Worker

Employer

Anonymised Parties

A Deli / Bakery Assistant 

 A Shop /Bakery 

Representatives

  Self-represented

            Self-represented

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-00051210-002

16/06/2022

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

CA-00051210-003

16/06/2022

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

CA-00051210-004

16/06/2022

The Worker was employed on the 11/4/2022 as a “Deli/Bakery Sales Assistant”, was paid at a rate of €11 per hour and worked a different number of hours each week. The Worker’s contract of employment was terminated on the 27/5/2022 on the grounds of alleged poor performance.  

At the hearing it was agreed between the parties that for the purposes of calculating the Worker’s weekly remuneration figure, taking an average of the wages as set out in 6 pay slips exhibited at the hearing, it was agreed that the Worker’s average weekly remuneration figure was €433.  

The Worker maintains that she was unfairly dismissed by her Employer on the 27/5/22 and she was subjected to bullying and harassment. The Employer refutes both disputes.

On the 16/6/2022, the WRC received a complaint form pursuant to the Industrial Relations Act 1969 (as amended).

The following is a summary of the Worker’s written and oral submissions.

The Worker was employed on the 11/4/2022 as a “Deli/Bakery Sales Assistant”, and stated that she didn’t receive a statement of her terms and conditions of employment after commencing employment.  The Worker stated that she worked an average of 38/39 hours per week at €11 per hour.

The Worker stated that she started in the bakery and was trained by Ms C in baking bread and traying up, in that she would put the bread that would be baked the next day into trays.

The Worker stated that she got very little training in her role and received some training from another employee of a different nationality whom she found difficult to understand but did not advise any member of management that she had a difficulty in understanding this employee.

The Worker stated that she has a HACCP food training course certificate, which was outdated, and confirmed she has updated it in the last three months. Mr A was aware that the certificate was outdated.

The Worker confirmed that 3/4 weeks prior to her dismissal there was an incident in the bakery when she forgot to put the baked goods into the bread proofer. As a result, the breads were not fit to be sold the following day.

The Worker stated that another employee told her that she was not filling out the HACCP forms correctly. However, she submitted that as she was not trained correctly in how to fill out the forms, she was unable to do this correctly.

The Worker stated that no employee or member of management approached her prior to her dismissal to advise her that there was a possibility that she could be dismissed on the grounds of poor performance.  She stated that Ms C advised her that there would be a loss to the Employer as a result of her omission to place the breads in the bread proofer. However, she was not advised that there was a risk that she could be dismissed because of this.

Mr A and Mr B told her on the 27/5/2022, that there were issues with her performance and that she was not progressing in her role. The Worker asked Mr A and Mr B whether they wanted her to leave on that day and they said yes. The Worker stated that she was never informed that she was at risk of being dismissed if she didn't improve her performance.

Since her dismissal on the 27/5/2022, the Worker secured alternative employment in August 2022, and is working in a shop doing 18.5 hours each week plus overtime.

The Worker submitted in her complaint form that she was informed of the following reasons for her dismissal.

·       Being too slow in her job.

·       Failing to set the bread proofer machine correctly, resulting in a day’s loss to the Employer of a day's profit on bread sales.

·        Failing to complete HACCP forms correctly.

The Worker also submitted in her complaint form that she was subjected to bullying and emotional abuse. She stated that if management had something to say to her, they would stand in the shop floor and talk loudly about her and make fun of her with smart comments in front of customers. The Worker further stated that she was never approached by any member of management to advise her that there were issues with her performance.

The Employer denies the allegations made by the Worker regarding both disputes. The following is a summary of the Employer’s written and oral submissions.

The Employer submits that the Worker was provided with a written statement of her terms and conditions of employment on the 22/4/222 which was placed in an envelope with her first wage packet, and a pay slip.

The Employer denies in their written submission that the Worker was unfairly dismissed. It was submitted as per her terms of employment that the Worker was still within her six-month probation period. 

It was submitted that the Worker was given full training by the Employer’s Deli and Bakery Assistant Ms C in all aspects of her role.  On several occasions the Worker failed to complete the necessary tasks to a satisfactory level, and failed to record and maintain correct HACCP records which is a legal requirement for the Employer.   

On several occasions, Mr B asked the Worker how she was getting on in the role and each time she said she was “Fine”. It was submitted that Mr B pointed out to her on 8 occasions when she had failed to complete the HACCP records correctly. On the 4/5/2022, Mr B pointed out to the Worker that her pace needed to improve in order to reach the standard expected of her in her role and that of working in a fast paced environment such as that of a deli and bakery department.

It was submitted that that the Worker failed to complete the job of programming the bread proofer machine in the bakery department on one of her shifts. The Worker had been trained on this procedure by Ms C.  Failure to carry out this task correctly, resulted in the bakery being at a loss to the value of the stock that had to be disposed from the proofer, and resulted in a new batch of product not on sale in the shop until much later in the day which resulted in a loss of sales to the company. The failure to correctly set the proofer was pointed out to the Worker by Mr B, in reply the Worker allegedly said, “it couldn’t have been me, I set it correctly”. It was submitted that that the Worker was the only person in the bakery department that day and no other person had any involvement with either the proofer or any other equipment in the bakery department.

As there was no improvement regarding any of the above issues, on the 27/5/2022 Mr B and Mr A met with the Worker and informed her that having considered the above issues and that she had failed to improve on any issue, they felt she was not suited to the role and that they had no other option but to terminate her employment. 

The Employer denies all allegations of bullying and harassment and submitted that at no stage did the Worker raise any concerns in this regard with either Mr A or Mr B throughout her employment or on the day of her dismissal at a meeting on the 27/5/2022.

At the hearing Mr A stated that the Worker was provided with adequate training and received two weeks training in the bakery and one week's training in the deli. It was submitted that the Worker was provided with training to correctly complete HACCP records and a HACCP certificate was not required in the role. Mr A further stated that he was not aware of the Worker’s difficulty in understanding her colleague’s english, this was not brought to his attention.

Mr A cited the following reasons for the Worker’s dismissal.

·       a lack of responsibility by the Worker for her own actions,

·       her persistent refusal to complete HACCP records correctly,

·       her general work performance and her pace of work was too slow.

Mr A confirmed that the Worker did not receive a warning that if there was no improvement in the above 3 areas that she was at risk of dismissal. Mr A further stated that he did not advise the Worker that her dismissal was being considered. He confirmed that the Worker was not advised that she had a right to be accompanied by another employee/ union official to the meeting on the 27/5/2022. Mr A confirmed that he formed the view based on the three issues outlined above that the Worker was not suitable for the role, and he told her this at the meeting on the 27/5/2022.  Mr A confirmed that the 27/5/2022 was the Worker's last day of employment.

At the hearing Mr B stated that he had a note in his work diary that he spoke to the Worker 8 times regarding her inaccurate completion of HACCP records, as this was an integral part of her role. Mr B clarified that the main issue in this regard was that some days the Worker would complete the HACCP records and other days she wouldn't. He stated in relation to the incident with the bread proofer that the Worker denied that she held any responsibility regarding the incident and did not offer any apology.

Mr B confirmed that the Employer had a bullying and harassment procedure which was on display in the canteen and the Worker did not lodge any complaint further to the procedure.

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

My role here is to examine the merits of the dispute in line with the standards of fairness and reasonableness.

CA-00051210-002

It is undisputed that the Worker was dismissed without notice at a meeting on the 27/5/2022 by Mr A and Mr B with three reasons cited for her dismissal, relating to the Worker’s performance. Mr A conceded at the hearing that the Worker was not informed prior to her dismissal, that her dismissal was under consideration due to her poor performance in specific areas. Accordingly, it is my view that the Worker was denied the benefit of fair procedures, as she was not informed that her dismissal was being considered, and therefore denied the opportunity to improve her performance which could have averted her dismissal.   

Furthermore, it appears no procedures were followed by the Employer prior to effecting the Worker’s dismissal. It was acknowledged that the Worker was not informed that she had a right to be accompanied either by a colleague or a trade union official to the meeting on the 27/5/2022, nor was she informed prior to her dismissal that she was at risk of dismissal, or the reason for the meeting on the 27/5/2022.

The Labour Court has established in the context of the Industrial Relations Acts 1969 that employees with less than 12 month’s service are entitled to the benefit of fair procedures prior to dismissal. In LCR22829 Maryfield Nursing Home v A Worker, the Court stated;

“This Court has noted consistently that employers should extend fairness in procedure to all employees when the possibility of dismissal is in consideration, even when an employee has insufficient service to enable them to avail of the protections of the Unfair Dismissals Act. Accordingly, the Court recommends that the Employer, in acknowledgement of a failure to apply fair process,should pay compensationof €5,000 to the Worker.”

It appears from the submissions of both parties that there were issues with the Worker’s performance, in particular relating to the completion of HACCP records, which is a legal requirement for the Employer. Notwithstanding the various performance issues, it is my view that the Worker was not treated fairly or reasonably in the manner of her dismissal. In this case the Employer did not apply fair procedures to the Worker’s dismissal and on that basis, I find that the Worker was unfairly dismissed.

Having regard to the specific circumstances of this case I recommend that the Employer pay the Worker the sum of €1,300 which is equivalent to three weeks’ pay as compensation in full and final settlement of this matter.

CA-00051210-004

I note that the Employer stated that a bullying and harassment procedure was in place and on display in the canteen area. It was further confirmed that the Employer did not receive a complaint under the procedure from the Worker. It was further confirmed that the Worker did not advise any member of management that she was subjected to bullying.  

I note that the Worker stated that she was subjected to bullying and harassment but did not dispute that she did not lodge a complaint further to the Employer’s procedure.

On the basis that the Worker did not lodge a complaint either orally or in writing further to the Employer’s bullying and harassment procedure, I am unable to inquire further into this dispute.

My role in relation to bullying harassment procedures concerns an investigation of whether the Employer fully complied with the process. Accordingly, as there was no written or oral complaint made by the Worker in relation to bullying and harassment, I do not find merit with this dispute, and I do not recommend in favour of the Worker.   

Unfair dismissal – right to fair procedures – Bullying and Harassment