ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00020193
Parties:
| Complainant | Respondent |
Anonymised Parties | A Hairdresser | A Hairdressing Salon Owner |
Representatives |
Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
CA-00026745-001 | ||
CA-00026745-002 | ||
CA-00026745-003 | ||
CA-00026745-004 | ||
CA-00026745-005 |
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015; Section 8 of the Unfair Dismissals Acts, 1977 - 2015, Section 6 of the Payment of Wages Act, 1991;Section 7 of the Terms of Employment (Information) Act, 1994; Section 39 of the Redundancy Payments Act, 1967 and Section 11 of the Minimum Notice & Terms of Employment Act, 1973 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaints / disputes 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 concern a Hairdresser and the relocation of her palce of work in Dublin 6W, a Street Front premises, to a Shopping Centre premises in Dublin 14, some distance away. The Complainant is claiming Redundancy and Unfair Dismissal plus associated Working Time and Wages complaints. |
1: Summary of Complainant’s Case:
Act | Complaint / Dispute Reference No. | Summary Complaint |
CA-00026745-001 | Arrears of one weeks’ pay (€240), Holiday Pay (€346.80) and Notice Pay of €2774.40 are due. | |
CA-00026745-002 | No written Contract or Statement of T&Cs ever produced | |
CA-00026745-003 | The Complainant was employed, without incident, by the Respondent since June 2003. In November 2018 the Complainant was informed that the Dublin 6W premises had been sold and the Salon would relocate to a Shopping Centre in Dublin 14. This was unacceptable to the Complainant as she does not have a Mobility clause in her Contract. She does not have a contract at all. The loss of her Local Dublin6W Customer/client base would severely negatively impact on her 10% Commission earnings. Accordingly, by insisting that she move to the Dublin 14 Shopping Centre she was effectively Dismissed by her employer. | |
CA-00026745-004 | As stated above the move of the Work palce from Dublin 6w to Dublin 14 constitutes a Redundancy as defined in the Redundancy Payments Act, 1967. | |
CA-00026745-005 | The Complainant was not paid proper Statutory Notice on the cessation of her Employment. |
2: Summary of Respondent’s Case:
Act | Complaint / Dispute Reference No. | Summary Respondent Response |
CA-00026745-001 Arrears of one weeks’ pay (€240), Holiday Pay (€346.80) and Notice Pay of €2774.40 are due. | All proper payments were made regarding Holidays and Wages. Documentary Evidence was presented to this effect. | |
CA-00026745-002 No written Contract or Statement of T&Cs ever produced | It was accepted that no formal T & C s were provided. However, after some 15 years in employment the Complainant knew all the relevant details. Any Breach of the Act is trivial and is covered by the De Minimis rule as set out in various supporting Labour Court decisions quoted. | |
CA-00026745-003 Unfair Dismissal re move from Dublin 6w to Dublin 14 | In summary the Respondent had provided suitable alternative work on the same terms and conditions at a location convenient to the Dublin 6W address. The decision to end the Employment was that of the Complainant and no question of an Unfair Dismissal can arise. | |
CA-00026745-004 Redundancy | In summary the Respondent had provided suitable alternative work on the same terms and conditions at a location convenient to the Dublin 6W address. The decision to end the Employment was that of the Complainant and no question of a Redundancy can arise. | |
CA-00026745-005 Minimum Notice. | As the Complainant effectively resigned no question of Statutory Notice can arise. |
3: Findings and Conclusions:
3:1 The Legal Position and Key Questions the Redundancy (CA- 26745-004) and Unfair Dismissals Act (CA- 26745-003) Complaints. The main legislation in this case is the Unfair Dismissals Act,1977 and the Redundancy Payments Act,1967. The key question is that of “Place of Work” and what flows from that – can the Complainant employee be reasonable expected to relocate to another place of work or do they have a right to seek redundancy if a change of location is mooted by the Employer. The understanding of Place of Work is not a simple case of bricks and mortar. Legal Precedents are quite reliant on the UK Court of Appeal and in particular the Bass Leisure v Thomas case [1994] IRLR 104, at 112-113 and later in High Table v Horst [1998] ICR 409 &IRLR 513. The cases were cited by Legal Representatives in this case. A key issue in the references was the question of a Mobility Clause in any Contract of Employment and how it should be interpreted. Suffice to say the conclusion that could be drawn from the precedents was that a Mobility Clause in a Contract of Employment is not a “Carte Blanche “to an employer to move staff irrespective of actual circumstances and a reasonable approach /interpretation. In the case in hand, there is no written Contract of Employment and obviously No mobility clause to fall back upon. However, considering all the UK Precedents quoted with the Irish EAT cases also cited and taking into account the commentary in Employment Law in Ireland by Cox, Corbett and Ryan Clarus Press 2009 -Pages Sections 22-11 to 22-18 the principal conclusion is that each case must be seen in its own factual matrix. There is no one definitive position for either Employee or Employer and a “Reasonable” approach must be taken by a Court or in this case an Adjudicator in reviewing the case. For example, to ask a normally fixed base employee, such as a Hairdresser in this case, to move from Drogheda in Co. Louth to Bray in Co. Wicklow would have to be seen as Unreasonable by any normal person or Third Party. However, is a move from a Dublin 6W Street Front a to Dublin 14 Shopping Centre “unreasonable” and how do the Parties act in the case, is a matter for consideration in the lights of the facts and Evidence presented in the case. 3:2 Consideration of the Evidence Presented. While written submissions were made much of this case rests on the Oral Evidence of the parties given at the Oral hearing. I drew the following observations Regarding the Complainant 1. There was no written Mobility clause and any reliance on this had to be inferred, if possible, from the verbal contracts. 2. The Complainant lived in Lucan, Co. Dublin and the travel distances to the new location in Dublin 14 and the old location in Dublin 6w were in effect identical if not in favour of the new location. 3. It was well known for some time that the Dublin 6W location, a street front premises, was closing and a move to a Supermarket complex on the Sundrive Road had been canvassed the previous year without complaint by the Complainant. 4. The question of a Physical move was not the main issue for the Complainant but rather the impact on her Commission earnings of moving to Dublin 14. As a well-established Ladies Hairdresser in Dublin 6w she felt that most of her regular clients would not go to the Dublin 14 Shopping Centre and her Commission earnings would be down significantly. 5. This was, in the final analysis, the only issue involved for the Complainant. All Terms and Conditions as understood verbally and in practice over the years, basic wages etc were to remain unchanged. Regarding the Respondent 1. The Respondent, in his evidence, explained the need to consolidate/expand his business and the greater commercial opportunities of a Shopping centre location had been well known for some time. The move to the Kimmage/ Sundrive Road Shopping Centre had been a part of this plan but had unfortunately fallen through the previous year. The Dublin 14 Centre was a premier South City location with good commercial prospects. 2. However, he did agree that initially in the Dublin 14 Centre he would be operating upstairs from another Hairdresser and his name would not be over the Door. He explained that he was actively looking for a new “independent” Shopping Centre outlet for himself. 3. The business had now become effectively himself and the Complainant plus two junior Trainees. The Brand Name, for want of a better description, was well know and both he and the Complainant had a loyal customer/client base. Both parties agreed that the geographical Client base of the particular Hairdresser was quite extensive across the City and not exclusively Dublin 6W based 4. The Complainant was a key part of this Team for 15 years. The question of her possible loss of Commission from the Dublin 6W clients could have been discussed or a Wait and See approach could have been adopted to see if commission earnings did actually fall. 5. The move to the Shopping centre in late 2018 had not seriously impacted on the Client base and he maintained that 80% of the former Dublin 6W clients had moved with him to the Dublin 14 Shopping Centre. 6. The physical distance between the locations is approximately 5 Kilometres. 7. Within one week of ceasing with the Respondent the Complainant had secured an equivalent Hairdressing position with a competitor Salon in Dublin 6w. 3:3 Conclusions / Redundancy and Unfair Dismissal. Having reviewed all the evidence and in particular the Oral evidence I came to the following conclusions. The Geographic issue, i.e. Dublin 6w to Dublin 14 was not the main issue for the Complainant rather it was her view of the likely levels of Commission in the two locations Her considerations of this issue were based on a personal judgement of following the Respondent “name Brand” to Dublin 14 as opposed to staying in Dublin 6W and her “local” clientele. She chose the latter and within a week was re-established in another Salon in Dublin 6w. This was a personal commercial decision by the Complainant. It could not form the basis of a claim for either Redundancy or Constructive Dismissal. The move to Dublin 14 did not in any way alter her basic employment terms and conditions. Her employment was guaranteed in the new location. This was repeatedly confirmed both verbally and in writing. The physical distance while not minor could not be seen as particularly severe even allowing for Dublin traffic. The travel from home to the Dublin 14 Shopping Centre would in effect be similar to the travel to the Dublin 6W location. Minor issues were operating upstairs from another Salon and no Brand Name over the Door. However, the Respondent maintained that the Respondent business is a “Name” in Ladies fashion hairdressing which would to some extent alleviate the temporary lack of a public sign. In the quoted UK High Table case High Table v Horst [1998] ICR 409 &IRLR 513 Justice Jibson at Pages 409/419 refers to “Of course, the refusal by the employee to obey a lawful requirement under a contract of employment for the employee to move may constitute a valid reason for dismissal, but he issues of dismissal, redundancy and reasonableness in the actions of an employer should be kept distinct” The requirement for “Reasonableness” is a two-way street and in my view, in this case, the Complainant acted unreasonably in insisting on Redundancy/ Constructive Dismissal in regard to leaving Dublin 6w. The oft quoted Hennessy v Read and Write Shop Ltd UD192/1978 emphasises the key point of the “Nature and extent of inquiry” carried out by the Parties in a Dismissal or by extension a Constructive Dismissal as in this case. At the very least the Complainant could have gone to Dublin 14 on a trial basis, regarding Commission earnings- her main objection - before seeking to end the employment. She was legally represented, and this could have been “Legally covered” in any trial move. Accordingly, I did not accept that there were “reasonable” Complainant grounds for claiming either Redundancy or Unfair Dismissal in this case. 3:4 Payment of Wages Act Complaint. CA-00026745-001 The issue involved in this complaint were satisfied by explanation at the Hearing and are accordingly deemed resolved. Claim is set aside. 3:5 Minimum Notice - CA-00026745-005 As I took the view that as a Redundancy or an Unfair Dismissal case were not well founded a claim for Minimum Notice is also not well founded. It is set aside.
3:6 Terms of Employment (Information) Act, 1994 CA-00026745-002 As it was not contested that no written contract of employment existed there is a Breach of the Act here. However, after 15 years of trouble-free employment the T&Cs of the job were well understood by all parties. I award a Compensation Lump Sum of €250 to the Complainant for Breach of a Statutory Right in this case. |
4: Decision:
Section 41 of the Workplace Relations Act 2015; Section 8 of the Unfair Dismissals Acts, 1977 - 2015, Section 6 of the Payment of Wages Act, 1991;Section 7 of the Terms of Employment (Information) Act, 1994; Section 39 of the Redundancy Payments Act, 1967 and Section 11 of the Minimum Notice & Terms of Employment Act, 1973 requires that I make a decision 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 /Please refer to Section Three above for detailed reasoning. | |
CA-00026745-001 | Claim set aside as satisfactorily resolved at the Oral Hearing. | ||
CA-00026745-002 | Claim is well founded. An Award of €250 is made in favour of the Complainant. | ||
CA-00026745-003 | Claim is not Well Founded. Claim is dismissed on grounds of failure by the Complainant to satisfy a normal standard of “Reasonableness” | ||
CA-00026745-004 | Claim is not Well Founded. Claim is dismissed on grounds of failure by the Complainant to satisfy a normal standard of “Reasonableness” | ||
CA-00026745-005 | Cannot arise as well-founded Redundancy and Unfair dismissal not found. Claim is dismissed. | ||
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Dated: June 13th 2019
Workplace Relations Commission Adjudication Officer: Michael McEntee
Key Words:
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