EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
UD1483/2012
EMPLOYEE - claimant MN842/2012
against
EMPLOYER - respondent
under
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. P. O'Leary B L
Members: Mr. B. Kealy
Ms M. Maher
heard this claim at Dublin on 3rd January 2014
Representation:
____________
Claimant(s: Mr. Dermot Sheehan BL C/O
Mr Roddy Tyrrell, Tyrrell Solicitors, 56 Percy Lane, Dublin 4
Respondent(s): Mr Aidan Mc Grath, DAS, 12 Duke Lane, Dublin 2
The determination of the Tribunal was as follows:-
Dismissal was in dispute in this case and therefore the claimant commenced her evidence first.
Claimant’s Case
The claimant commenced employment with the respondent on the 16 March 2011 as a trainee hairdresser. The claimant did not receive conditions and terms of employment. Her employment was uneventful until Friday the 10th of August 2012. On the 9th August 2012 one of her colleagues A asked her if she would like to switch days. It was agreed that she would work Friday instead of Saturday. The respondent HS was on holidays in August 2012 and he contacted the salon on Friday 10 of August to establish who was working that day. He spoke to Y and asked her why the claimant was in work. AG and LK were in charge when HS was not there. The respondent shouted at her on the telephone and she hung up the phone. HS told her to take a week off.
The claimant had a meeting with HS on the following Wednesday. HS brought her to the shop floor and she requested that they speak in private. HS told her that she was a liar and he wanted the girls to witness what she had to say. HS told her that she should not have Saturday off. The claimant told him that she thought she was suspended and she wanted to establish the reason for this. HS would not tell her that he had let her go. He then went to the office and produced a sheet of paper. He asked her to sign a note that she was not working her weeks’ notice and she did not sign anything. HS told her to leave and that she was not getting wages that she was owed from the previous week. She had no more contact with the respondent.
He sent her a text message that he would send her wages and P45 with her sister JM who worked there. He indicated in the text that he would give her a reference. She did not complete her hairdressing qualifications. Her sister JM was subsequently made redundant. She looked for jobs after this and she now works one day a week for which she receives €75 and she is in receipt of social welfare. She never intended to give up her job. She wanted to establish why she was suspended. She was never told about a disciplinary procedure.
JM told the Tribunal that she commenced employment after the claimant. She was not in work on Thursday but she was in work on Friday. A asked the claimant to swap days. On Friday Y answered the telephone and HS (the respondent) asked why the claimant was in work. He asked to speak to the claimant and the claimant then left the salon. The reason the claimant was in work that day was that she had asked to swop her day. The claimant did not call HS an ass-h… She was made redundant six months later and she was not surprised. She obtained alternative employment two weeks later. Some weeks later the claimant sought employment in the salon where JM worked and it could not employ her as she was not fully qualified.
Respondent’s Case
The proprietor of the Respondent company HS told that Tribunal that he established the respondent in 1994 as a private business. Ninety nine per cent of his clientele were his regular customers. It took four years to become a qualified hairdresser. The first year a trainee looked after the salon, cleaned and maintained equipment and washed and dried hair. The second year a trainee did colour and blow dried hair. The third year a trainee did colour and highlights. In the fourth year a trainee cut hair and developed in all aspects and cut hair to a certain level. The claimant was nearing the end of her apprenticeship and it was his intention to let her go once this was completed. He issued the claimant with a certificate of completion.
If a member of staff wanted to take a Saturday off they could take it in lieu of another day. He was very surprised that the claimant was in work on Friday. He works six days a week fifty weeks of the year. He normally did not make calls to the respondent while he was on holidays. Y texted him and asked him if he had organised models for the salon. She requested that he telephone her. He telephoned Y and gave her the names of models. He asked her who was in work and who was supposed to be off and she replied the claimant. He then asked the claimant why she was in work on Friday. The claimant told him that A asked her to come to work. The claimant told him that she was very busy and she told him that a customer TF asked for her. TF was his neighbour and she never asked the claimant to do her hair.
He knew that the claimant wanted to have Saturday off and that she was chancing her arm. He told the claimant to go home and to return on Saturday. The claimant told him that he could stick his job up his h…. The claimant put down the telephone. He asked to speak to the claimant again and he told her that that she could not change her hours of work when she pleased. His understanding was that the claimant was to return to work on Saturday. He did not form a view about ending the claimant’s employment. He did not mention suspension to the claimant. He asked Y to tell the claimant to come in for a meeting. The claimant came in on Tuesday morning and he was very busy. He arranged the meeting for Tuesday afternoon and the claimant did not attend. He rearranged the meeting for Wednesday. On Wednesday the claimant came in and at that point he did not feel it appropriate for the two of them to be alone.
He told the claimant that she was abusive and he wanted an apology from her. He told her if she wanted some time off she was welcome to it. Saturday was the only day the salon had walk in customers. He told the claimant that she must finish her training. He told her he would not accept that behaviour in the salon. The claimant would not apologise and she requested her P45. He did not want the claimant to end her employment. A P45 was issued on his accountant’s instructions.
In cross examination he stated that there was no one in charge when he was not in the salon. He did not expect the claimant to be in the salon when he telephoned Y. The claimant was caught off guard and she did not know what to say. He had no reason to dismiss the claimant. He was happy for the claimant to return to work. The claimant did not want to return to work and she requested her P45. A situation like this had never occurred previously. She had various requests from the claimant for her P45 The claimant’s boyfriend telephoned him in a very threatening manner. All employees were given a letter regarding redundancy. The claimant was well able to cut hair.
AG told the Tribunal that she was senior stylist with the respondent. The claimant asked her on Thursday if she could swop days and there was no problem with this. There was no one in charge when the respondent was absent. She expected to see the claimant on Friday. She recalled the claimant saying that the respondent shouted at her. She was not certain of this as she was busy. She recalled that the claimant was shouting on the telephone but she did not know what the claimant said to HS. The claimant did not mention anything to her after the conversation.
LK told the Tribunal that she worked as a receptionist but she did not cut hair. Before HS went on holidays he told employees that if the salon was quiet that some employees could take an extra day off. She did not work Fridays. She had no objection to the claimant taking a day off as long as there were enough employees.
WK told the Tribunal that the claimant did not ask her to swop days. She was in work when she heard a telephone conversation between the claimant and HS. She heard the end of the conversation and it sounded like an argument. The claimant told HS to “shove your job up your h…”. At that stage WK walked out. H telephoned again and the employees did not want to answer the telephone. H requested to speak to the claimant. The claimant did not want to talk to him. WK did not tell the claimant that she was suspended, she told her that she was to go home. The claimant asked her about suspension and she told the claimant that the word suspension was not used. The claimant told her that she was lying. The claimant’s interpretation was that she was suspended. The witness knew something was going on and she heard words being said. On Wednesday she observed something being signed. She could not ignore what she heard and at the end of the day you have to look after yourself.
Determination
In all the circumstances the Tribunal prefers the evidence of the claimant but the Tribunal deemed that the claimant contributed to her dismissal and also must consider that her apprenticeship was coming to an end and therefore awards her the sum of €1,000.00 under the Unfair Dismissals Acts, 1977 to 2007
The claimant’s employment ended without notice and she is entitled to compensation of €393.40 under the Minimum Notice and Terms of Employment Acts, 1973 to 2005.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)