Employee

Employer

Anonymised Parties

A Warehouse Administrator

A Warehousing Business

Representatives

Not represented

Not represented

Act

Dispute Reference No.

Date of Receipt

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

CA-00042394-001

09/02/2021

The employer runs a logistics and warehousing business in Dublin 11.  In September 2020, the employee called in and gave his curriculum vitae (CV) to the operations manager.  The operations manager then met the employee and he had three follow-up interviews with the CEO before he was offered a job.  He started working as a warehouse administrator and inventory control operative on October 27th 2020 on a weekly wage of €600.  He was dismissed after seven weeks, on December 14th 2020.  Under the heading of the Industrial Relations Act, the employee argues that his dismissal was unfair.    

The employee said that he is a qualified mechanic but that he was always worked in warehousing and in the motor factors business.  He described the background to him joining the company, after he dropped in his CV in September 2020.  He said that he met the warehouse manager a week later, and then he had three interviews with the CEO.  When he started, the employee said that he was assigned to day to day warehouse duties and that he went out in a van with another employee.  He claims that he was told that he would be trained in the warehouse computer system after Christmas 2020, but that he wasn’t given any training.  Despite this, the employee said that, every day, he got positive feedback from the CEO and he was therefore surprised when his employment was terminated.

On December 11th 2020, the employee said that he was instructed to help the agency workers.  He was doing day to day warehouse work and he said that the CEO said that he would be shown the system the following week.  On December 14th, the CEO asked him to stay behind at the end of his shift and he was told that he “wasn’t fit for the project anymore.”  He told the warehouse manager that he was in shock.     

The employee said that, during the seven weeks that he worked in the company, he was doing warehouse work and that he never got an opportunity to show his skills.  He said that he answered phone calls and replied to emails.  He said that the staff were very friendly and helpful, but that he needed training because the system was different to what he was used to. 

Following his dismissal, the employee said that he got another job, but that he was laid off in April 2020 due to the Covid pandemic.

At the hearing, the company’s CEO said that when they saw the employee’s CV, they thought that his skills might be useful.  At his interviews, the CEO said that he asked the employee about his computer skills and his inventory-management experience.  Explaining his reason for leaving his current job, the employee said that everyone was being let go and he was afraid that he might be next.  The CEO said that he was concerned about his computer skills, but that they needed an administrator.  He said that for this reason, he offered him a job on a trial basis.  He said that he never did this before with any other employee, but that he felt that it was necessary to see how the employee got on.  He said that he and the employee shook hands on the basis of a trial job offer and he inserted the trial clause into his contract.  The CEO said that the employee’s wages were 20% above the operative rate and that he was specifically recruited to work as an administrator and not as an operative.

From the commencement of his employment, the CEO said that the employee was assigned to the warehouse to understand the operation.  It was intended that he would work on inventory control, as he said that he had done this kind of work previously.  The CEO said however, that the warehouse manager asked the employee to do basic jobs on a computer, but that he wasn’t familiar with the tasks and seemed worried that he wouldn’t be able to do them.  He said that his company doesn’t use a bespoke software package and that all their inventory control is carried out on Exel spreadsheets.  The CEO said that he got the impression that the employee was overwhelmed and that his basic ability was “contrary to what he told us at the interviews.”  The CEO said that they decided to give the employee time to get used to the workings of the warehouse.  He said that he worked very hard as an operative and that he complimented him on this, but that general operative work was not the reason for taking him on.  The CEO said that because the employee seemed to have no familiarity with their inventory control process, he was concerned about letting him have access to their system.

The CEO said that, at one point during the seven weeks that the employee worked for them, they had a visit by a client with whom they were negotiating a contract.  The client was an agent for car components.  The employee was in the warehouse when the executives from the car parts agency were touring the premises and the employee was introduced to them.  They were shocked when he asked about a discount on parts.  When he was challenged by the warehouse manager about this, the employee said, “you have to ask these questions when you have a 15-year old car.”

The employee was planning to go to Poland at Christmas, despite the travel restrictions due to Covid 19 at the time.  The CEO said that he had no problem giving the employee time off at Christmas, although he hadn’t accrued the holidays.  He said however that he was surprised when he asked if the company would pay for his Covid 19 test and if he would be paid when he would be required to self-isolate on his return.

The CEO said that the employee seemed to gravitate towards working in the warehouse, rather than looking for assistance to do the job for which he was employed.  He said that he was never put under pressure to demonstrate his skills, but that it became obvious very quickly that he was not capable of doing the job of warehouse administrator.  He was supposed to take control of the inventory management system, but the CEO said that he could see that he hadn’t got the ability to do the job he was employed to do.

The warehouse manager said that, when the employee started in his job, he assigned him to thw warehouse, so that he could become familiar with the business.  He said that it soon became apparent that he wasn’t comfortable working on the computer.  He said that he started him on a simple task of label printing and that he showed him how to do that job a couple of times, but he wasn’t able to do it properly.  He said that he was helpful in the warehouse, but that this was not the job for which he was recruited.

Explaining the reason for dismissing the employee, the CEO said “he wasn’t the person we wanted for the job” and that he was misled by his CV and at the interviews.  He said that he didn’t understand the fundamentals of the job of warehouse administrator.  Having worked for the company for seven weeks, the CEO said that the employee was paid one week’s wages in lieu of notice.

After he dismissed the employee, the CEO said that he contacted his nephew who has a business in car components and he told him that the employee was looking for a job.  The employee was contacted by that company, but, following an interview, he didn’t accept a job offer.  The employee claims that his right to the confidentiality of his CV was breached by the sending of his CV to a third party without his permission.

Findings

The employee submitted his CV to me in preparation for the hearing of this dispute.  It shows that between 2008 and 2011, he worked as a warehouse manager and that he managed five employees.  From 2011 until 2017, he worked in a car rental company and from 2017 until he went to work for this employer in October 2020, he worked for a car parts supplier as a store supervisor.  From the information on his CV, it would appear that he was a suitable candidate for a job as a warehouse administrator.  It seems however, that he did not settle into this role, focussing instead on the work of a warehouse operative.

The employee claims that he was not trained and that no one showed him how to use the company’s systems.  When I addressed this with the managers who attended the hearing, they told me that they use Excel spreadsheets to manage goods in and out and that their system is not complicated.  The warehouse manager said that he showed the employee how to print labels, which is a simple task, but that he was unable to repeat the job after he was shown how to do it.

The work of managing goods in and out in a warehouse is not overly complicated, particularly for someone experienced in that job.  From the evidence presented at the hearing of this dispute, it seems to me that the employee over-sold his skills at his interviews and that he was more comfortable in the warehouse operative role.  If he had the experience and skills that he claimed he had, he would have located himself at the desk he was assigned to and, by collaborating with the warehouse manager and other colleagues, in three or four weeks, he would have been up and running and relatively proficient.  The evidence is that he appeared to avoid the job he was recruited to do, and that he worked hard at the lower level job of warehouse operative.  Unfortunately, there was a vacancy for the job of administrator that the employer needed to fill.  At the end of six weeks, they decided that the employee was not the person to fill it.

Before he was recruited, the CEO said that he wasn’t sure of the employee was the right person for the job, but that he decided to give him a chance.  He told him that he was on a three month trial, a condition that he said that he never attached to any other employee’s contract.  The contract was also provided in evidence.  Under the heading, “Probationary Period,” it states as follows:

“You will be employed for an initial 3 month trial period with a six month probationary period with a 1 year roll-over contract.”  This gives you and the Company an opportunity to assess your suitability for the position.  Notwithstanding any other provision of this contract, during this probationary period and/or any extension thereof, except in the case of serious misconduct, either party, upon giving one week’s notice in writing, can terminate the employment.  The Company reserves the right to pay 1 week’s salary in lieu of notice at our sole option.  Your probationary period may be extended at the discretion of the Company, on more than one occasion, subject to a maximum probationary period of 11 months.  Should this arise, you will be informed of the decision and the reasons for the decision in writing.”

In respect of this employee, the normal six-month probation was qualified by the imposition of a three-month trial, and the employee agreed to accept the job on these terms.  He was dismissed after seven weeks, on December 14th 2020.  Following his dismissal, on December 31st, the CEO wrote a reference for the employee in which he stated that he was “a very hard-working, diligent employee, trustworthy, with a very cheerful disposition and was well-liked by staff and clients.”

Conclusion

I have considered the evidence of both sides at the hearing of this dispute.  It seems to me that the employee was dismissed because the CEO was disappointed when he found that he wasn’t a right fit for the job, and further disappointed that he had allowed himself to be convinced otherwise.  It is my view that the employee’s over-selling of his skills caused a breach of trust between him and his employer.  I find that this, coupled with his approach to the client about a discount on car parts, and then his request for payment for a Covid test and wages while he was self-isolating, precipitated the CEO’s concern about his suitability.

It is apparent to me that there wasn’t a very structured induction or training programme for the employee to learn how to do the job.  The problem remains that the managers thought that he had the necessary skills and that he could be up and running with moderate support.  Some more intensive and organised training might have helped him to get to grips with the job over a longer period; however, it is my view that, by seven weeks in, the trust that the employer expected to have in this employee had diminished to an irretrievable extent and that decision to invoke the trial clause was not unreasonable.

Having reached this conclusion, I must also address the failure of the employer to follow any procedure in the lead-up to the employee’s dismissal.  I accept that, in general, a complaint being considered under the Industrial Relations Act is a less formal matter than a hearing under the Unfair Dismissals Act.  That said, the requirement for fair procedures is not confined to employees who have adequate service to benefit from the protection of that Act, and the Labour Court has consistently determined that employees with short service come within the protection of Statutory Instrument 146 of 2000, the Code of Practice on Grievance and Disciplinary Procedures.  I’m not certain if an intervention such as a performance review or a verbal warning would have saved this employee’s job, but it is my view that such an intervention should have been tried.  

I find therefore, that it was not unreasonable for the CEO to invoke the trial clause in the employee’s contract.  However, in advance of that decision, it is my view that a meeting should have taken place at which the employee was clearly informed of what was required of him on a day to day basis, so that he could try to carry out his job as expected by the warehouse manager and the CEO.  By failing to clearly inform him that his job was at risk and the reasons why, the decision to dismiss him was unfair.

I recommend that the employer pays the employee compensation of €1,000, equivalent to approximately two weeks’ net pay.

Dismissal, probation