Worker

Employer

Anonymised Parties

Marketing Manager

Weight management centre.

Representatives

  Self-represented

Mr. Ciaran McGovern instructed by  Crushell & Co 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

ADJ-00057471

6/2/24

The worker has presented a dispute concerning his dismissal which occurred eight months after his initial appointment.

He commenced employment as a Marketing Manager on 9/5/23. The employer notified him of his dismissal on 24/1/24. The dismissal took effect on 2/2/24.

His gross weekly wage was €865.

The worker referred his dispute to the WRC on 6/2/2024.

The worker contends that the employer dismissed him without good cause and in the absence of fair procedures.

 He was doing a good job in marketing the employer’s services but was hampered by the limitations of some of his colleagues.

The employer notified him of his dismissal on 24/1/24 after he had raised his voice at a meeting on that date due to his experience of the employer constantly nagging him. The employer dismissed him on 2/2/2024 despite having provided written confirmation to him in August 2023 that he had passed his probation. The employer also dismissed him because he was questioning the qualifications of some employees.

The employer treated him unfairly in that he imposed KPIs and demanded that he meet sales targets previously unheard of in the company. He believes that these excessive demands were due to his ethnicity

The process of dismissal was devoid of any fair procedure.

 He was not advised beforehand of the purpose of the meeting of 24/2/2024. He was not offered the right of representation. He was not offered an appeal.

The employer disputed the worker’s contention that he had completed his probation and should not therefore have been dismissed. The employer stated that he was entitled to dismiss him nine months into his probationary contract and before the expiration of the contractual 11 months. The simple fact is that his work was below the standard required.

The employer Director stated that he gave the worker the three-month approval of his probationary period in August 2023 because the worker had told him that he needed to extend his credit card limit and to do so, he needed to pass his probation. That is not to negate the fact as per his signed contract, his probation was 11 months in total. The worker knew this.

The employer had notified him of his concerns on multiple occasions.

The leads he created for potential sales were dead ends which clearly showed that they should not have been passed on to the sales staff. These potential customers were sometimes unaware that they had been identified, and in some instances were clearly disinterested and had been so from the outset. Sales were below what was expected especially in the peak post-Christmas months when customers flock to their service. The complainant would not listen to any suggestions. On the contrary he told staff that if they listened to him, sales would look up.

The employer stated that the meeting of 24/1/2024 during which the complainant shouted was the final straw. The witness found it difficult to work with the complainant. The complainant was defaming the company, defaming the sales assistants. He would agree on a certain line at a meeting and then go off and do something entirely different. He was impervious to any view, any data, other than his own.

The employer confirmed to the Adjudicator that the company had a disciplinary process.

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

Firstly, this complaint was submitted under the Industrial Relations Act, 1969 and not the Terms of Employment Act, 1994, as amended, which at section 6D limits probationary periods to six months and which, therefore, deprives the employer of reliance on a 11 – month probationary contract.

While this is a salient point, I have been asked to make a recommendation on the fairness of the dismissal.

Having considered the entirety of the submission, I accept that there were performance issues concerning the worker’s capability to meet the employer’s requirements in terms of maintaining and increasing customer demand for their services.

Process.

It is accepted that the worker was called to a meeting on the 24/1/24 without any advance notice as to its purpose. He was not given the right of representation. He was not given the right of appeal notwithstanding that his written contract and the respondent’s disciplinary procedure provides for an appeal against any disciplinary sanction.

Prior to the decision to dismiss and during the course of his employment, there was an entire absence of any structured approach to the worker’s shortfalls. No disciplinary process or performance improvement programme was initiated during his employment. The relationship was marked by dissatisfaction on the part of the worker about payments and a failure to engage with his thinking / recommendations, and the employer’s sporadic responses -utterances of annoyance and dissatisfaction.

The operative document governing disciplinary procedures in the workplace is S.1 146/2000. The General Principles contained in this statutory instrument provide as follows:

” The essential elements of any procedure for dealing with grievance and disciplinary issues are that they be rational and fair, that the basis for disciplinary action is clear, that the range of penalties that can be imposed is well-defined and that an internal appeal mechanism is available.”

The submissions clearly show that the process employed to dismiss the worker failed to meet the requirements of S.I 146/2000, was devoid of fairness and was marked by an absence of natural justice.

Owing to these substantial procedural deficits, I recommend that the employer pay the worker the sum of €7800 in full and final settlement of this dispute

Absence of procedural fairness.