Complainant

Respondent

Anonymised Parties

A Beauty Therapist

A Beauty Salon

Representatives

Julie O'Connor Joseph T. Deane & Associates

Frank Trappe   Citizens Information Centre

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00019512-002

28/05/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00019512-003

28/05/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00019512-004

28/05/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00019512-005

28/05/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00019512-006

28/05/2018

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

CA-00019512-007

28/05/2018

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

CA-00019512-008

28/05/2018

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

CA-00019512-009

28/05/2018

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

CA-00019512-010

28/05/2018

The complainant withdrew CA 19512 -002 and CA 19512- 010.

The complainant commenced her employment with the respondent, on a part time basis, in October 2010. In April 2011 she was made full time. She was paid €13.50 per hour and she worked 35 hours per week. The complainant often worked additional hours but she was never paid for it. She encountered behaviour that she deemed to be bullying in nature and due to that and the stress it caused her she has been unable to work since then and has been in receipt of disability allowance.

The complainant has had mental health issues and has been attending a counsellor for several years. The issues she encountered during her employment formed part of her counselling sessions. The longer she worked in the respondent’s salon she began to feel that she was being treated unfairly. This got worse as the years went on.

One day, approximately 2 years ago, she was asked to cover a Tuesday. Tuesday with her usual day off. She attended with her counsellor on a Tuesday. She told her manager that she would have to see if she could move her appointment. She called her counsellor on the Monday to see if she could move the appointment. She was told that she could move it but that she would be charged for the session. On that basis she decided to attend for the appointment. She told her manager that she couldn’t work on the Tuesday because of her appointment. When she came into work on the Wednesday, her manger said “how much counselling do you need that you couldn’t miss it for one day”. She was frosty towards her for the rest of the day. The complainant noticed after that, that she would she was given all the sloppy jobs to do.

On the 15th of February 2017 there was an altercation at the respondent’s premises. The owner of the premises made a smart comment about a bar of chocolate that had been consumed. The complainant felt that the comment was directed at her. She was very embarrassed by it because she was with a client at the time. Then to make things worse when the owner was leaving she turned to the complainant and said “when I am off tomorrow don't you be slacking”. The following day, which was Friday the 16th, the complainant went into work. The owner was not there. Another employee asked the complainant how she was feeling after the comments that were made to her the night before. He complainant told her that she was embarrassed by it. The other employee told her just to ignore her. The complainant decided not to ignore it and went to her manager to ask her how she could deal with the situation. Her manager said that she just wasn't going to get involved in something so trivial. The complainant then got very upset and began to cry. She left the premises and went out to her car to call her mum. Her mother advised her to make an appointment with the doctor, which she did. Then the owner came in she asked the complainant what was going on. When the complainant explained it to her, the owner then told her that she was been far too sensitive. The complainant then stated that her manager was having personal problems and due to that she was left to do all of her homework and half of the manager's work. She said she couldn't cope with the work load. She then told the owner that she had had enough and she was thinking of moving on. The owner asked her not to move on and stated that she needed her and she was hoping that she could take over the running of the salon sometime in the future. The following day everything was good in the salon. The complainant went to see her doctor on Monday but at that stage she felt that she had in fact overreacted to the comments that were made on the 15th and she told her GP that she felt everything was going to be OK. On Wednesday the 21st when she woke up there was a text from her manager on her phone in relation to an appointment that the complainant had moved into the manager slot. When asked if she had moved the appointment the complainant stated that she had and explained that it made more sense because she had five clients all of whom were having different beauty treatments and the manager only had one. She felt it made sense to balance the workload. Her manager got very cross with her. She told her mother that she wasn't fit to go into work that day but her mother persuaded her to go. She went in. The complainant was the first to arrive at the salon that morning. Sometime later the owner and her manager came in. They completely ignored her. Then the owner said that she needed to talk to her. She asked her why she had moved one of her clients over to her manager's schedule. The complainant attempted to explain why she had done it. The owner got very upset and said that she hadn't time to deal with this today and then she stormed off. Later on that day the complainant was having a cup of tea at the back of the salon when her manager came down, took the cup off her and poured it down the sink. At 8 p.m. when the salon was closing the owner came down locked the salon door and shouted at the complainant “I am having a meeting now. I am not doing this anymore.” The complainant tried to explain but the owner was just shouting at her. At one point she said “I have nothing left to say to you”. The complainant found the altercation to be intimidating. She told them that she felt intimidated because both the owner and the manager were shouting at her. When she told them that she felt intimidated the manager said in a mocking fashion ”Ah look at her, she feels intimidated” The complainant started to cry. As she walked away from the two of them she did say” I can't be bothered with you anymore”. Her manager replied “I am your boss and if I say for you to get down on your knees and scrub the skirting boards, you will do it.” Then the owner said “just leave her she's not worth it.” The complainant left and she did not attend for work on the following day. Nobody from the respondent contacted her to see what the situation was. On the Friday she went to her doctor and got a sick certificate certifying her unfit for work, due to work related stress, for a period of two weeks. She put a sick cert in the respondent post box over the weekend.

The complainant stated that she got so upset about the whole situation because she had built up a very close relationship with some of her clients over the years. She felt that she was letting them down. During her sick leave she did text her clients to say that she was no longer working for the respondent. Some of those clients contacted her and ask her if she could do some treatments for them. She said that she could. One client came to her home and gave her flowers and a card.   The respondent has alleged that she set up or attempted to set up a beauty room in competition with them. They complainant stated that some of the girls who worked at a local gym asked her if she could do their eyebrows for them and in return they allowed her use the gym for free. She agreed to do their eyebrows on that basis.

The complainant has been unfit for work since her employment with the respondent ceased. She has been in receipt of Disability allowance since then.

The complainant never received a contract of employment.

The complainant was not paid the correct amount for her holiday pay and public holidays.

The owner of the respondent entity gave evidence stating that the first issue she encountered with the complainant was on Thursday the 15th of February. She was leaving the salon early that day. She went to the fridge to get a piece of chocolate and noted that it was all gone. She said to the manager “Oh my goodness, that chocolate got short shrift”. They had a laugh about it. She was unaware that the complainant was upset about that comment until she came in on Friday 16th. On Friday the 16th of the complainant came to talk to her manager about the comment the night before. The complainant told her manager that she was disgusted that the comment was directed at her and that she felt it was directed at her she had weight issues. Her manager explained to her that it was just a joke between herself and the owner and had nothing to do with the complainant. On that basis the manager said that she wouldn't disturb the owner on her day off in relation to such a trivial matter. The owner decided to come into work that day. She spoke to the complainant about the comment and told her that it was not directed at her and it was just a little joke between herself and the manager. She apologised to the complainant for any offence she may have taken.

Following that, the owner and manager noticed a change in the complainant’s attitude towards them and her work. Everything became an issue. They felt like they were walking on eggshells around her.

On Wednesday 21st of February the complainant moved an appointment from her schedule into her manager’s schedule. When the manager noticed it, she did send the complainant a text asking her if she had moved the appointment. The complainant was told by the owner that she was to move that appointment back but in defiance of the owner’s request, she did not.

When the owner came into work that day, the complainant came up to her and started to explain why she had moved the appointment by stating that “it just makes sense”. The owner said that in fact it did not make sense but even if it had, she had specifically requested the complainant not to move the booking and felt that her actions were one of defiance.

At the end of the day the owner did lock the door. She did that every evening as a matter of security. She did call a meeting as she wanted to explain the reasons why the complainant shouldn't move appointments into other people's schedules. She tried to explain in a calm fashion why she objected to appointments being moved but the complainant put her hands over ears and shouted, “I can't listen to this shit”. She said “just pay me and let me go”. She said that three times. As she was leaving, she said “I am going and I won't be back.” The respondent felt completely out of her depth at that point because this was the first time in 30 years of her business that she had to deal with this type of issue.

When the owner came in to work on Tuesday 27th of February she received the complainant’s sick certificate. She was very confused by this because she understood from the conversation that she had had with the complainant on the 21st, that she was in fact resigning her position. She contacted her solicitor because she did not know what to do in relation to the issue. Her solicitor advised her that because the complainant was on certified sick leave for a period of two weeks, that she should not contact the complainant during that period of time. The sick certificate expired on 9th of March. On Tuesday the 6th of March the owner received a text from a number of clients saying that they had heard that the complainant was no longer working for the respondent. Later on that day, a client called to make an appointment with the complainant. The owner took the appointment and then the caller said “how can I have that appointment when the complainant is no longer working there.” The owner asked the client how she knew that the complainant was no longer working there. The client told her that she had received a text message from the complainant some days earlier stating that she no longer worked for the respondent.

The respondent concedes that the complainant did not receive a written contract of employment.

CA 19512 -008

The dismissal itself is in dispute. In those circumstances the burden of proof shifts to the complainant. Having considered the evidence of both parties I am satisfied that the complainant did in fact resign her position with the respondent. Whatever about the confusion arising from the argument on the 21st. There can be no doubt that the complainant had formed the intention to leave her employment when she send the text message to clients on the 6th March telling them that she was no longer working for the respondent. In coming to that conclusion, I must now examine the conduct of both parties to establish whether the complainant voluntarily terminated her employment.

Section 1 of the Unfair Dismissal Act defines constructive dismissal as:

“the termination by the employee of his contract of employment with his employer whether prior notice of the termination was or was not given to the employer in the circumstances in which, because of the conduct of the employer the employee was or would have been entitled or it was or would have been reasonable for the employee to terminate the contract of employment without giving prior notice of the termination to the employer”

Section 7.—(1)

Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the rights commissioner, the Tribunal or the Circuit Court, as the case may be, considers appropriate having regard to all the circumstances:

(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

(c) payment by the employer to the employee of such compensation (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) in respect of any financial loss incurred by him and attributable to the dismissal as is just and equitable having regard to all the circumstances.

The burden of proof, which is a very high one, lies on the claimant. She must show that her resignation was not voluntary. As is set out in Western Excavating ECC Limited –v- Sharp, the legal test to be applied is “an and / or test”. Firstly, the tribunal must look at the contract of employment and establish whether or not there has been a significant breach going to the root of the contract.

“if the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance”

If I am not satisfied that the “contract” test has been proven then I am obliged to consider the “reasonableness” test

“The employer conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, then the employee is justified in leaving”

Furthermore, there is a general obligation on the employee to exhaust the Company’s internal grievance procedures as is set out in McCormack v Dunnes Stores, UD 1421/2008:

“The notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve her grievance with his/her employers. The employee would need to demonstrate that the employer's conduct was so unreasonable as to make the continuation of employment with the particular employer intolerable.”

The importance of exhausting the internal grievance processes was also highlighted in Terminal Four Solutions Ltd v Rahman, UD 898/2011:

“Furthermore, it is incumbent on any employee to utilise all internal remedies made available to her unless she can show that said remedies are unfair”

I find that the complainant herein did not exhausted the internal grievance procedure because there wasn’t one. On the one occasion she attempted to raise a grievance with her manager, her manger told her that she was not going to deal with the issue because she deemed it to be too trivial. In relation to the argument that occurred on the 21st, I am satisfied that the environment in which the meeting was held was very intimidating for the complainant. I am also satisfied that when she attempted to explain that she felt intimidated the owner and manager exacerbated the situation by making fun of the complainant. They did so knowing that the complainant had mental health issues. It was very evident from the conduct of the owner and the manager during the hearing that they worked as a team of two and that any complaint made to one about the other would not be entertained. An employer has a duty to have proper procedures in place and has a duty to law and to their employees to follow those procedures. It is an abuse of an employer’s position to call a meeting, given no prior notice to the complainant, fail to inform the complainant that she was entitled to have a representative with her, fail to notify her of the agenda for the meeting, lock her in and then, two against one have a heated altercation with her. I accept that the employer intentions were not to intimate the complainant but her execution of the process did just that. In those circumstance, I find that it was reasonable for the complainant to terminate her contract of employment.

I note that the complainant has been in receipt of Disability Allowance since her dismissal and as such has not been available for work. In those circumstances I am limited as to the award I can make.

In all the circumstances, I award the complainant € 1,880.00

CA 19512-007

Section 3(1) Terms of Employment (Information) Act , 1994

“An employer shall, not later than 2 months after the commencement of an employee's employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee's employment.”

I am satisfied based on the evidence of both parties that the respondent was in breach of Section 3. In all the circumstances I award the complainant € 940.00

CA 19512 -009

The complainant was not paid her notice nor was she given the opportunity to work out her notice.

4.— (1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—

( c) if the employee has been in the continuous service of his employer for five years or more, but less than ten years, four weeks,

The complainant commenced her employment with the respondent in October, 2010 and her employed ceased in February, 2018. On that basis the complainant is entitled to four weeks’ notice amounting to € € 1,880.00

CA 19512 -003, 004, 005 and 006

The complainant stated that she was not paid her correct holiday pay or for her public holidays. The complainant stated that if she has been allowed to work out her notice she would have been entitled to one days’ annual leave and one public holiday, St. Patrick’s Day. The respondent stated that the complainant was paid everything that was due to her. She checked with her accountant and was assured that all of the payments were made in accordance with the complainant’s statutory entitlements. At the end of her employment the respondent’s accountant calculated that the complainant was entitled to 7 public holidays including St. Patrick’s Day and Christmas day. She was paid for those.

Having examined the documentation submitted by both parties I am satisfied that the complainant has been paid her statutory entitlements. Accordingly, this part of her claim fails.