30 Nov Fair Dismissal Procedures
In this recently published decision, yet again an employer fell short on how it implemented a dismissal of an employee, resulting in an award of €6,000 being recommended to an employee with less than 5 months service, despite the employee breaching a clause that prevented her working in any manner outside of her employment that could be prejudicial to her employer. (Ref ADJ-00028843).
The award was made under the Industrial Relations Acts, which is available as a form of redress when employees don’t have 12 months service. An award of €600 was also made for failing to provide required rest periods under the Organisation of Working Time Act, 1997 on four specific dates, but a claim of discrimination on grounds of race, that the employee was not treated the same as other white colleagues who were not dismissed for similar misconduct was not upheld.
With regard to the award under the IR legislation, the employee was dismissed for advertising online fitness classes online on 07.01.2020. The employee started work that day at 2:00 pm and was called into the Managers office and was told she was in breach of her contract which prohibited her from engaging in a competing business to that of her employer. The employee offered to take down the post but was told she was still in breach of her contract and was dismissed regardless, with immediate effect.
The employee argued that she was entitled to fair procedures even during her probationary period, and in particular relied on the recent Court of Appeal judgement, Donal O’Donovan v Over C technology Ltd 2021 IECA 37, which confirmed that the principles of natural justice apply to cases involving dismissal for misconduct during the probationary period, but not termination on other grounds.
The Adjudication Officer agreed and said it was clear that the employee had been dismissed on a summary basis for misconduct in the form of posting an advertisement for online classes, but the Company did not comply with SI 146 of 2000, The Code of Practice on Grievance & Disciplinary Procedures. The Adjudication Officer highlighted that the employee had not been allowed to answer the allegations, was not afforded an investigation or for the opportunity to be represented. The Adjudication Officer also commented that the manner of the dismissal was humiliating.
The Adjudication Officer therefore recommended that the appropriate compensation should be €6,000 for the unfair and unreasonable dismissal, but did also note that the employee had contributed to her dismissal by not consulting with her employer prior to posting the classes online.
Employers often think that probationary period dismissals can be implemented quickly and without repercussions, but this case clearly indicates otherwise.
It is also noteworthy that the employee had breached her contract of employment by advertising her own classes, and if the employer had either adopted a different procedure or had a probationary period clause that allowed a dismissal without reason, they may have avoided the costly award made against them, notwithstanding that the enforcement of this award, is not the same as would be available under the Unfair Dismissals Acts.