Worker

Employer

Anonymised Parties

A Chef

A Hotel

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 13 of the Industrial Relations Act

CA-00064636-001

08/07/2024

The Worker commenced employment in March 2024 as a Chef with the Employer. His employment was terminated without notice in June 2024.

Submissions were received from the Employer and shared with the Worker.

The Worker commenced work on 11 March 2024 as a Chef de Partie with the Employer. He went on pre-arranged annual leave on 20 June 2024.

By letter dated 27 June 2024, he received a termination notice from the owner of the hotel, giving one week’s notice and specifying a termination date of 8 July 2024.

In response, the Employee requested reasons for his termination, describing his shock at receiving such a letter.

By email dated 29 June 2024, the Employer provided a list of reasons for the termination of his employment. The Employee stated he earned €38,000 per year.

It was the Employer’s submission that the Employee was terminated during his probation period.

The handbook provided for a probation period of between 12 – 26 weeks which it relied upon to terminate the Employee’s employment. It was submitted that there were a number of “job chats” with the employee during his period of employment.

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

The Employer relied upon the probation clause in the handbook which provides:

“There shall be a probationary period of a minimum of 12 weeks and a maximum of 26 weeks applying to employees on appointment during which time they will be assessed by owners/managers at intervals within this period. These assessments shall be made known to the employee as an important part of their development and probation within [Employer]. Assessment is based on your ability to carry out fully your duties outlined on appointment along with adhering to Standard Operational Procedures (SOP’s) at all times and your suitability for the role.

[Employer] reserves the right to extend the probationary period of an employee should this be deemed necessary in order to adequately evaluate the individual’s overall suitability. Absences, in blocks of weeks, during the probation period will have the effect of extending the probation by that number of weeks. You will be appraised on your progress during this time and a formal assessment of your performance will be conducted before the expiry of the probationary period or shortly thereafter. Should the probation assessment prove unsuccessful, the contract of employment will be terminated.

The contract of employment may be terminated by either party during the probationary period subject to normal periods of notice.”

It is noted that there was no probation clause included in the contract of employment, as required by the European Union (Transparent and Predictable Working Conditions) Regulations 2022.

The Employer referred to job chats on certain dates; however, no documentation was provided. No standard operating procedures (SOPs) were referenced by the Employer. There was no evidence of a formal assessment conducted prior to or shortly after the expiry of the probation period, as stipulated by the probation clause.

The Employer submitted that the probation period was extended when the Employee went on annual leave. While annual leave cannot be accepted as an absence or a reason to automatically extend a probation period, there was no prior communication to the Employee before the expiration of the initial probation period.

The email of 29 June 2024 is detailed in its allegations.

Both parties agreed that there was no disciplinary investigation.

No evidence was provided by the Employer to show that these allegations had been presented to the Employee in advance of terminating his employment, giving him a fair opportunity to respond. Additionally, any investigation referred to by the Employer was not communicated to the Employee for a response. The Employee was not informed that his job was at risk and was not afforded the right to representation.

The Labour Court emphasised the importance of fair procedures in Beechside Company Limited t/a Park Hotel Kenmare and A Worker, LCR21798, noting: “… 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 S.I. No. 146/2000 - Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000, which promotes best practice in the conduct of grievance and disciplinary procedures, emphasises the importance of procedures to ensure fairness and natural justice.

The Code of Practice emphasises that good practice entails a number of stages in the disciplinary and grievance process as follows:   

·         That complaints are fairly examined and processed.

·         That details of any allegations or complaints are put to the employee concerned.

·         That the employee concerned is given the opportunity to respond fully to any such allegations or complaints.

·         That the employee concerned is given the opportunity to avail of the right to be represented during the procedure.

·         That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors, circumstances.

The Labour Court was clear in C&W O'Brien Architects v A Worker LCR22391, wherein the Court took into account the provisions of the S.I. No. 146/2000 - Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000 which, in the words of the Court: “emphasises the importance of ensuring that an employee is aware of any disciplinary procedure which is initiated in respect of her and to know any case being made against her and to have a fair opportunity to respond to any such case. The Code also emphasises the importance of the availability of an internal mechanism wherein a sanction which has been imposed can be appealed.”

The WRC and the Labour Court have consistently held that an employer is required to follow fair procedures before it makes a decision to impose a disciplinary sanction on a worker or to dismiss a worker.

In the circumstances, I must conclude that the Employer’s handling of the matter clearly breached the Worker’s right to fair procedures and natural justice. In particular, I note that the Worker was not afforded fair procedures in accordance with the S.I. No. 146/2000 - Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000.

Employee – Unfair Dismissal - Employer