ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00026916
A pharmacy dispenser technician
Fiona O'Connor, Tom Smyth & Associates
Dispute Reference No.
Date of Receipt
Dispute seeking adjudication by the Workplace Relations Commission under section 13 the Industrial Relations Act 1969
Date of Adjudication Hearing: 21/08/2020
Workplace Relations Commission Adjudication Officer: Kevin Baneham
On the 6th February 2020, the worker referred a dispute to the Workplace Relations Commission pursuant to the Industrial Relations Act. The dispute was initially scheduled for the 1st April 2020, but this was adjourned because of the COVID pandemic. It was re-scheduled for the 21st August 2020. The worker and her husband attended the hearing. The employer attended and was represented by Fiona O’Connor, Tom Smyth & Associates.
In accordance with section 13 of the Industrial Relations Act 1969following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.
The worker began a trainee pharmacy technician role on the 27th January 2020, but the role only lasted a few days. The worker says that the employer terminated her employment on the 30th January 2020. The employer denies this, saying that the worker resigned. The worker was paid €10.50 per hour.
Summary of the Worker’s Case:
The worker outlined that her interview with the employer on the 23rd January 2020 took about 45 minutes. She was offered a trainee position with a view to helping her become a registered pharmacist in Ireland. The worker is a qualified pharmacist in her home country and had completed an internship in a retail pharmacy in India. The role with the employer was her first job in Ireland.
The worker commenced the role on the 27th January 2020. A staff member was assigned to mentor her but became sick and had to leave work. The day was a busy day and the worker was given positive feedback from both the employer and the other pharmacist.
The worker outlined that when there was no customer present in the store, she read through product ingredients. On the first day, she was the only person on the counter and said that she found it ‘okay’ dealing with customers.
On the second day, there was someone else on the counter and two pharmacists. At the end of the second day, she was not given any specific feedback. The worker outlined that she was off work the following day, but completed online courses associated with the role.
The worker attended work the next day, the 30th January 2020, and this was her last day working for the employer. She met with the employer who told her that she was not the right person for the job. The employer suggested that the worker could see the day out, but she left immediately as she was upset.
The worker stated that she was entitled to one week of notice per the contract. She said that she lost self-esteem from losing the job. She was now working in a pharmacy and it took her three or four days to get used to the accent of customers. She obtained this new role at the end of February.
In reply to the employer, the worker said that the employer had called her into the consultation room to say that she was not the right person to train the worker. The worker was shocked and started crying, saying that she had not expected this. She was offered a lift home. It had not been busy that morning.
Summary of the Employer’s Case:
The employer disputed that there had been a dismissal. The employer gave feedback on the worker’s performance, but the worker took offence and left for another job. The employer stated that she is fully aware of the requirements related to an employee under probation, but there was no mention of dismissal. The employer referred to clause 12 of the contract, which allows for one week’s notice. The employer did not pay notice as there was no dismissal.
On the second day, the employer said to the worker ‘you need to jump in the deep end’ as the worker needed to engage with customers as this is the cornerstone of the role. On the third day, the employer said that she did not believe that the worker had taken this feedback on board. The employer needed staff who can talk to customers. The employer needed to spell it out that the worker needed to talk to customers. The worker became very upset and said she wanted to leave. The employer was surprised by this. The worker said that she had been offered another job. The employer had the impression that the worker was not coming back. The employer offered to call someone on the worker’s behalf.
The employer outlined that the worker’s first day was tough on everyone. She reassured the worker that this was not normal. The employer said that she would not pass judgement on her. On the second day, the employer gave feedback that the worker needed to engage with customers, e.g. to ask customers ‘can I help you?’ and being proactive in interacting with customers. The worker was not demonstrating her knowledge and staff need to engage with customers about symptoms. There is a protocol regarding what questions a front-of-house person can ask.
The employer did not expect the worker to come back to work after their final conversation. The employer paid the worker the full week’s salary. The employer made this payment out of good will and things had ended emotionally. The employer said that she was surprised to later get the letter from the Workplace Relations Commission regarding this dispute.
The employer said that in the conversation on the third day, she wanted to emphasise that this was serious, and the worker needed to interact with people. The employer said that the staff member who joined on the second day was a fixed term worker to cover the employee who became sick and was not a trainee technician.
The employer told the worker that she could not train the worker unless the worker spoke to people on the counter. The employer wanted to bring her along to start to engage with the job. The employer was gobsmacked when the worker wanted to go.
The employer said that they had the conversation the previous day, but this concern was not being taken seriously. The employer saw that the worker was not prepared to take the feedback. The employer strongly disputed that there was a dismissal.
Findings and Conclusions:
This dispute relates to an employment that only lasted a few days. In order to assess the merits of the dispute, I must address the differing accounts of what occurred on the 30th January 2020. The conversation happened shortly after the pharmacy opened that morning and took place in the consultation room. The employer raised the issue of the worker’s performance, in particular her not engaging with customers. I appreciate that this conversation become emotional and the worker left.
I am inclined to find that the worker was told that her employment would end but that she could continue to work through that day. It is not clear to me what the worker did that created the firm impression that she was not coming back. I also note that the employer paid the worker for the full week, which is something an employer is more likely to do if they have told an employee that it is not working out, rather than where an employee walks off the shop floor.
In assessing the merits of the dispute, I recommend that the employer pay the worker €450. This is equivalent to one week’s pay and recognition of the worker’s accrued annual leave. It covers some of the period before the worker was able to start the other role. The recommendation seeks to reach a fair balance between the parties.
Section 13 of the Industrial Relations Act, 1969 requires that I make a recommendation in relation to the dispute.
I recommend that the employer pay to the worker €450 in resolution of this dispute.
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Industrial Relations Act