ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00021070
Bar and Restaurant
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts
Date of Adjudication Hearing: 04/11/2019
Workplace Relations Commission Adjudication Officer: Brian Dolan
In accordance with Section 13 of the Industrial Relations Act of 1969 (as amended by the Workplace Relations Act 2015 so as to include Adjudication Officers) and where a trade dispute (not specifically precluded by Section 13) has been identified and has been referred to the Director General of the Workplace Relations Commission who in turn refers such a dispute to an Adjudication Officer, so appointed, for the purpose of having the said dispute heard in similar manner as has been set out in Section 41 of the Workplace Relations Act, 2015 and/or Section 13 of the Industrial Relations Act which allows the Adjudication Officer to investigate a matter raised. The Adjudication Officer will additionally and where appropriate hear all relevant oral evidence of the parties and their witnesses and will take into account any and all documentary or other evidence which may be tendered in the course of the hearing.
Having confirmed that the Complainant herein is a “Worker” within the meaning of the Acts and having conducted the investigation as described in Section 13, I, as the so appointed Adjudication Officer, am bound to make a recommendation which will set forth my opinion on the merits of the within dispute.
Under Section 36(1) of the Industrial Relations Act 1990, any party may object to an investigation by an Adjudication Officer of the dispute raised in the complaint form. The Respondent employer must indicate any such objection in writing within 21 days of the notification of the dispute raised in the workplace relations complaint form. In the event that the Employer does not indicate an unwillingness to have this matter dealt with by way of Adjudicator investigation, the Employer will be regarded as having given consent.
The Worker herein alleged that she had been dismissed without due cause during the first year of her employment. The complaint was referred to the Commission on the 15th April 2019, with the Respondent positively electing to engage in the investigation on the 10th May 2019. A hearing in relation to the complaint took place and was concluded on the 4th October 2019.
Summary of Complainant’s Case:
The Complainant was employed by the Respondent as a waitress on a part-time basis from the 12th January 2019. At the commencement of her employment, she was subject to a one-week trial period which was satisfactorily completed. The Complainant received no contractual documentation at the commencement or throughout her employment.
The Complainant’s employment was uneventful and she believed she had been performing well until the 31st March 2019. On this date, the Complainant was required to work in an area of the premises she was unused to. Approximately four hours into her shift, her line manager verbally reprimanded her for the apparent slow pace and quality of her work. Shortly thereafter, the Complainant’s line manger instructed her to “go home” and that her shift was being prematurely terminated. The Complainant advised that this conversation occurred in the public area of the premises and could be overheard by other parties.
The following day, the Complainant contacted her line manager to discuss the events of the day previous. During this call her manager advised her that she had “come to the end of the road” and that her employment was effectively terminated. The Complainant expressed her shock and upset at this decision, on hearing the same the Complainant’s manager invited her to an informal meeting in his office that evening. During this meeting the Complainant’s manager confirmed that her employment was terminated. Notwithstanding the same, he advised that this was not a personal decision and that he wished to remain on good terms. When asked to elaborate on the reasons for the Complainant’s dismissal he advised that she did not treat the employment seriously as it was her second job and that he had to consider the rest of the staff.
In closing the Complainant outlined the personal distress losing her job in such a manner. She further advised that she was concerned that her former colleagues would have been aware that she had been dismissed from her employment and given that they reside in the same area, this had caused and continued to cause significant upset and distress.
Summary of Respondent’s Case:
At the outset, the Respondent stated that they did not contest the Complainant’s version of events in any meaningful manner. The Complainant’s line manager advised that her employment was initially subject to a one-week trial and that thereafter her employment was subject to a probationary period. A full set of contractual documentation was prepared for the Complainant, however this was not issued due to administrative oversight. The Complainant’s line manager agreed that her work was completed to a satisfactory standard for the majority of her employment.
On the 31st March the Complainant was scheduled to work in a part of the premises she was unused to. Nonetheless, the Complainant’s line manager advised that she was fully trained in this operation and that the performance of this role should not have presented additional difficulties. During this shift, one of the Complainant’s colleagues alleged that that she was not performing her duties to the required standard. As the Complainant’s line manager was concerned regarding the effect this might have on the level of morale amongst the other staff members, he spoke with the Complainant and queried whether she had taken her break. When she replied that she had, he requested that she make a better effort considering the level of trade and the pressure the other staff members were experiencing. Following this conversation, the Complainant’s line manager observed her in the performance of her duties. When he noticed no discernible improvement in the same, he informed her that she should go home for the afternoon. It was denied that this conversation occurred within earshot of any third parties.
The Complainant called the line manager the following day to discuss the events of the day previous. As she requested a meeting in relation to the same, they agreed to meet that evening. During that meeting, the Complainant’s line manager advised that her employment with the Respondent was terminated. He explained that this was not a personal decision and that he wished to remain on good terms with the Complainant. Whilst not stated at the time, the line manager confirmed that he came to this decision on foot of the complaint about the Complainant, the fact that she had other, full time employment and the fact that she was within her probationary period.
In closing the Respondent submitted that they felt no personal animosity towards the Complainant and express their regret that matters had progressed so far. In response to a query, the Respondent confirmed that the Complainant was not advised, either expressly or orally, that she within a probationary period. They also confirmed that their staff handbook contains a comprehensive disciplinary policy that was not utilised in this instance.
Findings and Conclusions:
Every contract of employment, whether express or implied, contains a provision that an employee is to be treated with dignity and respect in the performance of their duties. This provision does not become operative after a certain period had elapsed, it is present and must be adhered to from the commencement of the employment relationship.
In this circumstance, the Complainant’s colleague made a complaint in relation to the performance of her duties. In the normal circumstance, the Complainant would be given an opportunity to respond to the complaint and put forward a defence of her position. In the present circumstance, the Complaint was not informed of the complaint but was instead dismissed in the absence of any procedure and without an opportunity to defend herself and advocate for her continued employment. Such a dismissal is in absolute contravention of the Complainant’s rights and clearly breaches the duty of care and respect incumbent on the Respondent.
Whilst the Respondent submitted that the Complainant was within her probationary period at the time of her dismissal, it is apparent that this was not communicated to her and certainly did not form a part of her express contractual documentation. Notwithstanding the same, even if the Complainant had been within a period of probation, a dismissal in this manner would remain grossly unfair and contravene her rights as an employee.
I note the Respondent has stated that they intend to amend their practices regarding the potential dismissal of employees with short service. Whilst this is to be encouraged, I also note that this is of scant consolation to the Complainant in this instance.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
I uphold complaint CA-00027778-001 and find that the dismissal of the Complaint was substantially and procedurally unfair. Given that the employment relationship has now ended, I recommend that the Respondent pay the Complainant the sum of €2,500 in respect of the breach of her rights.
Workplace Relations Commission Adjudication Officer: Brian Dolan
Probation, Short Service Dismissal.