Worker

Employer

Anonymised Parties

A worker

A catering contract company

Representatives

  In person

John Barry Management Support Services (Ireland) Ltd

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 - 0002965

06/08/2024

The complainant was employed as a Catering Assistant by the respondent. Employment commenced on 07.01.2024 and ended on 02.08.2024. The complainant worked 40 hours per week.

This complaint was received by the Workplace Relations Commission on 06.08.2024.

At the hearing of the complaint the worker was assisted by an interpreter supplied by the Workplace Relations Commission.

The worker contends the following (as per complaint form).

·       Since she claimed payment for hours which she claims were not paid to her and also the contention that she was not receiving her breaks the worker alleges that management’s attitude and behaviour towards her became increasingly worse.

·       The head chef had yelled at her and harassed her which she reported to management.

·       The worker contends that two other members of staff went on vacation for a three week period and on there return management dismissed her for performance related issues.

·       The worker contends that she was looking to be treated with respect by management.

·       The worker also contends that she was not the only member of staff to be treated unfairly and not the only member of staff to be reduced to tears.

Unfair Dismissal.

·       As outlined, the worker was employed on a probation period which was six months. However due to the dissatisfaction of the worker's performance during the five months leading up to her final review, it was decided that a probationary period should be extended to afford the opportunity to improve her performance. In this regard, it should be noted that the areas of concern outlined to the worker related to the quality of food, varying standards of her work, the fact that the worker appeared to be much slower than other people in the same category doing the same work, and her attitude when any comments were ever passed about her work and the workers insistence that she not work certain days, albeit that her terms of employment were that she could be rostered any day of the week.

·       In response to these criticisms the worker has stated that she believes she worked well but there was no suggestion that she was being denied breaks.

·       She has also confirmed that she did refuse to work some shifts because she did not want to work with certain people, and she felt that she was being treated like a “slave” to do their work. Which again was not the case as catering assistants work as part of a team.

·       After the probation meeting, she was advised of the extension and at no time did the worker ever indicate that she was not happy with the probation review and proceeded to continue with her duties.

·       During the month of July, it became clear to the company that there was no real improvement in the worker's performance and therefore it was decided that it was in the best interest of the unit and the worker that her probation period was ended.

·       The worker was invited to a meeting on 07/08/2024 before which she had been advised that this was a probation review meeting, that if she wished she could be accompanied by a colleague and, because it was a probation review meeting there was a possibility that the employment could be terminated.

·       The Regional Manager met with the worker and advised her that despite guidance and support given by the head chef and at her probation review meeting, it had been decided that her employment would be terminated and that she would not be required to complete her probation. The worker was then paid one week's pay in lieu of notice.

·       The worker has maintained she was let go because she was raising complaints regarding her wages, lack of breaks and the relationship with the head chef. However, in relation to the wages the Craft Chef had gone to great length along with the Regional Manager in going through all her wage details and identifying exactly the basis on which she was paid. In actual fact in doing this examination of her working hours it was discovered that she had been overpaid by at least six hours, but the company did not make any attempt to recoup that overpayment.

·       As has been referred to above, where there was a complaint regarding her working relations with the head chef, this was addressed by Ms S and no further complaints were raised at all by the worker regarding any other member of the management team or the head chef. Therefore, in those circumstances, it could not have been a motivational reason to terminate her employment.

·       While a person is on probation period, it is well established that during this time an employer has the right to terminate employment if they feel the person is not suitable to the operation. In this particular case, the worker, had originally started to work on the basis of working out of two different sites. However, because of the interpersonal difficulties between herself and other people on another site, it was decided to allow the worker to work in site 2 house solely. Had the company wanted to, it could have clearly decided at that stage to not allow her to continue but the worker was given the opportunity to prove herself.

·       In relation to site 2 house, this was a busy contract and the company had experienced staff turnover in this site for various reasons. However, whenever there was an issue raised by the worker on this site, these matters were addressed by the company and there is no evidence that they were not addressed satisfactorily.

·       It is clear in relation to the wages issue, the worker insisted she was entitled to be paid for breaks, which, if she had not taken, was in fact a consequence of her own decision and not because of the company, as everybody else took their breaks. In fact, it is of note that the worker made the observation on occasions that other staff were constantly taking smoke breaks, shows that the company did not impede someone's right to take their breaks.

·       Secondly this was a busy site, and the company was striving to get a settled team working there, therefore it was not in the company's interest to lose another catering assistant on this site if it could be avoided and, in this regard, the company had extended the probationary period to encourage her to improve her performance so that she could remain.

·       Finally, the worker refers to issues which arose between herself and the Regional Manager regarding trying to arrange meetings. The company acknowledge that there were occasions when the worker did not meet with the company because the Regional Manager got tied up with something else, but the company, at every opportunity, tried to reorganise a meeting and, on one occasion, which was a meeting to be held on site, the Regional Manager was due to be there at 1pm and arrived approximately 10 minutes late. The Regional Manager observed that the worker was still on site at that time, and he also believes the worker saw him, but despite that the worker chose not to come back to meet with him, but instead suggested that he had stood the worker up.

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

At the hearing of the complaint evidence was taken from both the worker and the Regional Manager.

The employer has stated in their submission that (para 31):

·       The worker was invited to a meeting on 07/08/2024 before which she had been advised that this was a probation review meeting, that if she wished she could be accompanied by a colleague and, because it was a probation review meeting there was a possibility that the employment could be terminated.

In oral evidence provided by the worker I am satisfied that the worker was not advised that she could be accompanied at the dismissal meeting nor was she informed that she had the right to appeal. I also note that the decision to dismiss the worker was taken prior to the meeting (para 30 employer’s submission).

In Grant Thornton v A Worker LCR21543 the worker asserted that she had been unfairly dismissed and referred the matter to the Labour Court, agreeing to be bound by its recommendation. The respondent, her former employer, agreed that she had been dismissed but asserted that it was because she failed to satisfactorily complete her probationary period.

The respondent stated that under her contract of employment, the worker agreed that the respondent had the right to terminate her employment in the circumstances. It also asserted she was ‘provided with timely feedback throughout her probation’.

The Labour Court found that the respondent failed to adhere to the requirements of the Code of Practice on Grievance and Disciplinary Procedures made under s.42 of the Industrial Relations Act 1990, before the decision to dismiss the worker was taken. In coming to that conclusion the Court had regard to the following:

·       While the worker was invited to attend a probation meeting on 12th May 2017 the decision to dismiss had been taken prior to the meeting.

·       The worker was not advised in advance that the purpose of the meeting was to effect her dismissal.

·       The worker was not afforded an opportunity to be accompanied at the meeting.

·       No appeal procedure was available to the worker in respect of the decision to dismiss her.

The workers contract of employment purported to provide that normal disciplinary procedures do not apply during the probationary period. However, the Court has consistently held that an employer is not relieved of the obligation to act fairly during a probationary period and that the requirement of the Code of Practice applies in all circumstances in which a worker is on hazard of having his or her employment terminated.

Thus, in the circumstances, the Court was satisfied that the worker was unfairly treated in the manner in which her employment was terminated. The Court recommended that she be paid €1,500 by the respondent in full and final settlement of the claim before the Court.

There are many similarities between the instant complaint and the Grant Thorton case.

Natural justice and fair procedures must be afforded to the employee in extending the probationary period or terminating employment during a period of probation. This was absent in the instant complaint.

I find in favour of the worker and now recommend that the employer pay to the worker compensation in the amount of €2,500 which should be paid within 42 days from the date of this recommendation.

I would also suggest that the employer take a look at the contract of employment (probation period).

Industrial Relations Act; Fair procedures.