Worker

Employer

Anonymised Parties

Special Needs Teacher

Education Provider

Representatives

Self-Represented

Fiona Egan  Peninsula Group Limited

Act

Dispute Reference No.

Date of Receipt

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

10/06/2020

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

10/06/2020

The Employee worked as a special need’s teacher with the Employer. The Employee started on 27th August 2019 and her position was terminated on 6 January 2020. The Employee worked a 25-hour week for gross pay of €320; net €290. The Employee contends that she was not afforded proper disciplinary procedures up to and including her dismissal. The Employee also claims that she had not been paid wages which were due to her. The Employer contests both claims.

CA-00038425-001-Unfair Dismissal as a dispute under section 13 of the Industrial Relations Act 1969 (as amended):

On 4 November 2019 the Employee received a letter of dismissal from her Employer stating that she was being dismissed. The Employer cited a customer complaint in regard to her attitude and a high level of absenteeism from her start date of 27 August 2019. She was advised to work her leave period but then was put on garden leave in early December pending her termination date of 6 January 2020.

The Employee claims that the Employer did not investigate any complaints against her and that she was denied proper disciplinary procedures to allow her to answer her case.

CA-00038689-004 – Delay in Wage Payment

The Employee claims that when she returned from leave in September 2019 she was not paid wages that were due to her. She accepts that any outstanding wage was eventually paid but that the actions of the Employer in denying her wages at the time resulted in considerable hardship to herself and her family. She also claims she was not fully reimbursed for expenses she incurred whilst attending a training event in Dublin.

CA-00038425-001-Unfair Dismissal as a dispute under section 13 of the Industrial Relations Act 1969 (as amended):

The Employer submits that the employment relationship with the Employee was difficult from the beginning. Since her start date the Employee had developed a pattern of lateness and absenteeism. Members of the Employer’s staff and a parent had made complaints about her. The employer also submits that a member of staff had resigned over the alleged behaviour of the Employee.  On 4 November 2019 a notice of termination of the Employee’s employment was sent to the Employee. The Respondent cited a customer complaint regarding her attitude and a high level of absenteeism from her start date of 27 August 2019.

The Employer accepted that it did not carry out a disciplinary procedure contained in the Employee’s contract in that it did not have an investigation nor a disciplinary hearing where representation could have been allowed to the Employee.

CA-00038689-004 – Delay in Wage Payment

The Employer submits that the delay in paying the wages of the Employee resulted from the fact that the Employee was using the wrong return register for hours. It paid the full wages of the Employee when the record was rectified.

The Employer further submits that the Employee’s travel and accommodation for a training course was fully covered. It did not cover sundry items like Dart and bus fares within Dublin for the course.  

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

CA-00038425-001-Unfair Dismissal as a dispute under section 13 of the Industrial Relations Act 1969 (as amended):

The issue as to whether a probationary Employee can be dismissed without resort to proper procedures.  A recent Judgement of the Court of Appeal in the case of Donal O’Donovan v Over-C Technology Ltd 2021 IECA 37 analyses and reviews the common law position as follows:

“During a period of probation, both parties are - and must be - free to terminate the contract of employment for no reason, or simply because one party forms the view that the intended employment is, for whatever reason, not something with which they wish to continue. Neither party can hold the other to the continuation of the employment against the wishes of the other. I do not accept the court can imply a right to fair procedures - still less to uphold a cause of action for the breach of such an alleged right - in relation to the assessment of an employee’s performance by an employer (other than for misconduct, which does not arise here) during the probationary period, as this would negate the whole purpose of a probationary period.

The court then goes on to deal with the issue of “misconduct” at common law as follows:

“This statement of the law is clear. This authority has not been questioned and has been frequently cited and followed. Two principles are relevant to the decision in this case. Firstly, confirmation that an employer can terminate employment for any reason or no reason, provided adequate notice given. This applies whether or not the dismissal occurs during the probationary period. Secondly, it is authority for the proposition that the principles of natural justice apply to cases involving dismissal for misconduct, but not termination on other grounds.”

It is clear to me, upon reading the notice letter of 4 November 2019 that the reason for termination, by the Employer’s own admission was a customer complaint in regard to the Employee’s attitude and a high level of absenteeism.

The importance of fair procedures was outlined by the Labour Court In Beechside Company Limited T/A Park Hotel Kenmare v A Worker LCR21798, The Court 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.”

It is clear to me that the Employee was not allowed to answer the allegation being made against her, there was no appropriate investigation nor was she afforded representation. Furthermore, I found the manner of the dismissal to be humiliating for the Employee.

In recommending compensation, I must also factor in that there was an element of contribution by the Employee. There was a convincing submission by the Employer that her conduct and performance was not up to the standard required. The Employer clearly had lost trust and confidence in the Employee’s ability to perform satisfactorily in her role.

I find in favour of the Employee. Having considered all the elements of the case, including the short period of employment, I recommend that the Employer pay the Employee compensation of €1000 for the unreasonable and unfair manner of her dismissal.

CA-00038689-004 – Delay in Wage Payment/Expenses

I am not convinced that the Employer had behaved negligently in not paying wages when the incorrect hours were returned. When it was brought to the Employer’s notice the mistake was promptly rectified. I believe it would be unreasonable to apportion a compensatory cost to the employer in such circumstances. I am also of the opinion that the Employer fully covered all reasonable expenses, as a reasonable employer would be expected to cover, when sending Employees on training courses. I do not uphold the Employee’s grievance.

Unfair dismissal, Wages.