Complainant

Respondent

Parties

Ryan  McAuley

Miniso Ireland Limited

Complainant

Respondent

Anonymised Parties

Representatives

Eimear Gavin North Dublin Citizens Information Service

Did not attend.

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00058686-001

06/09/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00058686-002

06/09/2023

The Complainant commenced employment with the Respondent on 30 April 2022. He began working full-time as a shop assistant in the Respondent’s shop. Employment ended on 24th April 2023.

This complaint was received by the Workplace Relations Commission on 6th September 2023.

Preliminary Issue:

service requirement for unfair dismissals act, 1977

1.       It is submitted that the Complainant had worked for the Respondent for over one year when his dismissal took effect, and that therefore the terms of the Unfair Dismissals Act apply to his dismissal.

the law

2.       The Unfair Dismissals Act, 1977, Section 2(1) states:

“Except in so far as any provision of this Act otherwise provides this Act shall not apply in relation to any of the following persons:

(a)    an employee (other than a person referred to in section 4 of this Act) who is dismissed, who, at the date of his dismissal, had less than one year’s continuous service with the employer who dismissed him”.

3.       The Minimum Notice and Terms of Employment Act, 1973, Section 7 states:

“(1) Nothing in this Act shall operate to prevent an employee or an employer from waiving his right to notice on any occasion or from accepting payment in lieu of notice.”

(2) In any case where an employee accepts payment in lieu of notice, the date of termination of that person’s employment shall, for the purposes of the Act of 1967, be deemed to be the date on which notice, if given, would have expired.”

4.       The Unfair Dismissals Act, 1977, Section 1 states:

“In this Act—

“date of dismissal” means—

(a)    where prior notice of the termination of the contract of employment is given and it

complies with the provisions of that contract and of the Minimum Notice and Terms of Employment Act, 1973, the date on which that notice expires.”

5.       In the case UD/19/141 (Determination No. UDD2019, Action Health Enterprises Ltd and Michael D’Arcy), the Complainant’s employment was terminated with immediate effect, and he was paid in lieu of notice. He had worked for less than one year for the Respondent, but he would have had one year’s service with the Respondent if he worked his full contractual notice period after the date when he was informed of his dismissal. The Labour Court ruled that the Complainant in that case did not have the required one year’s service to avail of the protections of the Unfair Dismissals Act, 1977, specifically on the basis that the Complainant had accepted the pay in lieu of notice by requesting the payment (through his solicitor) when the Respondent had delayed in paying him. The Court was of the opinion that, “in order for the Complainant to “accept payment in lieu”, there must have been an offer and a free acceptance of that offer.” The Court went on to say that “[it] follows that, where the Respondent relies on this provision by simply paying wages in lieu of notice, there is no offer, in any meaningful sense, and there can be no acceptance”. The Court pointed out that that scenario was not the case, since “[the Complainant’s] solicitor, acting on his behalf and instructions, sought payment in lieu of notice and did so in reliance on the relevant provision in the contract”. The Court therefore ruled that the “date of dismissal” in that Complainant’s case was the date on which he had been informed that his employment was being terminated.

application of the law

6.       The Unfair Dismissals Act, 1977, Section 2(1) states that the Act does not apply to an employee who is dismissed by a company having completed less than one year of continuous service with that company. In this case, the Complainant was informed of his dismissal on 24 April 2023, at which point he had worked for the company for 359 days. If he had worked the notice period set out in his contract, his service with the company would have been 366 days in total on his final day of work: 1 May 2023.

7.       Given the fact that the Unfair Dismissals Act, 1977, Section 1 states that the “date of dismissal”, where prior notice of the termination of the contract of employment is given, means the date on which that notice expires, it is therefore submitted that the date of the Complainant’s dismissal was 1 May 2023.

8.       The ruling in case UD/19/141 would suggest that, if the Complainant in that case had not taken any action to accept the offer of pay in lieu of notice, the Court might have decided that there had not been an acceptance of the offer of the payment, and that the Complainant’s notice period could have been deemed to have run its course, meaning that the Complainant’s “date of dismissal” had been the date on which his notice period should have expired.

9.       In the case being presented to the Workplace Relations Commission in this submission, it is to be noted that, while the Respondent informed the Complainant that he would be paid in lieu of notice, and duly did pay him, there was no offer and acceptance of this payment: The decision was presented to the Complainant as a fait accompli. The Complainant did not dispute it because his understanding was that the decision had been made and that he had no choice to discuss it. Therefore, it is submitted that his notice period ran its course, and that the date of his dismissal was 1 May 2023. This would mean that the Complainant had been in the service of the Respondent for more than one year on the date of his dismissal.

Background

1.       The Complainant commenced employment with the Respondent on 30 April 2022. He began working full-time as a shop assistant in the Respondent’s shop in Jervis Centre, Dublin 1. Although he filled in a Starter Form in the weeks before his start date, he was not given a written contract of employment when he started.

2.       In approximately late July or early August 2022, the Complainant was given a contract of employment, which stated that his role was as a sales assistant, and which set out the terms of his employment. The contract was dated 1 June 2022. The Complainant signed this. It appears that the date on this contract was an error, and that 1 June was the start date of a colleague of the Complainant’s. Approximately two or three weeks later, he was given the same contract of employment with the start date of 30 April, and he signed this.

3.       On the first page of the contract of employment, it was stated that the Complainant would have a three-month probationary period and that, if the Complainant’s probationary period was successful, his position would be confirmed as permanent and that he would be issued with a full contract of employment. However, in the Complaint’s first few days of work with the Respondent, his team leader told him in a face-to-face conversation that he would have a probationary period of six months.

4.       The Complainant was never told whether his probationary period had been successful (neither after three nor after six months), and he was never issued with a permanent contract of employment. However, as the Respondent continued to include him as a full-time employee on all rosters and continued to pay him wages for all the hours that he worked after 30 July 2022, and as his contract said that his probationary period was three months, he assumed that the probationary period had been successful.

5.       At the end of September 2022, the manager of the Respondent company, Chloe Yi, offered the Complainant the position of supervisor, since the shop’s supervisor and team leader had both recently left the company. The Complainant accepted this offer. Ms. Yi told him that she would train him in in this role and support him in starting it. She also told him that he would have a probationary period of six months for this position.

6.       The Complainant did not receive any new contract for his role as supervisor. However, his wages increased from €11.00 per hour to €13.00, starting with the payroll of 5 October 2022.

7.       The Complainant unfortunately did not receive any formal training for the supervisor role, despite requesting training for a number of tasks. However, he continued working in this role, learning by doing, for the next seven months.

8.       The Complainant was also never told whether he had passed his probation period in the supervisor role but, as before, he continued to be rostered even after a period of six months had passed, and he continued to be paid (at the supervisor rate).

9.       On Monday 24 April 2023, the Complainant attended the Respondent’s premises and began his work shift at 10:00, as he had been rostered to do.

10.   On that day, shortly after 12:00, the Complainant was called to Ms. Yi’s office, where Ms. Yi handed him a dismissal letter. The letter stated: “We have been reviewing your performance during your Trial Period and we regret that it has not been satisfactory”. The letter also stated that the Complainant’s employment was being terminated with immediate effect and that he would receive one week’s pay in lieu of notice together with payment for any outstanding annual leave.

11.   In this meeting, the Complainant asked why he was being dismissed. Ms. Yi told him that it was due to unsatisfactory work and the team finding it hard to communicate with him. She said that he did not always pass on messages from her to team members face to face and that members of the team had said that he always looked angry and that they found him unapproachable. The Complainant was surprised and disappointed to hear what Ms. Yi said about the other team members because he had worked hard, as supervisor, to be supportive of other team members and he had always thought that he had a good relationship with them. He was also surprised to know that his approach in passing messages from Ms. Yi to the team had been problematic: He had always passed on messages to staff members face to face where possible and had only used WhatsApp in situations where he could see, from the roster, that several days were going to pass between him being given the message by Ms. Yi and him seeing a particular colleague face to face. He was surprised to hear that it was a problem that he had used WhatsApp on occasions when he would otherwise not have been able to get information to a particular person for several days.

12.   Regarding Ms. Yi’s statement that the Complainant’s work had been unsatisfactory, it must be noted that, while the Complainant’s work had sometimes been corrected, he had never been the subject of any disciplinary procedure. On Page 4 of the Complainant’s contract of employment, the Disciplinary Procedure was described as:

“Infringement of a term of the contract or of established Company rules can lead, depending on the gravity of the breach, to an informal or formal warning, suspension with or without pay, transfer to other duties and loss of privileges. Ultimately, persistent breaches or inadequate work performance can lead, following warnings, to dismissal.”

The Complainant had never received any warnings, either informal or formal, about any problems with his work.

13.   The procedure for dismissal was also explained on Page 4 of the contract of employment. It includes the statement that:

“Except in circumstances justifying immediate termination of your employment by the Company you will be entitled to receive the appropriate period of notice set down in the Minimum Notice and Terms of Employment Act 1973 - 2005.”

14.   At the end of the meeting with Ms. Yi, the Complainant returned his keys and tag and left the premises.

15.   On 26 April 2023, the Complainant received his final pay slip and his final payment from the Respondent. This payment was made up of his wages and sick pay for the previous week (17-23 April 2023), a week’s pay in lieu of notice, outstanding annual leave of €431.08, and payment for the bank holiday (1 May 2023) which was falling one week after the date of the dismissal meeting.

16.   The Complainant was not paid for the two hours’ work that he had done for the Respondent on 24 April 2023.

17.   On 27 April 2023, the Complainant emailed the Respondent, requesting the reasons for his dismissal and a copy of all documentation that the Respondent held on him. He did not receive a reply to this email, and he was not given a copy of his employee file.

18.   On 20 May 2023, the Complainant sent a WhatsApp to Ms. Yi, asking for a reply to his email of 27 April. He did not receive any reply to this message.

19.   On 3 July 2023, Citizens Information wrote to the Respondent on behalf of the Complainant, officially making a Data Subject Access Request for him and requesting a copy of the Respondent’s Disciplinary and Grievance Procedures as well as an explanation of the calculations on the Complainant’s final pay slip.

20.   On 1 August 2023, the Respondent sent a copy of the Complainant’s file to Citizens Information in compliance with the Data Subject Access Request.

21.   In the cover letter accompanying the copy of the Complainant’s file, it was stated:

“We would also point out that the phrase ‘Trial Period’ used in Mr. McAuley’s letter of termination was as a result in a mis-translation between the Chinese and English languages.”

22.   On 9 August 2023, Citizens Information emailed the Respondent to ask what had been meant instead of 'Trial Period' in the letter of termination.

23.   On 30 August 2023, the Respondent replied by email, stating: “The phrase which we had intended to use was ‘Work Performance Period’”.

24.   This leads to the conclusion that the Respondent, in their letter of termination, intended to say: “We have been reviewing your performance during your Work Performance Period and we regret that it has not been satisfactory”.

25.   In the email of 9 August 2023, Citizens Information also followed up on the request for a copy of the Respondent’s Disciplinary and Grievance Procedures, since the Respondent had not sent any such document and had not commented on the request to send it.

26.   In the Respondent’s email on 30 August 2023, they replied to the follow-up question about the Disciplinary and Grievance Procedures, stating:

“The Contract of Employment signed by Ryan McAuley and forwarded to you is, we believe, self-explanatory with regard to Grievance Procedure (Page 3); Disciplinary Procedure (Page 4) and Dismissal (also on Page 4)”.

27.   Following his dismissal from the Respondent company, the Complainant began looking for another job. He sent numerous applications through the website www.indeed.com, and he sent one application by email directly to a company that advertised a vacancy. He also registered with three casting companies (Extras Dept, Celtic Casting, and Fame Street) for work as an extra, and one of them replied to him. He looked at job advertisements on Facebook, although he found that most of the jobs advertised on Facebook were outside Dublin. In addition, every Tuesday from late June onwards, he went to retail outlets and cafés in the city center which had signs in the window that they were hiring staff, and he handed his CV in in person.

28.   On 16 August 2023, the Complainant was offered a new job in a retail store and, on 22 August 2023, he began working there. He was unemployed for a total of 17 weeks before starting this job.

29.   There was an email conversation between the Respondent and Citizens Information over several months following the release of the Complainant’s file in response to the Data Subject Access Request. As part of this conversation, on 15 September 2023, the Respondent wrote to Citizens Information, stating that the company was offering to make a compensation payment to the Complainant of the equivalent of four weeks’ wages –  €1,950.00 – as well as the outstanding wages for the two hours’ work on 24 April – €26.00.

30.   Considering the fact that the Complainant had been unemployed for 17 weeks, the offer of four weeks’ wages did not seem adequate to compensate him for his loss. It was true that he had been paid one week’s wages in lieu of notice, but that still meant that he had had no wages for 16 weeks whilst looking for a new job. Therefore, the Complainant declined the offer. Citizens Information wrote to the Respondent on his behalf on 11 October 2023, stating that he was asking for compensation for these 16 weeks of lost wages – €7,800.00 – as well as payment for his final two hours’ work at the company – €26.00

31.   The Respondent replied on 27 October 2023, expressing surprise at the fact that the Complainant was requesting payment for 16 weeks’ wages, and stating that there had been “almost 100% employment in Dublin in recent times since the end of the Covid-19 pandemic”. The Respondent then asked to see evidence of the Complainant’s efforts to find work after his dismissal.

32.   Citizens Information replied to that email on 3 November 2023, explaining the efforts that the Complainant had made to find a new job after being dismissed, and attaching a print-out from the Complainant’s account on www.indeed.com, which showed the jobs that he had applied for through the portal from 29 April 2023 to 9 August 2023. In this email, Citizens Information stated that the Complainant hoped to continue negotiations to reach a reasonable agreement.

33.   After that, neither the Complainant himself nor Citizens Information received any further response from the Respondent.  On 14 December 2023, Citizens Information sent another email to the Respondent, asking whether they had looked at the information that had been sent to them about the Complainant’s efforts to find work and whether they had further considered the request for compensation of €7,800.00. There was no response to this email.

unfair dismissal

the law

1.       The Unfair Dismissals Act, 1977, Section 6(1) states:

“Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”

2.       The Unfair Dismissals Act, 1977, Section 6(4) states:

“Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.”

3.       The Unfair Dismissals Act, 1977, Section 6(6) states:

“In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.”

4.       The Unfair Dismissal Act, 1977, Section 6 (7) states:

“Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, …..

(a)    To the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

(b)    to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14 (1) of this Act or with the provision of any code of practice referred to in paragraph (d) of section 7(2) of this Act”

5.       The Unfair Dismissals Act, 1977, Section 14(1) states:

“An employer shall, not later than 28 days after he enters into a contract of employment with an employee, give to the employee a notice in writing setting out the procedure which the employer will observe before and for the purpose of dismissing the employee.”

6.       The Code of Practice on Grievance and Disciplinary Procedures (Declaration) Order 2000 requires employers to have procedures which serve to “provide a framework which enables management to maintain satisfactory standards and employees to have access to procedures whereby alleged failures to comply with these standards may be fairly and sensitively addressed”. The Code further states: “It is important that procedures of this kind exist and that the purpose, function and terms of such procedures are clearly understood by all concerned.”

7.       The Unfair Dismissals Act, 1977, Section 7(1) states:

“Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances:

(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

(c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances, or

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances…”

8.       In ADJ-00044532 (Myles Byrne v. K & J Townmore Ltd), the Complainant was summarily dismissed ostensibly for not having adhered to his employer’s correct time recording procedure. The Adjudication Officer found that “the manner of the Complainant’s dismissal fell far short of the standard of fairness that could be expected from a reasonable employer”. She said: “The Complainant was denied an opportunity to address any concerns the Respondent may have had in relation to his conduct in clocking in and out on the time App. At no point was the Complainant advised there were any difficulties with his employment or clocking in process or that his employment was in jeopardy.”

9.       In that case, the Adjudication Officer noted the “serious flaws” in the Respondent’s procedures in the termination of the Complainant’s employment, and she awarded the Complainant a compensation amount that was substantially in excess of the financial loss that he had suffered. Despite the fact that he had found employment at the same level of remuneration just three weeks after being dismissed by the Respondent, she awarded him the equivalent of six months’ pay.

10.   In ADJ-00015765 (Supermarket Manager v. Supermarket), where the Complainant was dismissed ostensibly because of concerns about performance in his role, the Adjudication Officer found that the dismissal letter given to the Complainant was the only documentary evidence that had been adduced by the Respondent. She found that “the Complainant was not provided with details of any performance issue, he was not aware that he was in danger of losing his job; he was not afforded any of the procedures set out under the Code of Practice on Grievance and Disciplinary Procedures”. She concluded that “the Respondent showed no regard to the principles of fair procedures and natural justice”.

application of the law

1.       The Unfair Dismissals Act, 1977, Section 6(4) sets out a number of situations in which a dismissal may be deemed not to be unfair. These cases include situations relating to the capability, competence or qualifications of the employee, and the conduct of the employee. Section 6(6) of the Act states that it is for the employer to show that the dismissal resulted from one or more of the matters specified in Subsection (4) or that there were other substantial grounds justifying the dismissal. The Complainant was never told before the day of his dismissal that there were any problems with his performance or conduct. Furthermore, the reasons given for the dismissal in the Respondent’s dismissal letter and subsequent clarification were unspecific and do not permit an assessment of whether the dismissal had followed correct procedures: “We have been reviewing your performance during your [Work Performance] Period and we regret that it has not been satisfactory.”

2.       The decision of the Adjudication Officer in ADJ-00015765 is relevant to this complaint: This Complainant had not been informed that there were any issues with his performance; he was not aware that he was in danger of losing his job; and he was not afforded any of the procedures required under the Code of Practice on Grievance and Disciplinary Procedures. Therefore, it is submitted that the Respondent has breached the Act.

3.       The Unfair Dismissals Act, 1977, Section 14(1) states that an employer must give the employee a notice in writing setting out the procedure for dismissal within 28 days of the contract of employment commencing. The Respondent did not give any written terms of employment or any details of the company’s disciplinary procedure to the Complainant until approximately three months after the Complainant started working for them.

Furthermore, in the employment contract which was eventually given to the Complainant, the paragraphs which dealt with disciplinary procedures and dismissal were so unspecific as to make it impossible to assess whether a correct or fair procedure had been followed in dismissing him. As set out above, the Code of Practice on Grievance and Disciplinary Procedures requires employers to have procedures which serve to provide a framework for management to maintain satisfactory standards and employees to have access to procedures whereby alleged failures to comply with these standards may be fairly and sensitively addressed. The paragraphs in the contract dealing with disciplinary procedures and dismissal did not provide any such framework. Therefore, it is submitted that the Respondent has breached the Unfair Dismissals Act, 1977 and the Code of Practice.

Payment of wages

the Law

1.       Section 5(1) of the Payment of Wages Act, 1991 states that:

“An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c) in the case of a deduction, the employee has given his prior consent in writing to it.”

application of the law

1.       The Payment of Wages Act, 1991 Section 5(1) prohibits an employer from making deductions from the wages of an employee except for in a number of specified situations. As the Respondent did not pay wages to the Complainant for the two hours of work that he did on 24 April 2023, and as none of the exceptional situations specified in the Act apply to the Complainant, it is submitted the Respondent has breached the Act. Given that the Complainant’s hourly rate of pay was €13.00, he is owed €26.00 in wages in accordance with the Act.

Conclusion

1.       It is respectfully submitted that the Unfair Dismissals Act applies to the Complainant in this instance. While the last day when he attended work with the Respondent was less than one full year after he started the employment, it must be noted that that last day of attendance was his 360th day of work for the company, that he was paid one week’s wages in lieu of notice when he was informed of his dismissal, and that he was not given any opportunity to discuss whether he wished to accept this pay in lieu of notice or not. It is therefore submitted that his date of dismissal was more than one year after he began working for the Respondent, and that he is not one of the excluded persons listed in Section 2(1) of the Act.

2.       It is also respectfully submitted that the Complainant was, in fact, unfairly dismissed from his job at the Respondent company, as the Respondent did not follow either fair procedures as required by the Code of Practice on Grievance and Disciplinary Procedures or principles of natural justice: The Complainant was not provided with a clear disciplinary procedure at any time before his dismissal; he was not informed prior to his dismissal that there were any issues with his performance; he was not informed that he was in danger of losing his job; and he was not given any opportunity to appeal the decision to dismiss him.

3.       For these reasons, it is respectfully submitted that the Complainant is entitled to redress. The Unfair Dismissals Act, 1977, Section 7(1) states that an employee who is found to have been unfairly dismissed from their employment is entitled to re-instatement, re-engagement, or payment of compensation. The Complainant has since found new employment, and he would like to continue with this new employer, and so he does not wish to be re-instated or re-engaged by the Respondent. Therefore, it is requested that he be awarded a compensation payment.

4.       The period of the Complainant’s unemployment after his dismissal lasted from 25 April 2023 to 21 August 2023. This was a total of 17 weeks. As the Respondent paid the Complainant one week’s wages in lieu of notice, the Complainant was without a wage for 16 weeks. Given that the Complainant’s normal gross weekly wage with the Respondent was €487.50 (€13.00 x 37.5 hours), the Complainant lost wages of €7,800. It is requested that this be considered when it is decided whether to award compensation and the amount that may be awarded.

5.       Furthermore, given the fact that there were serious flaws in the Respondent’s disciplinary and dismissal procedures, as in ADJ-00044532, it is requested that compensation in excess of the actual loss of earnings be awarded.

6.       It is also respectfully submitted that the Complainant is owed wages by the Respondent of €26.00.

7.       Finally, it is respectfully requested that, if the Complainant is awarded payment of the wages owed to him, the Respondent be ordered to make this payment and to issue the Complainant with a pay slip. In that way, the Complainant can inform Revenue promptly of these wages and show evidence in the form of a pays lip.

The respondent did not attend the scheduled hearing of the complaint.

CA – 00058686 – 001.

The Employment Appeals Tribunal in Lennon v Bredin (M160/1978) referred to serious misconduct in the following terms:

‘We have always held that this exemption applies only to cases of very bad behaviour of such a kind that no reasonable employer could be expected to tolerate the continuance of the relationship for a minute longer; we believe the legislature had in mind such things as violent assault or larceny or behaviour in the same serious category’

In the instant case the alleged failure of a probationary period most certainly does not fit into this category. If the complainant had to be dismissed over this alleged failure he should have been issued with notice of dismissal. Such notice should be added onto his dismissal date. The Complaint was submitted within time.

On Monday 24 April 2023, the Complainant attended the Respondent’s premises and began his work shift at 10:00, as he had been rostered to do.

On that day, shortly after 12:00, the Complainant was called to Ms. Yi’s office, where Ms. Yi handed him a dismissal letter. The letter stated: “We have been reviewing your performance during your Trial Period and we regret that it has not been satisfactory”. The letter also stated that the Complainant’s employment was being terminated with immediate effect and that he would receive one week’s pay in lieu of notice together with payment for any outstanding annual leave.

The complainant was not provided with the opportunity to be accompanied by a representative / colleague at this meeting. He was denied the opportunity to prepare for this meeting and was simply handed a letter of dismissal as soon as the meeting commenced. I also note that he was not offered the opportunity to appeal the decision to dismiss him.

I can only conclude that the complaint was well founded, the complainant was unfairly dismissed from employment.

Mitigation.

The Complainant has since found new employment, and he would like to continue with this new employer, and so he does not wish to be re-instated or re-engaged by the Respondent. Therefore, it is requested that he be awarded a compensation payment.

The period of the Complainant’s unemployment after his dismissal lasted from 25 April 2023 to 21 August 2023. This was a total of 17 weeks. As the Respondent paid the Complainant one week’s wages in lieu of notice, the Complainant was without a wage for 16 weeks. Given that the Complainant’s normal gross weekly wage with the Respondent was €487.50 (€13.00 x 37.5 hours), the Complainant lost wages of €7,800.

In concluding on this complaint, I now order the Respondent to pay compensation to the Complainant of €9,750.00 (4 weeks wages for the unfair dismissal plus 16 weeks wages loss of earnings). This amount should be paid within 42 days from the date of this decision.

CA – 00058686 – 002.

The complainant has unpaid wages of €26. This amount should be paid to him through wages within 42 days from the date of this decision.

CA – 00058686 – 001.

I can only conclude that the complaint was well founded, the complainant was unfairly dismissed from employment.

I now order the Respondent to pay compensation to the Complainant of €9,750.00 (4 weeks wages for the unfair dismissal plus 16 weeks wages loss of earnings). This amount should be paid within 42 days from the date of this decision.

CA – 00058686 – 002.

The complainant has unpaid wages of €26. This amount should be paid to him through wages within 42 days from the date of this decision.