EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Aoife Hooper, UD834/2013
against
Teresa Philpot & Des Malone T/A Kudos Hairdressing,
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. P. McGrath BL
Members: Mr. B. Kealy
Mr. C. Ryan
heard this claim in Dublin on 9 April 2014
Representation:
_______________
Claimant(s):
Mr Barry Kenny, Kenny Sullivan, Solicitors,
Market Court, Town Hall, Bray, Co. Wicklow
Respondent(s):
No legal representation at the hearing
The determination of the Tribunal was as follows:-
The Tribunal has carefully considered the evidence adduced. The claimant is an experienced and qualified hairdresser who worked in the respondent’s salon for eight years having commenced on a full-time basis in March of 2005.
The claimant brings this claim pursuant to the Unfair Dismissals Acts arising out of the termination of her employment which said termination was notified to the claimant, in writing, on 20 March 2013.
Both the claimant and the respondent gave oral evidence and each party was provided with the opportunity to cross-examine and test the evidence of the other. In a final analysis there was little common ground between the parties as to what exactly had passed between in the months leading up to the termination. It is accepted that there was a small amount of supporting evidence and the Tribunal has had to have some regard to same in circumstances where the oral accounts are being flatly contradicted, one by the other.
It is common case that the claimant was an excellent and valued employee. Initially the claimant worked on a full-time basis – meaning five days a week. In time, the claimant started a family and she and her employer agreed that she would work on a part-time basis and this commenced a period of time wherein the claimant would be working for three days a week.
It is noted that the claimant did not always have a contract of employment and that the workplace was the subject of a N.E.R.A. inspection at a date unknown but before 24 June 2008. On foot of that inspection the claimant was issued with and signed up to a contract of employment which confirmed her permanent three day a week status with the employer business.
In the middle of 2011 the claimant’s father became ill which had a knock-on effect on the claimant’s life insofar as the claimant’s mother was no longer as readily available to look after her children as she had been heretofore.
The claimant explained the situation to her employer and they agreed that for the duration of the illness the claimant could reduce her hours to one-and-a-half days per week.
This arrangement pertained for well over a year but, at the end of 2012, the respondent employer asked the claimant about returning to her contracted three-day week. At this time the respondent was aware of the fact that the business was going through a rough patch economically and the respondent had to make some difficult financial decisions to ensure the business would survive the downturn. So, for example, the respondent had to let go her most recent recruit (E.R.), a full-time hairdresser, as E.R.’s salary could no longer be sustained by the business. In making this decision the respondent says she called upon her two longer-serving members of staff to take up some of the slack created and work extra days.
By December 2012 the Tribunal accepts that the respondent did have conversations with the claimant about the need to have her return to the contracted three-day week. It is also clear to the Tribunal that the claimant was very reluctant to change her working hours and that, by this time, the issue of not being able to afford and/or not wanting to pay for childcare was the primary reason why the claimant could or could not return to the three-day week.
On 2 January 2013 the respondent business formally notified the claimant of the need to return to a three-day week and the claimant was due to commence same on or about 21 January 2013. There is nothing to indicate what conversations were being had inter partes at this time and what efforts were being made to reach a compromise. The claimant gave no evidence of trying to secure child-minding help at this time. The Tribunal notes a letter dated April 2013 does suggest the claimant’s neighbour was asked to do child-minding in April of 2013 – a date well beyond the termination of employment.
In March 2013, some six weeks after the claimant had been asked to return to her contracted three-day week, the claimant notified the employer in writing that she would not be in a position to work three days due to child-care costs.
Relations between the claimant and the respondent were not good at this time. A combination of doctor’s notes and holidays due kept the claimant from the workplace for a number of weeks.
Then, on 20 March 2013, the respondent wrote to the claimant terminating the contract of employment citing – “…we now really needed you to return to work for the three days as agreed in your contract.”
On balance, the Tribunal finds that there was nothing unfair about the termination of this employment. The respondent behaved reasonably at every juncture and was met with a wall of indifference from the claimant who knew or ought reasonably be expected to have known that her actions (or, in this case, inaction) would give rise to the termination of her employment. The claimant compromised her own position.
The claim under the Unfair Dismissals Acts, 1977 to 2007, fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)