ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000570

Complaints for Resolution:

Date of Adjudication Hearing: 16th February 2016

Workplace Relations Commission Adjudication Officer: Kevin Baneham

1. Procedure:

1.1 On the 11th November 2015, the complainant referred complaints to the Workplace Relations Commission pursuant to the Unfair Dismissals Acts, the Redundancy Payment Acts and the Terms of Employment (Information) Acts. At the outset of the hearing, the complainant indicated that he was not advancing the complaint under the Redundancy Payment Acts.

1.2 The complainant attended the hearing in person and was accompanied by a witness, a former colleague. He was represented by Jack Tchrakian, BL instructed by Georgina Robinson, Phelim O’Neill Solicitors. Two directors attended for the respondent company and the company was represented by Diarmuid Murphy, BL instructed by Paul Ferris solicitors.

1.3 In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 8(1B) of the Unfair Dismissals Act, 1977following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

2. Complainant’s Submission and Presentation:

2.1 The complainant worked for the respondent from the 18th May 2011 to the 19th May 2015. He outlined that on the 28th January 2015, he fell off a step ladder in the workplace, while cleaning out air conditioning units. He said that this was a weekly task in the workplace for which he had received no training. He was taken to hospital by ambulance and was initially certified as unfit for work until the 1st April 2015. He later submitted a second medical certificate, which stated that he remained unfit for work. The complainant said that he received a contribution-based social welfare payment during this time.

2.2 The complainant said that he never returned to employment and that he remains unfit to work. Commenting on correspondence exchanged by the parties in April 2015, he said that he had been surprised by the reference in the respondent’s email of the 21st April 2015 to him holding an apprenticeship. He said that as far as he was concerned he was an employee of the respondent, and not an apprentice. He outlined that in hairdressing, one trained to become a stylist and he had attended off-site training at a named facility. The complainant said that he had never been informed of an end-date of the 19th May 2015 until the date was referenced in the email of the 21st April 2015. In respect of the contract of employment, the complainant said that he had never seen the document proffered on behalf of the respondent at the hearing. He also did not sign any such document.

2.3 In cross-examination, the complainant said that prior to the commencement of his relationship with the respondent, he had completed a year qualification in hairdressing at a named VEC college. He acknowledged that this was his first role in hairdressing but did not accept that it was obvious that he was an apprentice. He did not accept that he would have known that the apprenticeship was for a period of four years and said that if this was the case, he had only completed 3.5 years of any apprenticeship. He denied that he had been supplied with a contract of employment in June 2011 and that he did not sign such a document. He accepted that he had suffered no financial loss from the date he went on sick leave to the end of his employment with the respondent.

2.4 The complainant’s witness gave evidence that she had commenced employment with the respondent in 2000 and had previously commenced her apprenticeship in hairdressing elsewhere. She said that it was usual in hairdressing to complete a four-year apprenticeship. The respondent only provided her with a contract of employment in 2008 and she did not sign this document as it also referred to another employee. She commented that the complainant was doing well in the hair salon and was “its future”. She outlined that hairdressers undertook ongoing training, even after they had completed an apprenticeship.

2.5 It was submitted on the complainant’s behalf that pursuant to S.I. 505/2007, if the complainant was indeed an apprentice, his apprenticeship should have been extended to accommodate the period sick leave of the 28th January 2015 and the 19th May 2015. In further submissions, the complainant outlined that there was a dispute over the nature of his employment and that he had not received the written document proffered on behalf of the respondent. There were none of the adduced markers of an apprenticeship relationship and no notes or documents provided relating to the apprenticeship process. From this, it could be inferred that there was no apprenticeship. Furthermore, for an apprenticeship contract to exclude the application of the Unfair Dismissals Acts, the apprenticeship in question must be undertaken with SOLAS, FÁS or a statutory body. It was submitted that the contract provided on behalf of the respondent does not contain a clause dis-applying the Unfair Dismissals Acts at its end.

2.6 The complainant confirmed that he was not claiming loss of earnings as part of his Unfair Dismissals claim and sought just and equitable redress under this claim. He was also pursuing redress pursuant to the Terms of Employment (Information) Acts.

3. Respondent’s Submission and Presentation:

3.1 The respondent denies the claims pursuant to the Unfair Dismissals Act and the Terms of Employment (Information) Act. The respondent submits that, at all times, an apprentice and that it was an industry standard that employees complete a four-year apprenticeship. After the apprenticeship comes to an end, it is open to an employer to offer the employee a contract of employment, or alternatively, to hand the former apprentice his or her trade card in order to allow them obtain employment elsewhere. In this case, the complainant had completed his apprenticeship and it was therefore not necessary to extend the apprenticeship to accommodate the period of sick leave.

3.2 One director for the respondent said that he managed the particular hair salon where the complainant had worked. Commenting on the correspondence of April 2015, he said that he had sought to follow up with the complainant after the accident and to ask after his health. He confirmed that he had received the medical certificates submitted by the complainant. Commenting on the email of the 21st April 2015, he said that this was notice given to the complainant to say that he would not be retained after the end of his apprenticeship and that it was practice to give such a notice one month out from the end of a person’s apprenticeship. He said that it was common to have to let apprentices go in this manner and that the respondent did not have a position available to employ the complainant. Commenting on the contract of employment, the director said that a named floor manager would have given the complainant this document in the month after the start of his employment. She was unable to attend the adjudication as she was on sick leave. The complainant would have also been asked to sign a trade card within two weeks of the start of the apprenticeship. The director commented that training usually took place in the salon and some training was provided off-site. In cross-examination, the director said that the complainant had been provided with a contract and that there had been a meeting after the end of the initial period of probation.

3.3 Another director gave evidence and said that while she was based in another facility, she coordinated the training and development in the facility where the complainant worked. She outlined that it was standard for there to be an apprenticeship of four years but the only obligation on an employee was to register the learner with the Labour Court. It was up to each hair salon to organise training for apprentices and there were, unfortunately, no national standards. She said that training generally took place on the salon floor and it was important that apprentices developed their skills and roles over the four years. She had met the complainant to discuss his progress and had introduced appraisals for staff a year ago. The complainant had completed all his courses and was progressing well. She outlined that she had spoken with him in September 2014 about this being his last year and he was, therefore, aware of the end of his time with the respondent. The crux came in 2015 when the respondent could not afford to employ the complainant after the end of his apprenticeship. There was no restriction on where he could work afterwards and no problem in supplying him with a reference. In cross-examination, the director said that the apprenticeship was a mentoring-type process and that the complainant had had two appraisals. The documentation relating to the appraisals were not with her. She said that clients, especially regular customers, would know who was, and who was not an apprentice.

3.4 In closing submissions, it was submitted on behalf of the respondent that the complainant’s claim pursuant to the Unfair Dismissals Act was limited to redress of four weeks’ remuneration. There was a dispute of fact in relation to the Terms of Employment (Information) claim and the respondent had supplied a contract of employment to the complainant in June 2011. It was submitted that it was an industry standard that employees completed apprenticeships of four years and this was confirmed by the complainant’s witness in her evidence. The complainant would have been aware that he was an apprentice. While the complainant was well regarded in the salon, there was no position available to him when the four-year apprenticeship came to an end. It was, therefore, denied that an unfair dismissal took place.

4. Findings and reasoning:

4.1 The complainant worked for the respondent as a hairdresser between the 18th May 2011 and the 19th May 2015. It appeared to be common case that the complainant performed well in his duties. In a letter letter of the 21st April 2015, the respondent states that the complainant’s apprenticeship will come to completion on the 18th May 2015 and that his date of leaving is the following day. The letter refers to the respondent having to let the complainant go.

4.2 There are two claims in this adjudication. One is the claim pursuant to the Unfair Dismissals Act. The complainant outlined that he was not pursuing loss of earnings under this claim. The second claim relates to the complainant not being provided with a contract of employment, in breach of the Terms of Employment (Information) Act. The complainant indicated that he was not advancing the claim under the Redundancy Payments Acts.

4.3 The respondent denies the claims. The respondent outlines that the complainant’s relationship with the respondent came to an end at the completion of his apprenticeship. It refers to the complainant’s certificate of registration as a learner. It also refers to the contract of employment, which refers to the complainant as an apprentice. It denies the claim in relation to Terms of Employment (Information) Act.

4.4 Having considered the evidence and submissions of the parties, I make the following findings. There was a conflict of fact over whether a contract of employment was provided by the respondent to the complainant. I prefer the evidence of the complainant on this point. I note that the document supplied to the adjudication was not signed and no evidence was provided about how it was provided to, or exchanged with, the complainant. One would expect to see an email or other correspondence regarding this exchange. It follows that the respondent has not complied with the Terms of Employment (Information) Act. In assessing loss, I note the duration of the complainant’s employment and the uncertainty regarding the complainant’s status as an apprentice. I make an award equivalent to two weeks’ remuneration, i.e. €388 x 2.

4.5 There was further conflict between the parties over whether the complainant was an apprentice. Again, I prefer the evidence of the complainant that he was not regarded on shop floor as an apprentice. I note the exchange of correspondence between the parties the followed the incident of the 28th January 2015 when the complainant was out on sick leave. In this correspondence, the respondent asks when the complainant will return to work and it is only in a later letter of the 21st April 2015 that the issues of an apprenticeship and its coming to an end are raised. Given the duration of his employment with the respondent, one would expect the end of the apprenticeship to be the subject of correspondence between the parties in the months leading up to its end. Instead, the only reference is the letter of the 21st April 2015.

4.6 The complainant comes within the ambit of the Unfair Dismissals Act because of the finding of fact that he was not an apprentice and because the employment relationship was not subject to the exclusion provided at section 2(2) of the Unfair Dismissals Acts. Any apprenticeship the complainant could have been under does not fall within the definition of “statutory apprenticeship” provided in section 1 of the Unfair Dismissals Act. No Order has been issued pursuant to the Industrial Training Act, 1967 for hairdressing. Furthermore, the respondent is not entitled to rely on the expiry of a fixed term contract of employment as the contract does not provide for the exclusion of the Unfair Dismissals Act on the expiry of the fixed term. It follows from the above findings that the complainant succeeds in the claim of unfair dismissal. He does not seek redress for loss of earnings. In the circumstances of the case, taking into account the duration of his employment and his record of performance, I make an award that is just and equitable and that is equivalent to four week’s remuneration.

4.7 Taking the awards made pursuant to the Terms of Employment (Information) Act and the Unfair Dismissals Act, the respondent shall pay to the complainant the amount of €2,328.

5. Decision:

5.1 Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint under the Terms of Employment (Information) Act in accordance with the relevant redress provisions under Schedule 6 of that Act. Section 8(1B) of the Unfair Dismissals Act, 1977 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

5.2 On the basis of the findings contained in this report, the respondent shall pay to the complainant the amount of €2,328 as redress for breaches of the Terms of Employment (Information) Act and the Unfair Dismissals Act.

Dated: 30th June 2016