EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: ` CASE NO.
Alana Miley – claimant UD1498/2012
against
Up To My Eyes – respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr R. Maguire, B.L.
Members: Mr. J. O'Neill
Mr T. Brady
heard this claim at Dublin on 8th January 2014 and 20th June 2014
Representation:
Claimant(s): Mr. Owen Donnelly BL instructed by:
Mr Andrew Vallely, Partners At Law, Solicitors, 8 Adelaide Street,
Dun Laoghaire, Co Dublin
Respondent(s): Mr Mark McParland, Mark McParland, Solicitors, No 6 Argyle Square,
Morehampton Road, Donnybrook, Dublin 4
The determination of the Tribunal was as follows:-
Claimant’s commencement date with the respondent was in dispute in this case.
Claimant’s Case
The claimant told the Tribunal that she first commenced work with the respondent in October 2010 when she undertook a one day course on eyelash extensions. The owner of the salon E, offered her a job and she commenced work in reception in the first week of May 2011. She received €350.00 per week and she was paid in cash on Fridays. She assumed she was an employee and she did not receive a contract of employment. She undertook treatments in June, July and August 2011.
Allegations were put to her on the 13 June 2012 and she did not understand them. She attended a meeting on the 14 June 2012 and her friend A attended with her. All her belongings were wrapped up and she presumed that she was being told to leave. She was not told prior to the meeting that she could be let go. At the meeting E produced a face book message and she explained the contents to E. The issue was that her friend L enquired about an eyebrow treatment and she told L that she would have to let her eyebrows grow and then she would do her eyebrows for €50.00. E accused the claimant of offering L a free treatment. While the claimant was employed with the respondent E broke her arm and the claimant undertook work on her client’s eyebrows and E undertook work on eyelashes. E had a regular clientele and a few of her clients told the claimant that they would prefer if she did their eyebrows. The claimant stated that she was better at doing eyebrow than eyelashes. She did not offer free treatments and she asked E why she did not raise this issue with her previously. The claimant was shocked and E told her she was a liar. The source of the allegations was not revealed to the claimant and she was upset at the meeting.
L was a friend and she brought her to the salon the previous Friday to do her lashes. A client had cancelled at 12 noon appointment and the claimant telephoned L and she told her that she could do her eyelashes for her. She did not get an opportunity to explain this to E. She did not use company products when doing treatments for her friends. She did the treatment for L free of charge and she did treatments for her mother and mother in law for free. Her friend A, who attended the meeting with her, asked if there was an Agenda and if there would be another meeting. E told her that she would deal with the matter in her own time. She presumed that E would look into the allegations and that she would be called to another meeting.
On the 15 June 2012 she received an e mail that her employment was terminated. She felt that some of the issues addressed at the meeting were twisted. She did not understand how E had come to such a decision and the meeting took ten minutes. After she was dismissed she asked E if she could obtain her certificate and kit and she did not receive them.
The director of another company asked her if she would be interested in working with HD Brows and an interview was arranged. She then had to go to the UK for training. She opened her own eye lash/eyebrow bar on the 6 February 2013. E contacted the owner of HD brows in UK and told her not to take the claimant on as she had committed fraud.
In cross examination she stated that E opened the salon the Christmas before she commenced employment. She took up employment the second week in May 2011 and she received training. She could not say if she received five cheques in total amounting to €173.00 each. She received cheques and cash. She undertook training in HD brows over two years ago in the UK and all expenses were paid.
She always promoted the respondent on her own web page. She received a tweet from POC regarding her eyebrows and she could not remember initiating the tweet with POC. E asked her why she tweeted POC and she told her that her eyebrows looked good. When E was absent the claimant undertook work on eyebrows. When E undertook treatments for the claimant’s clients the clients were unhappy with their eyebrows. If E was present in the salon the claimant undertook work on eyelashes. The claimant felt that her skills on eyebrows were better than E’s skills.
LP worked in a Beauty supply store and the claimant purchased her fake tan there. She did not know if the respondent had an account with LP. She never approached anyone outside the salon. She did not approach clients and offer them treatments on her own. She offered discounts to family and friends. This practice discontinued and if clients had a manicure /pedicure they received discounts. When she was getting hair extensions her hairdresser asked her to do her eyelashes which she did as well as her eyebrows. E had no problem with this.
She did not transfer a paying customer from a 4p.m. slot to attend to her friend L. L could not come in at 4p.m. and E was not in work that day. If the claimant had to leave early E would not have a problem with that. She was accused of doing RD’s eyelashes and running up the road after her. RD had free treatments in the salon.
MD from the respondent together with E, the claimant and her friend A attended the meeting. Her friend A was the only person who took notes. At the start of the meeting the claimant’s friend A requested that they should go through the allegations as none of her questions were answered, it was a screaming match. The claimant presumed that they would be having a formal meeting after this to go through the allegations. At the meeting A asked if the claimant was going to be paid while she was suspended and the claimant got up and left.
When put to her that she asked for consent to treat her friends /relations on one occasion she replied that E was present when her mother, sister, mother in law and husband’s aunt came in to the salon. Her face book message was passed on and E asked her about this and she called her a liar. She reiterated that her friend L attended at 12 noon and it took an hour to do eyebrow refills. She could not remember if she took a salary for this. She would be paid from 10am until 5pm. She did L’s treatment while she was on her lunch hour and it was better than sitting downstairs. She never charged L for any treatment. E never had a problem when she had her friends in the salon. She rarely got a lunch break and it was quiet on that day. She could not say if she was entitled to a thirty-minute break after working six hours as she did not have a contract of employment. She worked five to six days a week in the salon and occasionally she did treatments for family in the salon.
She used twitter regarding all her appointments. She had an address in Rathnew and she rented a room there while she was in the process of establishing her own business. She applied for a business grant and she needed an address. She currently has a room rented in Dundrum and tries not to work Saturdays.
In re-examination she stated that she never received a formal warning. It was not unusual that appointments were erased and changed.
A close friend of the claimant (A) gave evidence. The claimant had contacted her in a very upset state and told her something had happened at work. A advised her to get legal advice. The witness attended the meeting of the 14th June 2012 wit the claimant. E and her sister and employee (MD) were in attendance.
The claimant told A that her belongings were all packed up in the corner of the room the meeting was taking place. The claimant had no prior knowledge as to the agenda of the meeting. At the meeting E called the claimant a liar on a number of occasions, the claimant was not given the opportunity to any explanations. The witness told the Tribunal that there was no structure to the meeting. She asked if the policies and procedures were agreed. The meeting was very heated. At the conclusion of the meeting the witness asked if there would be a second meeting, there was an indication that there would be. The claimant was not informed her job was in jeopardy. She was dismissed the following day.
Respondent’s Case:
E, the owner of the respondent business, gave evidence. She disputed the commencement date of the claimant and stated she did not have the correct amount of service to take a claim under the Unfair Dismissals Acts, 1977 to 2007. In May 2011 the claimant had only worked for a period of approximately 6 hours per week. She commenced employment on a 20 hour basis in July 2011. Initially she did not have a contract of employment but when E’s sister (MD) commenced employment to oversee the administration of the business a contract of employment was sent to the claimant to read and sign in August 2011.
E told the Tribunal that a fellow businesswoman informed her someone at her salon was offering treatments at a discount. The lady’s daughter (L) had received a facebook message from the claimant to that affect. E explained that no-one, not even her own family and friends, got discounts. Staff were given reduced rates for treatments. Free treatments were not allowed either. However she did agree she had given a celebrity (RD) a free treament and RD advertised this treatment for the salon.
E contacted L and asked her about the discount, L replied she would give her a copy of it but prefer if her name was not mentioned. E also became aware that the claimant had tweeted a high profile client and had approached another high profile client concerning treatments. E felt the claimant should not have done this. She was not very pleased with the claimant.
E sought legal advice and decided to speak to the claimant. She composed a letter, dated the 12th June 2012, and handed it to the claimant. The letter stated that she, the claimant, had been offering services and utilising facilities belonging to the respondent in an “unauthorised and inappropriate manner.” The claimant was told to take two days paid leave and asked to attend a meeting on the 14th June 2012 and that she could bring someone with her.
E and MD looked through the salon diary and found an appointment the claimant had scheduled had been rubbed out and given to one of the other beauticians who worked on a contract basis. This meant the salon did not make any revenue for this treatment. This was also the time L had her treatment provided by the claimant.
On the 14th June 2012 the claimant arrived to the meeting with her friend A. MD attended with E. E explained that the meeting was held in the quietest room in the salon. The claimant’s belongings were not stacked in one corner but a table the claimant had loaned E was the corner.
The allegations were put to the claimant but she made no response. The claimant was shown a copy of the facebook message sent to L, without her name displayed. E told the Tribunal that the claimant just shrugged her shoulders. At the end of the meeting E told the claimant that she would consider the matter and get back to her. The claimant and A left. E later tried to open the claimant’s facebook page but it was shut down.
E again discussed the matter with MD and her solicitor. She made the decision that the she would dismiss the claimant as there had been a complete breach of trust. The following day, the 15th June 2012, E and MD compiled the letter of dismissal for the claimant.
On cross-examination E said that there was no alternative but to dismiss the claimant.
MD gave evidence. She told the Tribunal that she had commenced employment in her sister (E) salon in August 2011. She upgraded all the administration in the office. She sent a copy of a contract of employment to the claimant and another member of staff who did not appear to have received any. The claimant did not return a signed copy of one even though MD had written to the claimant to remind her to do so.
She had attended the meeting on the 14th June 2012 and had assisted E in compiling letters to the claimant, including the letter of dismissal.
A salon owner, who the claimant had rented premises from after her termination with the respondent gave evidence of how long the claimant had rented her premises.
Determination:
The Tribunal considers the claimant was an employee from, at the latest, the 13th June 2011, because she was on a series of contracts to provide receptionist services. This then grew into a full-time contract to provide beautician services. Therefore the Tribunal has jurisdiction to hear the claim as it was agreed that her employment was terminated on the 15th June 2012.
The Tribunal finds in all of the circumstances, as the claimant was not informed she was at risk of being terminated and was not given the opportunity to respond or consider two items of which the respondent placed reliance on in deciding to terminate her employment, the dismissal is unfair. However, the Tribunal finds the claimant contributed to her dismissal in a substantive way. The Tribunal has considered evidence of the claimant’s loss and notes that she was working on her own behalf from September 2012.
In all the circumstances the Tribunal awards the claimant the sum of €2,000.00 under the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)