ADJUDICATION OFFICER RECOMMENDATION

Adjudication Reference:  ADJ-00027243

Parties:

Disputes:

Date of Adjudication Hearing:  07/01/2021

Workplace Relations Commission Adjudication Officer:  Gerry Rooney

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.

This matter was heard by way of 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.

Background:

The Worker was employed as a Warehouse Operations Manager and submitted that she was dismissed unfairly.  As she does not have 12 months service, she submitted her complaint as a dispute under the Industrial Relations Act, 1969.

The Employer did not attend the hearing.  I am satisfied the Employer was properly notified of the time and date of the hearing and indicated they would not be engaging in the Complaint.

Summary of Worker’s Case:

CA-00034870-001 and 002 Complaints of Unfair Dismissal under the Industrial Relations Acts, 1969

The Worker submitted two complaints relating to her dismissal under the Industrial Relations Acts.  She submitted her complaints on 26th February 2020. As these complaints refer to the same decision to dismiss the worker they are heard as one complaint.

The Worker commenced her employment on 26th August 2019 where her contract provided for a 12week probationary period.  She successfully completed the probationary period on 18th November 2019. The Worker was paid €961.54 per week.

The Worker submitted that on 31st January 2020 she received a text message at 11:30 am to attend a meeting at 12:30pm, and no further information was provided.  The worker arrived at the meeting and met with a manager in the Board Room.  She was advised at the meeting that it was not good news and she was being let go due to concerns with her performance, and how she had been managing the stock. The meeting lasted 10 minutes, the worker received no notes of that meeting and submitted that a letter dated 31st January 2020 was issued to her following the meeting advising her that her job had been terminated due to unsatisfactory standards of performance following training.  She was informed in the letter that, the decision was made taking into account her length of service.   The worker was paid four weeks in lieu of notice and was paid her holiday entitlements. The letter advised the worker she could appeal the decision, which she did.

The Worker submitted at the hearing that she had been spoken to once about stock, but others had the ability to adjust the stock system.  She maintained there was never a formal meeting held about her performance, that she was not provided with the training as indicated by the employer, that she was never subject to a performance plan, that nothing was ever stated to her that her job might be at risk, and she never had a one-to-one meeting with management about her performance.

In her appeal the worker raised nine reasons in her appeal stating there had been no formal conversations with her regarding any concerns about the standard of her performance; there had been no action plans or formal training to address concerns of unsatisfactory standards; no performance improvement plan had been put in place to afford her the opportunity to address any “unsatisfactory standards of performance”;  that the  Employer had  failed to afford her due process and a right to natural justice in relation to the decision to terminate her employment; that she was not afforded the opportunity to be accompanied at the meeting on 31st January 2020; that she received insufficient notice of the meeting that took place on 31st January 2020; that she had passed her probationary period as no meeting to the contrary had taken place; that whilst the employer maintained that, in accordance with the Disciplinary Rules and Procedures, it retained the discretion take into account the workers service and to vary the proceedings accordingly, it failed to adhere to its stated obligations in the procedures to ensure the action taken is fair; and the manner in which her employment had been terminated was in violation of the processes outlined in the Company Handbook.

The appeal was held on 12th February 2020, and the worker contended that the notes provided of that meeting were not accurate. The appeal hearing supported the decision to dismiss the worker.

The worker has sought alternative employment since her dismissal and was successful in getting a part time job in July 2020 at €20 per hour for a 16 hour week.

Summary of Employer’s Case:

CA-00034870-001/002 Complaint of Unfair Dismissal under the Industrial Relations Acts

The employer did not attend the hearing nor made any submission other than to state it would not be attending the hearing. 

Recommendation:

CA-00034870-001/003 Complaint of Unfair Dismissal under the Industrial Relations Acts

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

The Worker in this case did not have the requisite service to be covered by the protections of the Unfair Dismissals Act. The Labour Court has found consistently that employers are required to afford due process to workers before a decision to dismiss is taken, even if the workers concerned are not covered by this legislation.

The Employer chose not to attend the hearing. I see no reason not to accept the uncontested facts of the case, as outlined on behalf of the Worker.

Based on the uncontested evidence I am satisfied the worker had completed her probationary period.  On that basis all elements of the company handbook and in particular the Disciplinary Rules and Procedures applied. In addition, 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.

The employer’s Disciplinary Rules and Procedures clearly set out that every effort will be made to ensure that any action taken under the procedures is fair; that an employee will only be disciplined after careful investigation of the facts; and that the procedures also provide the opportunity for an employee to present their side of the case at a disciplinary hearing.   The procedures also state that other than for an “off the record” informal reprimand the employee has the right to be accompanied, and that an employee will not normally be dismissed for a first breach. The procedures further state that dismissal on the first occasion may occur for gross misconduct, and any other dismissals such as major or minor misconduct will occur after a final written warning.

No evidence was presented to support a situation that the worker had been subject to previous written warnings, nor had she been subject to any previous formal verbal warning.

The worker was invited by text to a meeting on 31st January 2020 with one hours’ notice.  The outcome of this meeting was a dismissal.  The worker appealed the decision and the letter following the appeal process which upheld the dismissal issued to her on 18th February 2020 stated that:

• - the worker had been verbally made aware of performance issues on a number of occasions. (it is noted that the employer stated these warnings were issued by the manager who actually dismissed her at the meeting on 31st January 2020);
• - that the worker had been given training during her employment to improve performance on certain areas of her role;
• - that as she was invited to an informal meeting on 31st January 2020 there was no right for representation.

Notwithstanding other matters relevant to this dispute, I find it remarkable that the employer in its appeal finding referred to the meeting of 31st January 2020 as an informal meeting, particularly as it appears that this meeting was established with the intention to dismiss the worker.  As the worker had completed her probation period she was entitled to the panoply of the procedures and her contractual rights as set out in the staff handbook.  It is evident this was not afforded to her, not only in the manner the employer informed the worker about the meeting of 31st January 2020, but also in the attitude that the employer maintains since that meeting by asserting it was an informal meeting and therefore the worker had no right for a representative. This is an extraordinary position to maintain and does not excuse the inherent unfairness exercised by the employer by not affording the worker due process.   In addition, in this case the manager who appeared to have had concerns about the worker’s performance was the manager who chaired the meeting and also decided to dismiss the worker.  This action amounts to a breach of ‘nemo debet esse judex in propria causa’, which means that no man shall be judge in his own cause and is one of the first rules of natural justice. The employer then compounded this decision by not properly considering the flaws in its own procedures during the appeal process. It is not sufficient to be merely seen as going through the steps, employers are required to actually afford due process to workers at all stages of the process.  Indeed, it is evident that the employer was aware of the process it should have followed as it attempted to rely on that process in justifying its unfair treatment of the worker in not affording her the right to be represented at the meeting of 31st January 2020.

I therefore conclude that the worker was unfairly dismissed in that the employer failed to adhere to its contractual obligations towards the worker in relation to how it dismissed the worker, and where it failed to practice a fair process. 

Taking all of the above into consideration I recommend:

• - that the employer provides training to its managers in relation to their obligations in conducting disciplinary procedures and the proper application or fair procedures and due process when considering the dismissal of an employee; and
• - that the employer pay the sum of €12,500 to the worker, in compensation for the unfair dismissal.

Dated:  19th May 2021

Workplace Relations Commission Adjudication Officer:  Gerry Rooney

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