Worker

Employer

Anonymised Parties

An Optician Assistant

An Optician

Representatives

Wesley Hudson of Gibson & Associates LLP.

Act

Dispute Reference No.

Date of Receipt

Industrial Relations Act 1969

CA-00063204

17/08/2023

The worker has made a claim under the Industrial Relations Act in relation to unfair dismissal. The worker has made the dismissal claim under the Industrial Relations Act as she has less than 12 months service.

The complainant has raised this dispute against the name of the owner. The respondent submits the worker was employed by a limited company and her dispute is made against a private individual who was a director of the limited company. They submit the dispute is against an incorrect party.

The Labour Court in Auto Depot Limited and Mr Vasile Matieu; UDD1954 considered an application that an incorrect respondent had been named. They concluded: 

“Having regard to the foregoing and relying in particular on the High Court decision in Capital Food Emporium, the Court is fully satisfied that the correct employer has been pursued by the Complainant. The Court is further fully satisfied that the respondent party that appeared before the Court was the Complainant’s employer. That party was fully aware of the Complainant’s complaints to the WRC from July 2017. He knew precisely from whom the complaints were and to what the complaints referred. The respondent party has had a full opportunity to be heard and to answer those complaints. The Court is therefore equally satisfied that the employer will suffer no prejudice or injustice by its decision on this preliminary matter. In arriving at this conclusion, the Court is also conscious of the High Court Judgment in O’Higgins -v- University College Dublin & Another (2013) 21 MCA wherein Mr Justice Hogan held: “Even if the wrong party was, in fact, so named, no prejudice whatever was caused by reason of that error (if, indeed, error it be)…. In these circumstances, for this Court to hold that the appeal was rendered void by reason of such a technical error would amount to a grossly disproportionate response and deprive the appellant of the substance of her constitutional right of access to the courts.” Declining jurisdiction in these circumstances would certainly amount to a “grossly disproportionate response” as envisaged in O’Higgins. The Court is further satisfied that this approach is in line with the generally accepted principle that statutory tribunals, such as this Court, should operate with the minimum degree of procedural formality consistent with the requirements of natural justice. On that point the decision of the Supreme Court in Halal Meat Packers (Ballyhaunis) Ltd v Employment Appeals Tribunal [1990] I.L.R.M 293 is relevant. Here Walsh J stated, albeit obiter, as follows: -

This present case indicates a degree of formality, and even rigidity, which is somewhat surprising. It is a rather ironic turn in history that this Tribunal which was intended to save people from the ordinary courts would themselves fall into rigidity comparable to that of the common law before it was modified by equity.

Accordingly, the Court considers the erroneous inclusion of ‘Auto Depot Tyres Ltd’ on the WRC complaint form to be no more than a technical error. The Court is fully satisfied that the Respondent’s name can simply be amended on the paperwork to reflect its correct legal title, that of ‘Auto Depot Ltd’. The Court will now proceed to consider the substantive matters.”

In this case I conclude that the respondent party at the hearing was the worker’s former employer, they were fully aware of the worker’s dispute and knew precisely from whom the dispute came and to what it referred. Also, the employer has had a full opportunity to be heard and to respond to the dispute. I am also satisfied that the employer will suffer no prejudice or injustice by this decision on this preliminary matter. I am satisfied that the employer’s name can simply be amended to reflect its correct legal title; the limited company.

In these circumstances I will proceed to investigate the dispute.

The worker worked for the employer as an Optician Assistant from 15 May 2023 until she was dismissed on 22 July 2023.

The worker says she has worked in retail for the last 12 years and was approached by a former work colleague to work for the employer. The employer said he needed a strong sales person and she would be given all the training needed. So, she accepted the job offer and resigned from a job she had been doing for 7 years. 

The worker says she received notification to attend jury service in June. She showed this to her boss. On 10 July she attended court and on 12 July she was selected for jury service on a case she was told would run until 28 July. She informed her employer immediately.

On 15 July the employer sent a message asking to meet the worker for a coffee on 22 July. They met at the place of work. There was a woman present who the worker did not know. The employer informed the worker he was terminating her employment with immediate effect. He said it was because it would take too long to train her up and he hadn’t got the time or the staff.

The worker asked for this in writing by close of business that day, the employer agreed to do this. She received this on 24 July, after sending a reminder.

The worker says she unfairly dismissed as she had carried out her duties to the best of her ability and to a very high standard. At no time did the employer approach her with any work issues. The dismissal caused her severe stress and anxiety.

The employer says that the worker was given adequate training for the job she was asked to do. The person giving the training says it was not being retained by the worker, and even simple tasks were a challenge for her. As he did not see much progress he spoke to the owner.

The owner says the worker initially received a huge amount of training, about 4 hours a day. But, given the problems she was having carrying out straightforward tasks, he considered she was not making any progress. He says from feedback it was clear the worker could not do the job, he conceded she was not told explicitly.

It had been decided within 2 weeks it wasn’t going to work but she was given a chance.

The employer says there was no issue with the worker doing her jury service and she was paid fully.

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

I accept that the employer did not have an issue with the worker attending for Jury Service. However, I note the decision to dismiss the worker was made when she was away on Jury Service.

The worker was dismissed because the employer determined that she was not making satisfactory progress in acquiring the skills needed for the job. The worker says she was making progress and was not told by the employer they were having any issues with her performance.

From what I was told at the hearing I accept the worker received some training but it seems this was more sporadic than the owner believed. The trainer had to fit the training around his own duties.

If there were issues with the worker’s progress then she should have been told and specific training identified. However, the worker was never told there were issues with her performance. The owner said weaknesses were seen within two weeks but he chose not to speak to the worker.

When a worker is still in a probationary period there is no need for an employer to invoke a full disciplinary process. There is, however, an obligation, when performance issues arise at an early stage, to identify those issues, tell the worker what they are and give them an opportunity to bring their performance up to an acceptable level within a reasonable time frame.

In this case the employer appears to have identified the performance issues within two weeks but chose not tell the worker what they were and did not give her an opportunity to bring her performance up to an acceptable level. Instead she was dismissed.

In these circumstances I find the worker was unfairly dismissed.

Unfair dismissal – less than twelve months service