Worker

Employer

Anonymised Parties

Car Valet

Motor Garage

Representatives

Derek Murphy,                            Derek Murphy Solicitors

Act

Dispute Reference No.

Date of Receipt

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

CA-00058221-001

10/08/2023

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote hearing was set up and hosted by an appointed member of the WRC administrative staff. I am satisfied that no party was prejudiced by having this hearing conducted remotely.  I am also satisfied that I was in a position to fully exercise my functions and I made all relevant inquiries in the usual way.

In response to the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021 ]IESC 24 (delivered on the 6th of April 2021) I can confirm that the within hearing was conducted in line with the requirements needed to be observed for the proper administration of Justice. In particular I have informed the parties that pursuant to the Workplace Relations (Miscellaneous Provisions) Act, 2021 coming into effecton the 29th of July 2021 and in the event that there is the potential for a serious and direct conflict in evidence between the parties to a complaint then an oath or affirmation may be required to be administered to any person giving evidence before me. I confirm that I have administered the said Affirmation as appropriate. It is noted that the giving of false statement or evidence is an offence.

The hearing was not conducted in public as it concerned a dispute brought under Section 13 of the Industrial Relations Act of 1969. Additionally, it is noted that the recommendation is anonymised.

Where applicable, this investigation may involve an assessment of whether processes have complied with the general principles set out in the Code of Practise on Grievance and Disciplinary Procedures (SI146 of 2000).

The Specific Details of the Dispute are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 10th of August 2023.

The Complainant was not represented and made his own case. At the outset, the Complainant was happy to make an Affirmation to tell the truth. The Complainant relied on the submission outlined in the Workplace Relations Complaint Form and adduced formal oral evidence which was in line with the dispute already raised. The Evidence adduced by the complainant was challenged as appropriate by the Respondent’s Representative.

The Complainant alleges that he was Unfairly dismissed. The dismissal occurred whilst the Complainant was still on probation.

The Complainant confirmed that he had had sight of his Contract of Employment and the Employee Handbook.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. 

The Respondent had full representation at this hearing. I have heard from a number of witnesses for the Respondent including the decision maker. No objection was raised in connection with any of the documentary evidence (which included the staff handbook and Contract of Employment) relied upon by the Respondent. The Respondent also delivered a formal Defence dated the 26th of September 2023 putting the Complainant on proof of his case.

All evidence was heard following an Affirmation. The Respondent witnesses were questioned by the Complainant.

The Respondent rejects that there has been an Unfair Dismissal and makes the case that the Complainant should have known, or ought to have known that his performance was below expectations.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

I have carefully considered the evidence adduced by both parties in this hearing. Much of the evidence was uncontested and the hearing was generally conducted without conflict.

The Complainant joined the Respondent Motor Garage as a valet on the 21st of February 2023. The Complainant was paid in excess of the minimum wage per hour and worked a 40-hour week. As I understand it, the Complainant worked alongside one other person though each valet worked on their own cars separately. The Complainant knew that he was on probation and that the probation period was due to operate for a six-month period. The Contract states that during this period the employee

“…must demonstrate a sufficient level of productivity and quality of workmanship.”

The Contract further states that at the end of the probationary period a formal review will take place. I note that the purpose of this review is not clear. No particular outcome is intended. The outcome could therefore be an extension of the probationary period, or could mean further training being needed, or could mean termination, or could allow for a promotion.

The job entailed the cleaning inside and out of all the cars coming through the forecourt.  New cars for sale in the showroom, second hand cars on the lot, as well as cars being serviced by the mechanical team.

In any event, on the 28th of July 2023 some five months and one week into the probationary period the Complainant was taken aside by the Accounts Manager and the HR Manager, and his employment was terminated. The Accounts Manager stated that he had talked to a number of Managers overseeing the Complainant’s work and that they had complained that his work was not good enough or fast enough – the “quality and quantity” was below what was expected in the Garage. On foot of this feedback, the Accounts Manger decided that he would terminate the employment. In his evidence the Accounts Manager indicated that the task had fallen to him as he does payroll and has a role in the recruitment and hiring of employees. I understand that the Accounts Manager did liaise with the then HR Manager who was also at the meeting to terminate the Employment.

The Accounts Manger understood that the Complainant knew or ought to have known that his performance was below expectations and therefore the termination of his employment should not have come as a surprise to him. To be fair to him, in the course of his evidence the Accounts Manager accepted that “..it wasn’t spelled out to him” before the meeting was held with the Complainant.

And herein lies the crux of the matter, because the Complainant gave very coherent evidence to the effect that his managers (of which there appeared to be two to whom he was directly answerable) did certainly, from time to time, ask him to repeat work that was not up to scratch. The Complainant was of the view that this was all part of the learning process, and that his managers showed him or told him how to do the work better and faster. The Complainant says he took these interventions to be in the nature of “advice” and that he was being managed appropriately. The Complainant says he never formed the impression that his work was being monitored for the purpose of determining whether he would be let go or not. Crucially the Complainant says nobody suggested that this was what was happening and warning him of this fact.

One of the Complainant’s Managers stated that he never gave any warning to the Complainant that each direction to repeat work was having a cumulative effect that was putting his employment at risk. This Manager was not made aware of the fact that the Complainant was being dismissed until after the event. It seems therefore that when he was being asked about the Complainant’s performance, this Manager responded without knowing that it would give rise to an immediate termination without any opportunity being given to the Complainant to improve his performance.

In light of the foregoing, I am finding that the Employer herein has acted unreasonably.  I accept that this was a performance related dismissal. I also accept fully that an Employee (whether on probation or not) can be dismissed by reason of the unsatisfactory performance of duties assigned to him or her. However, it is unreasonable and unfair not to allow an underperforming Employee some opportunity to improve his performance before taking the drastic measure of firing him. This is why the Disciplinary process allows for stages of warnings to be given to Employees in situations where disciplinary measures are to be implemented up to and including dismissal. Any interpretation of fair play would include an element of allowing a party to put to rights that which is wrong.

I note that the Complainant was unemployed for about eight weeks having been paid a week in lieu of Notice. The Complainant’s present salary is largely commensurate with his previous employment. In making a recommendation I am mindful of the short period of employment involved and of the Complainant’s own failure to pick up on the workplace signals.