Worker

Employer

Anonymised Parties

A Store Assistant

A Supermarket Group

Representatives

 No appearance by or on behalf of the worker in the case  

Niamh Mc Gowan BL instructed by  Vincent & Beatty Solicitors

Act

Dispute Reference No.

Date of Receipt

Section 13 of the Industrial Relations Act, 1969

CA-00055507-001

11 March 2023

On 11 March 2023, the Worker submitted a claim of unfair dismissal to be heard under the Industrial Relations Act, 1969 on account of having less than twelve months employment service.

The Worker introduced his case as a Lay Practitioner and signalled his intention to represent his own case. On 21 April 2023, the WRC notified the worker that the Employer had not responded to the proposed investigation in the case and the dispute would now proceed to an Adjudication hearing.

Both parties were invited to hearing set for 8 September 2023 at 10 am.

The Employer operates a Supermarket grouping and is represented by Niamh Mc Gowan BL instructed by Vincent and Beatty Solicitors. The Employer disputes the claim made.

On Monday 4 September 2023, the Employer filed an outline written submission in the case, which was shared with the worker.

In an effort to afford both parties an opportunity to be heard at hearing, I directed a letter to the worker confirming that the hearing would be held in private, and parties’ names anonymised in accordance with the Industrial Relations Act, 1969.

I requested that he furnish an outline submission inclusive of any relevant documentation.

 Did not receive a response.

On the morning of the hearing, one party met me, that was the Employers delegation.

In line with WRC protocol, I checked around the building for a late arrival. I contacted our office in Dublin just in case a message or reason for absence had been relayed there.

I did not establish any reason for the nonappearance of the Worker at hearing. I waited 5 days post hearing to assess whether some extraordinary reason accompanied the non-appearance.

The Worker has not contacted the WRC to either explain or excuse his nonappearance in his own case.

The Worker submitted a complaint form to the WRC on 11 March 2023.

On this form, he introduced himself as a Store Assistant with an employment tenure of 28 November 2022 to 11 March 2023 on 25 hours a week.

His complaint focussed on a complaint of dismissal during probation. He explained that he had a medically certified absence which caused him to be informed that he had not passed his probation.

He stated that: I am beyond upset over how the whole situation panned out.

The Worker sought a resolution of either re-instatement or compensation and mentioned that he had not found new work since his dismissal.

The Employer has rejected the claim.

The Employer operates a large group of Supermarkets nationwide. It was common case that the worker commenced his employment on 28 November 2022, which incorporated 13 weeks of probation to 26 February 2023.

The Employer detailed some concerns regarding the workers performance at work. The Employer decided to extend the probation period to 26 March 2023. The Worker had been absent on sick leave but on 14 February 2023 presented a medical certificate indicating that he would be unfit for work until March 2022. Further follow up from the respondent indicated a projected enhanced absence to “about May or June “2023. This was at variance with his earlier declarations.

By that time, the worker had ceased to comply with sick leave notification protocols on a weekly basis.

The Employer was unable to assess performance during this time and took a decision to bring the employment to an end through one weeks’ notice.

This was confirmed to the worker on March 11, 2023, as he could not be assessed as having passed probation and was unable to move to a permanent position. He was not prevented from re-applying for the position in the future.

On the same day, the worker filed his complaint to the WRC.

The Employer was welcomed to hearing on September 8, 2023.

The Employer had introduced a preliminary matter on whether the worker could progress the case as a former employee and referred to Dervan v UCD LCR 19997 and Forfás v A Worker LCR 16970. (exhibited)

The Employer contended that there had been no wrongdoing on the part of the Respondent in terminating the workers employment for failing to pass probation.

The Employer sought that the case be dismissed.

During the hearing held in the case, the Employer in a very respectful manner drew attention that they had travelled from Dublin to meet the claim. The late evening / early morning travel   had caused “trouble and effort “to the entire delegation, but they were prepared to answer the case.

The Employer expressed a disappointment that if matters had changed for the worker, he ought to have notified the WRC that he was not going to attend the hearing.

The Employer continued to rely on Dervan and argued that the worker as an ex-employee had no standing to progress the dispute.

This is a claim taken under Section 13 of the Industrial Relations Act, 1969

Section 13 (a) Subject to the provisions of this section, a rights commissioner shall investigate any trade dispute referred to him under subsection (2) of this section and shall, unless before doing so the dispute is settled—

(i) make a recommendation to the parties to the dispute setting forth his opinion on the merits of the dispute, and

(ii) notify the Court of the recommendation.

(b) A rights commissioner shall not investigate a trade dispute—

(i) if the Court has made a recommendation in relation to the dispute, or

(ii) if a party to the dispute notifies the commissioner in writing that he objects to the dispute being investigated by a rights commissioner.

Claims under the Industrial Relations Act, 1969 are conducted normally with a fair amount of informality, where the emphasis is on “trying to fix a dispute “and restore some stability to the employment relationship, if at all possible.

A first step is to have exhausted the internal disputes resolution procedures. The Labour Court has given that direction on more than one occasion. This is necessary to optimise the capacity for a local resolution in the workplace in the form of a “win win “outcome.

However, to make progress in these cases, an Adjudicator needs the presence of two parties in the dispute. On this occasion, I hosted one party, the employer.

I have waited the obligatory 5 days post hearing and the worker has not contacted the WRC to explain or excuse his nonappearance in his own case.

I am satisfied that the worker was on full notice of the hearing in this case and decided not to respond to my request for an outline submission or the invitation to attend the hearing shared with him in July 2023. He did not apply to postpone the hearing.

It is of note that the worker submitted his dispute on the exact same day as he was dismissed and, his unease with the event has passed and he has moved on to new work in the interim? If that is the case, I wish him well.

However, I would much prefer if he had taken a few moments to keep the WRC appraised of any developments in his life regarding the imminent hearing in this case.

In the event that the worker decided to move forward in his life m it was open to him to confirm that he wanted to withdraw his case. This would have been handled sensitively at the WRC and the case closed.

In the workers absence at hearing, I have not been able to test the Employer opening argument on locus standi, the standing to run the case. I will just mention that evidence is not required in IR cases as the objective is to seek to fix a dispute by means of a recommendation to the parties.

If both parties had been in attendance, I would have flagged the provisions of Industrial Relations Act amendment of 2015 for collective comments.

Instead, I find that while I have attempted to investigate the dispute as raised by the worker on March 11, 2023. The internal disputes procedures were not utilised prior to the referral.

In addition, there was no appearance by or on behalf of the worker at hearing and I am unable to identify and understand the dispute. I am unable to establish merit.

I have not established merit in this dispute.

The claim for unfair dismissal cannot succeed.

Dismissal during the Probation period