ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00027617
Parties:
| Complainant | Respondent |
Anonymised Parties | An employee | A Country House Hotel |
Representatives | Mary O’Dwyer, BL | Catriona Dwane, Solicitor |
Complaint/Dispute:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts | CA-00035885-001 | 21/04/2020 |
Date of Adjudication Hearing: 02/12/2021
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Procedure:
In accordance withSection 13 of the Industrial Relations Acts 1969following the referral of the complaint/dispute to me by the Director General, I inquired into the complaint/dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint/dispute.
Background:
The employee worked as a Wedding Planner for the employer and her employment was terminated in the fourth week of her employment. |
Summary of Employee’s Case:
The employee was employed by the employer from 1st October 2019 to 24th October 2019, when her employment was abruptly terminated. She had worked in prestigious other hospitality employments. She got on well with the main principals in her employment in this case. However, she was subjected to unfair criticism from Ms A who was a consultant to the business, and whom the employee believed was out to get rid of her. In her evidence, the employee went through the sequence of events during the first weeks of her employment. In week 1 she dealt with enquiries from 3 prospective clients. She received positive feedback from the owner of the business. In week 2 She had some problems with Ms A who seemed to be a consultant attached to the business. She was told to log messages in the diary and told to send contracts out immediately to prospective clients even though some details were not correct. In week 3 there was some difficulties again with Ms A and feedback given by her was about commas and spaces missing in contracts. She was again given positive feedback from the owner about her work. In week 4, Ms A returned from annual leave, and the employee believed she was determined to get rid of her. She was very irate and critical about the employee’s work. She was later called to a meeting with Mr K and dismissed by Mr K. He said the reason was due to errors in her work. There were no disciplinary procedures invoked, no verbal or written warnings and no right of appeal. |
Summary of Employer’s Case:
The Employer contends that the employee was dismissed fairly during the probationary period as she repeatedly was not carrying out her duties as required. In her contract of employment it states: If your work performance is not up to the required standard or you are considered to be generally unsuitable we may take either remedial action or terminate your employment . It could not have been made any clearer to the employee as she would have been fully aware of the numerous times she had to be corrected over her work and the many efforts made to get her to perform her duties in a proper manner. It clearly states in Section 1 of the Employee Handbook (Section B Probationary Period) that During this period your work performance and general suitability will be assessed and if it is satisfactory your employment will continue. During this time the employee was approached ,talked to , advised of the errors she was making and how to stop repeating them . She was given detailed instruction on the correct computer filing procedures , identification and reference codes for customers , preparation for issuing contracts etc. She also received instruction on the correct procedures for showing customers all the options available at the House. She was given a text to follow which included setting up rooms and lighting prior to a viewing , what points to cover in each location , and the order in which to show the venue. She was unwilling to accept any instruction and persisted in doing things her own way despite the best efforts of Senior Management to guide , train and instruct her. It became obvious almost immediately after she began her employment that a pattern of errors was beginning to manifest itself and despite the errors being pointed out and advice being given this pattern did not stop . Management concluded that it was best to end the employment as the employee was not operating near nor close to the performance level which was expected of her following her engagement throughout the recruitment process. It is argued that as per Costello J.’s decision in O’Donovan and Over-C Technology Ltd, where an employee is dismissed during the probation period and has been dismissed not for misconduct, then the principles of natural justice may not apply.
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Recommendation:
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
It is well established in Labour Court decisions, that due process and natural justice must apply where an employer is moving to dismiss an employee. In LRC21798, Beechside Co. Ltd T/A Park Hotel, Kenmare – and – A Worker, the Court found:
Having considered the positions of both sides, the Court is of the view that the procedures adopted in the termination of the Claimant’s employment were seriously flawed. He was not afforded fair procedures in accordance with the Code of Practice on Grievance and Disciplinary Procedures S.I. No. 146 of 2000. 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 this instant case, I find that the employee was given no opportunity to be heard or appeal her dismissal and this goes against the principles enshrined in Statutory Instrument S.I.146/2000, which is a basic guide for fair procedures to be followed by all reasonable employers.
I find the employee was unfairly dismissed and I recommend the sum of €6,920 compensation should be paid to the employee by the employer.
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Dated: 11th February 2022
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Key Words:
Unfair dismissal during probation. No fair procedures. |