Complainant

Respondent

Anonymised Parties

A Hair Stylist

A Hair Salon

Representatives

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-00020640-001

18/07/2018

The complainant transferred to the employment of the respondents on November 1st 2016 when they took over a hair salon she had worked in since November 2015.   The respondents were the joint owners of the business and they worked there themselves. The complainant was one of three stylists and when they took over, she worked three days a week. In March 2017, they agreed that she could reduce to two days. She was dismissed on April 18th 2018 due to her failure to provide occasional cover on days other than the two days that she worked. She complains that her dismissal is unfair.

At the hearing, the respondents outlined the set-up in their salon, where most of the stylists were part-time. A contract of employment was presented in evidence which was given to the complainant.   Clause four is headed, “Flexibility” and states:

“It is an express condition of employment that you are prepared, whenever necessary, to transfer to alternative departments or duties within our business. This flexibility is essential as the type and volume of work is always subject to change, and it allows us to operate efficiently and gain maximum potential from our work force.”

The respondents explained why this flexibility is important. In a small salon where customers have to be looked after, cover is needed when a staff member is on holidays or due to unforeseen absences such as illness. All the staff were expected to be flexible and to work an extra day or on a different day of the week, depending on the needs of the business. They explained that staff booked their holidays well in advance so they could give plenty of notice if they needed someone to work an extra day, or change their days in a particular week. They said that when they agreed to the complainant reducing her days from three days a week to two days, they did so on the basis that she would agree to the flexibility set out in her contract of employment and work an extra day on occasion or change the days that she worked.

On June 15th and July 18th 2017, the complainant refused to work an extra day.   As a result, she was given a verbal warning. On August 11th, September 21st and November 25th, she again refused to work an extra day or to change the days that she normally worked.   She was given a second verbal warning.   On January 19th, she was again asked to work an extra day and she refused. On February 15th, due to the resignation of a stylist, she was asked to come in to work on an extra day that week, but she again refused.   On February 24th, she was issued with a written warning, which, according to the evidence of the respondents, she handed back, refusing to accept her copy. The letter states:

“Following on from many verbal discussions and your refusal on countless occasions to change or cover a shift, we have no alternative but to give you a written warning and attach it to your employee file. As your attendance and flexibility is a key factor in running our small salon and serving our customers/clients it had been made abundantly clear to your when you dropped from 3 days to 2 days that we may need to call upon your flexibility during holiday periods and such situations where we need additional staff.

“Consequently, this written warning is reminding you of the critical importance of your flexibility as this is a core requirement of your job description and employee contract.

“Continuing problems will result in further disciplinary action up to and including employment termination.”

St Patrick’s day in 2018 fell on a Saturday and the respondents said that, the week beforehand, they had a meeting with their staff to consider if they should stay open or if they should move their Saturday appointments to the previous day.   The staff agreed that they would do their Saturday clients on the Friday, and this required everyone to come to work on Friday instead of Saturday. The complainant’s schedule was for two days, Thursdays and Saturdays and closing on the public holiday would have meant that she only worked one day that week. Many of her Saturday clients were looking for an appointment on the Friday and she was asked to come to work, but she refused. As a result, the other stylists looked after her clients as well as their own. It seems that, after this refusal, the respondents decided to dismiss the complainant.

As she was due to get married on April 7th, the respondents said that they were reluctant to dismiss the complainant before her wedding. When she returned to work on April 18th, they said that they had a meeting with her at which they again outlined their need for her to be more flexible and explained that when she reduced from three days to two days, it was on the basis that she would provide cover on another day if she was needed, or that she would change her days in a particular week.   They said that the complainant said that she would not co-operate with this requirement. On this basis, they said that they had no alternative but to terminate her employment. On April 26th, she was issued with a P45 and paid one week’s pay in lieu of notice.

The complainant said that in November 2016, she needed to reduce her working week as she has a small child. She shares her child-care responsibilities with her husband and her mother, who both work. She disagreed that any meetings were held with her when she was asked to be flexible about her days. She also disagreed that she received any warnings about her failure to change her days or to work extra days. She said that she never saw the written warning of February 24th which was produced in evidence.

When she was asked to do an extra day in any week, the complainant said that she didn’t receive enough notice and she was always asked to provide an answer immediately.   With regard to working on the Friday before St Patrick’s day, she said that she was asked to give an immediate answer and to say if she could work that day. She said that she couldn’t say “yes” in an instant as she would have to arrange childcare. She said that she couldn’t help out when she wasn’t given enough notice. She said that she was always asked to work on Fridays and she said that the respondents were aware that her husband worked on Fridays, so she had no one to take care of her son.

In her evidence, the complainant said that she thought that one of the owners didn’t like her, and that this has something to do with why she was dismissed. She disputes that the respondents held back from letting her go before she got married.

Before the hearing concluded, I asked the complainant’s husband if he wanted to say anything in support of his wife. He said that he remembers her phoning him to ask him if he could take a day off on a certain Tuesday and being told by her that he would have to give an answer “now.” He said that he needed to talk to his boss, but he wasn’t given time to do so. As a result, he had to refuse to take the time off.

The Relevant Law

Section 6(1) of the Unfair Dismissals Act 1977 (“the Act”) provides that:

“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.”

The burden of proof rests with the respondent to establish the substantial grounds justifying the dismissal of the complainant in this case. Section 6(4)(b) of the Act provides that;

“…the dismissal of an employee shall be deemed, for the purposes of this Act not to be an unfair dismissal if it results wholly or mainly from …the conduct of the employee.”

The conduct which resulted in dismissal is the respondent’s view that the complainant failed to provide the flexibility required in her contract, which would have helped them to continue to look after their customers when staff were on holidays or when they needed to be off work. Their position is that this level of flexibility was required of all their employees to help with the efficient running of their business.

The questions to be decided are: Was it reasonable for the respondent to dismiss the complainant and was the process that ended with her dismissal a fair process?

Was the Decision to Dismiss Reasonable and in Proportion to the Conduct?

The nature of the hairdressing business is that hairdressers and staff need to be on the premises to provide a service to customers. If there’s not enough hairdressers in a salon, the business can’t accept appointments and customers go somewhere else. For an employee working two days a week, it was legitimate to expect her to do an extra day occasionally, or to change her days to facilitate other staff. This flexibility requirement was provided for in the complainant’s contract of employment and, in November 2016, it was the basis on which the respondents agreed that she could reduce her days from three to two.

From the respondent’s submission, it seems that in the 10 months from June 2017 until March 2018, the complainant was asked to work an extra day or change her days on eight occasions. In her evidence, she said that when she was asked to work an extra day, it was always a Friday, but the evidence shows that of the 10 occasions she was asked to work an extra day, three of these were Fridays.

In a small hairdressing salon, the capacity of the business to look after customers when staff are out sick or on holidays is reduced when employees are permitted to work part-time. This is why the requirement for flexibility is important, particularly from the qualified staff. The respondents said that they wanted to facilitate the complainant because she was an excellent hairdresser; however, they got to the point where her lack of support on days when they needed her to come to work brought them to a point where they felt that they had to let her go. It is my view that, having warned her that this conduct was not acceptable and, having warned her that she would be dismissed if she continued to be inflexible when she was required to work an extra day or change her days, this was not an unreasonable decision.

Was the Process Fair?

The disciplinary procedure in the complainant’s contract of employment is comprehensive and in line with similar procedures in even more organised workplaces. In a small business with a handful of employees, most of whom work part-time, it can be difficult to adhere to every step in a procedure; however, the contemplation of a dismissal is a serious matter and proper procedures should be followed. In the circumstances under consideration here, warnings were issued without following the procedure set out in the employee’s contract, which, on reflection, is possibly too sophisticated for a small operation. While they said that they had many meetings at which the respondents explained to the complainant that she was required to be more flexible with regard to her days of work, it appears that only one written warning was issued. When she refused to accept this warning when it was handed to her, it should have been posted. The complainant wasn’t given any notice of meetings and she wasn’t accompanied at meetings, although this is provided for in the disciplinary procedure. Finally, she didn’t receive a letter setting out the reason why she was dismissed, and she wasn’t informed that she could appeal the decision to dismiss her.

It is well established that what is required in disciplinary investigations is a fair procedure, which need not be an entirely flawless procedure. However, it must be acknowledged, that the objective of a disciplinary process is to circumvent the need for a dismissal in the first place. If the respondents here had followed their own disciplinary procedure more rigorously, the complainant may not have been dismissed, or, she might have resigned of her own accord. It is my view that there were too many flaws in the procedure that resulted in the dismissal of this complainant.

In conclusion therefore, I find that the termination of the complainant’s employment was unfair.   I find also, that by her consistent refusal to comply with a provision of her contract and to agree to work an extra day or to change her days of work on occasions, she contributed to a significant extent to her dismissal.

The complainant was paid by the respondent until April 26th 2018 and she started work again on may 9th 2018. She was therefore unemployed for two weeks. I have decided that the respondent is to pay the complainant €180.90, equivalent to one week’s pay, as compensation for her unfair dismissal.   As it has come to my attention that the respondents paid the complainant one week’s pay in lieu of notice, instead of her statutory entitlement to two weeks, I also decide that she should be paid one additional week’s pay. The total award therefore is €361.80.

Unfair dismissal, flexibility, procedures