Worker

Employer

Anonymised Parties

Retail salesperson

Retail shop

Representatives

Robin Hyde Solr.,                                        Alastair Purdy & Co. Solicitors

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 13 of the Industrial Relations Act

IR - SC - 00004913

27/07/23

This hearing was conducted in person in the Workplace Relations Commission situate in Lansdowne Road, Dublin. In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021) the hearing was conducted in recognition of the fact that all formal hearings should be conducted fairly. This aspect of the hearing was not conducted in public as it concerned a dispute brought under Section 13 of the Industrial Relations Act of 1969.

Industrial Relations disputes are primarily heard on the basis of factual submissions provided by the respective parties. Relevant parties might be invited to give an oral recollection of events, facts and matters within their knowledge. Testimony may be subject to rebuttal by witnesses or other relevant contradicting evidence provided by the other side.

The specific details of the dispute are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 27th of July 2023. The Complainant herein has identified the following reasons as giving rise to an unfair dismissal:-

Instant and Unfair Dismissal. No Terms or Conditions of Employment. No reason clearly given, when asked on what grounds I was being let go.

Two weeks previous to my instant dismissal concerns were raised in relation to having no bathroom or running water for 5 months in our place of work. Due to a health issue, I contacted the Health and Safety Authority and they contacted my employer. Two weeks later on the 15th of May The Employer arrived into my place of work and told me to leave

The Complainant was not represented and made her own case. When it came time to hear the Complainant’s evidence, the Complainant agreed to make an Affirmation to tell the truth.

The evidence adduced by the Complainant was challenged as appropriate by the Respondent/by the Respondent witness.

The Respondent had full legal representation at this hearing. The Respondent entity was represented by one of the company Directors. The Respondent provided me with a written submission dated April 2025. Further documentation (concerning the Complainant’s performance) was handed in on the day of hearing. No objection was raised in connection with any of the documentary evidence relied upon by the Respondent in the course of making its case..

The Respondent rejects that the Dismissal of the Complainant was for any reason other than the Complainant’s poor performance and failure to pass the probationary period.

The Respondent addresses this issue in its Submission as follows:-

The Complainant’s employment was terminated in circumstances where it was determined that the level of performance did not reach the required level. As the employee was within the first six months of her employment and given that it was assessed that she was not the right fit for the Respondent, a decision was made to summarily terminate her.

It is the Complainant’s position that there was a justifiable basis for eh termination of the Complainant’s employment but it is accepted that SI n0.146 of 2000 (Code of Practise on Grievance and Disciplinary Procedures (SI146 of 2000)) was not followed. Accordingly liability with respect to this referral is accepted.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

Where it also became necessary, I explained how the adjudication process operated with particular emphasis on the burden of proof which had to be attained by the Complainant in the first instance.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. 

The Complainant’s complaint form was issued out of the Workplace Relations Commission on the 27th of July 2023.

The Complainant came to the Respondent retail premises with considerable experience having worked for up to ten years in another retail shop in Stillorgan before being asked if she would like to come and work for Respondent’s new ladies’ boutique in Dun Laoghaire. GB (one of the Directors) explained that he had gone into partnership with an international lifestyle brand. GB said that the Complainant had been recommended to him by a number of people. The Complainant commenced her employment on the 29th of December 2022. In the end, the employment only lasted five months.

The Complainant has brought to eleven complaints to the attention of the WRC and issued her complaint form on the 27th of July 2023 which means, unless otherwise indicated, I am looking at breaches which might have occurred between the 28th of January 2023 and the 20th of May 2023 (this latter date being the last day of employment).

The Complainant was engaged on a permanent part time basis working a 20-hour week at a rate of €13.50 per hour.

The Complainant says she never received a Contract of Employment. The Complainant says she never received a record of her core terms..

The Complainant says that she was initially happy in this new store though recognised that there were the inevitable start-up problems that needed to be ironed out. There were occasional issues with electricity and water supplies. The heating was poor, and she said sometimes they worked in their coats and scarves. However, perhaps the biggest issue was the lack of a staff bathroom on site, which also meant that there was no on-site hand washing facility. The Complainant was told that the premises had not, as yet, been fully fitted out and the instalment of a sanitary space was due to happen. GB gave evidence that he had concentrated on the shop and that the back area was still unfinished when they opened up the shop just before Christmas. GB did also agree that there was no heating for up to three weeks in January of 2024.

The employer had made an arrangement with the coffee shop next door so that his staff could use the public bathroom available to the café’s customers as and when required. The Complainant says that this was not always convenient or satisfactory and I accept that this was not a particularly dignified solution to the lack of onsite facilities. It seems to me that the installation of a staff bathroom should have happened as part of the shop re-fit and not seen as an added extra to be dealt with down the line. I accept that this matter was raised within the shop with the Manager P whose job, I would have thought, would involve passing this message along to the owner/Director.  The issue was not given any priority. The Complainant says that for personal and/or health reasons she needed access to a bathroom and was not happy to have to go next door and queue for the facility. This went on for about five months. The Complainant concedes that the Directors may not have known how the issue had personally affected her. GB himself says that the issue was never raised with him though I am noting that not one member of the staff who had worked alongside the Complainant was brought to the hearing to give evidence in this regard.

The Complainant confirmed that she had eventually raised the issue with the Health and Safety Authority to determine if she was within her rights to be upset about this issue. The Complainant is not sure whether she triggered a complaint intentionally, but it seems that the Health and Safety Authority took it upon themselves to follow up on this issue. A notice was sent to the Company Director GB who was not happy about it. This happened in early May 2023.

The Complainant recalled GB coming into the premises and saying to her line Manager -P- that he had never had such a thing happen to him as he showed P the notice. He had said he was not happy with this. Within a few weeks, at the direction of GB, the work had been carried out, and a staff bathroom was installed.

GB gave evidence that the work was about to be carried out anyway and that he had not been particularly vexed by the Health and Safety notice. GB states that at that time he had not been aware that it was the Complainant who had raised the issue with the Authority.

On the 15th of May 2023 GB and his partner KC arrived into the shop. This was a day that the Complainant was working. GB took the Complainant aside and told her that the employment relationship between them was not working out and that she could get her things and leave. The Complainant was shocked as there was no suggestion that her Manager or the owners or customers were unhappy with her work. The Complainant did leave that day. By way of justifying the dismissal the Directors stated that the Complainant was being let go as she had seemingly not passed her probation period. The Complainant says that there was never any discussion around a probationary period.

A week or two later the Complainant asked for a copy of her Contract of Employment, and she was issued with one through the staff portal. The Complainant says she was never advised that there was a probationary period and there is no reference to one in the partially signed and undated Contract that I have been shown and which was sent to the Complainant after the dismissal.

On cross-examination the Complainant asserted that, at the time of her dismissal, the workplace roster had had her scheduled to work for up to the June of that year and that there had been no issues raised with her work. The dismissal therefore came as a complete surprise to her.

GB gave evidence that at the time that the H&S authority contacted him the works to instal a bathroom were already in the pipeline. He asserted that he had had number of conversations with the Authority personnel, and he was not unduly ruffled by the notice. Significantly, GB asserts he never knew that it was the Complainant who had initially raised the issue with the Authority. In fact, he says he only found out about the Complainant’s role in the issue when she issued her workplace relations complaint form. GB is adamant that the Complainant was let go for performance and not for bringing the Health and Safety Authority into his affairs.

The Complainant rejects that her dismissal could be unrelated to the fact that her Employer had been forced to expend monies on the premises by reason of the Complainant’s having raised an issue with the Health and Safety Authority. She is therefore making the case that she has been penalised in the most grievous way for having raised the said issue with the Health and Safety Authority.

I note that on the 16th of May 2023 GB wrote an email to his account’s person stating that the Complainant had just been let go as she had not passed her probationary period. I have not seen any other correspondence form the Employer to the Employee confirming the fact of the dismissal, the reasons for the dismissal or in any way acknowledging the right to accrued leave or minimum notice. The Complainant was not written to confirming the termination of her employment.

GB gave evidence suggesting that the real reason for the Complainant’s dismissal was due to her poor performance. I was provided (on the day of hearing) with a spread sheet of sorts which seemingly demonstrated that the Complainant’s sales were not as good as her other five colleagues. I am noting that the Complainant was never advised in the course of her employment that there was an issue with her sales and that she was being outstripped by her colleagues. The Complainant simply rejected the evidence as false. GB seemed to be saying that he and P had identified the Complainant as being the weakest link and that as of March 2023 her performance was being scrutinised. I am satisfied that the Complainant had no knowledge that her performance was considered sub-par. She was not communicated with and she was not given extra training and she was not provided with a performance improvement plan or any other structure to help improve her seemingly imperfect performance.

GB stated that when he terminated the employment, he did not refer to the Health and Safety Authority but he also did not refer to the issue of underperformance. GB simply relied on a probationary period about which the Complainant had no knowledge.

On balance I am persuaded that the Employer herein was well aware that the Complainant had made a complaint to the Health and Safety Authority about her working conditions. I am persuaded that rather than acknowledging that the Complainant had raised a legitimate concern, GB was greatly put out by the Complainant’s actions. I am satisfied that the Complainant’s performance was never an issue until such time as the H&S Authority came into the frame.  

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.