Complainant

Respondent

Anonymised Parties

A tanning salon worker

A tanning salon

Representatives

Gordon Curley, O'Gorman Cunningham & Co., Solicitors

Michael G. Shiel, Michael G. Shiel & Co. Solicitors

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-00018294-001

05/04/2018

The complainant was sacked for closing up early on two occasions and claiming payment for the time not worked. She alleges no fair procedures were applied prior to her dismissal.

The complainant worked two days per week for the respondent and was dismissed for allegedly closing up too early. Her normal finishing time was 9.30pm. She admits to closing slightly early when the salon was not busy, as do the other employees but not before 9.00pm. Accordingly, the dismissal was a disproportionate response by the respondent. She was not afforded proper disciplinary procedures.

The respondent states that the complainant was dismissed following a list of misdemeanours and breach of contract on 7th and 16th March 2018 whereby she finished work early but claimed for pay until the time she should have finished. A client informed the respondent that she had been unable to access the premises on 7th March at 9.00pm. The respondent’s manager viewed the CCTV and saw that the complainant closed the gate at 8.41 and the door at 8.50. She then left at 9.00pm. The respondent invited the complainant to meet with the manager on 28th March 2018 and offered to show her the CCTV footage which the complainant declined.

Section 1 of the Unfair Dismissals Act 1977 defines a dismissal as follows;

“dismissal”, in relation to an employee, means—

(a) the termination by his employer of the employee's contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

Section 6 (6) of the Act states;

(6) In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal

The burden is therefore on the employer to demonstrate that the dismissal is fair.

The Code of Practice on Disciplinary Procedures (Declaration) Order 1996 (S.I. No 117 of 1996) includes the following advice on the principles of natural justice to be applied in any disciplinary case;

• That details of any allegations or complaints are put to the employee concerned
• That the employee concerned is given the opportunity to respond fully to any such allegations or complaints
• That the employee concerned is given the opportunity to avail of the right to be represented during the procedure
• That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors, circumstances.

It is clear that the respondent failed to afford the complainant proper procedures in dismissing her.   She was not advised before the meeting held with of her of the purpose of the meeting nor of her right to be represented and therefore was not in a position to respond properly to the allegations. She did not receive an impartial hearing as is evidenced by the fact that the manager had a pre-prepared letter of dismissal ready to give her and had clearly made up her mind on the issue before the meeting. The dismissal is therefore unfair.

The complainant has indicated a preference for compensation. An award of compensation for unfair dismissal is to make reparation for loss actually incurred which includes future loss in consequence of the dismissal. There is no provision for including an amount intended as punitive or exemplary compensation. Compensation is defined in Section 7(1)( c) of the Act as ;

(c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (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) as is just and equitable having regard to all the circumstances, or

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances,

The complainant worked for 12 hours per week for the respondent. She was dismissed on 22th March 2018 and confirmed at the hearing that she had commenced work again in August 2018. She further confirmed that she was unavailable for work for one month during the intervening period due to going abroad. Her loss therefore is calculated based on 14 weeks without work.

The complaint in relation breaches of the Unfair Dismissals Acts1977 - 2015 is well founded and I order the respondent to pay the complainant €1,600 in compensation.

The total award is redress of the Complainant’s statutory rights and therefore not subject to income tax as per s. 192 A of the Taxes Consolidation Act 1997 as amended by s.7 of the Finance Act 2004.

Unfair dismissal.   No proper procedures.