Worker

Employer

Anonymised Parties

A worker

A catering company

Representative

Self-represented

Aleksandra Tiilikainen IBEC

Act

Dispute Reference No.

Date of Receipt

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

30/12/2019

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The worker submitted that he was unfairly dismissed by the employer and that they had not adhered to their own procedures in that his probation report was not conducted on time and that they had not taken his comments into account following a period of performance review.

The worker submitted that the reasons given for his dismissal, lack of attention to detail and his attitude, were unfair.

The worker is seeking full disclosure in relation to his dismissal, a letter of apology from the employer and possible compensation regarding his subsequent period of employment.

The employer submitted that these matters have already been the subject of a decision in the case of ADJ-00024033 and that according to the provisions of Section 8(10)(a)(1) of the Unfair Dismissal Acts, 1977 the worker is precluded from pursuing a complaint under the Industrial Relations Acts.

Notwithstanding the foregoing, the employer denies that the complainant was unfairly dismissed.

The employer submitted that worker was not unfairly dismissed and that he was afforded fair process.

The employer notes that the progress review meeting notes were not signed but noted that the complainant has indicated that the progress meetings took place.

The employer submitted that the probation meeting did not take place on time as the worker was on a month-long holiday when the six month date passed.  Upon his return, his line manager was absent on sick leave for a number of weeks and the probation meeting took place two days after she returned from sick leave.

The employer noted that when the period of the performance review was up the following month, the workers line manager was once again out on sick leave and the review was undertaken by another manager.   The worker failed the performance review and was let go.

The employer submitted that the worker had the opportunity to seek an appeal but did not pursue an appeal.

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

Preliminary matter:

The employer submitted that the worker was precluded from pursuing a complaint under the Industrial relation Acts on the basis that he had taken proceedings previously and that a decision had issued in the matter.  The employer noted that Section 8(10)(a)(i) of the Unfair Dismissals Act 1977 was relevant here.

Section 8(10)(a) of the Unfair Dismissals Act 1977 states as follows:

(10) (a) A dispute relating to a dismissal shall not be referred to an adjudication officer under the Industrial Relations Acts 1946 to 2012 if, in relation to the dismissal—

(i) a recommendation has been made by a rights commissioner under this Act, or a hearing by the Tribunal under this Act has commenced,

(ii) a decision (other than a decision consisting of a dismissal of the claim concerned) has been made by an adjudication officer under this Act,

(iii) a decision has been made by the Labour Court in accordance with subsection (2) of section 8A affirming a decision (consisting of a dismissal of the claim concerned) of an adjudication officer under this Act, or

(iv) a decision has been made by the Labour Court in accordance with the said subsection (2) — (I) setting aside a decision to which subparagraph (ii) applies, and (II) not awarding any redress under section 7.

However, section 8(10)(a) (ii) is relevant here in that the decision of the adjudicator referred to by the employer is in fact a decision consisting of a dismissal of the claim concerned on the basis that the complainant in that matter had less than the requisite 12 months service and did not fall within the exceptions outlined in that Act.  Accordingly, I consider that this complaint may be pursued.

The complainant noted three main areas of dispute in relation to this complaint - that his probation meeting was delayed by 54 days, that the grounds for his dismissal were unfair and that he reverted to the employer with additional information that that not considered.

The probation meeting should have taken place six months after the worker began.  The worker confirmed that he was on annual leave from that date for about a month.  He also confirmed that his line manager was absent on sick leave for a further three or so weeks and that she held the review with him two days after her return to work.  He noted that his line manager indicated to him that the meeting would be his probation review only a short while before it too place.

Having regard to the timeline and circumstances, I do not consider the delay to be exceptional and note that having started work in June he was permitted to take a month’s leave in December and January.  Having regard to the processes of the employer, I am satisfied that they were broadly adhered to in light of the circumstances of annual and sick leave.

As regards the reasons for the worker being let go, it is a matter for an employer to indicate what standards it expects of its employees.  I note that the employer has an employment handbook which the worker acknowledged receipt of in writing.

However, the worker noted that he made submissions regarding his performance, and I am not satisfied that the employer gave adequate consideration to these submissions or provided the worker with adequate time or assistance in order to improve his performance.  In indicating to the worker that his probation was being extended by three months but that two months of that extension had already elapsed, and a lack of assistance provided to him in order to improve on his performance, I am not satisfied that he was treated fairly.

Industrial Relations Acts – Unfair Dismissal Act Section 8(10)(a)(ii) – recommendations - compensation