EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
UD976/2011
Employee - claimant MN1105/2011
against
Employer - respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. K.T. O'Mahony BL
Members: Mr. P. Casey
Ms. H. Kelleher
heard this case in Cork on 19 October 2012 and 22 January 2013 and 15 April 2013
Representation:
Claimant(s): Ms Anne McShane, Martin A. Harvey & Co, Solicitors,
Parliament House, 9/10 Georges Quay, Cork
Respondent(s): Ms. Muireann McEnery instructed by
Ms. Niamh Kelly, Peninsula Business Services (Ireland) Limited,
Unit 3, Ground Floor, Block S, East Point Business Park, Dublin 3
The determination of the Tribunal was as follows:-
This is a case of constructive dismissal and should be read in conjunction with the appeal involving the same parties ref no. te.181/12
Background
The respondent has a number of salons. The claimant commenced employment with the respondent in December 2009 in Salon H. She was recruited to the role of hair salon manager in order to allow the employer take a step back from the day to day running of the business. Her hours of work were 9.00am to 8.00pm on Thursdays and Fridays and 9.00am to 6.00pm on Saturdays. Her pay was €550.00 net per week and she was not paid commission. The claimant’s husband worked in the respondent’s barber shop, situated next door to the salon. They had four young children. The respondent called into the salon once or twice a week. The claimant had around 20 years experience in hair dressing salons and a very good reputation as a hair stylist.
Claimant’s Case
The claimant enjoyed her work and the atmosphere in the salon was good. However, this changed in or around September 2010. The salon was very busy and she was working continuously and not getting breaks or holidays. She frequently brought this to the attention of the respondent who always promised to get more staff. The claimant coped because she was only working three days a week. In September she had a booking for a wedding party of eight clients and had only one trainee to help her. She got the work done but had her first panic attack on that day and had to go home early. The claimant denied the respondent’s assertion that the salon was closed for three days in September 2010 when the respondent was on holiday and disputed the respondent’s assertion that she was out of the country at the time of the debs and grads ball. In September 2010 there was a large shortfall in her pay one week and she requested all outstanding payslips. She was paid in cash every Saturday and up to then had only received two pay slips. When she queried the shortfall the respondent initially told her to contact the employee in the other salon who dealt with wages; the respondent later informed her that the shortfall was due to an income levy. From the time of this query, staff members, who were related to the respondent, began to treat her badly and she was isolated, she had to take her lunch break on her own and was given only ten minutes to have a sandwich, comments were made about smells and on one occasion cigarette butts were put in her sandwich in the staff canteen. The claimant felt she was being discussed.
The claimant spoke to the respondent several times about work breaks. She never received breaks in respect of bank holidays. The claimant visited the Citizens Advice Centre in early December 2010. As the respondent would not return her phone calls the claimant asked the receptionist (RO) to get the respondent to sort out her lunch breaks. The claimant got advice from the National Employment Authority (NERA) about break entitlements. On 6 January 2011 the respondent came to the salon and the claimant told her she wanted to speak to her but the respondent was rushing out.
The respondent came to the salon again late in the afternoon of 8 January 2011 and called a meeting. When the claimant told her that she had four children at home and the baby minder would be leaving, the respondent told her she would not be paid if she refused to attend and that it was a disciplinary meeting When she asked to have a representative the respondent gave her a choice between two employees, one of whom was treating her badly. At that meeting the respondent was aggressive towards her and when she told the employer about the problems she was experiencing from two members of staff, both of whom were related to the respondent, she was laughed at. There was no one present whom she could trust. The respondent was very annoyed with her for having visited an agency seeking information on her employment rights.
Some days later, the claimant sought further advice from agencies, including information on bullying in the workplace from the HSA and was advised they would demand a copy of her anti-bullying policy from the respondent. When she went to the tax office (Revenue) she was informed that she had not been registered as an employee by the respondent. On the afternoon of 15 January 2011 the claimant was notified that there would be a disciplinary meeting after work. At the meeting she and the manager of another salon were told they were not doing their jobs properly. The claimant told the respondent that she was doing her job to the best of her ability and that all she wanted was pay slips and an anti-bullying policy. When she told the respondent that an officer in Revenue had informed her that she was not registered as an employee, the respondent became agitated, slammed her fist on the table, called her a ‘ f…… rat’ and told her that she was only a hair-dresser, that she (the respondent) treated her staff ‘like mushrooms … and kept them in the dark’. The respondent had not furnished her with a grievance procedure or bullying policy. Correspondence from Revenue was produced to confirm the claimant’s evidence that she had not been registered with Revenue in January 2011.
At 1.00pm the following Thursday, 21 January 2011, RO told the claimant to go home and later telephoned her at home telling her to take Friday and Saturday of that week off as leave in lieu of bank holidays. On Saturday the claimant called to the salon to collect her wages but was told they were not there. She returned the following Monday and again did not get her wages. On 28 January she wrote to the respondent giving a week’s notice that she was terminating her employment on 5 February 2011. The claimant felt she had no other option. The respondent told the claimant that she need not work her notice but she was never paid for those days either. Following the termination of her employment the claimant was unable to claim social welfare payments as no contributions had been paid in respect of her employment with the respondent.
She had been offered a salon to rent in October but had no intention of leaving the respondent as working three days per week suited her. Having received the information from Revenue on 11 January 2011 and because she could not tolerate the bullying the claimant knew that her employment would not last long. In February she found a fully furnished salon. (Copies of the claimant’s tenancy agreement were produced in evidence.) Her husband was working with her in this salon. She had previously managed a major salon franchise with a staff of thirty. Documentation from her accountant, which was produced in evidence, was not signed by the claimant because it had been faxed through to her. Her entries about her salon on Facebook were merely “to put myself out there”.
In cross-examination the claimant denied stepping down as salon manager in autumn 2010. She managed the hair dressing side and appointments were controlled by RO at the reception desk. She forcefully denied dismissing another employee (AE); AE had left the employment for personal reasons. The respondent had been in Ireland in late September 2010 for Arthur’s Day (23 September) at the time of the abovementioned debs.
The manager (ME) of the respondent’s other salon gave evidence that she found her job difficult as the salon was short staffed, she worked long hours and it was impossible to contact the respondent when she needed to discuss something. She eventually stepped down from the role of manager. She was present at the meeting on the 15 January 2011 and confirmed that the claimant raised issues about her pay, not being registered with Revenue and requested details of the anti-bullying policy. Discussions became very heated at the meeting and the respondent called the claimant a rat. ME had visited Revenue with the claimant in early January 2011 and found that she had not been registered either. After the claimant left the employment ME became more and more isolated and experienced some bullying and harassment. Her employer was fully aware of the problems she endured. She received two contracts after the claimant had left the employment, the first was backdated and ME refused to sign it, the second contract was undated. She left the employment in March 2011.
Respondent’s Case
The respondent who owned the business was also an accountant. The claimant had about 20 years experience in other salons and was known to be a very good hairdresser. She issued a contract of employment to the claimant in January 2010 and it contained a grievance procedure. (The issue as to whether the claimant was given a contract of employment was the subject of other proceedings before a rights commissioner and, on appeal, this Tribunal). Having given the claimant a contract of employment, the respondent expected her to take control of the salon. The respondent was on a family holiday in Turkey in September 2010. The local debs and grads were on and the salon was fully booked on the Monday but AE, who was rostered for work that day, did not show for work; the claimant was unable to get cover for the salon and did not oblige and come in herself. The claimant was annoyed with AE as she felt she had not been sick and AE left. The salon remained closed up to and including the Wednesday. The respondent had to take four flights home from Turkey.
The claimant’s main request had been for help on the floor. After the wedding incident in September 2010 the respondent employed two stylists. The claimant had four children at home and wanted to concentrate on her clients so the respondent acceded to her request to step down as manager and RO took over as manager. The claimant’s pay remained the same as she was not willing to take a pay cut. The claimant had not made any allegations about being bullied by staff in late 2010. Up until October the claimant was manager and could roster her own breaks.
In November 2010, the respondent met the claimant and RO to discuss a number of issues. The claimant did not raise any issue about bullying or any other grievance. When there was a heavy snowfall on 18 December the respondent and her family accommodated members of staff including the claimant and her husband, who did not love locally.
At a meeting on Saturday, 8 January 2011 the respondent informed the staff of Salon H about the government levy and gave them pay slips. The claimant queried the deduction that had been made from her pay for week number 51. The claimant was aggressive and roaring and she stormed out of the room in the full view of other staff. The respondent had never been spoken to in such a manner. The claimant returned some minutes later with documentation and wanted to speak to someone. The respondent ‘was petrified’ and did not want to go into the room on her own with the claimant. The claimant said that she had four children at home and knew her rights and waived a document at her. The respondent stopped the meeting and said that she would speak to her the following Thursday (the claimant’s next day at work).
At the follow-up disciplinary meeting on 15 January 2011 both the claimant and the respondent were accompanied. When she asked the claimant who bullied her she replied that she (the respondent) had bullied her at the previous meeting on 8 January. The respondent denied that she had ever been told that two employees were bullying the claimant. She further denied that her anti-bullying policy only became operative after the claimant’s resignation.
On 28 January the claimant gave a week’s notice that she was terminating her employment but she did not make any reference to bullying in her letter of resignation. By letter of response dated 31 January 2011 the respondent indicated that she accepted the claimant’s resignation but added that if she wished to reconsider her resignation she would arrange a grievance hearing where she could raise the grievances which she had verbally outlined to her prior to her resignation. A further but undated letter from the respondent to the claimant was introduced into evidence, outlining several allegations against her and inviting her to an investigation meeting on 8 February 2011. (The claimant denied receiving the latter letter.)
The respondent maintained that the claimant had been deep in the process of opening her own salon and had canvassed the respondent’s customers. It would take several months to set up a salon. It takes time to find a premises and registering for V.A.T. involves some six to eight weeks. One could not just order from a supplier. A process had to be followed. However, the claimant had been taking appointments from mid-January 2011.
The respondent’s position was that she had included the claimant’s name on the P35 sent to Revenue for 2009 and 2010. A letter from the P35 Amendments Section to the respondent confirms that the claimant’s pay details for 2009 and 2010 were first inputted in May 2012. The Revenue did not audit the respondent. All employees, including the claimant (albeit without her PPS number) were on the respondent’s P3 .for the year 2010. The claimant had not been paid for her last week because of overpayment of annual leave.
Giving evidence on behalf of the respondent RO told the Tribunal that she commenced employment with the respondent as receptionist and salon co-ordinator in June 2010 and assumed the position of manager in October 2010. She worked the same hours as the claimant, three days each week. She recalled the day in September 2010 when the claimant was very busy and under pressure with a wedding party but a girl from the other salon came to help and when the clients had been dealt with the claimant went home early. She always tried to ensure stylists including the claimant got regular breaks. The claimant would take extra appointments which was the reason for the short breaks on occasions. The claimant was always complaining. Shortly after assuming the role of manager staff came to her with complaints about the claimant and she asked them to put them to writing for the respondent. These complaints were produced in evidence. The claimant’s husband who ran the business next door would regularly call in and she felt intimidated by him and the claimant.
Another employee, who worked Wednesday to Saturday each week, gave evidence that she did not have a great relationship with the claimant. The claimant told clients that she was not fully qualified which upset her greatly. On 12 November 2010 RO advised her to put her complaints about the claimant in writing for the respondent. She attended a meeting in early January 2011, which was convened by the respondent to discuss the introduction of a new income levy. The claimant requested time to consider what was being discussed and later returned with papers concerning her employment rights. The meeting reconvened and the she was present as a witness for the claimant. The respondent proposed a further meeting on 13 January 2011 to further address the issues raised.
Determination
In a constructive dismissal case the conduct of the employer and the reasonableness of employee’s decision to terminate her employment in response to that conduct are the relevant considerations for the Tribunal.
There was a major conflict of evidence on the core issues in this case. Correspondence from Revenue’s Joint Investigation Unit dated 28 February 2011 & 10 January 2013 respectively confirm that the claimant’s employment with the respondent had not been registered with Revenue prior to her call to the tax office on 11 January 2011 (shortly prior to her resignation) and that her employment was first registered on Revenue’s system on 3 March 2011. In Brannigan v Collins UD28/1977 it was held that failure to pay tax and PRSI was sufficient to justify constructive dismissal.
In September 2010 and thereafter the claimant experienced a number of problems with her employment. While the respondent had neither grievance nor bullying procedures in place (as found by the Tribunal in case ref no. te.181/12) the claimant had informally raised some of these issues in passing with the respondent to little or no effect. The claimant raised her complaints about the bullying behaviour of some of the staff towards her at the meeting on 8 January but these were ignored. At the reconvened disciplinary meeting on 15 January 2011, when the claimant raised the respondent’s failure to have her registered as an employee with Revenue, the respondent did not deny this fact nor seek to give any explanation or excuse for this failure or reassure the claimant that her tax matters would be dealt with but rather became abusive to the claimant and resorted to name-calling. This conduct of the respondent as well as the treatment of the claimant subsequent to this fell well below the standard of behaviour expected of a reasonable employer.
The Tribunal is satisfied that the respondent had sufficient opportunity to deal with the claimant’s issues but failed to so do. It is further satisfied that giventhe breakdown in the relationship and the opportunities foregone by the respondent it was not unreasonable of the claimant not to avail of the opportunity to withdraw her resignation and submit to a grievance procedure.
For the above reasons the Tribunal is satisfied that the claimant, in terminating her contract of employment, in response to the respondent’s conduct, had acted reasonably. The claim under the Unfair Dismissals Acts, 1977 to 2007 succeeds. Compensation is the appropriate remedy.
Accepting the respondent’s evidence that the business of Salon H was taken over in May 2011 the European Communities (Protection of Employees on Transfer of Undertakings) Regulations, 2003 apply and had the claimant been in the employment at the time of the transfer of the business her employment would have transferred to the new proprietor of the business. Accordingly, the Tribunal can award compensation in respect of loss occurring after the date of the transfer. The Tribunal deems it just and equitable in all the circumstances of the case, to award the claimant compensation in the amount of €20,000.00 (twenty thousand euro).
As this is a constructive dismissal case the claimant is not entitled to compensation under the Minimum Notice and Terms of Employment Acts, 1973 to 2005 and that claim is dismissed.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)