Worker

Employer

Anonymised Parties

 A Worker

An Employer

Representatives

Peter Dunlea of Peninsula

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- 00060813-001

03/01/2024

The Worker worked as a sales administrator for the Employer from the 3rd of April 2023 until the 13th of December 2023.

She was dismissed by the Employer. The Employer alleges that she failed to undertake duties assigned to her and was frequently late. The Worker believes she was unfairly dismissed and then later harassed by the Employer when they asked her to remove their branding from her Linkedin page.

The Worker attended the hearing and outlined her case. She made written submissions beforehand.

She believes she was treated unfairly and unprofessionally. The Employer did not notify her of any of the issues they say they dismissed her for and she was not trained properly.  

The Employer then later harassed her by email and she provided copies of those emails.

The Employer’s General Manager attended the hearing and their representative made oral and written submissions.

They had raised issues of time keeping and performance repeatedly with the Worker, specifically in September and October 2023. There was a major issue with an order the Worker failed to properly assist with in October 2023. They followed their manual which allowed the disciplinary and dismissal process to be amended to take into account her short service. This was a fair probationary dismissal.

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

SI No 146/2000 code of practice requires that the Worker is afforded fairness throughout their employment and including in their probationary period:

The procedures for dealing with such issues reflecting the varying circumstances of enterprises/organisations, must comply with the general principles of natural justice and fair procedures which include:

·       That employee grievances 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 or circumstances.

The Labour Court in Beachside Company Limited LCR 21798 considered if a worker could rely upon SI no 146 of 2000 during the probationary period. That decision stated:

Where an employee is considered unsuitable for permanent employment, the Court accepts that an employer has the right, during a probationary period, to decide not to retain that 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 Employer has accepted that the Worker was not on notice that she was at risk of termination. The Worker disputes that the issues of time keeping, and performance were ever put to her and it seems common case that there was no impartial process to consider these issues and her responses to them.  

I do not believe the Worker was afforded the fair process required above.

However, in deciding what compensation I should recommend, I also accept that there were likely issues with her performance.

She alleged that the Employer asking her to take down their branding from her LinkedIn page was harassment. They were in clear in this email that she could continue to refer to her service with the company but wanted their branding and logos taken down from her page. This was not harassment and in making such a serious allegation from such a reasonable request damages the Worker’s claim that there were no issues between the parties before her dismissal.

The Complainant earned €2500 per month and was unemployed until April 2024. She had only 9 months service at the time of her dismissal. She suggests she actively looked for work but provided no details of these efforts.