Worker

Employer

Anonymised Parties

A retail worker

A retail store.

Representatives

  In person

 Company management

Act

Dispute Reference No.

Date of Receipt

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

07/06/2021

The complainant commenced employment in the respondent’s toy store on 12th October 2020 and worked until 8th December 2020.

This complaint was received by the Workplace Relations Commission on 7th June 2021.

In complaints under s.13 of the Industrial Relations Act, 1969 the complainant is referred to as the worker and the respondent is referred to as the employer.

On 08/12/2020 at 10.00am the worker went to the store owner and requested that he may be able to speak to him privately. The worker wished to inform the owner of the treatment he was receiving from his supervisor. The owner took the worker into the downstairs office where he (the worker) began to explain what his grievance was. The worker felt that the supervisor had spoken to him in an overly aggressive manner and the worker did not want this to become the norm.

The store owner informed the worker that he would speak to the supervisor, “there were two sides to every story” and when he had spoken to the supervisor he would revert to him (the worker).

Some time later the worker was informed by his supervisor that the shop owner wished to speak to him in the office. The worker was accompanied to the office by his supervisor.

I note that the worker stated in his complaint form that he was recording this conversation, I have paid no attention to this illegally gained recording.

The worker was dismissed at this meeting.  

The employer stated that the worker was hired on a probationary period of employment and had shown during this period that he was not suitable for the job and this was why he was dismissed.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

An employee on probation is, or should be, undergoing training. The period of probation can vary from three months to as long as two years. It is important to draft probationary clauses carefully, particularly regarding issues such as disciplinary procedures. An employer with a contractual disciplinary procedure will be in breach of contract if it dismisses in breach of the procedures, unless the probationary employee is subject to different or modified rules.

Most often an employer will reserve the right to extend the probationary period for (minor) disciplinary reasons or where performance has been below standard. An employer may also insert a clause such as the following:

‘During your probationary period, the company reserves the right to reduce the number of warnings set out in the disciplinary procedure or to dispense with warnings and instead at its discretion give you notice or pay in lieu thereof. In all cases the company reserves the right to terminate your employment without notice should the circumstances warrant it’.

The rationale behind such clauses from the employer’s perspective lies in the practical difficulty of operating disciplinary procedures while an employee is still being trained. Added to that, the full operation of disciplinary procedures may take an employee over the 52 weeks’ threshold. This latter consideration is not relevant, of course, to claims under the Industrial Relations Act, 1968 such as the instant case.

In the instant case there appears to have been no procedures at all.

In the instant case the employer appears to be of the belief that they could easily dismiss an employee once they are still on a probationary period. This is a mistake.

All employees, including those on a probationary period of employment, have a right to natural justice and fundamentally fair procedures.

The complaint as presented is well founded and I now recommend that the employer pays compensation of four weeks pay to the worker, I calculate this to be €2,508.00 (57 x 11 x 4).

I have noted that the worker secured other employment very quickly after the termination of his employment by the employer.

Compensation recommended should be paid within 42 days from the date of this recommendation.