INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969
OKR TRADING AS BURGER KING
(REPRESENTED BY JOHN J. MURPHY & COMPANY, SOLICITORS)
- AND -
MR ADEL EYDAN
Chairman: Ms Jenkinson
Employer Member: Mr Keogh
Worker Member: Mr O'Neill
1. Alleged unfair dismissal.
2. The worker concerned commenced employment with the Company in April, 1998 and was appointed manager at the Company's outlet in Coolock. The worker was dismissed on the 4th of January, 1999. The worker claimed that his dismissal was unfair and that it had racial connotations. The Company rejected the claim of unfair dismissal or that it was on racial grounds. On the 28th of February, 1999, the worker referred a complaint to the Labour Court under Section 20(I) of the Industrial Relations Act, 1969. The worker agreed to be bound by the Court's recommendation. A Court hearing was held on the 6th of May, 1999.
1. The worker concerned, who had a number of years experience in the business and had previously worked as area manager in a similar company, accepted the job at Burger King on the understanding that he would in time be promoted to Area Manager. However, following two weeks training he was appointed to a very busy store in Coolock, the worker initially received no formal training in the relevant procedures, nevertheless, after two months in the employment as manager the outlet won the "best improved" store in the Company's store league.
2. When an audit took place at the store the worker did his utmost to pass it despite the fact that he was not fully trained in Company procedure and there were permanent staff shortages. Because of his lack of training he was instructed by his manager to stay in the background. The store failed the audit because the worker was not seen to be at the front counter; yet he had been specifically instructed to remain in the background.
3. At a meeting with management on 11th of September, the worker was informed that the Company was not happy with his performance and improvement was required within four weeks. However, the worker had booked a two week holiday abroad on the 18th of September and the Company was aware of this. An audit was scheduled for 17th of September and the worker remained at the store all night on the 16th of September to make sure everything was in order. The audit actually took place on the 23rd of September and passed by 89.7%. Despite the worker's input into the preparations for this audit he was given no credit for the store's success because he was on leave at the time.
4. On return to the store after the holidays various workers left the employment and new assistant managers were appointed. The worker concerned, despite being store manager was placed on shifts two nights per week for four weeks. The new trainees were given day shifts. This was most unusual and unfair to the worker. On querying this allocation of shift work, the worker was advised to carry out his duties as scheduled or he would not have a job.
5. The store managed by the worker won another company league competition for "best improved shop" and was complimented by Head Office for this achievement. The worker also trained four trainee managers. The worker, however, was informed by his senior assistant manager that they were put in the store to report on the worker viz a viz the way he carried out his duties (i.e. time spent in office, at counter etc.).
6. The worker was informed by his area manager at the Christmas party in December, that he would be promoted shortly to area manager. She spoke highly of the worker, but remarked that because of his race he had difficulty taking orders from a woman.
7. On his return the worker inquired about his Christmas bonus. He was informed that he would not get one as his shop was not performing well. This was despite the fact that it had just won the "best improved shop" award. In addition, other workers at the store received their Christmas bonus.
8. The worker fell ill and was on sick leave for a period in December. On return to his duties in the store on the 4th of January, 1999, his first day back after the holidays, the worker was dismissed on the grounds that "he had not reached Company standards". The worker was treated in a most unfair and unjust manner in the way he was dismissed. The worker received no written warnings nor was he demoted, yet he was arbitrarily dismissed. The worker seeks to be reinstated to his position as from 4th of January, 1999 without losing any financial benefits. He also seeks a written reference and a formal apology for all the stress inflicted on him.
1. In 1997, prior to the worker's appointment, sales had shown an increase of 6% on average over the year 1996 and were showing increases up the time of his appointment. Following the worker's taking charge as store manager at the Coolock store sales began to decline month on month viz a viz the previous year. In September, 1998 the worker was interviewed by the General Manager and by the Staffing and Training Manager about his performance. He was advised that if his performance did not improve, he would be demoted and returned to assistant manager.
2. The worker's area manager (from April to October, 1998) stated that she found the worker to be unsatisfactory as an outlet manager. She subsequently took employment with another company and her successor decided to give the worker another chance and sent him on further training courses, monitoring his progress. He was again assessed in December, 1998 and as all indicators of his efficiency as a manager were negative, the Company took a decision to terminate his employment (he was never promised promotion to area manager). The decision was postponed until the New Year and following a meeting on the 4th of January, 1999, the worker was dismissed.
3. Two employees who worked as his under managers at the Coolock store during the period of his employment, could not cope with the worker as manager because of his lack of managerial skills, the hygiene standards of the store and the fact that as manager he offered no assistance at very busy times at the store. One worker left and another sought a transfer from the store. One of the workers returned to the Coolock branch in September, 1998, on the understanding that the manager's attitude and performance had improved. The store was still being managed in an incompetent fashion and the claimant was lazy and untidy. The worker who returned now manages the Coolock store in an efficient and able manner. There are no staff problems and turnover is excellent.
4. The "best improved shop" awards were not bestowed by the Company, but rather by a sponsor whose products showed increased sales in the outlet.
5. The Company categorically denies that any remarks relating to the worker's race were ever made to him. The Company has a significant number of foreign nationals in its employment.
6. In the circumstances, the worker was treated in a fair and reasonable manner. Despite receiving appropriate training and a significant amount of "hands on" assistance from Senior Management the worker was incompetent and unable to perform his duties to the employer's standards. His dismissal was fair.
Having carefully considered the written and oral submissions the Court does not consider that there are any grounds for an allegation of dismissal due to racial discrimination. The Court is satisfied that the claimant was given performance reviews which indicated that his performance was unsatisfactory. However, the Company did not adhere strictly to the disciplinary procedures laid down by not issuing him with written warnings which specifically stated that his employment was in jeopardy.
The Court is satisfied that the dismissal is justified. The Court recommends that the claimant should be paid £1,000 in lieu of the short notice he received.
Signed on behalf of the Labour Court
26th May, 1999.______________________
Enquiries concerning this Recommendation should be addressed to Tom O'Dea, Court Secretary.