Worker

Employer

Anonymised Parties

A Pharmacist

A pharmacy group

Representatives

Richard Stapleton Solicitors

 Self

Act

Dispute Reference No.

Date of Receipt

Industrial Relations Act 1969

CA-00062388

25/03/2024

This dispute related to the termination of the workers employment.

She commenced working for the employer on the 14 December 2023. Her employment ended on the 13 March 2024.

She was paid €55 per hour and worked a 27 hour week.

The worker's case was that she was headhunted by the employer to work in one of its pharmacy shops.

The worker had previously worked as a locum for the employer on seven different occasions in 2023 in different pharmacy shops it owned. During the earlier periods of employment, neither the employer or its staff had any issue with her work.

She specifically referred to the interview in October 2023 during which one of the employer directors complimented her on her work and remarked that the staff liked her.

The worker acknowledged that she had met a company director on the 31 January 2024 for a coffee. She submitted that this was not a performance review.  She understood it to be a ‘catch up’ on her initiation into the work place, as she had commenced working prior to Christmas 2023 and that time was the busiest sales time for the pharmacy. She was told the meeting was a "meet and greet". At no stage was the worker advised that she was attending a performance review meeting or that there was an issue with regard to her performance or the way she carried out her duties. No minutes of that meeting were taken and no follow-up letter issued on foot of same to her.

During that meeting the worker raised an ongoing issue she had with one staff member who worked as the front of shop manager in the pharmacy. The company director assured the worker that he would follow up on this. The company director did not revert on the issue at any stage following the January meeting and the worker saw no change in the behaviour of the front of shop manager.

On the 13 March 2024, one of the employer directors travelled to the pharmacy shop and called the worker into the pharmacy consultation room for a private meeting at 5:55 PM.  This was five minutes before the pharmacy closed at 6:00 PM.

Earlier that day the front of aforementioned shop manager left the shop floor without telling the other staff where she was going. This impacted the working of the pharmacy and the worker brought this to the attention of the company director at the meeting. She advised him that the unaccounted absence of a staff member caused a difficulty in the operation of the pharmacy. This was not accepted by the company director.

The company director advised the worker that she did not ‘fit with the company ethos’ and it had received complaints from staff about her. He did not provide the worker with any specific details of the nature of the complaints other than advising that the worker had created ‘an air of tension’ in the pharmacy on the days she was on duty. He did not provide her with the complaints in writing to allow the worker a chance to respond or identify what member of staff had made the complaints against her.

The company director also said that the worker had negatively impacted on the pharmacy shop turnover, but he did not provide her with the metrics on which this assessment was made.

At this stage the worker had been working for the employer for 14 weeks and this was the first she had been advised that there was an issue with her work.

At 6:05 PM the employer advised the worker that it was terminating her employment and requested the worker to leave immediately.

The worker was paid one month’s pay and holiday pay outstanding.

The worker submitted that the termination of her employment was carried out without an investigation and was in the absence of fair procedures.  This failure to afford the worker due process was a breach of her employment rights. She submitted that the true motive for terminating her employment was financial and the employer sought to replace her with a pharmacist on a salary which was far less than was paid to her.  She was earning the equivalent of a full time salary circa €110,000.00 per annum and it advertised for a replacement pharmacist following her dismissal at an annual salary of €60,000.00

The worker sought compensation for her unfair dismissal and while she was able to secure replacement work, this work is at a rate of €10 less per hour than she was earning with the employer.  This resulted in a weekly loss of €270.00.  The worker sought loss of earnings from the date of her termination to the date of the hearing of €14,850.00

The employer denied that there was any financial reason behind the termination of the workers employment.

The employer submitted that the worker did have notice of the meeting on 31 January 2024. It stated that the meeting was to discuss the parties ‘expectations of the role’. It submitted that this was a HR performance meeting that gave feedback to the worker as to her role and required improvements. It accepted that there were no notes taken of the review meeting with the worker and that they didn't do everything correctly in accordance with HR best practice.

The employer submitted that the worker was asked to be more patient centric and to be available and talk to patients, but to leave non-pharmacy sales to the support staff. It submitted that it asked her to focus on the pharmacist only part of the role and in particular work that the other staff members were not qualified to do.

At the hearing, the employer provided four examples of engagements with customers that the worker was below its acceptable customer service level and it submitted that the Supervising pharmacist had a number of other examples.

The employer submitted that when the company directors attended at the pharmacy, that the worker was a "model pharmacist" but was told that she reverted to her regular behaviour the next day and that her "performance" disappeared.

The employer submitted that its position was untenable and that while they had tried to manage the situation informally, they didn't foresee that the worker’s performance would have dipped so much.  The decision was made that they couldn't support the worker long-term and that her employment could not continue.

The employer submitted that the termination took place during the probation period and that the worker received a generous termination payment of five weeks in addition to her contractual notice on the ending of her employment.

The employer explained that it had never had an issue like this before and that it was a good employer having two members of staff with over 40 years’ service. It acknowledged that the ending of the employment was upsetting for the worker, but submitted that it was not personal and that it had an obligation to their other staff and their customers.

The employer submitted that it paid the worker six weeks pay which was over and above it’s contractual obligation of one week’s pay. The termination pay included an additional five weeks amounting to €7,290. This was made on a goodwill basis.  The employer submitted that there is a shortage of pharmacists in the current economy and the worker would have had no difficulty in securing alternative employment.

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

I was provided with the worker’s contract of employment provided to her by the employer.

It stated that the commencement date was 14 December 2023 and that the worker was employed on a probationary period of six months.

The contract further set out that the worker was entitled to one weeks notice of termination after 13 weeks service and two weeks notice if the employment had exceeded two years.

The contract required the worker to give six-week notice of her resignation to the employer.

The contract went on to explain circumstances justifying immediate dismissal and gave examples which are described as not being an exhaustive list. The contract went on to state that all cases would be treated individually. The contract referred to the company disciplinary and grievance procedures which were to be contained in the employee handbook.  I was not provided with these. It would appear that the worker was not either as she said she did not receive the staff handbook.

As the worker did not have the requisite one year’s service to bring a complaint under the Unfair Dismissals Act, 1977, the referral is made under the provisions of section 13 of the Industrial Relations Act, 1969.

I accept that the worker minimised her losses and secured employment reasonably quickly following her dismissal.  This would be expected in the current market that she works in.  I note that the role she secured paid an hourly rate less than her role with the employer but it paid €10 per hour more than a role as a locum pharmacist.   I note that her salary was significantly more than that advertised by the employer after her employment ended.

Having considered the matter, I note that while there may have been the intention on the part of the employer to address performance issues informally with the worker, the meeting in January 2024 did not sufficiently impart that intention to the worker.  As the informal meeting did not resolve the worker’s performance issues,  the employer should have implemented its formal processes set out in the employment contract and policies. 

It was accepted that the worker was not given the formal opportunity to address any issues that arose with her work, challenge her summary dismissal or appeal the decision to terminate her employment.  It was acknowledged that at no stage prior to the meeting of the 13 March 2024 was the worker advised that her job was at risk.

I note the findings of the Labour Court in Labour Court Recommendation LCR22710 where it awarded €10,000 in compensation to a worker who was denied fair procedures when she was dismissed during the probationary period for performance issues that she was unaware of and not given the opportunity to address. The Court in that decision stated:

“It is the view of the Court that whenever a worker, including a worker who is on probation, is at risk of the loss of his or her job, it is incumbent on the employer to make the worker aware of the situation and of the reasons. In addition, where the issue arises from the conduct or performance of the worker, he or she should be afforded an opportunity to address the decision maker in his or her defence.

There is no submission before the Court that these basic elements of fair procedure were applied in the case of the worker and the Court accepts that the sudden termination of her employment without warning has had a significant effect upon her.”

The facts of this care are similar to that in LCR22710. The worker was not offered any fair procedures prior to the termination of her employment.

In conclusion, I find that the termination of the Worker’s employment was not fair and I recommend that she should receive compensation as a result.

While the employer has paid a termination payment to the worker over and above the worker’s contractual entitlement to notice, I recommend that it pay her a further €5,000.00 in compensation for its failure to follow its own procedures as outlined in the workers contract of employment.   

Probationary dismissal.