Worker

Employer

Anonymised Parties

An Employee

An Employer

Representatives

  Self-Represented

Dajana Sinik IBEC

Act

Dispute Reference No.

Date of Receipt

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

25/02/2023

The Worker was employed by the Employer from the 19th October 2022 until his dismissal on the 17th February 2023. On the 25th February 2023 the Worker, having less than 12 months’ service, submitted an unfair dismissal dispute to the WRC under the Industrial Relations Acts.

The Worker stated that he was summarily dismissed without being provided with an opportunity to defend the charges against him.

The Employer denied that the Worker was unfairly dismissed and asserted that he was dismissed during the probationary period for poor performance.

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

Whilst a worker with less than twelve months of service it not covered by the Unfair Dismissals Acts,  the fact that they may be on probation does not negate their entitlement to fair procedures in relation to grievance and disciplinary matters.

S.I. No 146/2000 – Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures)(Declaration) Order, 2000 requires that the worker is afforded fairness during her probationary period:

6.     The procedures for dealing with such issues reflecting the varying circumstances of enterprises/organisations, must comply with the general principles of natural justice and fair procedures which include:

•       That employee grievances are fairly examined and processed;

•       That details of any allegations or complaints are put to the employee concerned;

•       That the employee concerned is given the opportunity to respond fully to any such allegations or complaints;

•       That the employee concerned is given the opportunity to avail of the right to be represented during the procedure;

•       That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors or circumstances.

The Labour Court emphasised the importance of fair procedures in Beechside Company Limited t/a Park Hotel Kenmare v. A Worker, LCR21798, noting:

“Where an employee is considered unsuitable for permanent employment, the Court accepts that an employer has the right, during the probationary period, to decide not to retain the employee in employment. However, the Court takes the view that this can only be carried out where the employer adheres strictly to fair procedures.

… The Court has consistently held the view that it is imperative that an employer in a dismissal case must not only show that there were substantial grounds justifying the dismissal but also that fair and proper procedures were followed before the dismissal takes place. This requirement of procedural fairness is rooted in the common law concept of natural justice.

The Court is satisfied that the Claimant was not provided with details of any performance issues; no warning was given that his employment was in jeopardy; he was not afforded the right to representation; he was not provided with reasons for his dismissal and he was not afforded an opportunity to reply. Therefore, the Court is satisfied that he was denied natural justice.”

In Ebay v. A Worker, LCR 22806 the Labour Court stated:

“The Court has carefully considered the written and verbal submissions it received. The Court is satisfied on the submissions before it that the employer failed to adhere to the requirements of the Code of Practice on Grievance and Disciplinary Procedures made under Section 42 of the Industrial Relations Act 1990 and contained in SI 146 of 2000, before the decision to dismiss the claimant was taken.

The Court has consistently held that an employer is not relieved of the obligation to act fairly during the probationary period and that the requirement of the Code of Practice applies in all circumstances in which a worker is on hazard of having his or her employment terminated.

Having regard to all these considerations the Court has concluded that the worker was treated unfairly in the manner in which his employment was terminated.”

In the instant case, as part of the probationary process, by letter dated the 17th February 2023, the Worker was invited to attend a probationary review meeting on the 17th February 2023. He was advised that the purpose of the meeting was to discuss his progress over the last few months. He was further advised that his employment with Employer was at risk due to his alleged failure to adhere to staff cash policy and that there was now a question of trust and confidence and in his abilities. In the letter he was afforded the right to be accompanied at the meeting by a work colleague. The meeting took place as scheduled on the 17th February 2023. The Worker’s Manager and the Area Manager were present. During the course of the meeting the Worker’s poor time attendance and poor communication skills were discussed. It was acknowledged that he had completed all training modules including the shop and till training which was done by his Manager. It was put to the Worker that he failed to adhere to the staff cash policy which the Employer stated was a serious breach of trust and confidence. The notes of the meeting stated that the Worker acknowledged that he used the Staff Game Tag to cover some unpaid fuel transactions. The Employer stated that at the conclusion of the meeting the Worker was dismissed summarily on the basis of his poor performance.

The Worker stated that he was informed by Whatsapp by his Manager that he was dismissed with immediate effect and that he was told not to attend work the following day. The Worker requested an email explaining the reasons for his termination however he stated that his Manager informed him that she did not owe him an explanation.

I find that the Worker was unfairly dismissed arising from being summarily dismissed in breach of fair procedures.

The Employer relied on an excerpt from the Worker’s contract of employment which provided inter alia that “[p]rogress discussions will be had with your Manager during the probationary period and employees considered unsuitable may at the absolute discretion of management be dismissed during the probationary.” However, there was no evidence of any such progress meeting with the Worker’s Manager during the probationary period having taken place.

Despite submitting that the Worker was dismissed for poor performance the notes from the probationary meeting detailed allegations that the Worker “failed to follow company policies and procedures, staff cash policy / trust and confidence” which the Employer acknowledged were issues of misconduct/gross misconduct.

Apart from the content of the letter he received the day of the meeting, the Worker was provided with no detail of where his performance was not acceptable, he was provided with no adequate opportunity to respond to any allegation, he was provided with no opportunity to improve and he was provided with no explanation of why his employment was being terminated. For these reasons I find for the Worker.

In deciding what compensation I should recommend I accept that the Worker acknowledged that he used the Staff Game Tag to cover unpaid fuel transactions which I note is in breach of the Employer’s policy on the use of the said tag. The Worker suggested he looked for work after his employment was terminated but provided no details of these efforts apart from the job he ultimately secured.