Worker

Employer

Anonymised Parties

A Worker

A Restaurant

Representatives

Act

Dispute Reference No.

Date of Receipt

S13 of the Industrial Relations Act 1969

IR-SC-0003177

24/9/2024

The Worker was employed as a kitchen porter from 16th September 2024 until 23rd September 2024.

On 22nd of September 2024, the Worker called in sick to work four hours before his shift. On the phone he was told okay. The next morning, Monday 23rd of September he received an email dismissing him from the job. At the time of receiving this email, he had not received any warnings or disciplinary action. He received a statement saying he was not the right fit for the business despite no grievances being discussed with him at any point during the week or during his trial shift two weeks prior.

The Worker had informed the owner that he moved Kildare to take the job and left stable employment of almost three years. On 23rd September 2024, his employment was terminated immediately and without notice. He was not paid his notice. He was blocked by email and never received a response to why he was dismissed. He was unemployed and seeking immediate employment elsewhere to continue living in Galway.

The Worker disputed that he was asked to prepare desserts, he was told this would be required at a later stage. He said there was no issue with his loading, and he was never told he was not carrying out the work correctly. He believes he was dismissed due to his sick-leave. The Worker said he was unable to get alternative work. He applied for numerous jobs.

The Employer denies any wages or notice is due to the Worker. There were two payslips issued. The Worker was paid for his trial of 12.7 hours and five days worked.

The Employer said there was difficulty with the Workers work.  He was not able to follow instructions. He was not running the dishwasher when it was full. He raised issues with the Worker on the Friday as the other kitchen porter was complaining. The Worker would not prepare the desserts. The problems reoccurred on the Saturday, and he sent an email to terminate the Workers position the following day as he was on probation.

The Employer does not accept there was no alternative work available for the Worker as there are twenty-two restaurants within fifty metres of the premises looking for kitchen porters.

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

The Worker claims he has been unfairly dismissed following sick-leave. Following a trial period, he was employed for one week when he rang in sick after a number of days of work. He says there was no issue raised with his work. He is owed one week’s notice as provided in his contract of employment.

The Worker’s contract of employment provides for payment of one week’s notice if dismissed while on probation. However, under S4 of the Minimum Notice and Terms of Employment Act 1973 an employer is only required to pay one week’s statutory notice when an employee has been employed for thirteen weeks.

There is a dispute on the facts of what occurred between the parties. The Worker was on probation at the time. He says he was unaware of any issue with his work. An Employer should inform a new employee if there are difficulties with an employee’s work or attendance, provide any training required and clearly set out areas for improvement to a member of staff. A new employee should be given time to show improvement in their performance. Any performance concern should be recorded in writing for clarity for an employee. The burden rests on an Employer to demonstrate that a dismissal is fair under the Unfair Dismissals Act 1977. The Employer claims the issues were raised directly with the Worker and he was given an opportunity to improve prior to dismissal.

The Worker claimed he was unable to obtain alternative employment following his dismissal and had financial loss. He was requested to provide evidence of financial loss to the Workplace Relations Commission which was not received.

In the circumstances, I make no recommendation.