Labour Court Database __________________________________________________________________________________ File Number: CD90239 Case Number: LCR12951 Section / Act: S20(1) Parties: BROWN THOMAS & COMPANY LIMITED - and - IRISH DISTRIBUTIVE AND ADMINISTRATIVE TRADE UNION |
Claim by the Union on behalf of a worker concerning an alleged unfair dismissal.
Recommendation:
6. The Court regards the circumstances in which Cosmetic
Consultants have been recruited to serve in Brown Thomas, without
any clear definition of their terms of employment or of their
employee-employer relationship and without any letter of
appointment with serious concern. The recruitment arrangements
that have been operated fall far short of what is acceptable in
terms of employee-employer relationships. The Court notes the
commitment of both Brown Thomas and Harwood Brothers to
regularising the position for the future so that the employer will
be clearly defined and the recruitment of Cosmetic Consultants
will be arranged so as to leave no doubt as to their terms of
appointment and their employee-employer relationship.
Having regard to the submissions made to the Court, the Court are
satisfied that Brown Thomas should be regarded as the worker's
employer. The Court recommends that she be paid #2,000
compensation in respect of the circumstances of her dismissal. It
is for Brown Thomas and Harwood Brothers to reach an appropriate
understanding in regard to sharing the responsibility for the
payment by Brown Thomas of the compensation recommended.
Division: MrMcGrath Mr Brennan Ms Ni Mhurchu
Text of Document__________________________________________________________________
CD90239 RECOMMENDATION NO. LCR12951
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 20(1)
PARTIES: BROWN THOMAS & COMPANY LIMITED
(REPRESENTED BY THE FEDERATION OF IRISH EMPLOYERS)
HARWOOD BROTHERS LIMITED
(REPRESENTED BY SMITHWICK AND CO)
AND
IRISH DISTRIBUTIVE AND ADMINISTRATIVE TRADE UNION
SUBJECT:
1. Claim by the Union on behalf of a worker concerning an alleged
unfair dismissal.
BACKGROUND:
2. The worker concerned was employed as a Chanel cosmetic
consultant in the Brown Thomas store with effect from 4th April,
1989. On 5th October, 1989 Harwood Brothers sent a letter to the
worker stating that they, in conjunction with Brown Thomas, were
giving her two weeks notice of the termination of her employment.
This notice was withdrawn following a meeting with the Union. By
letter of 14th February, 1990 Harwood Brothers gave the worker one
week's notice of termination of her employment. Following this,
talks took place between Harwood Brothers and the Union and the
worker was made an offer of #800 which was rejected. On 12th
April, 1990 the Union referred the matter to the Rights
Commissioner's Service for investigation and recommendation.
However, on 26th April, 1990 Brown Thomas wrote to the Rights
Commissioner Service stating that it did not employ the worker and
that her contract of employment was with Harwood Brothers. On the
30th April, 1990 Harwood Brothers wrote to the Rights
Commissioner's Service stating that they were not agreeable to a
Rights Commissioner investigation, but could not reply on behalf
of Brown Thomas who were the worker's registered employers. On
18th May, 1990 the Union referred the matter to the Labour Court
under Section 20(1) of the Industrial Relations Act, 1969. The
Union agreed to be bound by the decision of the Court. The Court
investigated the dispute on 28th June, 1990.
UNION'S ARGUMENTS:
3. 1. On 14th February, 1990 the worker was accompanied by a
representative of Harwood Brothers to afternoon coffee.
During the course of this meeting normal business matters
concerning the Chanel counter at Brown Thomas were discussed.
After the meeting the worker was called to the information
desk where she was handed a letter informing her of her
dismissal by Harwood Brothers. The worker was shocked by
this, particularly in view of the fact that no indication of
her dismissal had been made at the meeting that afternoon.
2. In October, 1989 the worker was given two weeks notice by
Harwood Brothers. On that occasion the notice was withdrawn
following a protest by the worker's colleagues. However, it
was known that it was proposed to replace the worker with
somebody else. During the course of meetings in October, 1989
and March, 1990 a representative of Harwood Brothers made
great issue of the worker's sales figures and the fact that
she was not reaching her targets. However, the targets set
for the worker were quite unrealistic. At Christmas the
worker was given the same sales target as Estee Lauder,
whereas Estee Lauder had three people to achieve this target,
while this worker was expected to make the target on her own.
3. In the worker's previous job, which she left to take up
employment in Brown Thomas, she won a prize from Nina Ricci
for being their best seller in Ireland. When the worker was
sent on a training course with Chanel in London she came first
in her class. In addition, following her dismissal in Brown
Thomas the worker got to a final interview with Aer Lingus and
no doubt her unfortunate experience in Brown Thomas went
against her in this case. Neither Brown Thomas nor Harwood
Brothers can be excused for the manner in which they treated
this worker. There is no question of a working relationship
between the parties and the worker should therefore be paid
two years salary for her loss of employment.
BROWN THOMAS' ARGUMENTS:
4. 1. Approximately eighteen cosmetic consultants are based in
the store, in all cases they are employed by the cosmetic
companies and not by Brown Thomas. In the majority of cases
and purely as an administrative convenience, this Company pays
the weekly salary of these consultants and is reimbursed in
full or in part by the cosmetic company. All matters in
relation to the workers' conditions of employment are dealt
with by the relevant cosmetic company. In addition, these
workers do not participate in this company's pension scheme,
operate under a separate commission structure to employees of
this Company and are not mobile/transferable within the store
as are all workers in this Company. In this case, the Company
paid 50% of the worker's salary.
4. 2. The vacancy for this position was advertised by Harwood
Brothers. Harwood Brothers interviewed the applicants and
the worker concerned was introduced to this Company as the
person suitable for the position. At no stage did this
Company discuss any matters connected with the contract of
employment with the worker concerned. In August, 1989 Harwood
Brothers expressed disappointment to this Company about the
performance of the Chanel account and this Company also
expressed reservations about the worker's interest and
commitment to the position. On 3rd October, 1989 Harwood
Brothers advised this Company that it intended terminating
the worker's employment. This Company reiterated the fact
that the worker concerned was an employee of Harwood Brothers
and therefore it would have no involvement in matters
connected with her employment or the termination of her
employment. Again in February, 1990 Harwood Brothers advised
this Company of its intention to terminate the worker's
employment as she had failed to meet the targets set. The
worker was an employee of Harwood Brothers. This Company was
not involved in her recruitment or her dismissal.
HARWOOD BROTHERS' ARGUMENTS:
5. 1. The worker concerned was employed on 4th April, 1989 on a
trial and probationary basis, no letter of appointment was
ever given. The worker's duties included: building up the
Chanel account in Brown Thomas with a particular emphasis on
skincare; meeting sales targets as submitted; keeping a
register of Chanel customers, and; maintaining the Chanel
counter and her appearance in accordance with the Chanel image
and standard. After three months the worker was informed by
this Company on its behalf and on behalf of Brown Thomas, that
they were dissatisfied with her performance. During the
following three months the worker was aware that she was still
on a probationary period, as she regularly enquired as to
whether or not she was being made permanent.
2. In October, 1989 following a meeting with a representative
of this Company when the worker was advised that her services
were no longer required as neither Brown Thomas nor this
Company were satisfied with her performance or commitment and
that she was not to be employed on a permanent basis, the
worker was sent a letter of termination. The worker was
reinstated strictly on the basis of an extension of her
probationary period and that her work would improve and that
she would reach her sales targets for November and December.
The worker did not achieve the targets and in February, 1990
she was again notified that she had not fulfilled the
obligation required of her during her probationary period and
her employment was terminated.
5. 3. The worker's sales figures were not satisfactory and
complaints were received from the management of Brown Thomas
on several occasions. Skin care sales figures were not
satisfactory and indeed were decreasing. There was also no
apparent customer registration and complaints were received
from Chanel. The worker showed no enthusiasm for her work and
actually showed a lack of commitment. In addition, Brown
Thomas were dissatisfied and advised this Company that the
worker should not be made permanent. This was an intolerable
situation for this Company which has to meet certain
obligations in order to maintain the Chanel agency and the
Brown Thomas account.
RECOMMENDATION:
6. The Court regards the circumstances in which Cosmetic
Consultants have been recruited to serve in Brown Thomas, without
any clear definition of their terms of employment or of their
employee-employer relationship and without any letter of
appointment with serious concern. The recruitment arrangements
that have been operated fall far short of what is acceptable in
terms of employee-employer relationships. The Court notes the
commitment of both Brown Thomas and Harwood Brothers to
regularising the position for the future so that the employer will
be clearly defined and the recruitment of Cosmetic Consultants
will be arranged so as to leave no doubt as to their terms of
appointment and their employee-employer relationship.
Having regard to the submissions made to the Court, the Court are
satisfied that Brown Thomas should be regarded as the worker's
employer. The Court recommends that she be paid #2,000
compensation in respect of the circumstances of her dismissal. It
is for Brown Thomas and Harwood Brothers to reach an appropriate
understanding in regard to sharing the responsibility for the
payment by Brown Thomas of the compensation recommended.
~
Signed on behalf of the Labour Court,
Tom McGrath
___19th___July,___1990. ___________________
U. M. / M. F. Deputy Chairman