Worker

Employer

Anonymised Parties

A General Manager

A Hotel and Restaurant

Representatives

  Self Represented

The HR Suite

Act

Dispute Reference No.

Date of Receipt

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

IR - SC - 00001217

29/03/2023

The Worker alleged she was dismissed as a result of fabricated reasons and without any fair disciplinary process. The Worker was employed from January 1st 2022 to September 9th 2022 as General Manager of the Employers Hotel.

The Worker denied all the accusations levelled against her.

The Worker claimed that she was dismissed on September 29th 2022 by letter without an investigation or disciplinary meeting into the alleged events of September 28th 2022.

During her short medical absence prior to her dismissal, she stated she provided the necessary back -to-work certificates to Mr. X who was acting as the General Manager on the day they were issued.

Regarding the accusation of unauthorized access to a computer, the Worker stated she had legitimate access to work-related systems even while on leave, as her role necessitated involvement in activities such as tour bookings, reservations, and account management. She advised that the Owner was well aware of this arrangement and was contacted during this time to let him know that the Worker had been in contact with accountants etc.

With regard to the allegation of aggressive behaviour, the Worker urged the Employer in her pre-submission to provide Mr. X as a witness, as he could attest to the fact that the Worker conducted herself professionally throughout their interactions. To further substantiate her claim, the Worker requested the employer to provide the CCTV footage from the alleged incident on September 28th, which she stated  would demonstrate that she commenced her day as any regular workday, engaging in routine activities like making a cup of tea in the lounge, conducting a hotel walk-around and attending to paperwork at her desk. The Worker alleged that the CCTV would show that what transpired on the day was that Mr. X exhibited unwavering resolve as he forcibly removed the Worker from the premises under the direct orders of a visibly enraged Owner, whose voice resonated loudly through the phone, making his instructions unmistakable. The entire incident left the Worker feeling deeply perplexed and caught off guard by the sudden and tumultuous sequence of events.

The Worker advised that a meeting took place on the 19th of September 2022, where financial matters were discussed. In that meeting the Worker referenced a prior meeting, believed to be mid-August, where she expressed her concerns about the Owners handling of certain financial aspects of the business. As these issues are not the subject of the dispute, I see no requirement to elaborate on them further in the Recommendation. However, the Worker believed her concerns about financial irregularities were the true reason behind the Owners initial and subsequent complaints against the Worker.

Regarding the claim about changing passwords, the Worker stated she was willing to provide evidence to disprove the Owners accusations. She stated that her request for the safe keys on September 28th was motivated by the need to review financial reports and investigate the communication she received from staff of missing cash amounting to over €1500 from the safe. As the General Manager, she felt it was her responsibility to ensure the security and proper handling of the hotels daily funds.

The Worker advised that she was concerned about remarks she had heard the Employer was making about her to other Hospitality premises in the area thus impacting on her opportunity to get full time employment.

Finally, with regard to the written testimonies provided by witnesses, the Worker had available to the Hearing a number of witnesses to support her version of events.  However, it was agreed by all that their contribution was not required.  

The Employer operates a boutique hotel with 12 rooms as well as a bar and dining room. The hotel operates from February to October yearly.

The Worker was employed as the General Manager of the hotel from 4th January 2022 to 29th September 2022, reporting to the Managing Director.

The Worker was dismissed due to her conduct and the Employer made every effort to provide due process, despite the Complainant’s unreasonable behaviour throughout

Despite being addressed during a probationary review meeting, it came to the Employer’s attention that the Worker may have been sleeping in a guest bedroom whilst she was on duty.

On 8th September 2022, the Employer’s Managing Director invited the Worker to an investigation meeting scheduled for 10th September. The Worker went on sick leave from 8th September 2022.The Worker attended a meeting via Zoom with the Employer on 19th September 2022. This meeting was at the Complainant’s request. During this meeting, the Worker became irate and shouted at the Employer throughout. She said that the “Employer was unfit to run the company; that company procedures had not been followed; that the Employer didn't have a clue what he was doing; she spoke aggressively & told the Employer that she would see him in court”. The Employer ended this meeting as it became quite heated and was not at all productive. The Employer told the Worker that he would speak with the other Company Director.

On 28th September 2022, the Worker arrived to the Employer premises. She was still on sick leave at this point and was not scheduled to be in the hotel for work nor for any meetings. The Worker entered the office in the hotel and sat at a desk and accessed a hotel PC. At the time, another employee who had been fulfilling the Workers duties in her absence was also in the office. He asked if the Worker was cleared to return to work as no return-to-work cert had been submitted. The Worker became aggressive towards this employee and demanded the safe keys from him. She also attempted to change the hotel password on 28th September 2023. As a result of her behaviour on the day in question, the employee present, who was responsible for the hotel, its staff and guests at the time, had no option but to escort the Worker from the premises. He also called the Gardai to report the incident. When this incident was reported to the Managing Director, he had no other option but to terminate the Workers employment. He notified the Worker of same in writing and outlined the reasons for her dismissal.

The behaviour of the Worker was so unreasonable on the day in question that the Employer requested that she not enter the hotel for a period of 12 months or he would be left with no option but to contact the Gardai to have her removed.

The Worker has not indicated when she took up employment following her termination. The Employer stated that it was important to note that the hospitality industry was at the time, and remains, in a severe labour shortage and so the Employer expected that attempts to gain employment should have been successful in a short space of time.

In summary the Employer maintained that the facts of the case were as follows:

The Employer made every reasonable effort to engage with the Worker in line with its own internal disciplinary procedure.

The unreasonable behaviour of the Worker made this impossible.

The Employer was left with no other option but to conclude the employment relationship in order to ensure the safety of his employees and his customer.

The Employer requested that the Adjudicator recommend that this matter be closed.

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

The Worker was accused of an issue at work and invited to a Disciplinary Investigation meeting on September 19th 2022. A record of a call, by phone, by the Employer with another staff member was read out to the Worker at the meeting that the Worker had been sleeping in a bedroom on September 5th. This allegation/record of the call was unsigned by the Staff Member and not dated. The Worker denied the allegation at the Investigation meeting and advised the WRC Hearing that the staff member had never seen the statement until the dismissed Worker showed it to her recently. The Worker advised that the Staff Member involved was a young female new to work.  On examination of the written record of the call by the Adjudicator it appears that pressure was applied to the other Staff Member, she was not in agreement that the Worker was asleep (her reply to the question “was the Worker asleep in the bedroom” was “I don’t know”) and it cannot be considered a fair or valid statement.

The Worker was invited to a meeting on Sept 19th through a letter entitled “Invitation to an Investigation Meeting”. The Employer confirmed at the WRC Hearing that a disciplinary process had commenced on December 8th. However, the notes of the meeting stated it was a fact-finding meeting. Subsequent to the meeting on Sept 19th the Worker was not disciplined or any action forthcoming arising from the Investigation meeting at that point. The Respondent stated the mater had not concluded at the time of the dismissal.

The Worker had been out sick and returned to work on September 28th. She advised the Hearing that she had a coffee in the lounge, walked around the hotel to check things (she stated she would normally do this at the start of a shift) and then went to the front office were she met the Acting Manager in her absence (Mr. X). She advised she engaged with Mr X on various operational issues at the Hotel and their relationship was cordial. Mr. X then phoned one of the owners and he was advised to tell the Worker to leave the premises and escort her off the premises. The Worker advised the Hearing that Mr. X put his hand on her shoulder to escort her off the premises and she told him not to touch her. The Employer alleged that the Worker wanted the keys to the safe and was changing the hotel computer passwords. The Employer, in their submission, stated the Worker became aggressive and her behaviours was unacceptable. The Employer stated they phoned the Garda with regard to the Workers behaviour. The following day the Worker was issued with a termination of her employment letter due to her conduct and that the bond of trust was broken. Importantly. the Employer did not supply any evidence to support any of these allegations to the Hearing. The Employer stated they were not able to provide Mr. X as a witness to collarbone their allegations as he no longer worked for them.  The Employer did not provide any CCTV or report from the Garda. The Employer did not provide any evidence of wrongdoing by the Worker other than the document from the young employee which I do not consider a fair or valid statement. The Worker denied these allegations in their entirety and stated the Employer wanted to get rid of her because she would not get involved in certain actions which she deemed to be illegal and bad practice.

The Worker advised she had attended work on September 28th albeit without a return to work medical certificate. She attempted to do her duties and advised she had called to the hotel on a few occasions while out sick. She was physically ejected off the premises. The Worker advised she called the Garda station that the alleged phone call was made too and they had no record of such a call being made. The Worker advised she worked non-stop for the weekend prior to her dismissal and she felt the Owner waited until a busy weekend with a wedding was over before dismissing her. The Worker advised it was not unusual for her to sleep in the premises due to the round the clock nature of her duties.

The Employer advised in prehearing submissions that the probation period of six months had been extended by 5 months (and the probation period was current as of the dismissal date) as the Worker had advised she would be leaving in December and there was dissatisfaction regarding performance. The Worker denied at the Hearing this was the case and stated that no probation meeting or extension of probation had occurred. The Employer could not produce any evidence that the probation period had been extended. While nothing significantly stands or falls on this in Beechside Company Ltd v Park Hotel Kenmare/A Worker(LCR21798) the Labour Court ruled that “Where an employee is considered unsuitable for permanent employment, the Court accepts that an employer has a right, during the probational period, to decide not to retain the employee in employment. However, the Court takes the view that this can only be carried out where the employer adheres to strictly fair procedures”. In Donal O Donavan v Over-C-technology Limited (2021) IECA37 the Court of Appeal stated, as an authority to dismiss based on poor performance during the probationary period as follows “In my view, Orr and Carrol remain good law. The principle established was specifically endorsed in Maha Lingham were Fennelly J. confirmed that a dismissal by reason of an allegation of improper conduct attracts the right to fair procedures, whereas a dismissal in the absence of an allegation of improper conduct does not attract such a right”.  The conclusion of this case law is simple, an employee in probation or who is permanent is entitled to fair procedures being followed when a dismissal is being considered for improper conduct. The Employer in this case did not follow those legal principles or its own procedures regarding dismissal and terminated the employment by letter without an investigation or disciplinary hearing.

As outlined above am employee being dismissed for gross misconduct is entitled to fair process to be followed which that would, at a minimum, include some form of investigation and then a disciplinary meeting. The Employer did none of these and dismissed the Worker without due and fair process. The Worker had unsupported allegations made against her and was dismissed by letter on September 29th without an investigation or disciplinary hearing to present her case.  This is in breach of all good Industrial relations practice and is grossly unfair to an employee (in the circumstances) as per the judgement in Donavan v Over c-Technolgy.

The Worker advised that she was earning about 1000 Euro per week with the Employer and got a part time job in early 2023 where she now earns about 1000 per month. The Worker advised the Hearing that her loss was approximately 14,00 Euros and she was also denied the payment of a 5,000 Bonus. The Worker advised that the location where she lives she had little opportunities for employment in the Winter as it was mainly a tourist resort. She advised that she had worked about 20 hours a week overtime during her employment with the employer and as the business was seasonal was due to have these hours returned to her as time in lieu.  In total I estimate the loss to the Worker due to overtime hours as approximately valuing 10,000 Euros but as they were due to be taken as time in lieu there are not a major consideration in my assessment of the loss in this  dispute.

I find that the Worker was dismissed unfairly without fair procedures and I recommend that she receive total compensation of 14,000 Euros for the breach of her employment rights. This amount reflects the fact that the Worker came back to work without a medical certificate stating she was fit for work and the bonus was not definite to be paid In December 2022 if the Worker had remained in employment. These circumstances are a contributory factor in my assessment of what is reasonable compensation taking into account all of the circumstances.

I also recommend that, as none of the allegations against the Worker were supported or proven at the Hearing, that any alleged disparagement of the Worker by the Employer cease immediately to any potential employer or in the public domain generally.

Unfair Dismissal