Worker

Employer

Anonymised Parties

Chef de Partie

A restaurant

Representatives

Self-represented

The Head Chef and a HR Adviser

Act

Dispute Reference No.

Date of Receipt

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

CA-00065503-001

20/08/2024

The Worker commenced his employment with the Employer on 1 August 2024. His employment was terminated on 11 August 2024.

On 20 August 2024, the Worker referred this dispute to the Director General of the WRC alleging that he was unfairly dismissed. The Employer rejects the claim.

The Worker submits that he was dismissed on the grounds of being deemed an unsuitable candidate after a short period of employment, despite his extensive qualifications and experience. The Worker believes that this decision was unfair and unjustified.

The Worker submits that he was granted a work permit for the position with the Employer, which involved a rigorous process to ensure that no suitable local candidates were available for the role. The Worker submits that he has over 20 years of experience as a professional chef. The fact that the permit was granted demonstrates the recognised demand for his expertise in the industry.

The Worker submits that, despite his qualifications, he was dismissed after only a brief period, during which it would have been challenging for any employee to fully demonstrate their abilities and integrate into a new work environment. The decision to dismiss him as "not suitable" was made without allowing adequate time for a proper evaluation of his performance.

The Worker submits that as a work permit holder, securing new employment is particularly challenging for him. Additionally, the sudden loss of employment places immense strain on his ability to find accommodation and support his family, especially in a foreign country.

Given these facts, the Worker believes that his dismissal was both premature and unfair, especially in light of the labour market validation that led to the issuance of his work permit. The decision has not only impacted his professional standing but also his ability to provide for his family.

At the hearing, the Worker said that the Head Chef is a “good person”, but he did tell the Worker that he could not keep the Worker as his performance was not as expected. The Worker said that the restaurant was “different”, it was quite busy.

The Worker confirmed that he was allowed to remain in the staff accommodation for as long as he needed after the dismissal and that the Head Chef offered his help with securing new employment for the Worker. The Worker left after a week and moved to Dublin to look for a job. He worked part-time since but was hoping to secure a new work permit and full-time employment soon.

In response to the Employer’s submission on the matter, the Worker agreed with the Head Chef’s assessment of his performance. He admitted that his performance was lacking, he was aware that he served undercooked food. He said that he agreed with everything the Head Chef said at the adjudication hearing.

The Head Chef, on behalf of the Employer submitted that the Worker applied for the job via recruitment website. He said that he spoke with the Worker on-line and advised him that there were two major requirements: that he could work in a busy place and that he could cook a steak.  The Worker was invited to meet the Head Chef and see the workplace before deciding whether to accept the job.

The Head Chef submitted that the cost of the work permit and a broker’s fee was a significant expense for the Employer.

The Worker was working for another employer in Ireland until 26 July 2024. He arrived on 27 July 2024 at the Employer’s restaurant. He was given a couple of days off to settle.

The Head Chef submitted that the Worker could not get up to speed. His cooking posed a serious health and safety risk. He served undercooked food such as salmon, burgers and steak. The Worker was brought through a controlled period where there would always be someone to jump in to help. The Employer paid the Worker to stand and observe for 3-4 hours a day. The Worker was walked through the job requirements. However, the fundamentals and basics were not there. The Head Chef was required to be there every day to intervene in every dish. This was not doable. It was submitted that, if someone cooks for 15-20 years, they might need a period of adjustment but should know how to cook safely. 

The Head Chef submitted that his main priority was to serve safe food and he could not trust the Worker. He said that the restaurant served hundreds of people a day, seven days a week. The Head Chef had good rapport with the Environmental Health Officers. The consequences of serving the Worker’s food would be serious for customers and the business.

The Head Chef said that the Worker’ salary was €40,000 per year. He could not justify paying this salary to someone who was not able to do the job at all. The Head Chef submitted that he spoke with the Worker every day and explained that he had a long way to go. He also contacted the broker regarding the Worker’s poor performance and the lack of skills.

The Head Chef submitted that he tried to be as humane as possible. He offered to help the Worker with a job search. He offered him staff accommodation for as long as he needed. It was submitted that no one was more disappointed than the Head Chef who waited 4 months for the Worker to join the restaurant and spent a significant sum of money to recruit him.

The HR Adviser submitted that the Head Chef contacted her and explained that he was having trouble with the Worker. The decision to dismiss the Worker was not an impulse, it was talked and thought through.

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

Whilst an employee with less than twelve months of service is not covered by the Unfair Dismissals Acts, it does not negate their entitlement to fair procedures in relation to grievance and disciplinary matters.

The Labour Court emphasised the importance of fair procedures in Beechside Company Limited t/a Park Hotel Kenmare and A Worker LCR21798, noting: “… it is imperative that an employer in a dismissal case must not only show that there were substantial grounds justifying the dismissal but also that fair and proper procedures were followed before the dismissal takes place. This requirement of procedural fairness is rooted in the common law concept of natural justice.”

The Code of Practice on Grievance and Disciplinary Procedures (S.I. 146 of 2000), which promotes best practice in the conduct of grievance and disciplinary procedures, emphasises the importance of procedures to ensure fairness and natural justice. 

The Code of Practice emphasises that good practice entails a number of stages in the discipline and grievance process as follows:    

·         That employee grievances are fairly examined and processed.

·         That details of any allegations or complaints are put to the employee concerned.

·         That the employee concerned is given the opportunity to respond fully to any such allegations or complaints.

·         That the employee concerned is given the opportunity to avail of the right to be represented during the procedure.

·         That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors, circumstances.

The WRC and the Labour Court have consistently held that an employer is required to follow fair procedures before it makes a decision to impose a disciplinary sanction on a worker or to dismiss a worker. 

It is generally understood that the purpose of a probationary period at the commencement of employment is to provide an opportunity to monitor an employee’s suitability for the role and to address any performance related issues.  It allows an employer to review the progress of a new entrant in the day-to-day operations of the employer’s business.  To this end there is an obligation on an employer to ensure a structured approach to an employee’s probation period and performance should be managed and assessed in such a manner as to provide for a performance improvement plan with clear goals and reviews if and when an employee’s performance is found to be not meeting the required standard. 

Probation reviews should be conducted during the probation period in order to offer feedback on the various aspects of the employee’s performance and to highlight areas where improvement is required.  An employer should explain to an employee that they may be at risk of failing their probation if their performance does not meet the required standard.   At a minimum an employer must alert an employee to any issues and inform him/her of the consequence of termination of employment if the required improvement is not achieved. 

Notwithstanding, the success or failure of a worker’s period of probation is entirely a matter for an employer to determine. I am not required to determine whether the Worker should have been dismissed during the probationary period or not as the case may be. It is not my function to substitute my view for that of a respondent employer. My role is limited to an examination of the manner in which the termination of employment was undertaken by an employer.  

In this I am mindful of the recommendation of the Labour Court in Beechside Company Limited T/A Park Hotel Kenmare LCR21798 that provides as follows:

“Where an employee is considered unsuitable for permanent employment, the Court accepts that an employer has the right, during a probationary period, to decide not to retain that employee in employment.  However, the Court takes the view that this can only be carried out where the employer adheres strictly to fair procedures.” 

The contract of employment exhibited by the Employer provides for a six-month probationary period during which an assessment of work performance, conduct and attendance would take place. The contracts states that:

“The Company may terminate your employment at its discretion during the probationary period.”

“During the probationary period either you or the Company may terminate this employment, giving notice in line with the Minimum Notice and Terms of Employment Acts 1973 to 2005, and the provisions of the Company disciplinary procedures will not apply.”

The Employer’s Employee Handbook addresses probationary period as follows:

“A probationary period of six months will apply to all positions. During this period your performance will be assessed against objectives clearly laid out by your supervisor. During this period your suitability and performance will be assessed and your employment may be terminated if the minimum standards for this position are not met. The Employer reserves the right to extend this probationary period at its discretion. If the Employer decides to extend your probationary period you will be notified in writing with the reasons identified and the areas in need of improvement outlined. The Unfair Dismissals Acts 1997–2015 will not apply during the probationary period.”

On the information provided to me by the parties, it seemed that the employment relationship did not progress as anticipated. It appears that the Worker’s skills and performance did not match what was communicated to the Employer during the recruitment process. In fact, it appears that the Worker’s skills were lacking to such an extent that retaining him in his role posed risk to customers and, by extension, to the business. I accept that the Head Chef discussed the matter with the Worker and made attempts to provide assistance to the Worker. The Worker was alerted to these issues and, at the hearing, he accepted the he underperformed and served uncooked food. 

In Artmax and A Worker LCR23094the Labour Court considered the early termination of an IT Infrastructure Engineer and found that the job offer had been subject to the successful completion of a six-month probationary period and the worker did not have the required skills to complete the role.

In this case, the Worker was provided with a sufficient detail of the job he accepted. The Worker had the opportunity to see the workplace prior to making a decision whether to take on the role. He was aware of the nature of the job and its requirements. Shortly after he commenced employment it became clear to the Employer that the Worker did not have the required skills. The Employer, despite initial attempts to support him, did not have the capacity to train the Worker.

The Worker‘s employment was terminated because he did not have the required skills to carry out the role.

Having carefully considered both the written and oral submissions of the parties, I do not recommend concession of the Worker’s claim.

Dismissal – failed probation