Worker

Employer

Anonymised Parties

A Spa Therapist

A Hotel & Spa

Representatives

Self-represented 

Constantine McMahon BL instructed by Orbitus Law LLP

Act

Dispute Reference No.

Date of Receipt

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

IR - SC - 00003724

28/01/2025

The Worker commenced his employment with the Employer on 12 August 2024. His employment was terminated on 31 August 2024. 

On 28 January 2025, the Worker referred his dispute to the Director General of the WRC alleging that he was unfairly dismissed.

The Employer’s representative made an application that certain documentary evidence be removed from the case file held by the WRC as it related to separate proceedings, hearing of which shall be held otherwise than in public. The documentary evidence referred to was, in my opinion, irrelevant to the case, it was not considered by me in the context of the Worker’s claim.

The Employer raised a preliminary matter of an incorrect employer being named in the Worker’s WRC complaint referral form. It was asserted that the Worker was employed by named employer (Company B) and not by Company A as in the complaint form. It was submitted that the Worker has no entitlement to relief as against Company B as it is not a party to the proceedings.

At the adjudication hearing, the Employer consented to the amendment of the Employer’s name, and this recommendation reflects the correct name of the Employer.

The Worker sent a significant volume of email and postal correspondence to the WRC which, in the context of his claim of unfair dismissal, can be summarised as follows.

The Worker contended that the Employer had no valid reason to dismiss him. The Worker believed that there was an overriding reason, namely his meeting with one of the owners of the Employer’s hotel. The meeting took place in the hotel on 28 August 2024. The Worker submits that the Spa Manager was irritated with him as she believed he went above her head. The Worker thought that she perceived him as a traitor. The Worked submits that the Spa Manager was angry with him for some three days. He initially tried to pacify her, then he tried to avoid her.

The Worker submits that the Spa Manager ordered employees not to answer the phone because someone (a potential client) called and was not called back. The Worker felt that she was trying to blame him because he had answered the phone a few times when no one was working at the reception desk. However, he was meticulous in making sure that any messages were properly recorded and the potential client is contacted back.

The Worker asserts that the Spa Manager reprimanded him in relation to another minor incident. He submits that, on one occasion, a female client expressed discomfort with being treated by a male therapist. As no female therapist was available at the time, the Worker was instructed to persuade the client to proceed with the treatment. Following a body scrub and shower, the client allowed the Worker to massage her legs but subsequently chose to discontinue the session and leave.

The Worker further states that, eight days into his employment, he was assigned to a female client who, according to a statement she later made to An Garda Síochána, felt uncomfortable receiving her first massage from a male therapist. The Worker contends that the client was not asked in advance whether she was comfortable being treated by a male therapist.

The Worker submits that on 31 August 2024, he was scheduled to massage a client who did not want to be touched by a man. He consulted with the front desk about cancelling the appointment and was given permission to do so. However, he was later informed by the Spa Manager that appointments should not be cancelled without prior consultation with her.

The Worker submits that he then had his last massage on the day. He told the client about the incident involving the Spa Manager. He believes the client may have relayed this information to the Spa Manager, possibly leading her to interpret it as criticism. As a result, he was sent home early at 5:30pm. The Worker asserts that it was clear that the Spa Manager no longer wanted him to continue working at the spa.

The Worker submits that he left but then returned as he could not find his phone. He met the Spa Manager and two other employees on the way in. He told the Spa Manager that he was going to check his room for the phone and then wanted to talk to her. The Worker said that when he returned, the Spa Manager told him that he was fired. He submitted that he was told that it was for making inappropriate remarks.  The Worker said that his last comment to the Spa Manager was that she was “really high class”. He submitted that it was because of the inappropriate language and her denigrating utterances about certain clients.

The Worker submits that he believed that the timing of the two complaints that were made, one on the day he spoke with the owner and another one on the day he was dismissed was of significance.

The Worker submits that he texted the owner twice, but the owner never responded. The Worker had a meeting with the General Manager on 5 September 2024 and handed her a letter asking for his outstanding salary to be given to his two work colleagues. However, he was told that it was not possible.

The Worker submits that he emailed the Employer on 6 September 2024 inquiring what warranted his summary dismissal but he never received a reply.

The Worker submits that two female clients made complaints, and he was subsequently detained by Gardaí. The Worker submits that he was curious about how the Spa Manager managed to orchestrate the situation. He submits that he was treated like a common criminal despite the vacuousness of the accusations against him. He submits that he had never heard of someone being arrested, brought into a police station, fingerprinted, DNAed, photographed, videotaped, insulted and imprisoned for what he thought was “a consumer complaint by a teenaged, nescient Tik Tokker”.

In his correspondence received on 28 January 2025, the Worker made a number of allegations against the Employer and the Spa Manager.

The Worker submits that he was a sterling employee, and he outed himself as a whistleblower regarding unpaid labour on probation day. He was then dismissed without just cause.

In his correspondence, the Worker submits that he made the complaint in the name of justice rather than for compensation. He noted that, if his complaint “makes life fairer for present and future employees, [his] mission will be accomplished.”

Mr McMahon BL, on behalf of the Employer submits as follows.

BACKGROUND

The Worker commenced employment with the Employer as a spa therapist on 12 August 2024. He was paid €17 gross per hour. The Complainant further underwent a trade test or trial on 10 August 2024 and at the Worker’s request this was increased in duration to the rest of the day.

The Worker commenced employment on 12 August 2024 and was under a period of probation of six months. The Worker was requested to log on to the Employer’s business organisation platform and to input/enter various personal details on the platform to complete his employee profile and facilitate payment of his wages. It would also be through this platform that the Worker would have received access to his contract of employment, (which would be uploaded on the platform after he completed his profile) and various other documentation including the Employee Handbook. The Worker, however, failed or refused to upload his details to the system and accordingly his platform profile was not completed.

An induction took place on 19 August 2024. The General Manager gave the induction to the Worker at the hotel. At this meeting the terms of the probation period were stated clearly to the Worker. Further the Worker was taken through the Employer’s induction presentation document (exhibited at the hearing) which also contained the provisions of the probation period that the Worker was under.

At this meeting the Worker was again asked to log into the platform and complete his profile so that he would be able to receive his handbook and contract including the terms of his employment and input his payment details. The Worker failed or neglected to do this.

The Worker’s hours of work were recorded via a fingerprint clock-in/clock-out system that was connected with the platform. The Employer was ultimately able to pay the Worker as he did write his bank account details on an Employee Starter form.

It was decided by the management for the Employer, specifically the General Manager and the Spa Manager that the Worker’s employment would be terminated as it was not working out after an initial three-week stage. Therefore, the Worker’s employment was terminated on 31 August 2024 by verbal notice given by the Spa Manager in the company of two other staff members, three weeks after the commenced of his employment. She stated to the Worker that his employment with the Employer was not working out and he would not be receiving any further hours, thus his employment was terminated at that stage.

Without prejudice to the preliminary objection above it is the Employer’s case that the Worker was paid fully for each day that he worked for the Employer in employment starting 12 August 2024.

The Worker in his submissions states on numerous occasions that he was given as a reason for the dismissal was that he had made “inappropriate comments”. It is submitted by the Employer that this was not the reason for the dismissal, and this was not stated to be the reason for the dismissal which was communicated to the Worker. In fact, it is the Employer’s contention that he was clearly told that his employment with the Employer “was not working out” and that he would not be given any further hours. Thus, his employment was terminated at that stage.

The Worker has further submitted in a letter to the WRC dated 27 January 2025 that he alleges he “felt sexually harassed” by the Spa Manager, while under his period of employment. This assertion is denied fully and it is submitted that this allegation has never been communicated by the Worker to the Employer at any stage during his employment, leading up to the dismissal or thereafter.

The Worker has also stated in his submission letter sent to the WRC dated 27 January 2025 that the Spa Manager “gradually became abusive”. This assertion is fully denied and the Employer reiterates that at no time did the Worker communicate any such issue to the Employer during his employment. All particulars of alleged abuse and aggressive behaviour alleged by the Worker as against the Spa Manager are fully denied.

The Worker further makes submission in his letter sent to the WRC dated 27 January 2025 that he is the subject of allegations to An Garda Siochána that he appears to allege to have been fabricated/made up as a result of the influence of the Employer. That is denied in full.

The Worker further states that he was the subject of arrest by the Gardaí on 11 October 2024 in relation to allegations which arise from the Worker’s employment with the Employer. The Employer is aware that the Complainant is the subject of allegations reported to the Gardai which pertain to matters alleged to have occurred during the course of his employment with the Employer and which the Employer understands are currently under investigation by the Gardai. The Employer will not be engaging in an inquiry into these matters before the WRC as it might compromise the integrity of the Gardaí investigation.

Finally, the Complainant has adduced documentation regarding matters which are entirely unrelated to the WRC’s mandate to investigate unfair dismissal and appear to pertain to matters which should be excluded as they are matters that should be heard otherwise than in public, specifically to documents which appear to be related to a civil restraining order application before the District Court.

Section 13 of the Industrial Relations Act 1969 states that where a trade dispute (other than a dispute connected with rates of pay of, or hours or times of, or annual holidays of, a body of workers) exists or is apprehended and involves workers within the meaning of Part IV of the principal Act, a party to the dispute may refer it to a rights commissioner. Then subject to the provisions of section 13, a rights commissioner shall investigate any trade dispute referred to them under subsection (2) of the section and shall, unless before doing so the dispute is settled, make a recommendation to the parties to the dispute setting forth his opinion on the merits of the dispute, and notify the Court of the recommendation. The section further states that a rights commissioner shall not investigate a trade dispute if the Court has made a recommendation in relation to the dispute, or if a party to the dispute notifies the commissioner in writing that he objects to the dispute being investigated by a rights commissioner.

The Employer submits that while burden of proof lies with an Employer to establish its reason or reasons for dismissal under the Unfair Dismissals Act 1977 (as amended), section 2(1)(a) of the Act 1977 provides that the Act shall not apply to any person who is an employee who is dismissed, who, at the date of dismissal, had less than one year’s continuous service with the employer.

Further, section 3 of the Act of 1977 states that the Act shall not apply in relation to the dismissal of an employee during a period starting with the commencement of the employment when he is on probation or undergoing training if his contract of employment is in writing, the duration of the probation or training is 1 year or less and is specified in the contract.

In this instance the reason for the decision to dismiss was that the Worker’s employment with the Employer was not working out after an initial three weeks. The decision was made to dismiss the Worker simply on that basis.

In the case Buttimer v Oak Fuel Supermarket Ltd [2023] IEHC 126, the Court stated that an employer is free to terminate an employee’s employment for no reason during probation and, even where it relates to poor performance, the employer is not obliged to observe fair procedure but where the termination is for misconduct fair procedures must be observed. In coming to that decision, the Court referred to the decision in O’Donovan v Over-C Technology Limited and Anor, where it was stated at para 49:

“During a period of probation, both parties are – and must be – free to terminate the contract of employment for no reason, or simply because one party forms the view that the intended employment is, for whatever reason, not something which they wish to continue. Neither party can hold the other to the continuation of the employment against the wishes of the other. I do not accept that a Court can imply a right to fair procedures – still less uphold a cause of action for breach of such an alleged right – in relation to the assessment of an employee’s performance by an employer (other than misconduct, which does not arise here) during the probationary period, as this would negate the whole purpose of a probationary period…”

It is submitted that in this matter the Worker was dismissed not for the cause of gross misconduct as he alleges nor as he alleges that he was told he was to be dismissed for “inappropriate remarks”.

Without prejudice to the forgoing, it is stated further in the Act of 1977 at Section 6(4) of the 1977 Act, namely, that a dismissal shall be deemed to be fair 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 he was employed to do;

b) the conduct of the employee;

c) the redundancy of the employee; or

d) that the employer or the employee was prohibited by statute from continuing with the employee’s employment.

Further, it must be noted that section 6 states that the dismissal of an employee shall be deemed, for the purposes of the Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

Again, without prejudice to the foregoing, in circumstances where the Worker is making the case that he was dismissed for reason of gross misconduct, which is denied, the case of Sheehan v HM Keating & Son Ltd [1993] 4 ELR 12 would be pertinent. This case regarded a complainant who was dismissed for allegedly stealing from the employer. It was submitted on behalf of the complainant that the dismissal had been delayed, and that the company stated that the delay had been requested by An Garda Síochána so that they could facilitate their investigation. In fact, the Gardaí investigation was not complete until November 1991, yet the complainant was dismissed in July of that year. The Tribunal considered that there were grounds to justify dismissal by reason of gross misconduct but as fair procedures were not applied, it was an unfair dismissal. However, the tribunal held that since the complainant had contributed one hundred percent to his dismissal, he received a nil award.

Regarding loss mitigation, it was submitted that the Worker needs to meet the standard as set out by the Employment Appeals Tribunal in Sheehan v Continental Administration Co Ltd UD858/1999.

CONCLUSION

It is submitted the Worker is not entitled to the relief sought or any relief as he does not have the requisite period of continuous service required by the Unfair Dismissals Act. The Worker was on a period of probation at the time of dismissal and was dismissed on the basis that the employment with the Employer was not working out. It is submitted that the Worker was specifically told that the employment was not working out and he was terminated for that reason. It is denied that he was told his dismissal resulted from gross misconduct and/or “inappropriate comments”. It is submitted that the Worker was dismissed without a reason being given three weeks into the probationary period and the Employer was entitled to do so.

Without prejudice to the foregoing, the Worker has submitted that there are criminal investigations ongoing which relate to his period of employment. The Employer is aware that allegations have been made against the Worker which are currently the subject of Gardaí investigations. In the circumstances the Employer is not in a position to engage with these allegations nor give any evidence regarding same so as not to compromise the integrity of any Gardaí investigation.

At the adjudication hearing, Mr McMahon BL submitted that it was clear from the Worker’s submission that it was not working out for him either.

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

It is widely recognised that the probationary period at the commencement of employment serves as an opportunity to evaluate an employee’s suitability for the role and to address any performance-related concerns. This period enables the employer to assess how effectively the new employee integrates into the operations of the business. Accordingly, it is incumbent upon the employer to implement a systematic approach to managing and reviewing an employee’s suitability during probation. Where an employee does not meet the required standards, a clear and supportive improvement plan should be established, including defined objectives and regular review points.

An employer should explain to an employee that they may be at risk of failing their probation. At a minimum an employer must alert an employee to any issues and inform them 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.” 

In Opentext Ireland Ltd. v A Worker LCR21855the Labour Court stated that “This Court has consistently held that an Employer is not relieved of the obligation to act fairly during a probationary period and that the requirements of the Code of Practice applies in all circumstances in which a worker is on hazard of having his or her employment terminated. “

In Hamilton Insurance Dac v A Worker LCR22710the Labour Court held as follows:

“There is no submission before the Court that the worker was notified in advance of termination that her employment was at risk. Neither was there a submission before the Court which contended that any procedure was followed before arriving at a decision to terminate the employment or that an opportunity was provided to the worker to know of any issues prior to the termination of her employment. Similarly, there is no submission before the Court that she was afforded any opportunity to defend herself against any charge or contention which could lead to the termination of her employment.

It is the view of the Court that whenever a worker, including a worker who is on probation, is at risk of the loss of his or her job, it is incumbent on the employer to make the worker aware of the situation and of the reasons. In addition, where the issue arises from the conduct or performance of the worker, he or she should be afforded an opportunity to address the decision maker in his or her defence.

There is no submission before the Court that these basic elements of fair procedure were applied in the case of the worker…”  

The Employer argued that the Worker was on probation and that there was no obligation on the Employer to adhere to fair procedures. In that regard, the Employer relied on Buttimer v Oak Fuel Supermarket Ltd [2023] IEHC 126 and O’Donovan v Over-C Technology Limited and Over-C Limited [2021] IECA 37.

Buttimer v Oak Fuel Supermarket Ltd. [2023] IEHC 126 dealt with a claim for wrongful dismissal (in breach of contract) where the High Court has acknowledged that a no-fault dismissal is permitted in law provided there are no underlying reasons such as misconduct issues and the necessary contractual clauses are in place. In the Buttimer case, the Court noted that certain behaviour can be both a performance issue and a misconduct one and that both are not mutually exclusive. Mr Justice Dignam, again:

“I have no hesitation in concluding that the type of behaviour which is alleged against the plaintiff amounts to misconduct and would be understood as such by reasonable persons. The mere fact that it might also be considered as a performance issue does not preclude it from being misconduct".

In another wrongful dismissal case O’Donovan v Over-C Technology Limited and Over-C Limited [2021] IECA 37 the Court of Appeal held that if an employer has a contractual right to dismiss an employee on notice without giving any reason, the Court could not imply a term that the dismissal may only take place if fair procedures have been afforded to the employee.

This dispute is in relation to an alleged unfair dismissal. For clarity, it appears that the Worker in this case did not receive a written statement of his terms of employment. I accept that this could be due to his failure to engage with the Employer’s platform. However, it is clear that at the induction, a presentation was given to the Worker and he was informed that he would be placed on probation for 6 months. The presentation was silent on the matter of termination during probation.

The parties were in dispute as to the reason for the dismissal and the Worker did not receive any clarification in that regard. On the information provided to me by the parties, it appears that the employment relationship did not progress as anticipated and the Employer determined that the probation was unsuccessful. However, I find that the manner in which the Worker was dismissed fell short of best practice. 

It is clear from the decision of the Labour Court in Beechside Company Limited T/A the Park Hotel Kenmare and A Worker, that the requirement for fair procedures is not confined to employees who have adequate service to benefit from the protection of the Unfair Dismissals Act. The Court has consistently determined that employees with short service come within the protection of Statutory Instrument 146 of 2000.

If the Spa Manager had concerns regarding the Worker’s suitability or his “fit” for the role, the Worker should have been given a fair opportunity to discuss and address those concerns. Given the Employer’s failure to follow any procedural steps, I find that the dismissal was unfair.

I note that the Worker submitted that he had made the complaint in the interest of justice and not for financial compensation. His preferred outcome was to make life fairer for present and future employees. For that reason, I do not recommend compensation to be paid to the Worker. However, I recommend that the Employer’s management team familiarises themselves with the provisions of S.I. No. 146 of 2000 – Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures) and immediately implement and/or amend their employment/HR practice and procedures to reflect same.

Dismissal- probation