity was being considered and,

“(4)   That the employee was afforded an opportunity of being heard.”

I accept that, in general, a complaint being considered under the Industrial Relations Act is a less formal matter than the prosecution of a point of law in a case of Unfair Dismissal in the High Court.  That said, the requirement for fair procedures is not confined to employees who have adequate service to benefit from the protection of the Unfair Dismissals Act, and the Labour Court has consistently determined that employees with short service come within the protection of the Code of Practice on Grievance and Disciplinary Procedures. 

Considering the four requirements set out in Bolger, it is apparent that the respondent in this case failed in respect of each point.  If, following his absence on March 7th 2020, the complainant had been informed that any further absence would result in his dismissal, he may have been able to take more care of himself on Friday evenings and come to work on Saturdays.  I find that the failure of the employer to warn the complainant of the risk of not turning up for work has compromised any assertion that fair procedures were followed.

Conclusion

I am satisfied that the dismissal of the complainant due to his failure to attend work for his Saturday shifts on two occasions was not an unreasonable decision.  I am mindful however, that a dismissal procedure is a sequence of actions and not just one act.  The objective is to avoid dismissal by providing clear guidance to the employee regarding the issue that places their employment at risk and to give them an opportunity to take action to avoid being dismissed.  The respondent in this case failed to act in a procedural manner and, in my view, reached the decision to terminate the complainant’s employment with unnecessary haste.  While it was not unreasonable for the respondent to dismiss the complainant, the process followed in reaching the decision to dismiss him was flawed and unfair.

I  have concluded that the dismissal of the complainant was unfair.  As he was employed by the respondent for 19 weeks, I recommend that the respondent pay him compensation of €840.00, equivalent to four weeks’ pay. 

The complainant said that he never received a statement of the terms and conditions of his employment and that he was not given a contract of employment.

In the letter sent to the WRC on September 22nd 2020, the managing director said that the complainant was given a contract of employment on October 31st 2019.  He said that this was issued with the complainant’s uniform when he attended for induction and safety training.  He said that the complainant signed the induction checklist and two copies of his contract.

At the hearing, the director reiterated that all employees are issued with a contract when they attend for training before they start in the job.  He said that the complainant signed his contract on October 31st, and a copy was retained in a file in the store.  However, the copy of the contract is not on the file.

Unfortunately, no evidence of the existence of a contract of employment was provided at the hearing, and no evidence of any document signed by the complainant on October 31st 2019.  The respondents did not submit a template of a contract that they said that they issue to all employees at the commencement of their employment.  In the absence of any evidence that the complainant was issued with a contract of employment, I must find that a contract was not issued. 

In considering this complaint, I intend to follow the authority of the Labour Court, particularly in the case of Felix Guerrero v Merchants Arch Company Limited, DWT 188, and make an award to the complainant equivalent to three weeks’ wages.

The complaint under the Terms of Employment (Information) Act 1994 is upheld and I therefore decide that the respondent is to pay the complainant €630.00 in compensation, equivalent to approximately three weeks’ pay.

On the form he submitted to the WRC on March 11th 2020, the complainant said that he did not receive the minimum notice to which he was entitled at the termination of his employment, and that he was summarily dismissed.

At the hearing on November 5th 2020, the complainant agreed that, on the date that his employment was terminated, he was asked what he would like to do with regard to his remaining shifts.  He said that he was paid up to March 15th 2020.

In his letter to the WRC on September 22nd 2020, the managing director said that the complainant was dismissed on March 9th 2020 and that he was paid up to March 15th.  It is the respondent’s case therefore, that the complainant was paid in lieu of notice.

Based on the evidence of both sides at the hearing of this complaint, I am satisfied that the complainant received his entitlement to one week’s notice, in the form of pay in lieu of notice.

I have concluded that the complainant received his entitlement to minimum notice and this complaint is not upheld.

Dismissal, probation, notice, statement of terms and conditions of employment