Case Number: ADJ-00017293. Workplace Relations Commission

• Date: 20 February 2019
• Docket Number: ADJ-00017293
• Court: Workplace Relations Commission
• Parties: Customer Service Adviser v Online Retailer

Procedure:

In accordance with Section 79 of the Employment Equality Acts, 1998 – 2015 and Section 13 of the Industrial Relations Acts 1969following the referral of the complaint/dispute to me by the Director General, I inquired into the complaint/dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint/dispute.

Background:

The Complainant was employed by the Respondent as a Group Sales and Customer Service Outlet Adviser on a monthly salary of €2,400 gross from 9th August 2018 to 1st October 2018. The Complaint has submitted an unfair dismissal claim under the IR Acts and an employment equality claim alleging discrimination on the age ground. For the avoidance of confusion, I would draw the parties’ attention to the different naming conventions used under the IR Acts and Employment Equality Acts. Under the IR Acts the parties are designated the titles of Worker and Employer, the referral is known as a Dispute and the Adjudication Officer issues a Recommendation. Under the Employment Equality Acts however, the parties are designated the titles of Complainant and Respondent, the referral is known as a Complaint and the Adjudication Officer issues a Decision. Under the Employment Equality Acts, I am empowered to name the parties to a WRC referral. However, as the herein case includes a referral under the IR Act, I am exercising my discretion in not naming the parties.

CA-00022420-001 Dispute under the Industrial Relations Acts Summary of Worker’s Case:

The Worker submits that: He commenced employment with the Respondent on 9th August 2018. On Monday 1st October 2018 he was called into an office by his Line Manager and handed a letter which informed him of the decision to dismiss him from his role. He was not given any explanation for his dismissal other than being informed that the Employer felt that he was unsuitable for the role. At no time between the start date of 9th August 2018 and the finish date of 8th October 2018 was he made aware of any concerns relating to his employment. He was never spoken to or advised of any issues relating to performance, attendance, timekeeping, attitude or behaviour.

Summary of Employer’s Case:

The Employer submits that: The Worker commenced employment with the Employer on 9th August 2018 as a Group Sales and Customer Service Outlet Adviser. As referred to in his employment contract which was signed by the Worker he was placed on a 3 month probationary period. The contract of employment stated that the first three months of the Worker’s employment were probationary and that "successful completion" of his probationary period is "subject to satisfactory performance". The contract of employment further states that employment may be terminated "during or at the end of [the] probationary period", giving one weeks' written notice of termination or payment "in lieu of all or part of any notice period which...the Employer is required to give." As such, it is clear that, as a matter of contract, the Employer may terminate employment at any time during the probationary period giving one week's notice or payment in lieu of notice. This contract was accepted by the Worker when he accepted the employment. The Worker’s Line Manager, was informed on 27th September 2018 by another employee that they were "uncomfortable" working with the Worker as he had made “inappropriate comments" towards them. The employee did not want the matter to be raised with the Worker as they felt it would "create an atmosphere" within the department in which the employee and the Worker both worked and, in light of this, the Line Manager chose not to raise the issue with the Worker. On 28th September 2018, another employee approached the Line Manager regarding the Worker, outlining that "inappropriate comments” were made regarding that employee being pregnant. The relevant employee was not, in fact, pregnant and "did not know why the Worker would continue making the inappropriate comments even after she had asked him to stop." The Line Manager raised the issue with the Operations Manager who agreed with the Line Manager that the Worker should not be making such comments to colleagues and that action should be taken. The matter was then raised with the Finance Director who advised that if the Line Manager and Operations Manager weren't happy with the Worker’s performance and did not think it would improve, given that he was still serving his probationary period, they should arrange a meeting with him and terminate his employment with one week's notice. It was at the Line Manager’s discretion whether or not the Worker should work his notice period but, on reflection, the Line Manager felt that "the issues raised were too serious" and he should be paid in lieu of notice. The Line Manager met with the Worker on 1st October 2018 and informed him that complaints had been made against him by colleagues relating to "offensive comments" made by him to them. The Line Manager did not disclose to the Worker by whom the complaints were made or the exact nature of the comments made by him. A letter was given to the Worker during this meeting, the contents of which the Line Manager outlined to him. As set out in the letter the Worker’s employment contract was terminated, effective immediately. The letter stipulated that the Employer, as per the terms of the Worker’s employment contract, had employed the Worker on a probationary period "to form an opinion on [his] suitability for permanent employment” and "successful completion of this probationary period was subject to satisfactory performance on [his] part". The letter confirmed that the Employer was not of the view that the Worker was suitable for the role. The Worker was informed that he would be paid in lieu of his one week notice period and if he had any questions to contact the Operations Manager. The Employer rejects the herein claim on the...