About this case:

• Citation:
  ADJ-00015765
• Judgment:
  External link
• Court:
  Workplace Relations Commission

The employer sought to rely on a “probationary clause” in the contract of employment said to have been issued after the manager had transferred to a new supermarket; however, Adjudication Officer Marie Flynn did not accept that this transfer broke the continuity of service which afforded the complainant protection under the Unfair Dismissals Acts. 

Background

The complainant was employed by the respondent as a store manager in a supermarket since 2014. In 2016,  the respondent acquired a second supermarket, and in November 2016, the complainant was asked to work in the second supermarket during stage two of the transfer of undertakings.

The respondent asserted that when the transfer of undertakings was completed in April 2017, the complainant took the position of store manager in the second supermarket as a new role with a new employer. The complainant disputed this claim, asserting that he did exactly the same work and reported to the same people in both supermarkets.

In January 2018, the complainant was dismissed from his employment. He submitted that when he arrived at work on 23 January 2018, he was “ambushed by two company directors and was told that things were not working out and that he was being dismissed immediately”. He said that he was “so shocked he didn’t even ask why” and that it was only later that he realised the respondent was “denying him his entitlement to have his employment regarded as continuous” between the two supermarkets, and was treating him as if he only started work in April 2017.

Continuity of service

Considering the complainant’s claim for damages under the Unfair Dismissals Acts 1977-2015, Adjudication Officer Flynn said the first question was whether he had sufficient service to come within the scope of the legislation.

Section 2(1)(a) of the Unfair Dismissals Act 1977 provides that the Act does not apply to “an employee (other than a person referred to in section 4 of this Act) who is dismissed, who, at the date of his dismissal, had less than one year’s continuous service with the employer who dismissed him…”

Also relevant was the First Schedule to the Minimum Notice and Terms of Employment Act 1973, which provides:

“1. The service of an employee in his employment shall be deemed to be continuous unless that service is terminated by:

(a) the dismissal of the employee by his employer, or

(b) the employee voluntarily leaving his employment.”

Adjudication Officer Flynn said the respondent was unable to produce any documentary evidence in support of its assertion that the complainant gave notice in relation to his role in the first supermarket when his employer changed in April 2017. Nor did the respondent adduce evidence to suggest that the complainant was dismissed from his previous employment in April 2017 prior to moving to a new employer.

In the absence of persuasive evidence from the Respondent, Adjudication Officer Flynn accepted the complainant’s evidence that he was not dismissed and did not voluntarily leave his employment with his previous employer. Furthermore, Adjudication Officer Flynn was satisfied that “both before and after the identity of his employer changed, he did exactly the same work and reported to exactly the same people”.

Accordingly, Adjudication Officer Flynn found that the complainant had sufficient service enabling him to avail of the provisions of the Unfair Dismissals Acts.

Unfair dismissal

Considering whether the dismissal was unfair, Adjudication Officer Flynn considered section 6 of the Unfair Dismissals Act 1977, which provides that a dismissal will not be regarded as unfair if it results from the:

• capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do;
• conduct of the employee;
• redundancy of the employee;
• employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

The burden of proof to show that the dismissal was not unfair is placed firmly on the employer.

Adjudication Officer Flynn then considered the procedural issues which must be followed before the decision to dismiss is taken, stating that such procedures are necessary to ensure fairness and natural justice. In this regard, the relevant statutory instrument is the Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order 2000 (S.I. No. 146/2000), which outlines stages in the discipline and grievance process.

In the present case, the complainant was not provided with a dismissal letter until he sought it from the respondent (and the same did not contain a copy of the Respondent’s Disciplinary Appeals Procedure), he was not provided with details of any performance issue, and he was not aware that he was in danger of losing his job. Adjudication Officer Flynn said that the Complainant “was not afforded any of the procedures set out under the Code of Practice on Grievance and Disciplinary Procedures”.

Adjudication Officer Flynn said it appeared to be the case that the respondent relied on a probationary clause in the complainant’s contract which did not appear to have ever been issued to the complainant. Adjudication Officer Flynn said that, if she had not found that the complainant’s employment was continuous and that he was not on probation, the respondent was mistaken in its belief that employees on probation are not entitled to fair procedures.

Having regard to all the circumstances, Adjudication Officer Flynn found that the dismissal of the complainant was substantively and procedurally unfair, and the sanction of dismissal was disproportionate. She added that the Respondent “showed no regard to the principles of fair procedures and natural justice”.

Having made out his case, the complainant was awarded €19,000.