Complainant

Respondent

Parties

Margaret  Walsh

Bective Stud Ltd

Representatives

  self

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00043249-001

25/03/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00043249-002

        25/03/2021

The stud is a start-up business and at a point decided that it required day to day support regarding bookkeeping and administration. The complainant as set out in her CV stated that she had very extensive bookkeeping experience including VAT preparation, Excel literacy and operating an accounting package called SAGE.

This business had no other accounting staff other than the complainant who started on the 10th of June 2019. They did outsource their returns and company accounts to a third-party accounting firm.

The complainant was interacting mainly with one director and this accounting firm.

Initially the complainant commenced working 3 days a week due to a backlog of work. However, at the interview it was stated that the normal pattern would be 1 day a week.

Unfortunately, the expectations of the owners and the employee about induction, training and direction were very different.

The owners recruited the employee to ease pressure on them concerning day to day accounting and administration. The employee stated her job was impossible based on poor communication, ad hoc interaction, no planning, and a serious underestimation of the time required to induct a new employee.

The complainant is a very experienced bookkeeper who had all the necessary skills and experience to do the job. However, every business is different and the owners in this business failed to make the necessary time to clearly set out their expectations and to spend the right amount of time directing her about various tasks. The complainant stated that she was proficient in the use of excel, SAGE accounting system, payroll, and VAT preparation. However, in this company the expectations of the owners could not be met as they did not provide the necessary paperwork, invoices, bank statements on time to her. Her contract while initially requiring 3 days a week, at interview it was understood that it would eventually be for 1 day a week. However, soon the owners began blaming her for their failings. They never had given her a written contract or handbook. Ms Moran promised on several occasions to spend more time with her; however, she spent very little time with her explaining what the job entailed. Eventually her work was restricted and reduced to 1 day a month and then she was let go.

The directors stated that their business was a start-up. At a point they realised they needed bookkeeping and administrative support. It became clear both from their own experience and feedback from their accountant that the complainant was not able to carry out basic tasks without a lot of direction. They found themselves explaining how excel worked. They were very surprised when they realised that she couldn’t set up the SAGE accounting system. The VAT preparation and returns were incomplete. They acted in good faith on what the employee had detailed in her CV. However, the reality was that she required far more direction than they could provide or was reasonable. They had an expectation that she would in fact be self-reliant and would organise them. It soon became very clear that the complainant had worked in environments where an accountant directed her work and where systems and controls were already in place. This was not the situation with their start up business. They could have terminated the contract during the first 12 months; however, they wanted the employee to succeed and gave her every opportunity to do so. However, it eventually became very clear that the complainant would not be able fulfil the role without ongoing direction. The employee was given every chance to improve and was under no illusion about shortcomings.

The company did not give her a contract or staff handbook detailing grievance and disciplinary procedures.

Redmond in Dismissal Law 3rd edition states at 13.14:

‘Perfect’ procedural justice has been defined as the ideal of a procedure guaranteed to lead to an outcome where justice is identified by some independent criterion. 24 The balance between substantive and procedural justice becomes most crucial in relation to the reasonableness of an employer’s decision to dismiss. Increasingly, procedural justice is being taken for granted by all concerned and the WRC’s function is to decide how exacting its tenets shall be. An employer will be regarded as having fairly dismissed an employee only if it both gave the employee the full benefits of a fair procedure and accorded him his just deserts or established a functional necessity for his dismissal. Section 6(7) of the Unfair Dismissals Act 1977 further emphasises the importance of reasonableness. In determining if a dismissal is unfair regard may be had:

(a)to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

What I must address is having regard to all the circumstances and facts presented and on the balance of probabilities was the dismissal fair? The complainant had been informally spoken to about her work performance. The complainant was given an opportunity to improve.

The code of practice SI 146/2000 at section 6 state:

6.     The procedures for dealing with such issues reflecting the varying circumstances of enterprises/organisations, must comply with the general principles of natural justice and fair procedures which include:

•    That employee grievances are fairly examined and processed.

•    That details of any allegations or complaints are put to the employee concerned.

•    That the employee concerned is given the opportunity to respond fully to any such allegations or complaints;

•   That the employee concerned is given the opportunity to avail of the right to be represented during the procedure;

•   That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors or circumstances.

This is a start-up business, and the owners were not aware of their employment obligations, nor did they seek external advice. They believed that they acted fairly and reasonably.

The employee had an expectation that they would receive more direction than they did.

An objective reading of the complainant’s CV does detail skills and experiences that could give rise to the expectation that this employee would need little direction.

The fact is the employee did require assistance relating to Excel; VAT preparation and did not know how to set up and install SAGE but did have SAGE experience when the package was up and running.

The employee up to this particular position, had worked in very structured roles with direction. This role was very different.

The directors while they were reasonable in so far as providing the employee with time to improve; technically the process they followed was deficient. At no time did they put the employee on notice and on a formal improvement programme, detailing support and then formally reviewing progress at set times.

The employee was not provided with written information concerning their terms and conditions. However, I do note that all terms and conditions were paid and complied with.

I note a relevant commentary on fair procedures in Redmond on Dismissal Law 3rd Edition Bloomsbury:

[15.34]

Procedures (see para [13.36]) are likely to provide for a formal verbal warning; a first written warning; final written warning/suspension; dismissal. All will be noted on or copied to the employee’s personnel file, including the verbal warning, and confirmed by letter to the employee. The opportunity of representation is generally provided for disciplinary action at least from the first written warning on.

[15.35]

Progressive discipline as detailed by the Employment Appeals Tribunal in Richardson v H Williams & Co Ltd 42 means that an employee has been given a justified warning that unless his or her work improved in a specific area then his or her job would be in jeopardy. The employee is entitled to:

(i)a reasonable time in which to effect improvement;

(ii)a reasonable work situation within which to concentrate on such defects; and

(iii)expect that, if an employee improves in the complained of area to the reasonable satisfaction of the employer, and such defect is not repeated, then such a warning cannot be solely relied on in relation to a dismissal for other reasons.

In this case there is a total absence of formal process and procedures that in turn makes the decision flawed and unfair.

Unfair Dismissal Act CA-00043249-001

I note that section 6(7) of the Act states:

 (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 section 7 (2) of this Act.

The facts of this case show that there was a mismatch between the expectations of the employee and the directors. I have no doubt that the employee in the right environment was very efficient and competent. However, in a start-up and where there was little structure or procedures established the reality is the employee found it difficult to meet expectations. The directors for their part were not familiar with more formal Human Resource practices that would formalise a performance improvement programme and ensure fair procedures were formally adhered to.

 I determine that the employee was unfairly dismissed. I do so because the employer did not follow a formal process where it could be shown that the principles of fair procedures as set down in the code in fact had been complied with. The employer was reasonable in so far as they held back from terminating the contract for months and genuinely wished for the employee to improve and meet the job requirements. However, the employee was never on notice of the seriousness of the situation and how she was falling short of what was expected.

The employee has not provided any evidence of mitigation of loss as set out at section 7(2)

 (c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid,

It is not feasible for the employee to be re-instated or re-engaged having regard to the circumstances of this case and the fact that the employee would continue to struggle with what was expected from them. In these circumstances and having regard to the preference of the employee, compensation is the appropriate redress. I note that employee’s gross weekly salary is €160 and award the employee 4 weeks’ pay which equals €640.

Information Act CA-00043249-002

The employer accepts that they did not provide the employee with a written contract of employment. I note that section 3 of the Terms of Employment (Information) Act 1994 as amended provides:

3.— (1) An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment, that is to say—

The complaint is well founded. Pursuant to section 7 of the Act:

(e) in relation to a complaint of a contravention under section 6C , and without prejudice to any order made under paragraph (d) , order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks ’ remuneration in respect of the employee ’ s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977 .

I order the employer to pay the employee 4 weeks gross salary = €640 arising from the employer’s failure to give the employee a statement in writing no later than 2 months after commencing with the particulars as set out in section 3 of the terms of the employee’s employment.

Unfair Dismissal- Failure to provide terms and conditions