ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00006305

Complaints for Resolution:

Date of Adjudication Hearing: 07/03/2017

Workplace Relations Commission Adjudication Officer: Penelope McGrath

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention by an employer of certain Acts contained in Schedule 5 of the Workplace Relations Act of 2015 or such other Act as may be referred to therein, made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint or dispute. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered in the course of the hearing and any submissions disclosed in advance.

The Complainant herein has referred complaints under the Minimum Notice and Terms of Employment Act 1973, the Terms of Employment (Information) Act 1994 and the Unfair Dismissals Act of 1977.

An additional dispute under the Industrial Relations Act was brought but this was withdrawn.

All complaints have been made within the appropriate time limit allowed

Complainant’s Submission and Presentation:

I have carefully listened to the evidence adduced in the course of this hearing. The Complainant brings this matter before the Adjudication services by way of a Workplace Relations Complaint Form dated the 30^th of November 2016 some three months after the Complainant had handed in her Notice of termination of Employment.

The Complainant has brought a claim for Unfair Dismissals together with other ancillary legislative complaints and it is noted that the Complainant’s particular complaint is one for a Constructive Dismissal and the burden of proof therefore shifts to the Complainant to demonstrate that she has acted reasonably in all the circumstances.

The Complainant is a highly qualified hair stylist who commenced with the Respondent Salon in October of 2014. The salon is owned and run by the sole witness who represented the interests of the Respondent company and it appears to be common case that the salon has a large friendly staff many of whom are friends and family of the Respondent witness herself.

The Complainant described her own work ethic as being very professional and disciplined. She tended to keep her head down and got on with the job. The Complainant, it is noted, was facilitated on her return to work post Maternity leave when she was only available to work reduced hours and in fact it seems to be accepted that the Complainant often owed hours to the Employer and would try and work them up if she fell behind.

The Complainant was aware of a particular customer of the salon who had possibly taken a dislike to the Complainant. The Complainant would avoid doing this lady’s hair which was fine as the salon was very busy and there were always alternatives available to do cover. On a date unknown but towards the end of June or beginning of July 2016 the Complainant had refused to do the said customer’s hair in the course of her morning’s employment and that task had been absorbed by someone else in the salon on that day. The Complainant is adamant that she was discreet in refusing to take on this client though there is hearsay evidence (from a Receptionist) to suggest that she might have been a little too obvious and that the client herself may have seen or heard or deduced a refusal on the Complainant’s part to carry out the task.

In any event the incident passed without remark and certainly was not brought to the attention of the Respondent witness at the time of the incident which could possibly be evidence of the trivial nature of the incident.

Some three weeks later – on or about the 28^th of July 2016, the Complainant was on a break from her employment and was walking along the street at or near her place of work when she was approached by the client in question who quite unexpectedly accused the Complainant of being rude to her and it seems in particular was taking umbrage at the Complainant’s apparent failure to return a salute of hello. What appears to have been a fairly unedifying scene followed, with the Complainant stating that she was extremely upset at the interaction.

The Complainant rang and texted her Employer (the Respondent witness who was down the country) and the series of texts were opened in the course of the hearing and it is clear that the Complainant was very shaken and agitated by the incident but also that the Employer was absolutely supportive of her member of staff and directed her not to “fret” about what had happened. The employer stated that she was fond of the Complainant and would feel a protectiveness towards her. The Complainant additionally confirmed to her employer that she would be absolutely able to be professional and whilst there might have been some talk between them about the practicalities of allowing the Complainant stay on the premises if the client returned the option of moving to one of two other proximate and sister salons for a couple of hours was mooted.

It seems likely that the Complainant knew or ought to have known that the client would or could be coming to the salon the very next day – it is certainly suggested in the text exchange. And in fact the client in question did come into the salon the next day and the Complainant stayed on the premises albeit keeping out of the client’s way. The Complainant did not raise the issue with the Employer (who was away on a business trip) or with the acting Manager and it must be assumed that as per her previously pronounced work ethic she simply got on with it.

A week later, the Complainant arrived to start her early morning shift and whilst there is some disagreement between herself and her Employer on the exact timing –either at 7am or at 8am – there is agreement on the fact that the Employer did take the opportunity to take the Complainant outside the front of the retail unit to talk to her about the incident of having indiscreetly refused to do the client’s hair some three to four weeks earlier and which incident it seems may have resulted in the client’s treatment of the Complainant on the street.

The Complainant reacted very badly to what she perceived to be a dressing down though in her language at the hearing did confirm that she was told that she cannot openly behave in such a way. The way the Complainant described it, there was no yelling or shouting or harshness. The Employer indicated that the details of the previous incident had only been made known to her (by her receptionist) and the matter needed to be addressed.

The Complainant continued working for a few hours but then announced that she was going home as she was so disappointed with what her Employer had done in remonstrating with her three weeks after the event.

Respondent’s Submission and Presentation:

The Respondent gave evidence to the effect that she was very fond of the Complainant and very happy with her work. She was as surprised as the Complainant was when the client approached her in such an inappropriate way outside of the workplace. Her own reaction was to completely back and support her own Employee. It was only when she mentioned the matter to her 70 year old Receptionist in the next few days – for the purpose of avoiding their being on the premises together at the same time – that the back history was filled in a little. It was only then that she was advised that the Complainant was not inclined to take this client on as she had formed the view that the client did not particularly like her (whilst hearsay evidence this actually confirms the Complainant’s version) and that the client was insulted some weeks ago when the Complainant had clearly refused to provide a service to her and moved her on to one of the other stylists. The Respondent said in evidence that in the ordinary course this would not be a problem and that it is common for stylists to move around to accommodate one another. However, it is not acceptable that a client would feel slighted by this activity and absolute discretion is necessary. In the circumstances the Respondent did feel the need to take the Complainant aside and advise her of this fact

Decision:

The Complainant's decision to terminate her employment came within two or three hours of being reprimanded by her employer for possibly the first time in their working relationship. The Complainant did not give herself any time to consider the enormity of her decision to tender her resignation. In evidence the Complainant gave evidence that she was fearful of being attacked but there is no evidence to support this allegation or proposition nor was there any evidence to suggest that her Employer would knowingly put the Complainant in the way of harm. This assessment of the situation was an over-reaction.

The Complainant had a relatively short cooling off period after first walking out on the morning of the 5^th of August 2016 and her next action. In any event the Complainant confirmed her decision at about 4pm that afternoon by way of text message to her Employer. It is regrettable that the relationship terminated in this way but the termination of this Contractual relationship was at the instigation of the Complainant.

On balance, I find that the Complainant (whilst always entitled to terminate her own employment of her own volition) cannot reasonably attribute the blame for this decision at this time to her Employer. Nothing in the employment relationship or the circumstances as described to me would suggest that the Complainant had no alternative other than to tender her resignation.

This is not a case of Constructive Dismissal.

Issues for Decision:

1. Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

The Complaint herein was withdrawn by the Complainant in circumstances where she was entitled to bring her claim for Unfair Dismissals under the Legislation.

1. Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

The Complainant had brought three complaints under this Act where only one was necessary and applicable. In the circumstances two of the Complaints were withdrawn. For the reasons outlined above I find that the Complainant has failed in her application seeking redress under the Unfair Dismissals legislation.

1. Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

In circumstances where the Complainant tendered her own resignation and never returned to the workplace the issue of Notice does not arise as the Complainant did not indicate an intention or willingness to work out her Notice period.

1. Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

There was no Statement of Terms provided in this employment and whilst there is no prejudice arising out of this there is also not an obligation on the Complainant to show prejudice. In the circumstances I award €500.00 compensation.

Dated:   9^th June 2017