ADJUDICATION OFFICER DECISION/RECOMMENDATION

 Adjudication Reference: ADJ-00004584

Parties: 

Complaint(s):

 Date of Adjudication Hearing: 02/05/2017

Workplace Relations Commission Adjudication Officer: Penelope McGrath

Procedure:

In accordance with Section 8 (1)(a) of the Unfair Dismissals Act of 1977 (as substituted) and where a claim for redress under the Unfair Dismissals legislation is being made the claim is referred to the Director General of the Workplace Relations Commission who in turn refers any such claim to an Adjudication Officer, so appointed, for the purpose of having the said claim heard in the manner prescribed in Section 41 of the Workplace Relations Act, 2015 and in particular the said Adjudication Officer is obliged to make all relevant inquiries into the complaint. The Adjudication Officer will additionally and where appropriate hear all relevant oral evidence of the parties and their witnesses and will take into account any and all documentary or other evidence which may be tendered in the course of the hearing.

In particular, and in circumstances where the Complainant herein has referred a complaint of having been unfairly dismissed form her place of employment wherein she had worked for in excess of one year and where the Workplace Relations Complaint Form (dated the 24^th of August 2016) issued within six months of her dismissal, I am satisfied that I have jurisdiction to hear the within matter

Background:

This matter comes before the Adjudication Services on foot of a workplace relations complaint form dated the 24^th of August 2017 and has been initiated in consequence of the Respondent Employer’s decision to terminate the Complainant’s employment by reason of gross misconduct. The employment was terminated by letter dated the 4^th of March 2016 and the decision was reached after an investigative and disciplinary process had been completed. The claim is brought within the time limits allowed.

The fact of dismissal is not in dispute, and the Respondent accepts that the burden of proof rests with it to demonstrate that it has acted fairly and reasonably in all the circumstances.

Based on the evidence I heard, I would determine that the Complainant’s case is twofold. The Complainant says aspect of the disciplinary process were unsatisfactory and unfair. In addition, the Complainant says that the decision to dismiss was disproportionate and heavy handed in light of the issues that had been raised and investigated.

Both parties opened up this case by way of written and oral submissions. These have been comprehensively considered by me as has the significant amount of oral evidence I have heard which was tested through cross-examination.

Summary of Respondent’s Case:

 The Respondent is a beauty salon with some considerable reputation built up by it’s two co-director/owners. The owners are clearly very conscious of the reputation of the salon and are very careful about the salon’s perceived public image, it’s product usage and the skill of the therapists that the salon engages.

The Complainant had worked with the salon for some three and a half years. She was an excellent therapist and worked to a basic hourly rate together with commission which could be earned at a rate of up to €40.00 per day. The Complainant was based in Drogheda and commuted up and down to the salon on the City’s North suburbs. The Complainant was anxious to start up her own therapy business outside of the sphere of her Employer and closer to her home. In principal, her employer agreed with this ambition and encouraged the Complainant in her enterprise. The Complainant reduced herself to a two day week – though the days were very long and it was agreed between the parties that there should be no cross over between the Complainant’s new business and the fact that she was an employee of the respondent company. In reality the Complainant’s new business and that of her employer were in entirely different catchment areas and the prospect of crossover was remote.

In December of 2015, a therapist in the salon approached one of the co-owners (HP) and explained that she understood that the Complainant had sold a candle to a client in the course of the working day. HP was particularly upset at this intimation as the salon had recently commissioned it’s own bespoke candle products and it upset her to think that an apparently loyal employee was going into competition with her in this market and under the roof of the salon. HP approached another employee who knew nothing of the incident with the candle but did describe two other incidents which had struck her as unusual at the time. The first was an occasion where the Complainant had taken stock as a gift declaring she would refund the next day and the second when the Complainant had taken an open product home with a view to trying it out overnight before returning it the next day. This employee was quite fair in saying that she had no reason to believe that the appropriate monies weren’t paid (and no missing stock issues have been raised) and the open product had not been returned in the manner intended and there was certainly no element of subterfuge in that the Complainant had quite openly explained what she was doing on each occasion.

On foot of these three incident, HP decided to do what she described as an in depth analysis of the Complainant’s treatment/therapy history. HP discovered what she perceived to be an anomaly and in particular she noted that the Complainant wasn’t discounting in the usual way (eg student discounting) but was in fact creating prices to suit work that she was carrying out and in so doing was creating her own price structure which was not salon recognised. In the two months she examined the records it is noted that the Complainant raised some €5,500.00 in sales with a €63.00 discount and then a €9,000.00 in sales with a €110.00 discount.

The Respondent was anxious to address these matters with the employee and by letter dated the 16^th of January invited her to attend an investigative meeting on the 19^th of January 2016 wherein the various matters were put to her. The Complainant was given the relevant statements and was invited back to a Disciplinary meeting which was held on the 22^nd of February 2016. The Complainant remained out on paid suspension until the said Disciplinary hearing date.

In advance of the hearing date, the Complainant requested that she might be allowed to bring her own witness along to the meeting which said application was refused without preamble. The Complainant had, not unreasonably, pointed out that the option of bringing a work colleague along had been significantly reduced as they had all sworn statements against her as part of the process.

I have read through the notes of the meeting on the 19^th of January and the 22^nd of February 2016.

On the 4^th of March the Complainant was advised of the fact that she was being summarily dismissed without notice for gross misconduct based on the following findings made by the Respondent:

1. That the Complainant had allowed herself to be friended on facebook by clients contrary to company policy.

2. Removing product for her own use without authorisation.

3. Discounting treatments in a manner not authorised by the Handbook.

4. Bringing samples of product she sold through her own company into the salon which may have been sold to a client.

The Complainant sought to Appeal the outcome of the Disciplinary process. The Complainant advised the person nominated to hear the Appeal of this fact, albeit several days after the one week time allocated had expired. The Complainant was not, in the circumstances of such tardiness, allowed process the Appeal.

Summary of Complainant’s Case:

The Complainant gave evidence to the effect that she is a hard working therapist who generated excellent fees for the Employer. The Complainant said that it was normal practise for her and the other therapists to use product from time to time so that they could advise on these products to the clients. The object of the exercise was the generation of sales wherein the salon has a gain and the therapist has a gain (in commission). From time to time an overnight treatment would be tried out and a small amount of product might be decanted into a small, clear bag or other receptacle. On the occasion in question the product would solidify if exposed to air and the Complainant brought it home for an overnight test to be returned the next day. The Complainant did not think this was any different to using and trying out other more visible products on the premises.

The Complainant explained that in practise clients would in the course of a set and timed treatment, ask for a little hair removal by way of electrolysis. The Complainant had developed a practise of doing this for clients on the understanding that she would have to charge a nominal amount for this procedure. This was not a fifteen or twenty minute procedure (chargeable) but a two minute procedure done in overlap with a treatment already being booked and paid for. The Complainant was of the view she was generating the maximum amount of money out of each hour of work. She simply did not see this as a loss making exercise in the way that it was put to her by HP in the Disciplinary meeting. It was not a discounted process, simply a new way of charging for little extra work done.

The Complainant denied that she sold product though she conceded that she gave two candles to a favoured client as a gift. The Complainant said she brought the candles in to show them to her friends at work and her client had seen them. The Complainant accepted that better practise would have been to have left her private work product at home but pointed to the fact that the co-owners themselves had often bought produce from her in the past (mascara) and that she was always giving a dig out if supplies in the salon were down and she happened to have supplies at home which could be used in the salon.

Findings and Conclusions:

I have carefully considered the evidence adduced in the course of this hearing. The hearing was certainly difficult for the parties. The employer believed that there was a breach of trust so significant as to render the working relationship as irreparably damaged, whilst the employee believed the sanction far outweighed the reality of the perceived wrongdoings. The initial inquiries were made on foot of an issue raised by a therapist some ten days after the event described had occurred. The employer set about making inquiries into that issue and appeared to have unearthed several other ones and at the same time found that there were inputting irregularities that she had not before noticed though the evidence is that these had been going on at least a year and possibly more (records did not go back beyond that which I was shown).

One of the co-owners CSA indicated that for her the issue of bringing her personalised candle into the salon for the possible purpose of conducting a sale was the most hurtful action. This was done by the complainant in the full knowledge that the Respondent had just launched it’s own candle product and which the Respondent had worked very hard to get to market. This is understandable, and the Complainant knew or ought to have known that she was blurring the lines when she openly brought the candle in to work, whether to give as a gift or to sell – the point is that she was not acting in the interest of her employer and she was at that time on their payrole.

With respect to the other matters raised, I would be less sure that the Respondent had the same level of authority. The Facebook issue for example seemed nebulous and uncertain to me. The idea that certain names would be lifted from a list of up to five hundred as not being permissible is arbitrary in the extreme where people follow people on facebook all the time and for reasons which are not always clear.

The Employer’s policy on facebook is not specific about what exactly it seeks to avoid. The blanket policy is unworkable wherein it reads “Employees are forbidden to interact with any clients outside of work through social networking sites such as facebook twitter… etc”. Sometimes this type of interaction is not sought by an employee and there was absolutely no evidence to suggest that anything improper or untoward has occurred nor is there any suggestion that the employer has suffered any revenue loss. I am inclined to accept that the Complainant’s own achievements meant people were interested in her quite outside of her employment with the salon and women seeking to “follow” a beauty therapist does not seem irregular to me.

Again, having regard to this idea that the Complainant was using product in an unsanctioned way - this did not seem to me to be a dismissible offence. I have to assume there is some merit to the idea that therapists should know a little about the products they are selling to clients and the salon accepted it certainly sold product to the staff at a discounted rate. The Complainant made the point that the product she tried out on the occasion in question was not one she would purchase as it would not necessarily suit her skin type. She simply wanted to try it out. The explanation was absolutely reasonable to me.

There is no allegation of theft though one was quasi mounted. There is no evidence and there is no suggestion of stock having gone missing and in any event it is not specifically given any recognition in the letter of dismissal.

Quite apart from the fact that I do not believe that the findings made against the Complainant are sufficiently backed up by factual evidence, there is also the matter of the procedural flaws which have to be addressed.

It is in my mind a very flawed process that refuses to allow an employee have support and representation at a disciplinary meeting (wherein the outcome can be so serious), and the impact of this failure is heightened when it is made known that this right to bring along someone to the meeting was specifically requested by the complainant herein. I cannot understand why the Respondent refused to even explore the request which may just as easily have been a request to bring along a family member as to bring along someone more combative.

I also cannot understand why the Complainant’s right of appeal was denied to her. The Respondent did not and, it is assumed, could not demonstrate any prejudice would occur had the Appeal been allowed. The Appeal was to be lodged within seven days and was lodged within a few more days of that. In law, it is commonplace that a person would be given an extension of time to Appeal a case or lodge a case. There is an inherent fairness to having a case heard in this way and the bringing down of the guillotine in the manner it was, is simply without merit.

Decision:

In light of the foregoing I find that on both procedural and substantive grounds that the Complainant herein has been Unfairly dismissed. Having listened to all the relevant evidence on loss I award the sum of €10,000.00.

Dated: 20 July 2017

Workplace Relations Commission Adjudication Officer: Penelope McGrath

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