Worker

Employer

Anonymised Parties

An Employee

An Employer

Representatives

  Self Represented

Robert Jacob of Jacob and Twomey Solicitors

Act

Dispute Reference No.

Date of Receipt

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

CA-00053875

25/11/2022

The Worker was employed by the Employer from the 23rd July 2022 until her dismissal on the 24th November 2022. On the 25th November 2022 the Worker, having less than 12 months’ service, submitted an unfair dismissal dispute to the WRC under the Industrial Relations Acts.

The Worker commenced employment on the 23rd July 2022, she worked her first shift on the 10th August 2022 and she was dismissed on the 24th November 2022. Her salary was €30,000 per annum and she worked 80 hours over a fortnightly roster.

During the hearing the Worker outlined her unfair dismissals dispute. The Worker was first notified of the official offer of employment by the Executive Chef via Whatsapp message on the 21st July 2022 wherein he asked the Worker to confirm by return if she accepted the offer and a possible starting date. The offer of employment was confirmed by email dated the 22nd July 2022 wherein the Employer stated that its Executive Chef would facilitate visa sponsorship once the Worker had completed three months of employment. On the 23rd July 2022 the Worker advised the Executive Chef via WhatsApp that she would be unavailable to work on Tuesday and Wednesday evenings and the Executive Chef replied “Cool thank you”.

The Worker stated that the Executive Chef emailed her on the 11th August 2022, the day after her first shift on the 10th August 2022, to inform her that the Employer could start preparing the forms for her visa application and he asked that she forward to him the documentation set out in the email.

She accepted that her contract of employment provided that it was subject to the completion of a nine month probationary period, however she stated that three and a half months from the date of her first shift she received a letter from the Employer calling her to a probationary review meeting on the 21st November 2022. She stated that she was shocked when she received the letter as it stated that the outcome of the meeting may result in the possible termination of her employment.

The Worker stated that she expected to have a review of her performance during the probationary period but that the meeting on the 21st November 2022 turned into a disciplinary meeting where allegations of misconduct were brought up. The Worker stated that the disciplinary procedures were never disclosed to her. Even though she did not agree with the allegations of her shortcomings she believed the unfairness of her dismissal lay in the conduct of the Employer when dealing with the disciplinary issues.

The Worker stated that she should have been treated rationally and in a fair manner and she did not believe that that had happened. She stated that there was no investigation conducted and no evidence to support any of the allegations made against her. She did not believe she was given the right to have a fair and impartial determination of the issues and that she was not provided with a written copy of the allegations nor was she given the opportunity to question witnesses. She submitted that she was called for a probationary review and ended up going through a disciplinary procedure without prior knowledge. The Worker never received any warnings and in regards to her alleged shortcomings she was never given milestones or target performances nor did the Employer offer procedures to help her improve her performance.

She stated that whilst the Employer claimed she lacked urgency in both production and setup, which she said could be measured by the speed to which orders were being delivered, she stated that as far as she understood her performance was satisfactory considering her time within the Employer. She stated that two weeks before her employment was terminated the Executive Chef said to her that she had been a great help and contribution to the company and that she was reliable.

In relation to the allegation that she did not follow SOP’s around portion sizing and food production the Worker submitted that there was no evidence that she did not following SOP’s and at no time prior to the 21st November 2022 was this issue raised with her.

The Worker refutted the allegations that she had an inability to carry out tasks such as placing orders, engaging with suppliers and stock taking and she referred to documents evidencing her fulfilling these obligations which included Whatsapp messages between herself and the Head Chef.  

She referenced her letter of dismissal which stated on two occasions that she did not serve as an example to junior team members but stated that she queried what this meant and received no response. The Worker stated that she had a good working relationship with her colleagues and was surprised at any suggestion that she was aggressive towards them or the General Manager. In support of her case the Worker submitted a number of WhatsApp messages between herself and the General Manager.

In response to the allegation that the Employer had immediate concerns regarding the Worker’s performance the Worker submitted that performance issues were never raised or addressed with her prior to the meeting on the 21st November 2022.

The Worker stated that she was surprised by the Employer’s evidence that a performance review took place on the 7th November 2022 as she had no recollection of any such meeting taking place or ever having met the Head Chef and Executive Chef at the same time. According to the Worker the first performance review meeting was on the 21st November 2022.

The Worker stated that prior to the commencement of her employment she informed the Executive Chef that she could not work on Tuesday and Wednesday evenings and his response was “Cool thank you”. The Worker would not have had a problem changing her appointment days and times had the Employer requested her to do so and in relation to other requests for specific days off the Worker stated that it was open to the manager or person doing the roster to either approve or decline the request for time off and the Worker never experienced any difficult getting specific days off.

In relation to the allegation that the Worker left work early on 10 occasions the Worker stated that she only ever left early if she was sent home by the Head Chef if other employees were working late and would be closing.

She denied that she could not perform basic tasks such as opening and closing and referred to her training period where the Worker stated she never opened and closed on her own. The Worker stated she was as shown how to close but not open the kitchen and that she was never there on my own.

The Worker said that she did not receive any verbal or written warnings during her employment and that the Employer never raised any performance or conduct issues with her prior to the meeting on the 21st November 2022. The Worker said that her dismissal came as a complete shock to her and that she went through a crisis after her dismissal as she had never been dismissed before. It caused her to question her self-worth. She actively tried to secure employment applying for jobs in and outside her area of experience. It took the Worker three months to find employment.

The Employer’s Director/Owner attended the hearing and gave evidence on behalf of the Employer.

The Employer stated that the Worker commenced employment on the 23rd July 2022. She was paid a gross salary of €30,000 per annum. Her employment ended four months later on the 24th November 2022. The Worker was issued with terms and conditions of her employment in August 2022.

The Employer referred to the Worker’s Contract of Employment which stated as follows: “This employment is subject to the completion of a 9-probationary period. The probationary period allows the Company to establish the suitability of new entrants. Progress discussions will be had with your Manager during the probation period and employees considered unsuitable may at the absolute discretion of Management be dismissed during the probationary period….”

The Employer submitted that from the beginning of the Worker’s employment, the Employer had immediate concerns in relation to the Worker’s performance. This included:

1. The Worker making herself unavailable for work for a variety of reasons which included dog minding, dental appointments and time off for elections. The Employer, on numerous occasions, sought to accommodate her requests. However, after a period of time, it became almost impossible for the Employer to complete its roster due to repeated unavailability of the Worker to attend at work.

2. Leaving work before her rostered finished time. This occurred on at least ten occasions during her employment.

3. A general lack of urgency in terms of food production and restaurant preparation.

4. Complaints from other members of staff about the manner in which the Worker spoke to them.

5. An inability to complete basic tasks associated with her role such as opening and closing the restaurant, taking stock and ordering from suppliers.

The Director was notified by the Executive Chef on the 7th November 2022 that a performance review meeting had taken place with the Worker that day. In attendance were the Head Chef, Executive Chef and the Worker. The Director was advised that at the meeting the Executive Chef went through what the expectations were of the Worker in her role and that it was indicated to her that she was not meeting expectations and all aspects of the role were gone through. 

According to the Director, due to various concerns which the Employer had regarding the Worker’s performance, she was invited to a probationary review meeting which was held on 21st November 2022. The Worker was informed that she was entitled to be accompanied at the meeting by a colleague. Furthermore, it was stated that the outcome of the meeting may result in the possible termination of her employment.

On the 21st November 2022, the Worker attended the probationary review meeting with the Director. The various concerns relating to her performance were discussed with her and she was afforded ample opportunity to make any relevant points in response.

On the 24th November 2022, the Worker was notified that she had not successfully completed her probationary period and her employment was to be terminated. The reasons as to why she had not successfully completed her probationary period were clearly articulated in the letter of dismissal. Furthermore, the Worker was provided with an opportunity to appeal the decision to the Operations Manager but opted not to do so.

It was accepted that on the 12th December 2022 the Worker emailed the Operations Manager responding to the allegations contained in the letter of dismissal. It was also accepted that the Operations Manager did not reply to the email and that instead the Director replied.

In summary, the Employer submitted that the Worker was employed by the Employer for four months in total. From the beginning of her employment, the Employer had concerns in relation to the Worker’s performance. The Employer sought to address those concerns with her. However, in circumstances where the issues in relation to the Worker’s performance remained ongoing, the Employer had no alternative but to invite the Worker to a probationary review meeting on the 21st November 2022. Following the probationary review meeting, the Worker was informed that she had not successfully passed her probationary period. She was given an opportunity to appeal to the Operations Manager but opted against doing so. The Worker’s right to fair procedures and natural justice were at all times respected throughout the process.

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

Whilst a worker with less than twelve months of service it not covered by the Unfair Dismissals Acts,  the fact that they may be on probation does not negate their entitlement to fair procedures in relation to grievance and disciplinary matters.

The Labour Court emphasised the importance of fair procedures in Beechside Company Limited t/a Park Hotel Kenmare v. A Worker, LCR21798, noting:

“Where an employee is considered unsuitable for permanent employment, the Court accepts that an employer has the right, during the probationary 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 strictly to fair procedures.

… 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.

The Court is satisfied that the Claimant was not provided with details of any performance issues; no warning was given that his employment was in jeopardy; he was not afforded the right to representation; he was not provided with reasons for his dismissal and he was not afforded an opportunity to reply. Therefore, the Court is satisfied that he was denied natural justice.”

In Ebay v. A Worker, LCR 22806 the Labour Court recently stated:

“The Court has carefully considered the written and verbal submissions it received. The Court is satisfied on the submissions before it that the employer failed to adhere to the requirements of the Code of Practice on Grievance and Disciplinary Procedures made under Section 42 of the Industrial Relations Act 1990 and contained in SI 146 of 2000, before the decision to dismiss the claimant was taken.

The Court has consistently held that an employer is not relieved of the obligation to act fairly during the probationary period and that the requirement of the Code of Practice applies in all circumstances in which a worker is on hazard of having his or her employment terminated.

Having regard to all these considerations the Court has concluded that the worker was treated unfairly in the manner in which his employment was terminated.”

At the hearing before the WRC there was a dispute between the parties whether the Worker was notified of any performance or conduct issues prior to a meeting on the 21st November 2022.

The Employer stated that from the outset of the Worker’s employment the Employer had concerns regarding the Worker’s performance. It was submitted on behalf of the Employer that management brought its concerns to the Worker’s attention and that despite intervention her performance did not improve.  According to the Director he was notified by the Executive Chef on the 7th November 2022 that a performance review meeting had taken place with the Worker that day. In attendance were the Head Chef, Executive Chef and the Worker. The Director was advised that at the meeting the Executive Chef went through what the expectations were of the Worker in her role and that it was indicated to her that she was not meeting expectations and all aspects of the role were gone through. The Director accepted however that he was not present at the meeting on the 7th November 2022. The Employer was unable to provide any documentation in relation to the meeting on the 7th  November 2022, its substance or outcome and the Head Chef and the Executive Chef did not attend the hearing before the WRC to give evidence on behalf of the Employer.

The Worker had no recollection of issues regarding her performance ever being raised with her and she specifically denied attending a performance review meeting on the 7th November 2022 or ever attending a meeting where both the Head Chef and Executive Chef were present.

I found the Worker to be an honest and credible witness and in the absence of any documentation from the Employer or evidence from the Head Chef and Executive Chef I resolve the conflicts in evidence in the Worker’s favour and conclude that a performance review meeting did not occur on the 7th November 2022.

According to the Employer, following the meeting on the 7th November 2022 there was no real improvement in the Worker’s performance and therefore a letter was issued on the 19th November 2022 inviting the Worker to a probationary review meeting on the 21st November 2022. Notice was given and the purpose of the meeting was set out in the letter and the Worker was forewarned that the outcome could result in her dismissal. According to the Director at the meeting on the 21st  November 2022 the concerns regarding the Worker’s performance were highlighted to her and the Worker was given an  opportunity to respond. The Employer was unable to provide any documentation in relation to the meeting of the 21st November 2022.

According to the Employer on the 24th November 2022, the Director confirmed to the Worker that she had not passed the probationary period and her employment was terminated. The Employer set out the grounds of dismissal in the letter of the 24th November 2022 and the Worker was afforded an opportunity to appeal the decision to the Operations Manager however she did not exercise the right of appeal.

The Employer submitted that the Worker was dismissed because of concerns with her performance and conduct that she had been told about on a number of occasions. The Employer was unable to provide any details or documentation  in relation to these conversations, their substance or outcome and it was noteworthy that the Head Chef, the Executive Chef and the General Manager  did not attend the hearing to give evidence on behalf of the Employer.

The Worker submitted that she was not aware of any performance or conduct issues and that the first time she was made aware of any shortcomings in her performance or any issues of misconduct or that she had not met the Employer’s expectations was on the 21st November 2022.

The Worker submitted that she should have been treated rationally and in a fair manner and she did not believe that that had happened. She stated that there was no investigation conducted and no evidence to support any of the allegations made against her. She did not believe she was given the right to have a fair and impartial determination of the issues and that she was not provided with a written copy of the allegations nor was she given the opportunity to question witnesses. She submitted that she was called for a probationary review and ended up going through a disciplinary procedure without prior knowledge. The Worker never received any warnings and with regards to her shortcomings she was never given milestones or performance targets nor did the Employer offer procedures or training to help her improve her performance.

The Worker stated that was supposed to be off work on the 22nd, 23rd and 24th November 2022 however on the evening of the 23rd November 2022 she noticed the roster had been changed and she was rostered to work on the 24th November 2022 at 9:00 am. According to the Worker she was in work for two hours when the Director called her “for a chat” where he stated that her employment was being terminated and he handed her the letter of dismissal dated the 24th November 2022 which set out a number of grounds of dismissal.

When a worker, including a worker who is on probation, is at risk of the loss of his or her job, it is incumbent on an employer to make the worker aware of the situation and of the reasons for same. In addition, where the issue arises from the conduct or performance of the worker, he or she should be afforded an opportunity to address the decision maker in his or her defence.  These are the principles of fair procedures and natural justice.

It appears from the documentation submitted to the WRC in advance of the hearing and from evidence of the parties and the submissions made at the hearing that the Worker was not provided with details of any performance or conduct issues and she was not aware that she was in danger of losing her job prior to receipt of the letter of the 19th November 2022. Other than a reference to the meeting being a “probationary review meeting” there was no reference to the topic of the meeting or that the meeting was to discuss the Worker’s alleged poor performance and misconduct. A number  of allegations were put to the Worker at the meeting on the 21st November 2022 and I found the Worker’s evidence credible that she was afforded no meaningful right of reply.

The letter of dismissal dated the 24th November 2022 stated that the Worker’s employment was being terminated as she had not successfully completed her probationary period. The Employer referred to the Worker’s Contract of Employment which stated as follows:

“Probationary Period: This employment is subject to the completion of a 9-probationary period. The       probationary period allows the Company to establish the suitability of new entrants. Progress discussions will be had with your Manager during the probation period and employees considered unsuitable may at the absolute discretion of management be dismissed during the probationary period, in accordance with the ‘Minimum Notice and Terms of Employment Acts, 1973 to 2001’.”

The Worker accepted that her employment was subject to a nine month probationary period but correctly pointed out that she was not dismissed on the completion of her probationary period but during her probationary period given that she was dismissed three and a half months after her first shift on the 10th August 2022.

Whilst the Worker was informed of a right to appeal the decision to terminate her employment to the Operations Manager it was common case that the Worker did not formally appeal the decision but did email the Operations Manager on the 12th December 2022 setting out a response to the allegations contained in the letter of dismissal dated the 24th November 2022. It was also common case that she did not receive a response from the Operations Manager. I accept the Worker’s evidence that she did not formally appeal the decision to terminate her employment because she did not believe that the Employer had a legitimate interest in hearing her point of view as a result of the manner in which the Employer had engaged with her during the course of her employment and the manner in which they had terminated her employment three and a half months into a nine month probationary period.  

The WRC and the Labour Court have consistently emphasised that an employer is required to follow fair procedures before it makes a decision to dismiss a worker. The Worker, like all other employees of the Employer, was entitled to fair procedures. In the circumstances of this case, I conclude that the Employer failed to observe fair procedures prior to arriving at its decision to terminate the Worker’s employment. I am satisfied that the Employer's handling of the entire matter clearly breached the Worker’s rights to fair procedure and natural justice.

I am conscious that the Worker left a secure job she had been in for three years to accept the position with the Employer where a work permit was also offered. The Worker made attempts to secure alternative employment but was out of work for three months.

I accept that the sudden termination of the Worker’s employment had a significant effect on her.