Complainant

Respondent

Anonymised Parties

A Beauty Therapist

A Beauty Clinic

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-00015139-001

19/10/2017

The dispute concerns a Beauty Therapist who alleges that she was unfairly dismissed by a Beauty Clinic.

The Complainant commenced employment in 2009 on a 5 day a week basis. On the 19th May 2017 the Respondent told the Complainant that she was “giving up the business” but on the 29th May indicated that she had changed her mind and was continuing with the business. On the 30th May the Complainant was informed that her working hours were being reduced to two days a week. A Verbal Warning was issued to the Complainant regarding her alleged behaviour at work and the alleged inappropriate use of a mobile phone. The Complainant went on Sick leave from the 6th June until the 3rd October 2017. She returned to work and worked for a period of two weeks in a hostile and stressful situation. On the 18th October, the Respondent dismissed her for her alleged bad behaviour with clients in the previous two weeks. No warning was given and no appeal offered.

The dismissal is not in doubt. The Complainant worked as a good member of the team from 2009 until early 2017. Relationships deteriorated and the Complainant actively spread malicious rumours about the Respondent and discouraged potential and existing clients from attending for beauty appointments. The Complainant was in the habit of using her mobile phone to video/voice record the Respondent in the course of her business -this was a complete breach of privacy.

On the 31st May 2017 it was necessary to issue the Complainant with a Verbal Warning which she refused to sign or acknowledge. As the Respondent business was suffering from the situation it was necessary to put the Complainant on a two-day week commencing in June 2017. The Complainant went out sick shortly afterwards,

After a period of some four moths sick leave the Complainant returned to work in October. Relationships continued to deteriorate and the Respondent was left with no option but to dismiss the Complainant.

The Respondent produced considerable written evidence and a number of signed witness statements in support of her position.

3:1       The Law

Unfair dismissals act 1977 and SI 146 of 2000 -Code of Practice on Grievance and Disciplinary Procedures. Considerable case law was advanced by the Respondent in regard to the overcoming of procedural flaws in a Dismissal were the evidence was overwhelming in favour of the Respondent.

3:2     The Evidence

This case and the Oral Hearing was marked by a high degree of animosity between the parties. In the Oral Evidence of the Complainant it was maintained that the Respondent had initially offer to transfer/sell the Saloon to the Complainant. The Complainant alleged that she had incurred expenditures in the anticipation of taking over the business. When the Respondent withdrew the Transfer/Sale offer considerable bitterness appear to have entered the employment relationship. There could be no doubt that discussions had taken place between the parties regarding future ownership of the business but the Respondent was entitled to have a change of mind, inconvenient and irritating, as this may have been to the Complainant

It appeared that this issue and the dispute between the Parties had become quite a well know public issue in the local area. Clients were being directly impacted, made uneasy about patronising the saloon and the business was not trading as well as before. Clients were being contacted outside of the business and efforts were made to persuade them from using the services of the Respondent.

It was at this stage (Late May to early June) that considerable conflict of evidence became apparent. Signed Written Statements from Ms. XA -a lady who shared the physical business building but operated a separate Hairdressing Salon clearly stated that the behaviour of the Complainant was aggressive to the Respondent. The Complainant’s use of the recording facility on her mobile phone was clearly intimidatory to the Respondent. Other signed witness evidence was presented that basically supported the views of Ms.XA.

There was a high degree of anxiety regarding the impact on both the adjoining business (on behalf of Ms. XA) on the likely return of the Complainant from the long period of Sick leave in October. Again, things did not work out and the decision was made to end the Complainant’s employment.

It was vigorously stated by the Complainant that the written evidence from Ms. XA and the other witnesses had been fabricated and were no more than a tissue of lies orchestrated by the Respondent in support of her position. This argument I could not accept -the signed written evidence was very supportive of the Respondent’s positon and on balance appeared reasonable.

Ms. AX was invited by the Adjudicator to appear in person to corroborate her written evidence and allow for questioning by the Complainant. Ms. XA declined to give oral evidence on the grounds of a stated fear of physical intimidation by the Complainant. She offered to meet or telephone the Adjudicator privately in the absence of the Complainant. On the grounds of Natural Justice this offer was not accepted by the Adjudicator. However considerable weight had to be given to the oral evidence of the Parties, their demeanour and presentation.

The motivation of the Complainant in returning to work in early October was touched upon at the Oral Hearing -it was apparent that a desire to secure Statutory redundancy was certainly in the mind of the Complainant.

3:3 Procedural issues

The actual Dismissal on the 17th October 2017 was clearly not in keeping with proper procedures. No warnings of Dismissal were given and little opportunity for Discussion was offered. No opportunity to Appeal the Decision was offered. The provisions of SI 146 of 2000 -Code of Practice on Grievance and Disciplinary Procedures were nowhere in evidence.

3:4     Conclusions

Noting the legal precedents quoted by the Respondent the key question was whether or not the obvious lack of proper procedural procedures in October 2017 were fatal to any defence against an Unfair Dismissal claim.

Considering all the evidence, both oral and written and the physical demeanour of the parties at the oral hearing I concluded that the Dismissal in October had been procedurally unfair. SI 146 of 2000 was completely ignored and the basic tenets of Natural Justice in an Employment situation were ignored.

However, I also came strongly to the view that the open and acknowledged negative activities of the Complainant over the course of the Spring/Summer of 2017 contributed 100% to the Dismissal and no award of compensation is made.

Act

Complaint/Dispute Reference No.

Summary decision. Refer to Section 3 above for detailed reasoning.

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

CA-00015139-001

The Claim for Unfair dismissal is upheld but the activities of the Complainant are deemed to have contributed 100% to the Dismissal. No award of Compensation is made.