ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00019122
Parties:
| Complainant | Respondent |
Anonymised Parties | A Hairdresser | A Hairdressing Salon |
Representatives | Self-Represented | Self-Represented |
Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
CA-00024857-001 | ||
CA-00024899-001 |
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015; Section 7 of the Terms of Employment (Information) Act, 1994and Section 13 of the Industrial Relations Acts 1969 following 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).
This Adjudication is closely linked to Adj 18493 & CA-00023769 which runs on the same grounds in relation to Section 7 of the Terms of Employment (Information) Act, 1994.
Considerable strongly contested verbal evidence was given at the Hearing. The Respondent produced a Written submission supported by copy Text messages. After extending the allocated time for the Hearing to allow for as much material as possible I decided to conclude matters. The question of additional materials being provided was considered but I felt that sufficient evidence had been presented to allow a Recommendation under the Industrial Relations Act,1969 be made.
Background:
The issues in contention concern the alleged Unfair Dismissal of the Complainant by a Hairdressing Salon and a related complaint that no Terms and Conditions of Employment were ever provided. |
1: Summary of Complainant’s Case:
1:1 Terms of Employment (Information) Act, 1994, CA-00024857-001 The Complainant alleged that she did not receive a Contract of Employment or Statement of Terms and Conditions of Employment. 1:2 Industrial Relations Act,1969 Complaint, CA-00024899-001 The Complainant commenced working for the Respondent of the 1st August 2018. Initially things went well. However, by November 2018 tensions arose between the Parties over issues of providing Bank Account details, Previous Training background/Certificates and basic interpersonal differences. Quite an amount of bad language was used by the Respondent towards the Complainant and unsavory references were made regarding her family. She was undermined and made to feel worthless in front of other staff members. She was regularly given broad hints that she should leave the Salon and seek employment elsewhere. Things got so bad that by the 5th December 2018 the Complainant went sick on grounds of Stress. The fist sick cert was for the period 5th December to the 17th December. A second certificate was provided for the period 18th December to the 14th January 2019. The Complainant received a letter of termination, dated the 31st December 2018, which informed her that her employment had ended on the 18th December 2018. No fair procedures were followed -there was no investigation or opportunity to state her case. There were no warnings given or opportunity to appeal offered. It was grossly unfair on all headings. |
2: Summary of Respondent’s Case:
The Complainant had commenced employment on the 1st August as stated. The Respondent business was effectively a “start-up” and the owner Ms. Xa was anxious that everything run smoothly. After the Complainant started it became clear that her experience in Hairdressing was not quite what it should be. Her skill set was limited. She was not qualified to do Gents Barber cuts for example. The Respondent was willing to work thorough this but asked for Insurance and Quality reasons for the Complainant’s Training and Experience certificates from her previous employer. These proved very difficult to secure. The Respondent was introducing a PC based Payroll system and the Bookkeeper needed Bank Account and e-mail address from the staff. The attitude of the Complainant was quite negative and uncooperative here. A lot of unnecessary confusion arose over what names the Complainant was using for Official/Revenue/Social Welfare purposes. However, things progressed and there were no major underlying tensions. The Sick Note of the 4/5th December was complete surprise to the Respondent as she was not aware of any underlying issues so serious as to cause employment Stress to the Complainant. The first Christmas trading period was anticipated to be particularly busy in the business. The absence of the Complainant for the month of December was a very crucial issue for the Respondent. A substitute staff member would have to be hired to cover appointments already made. On the 11th December the Respondent received WRC communications that the Complainant had referred a case against the Salon. Numerous efforts to contact the Complainant regarding a possible Return to work date proved fruitless. The Respondent was effectively being left high and dry by the Complainant. All communications were now being carried out by the Complainant’s’ mother. Having taken time to consider the issues the Respondent wrote a Termination letter on the 31st December 2018 pointing out that the Complainant had not provided any previous Work or Experience certificates, despite numerous requests and had not followed proper procedures in relation to sick certs. The difficulties regarding the Christmas period were also mentioned. The employment was ended on the 18th December 2018. It was a valid business decision as the Complaint had not been truthful in her work History, had not followed proper sick Pay procedures and had a generally bad attitude to reasonable employer requests. It was not an Unfair Dismissal. |
3: Findings and Conclusions:
3:1 The Relevant Law. 3:1:1 Unfair Dismissals Claim - CA-00024899-001 As the period of employment is less than 12 months and no special grounds exist for reducing this time limit the Unfair Dismissals Act,1977 cannot apply. Accordingly, the proceedings are taken under the Industrial Relations Act,1969. This allows for the Adjudicator to make a Recommendation on the issues involved in the dispute. However, the terms of SI 146 of 2000: Statutory Code of Practice on Grievance and Disciplinary Procedures still clearly apply. The Code of Practice is basically a statement of the rule of Natural Justice in a Grievance /Disciplinary case. Essentially this requires that a dismissal be grounded in a proper investigation, full details of the allegations being made to be given to the employee, allowing the employee to tell, in response, their side of the story, have a representative, possible warnings that might be given and the right to an Independent Appeal of the dismissal decision. In deciding on Redress, the Adjudicator is allowed to review the case in its complete context and if needs be make allowances for the contribution of the Employee to the Dismissal. 3:1:2 Terms of Employment (Information) Act, 1994 CA-00024857-001 Section 3 of the Act requires that an employee be informed of the main terms and conditions of employment within two months of commencing employment. 3:2 Notwithstanding the legal positions set out above all cases rest on their own merits and particular evidence and I will now consider this. 3:2:1 Consideration of the Evidence - both Oral and Written. Text messages etc. It was immediately obvious at the Oral Hearing that a degree of personal antagonism had developed between the parties. The following facts were evident, and I concluded as follows. 1. The Dismissal was procedurally Unfair. All the rules of good procedures were not followed in terms of warnings, hearings, appeals or allowing representations. The Dismissal is Unfair. 2. The actions and behaviours of the Complainant were far from blameless and contributed majorly to the Dismissal. The combative approach adopted by the Complainant to the previous certificates of training and the Bank Account details /names confusion being obvious examples. The taking of Sick leave from the 4th December to the 14th January, although medically certified, was certainly not calculated to be of assistance to the Respondent Hairdressing business in its major Christmas season. 3:3 Redress/Compensation Recommended. Bearing in mind the total context of this case and following careful consideration of all the evidence presented I recommend the following Redress award. 3:3:1 Unfair Dismissal Complaint A Lump Sum of €1,000 (but reduced by 50% for employee contribution to the Dismissal) giving a final figure of €500 be paid to the Complainant. 3:3:2 Terms and Conditions of Employment complaint A sum of € 100 be paid to the Complainant in compensation for a breach of a statutory right. The Taxation of both awards to be considered in conjunction with the Revenue Commissioners. |
4: Decision and Recommendation
Section 41 of the Workplace Relations Act 2015; Section 7 of the Terms of Employment (Information) Act, 1994and Section 13 of the Industrial Relations Acts 1969 requires 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 | Complaint/Dispute Reference No. | Summary Decision/Recommendation |
CA-00024857-001 | Claim is well founded. An Award of €100 is made in favour of the Complainant. | |
CA-00024899-001 | The Dismissal was found to be Unfair. The Complainant contributed 50% to the Dismissal. It is Recommended that a compensation sum of €500 be paid to the Complainant. |
Dated: July 11th 2019
Workplace Relations Commission Adjudication Officer: Michael McEntee
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