UD1598/2012

EMPLOYMENT APPEALS TRIBUNAL

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Mr P. O’Leary BL

Members:     Mr F. Moloney

                     Mr M. O’Reilly

heard this claim at Dublin on 30 December 2013

Representation:

Appellant:

                    Mr Conor Bowman BL instructed by Mr Mark McCartan,

         McCartan & Burke Solicitors, Iceland House,

         Arran Court, Smithfield, Dublin 7  

Respondent:

         Mr Noel Reilly, Gaffney Halligan & Co. Solicitors,

         Artane Roundabout, Malahide Road, Dublin 5

The determination of the Tribunal was as follows:

Dismissal as a fact being in dispute it fell to the claimant to prove that she had been dismissed.

The claimant commenced employment as a trainee hairdresser with the respondent’s then unisex hairdressing salon in January 2011. It was the claimant’s position that she had previously worked for one or two weeks in another hairdressing establishment. The respondent’s position was that the claimant purported to have some eight months’ training as a hairdresser at the time she joined the respondent.

There is a further dispute between the parties as to whether the claimant was furnished with a contract of employment although it was common case that the claimant was furnished with an employee handbook. The handbook provides for a probationary period of three months which can be extended following consultation with an employee. The contract again provides for a three month probationary period but sets an upper limit of eleven months on the probationary period.

It was the respondent’s position that at three monthly probation meetings with the claimant the managing director expressed dissatisfaction with her performance. The claimant’s position was that no regular probation meetings were held and she was never informed of dissatisfaction with her progress as a trainee hairdresser.

From December 2011 the claimant was expected to perform ten blow dries and apply four tints per week. The claimant’s position was that in May 2012 the managing director (MD) of the respondent told her that she needed to make sales to the value of €250-00 per week for four weeks or she would be let go. The respondent’s position was that this was the approximate value of the target that the claimant had been set, and not achieved, since December 2011.

On Friday 15 June 2012 MD met the claimant in the presence of the ladies salon manager (SM) and it was common case that at this meeting MD told the claimant that he felt “her heart was not in it” and that she was to go on to a two-day week. The claimant’s position was that MD told her that she was useless at her job and that someone else had chosen her career for her. The two-day week was for two weeks prior to her holidays and she was not expected to return after the holidays. The respondent’s position was that the two-day week was a temporary situation until the end of July in order to help the claimant to find her feet. In the event the claimant submitted her resignation in a text sent to SM.

Determination:

It is perfectly normal for a trainee hairdresser to be subject to a probationary period and the disputed contract provides for that period to be for a maximum of eleven months. The respondent was not able to produce any notes of any meetings between the claimant and various members of management at any time during her employment. The respondent’s position was that these meetings were regularly held at three monthly intervals; the claimant’s position was that such formal meetings did not take place. The Tribunal whilst not being satisfied that these meetings were held as regularly as contended for by the respondent does accept that, on occasion, the respondent’s dissatisfaction with her performance was brought to the claimant’s attention. If the respondent had issues relating to probation it was open to them to have invoked that term of the contract within the eleven months provided for such action. MD who told the claimant on 15 June 2012 that “her heart was not in it” told the Tribunal that he proposed to place the claimant on a two-day week in order to help the claimant and that it was not meant to be disciplinary in nature. In common with many other contracts of employment the claimant’s contract makes it very clear that lay-off or short-term work is if business conditions necessitate. The Tribunal does not accept the respondent’s argument that the aim of the two-day week was to help the claimant. The Tribunal is satisfied that the imposition of the two-day week was being used as a means of effecting the termination of the claimant’s employment. Accordingly, the Tribunal is satisfied that the claimant was dismissed. As this was a dismissal without any or fair procedure it must follow that the dismissal was unfair. The Tribunal awards €10,000-00 under the Unfair Dismissals Acts, 1977 to 2007.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)