Worker

Employer

Anonymised Parties

A Store Manager

A Retail Business

Representatives

Self-represented

 RVW O’ Reilly Solicitors

Act

Dispute Reference No.

Date of Receipt

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

IR – SC -  00002519

18/04/24

The Worker commenced employment as a store manager on 11 September 2023. She earned €1,250 gross per fortnight. On 5 April 2024 she was advised that her employment would cease. She was paid two weeks in lieu of notice. The Worker contends that her dismissal was both substantively and procedurally unfair. The Employer refutes this and submits that the Worker was let go due to ongoing performance issues.

The Worker outlined that on 5 April 2024 she was told she was not the right fit for the job and that she was being let go. She was given two weeks’ notice and advised that she could leave that day or work out the notice period. She decided to leave immediately. The Worker outlined that on 5 April 2024 the country manager was not happy when he saw product on the floor beside boxes in the store room. The Worker was in the process of sorting the boxes and was not aware the country manager was visiting the store that day. There was nowhere to put the stock while she was sorting the boxes. The back store room was full of boxes with product. It was acknowledged by the country manager that this was an issue pre-dating her joining the company. The Worker accepted that the store did not make target for Q4 2023 but this was the Worker’s first quarter with the company. The Worker outlined the oversight on her behalf with respect to tags being left on product during the transfer of stock and the giving of a voucher in error. It had been 2.5 years since a stock take. The Worker was absent on sick leave prior to the scheduled stock take and had been assured by her staff that the store was ready for same. The Worker denied that she was informed on 22 March 2024 that her performance needed to improve significantly or disciplinary action would ensue.

The Worker stated that no performance issues were brought to her attention during the probationary period and that she was completely “blind sighted” by her dismissal. The Worker stated that the Employer did not conduct a three or a six-month probationary review, and that she was 7 months into her employment at the time of her dismissal. She was given no indication whatever that there were concerns regarding her performance; no verbal or written warnings; and no opportunity to challenge or appeal her dismissal. She did not receive the company handbook and therefore was not aware of the absence reporting policy and the appeals procedure. The Worker contends that her dismissal was unfair and she seeks compensation. The Worker submitted that she had to start over in a new job three weeks later.

The Worker was hired as a Store Manager in September 2023 on a six-month probationary period. The contract of employment contained a provision permitting the extension of that period, and also provided for written confirmation of successful completion of probation. The Worker was not advised of the successful completion of the probationary period at the end of the six-month period as there were several concerns regarding the standard of her performance, including bringing her husband on a work-trip; failure to follow the correct company procedure with respect to store purchases, the transfer of stock and absence reporting requirements; refusing to work Christmas and New Years Eve despite the importance of same being impressed upon the Worker in September; and failure to reach store targets. The Worker was also reminded of the importance of orderly control over the stock rooms and the importance of customer engagement following a complaint from a customer. On 22 January 2024, a meeting took place between the Worker and the country manager where the foregoing issues were raised and discussed. Subsequently the Worker gave a €50 voucher in error and failed to follow company policy with regard to business related social media use.

On 11 March 2024, the Worker assured the country manager that the store was ready for a stock take. However, on 13 March 2024, the country manager found that the store was wholly unprepared for the stock take and he had serious concerns regarding the state of the store and company products. It was made clear to the Worker that the matter was serious and disciplinary action could result. On 22 March 2024, the Worker was advised that a HR meeting would be scheduled. The Worker was advised at that meeting that her performance needed to improve significantly. The country manager agreed to visit the store again on 5 April 2024. The country manager attended the store on that date and found the store in a state of disarray. The country manager did not accept the Worker’s explanation for why product was lying on a dirty floor. The country manager concluded that the Worker was unable to perform to the standard required of a store manager. He gave her notice that her employment would cease in two weeks and that she had the option of working it out or to be paid in lieu thereof. The Worker confirmed she would finish immediately.

The Worker was given every opportunity to perform in the role. She was hired in a position of responsibility and did not satisfactorily complete the probationary period. The Worker was fully aware of the Employer’s concerns and the Worker cannot argue that her dismissal came as a surprise. The Company handbook does not provide for a three or six-month probationary review meeting. The Worker did not use internal procedures to appeal her dismissal.

In conducting my investigation, I have considered all relevant submissions presented to me by the parties, including correspondence exchanged between the parties during the course of the Worker’s employment.

It is clear several issues arose with respect to the Worker during her probationary period. These issues were addressed informally as they arose. While the Worker was not advised in writing that she had successfully completed the probationary period, equally she was not advised to the contrary or told that the period was being extended due to concerns regarding her performance. Therefore it was reasonable for the Worker to believe that the issues addressed during her probation period were not placing her continued employment at risk.

On 14 March 2024, the day after the stock take, the country manager made it clear by email how concerned he was regarding the Worker’s lack of preparedness for the scheduled stock take, and while he flagged in this email that there would be a further communication in relation to the matter, it was not until 22 March 2024 that he notified the Worker that he would meet her for a “HR meeting” at 10am that day. The Employer submitted that the Worker was informed her performance needed to improve significantly or her position was at risk. There was no confirmation of this in writing and the Worker denies ever receiving such a warning. On 5 April 2024, the country manager found the store room in an unacceptable state, and there and then advised the Worker that she was not the right fit for the role and she was dismissed.

The company handbook provides that the Employer may reduce the type and number of warnings set out in the disciplinary procedure and/or not apply any warnings during probation. However, this Worker had completed six months employment and she had not been informed at the end of the six months that it was necessary to extend the probationary period or that her continued employment was in jeopardy.

It is not my role to form an opinion as to whether the Employer was objectively correct in concluding that the Worker was unsuitable for continued employment. Rather, I must consider if the Employer acted fairly in reaching that conclusion. The Labour Court has repeatedly asserted that employers are obliged to act fairly before terminating a worker’s employment and they are not relieved of that obligation because the worker has less than one years’ service. In this case, the probationary period had not been formally extended and therefore I am satisfied that the Worker was entitled to the benefit of the company disciplinary procedure before her employment was terminated.

On balance, I find the manner in which the Worker was dismissed fell short of the standard of treatment that could be expected from a reasonable employer, and this rendered the dismissal procedurally unfair.In all the circumstances of this case, I recommend the Employer pay the Worker compensation in the amount of €2,500 in full and final settlement of this dispute.

I recommend the Employer pay the Worker compensation in the amount of €2,500 in full and final settlement of this dispute.

Dismissal. Less than one years’ service.