ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00005484

Parties:

     Anonymised Parties An Apprentice Hairdresser A Hairdressing Salon  

Complaint:

ActComplaint Reference No.Date of Receipt Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA-00007626-001 14/10/2016   Date of Adjudication Hearing: 09/06/2017 Workplace Relations Commission Adjudication Officer: Kevin Baneham

Procedure:

On the 14th October 2016, the complainant referred a complaint to the Workplace Relations Commission pursuant to the Unfair Dismissals Act. The complaint was scheduled for adjudication on the 9th June 2017. The complainant attended the adjudication, accompanied by a former colleague and family members. The company director attended for the respondent and he was accompanied by the manager and the assistant manager.   In accordance with section 8 of the Unfair Dismissals Acts, 1977 – 2015following the referral of the complaint to me by the Director General of the Workplace Relations Commission, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.   As section 6 of the Unfair Dismissals Act imposes the legal onus on the employer to show that the dismissal was not unfair, the respondent was first to present their case.

Background:

The complainant worked for the respondent between the 13th October 2014 and the 4th June 2016. She was an apprentice hairdresser and received remuneration of €570.96 per fortnight. She claims unfair dismissal, which is denied by the respondent.

Summary of Respondent’s Case:

In evidence, the company director said that the complainant was in the second year of her apprenticeship. Issues regarding the complainant had been drawn to his and the manager’s attention, for example, regarding her bringing in models and upgrading her skills. He said that the complainant was very good in areas other than her hairdressing skills. Training took place on Tuesdays and Wednesdays and this was an opportunity for people to share skills. The company director said that they had sat down with the complainant on several occasions. Her blow drying skills were not good enough.   The company director said that in April 2016 a man had telephoned the respondent salon in a very aggressive fashion. This phone call was about the complainant’s aggressive behaviour. The respondent asked the Gardaí to investigate the phone call. There was tension in the salon between the complainant and others and the complainant could be aggressive. The complainant also refused to work as a team. He said that there had been allegations of the complainant beating up another girl outside of work.   The company director listed the reasons for the complainant’s dismissal as the incident of the April telephone call and the threat to his business; the complainant not working in a team and not doing what was required and because there was too much activity going on outside. He told the complainant that they would not include a reference to the April incident in the letter of dismissal. He commented that he had a good relationship with the complainant, but her hairdressing skills lacked. The respondent is a high-end salon with many opportunities. It was the April phone call and tension over other issues with her skills that brought matters to a head. They discussed this situation amongst themselves and decided that the complainant was not taking advantage of the opportunities available to her.   In further evidence, the company director asked why, if the complainant was as good as she said, why had she not found work in another salon, in particular as salons tried people out. He said that the respondent kept training notes on work and quality and it had been an oversight in not sending her these notes. An apprentice needed to provide a variety of models. He stated that the contract of the former colleague was not extended because of his behaviour and his drug-taking.   The manager gave evidence. She commented that the complainant had always been a great help on the desk and that she was fond of her. After Christmas 2015, they had discussed her blow drying not being up to scratch. She took a note of this conversation in the diary and said that it had been a “talk”. Things were not put in writing afterwards, except for the notes. She said that apprenticeships depended on the apprentice’s skills and application. The manager said that the complainant was reluctant to blow dry and had to be corrected. The complainant had walked off the floor when corrected. She refused to blow dry for the company director and another member of staff.   In respect of the incident of the 20th May 2016, the manager said that the complainant had stormed off the floor after the company director said he was unhappy with a blow dry. The complainant had shouted at her, saying she hated this place. The next morning, the manager told the complainant that her behaviour had not been appropriate and she apologised. The manager handed the complainant her letter of dismissal on the 27th May 2016.     In reply to the complainant, the manager said that she had suggested a role in her partner’s salon as this was the nice thing to do. She said that she and the team worked closely together and it was not a nice part of the job to terminate someone’s employment. She had met with the company director about the complainant and this was recorded in the diary. She stated that at no time had the caller made a threat to the complainant’s life.   The assistant manager gave evidence. She answered the telephone in April where the angry male caller had wanted to speak with the company director. The caller threatened that the respondent salon would lose many clients. He threatened to call to the salon and to cause trouble. The assistant manager met with the company director and recounted the conversation to him. She also visited the Garda station, and the Gardaí told her that they would speak with the complainant and would sort it out. The matter was dealt with by the Garda station in the area where the complainant lived. The phone call had been the bottom line and caused tension with staff and God knows what might have happened. In further evidence, the assistant manager stated that it was her who took the telephone call and the threat had been made to the salon as a whole. There were 16 jobs at stake and no threat was made to kill the complainant.   The assistant manager said that the complainant had refused to blow dry on several occasions. She said that apprentices had to take opportunities to learn and refusing to do work on the floor was something that could not be tolerated. She said that the complainant would also storm off the floor. She referred to one incident in May when she had been at reception and saw the complainant storm off in a bad temper.  

Summary of Complainant’s Case:

In her statement, the complainant said she was informed of her dismissal by the manager on the 28th May 2016 and she received a letter to this effect from the respondent on the 31st May 2016. She raises the manner the company director treated her, describing this as being with disdain. He informed her that hairdressing was not the career for her. The complainant explained circumstances when she could not blow dry as she was blow drying other clients and the hairdresser was not present. She said that she was developing as a hairdresser and brought in models. She was voted the second most improved junior in 2015 and given a prize. She states that the respondent did not follow its disciplinary process in dismissing her. She obtained a poor reference from the respondent and had been unable to obtain other employment. The complainant outlined that she had not been informed of the threat made to the salon in the April 2016 phone call. She was only informed that the man had said he would come to kill her. This made her upset and a Garda had called to the salon. The phone call was made from a named town, so she went to the Garda station in this town. She knew who had made the phone call.   The complainant denied storming off the floor. She said that the company director would fix her blow dry, but would not explain what he was doing. On one occasion, he took over and she stayed and watched. She did not storm off. There had not been meetings regarding her performance and she referred to the absence of any minutes of such meetings. In respect of training, they would record the number of classes they did and what they did, for example a cut or a blow dry. She always had models and would give her models to other apprentices. She said that the manager had suggested she apply to her partner’s salon and commented why would she have made this suggestion if she was not good. The complainant asked whether there was a “progress book” of her work in the salon, i.e. a record of her progress as an apprentice at the respondent.   In respect of mitigation, the complainant referred to the list of jobs she applied for. She began a hairdressing course on the 28th September 2016 and paid fees for this course. This was an alternative to an apprenticeship. She applied for the course in August 2016 and was interviewed.   In further evidence, the complainant had not asked to only work a week’s notice and would have worked the second week. She had not received her observation notes pursuant to a data access request made to the respondent. She received other documents to this request on the 16th May 2017. She stated that the course she was pursuing was private course, for which she had paid fees. She put the respondent down as a reference in her application. The complainant also stated that the minutes of the meetings referred to by the respondent were not sent to her following her data access request. She had not been informed of a threat to the salon’s business in the April telephone call. Apprentices had also switched models to develop their skills.   The former colleague gave evidence. He outlined that he had been a senior stylist at the respondent salon and had 25 years’ experience. He said that the complainant was honest, hardworking and assisted him with high profile clients. She was good in a service industry. He directed training and the complainant always partook in training. The senior stylists had voted the complainant as the most improved junior for 2015, but the company director had given the award to someone else. There were personal issues between them. In respect of the incident of the 20th May 2016, the former colleague did not agree with the version of events presented by the company director. He said that the company director had been overly aggressive and the complainant had to leave the floor. She had gone downstairs and there was no public show by the complainant. He stated that the company director exhibited bullying behaviour and his treatment of the complainant was unprofessional.   In respect of the April 2016 incident, the former colleague said that he recalled a Garda calling to the salon and hearing about the phone call. This had not affected him or the atmosphere in the respondent workplace. It had not been any of his business and there had not been a huge disruption. There had been nothing more from the caller. The former colleague said that the complainant had been competent when it came to training. He wrote training notes for apprentices and they were written on “observational forms”. He included comments on what was done, for example cutting or blow dry, and how the apprentice fared.

Findings and Conclusions:

The complainant commenced working for the respondent on the 13th October 2014 and this came to an end on the 4th June 2016. She was an apprentice hairdresser and received remuneration of €570.96 per fortnight. She had a four-year contract, ending in October 2018. The complainant states that she was informed of her dismissal on the 28th May 2016 and was subsequently informed that she would only work one week’s notice. The complainant asserts that the dismissal was unfair as procedures were not followed and because the incidents the respondent states occurred did not happen. The respondent outlines that the dismissal was fair, raising issues of the complainant’s performance and behaviour, as well as threats to the business.   In a letter dated the 27th May 2016, the respondent informed the complainant of her dismissal on grounds that she had not engaged in the programme of training, specifically that she had refused to do blow drys on several occasions. The letter states that while she is a good worker, the respondent was unable to make her into a skilled worker. The contract agreement signed by the parties includes a release clause of €2,000 whereby the complainant would pay this to the respondent to be released from the agreement. The respondent provides a two-page account of meetings held with the complainant regarding her training and behaviour, starting in January 2016. This account records eight meetings or events, as well as one event post-dismissal where the complainant attended drinks for a colleague leaving the business.   The complainant submitted documentation regarding the course she commenced in September 2016 and the fees of €10,500. The course is an 18-month course, which the complainant stated was an alternative to the four-year apprenticeship. She states that she delivered or posted 18 CV’s to hairdressers or retail businesses. Some relate to obtaining employment as a second-year apprentice and others relate to part-time retail work to complement her course.   There was a conflict in evidence over whether there had been performance and training issues relating to the complainant. On one hand, there was the evidence of the company director, the manager and the assistant manager. On the other hand, there was the contradictory evidence of both the complainant and her former colleague. While the respondent supplied a two-page account of meetings, they do not appear to be contemporaneous. They are written on two pages and as a single account. There is nothing about the complainant’s performance or training prior to January 2016, in particular when she was voted either the first or second most improved junior. It is also striking that there is no comment or feedback noted from the complainant, whether she accepted or disputed the comments of the respondent. Taking these findings together, I find that the evidence supports the account given by the complainant and that there were no substantial grounds to dismiss the complainant from her employment on grounds of either performance or her participation in training. While the incident of the April phone call was extremely serious, there was no evidence of actual loss to the respondent business or how the complainant was in any way in the wrong. I also note the lack of a disciplinary or dismissal process, or of meetings with the complainant. Even by the respondent’s account (which the complainant disputes), the last meeting held between the respondent and the complainant regarding the issues of training/performance was the 24th February 2016. Even taking the respondent’s account as accurate, there was no interaction after that, in particular to address the issues it saw in the complainant. After all, this comes some weeks after the complainant is voted the number 1 or 2 most improved junior in the salon. Yet, it is stated that she does not demonstrate potential as a hairdresser and her employment must come to an end without further process.   It follows from these findings that the respondent has not discharged the presumption in section 6 of the Unfair Dismissals Act that the dismissal was unfair. In assessing mitigation, I note the complainant’s efforts to obtain alternative employment as an apprentice hairdresser and to commence an 18-month course in hairdressing. She had also sought part-time employment while undertaking the course. As the dismissal was unfair, the complainant to recover for financial loss arising from the dismissal, as is just and equitable. In this case, I assess this redress to be €8,500. This takes account of the difficult position the complainant faced in her apprenticeship being terminated in the second year and her efforts to complete her training by way of a course as opposed to another apprenticeship.

Decision:

CA-00007626-001 Section 8 of the Unfair Dismissals Acts, 1977 – 2015 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.   I find that the complaint made pursuant to the Unfair Dismissals Act is well-founded and the respondent shall pay to the complainant redress of €8,500.  

Dated:   18/12/2017 Workplace Relations Commission Adjudication Officer: Kevin Baneham

Key Words: Unfair Dismissals Act Hairdressing apprentice