Complainant

Respondent

Anonymised Parties

Barber

Barber Shop

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00015074-001

17/10/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00015074-002

17/10/2017

CA 00015074-001

The complainant commenced employment with the respondent as a barber in December 2013. The complainant took a period of unpaid leave from her employment om May 2017 to assist her sister with the agreement of her employer.

She works 40 hours a week for which she earns €456.

She attempted to return to work on 19 August. She met the respondent on 23 August to discuss her return to work. She was told that her job was no longer available. The complainant was subsequently offered her job back on 13 September with conditions which were not in force up to June 2017.

CA -000015074-002.

Complainant did not receive payment in lieu of notice.

She submitted her complaints to the WRC on 17/10/17.

CA 00015074-001.

In 23 May 2017, the complainant’s brother in law was killed in a workplace accident in the Netherlands and the complainant took leave to be with her sister and her young children with the consent of the respondent.

The complainant’s husband met the respondent on 18 June and advised the respondent that the complainant was still in the Netherlands and was upset. The respondent is reported to have stated that “we will manage”. She asked him for the expected return date of the respondent. He replied that she would return after her holidays which were scheduled for July. At that meeting the respondent asked that the complainant should phone her to tell her if she is coming back.

The complainant telephoned the respondent between the 3-5 August. The respondent enquired about her own and her sister’s wellbeing and asked the complainant if she planned coming back to work. The complainant advises that she informed the respondent that she would return when “I will be ready and feel better”. The complainant advises that the respondent stated to her that they could talk about matters on her return.

The complainant met the respondent on the 23 August. The complainant stated that she advised the respondent that she wished to come back to her position. The respondent replied that she did not have a job for her. The complainant states that she asked for her P45 and holiday pay to which the respondent replied that she would send them to her.

The respondent arranged a meeting for the 13 September. The respondent asked her if she wanted to bring the matter to court to which the complainant replied why do you ask?” The respondent replied that she needed to know in advance as to “what I should do next”. The respondent advised her that she would have to sign a document in advance of her receiving her P45. The conduct of the meeting, however, indicated to the complainant that this was a reluctant offer. The respondent informed her that she could return to work conditional upon her working at the weekends. The complainant understood that there would be no further flexibility and no weekends off. The complainant needed longer lunchtimes to pick up her kids from school. She wanted holidays during school holiday periods. Holidays in January, February and in two weeks in August were the only leave slots available to the complainant. She advises that she had been allowed take longer lunch times sometimes. The complainant declined the offer.

The respondent advised at that meeting that a number of other employees found the complainant to be unfriendly and that it had been the cause of one employee leaving. The alleged concerns of staff members were never put to the complainant.

Afterwards, the complainant’s representative informed the respondent of the complainant’s wish to return to work and suggested that the complainant could work every second Sunday to which the respondent replied that she would have to work to her contract which was a Saturday to Friday week.

There was no disciplinary procedure involved in terminating the complainant’s employment on 23 August.

The complainant advises that two part-time employees were taken on in May 2017.

The complainant’s loss is 20 weeks salary.

The complainant submitted copies of 5 job applications made between August and December.

CA-00015074-002

This is a complaint under the Payment of Wages Act,1991 for payment of 2 weeks salary in lieu of notice.

CA-00015074-001Respondent’s Case:

The respondent did not attend the hearing nor advise in advance of inability to attend.

The respondent did submit a document received a week after the hearing. This was considered to be inadmissible.

CA-00015074-002

The respondent did not attend the hearing nor advise in advance of inability to attend. The respondent did submit a document received a week after the hearing. This was considered to be inadmissible.

CA-00015074-001.

I find on the basis of the uncontested evidence of the complainant that she was dismissed on the 23 August 2017 when the respondent advised her that she had no more work or space in the shop for her and that she would send on her p45.The respondent was open to her return to work on 13 September but on different terms to those on which the complainant states she had enjoyed up to that point.

Section 6 of the Unfair     Dismissals Act 1977 as amended (‘the Act’) provides inter alia as follows:

“(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair     dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

Were the “substantial grounds” required by the Act manifested in the conduct of the complainant?

The complainant identified her absence from work with the consent of her employer as the grounds for her dismissal. While it is careless of the complainant to deprive the respondent of the clarity which is deserved in the circumstances, and very inconvenient, I do not find that this is a substantial ground warranting dismissal given that in the absence of certainty, no notice of her employment being endangered was put to her.

Section 5 of the 1993 Act   allows for an examination of the

“reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal.”

This has been interpreted as a requirement for decisions to be in line with constitutional principles, natural justice and fair procedures. The case of Frizelle –v- New Ross Credit Union Limited [1997] IEHC 137 (High Court on Circuit), stated inter alia in examining the principles to be established to support the decision to terminate the employment for misconduct that

“the actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee with regard to the dismissal.”

The complainant’s uncontested evidence is that she was summarily dismissed on 23 August. Her contract of employment includes grounds for summary termination. Absence of the sort taken by the complainant is not included in the list of reasons for summary termination. The contract states that the notice should be in writing. The contract does not include a procedure for termination but that does not deprive the complainant of the right to be told in advance that the meeting arranged by the respondent for 23 August contemplated dismissal, or to be advised of her right of representation. Nor was she advised of an appeal process. There was a total absence of a fair procedure or indeed any procedure. The offer of a return to work on 13 September was on conditions in keeping with the contract which she signed but were a variation of the practices in place from the commencement of her employment.

I find on the basis of the uncontested evidence that the dismissal was unfair both substantively and procedurally.

Loss.

The complainant’s loss is €456 x 20 weeks. Her own contribution to the dismissal is significant. She took unpaid leave with the knowledge of the respondent. The text messages submitted in evidence by the complainant showed the respondent’s understanding and acceptance of the complainant’s plight. The complainant had to be reminded of her obligation to provide evidence as to her return. The respondent had to initiate the enquiries. Some statements in the text messages submitted by the complainant indicated an uncertainty on her part as to whether she would return and her phone message to the respondent in early August saying she would return when “I will be ready and feel better” deprived the respondent of the clarity around the complainant’s commitment to return to her job.

Efforts to mitigate loss.

The complainant submitted copies of 4 job applications made between August and December and advises that she has applied for many more.

I find that her complaint is well founded.

CA-00015074-002

The complainant asserts that there was a deduction from his wages contrary to section 5 of the Payment of Wages Act, 1991. She was not paid in lieu of notice. The definition of wages in Section 1 (b) of the 1991 Act includes

“any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee appropriate prior notice of the termination, being a sum paid in lieu of the giving of notice”

The complainant’s contract of employment entitles her to two weeks’ notice. Her statutory entitlement is also 2 weeks.

On the basis of the uncontested evidence of the complainant, I find her complaint is well founded.

She is entitled to €912 in relation to payment in lieu of notice

CA-00015074-001

I find that the complaint is well founded. I decide that the complainant was unfairly dismissed. The respondent should pay the complainant the sum of €3000.

CA-00015074-002.

I find the complaint is well founded. I decide that the respondent should pay the complainant the sum of €912, an amount equal to two weeks salary in lieu of notice.

Unfair dismissal: respondent offers to withdraw dismissal; lack of procedure.

Non- payment of notice.