Worker

Employer

Anonymised Parties

A General Operator

An International Company

Representatives

  Self-represented

 HR Manager

Act

Dispute Reference No.

Date of Receipt

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

CA-00058250

12/08/2023

The Worker commenced employment with the Employer on 8 February 2023. The Worker alleges that he was discriminatorily dismissed without warning and without explanation on 21 July 2023. The Employer submits that the Worker was dismissed within the probationary period for underperformance.

The Worker received a text message from the HR Manager requesting that he come to her office. The HR Manager told the Worker that the Employer was not happy with the Worker and that they were letting him go. The Worker asked for a reason for his dismissal and the HR Manager repeated that the Employer “was not happy with him”. The Worker was at a loss as to why he was being dismissed. He had an excellent time keeping and attendance record, and no one had ever spoken to him about his performance. He never had an informal or formal performance review and he was never taken aside by a supervisor to  discuss his performance. The Worker felt that he was treated unfavourably because of his nationality. Other Irish employees who had performance issues received the benefit of warnings. Another Irish employee had been dismissed five weeks before the Worker’s dismissal. The Worker is now self-employed. He requested compensation for his unfair dismissal.

The Foreman received several complaints about the Worker’s performance including that he was lazy; that he was not displaying any initiative in the role; and that all he wanted to do was show up and do nothing. Consideration had been given to moving the Worker to another role but there was no other suitable position available. The HR Manager sent a text to the Worker requesting that he come to her office. She told him it was not working out and he was being let go. The HR Manager outlined that she did not go into the reasons for the dismissal and it is not an easy thing to tell someone that they are lazy. There had been issues with the Worker since he commenced employment and she spoke to him on one or two occasions regarding the time it took him to get to his work station after he had clocked in. Other issues concerned his repeated requests for a different hard hat or permission to wear a headband which was not permitted. The Worker was always facilitated with time off if he needed it. The Employer employs sixteen different nationalities. The Worker’s dismissal had nothing to do with his nationality. Another Irish employee had been dismissed while on probation just weeks before the Worker. Irish employees who were outside of probation were taken through the disciplinary process before being dismissed. Supervisors usually take people aside and informally highlight any performance concerns. There are no formal reviews or formal warnings given during probation. The contract provides for the exclusion of the disciplinary procedure during probation.

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

While I am satisfied that the Worker was not dismissed because of his nationality, the manner of the Worker’s dismissal fell short of the standard of treatment that could be expected from a reasonable employer. As noted by the Labour Court in Hamilton Insurance Dac and A Worker (LCR22710), whenever a worker 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. This was not done in this case. An employer is not relieved of the obligation to act fairly during a probationary period. The requirements of SI 146/2000 (Code of Practice on Grievance and Disciplinary Procedures) apply in all circumstances where the termination of a worker’s employment is being considered. The Worker in this dispute was dismissed without any recourse to fair procedure and the Employer failed to comply with the minimum requirements set out in S.I. No. 146/2000 Code of Practice on Grievance and Disciplinary Procedures before coming to the decision to dismiss the Worker. The Labour Court has “. . . consistently upheld the rights of all workers to fair and proper procedures, in the absence of which dismissals usually must be deemed to be unfair” (Harvey Norman Fonthill v. A Worker LCR22688).

In all the circumstances of this dispute, I conclude that the decision to dismiss the Worker was unfair due to the lack of fair procedures.

I recommend that the Employer pay the Worker compensation of €5,000 in full and final settlement of this trade dispute.

Dismissal. Lack of fair procedures.