EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD462/2015
MN220/2015
WT78/2015
CLAIM OF:
Barbara Anna Myrzka
- claimant
Against
Ramune Katiniene, T/A Nail And Beauty Lounge
- respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
ORGANISATION OF WORKING TIME ACT 1997
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms P. Clancy
Members: Mr J. Browne
Mr D. McEvoy
heard this claim at Limerick on 27th April 2016 and 25th July 2016.
Representation:
Claimant: Mr. Michael B. O'Donnell, Michael B. O'Donnell, Solicitors, Main Street, Rathkeale, Co. Limerick
Respondent: Ms. Karen Fitzgerald, John Lynch & Company Solicitors, Bridge House, South Quay, Newcastle West, Co Limerick
The determination of the Tribunal was as follows:-
At the outset of the hearing the claim under the Organisation of Working Time Act, 1997 was withdrawn.
The fact of dismissal was in dispute and therefore the claimant went into evidence first.
Claimant’s Case:
The respondent is a nail and beauty salon. The claimant commenced employment as a nails stylist in June 2013. A ten month contract of employment was given to the claimant with a commencement date of 8th August 2013 to be reviewed on 8th June 2014. It was for fifteen hours work Thursdays/Fridays. This was her first job in Ireland. The respondent told her at the time that she would be working as long as she had a job for her.
The claimant enjoyed working in the salon. She did not have any problems communicating with clients. She never answered or took appointments over the telephone. There was always someone else there to do so.
The claimant went on maternity leave on 9th June 2014 until 9th December 2014. She expected to return to work on the same basis. She would have liked to work full time. L replaced the claimant during her absence from work and was working full time. The claimant secured about ten days work in the run up to Christmas. She had one day’s work in January 2015. From then on she visited the salon on regular basis with a view to securing work and was always told there were no hours available for her. L remained working full time and the claimant was annoyed that the respondent could not offer her fifteen hours. She thought that perhaps L could leave and she could then be offered her hours back. She wanted fifteen hours work.
The claimant knew that January/February were quiet months in the salon. She never worked alone in the salon. There was always another person working with her, sometimes it was the boss or it could be another hairdresser.
The respondent wrote to the claimant on 3rd February 2015 and indicated that she could not offer the claimant work and asked her to wait a few weeks and that she would be offered her hours back.
Towards the end of February 2015 the claimant saw an advertisement on face book for a nail technician. She took legal advice and through her solicitor requested her P45.
In May 2015 the claimant sought a meeting with the respondent. She wanted to resolve the situation and make up and get her job back. Her fiancé and a friend accompanied her to the meeting. The respondent asked ‘what she wanted from her and why she came here’. Everybody was upset and tensions were high during the course of the meeting and the claimant together with her fiancé and friend left.
The claimant contended that the respondent had promised her work following the cessation of her maternity leave and had acted unfairly in not doing so.
After a year and half in employment the claimant’s command of the English language had improved and she was capable of communicating with customers.
She had never been reprimanded or disciplined during her tenure.
She has not secured alternative employment since she requested her P45 from the respondent. She is however doing nails for family and friends only. She is starting an English language course in September 2016. She has been in receipt of social welfare payments.
Respondent’s Case:
RM is owner of the business and gave evidence. The claimant commenced employment in June 2013 with the respondent. She worked Thursday and Fridays. She worked 10 to 15 hrs a week depending on how busy the salon was. She did not have a good command of the English language and never worked alone. The respondent believed everyone deserved a chance as she herself had little English when she came to Ireland in 2004. She was a good worker. The respondent stayed after work and helped the claimant with her English.
The claimant commenced maternity leave on 9th June 2014 and was due to return in December 2014. She returned around Christmas 2014 and her command of English had deteriorated somewhat. In January 2015 the claimant went on holidays. January and February were very quiet months in the Salon. Those working full time (35 hrs) had their hours reduced to 20 hrs during these months.
In around Valentine’s Day the respondent offered the claimant some hours but the claimant refused to accept the hours and said she had plans for around that time.
Around 24th February 2015 the respondent offered the claimant some hours. The claimant did not accept these hours. She had never promised the claimant full time hours. The claimant wanted her job back on a full time basis.
The respondent became aware that the claimant had been working from home and had taken some of the respondent’s clients.
Towards the end of February 2015 the respondent again offered the claimant part time hours but she refused this offer of work.
In May 2015 the respondent met the claimant together with her fiancé. The claimant wanted her full hours back. She requested the claimant to return to work. The claimant wanted more pay and more hours.
L had not replaced the claimant during the claimant’s absence on maternity leave. Instead L had replaced A.
During the claimant’s maternity leave everyone covered for her and the respondent worked six days a week. Three staff had worked on the nail side of the business.
KR a hairdresser commenced employment on 8 August 2013. She overheard KM offering the claimant employment but the claimant was not happy and wanted to set her own hours. Her own hours were reduced in January/February of each year as the business was slack during those months.
Determination:
The Tribunal carefully considered the evidence adduced in this case. There was significant disagreement between the parties on how the claimant’s employment terminated. The respondent’s position is that the claimant refused to work the hours she was offered while the claimant maintained that she was not offered work.
The Tribunal prefers the evidence of the respondent that the claimant chose not to work the hours she was offered. The Tribunal is satisfied that the termination of the claimant’s employment was not as a result of a dismissal and accordingly the claim under the Unfair Dismissals Acts, 1977 to 2007 fails.
The claim under the Minimum Notice and Terms of Employment Acts, 1973 to 2005 also fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)