Worker

Employer

Anonymised Parties

A Worker

A Hotel

Representatives

The claimant represented herself

David Gaffney Padraig J. Sheehan 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-00004100

06/06/2023

The claimant was employed as Financial Controller with the respondent from the 1st.September 2022 to the 9th.December 2022 when she submits she was unfairly dismissed. She submitted that when she commenced working she had 6 months probation but was told on completion of accounts for the bank ,  that she was no longer required without any reason being given. The respondent denied that the claimant was unfairly dismissed and submitted that performance issues had arisen  with the claimant , that she had been called to attend a meeting but failed to attend and that her employment was  terminated  during her probationary period on the 9th.December 2022.

The claimant submitted that she was interviewed twice for the position  and was offered it on a salary of €65,000 per year on a hybrid working basis .The claimant submitted the accounts were many months in arrears and there was enormous pressure from the banks to provide up to date accounts. She said she was only 2 hours in the job when the respondent handed her his phone to speak with the Bank Manager – she submitted that it was clear that the information required by the bank was not being furnished on a timely basis and she learned that the respondent would be in breach of one of their loan covenants if they failed to provide financial information to the bank.

The claimant was advised by the auditor that financial projections for 2023 were required by the bank by the end of October 2022.The claimant submitted that the pressure was relentless and compounded by the lack of regard by the respondent for accounting procedures. The claimant said she worked diligently 7 days a week to produce accurate accounts in line with standard accounting practise. The claimant set out the ongoing exchanges with the bank and the auditors – a further list of requirements was sent to her on the 9th.Nov. which she completed and sent to the auditors on the 11th.November.The claimant said she spoke with the respondent on the 5th.Dec. and he said he was delighted with the submission of the accounts to the bank – it was the best news he had in a while.

Th claimant said the next contact she received from the respondent was a letter of dismissal on the 9th.Dec. which came as a complete shock to her. She did not receive a performance review. According to the claimant , at this point the accounts were submitted to the Bank , taxes were up to date , a valid Tax Clearance certificate had been issued on the 29th.Nov. and the accounts office was in good running order. The claimant submitted that she received no notice , was not subject to any  dismissal procedure and there had been no induction training. She was not given the right to a hearing or to be represented and having produced the accounts within a terribly restricted timescale she was told by the end of the same week that she was no longer required. She submitted it was her belief that the family never had any intention of retaining her on a full time basis , that the only use they had for her was to produce a set of presentable accounts and when this objective was met , she was disposed of. The claimant referenced cash leakage problems “ where necessary controls were allowed to lapse”.

The claimant submitted the employment contract did not reflect the terms of her original exchanges with the hotel – the claimant submitted it was far more than any coincidence that her employment term ended upon completion of the accounts. She submitted that the respondent deceived her in offering her a full time permanent management contract that they never had  any intention of honouring. The claimant submitted she was unilaterally dismissed without consultation or the application of fair procedures.

The claimant said she never refused to come into work and had received no warnings about any unhappiness with her work.

The claimant said she was not bound by the contract submitted by the respondent -  she said she did not sign it as it did not reflect what had been agreed earlier with Ms.M in August. At that time there was no reference to a probation period .The respondent had produced no evidence of concerns regarding her work and no evidence of refusing to come into work. She had worked to very tight deadlines. The claimant said she got one phone call about going to work and she offered to come in but the respondent said no. There was no HR manager in place at the time. She was in dispute about the contract because  it did not represent what had been agreed with the former HR.manager and the claimant  was relying upon  the emails between her and Ms.M.

The claimant asserted that the date contained in the emails submitted by her in support of her complaints about overtime was the date she worked on the file and she had to work  at weekends  to get the work done. The claimant said she did not complain about the hours worked at the time because there was a system in place to avail of TOIL – Time Off in Lieu .She maintained the hotel owner was well aware that she was working all of these hours – she was expected to do 4 months accounts in a very short timeframe. The claimant said that reception reported to her on cash flow as did the bar staff 3 x times a day.

The claimant disputed that she said it suited her to work on Saturday and Sundays and asserted that what she said was she had to work on those days to keep up with the work pressures and to complete the accounts work.The claimant denied that she ever refused to come into work. The claimant said she did not have a right to disconnect as she had to get the work done.

The claimant asserted that she did  not lodge a claim for the additional hours worked because she wanted Time Off in Lieu. She said she did not pursue a grievance because she wanted to hold onto her job.

The claimant said that the former HR manager  Ms.M had left – the claimant said she never received an email from the respondent referring to a right to disconnect. The claimant was adamant she did not receive the company handbook .She asserted that failing to provide for overtime was an abuse of workers. The claimant indicated that the HR manager had referenced an expectation on staff to work unsocial hours.

The claimant said she had no recollection of receiving documents on August 22nd.2023 and asserted she did not receive an employee handbook. The claimant asserted that she had  been given no proper contract and there had been no reference to a probationary period in her exchanges with Ms.M .The claimant said that records of the hours claimed was backed up by evidence and she described the contract as an a la carte document.

The claimant reiterated that she did not sign the contract as it did not reflect her agreement with Ms.M which made no reference to probation. The respondent produced no evidence to back up the allegation that she refused to come into work. There was no evidence of performance issues with her work. The claimant asserted that she was never subject to a performance review. When she was told her period of probation was not to be extended , she was told by the respondent not to come near the hotel. The claimant submitted that the previous incumbent of the Financial Controller position was let go after 3 months.

In a written closing statement the claimant submitted that “ the expectation from the respondent that an individual is expected to work an enormous number of hours per week in excess of those hours legislated for , without pay and be available as and when the respondents decide upon is medieval”. The claimant submitted that everything she has claimed is backed up by actual physical evidence. The claimant complained about incomplete and late submissions from the respondent. She submitted that the ala carte contract was used to suit the employer and to be discarded when it came to employee protection. The claimant criticised the respondent’s representative and submitted that the defence mounted by the respondent was malicious and without foundation.

The respondent asserted the claimant was not unfairly dismissed and submitted that her performance was not of an acceptable standard – it was submitted that the complainant was called to a meeting on  a number of occasions but  failed to attend and “ ultimately her employment was terminated” .It was submitted that her employment was terminated during her probationary period as per her contract of employment  with which she was furnished  on the 22nd.August 2022.

The respondent asserted that it did not accept the accuracy of the claims submitted by the claimant on  excessive working hours and overtime and questioned the authenticity of the evidence submitted by the claimant in support of her claims. The respondent referenced Adobe  briefings which specify “ that you can change any information that can be set by the document creator unless the file  has been saved with security settings that prevent changes”. The respondent asserted that the emails written by the claimant were not requested by the respondent  and  insisted the claimant was not asked to work on Saturday or Sundays – it was advanced that the claimant was working remotely to her own time. It was submitted that the claimant decided to respond at weekends not at the request of the respondent. It was submitted that there was no provision for TOIL in the claimant’s contract. It was further submitted that the claimant never made a complaint about working excessive hours and that she was the overseer of payslips and payroll in her capacity as Financial Controller.It was argued that the claimant did what she liked and the respondent asserted the claimant had a right to disconnect as referenced in emails she had been sent. It was submitted that the claimant had said it suited her to work on Saturdays and Sundays . It was submitted that the claimant never lodged a complaint under the grievance procedure regarding TOIL , Sunday premium or excessive hours. It was submitted that as the person responsible for payroll , the claimant should have submitted a claim for TOIL.

It was submitted that the claimant had been furnished with the Staff Handbook by Ms.M – former HR Manager – when she sent her a contract on Aug.22nd.2022. A copy of the email issued by Ms.M was furnished at the hearing . It was advanced that the claimant had lodged no grievances regarding her terms and conditions of employment. It was submitted that the claimant was seeking an extension of her contract and was fixated on probation. Mr.G said that the claimant refused to respond to a reasonable request to come into the office and he told her on the phone that her job was in jeopardy. It was submitted that she refused to come in to discuss work related issues and the respondent was left with no option but to dismiss her. The respondent referred to the claimant’s email to Ms.M of the 4th.August indicating that she would be happy with the terms outlined.

It was submitted that the claimant said it suited her to work on Saturdays and Sundays .It was advanced that there was no provision for TOIL in the employment. In his direct evidence the HR Manager said he had a number of conversations with the claimant and it was during a conversation he asked the claimant to come in to the hotel for a meeting.

The respondent’ witnesses  said flexibility was discussed with a view to putting a hybrid arrangement in place but there was never a discussion about a requirement to work at weekends.

The respondent’s representative  said the claimant was issued with a contract , a job specification and a starter form in August and that the claimant had confirmed that  she was happy with the terms outlined.

It was acknowledged that the claimant’s final pay slip did not include pro rata holidays .It was submitted that the claimant could have raised a grievance about notice but did not do so.

The respondent asserted that the claimant was never requested by the respondent to work at weekends and that this had never been raised by the claimant , that the grievance procedure was not utilised and that the claimant was never asked to carry on work outside of her contractual hours.

The respondent reiterated that the complaints were out of time and that consequently there was no jurisdiction to investigate them.

The following supplementary submission was furnished to the WRC on the 11th.October 2024.

“The Complainant commenced employment with the Respondent on the 1st. September 2022. The Complainant’s Contract of Employment stated that the “contract type” was that of “fulltime (40 hours per week)”.

The Complainant was subjected to a probationary period of 6 months pursuant to such contract. Such contract also contained a provision in relation to “Right To Disconnect” which stated that “the right to disconnect gives the right to Employees to switch off from work outside of normal working hours, including the right to not respond immediately to emails, telephone calls or other messages. The aim of this policy is to ensure a greater sense of wellbeing for Employees both in the course of their employment and in their personal lives. Further information on this policy can be obtained in the Employee staff handbook.”

 The above provision is set out at pages 31-37 inclusive of the Booklet furnished to the Workplace Relations Commission.  Find enclosed a copy of Employee Handbook, together with ancillary New Starter documentation which was furnished to the Complainant by email on the 22nd August 2022 by  Ms. M  the Human Resources Manager for the Respondent at that particular time.

 It should also be noted that at the foot of such email from Ms. M to the Complainant it states “Right to disconnect from Work:  Hotel X we often work flexibly or unsocial hours and so while it suits me to send this e-mail now, I do not expect a response or action outside of your own working hours.”.

 In relation to the Complainant’s contention that she is entitled to a premium for hours worked on a Sunday, we would refer the Adjudicator to page 2 of the Complainant’s Contract of Employment which clearly states that “Sunday rate included in salary”. Such contractual provision is a standard provision in circumstances where an Employee is engaged on a salaried basis as opposed to an hourly-rate basis.

 Moreover, we would draw your attention to the “hours of work” which clearly states to be inclusive of “overtime” and which is contained in page 2 of the Complainant’s Contract of Employment and wherein it also states that “The position will be 5 days per week (40 hours PW) initially the position will be 5 days onsite and would then move to a hybrid working model of 4 days onsite and I day offsite once all accounts are up to date and the office is running efficient. As discussed in the interview, the Directors would be open to discuss another day to work offsite. Hotel operates 24 hours a day, seven days a week. Staff are rostered to work shifts to ensure efficient running of the hotel. The average working shift is 6-8 hours.”

At no stage did the Complainant raise any concerns or issues in relation to the “right to disconnect” or working at weekends which was never a requirement of the Complainant’s job.

The Complainant was furnished with a copy of the Employee Handbook which clearly contains a Grievance Procedure at page 57 and which was at not stage invoked by the Complainant during the entirety of her employment with the Respondent.

We would refer to the emails submitted by the Complainant in what she alleges to amount to support of working outside of her contractual hours, but it is clear from almost the entirety of such emails that the Complainant instigated email threads or instated upon being included in email threads and at no stage were emails sent to the Complainant outside of her contractual hours insisting that the Complainant complete or carry out work outside of the Complainant’s contractual hours.

 In relation to the Complainant’s contention that she was entitled to accrue Time Off In Lieu, it is submitted on behalf of the Respondent that there was no such entitlement and that time off in lieu is rarely given to Employees and is only done so on an ad-hoc basis when shift cover is required. It certainly does not apply to the position of a Financial Controller and at no stage did the Complainant ever mention that she had been compiling time off in lieu or indeed provide any details in respect of same. The Complainant was responsible for signing off on all payslips, including her own and did not state at any stage that such payslips were not reflective of the hours of work that she did. It is therefore submitted that the Complainant’s complaint in this regard is groundless, frivolous and vexatious in nature.

Please find attached payslip dated the 19th December 2022 applicable to the Complainant and comprising the final payslip received by the Complainant in respect of her employment with the Respondent. Finally, please find attached PDF Properties and Metadata Guide describing the mechanics of properties/metadata of PDF documents on Acrobat PDF file, a summary of which is set out therein.”

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

The respondent has submitted that the claimant was dismissed on the 8th.Dec. 2022 – no evidence to support this contention has been advanced .The letter of termination has been furnished by both parties and it is dated the 9th.December .Accordingly , I accept the claimant’s contention that the date of dismissal was the 9th.Dec. 2022.

In the respondent’s first submission to the WRC – their defence against the claim of unfair dismissal was as set out below :

“The claimant was not unfairly dismissed .The complainant’s performance was not of an acceptable standard and the complainant was called to a meeting on a number of occasions but failed to attend and ultimately her employment was terminated on the 8th.Dec. 2022.The complainant’s employment was terminated during the probationary period as per her contract of employment , which she received on the 22nd.August 2022”.

The claimant has submitted that she did not sign the contract of employment furnished to her by Ms.M on the 22nd.August 2022 as it did not reflect what had been agreed at her earlier meeting with Ms.M where there was no reference to a probationary period. The claimant argued that consequently she was not bound by the terms of the contract .I am obliged to point out that there is no statutory requirement on the employee to sign a contract of employment – I have been furnished with a copy of the contract  by both parties .By taking up the position and commencing work with the respondent the claimant acquired an implied contract of employment .

It was not disputed by the respondent that the claimant was not subject to a performance review. Additionally no evidence whatsoever has been advanced by the respondent to support the assertion contained in their original submission to the WRC of the 10th.April 2024 that there were any shortcomings in the claimant’s performance. The contract provides for a 6 months probationary period with provision for an extension. It is evident from the chronology of events that the respondent digressed from their contractual obligations when they terminated her contract after 3 months without any apparent reason. This supports the claimant’s contention that the respondent did not intend continuing the claimant’s employment after she completed the required accounts work.

The Labour Court have repeatedly found that employees on probation – while not protected by the provisions of the Unfair Dismissal’s Acts  because of their length of service - are entitled to a basic modicum of fairness in the case of disciplinary action  including the right to know the case against them  ,  the right to an opportunity to respond fully to any such allegations or complaints, the right to be represented  and the right to an objective examination and impartial determination of the issues.

 I note that the company handbook specifically references employees on probation as follows :

The principles of this policy will not apply during an employee’s probation period,

however any employee dismissed during their probation should be invited  to attend one

meeting to discuss their performance, behaviour and their employment.

The claimant has asserted that she agreed to  attend a meeting on site but it never happened while the respondent has advanced that the claimant was asked to attend a meeting on a number of occasions – no documentary evidence has been submitted  by the respondent to support this contention .

In light of

a)the inconsistencies on the respondent’s part e.g. referencing performance as the basis for the dismissal in the submission to the WRC while the letter of dismissal references failure to attend meetings to discuss “pressing work-related issues “

b)the absence of any evidence to support the allegations of performance deficits

c) the failure to comply with the company’s own disciplinary procedures in relation to probationary staff and

d) the abject failure to  comply with the procedures set out in S.I. 146/2000

I must conclude that the claimant was unfairly dismissed. I must also conclude that the chronology of events gives weight to the claimant’s assertion that she was recruited  for the sole purpose of sorting the company accounts. In determining the amount of compensation , I am taking into account the conduct of the respondent as set out in the foregoing paragraphs.

I recommend that the respondent pay the claimant €5,500 compensation for dismissing her unfairly.