Worker

Employer

Anonymised Parties

The Worker

The Employer

Act

Dispute Reference No.

Date of Receipt

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

CA-00053716

19/04/2022

The Worker was employed by the Employer from 11 December 2021 until her dismissal on 14 March 2022. The Worker took a Covid-related absence of approximately three weeks during this period. On 19 April 2022, the Worker, having less than 12 months’ service, submitted an unfair dismissal dispute to the Workplace Relations Commission under the Industrial Relations Acts.

The Worker commenced work on 11 December 2021. She was dismissed on 14 March 2022, receiving pay in lieu of notice. The Worker earned €220 gross per week, working 20 hours per week at €11 per hour. The Worker did not receive a contract of employment or any written terms and conditions of employment, upon or after commencement of employment.

During the Hearing, the Worker outlined her unfair dismissal dispute. She said that prior to taking on this role, she had been out of work for approximately one year and so she was happy to be back at work. She thought work was going well and she received no indication from the Employer to think otherwise. She had been invited to a staff get-together on the night of 12 March 2022 but could not attend as she was ill. She received a phone call from the Employer on the morning of 14 March 2022. She initially thought that the Employer was calling to ask her to come into work early. However, it transpired that due to a complaint made to “Head Office” on 9 or 10 March 2022, regarding a sandwich which she had made, the Employer was calling to dismiss her with immediate effect. The content of this telephone conversation was confirmed that evening in an email from the Employer to the Worker. A few weeks later, the Worker returned her washed uniform, as requested by the Employer.

The Worker said that she did not receive any verbal or written warnings during her employment. She said that that a probation period was never discussed with her. The Worker said that her dismissal came as a shock. She found the experience upsetting and embarrassing.

Due to her financial commitments, the Worker said that she had to quickly find alternative work. Approximately three weeks after her dismissal, she started a new job earning €240 gross per week, and tips.

The Employer said that she has been running her hospitality business for 14 years.  She currently employs five members of staff. She believes that she is lenient and treats her employees well. She has never previously appeared before the Workplace Relations Commission. The Employer said that her business has a fast-paced working environment and that customer care and high standards are essential.

The Employer hired the Worker in December 2021 after interviewing her. The Employer said that during the course of the interview, the fast-paced working environment was discussed. The Employer believed that on the basis of the Worker’s interview responses, she could do the job. The Employer said that a three-month probation period was also discussed during the interview and she made a note of this in her interview record. The Employer did not provide the Worker with a contract of employment or any written terms and conditions of employment, upon or after commencement of employment. The Employer said that it was her practice not to provide a contract of employment until the three-month probation period ended.

The Employer employed the Worker from 11 December 2021. The Employer said that as far as she was aware, everything was going well until after the Christmas break on 2 January 2022. In mid-late January 2022, the Employer was made aware of a customer complaint regarding the receipt of an incorrect order. The Employer said that she raised the complaint with the Worker who responded along the lines of “oh sorry, it won’t happen again.” The Employer asked the Worker to slow her pace down, to do everything correctly. The Employer said that the whole exchange was two or three sentences long. The Employer said that she should have framed the conversation so that it technically should have been a verbal warning, but she did not do so. The Employer has no record of this exchange.

At the end of February/start of March 2022, the Employer said that she raised another complaint with the Worker. This complaint was based on her own observations of the Worker’s sandwich preparation. The Employer said that Worker responded that she had a “fuzzy brain” following Covid. The Employer has no record of this exchange.

On 9 or 10 March 2022, the Employer received a customer complaint via “Head Office” regarding the quality of a sandwich made by the Worker. This was the “final straw” for the Employer. She called the Worker on the morning of 14 March 2022 to dismiss her with immediate effect. The Employer said that she dismissed the Worker over the phone as she didn’t want to embarrass her in front of her colleagues. The Employer believed that it was the right thing to do.

The Employer said that the Worker was often late to work, however, she had not discussed this with her. The Employer also said that the Worker did not listen to her colleagues, however, she had not discussed this with her. The Employer believed that the Worker was unable to keep up with the fast-paced working environment.

The Employer said that she has no performance management process for implementation as it is a casual working environment. The Employer said that she had not provided the Worker with a contract, which she said would have outlined the disciplinary process. The Employer said that the Worker had not been provided with the Staff Handbook.

The Employer accepted that the Worker’s probation period ceased on 11 March 2022 and that it was up by the time the Worker was dismissed on 14 March 2022.

My role is to inquire into the dispute and find a fair basis for resolving the dispute. In conducting my inquiry, I have taken into account all relevant information presented to me by the Parties.

The Employer must demonstrate that the dismissal was: (1) substantially fair; and (2) procedurally fair. The Labour Court emphasised the importance of fair procedures in Beechside Company Limited t/a Park Hotel Kenmare and A Worker, LCR21798, noting: “… 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.”

Was the Dismissal Substantially Fair:

There is dispute between the Worker and the Employer regarding conversations that took place between them. Nevertheless, it is difficult to accept that, even taken at their highest, the three complaints outlined above, which occurred over a three-month period, constituted reasonable grounds for believing that the Worker lacked competence to perform the work and merited immediate dismissal. Moreover, the Employer accepted that prior to the Hearing, she did not previously raise concerns regarding the Worker’s timekeeping and interactions with colleagues. It is difficult to accept the significance of these concerns now, when they were not raised with the Worker at the time they allegedly occurred.

Consequently, the Employer failed to demonstrate that the Worker’s dismissal was substantially fair.

Was the Dismissal Procedurally Fair:

The Employer said that she raised a complaint with the Worker in mid-late January 2022. The Employer accepted that this conversation was not framed as a verbal warning. The Employer did not have a record of this conversation. The Employer said that she raised a second complaint with the Worker at the end of February/start of March 2022. Again, the Employer did not have a record of this conversation. It is difficult to accept that as a result of these conversations, the Worker was aware that that she was subject to a disciplinary process and that she was in danger of losing her job. This is compounded by the fact that the Employer did not provide a contract of employment or any written terms and conditions of employment to the Worker. The Employer also outlined that she did not provide the Staff Handbook to the Worker. Consequently, any reference to probationary conditions or disciplinary procedures were not clearly set out in writing for the Worker to accept and understand.

The Employer dismissed the Worker on 14 March 2022 with immediate effect. This was on foot of a sandwich-related complaint dated 9 or 10 March 2022, which the Employer regarded as the “final straw”. The Worker was not afforded, amongst other things, the right to appeal. The manner of this dismissal lacked fairness and due process.

There is dispute between the Worker and Employer regarding whether a probation period was in place. However, this is a moot issue as the probation period would have ended on 11 March 2022 and the Worker was dismissed on 14 March 2022.

Consequently, the Employer failed to demonstrate that the Worker’s dismissal was procedurally fair.

Industrial Relations Act, section 13, Unfair Dismissal.