ADJUDICATION OFFICER DECISION & RECOMMENDATION

Adjudication Reference: ADJ-00008874

Parties:

	Complainant	Respondent
Anonymised Parties	A Salon Worker	A Salon

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973	CA-00017546-001	08/02/2018
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00017546-002	08/02/2018
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00017546-003	08/02/2018
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00017546-004	08/02/2018
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00017546-005	08/02/2018
Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts	CA-00011729-001	02/06/2017

Date of Adjudication Hearing: 30/01/2019

Workplace Relations Commission Adjudication Officer: Michael McEntee

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015; Section 11 of the Minimum Notice & Terms of Employment Act, 1973 : Section 7 of the Terms of Employment (Information) Act, 1994;Section 27 of the Organisation of Working Time Act, 1997and Section 13 of the Industrial Relations Acts 1969following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Background:

The issues in contention between a Worker and a Salon concerned an alleged Unfair Dismissal, Minimum Notice, Statement of Terms of Employment, Rest Breaks, Sunday Work premiums and alleged Unpaid Holidays.

1: Summary of Complainant’s Case:

Act	Complaint/Dispute Reference No.	Summary Complaint
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973	CA-00017546-001	Proper notice not paid on Termination of Employment
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00017546-002	No Statement of T&Cs and no Payslips provided to employee
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00017546-003	Proper work breaks not given
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00017546-004	Sunday premium not paid
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00017546-005	Proper Holidays not given
Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts	CA-00011729-001	Unfair dismissal without proper procedures. No warnings given and no Appeal offered.

2: Summary of Respondent’s Case:

Act	CA Number	Complaint	Respondent / Employer Response.
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973	CA-00017546-001	Proper notice not paid on Termination of Employment	Notice Paid on termination -Payslips and cheque record provided.
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00017546-002	No Statement of T&Cs and Payslips provided to employee	Statement of T &Cs ( 17th November 2016) and Payslips provided.
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00017546-003	Proper work breaks not given	Evidence in writing from other former employees provided of breaks being given.
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00017546-004	Sunday premium not paid	Pay Slips provided -number of Sundays worked was minimal as Salon closed during the Winter months.
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00017546-005	Proper Holidays not given	Pay Slips provided to prove holidays paid.
Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts	CA-00011729-001	Unfair dismissal without proper procedures.	Dismissal was based on the economic/business necessity to reduce staff as the type of business involved had gone quiet. The Turn over could not sustain the staff numbers employed. The Complainant was the staff member with the shortest service.

3: Findings and Conclusions:

The key evidence in this case was in the Oral presentations which were supported by some written materials. The Respondent was represented by the Owner/Manager and the Complainant represented herself. The Respondent produced detailed Pay Slips and other documentary evidence. A major piece of evidence was the Pay Slip of the 28/04/2017 which was a Composite Payment covering Basic Pay, Notice and “Holiday /Bonus/Other.”. The final nett was €478.23 which the Complainant acknowledged receiving. She remained unclear as to how the figures were arrived at. The Respondent volunteered to ask her Accountant to provide evidence as to how he had compiled ther Pay Slips. In response to Adjudicator questions she confirmed that the Accountant was Professionally qualified and as far as she believed had proper PI Insurance. Regarding the Unfair Dismissal claim the complaint has less than 12 months service and the Claim is under the Industrial Relation Act, 1969 supported by SI 146 of 2000 -Code of Practice on Grievance and Disciplinary Procedures. To summarise I have set out the individual Complaints and my decisions below.
Act	CA Number	Complaint	Adjudicator Decision and Recommendation
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973	CA-00017546-001	Proper notice not paid on Termination of Employment	Pay Slip evidence as provided by Accountant indicates that Notice was paid. Claim must be dismissed as not well founded.
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00017546-002	No Statement of T&Cs and Payslips provided to employee	T&C Documents provided by the Respondent were in order. No Complainant Signed T&Cs in evidence. On balance of probability I found in the Respondent’s favour that Document ahd been issued. Claim is not well founded.
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00017546-003	Proper work breaks not given	Evidence in writing from other former employees provided of breaks being given. The issue here was the credibility of the Oral evidence from the Parties and the written statements from other employees. On the balance of probability, I found that breaks had been allowed. Claim had to be dismissed as not well founded.
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00017546-004	Sunday premium not paid	Pay Slips provided -number of Sundays worked was minimal as Salon closed during the Winter months. This was unclear – only two Sundays were worked by Respondent statement. Time Off In lieu of One Hour per four-hour Sunday shift was given as Sunday premium. While this was not specified clearly in any written documentation or Pay Slips I had to rely on the Oral presentations to guide me. On the Balance of Probability, I found in the Respondent’s favour. Claim must be dismissed as not well founded.
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00017546-005	Proper Holidays not given	Pay Slips and Cheque records volunteered /provided to prove holidays paid. Claim must be dismissed.
Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts	CA-00011729-001	Unfair dismissal without proper procedures.	The Complainant had less than 12 months employment service, so the claim was under the IR Act, 1969. Oral evidence was crucial here. There was a complete conflict of evidence regarding the incidents of the 15th April 2017. It was clear that the Complainant had been quite upset and verbal exchanges with liberal use of the “F**” word had followed. On the Balance of Probability, I found that the Respondent evidence was more clear cut regarding the incidents. The Complainant was quite vague in recalling clearly some key details. The evidence was that the Dismissal had been for economic reasons and had been a survival decision for the Company. As far as I could see from the evidence there were no Disciplinary overtones involved, as the Complaint had suggested, regarding any alleged Customer complaints. It was an economic /business decision. Notice & holidays had been paid. On the balance of Probability, having heard all the oral evidence and considered the written details supplied I came to the view that this was not at first reading an Unfair Dismissal. However, in keeping with SI 146 of 2000 -Code of Practice on Grievance and Disciplinary Procedures* there were major shortfalls in the Respondent procedures. The Complainant was not given any warning of the Dismissal decision, no representation was allowed or offered and No Appeal opportunity, post the decision, was allowed. According on procedural Grounds the claim is well founded. An Unfair Dismissal took place and Redress is required for the Procedural Shortfalls.

Decision:

Section 41 of the Workplace Relations Act 2015; Section 11 of the Minimum Notice & Terms of Employment Act, 1973; Section 7 of the Terms of Employment (Information) Act, 1994; Section 27 of the Organisation of Working Time Act, 1997 and Section 13 of the Industrial Relations Acts 1969 require that I make a decision and recommendation in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions of the cited Acts.

Act	CA Number	Complaint	Summary Decision & Recommendation. Please refer to Section Three above for detailed reasoning.
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973	CA-00017546-001	Proper notice not paid on Termination of Employment	Claim dismissed as Not Well Founded. Notice was paid.
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00017546-002	No Statement of T&Cs and Payslips provided to employee	Claim Dismissed. Proper Documents provided.
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00017546-003	Proper work breaks not given	Claim Dismissed. Breaks were provided.
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00017546-004	Sunday premium not paid	Claim is Dismissed. Sunday Premium of Time in Lieu was provided.
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00017546-005	Proper Holidays not given	Claim is Dismissed. Holiday balances paid on leaving employment.
Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts	CA-00011729-001	Unfair dismissal without proper procedures.	Industrial Relations Recommendation and Redress: On Procedural grounds alone, I find that an Unfair dismissal took place. Redress of € 500 being approximately 4 weeks’ pay is Recommended. Taxation to be a matter for Consultation with the Revenue Commissioners.

Dated: 04 April 2019

Workplace Relations Commission Adjudication Officer: Michael McEntee

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