ADJUDICATION OFFICER RECOMMENDATION

Adjudication Reference:  ADJ-00025213

Parties:

Complaint(s):

Date of Adjudication Hearing:  07/12/2020

Workplace Relations Commission Adjudication Officer:  Jim O'Connell

Procedure:

In accordance with Section 13 of the Industrial Relations Acts 1969] following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.

Industrial Relations Act 1969

Ca-00032107-001

This matter was heard by way remote hearing pursuant to the Civil law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings.

No objections were raised to the remote hearing.

Industrial Relations Act 1969

Ca-00032107-001

Background

The employee was employed from the 18th July 2019 to the 23rd September 2019 when he was dismissed without fair procedures.

Summary of position

 The employee submitted    that the employer does not explain how their own disciplinary procedures or other fair procedures were followed leading up to his dismissal.

There had been no prior discussion with the employer that he was underperforming or that there was not any corrective action that he needed to take.

 The employer submitted that the employee was on probation and they applied the procedures in accordance with the contract of employment.

Findings

 I find the contract “states that During Probation the employer or employee can terminate this agreement on giving of 2 weeks’ notice.”

I find that having examined the contract of employment   that it is silent on procedures.

Recommendation

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute

That the employer adjusts their contract of employment to include fair procedures in Line with Code of Practice S.I 146_2000 - Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000.

Ca-00032107-002

Background

He was paid €4583.33 per month with a quarterly bonus of €5000.  The complainant, on the 11th of November 2019, lodged a complaint of unfair dismissal under Industrial relations Act 1969 with the WRC.

Employee’s position

The employee submitted that he was Unfairly dismissed from his employment with the employer without regard to fair procedures and natural justice.

The employee submitted that he was 3 weeks waiting for a vehicle to be able to carry out his function and when he had to shared one.

The employee submitted there had been no prior discussion with the employer that he was underperforming, or that there was any corrective action that he needed to take.

The employees stated that he disagreed with the reason for his dismissal given in the respondent’s submission and he was not given an opportunity before dismissal to respond or appeal the decision to dismiss him.

The employees submitted precedent cases to support his position.

Summary of Employer’s position

The employer for their part submitted that a sales report was generated at the end of August 2019 which shows the results of each team member performance for that month.

It was submitted the report showed the employees sold only 30 cases in that month, his monthly sales revenue was €720, and his target percentage achieved was at 18.75 % on target of 40 cases per week.

The employer submitted that the employee was dismissed as his performance was not up to the standard as required by them. The employer submitted details to support their position.

The employer further submitted that the employee was on probation and that procedures did not apply.

They submitted that the employee was fully aware that his performance was not up to standard.

The employer witness sales manager submitted that there was no issue with transport, all the employees had to do was to contact him.

The Sales manager also submitted that he had informal discussions with the employee on his sales performance.

Findings

Submissions were received from both parties.

I find there is no dispute between the parties on the start and termination dates along with the salary plus quarterly bonus payment.

I find a sales meeting took place on the 3rd of September 2019 where the employee was shown his sales for the month of August 2019.

I find based on the minutes of that meeting that the employee was given a business name where he was to contact that person directly to get a proper list of shops from him.

I find that on the 9th of September the employee was called to the CEO’s office where his employment was terminated giving him (employee) two-week’s notice.

I find that the only documentation available was the minutes of the 3rd of September neither the employer’s sales manager nor the CEO had any minutes of meetings that took place with the employee where he was advised that his position was in jeopardy if his sales did not improve.

I find that the employee was employed from the 18th of July 2019 even though he was on probation he was entitled to be advised of his short comings (if any) and given a reasonable opportunity to improve.

I find the employer should have been made the employee aware that if the sales had not improved that his position would be a stake.

I also find that the employee was not afforded the right to appeal the decision to dismiss him.

I find that in arriving at my recommendation I am taking account of the Beachside Company Ltd T/A Park Hotel Kenmare -and -A Worker where the Labour States. “Where an employee is considered unsuitable for a permanent employment, the Court accepts that an employer has the right, during a probationary period, to decide not to retain that employee in employment. However, the Court takes the view that this can only be carried out where the employer adheres strictly to fair procedures”.

The labour Court further ruled in the Irish Postmasters Union-and -Worker. Where the Court found the employer “adhere to either its own disciplinary procedures or be bound by the provisions of the Code of Practice on Grievance and Disciplinary Procedures S.I. No 146 of 2000 because he was on probation, was misconceived”.

I uphold the right of the employer to terminate an employee if that employee is unsatisfactory, however fair procedures should be applied, and the employee should always be aware that his /her position is in jeopardy for failing to meet expectations.

Recommendation

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute

I recommend based on the above findings that the employee is paid €10, 000 in compensation.

Dated:   29th March 2021

Workplace Relations Commission Adjudication Officer:  Jim O'Connell