Complainant

Respondent

Anonymised Parties

 Branch Manager

Dental Company

Representatives

Frank Mcdonnell Secretary of Limerick Trade Unionists

operations manager 

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-00035069-001

05/03/2020

The complainant was employed by the respondent as a branch manager in the respondent’s dental practice on the 23rd of January 2019 and she was dismissed on the 15th of January 2020 and she was paid 1 weeks’ notice.  She worked 40 hours per week and was paid €40,000 per annum. She is claiming under the Industrial Relations Act 1969 that she was unfairly dismissed. 

The complainant said that she applied for the position of business manager in the respondent’s dental practice in September 2019. She had worked in a dental surgery for three years prior to that as a practice manager. She was interviewed by the respondent for the post of business manager for which she was unsuccessful, but she was offered a position as a branch manager which she accepted.  She started work with a company on the 23rd of January 2019. She was put in charge of the opening of a new store and this was successfully opened on the 11th of March 2019. She said she reported to the business manager and in July 2019 she was informed that her figures had exceeded the projections that he had given her at the start of the employment. She said that the business manager told her that she had passed her probation and she was issued with a permanent contract for the role of branch manager.

The business manager left in October 2019 and a new business manager was appointed. She said that she asked him about her upcoming yearly review in January 2020.  On the 13th of January 2020 the manager asked her to attend a meeting on the 15th of January 2020. She said she received an email to attend the other dental practice at lunchtime and to bring all the takings from the clinic. The business manager and the principle of the practice attended the meeting, and she was informed that her employment contract was terminated. The complainant said that she was stunned, and she asked why she was being let go. She said she had to ask three times for a reason, and she was eventually told that she was not “a good fit”. She said she was handed a letter of termination and was asked to leave immediately. She went back to her office to collect her belongings and left the company that day

The complainant’s representative submitted that she was dismissed country to fair procedure and natural justice and that she was given no right of appeal. 

The respondent’s business operations manager stated in evidence that the complainant was dismissed because she was “not a fit” for the company going forward. He said he believed she was not capable of fulfilling the role going forward. He called the complainant to a meeting and informed her of his decision. He said the company has a grievance and disciplinary procedure, but he did not apply any procedures in dismissing the complainant because she had less than a year’s service. He accepted that there was no disciplinary record on the complainant’s file and that she had received no warnings. He did not give her any right to appeal.

Section 6 of the Unfair Dismissals Act 1977 as amended provides inter alia as follows:

“(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”

 Subsection (4) provides that: “4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to”,

Section 6(7) provides:

“(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so—

(a) to the reasonableness or otherwise of the conduct (whether by act or omission)

of the employer in relation to the dismissal, and

(b) to the extent (if any) of the compliance or failure to comply by the employer,

in relation to the employee, with the procedure referred to in section 14 (1)

of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section7 (2) of this Act.”

Therefore, the burden of proof rests with the respondent to demonstrate that the dismissal was neither substantially nor procedurally unfair. I note that the complainant was dismissed without warning on the 15th January 2020.  The Business Manager said that she was dismissed because she was not “a good fit” for the company and she had not got the capabilities to fulfil the role going forward.

 The respondent has failed to provide reasonable grounds for believing that the complainant was incapable of performing the role going forward. I note that the respondent refused to say what part of the complainant’s role she was not capable of performing. Furthermore, she was not told prior to her dismissal that her performance was not up to expectations and given an opportunity to improve

I note the respondent has a Grievance and Disciplinary Policy which provides for a range of disciplinary measures from a first verbal warning to a final written warning and dismissal depending on the nature of the conduct or underperformance of the employee.  The respondent failed to follow the company procedures in terminating the complainant’s employment.   There is an obligation on employers to follow fair procedures and natural justice in accordance with S.I. 146/2000 –Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000.

In relation to applying fair procedures, the Labour Court in the case of Beechside Company Ltd t/a Park Hotel Kenmare and A Worker LCR211798 stated: “The Court has consistently held the view that it is imperative that an employer in a dismissal case must not only show that there were substantial grounds justifying the dismissal but also that fair and proper procedures were followed before the dismissal takes place. This requirement of procedural fairness is rooted in the common law concept of natural justice.”

In applying the above caselaw, I am satisfied that the respondent has failed to show that there were substantial grounds justifying the dismissal. Furthermore, the respondent failed to comply with the company’s dismissal procedures and consequently failed to comply with fair procedures and natural justice. For these reasons, I find that the dismissal was both substantially and procedurally unfair. The complainant mitigated her financial loss and got a new job 3 weeks later. She was paid €176 less per week. I award the complainant compensation in respect of her financial loss in the amount of €10,966, that is 3 weeks financial loss amounting at €1,814- and 52-weeks financial loss in her new job at €176 per week.

I find that the complainant was unfairly dismissed.  I recommend the complainant be paid compensation in respect of her financial loss in the amount of €10,966, that is 3 weeks financial loss amounting at €1,814- and 52-weeks financial loss in her new job at €176 per week.

Industrial Relations Act, unfair dismissal, fair procedures, Code of Practice, S.I. 46/2000