Complainant

Respondent

Anonymised Parties

Café Manager

 Café owner

Representatives

  Self- represented

Mairead Harnett. The HR Suite

Act

Complaint/Dispute Reference No.

Date of Receipt

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

22/04/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

22/04/2020

The worker commenced employment on 26 November 2019 as a café manager. He was summarily dismissed on 18 February 2020. He worked 40 hours a week. His annual salary was €27,000.

He referred this dispute to the WRC on 22 April 2020.

CA-000xxxxx-xxx. Complaint under the Industrial Relations Acts.

The worker withdrew this complaint as it is a duplicate of  CA-00035806-004 .

CA-000xxxxx-xxx. Complaint under the Industrial Relations Acts.

The worker was unfairly and summarily dismissed on 18 February 2020 without any advance warning and in contravention of the employer’s own disciplinary procedures. The dismissal was conducted in a humiliating fashion in that it was done within sight and earshot of customers in the café.

 The worker believes his dismissal transpired due to his decision to hire his partner in early December, a decision he failed to disclose to the employer until 29 January when he apologised for this failure. He had lost all staff in the month following his appointment due to visas expiring. After a week of asking Head Office for authority to hire another staff member, without a response, he asked the Finance Department for approval. In the absence of the CEO who always had to approve hires, they approved his choice though unaware of their relationship. He knew that his partner would work well in the café. He did not understand that such as appointment was prohibited.

A second matter was his failure to open the cafe on the 9 February. The public entity who oversee the park in which the café is located directed that the park and all facilities within the park should close on the 8 February as an orange weather warning was in force. The complainant decided to keep the café closed on the 9 February as a yellow warning was in force, and the public entity would only be deciding at 12:00 on the 9 February as to whether the park and facilities should open. It would take the staff an hour to arrive following the midday notification, and the café closes at 3.30. As a manager, it seemed questionable to bring staff in for, perhaps, one hour apart from the overheads involved with opening. The facilities manager of the public entity telephoned the worker on the 9 February complaining that the café remained closed and that this was not the arrangement which the parent body had with the café.

The employer’s operations manager and HR manager came to the café on the 18 February. The worker was presented with a letter terminating his employment with immediate effect. The operations manager stated “it’s not going to work out here as honesty and integrity is a big part of what we are about”.

The employer runs a catering business since 2011. The company employs 53 people.

The worker’s employment was terminated on 18th February 2020 due to poor performance during his probationary period.

The role of Café Manager was to oversee and manage the daily operations of the Café. The worker was inducted and given training in relation to the relevant areas of the business and his role. After a number of weeks, it became apparent that there were operational issues arising due to his performance and also ongoing communication with the management.

During the worker’s employment the employer kept in regular contact offering him support in his new role. However, a number of issues kept arising and each time the worker was asked to improve on them. On the 30th January 2020 the worker attended a performance review meeting; necessary improvements were identified. These included cash balancing issues, shortages in the floats, not following clocking in policies, not adhering to procedures in relation to tips and other requirements. A separate issue arose in relation to hiring a new member of staff- his partner. The worker did not disclose the nature of this relationship to the employer.

The worker’s unauthorised closure of the café on the 9 February endangered their contract with the public entity which had overall charge of the park.

 The worker’s performance did not improve and as he was still in the probationary part of his employment, the decision was made to terminate the employment with immediate effect. The employer felt the worker was not a suitable person for the role. The worker was fully aware that his performance was not at the required standard and was fully aware that he was on probation.

His employment was terminated on the 18 February.

The employer relies on the case of Donal O’Donovan v Over-C Technology, [2021] IECA 37 where the Court of appeal held

“What is clear is that employers can feel more comfortable not affording employees on probation the benefit of fair procedures when dismissing them for any reason, provided the reason for the dismissal is not based on misconduct and they are not precluded from doing so by contract”

The respondent points to the worker’s contract which includes the disapplication of the disciplinary process during the probationary period.

I have been asked to accept that the worker is not entitled to rely on the usual protections attendant on the dismissal of an employee as his contract specifies that the disciplinary procedure will not apply to a termination of employment during the probationary period. The employer backs up this contention with a reference to the decision of theCourt of Appeal in Donal O’Donovan v Over-C Technology, [2021] IECA 37 where the Court held that if an employer has a contractual right to dismiss an employee on notice during his /her probationary period, without giving any reason, the Court could not imply a term that the dismissal may only take place if fair procedures have been afforded to the employee. However, the Court stated that an exception to this rule applies where the employee is dismissed for misconduct during the probationary period. In such circumstances the principles of natural justice apply, and fair procedures must be followed.

The employer maintains that the worker was dismissed for performance issues and not misconduct, but aspects of his dismissal jar with this characterisation. He was not paid his statutory notice as per his contract. His contract stated” In the event of your contract being terminated on the grounds of gross misconduct, you will not be entitled to any notice.” This is the only circumstance in which the payment of statutory notice is withheld.

The operations director notified the worker on the 18 February and at an earlier date that a breach of honesty as in his failure to disclose that he had hired his partner to work in the cafe is treated as serious misconduct. Breach of the honesty policy is classified as serious misconduct in the section of the worker’s contract dealing with disciplinary processes.

He was marched off the premises in full view of customers while working his shift on the 18 February and within minutes of being advised that his employment was terminated. A few minutes earlier the operations director had directed him to open the safe.

On the basis of the above, I conclude that he was dismissed on the basis of misconduct.

It is accepted that the meeting on the 18 February at which his employment was terminated occurred without prior notice of its purpose or the offer of the right to be represented, nor was the basis for his dismissal put to the worker. It was a fait accompli as the respondent arrived with the letter of termination. He was not afforded the right to appeal the decision.

Based on the decision of theCourt of Appeal in Donal O’Donovan v Over-C Technology, [2021] IECA 37 which affirmed the right to fair procedures where misconduct is the cause of the dismissal, I do not accept that the employer’s disciplinary procedure (its disapplication during the probationary period), relieves the employer of the obligations resting with them by virtue of S.1 146/2000.  S.I 146/2000 requires that the details of any allegations or complaints are put to the employee in advance of an investigation or disciplinary hearing, that the worker has the right to be represented during the procedure, and a right to appeal a decision to dismiss. Whatever about the worker’s conduct, none of these requirements were observed in this dismissal.

I recommend that the employer pay the worker the sum of €2596 which is equal to five weeks salary in settlement of this dispute.

I recommend that the employer pay the worker the sum of €2596 in settlement of this dispute.

Dismissal during probationary period; entitlement to fair procedures in circumstances of misconduct.