Complainant

Respondent

Anonymised Parties

Sales Assistant

Technology Retail Outlet

Representatives

  Self

Bláthnaid Evans Leman Solicitor

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00040235-001

05/10/2020

The dispute is concerned with the termination of employment of a part-time sales assistant before the end of his probationary period of six months. The employment commenced on 24 June 2019 and was terminated on December 22nd, 2019(these dates are not the dates on the probation report form which gave 26 June and 26 December respectively.

The former Employee stated that he was a university student who was hired on a minimum four hour per week contract with the express assurances of the then acting manager that the Company would allow for his hours to be reduced to 16 per week without penalty with the college semester began. On the morning of his termination after six months he was called into the office to meet with two named managers where he was told that his work was excellent, there were no problems with his conduct and there were no issues barring a verbal warning for being late on one occasion. However, he was then informed that he was not working enough hours to suit the Company, that they had a “store budget” for staff payments, and that he had fallen outside his allocated budget of hours due to the hours that he was working. This meant that he was working insufficient hours to meet the budget allocated for him. At that point in time, he said he was working 16 hours per week more than four times the minimum period agreed to on his contract. In his form submitted to the WRC he stated:

“I have not sought compensation until now for two defining reasons: A) Ignorance of the work of the WRC and B) necessity of keeping cordial relations with a previous Employer during a time of employment scarcity.”

At the hearing the Employee stated that there was no issue regarding his hours until November when he was asked was he able to work more hours and where he referred to the college timetable and this was an informal discussion. On the morning of his dismissal he was called to a meeting with two managers. At the meeting where he was dismissed, he believed that there was an understanding that he could apply for work in the future and would be favourably considered for reemployment. Subsequently he did contact a named manager during the summer seeking work but received no follow up and at that point he felt that he should make a claim regarding what had happened as he understood his legitimate expectation was not going to be fulfilled. He did receive a letter giving him a right to appeal the dismissal, but he decided not to do it based on his expectation regarding consideration for future employment and he did not want to create any bad blood between himself and the former Employer.

The submission on behalf of the former Employer stated that the Employee commenced employment on 26th June 2019. His employment was terminated on 22nd December 2019. That meeting was a review of the Employee’s performance during his probationary period. At the meeting the named manager completed a probation review form citing a lack of flexibility as the main reason for the dismissal. His overall performance in his role was described as “okay”, but his lack of flexibility did not suit the Respondent’s business needs. The budget for the store did not correspond with the number of staff employed there and this was another reason for terminating the employment relationship. There was a letter issued on 23rd December 2019 giving reasons for the termination of employment and giving him a right to appeal the decision within five days. The Employee did not exercise his right of appeal.

The Employer rejected the claim that the Employee was unfairly dismissed or that he was terminated solely because he failed to work enough hours. The issue was the lack of flexibility meaning the hours on which he was available for work and the knock-on effects on the number of staff working at the store and the impact on those who were working at the time because of his unavailability. At the hearing it was explained that the Employee had made himself unavailable for store closures and at other times outside of his holiday period. The sales assistants are required to have a specific skillset and are provided with training to be able to give direct customer support and therefore if staff are under resourced this has a direct impact on the customers and on the other Employees. The Employee was available only for an average of 16 hours per week from 30th September 2019 to 22nd December 2019 which is the busiest period in the employment. While the former Employee alleges that there was an agreement that his hours would be reduced to 16 per week without penalty when his college semester began, the Employer stated that they are not aware of any agreement between the Complainant and the previous manager regarding the reduction in hours as claimed. Such an arrangement would be contrary to the needs of the business in the named store which has late night opening hours. In effect, the Employee was only available to work on weekends from September 2019 onwards and consistently refused to work additional hours. It was not possible to recruit and train staff to hire a more flexible worker during the period of November and December. Other issues around flexibility were detailed at the hearing. Reference was made to the Company’s Employee handbook at page 7 which states:

“During this period your work performance and general suitability will be assessed and, if it is satisfactory, your employment will continue... At the end of your probationary period you will again be assessed and, if satisfactory, you will become a member of our regular staff. if you have not reached the required standard, we may either extend the probationary period in order that remedial action can be taken or terminate your employment.”

And:

“We reserve the right to bypass, at our discretion, any step in the disciplinary process in view of your probationary status or to terminate your contract with notice, if we feel that the severity of the action warrants it. We will be fair in the application of such discretion.”

The submission went on to refer to the Court of Appeal decision in Donal O’Donovan v Over-C Technology Ltd stating that there was no allegation of misconduct and therefore based on the decision of the Court of Appeal the Employer was not required to comply with fair procedures as these would only arise where there would be an allegation of misconduct which was not at issue in this case. In summary, the Employer was entitled to rely on the probation clause in the Employee’s contract and the Employee handbook which expressly reserves the right to bypass steps in the disciplinary process or to terminate an Employee’s contract of employment during or at the end of the probationary period without giving notice.

The Employee did not exercise his right of appeal and there was a clear onus on him to do so. As a final point, the Employer referred to the length of time between the date of termination of the employment and the length of time that had elapsed between the date of termination of employment and the submission of the matter to the WRC noting that the termination had occurred in December 2019 and a complaint was not submitted until October 2020. Reference was made to reasonable time limits under employment legislation including the Organisation of Working Time Act and the case known as Cementation Skanska v Carroll.

Since its inception the Industrial Relations Act 1969 has allowed for disputes regarding dismissal during probation to be heard-previously by Rights Commissioners, now Adjudication Officers and on appeal in both instances to the Labour Court. This is a voluntary process to which the responding party may object. In the event that there is an objection to a hearing of the dispute at first instance, the dispute may be referred directly to the Labour Court. There is no precise time limit for the referral of disputes under the legislation-a flexibility which can be useful to the parties where a dispute has run over an extended period and discussion or procedures at the level of the employment are expected to be utilised before referring the dispute through the legislation.. The Industrial Relations Act was designed to allow for Employer Employee disputes to be heard at a time when there was in effect no legal framework outside of the Redundancy Payments Act 1967 for hearing workplace disputes focussing on individuals as distinct from collective bargaining and individuals involving groups of workers. The principle purpose of the procedure is to provide a recommendation to resolve a dispute where merit is found in the Employee’s case or to recommend acceptance of the position of the Employer where no such merit is found.

Regarding a case taken following the termination of employment during probation, it is long established practice that the hearer will not place themselves in the role of the Employer in deciding whether that Employer was right in making a judgment as to the suitability or otherwise of an Employee for what is often characterised as permanent employment. Logically the test applied to the actions of the Employer related to performance are not those which apply either post permanency or under the Unfair Dismissals Act. Simply put, the threshold for scrutinising the actions of the Employer is lowest during the probationary period, rising as each threshold of service is reached thereafter. Allegations of gross misconduct leading to termination are something of an exception in that a person’s reputation is at stake and they have the right to defend that reputation even during employment.

In this case the basis for terminating the employment relationship centred on the absence of flexibility and to be fair to the Employee, the terms of that clause in the contract do appear to have been somewhat harshly applied with very little warning and some dispute as to whether he had an understanding with a previous manager as to what that flexibility meant in terms of availability for hours over and above his contracted minimum hours. The flexibility clause in the contract does not refer to availability for hours over and above a contract. There was something of a rush to terminate the employment just before the Employee would have passed the six-month threshold to be made a ‘regular’ Employee and only after the Employee had worked his available hours during the busiest period-i.e. November and December.  At the same time the genuine frustration of the managers with his inflexibility between October and December was evident at the hearing.

 The Employee did receive an opportunity to appeal the outcome of the review in writing, consistent with the terms of the disciplinary process under the ‘Disciplinary Appeal Process’ and this was confirmed to him in writing. It is matter of fact that the Employee chose not to exercise the right of appeal based on what he appears to have understood was a prospect of being reemployed at a future date should he reapply or at least being reconsidered for reemployment. If such an understanding was reasonable based on what was said at the meeting, such a commitment was arguably as disingenuous as was the Employees belief that it would be realised naïve. It is the failure of the Employee to follow the procedure made available to him which applies to this case as indeed applies in virtually all cases of this nature in the absence of exceptional reasons.  And that failure to follow through on the procedures which lead to the conclusion that the facts of the case do not provide a basis for recommending in favour of the Employee.

In view of the conclusion regarding the failure to follow through on the appeal process as the deciding factor in this case, the matter of the application of the Over-C Technology Judgment by the Court of Appeal and the delay in submitting the dispute to the Workplace Relations Commission are not explored further.

CA-00040235

On the basis that the Employee failed to use the procedures available to him it is recommended that, following the hearing of the case and the conclusions reached, that the Employee now regard the matter as closed.

Dismissal during probation