Worker

Employer

Anonymised Parties

A Hotel Receptionist

A Hotel

Representatives

  Self-Represented

 Hotel Managers – General Manager & HR Manager

Act

Dispute Reference No.

Date of Receipt

Industrial Relations Act,1969

CA-00052774-001

12/09/2022

The dispute concerns a Hotel Supervisor and a Hotel.  The employment of the Worker was not continued at the end of her Probation period.

The Employment began on the 4th October 2021 and ended on the 2nd of April 2022.

The rate of pay was stated to be €13 Euro per hour for a 39-hour week.

The Worker made a lengthy oral testimony supported by extensive documentation, copies of e mails and correspondence.

The job had began in October 2021. All went well but a fellow Supervisor, Ms XK, soon began bullying her and also seriously mistreating more junior staff.  This was a completely unacceptable manner of staff management to the Worker. She tried to raise these issues with the Accommodation Manager, Ms XA, but to no avail. Ms XA clearly condoned the very bad actions of Ms XK towards all staff. The Worker listed numerous instances of clashes with Ms XK and by extension Ms XA, involving Rooms being readied for Occupation, Hand Over Sheets, Bridal Party issues, ordering flowers, cleaning of a storeroom, supervision of staff etc. Ms XK was always shouting at staff and being generally rude and aggressive. The Worker was constantly being accused by Ms XA, the Manager, of being on a “Witch Hunt” against Ms XK. It was completely false to suggest that the Worker covered up her own shortcomings by blaming fellow supervisor, Ms XK.

The Worker’s job was made impossible by Ms XK (supported openly by Manager Ms XA) and her position in the Hotel was completely undermined. The final Probation review was sprung on her without any proper warning, she was never advised that her employment was in jeopardy. If the Hotel had issues these should have been brought her attention and steps could have been taken to resolve them.

She had no opportunity to have proper Representation. Her side of the story was never heard.

The final appeal to Mr B, the General Manager, was a pre decided meeting and was completely unfair.

She particularly criticised the Employer for failing to bring Ms XA, the former Manager, to the WRC Hearing. It denied the Worker the opportunity to cross examine the Manager who she felt was the main actor in the Dismissal process.

In summary the Worker felt that she had been denied all Fair Procedures and Natural Justice. She had been Unfairly Dismissed.

The Employer made an Oral Testimony from the General Manager, Mr DB, and the HR Manager, Ms PF.

In summary the Employer case was that the Worker had failed to live up to expectations in her Supervisory role. It was a large and very busy hotel with 130 bedrooms and some 187 staff. The Hotel business is very difficult at the best of times and in this case, they were also dealing with the fallout from Covid 19.

Mr DB, the General Manager was the main spokesperson, (the Manager Ms AX being unavoidably unavailable). He stated that the Manager became concerned that the Worker here had not adapted well to the Hotel and the systems in place to manage rooms/cleaning/hand overs back to Reception etc. Additional training on the computer systems had been given. The Worker was also overly familiar in her management style with the Room Cleaning assistants. She failed to appreciate that she was their Manager and not their friend/assistant.

She had publicly made it known that she felt the Room cleaning ratios were unduly challenging for the Assistants and had created a division between herself and the other Supervisors particularly Ms XK that was obvious to the Assistants. Her allegations regarding Ms XK were never raised with Senior Management in a formal manner although she had made efforts to discuss these with Ms AX.

She had her first 3 Month Probation review in January 2022. While she scored well on some points the major concern was that she did not seem to grasp the basic supervisory skills needed in a Supervisory role. In addition, she appeared to have shortfalls in grasping what was appropriate for a “Clean Bedroom” ready to be released to new guests. There were issues with her understanding of what was required in Handover List for the next shift and what tasks needed to be completed on her shift rather than left for the following shift.

Relationships with the Manager Ms XA and the other two supervisors deteriorated. The Worker was given a “Job Chat” – a type of verbal cautioning – on the 19th February 2022.

In overall Terms, Mr DB summed up the position as one where the Worker had struggled to appreciate what being a Supervisor in a busy Hotel actually comprised both in terms of Tasks and in Staff Management. It was a case of many small issues adding up to the view that she was not suitable and accordingly her Probation was deemed unsuccessful. She was given the chance to Appeal this decision and a full Appeal Hearing took place with Mr DB on the 20th April 2022. Full minutes of this meeting (4 A4 pages were provided in evidence. It clearly demonstrated that a careful process had taken place.

Probation periods are in place in all employment to ensure that the Employer /employee relationship and the on-job performance are working out satisfactorily before a permanent appointment is made.

In this case the job performance and relationships had not worked out satisfactorily and the employment was ended. Realistically it was the best outcome for all concerned and could in no way be seen as an Unfair Dismissal.

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

3:1        The Law and Probationary Dismissals

The headline case here is the Court of Appeal decision of 2021 O’Donovan v Over-C Technology Limited [2021] IECA 37. This was an Appeal against a High Court decision in a Probationary Dismissal case. The Labour Court had also issued an earlier Recommendation under the Industrial Relations Act, 1969 in Beechside Company Limited t/a Park Hotel Kenmare v A Worker LCR 21798.

The role of SI 146 of 2000 Statutory Code of Practice on Grievance and Disciplinary Procedures is also relevant.

A preliminary key issue is whether or not the Contract of Employment has a Probationary Clause. In this case a Probationary clause is part of the contract.

“Termination of your employment within the probationary period shall be at the discretion of the company and in such a termination you will receive one week’s notice”

The Court of Appeal, referenced above, at Para 49 stated

49. It is common case that Mr. XXX was still serving his six-month probationary period when his employment was terminated on 7 January 2020. In my judgment, the trial judge failed to give adequate weight to the fact that the termination occurred during the probationary period. That is a critical fact in this case. 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 that a court can imply a right to fair procedures – still less 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. This does not prevent an Employer from including a term in the contract which confers rights to fair procedures on the employee, even during the period of probation.

(Underlining by Adjudication Officer).

However, the Labour Court has tended to the view that Natural Justice and Fair Procedures should apply especially where the Dismissal is for Misconduct.

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.

(LCR 21798 Beechside Company Limited t/a Park Hotel Kenmare v A Worker)

It should be noted that this LCR Recommendation (October 2018) predates the Court of Appeal decision quoted above.

This Misconduct / Natural Justice view would be supported by the Higher Courtsbut not to the extent that a Probation failure on “Ordinary competence Grounds” requires the full rigorous of a Natural Justice process as set out in SI 146 of 2000 Statutory Code of Practice on Grievance and Disciplinary Procedures.

Legal discussions and precedents aside all cases rest on their own merits and particular evidence and we must examine these below.

3:2        Consideration of the Evidence presented.

In line with the Legal position above the first issue is that the Worker’s probation period was not deemed unsuccessful for any Conduct / Misconduct issues. There was never any suggestion of any behaviour that could be deemed suitable for the Disciplinary Code.

The Appeal meeting with Mr DB, the General Manager on the 20th April 2022 and the Probation Review meeting of the 2nd April 2022 made this clear from the minutes.

Issues in the ending of Probation letter were Getting Rooms Back into Service, Interpersonal Skills and Role of the Supervisor. The exchanges/commentary on or with Ms XK were brought up by the Worker. The Employer view was that these types of issues were proper to Internal Procedures but had never been raised in the six-month period.

From an Adjudication view point the process was focused on Performance /Delivery issues. As such any Employer would take the view that this was a Probationary issue to establish if a permanent work relationship would be possible.

Regarding Proper Procedures the Court of Appeal, quoted above, was clear in the view that Procedures were more proper to a Misconduct situation which was not the case here.  However, the Worker view was that the ending of the job was “sprung on her” without warning. This could be subject to questioning. It was clear that relationships were deteriorating and a difficult Probation issue could not have come as a complete surprise to the Worker.

In her favour she argued that she never got a proper opportunity to cross question Ms XA during the Appeal Hearing with the General Manager. The non-attendance of Ms XA at the WRC hearing, for possible questioning, was the subject of considerable complaint from the Worker.

Nonetheless, the granting of a full Appeal to the General Manager was a good procedural step even if the question of Representation was left in abeyance.

Reading the minutes and listening to the Oral Testimony from Mr DB, the General Manager, the Adjudicator view had to be that on the balance of probabilities, he had treated the Worker in a reasonably fair manner throughout and she had been given a good opportunity to state her case.

In conclusion and to quote the Court of Appeal above

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.

In this case the Employer wished to end the employment relationship as per the Contract and did so. No Unfair Dismissal took place.

It appeared that no notice pay was given ( as per Mr DB at the end of his meeting) .

In all the circumstances and as referenced in the Contract of Employment I will recommend that a week’s notice be paid without admission of any liability.

Probationary contract, Unfair Dismissal