EMPLOYMENT APPEALS TRIBUNAL
APPEAL OF: CASE NO.
t/a O'Donoghue Ring Hotel UD1136/2012
against the recommendation of the Rights Commissioner in the case of:
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr J. O'Connor
Members: Mr J. Hennessy
Mr J. Flavin
heard this appeal at Killarney on 21st May, 15th September and 16th September 2014
Appellant: Ms Faye Revington BL instructed by
Malone Hegarty, Solicitors, Muckross Road, Killarney, Co. Kerry
Respondent: Mr Martin Corbett SIPTU, Liberty Hall, Eden Quay, Dublin 1
This case came before the Tribunal by way of an appeal against a recommendation of a Rights Commissioner reference r-117985-ud-11
The determination of the Tribunal was as follows:
Appellant’s (The Employer) Case:
The appellant owns and operates a number of hotels in county Kerry. The events in this case took place in the Towers Hotel located in Killarney. The appellant dismissed one of its managers in September 2011 for poor work performance and undermining staff morale. It called a number of witnesses in its attempts to justify that sanction and to show it was not unfair.
The appellant’s human resource manager told the Tribunal that the company recruited the respondent in March 2002. The following year the appellant appointed her as a night manager and this witness outlined the range of duties attached to this responsible position. Her initial performance was good and the human resource manager described her as a reliable hard working employee. However, in late November 2006 this witness issued her with a first written warning due to her non-attendance at work. That warning would remain valid for twelve months and would then be removed and lifted from her record.
By 2010 this witness noticed a marked deterioration in the respondent’s demeanour and attitude at work. In October of that year she received a complaint from the deputy general manager regarding the respondent’s behaviour. While she did not speak to the respondent about this it formed part of a bigger picture emerging concerning the respondent’s work performance. On 10 May 2011 this witness together with the general manager had an appraisal meeting with the claimant and at its conclusion she issued the respondent with what was termed a final written warning a week later. That warning related to her performance and behaviour as reported from other employees. At that meeting the respondent was handed copies of those complaints. The respondent declined to have a work colleague present on her behalf and a trade union official was not invited to attend.
This witness in the company of the general manger again met the respondent on 15 September 2011. The purpose of that meeting was to address and discuss continuing concerns about her work performance. Many of those concerns were in the form of statements and complaints from other employees. At that meeting the respondent did not accept that her customer service skills and her inter-personal relationships with colleagues were poor. As in an earlier meeting several written complaints and statements were given to the respondent at that meeting. This witness mentioned another meeting in which the respondent was invited but did not attend.
A letter dated 27 September 2011 signed by the witness and the general manager to the respondent contained the following paragraphs:
Your level of performance falls below the acceptable level as required by the company.
In light of this and the fact that you are already on a final written warning for performance issues, the company feels that it has no alternative but to terminate your employment in accordance with stage 4 of the company’s disciplinary procedure.
The human resource manager told the Tribunal that the first written warning did not apply and that no previous verbal or written warnings were issued in this case. Prior to issuing the dismissal letter she had consulted with the managing director and the general manger about the respondent’s situation. While it was a joint decision to impose that sanction it was the managing director who ultimately made that decision.
Respondent’s (The Employee) case:
The respondent was recruited in March 2002. At that time she had been working in a hotel in Malaysia. Initially the respondent was employed as an assistant manager but was promoted to night manager within 2 years and continued in that position until she was dismissed on 27th September 2011. However the respondent denied any wrong doing on her behalf and told the Tribunal that she was never rude to customers and got on well with her colleagues.
On a number of occasions the respondent was called to “appraisal meetings” but these often turned into disciplinary meetings the end result of which would be a warning issuing to the respondent. The respondent was never given an opportunity to bring a representative to the meetings and was never informed of her right to appeal these warnings. During these meetings it would be put to the respondent that complaints had been made against her by customers or staff but she was never shown these complaints or given an opportunity to test the veracity of these allegations.
When the respondent was dismissed she again was not given an opportunity to be represented at the meeting and was not informed of her right to appeal her dismissal.
After her dismissal the respondent actively sought alternative employment and secured some part-time work. The respondent relocated to the U.K. in September 2012 and is in full time education since then.
Having carefully considered the evidence adduced at the hearing the Tribunal finds that the claimant was unfairly dismissed by the respondent.
No fair procedures were applied in deciding to dismiss the claimant. Allegations were put to the claimant but she was not afforded any opportunity to test these allegations. There was no right of representation afforded to the claimant and she was not informed of her right to appeal the decision to dismiss her.
Taking into account her efforts to mitigate her loss and the fact that she has since embarked on a programme of full time education the Tribunal varies the amount awarded by the Rights Commissioner Ref: r-117985-ud-11 and hereby awards the claimant €29,596.00 (twenty nine thousand five hundred and ninety six euro) under the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal