ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00017073
Parties:
| Complainant | Respondent |
Anonymised Parties | A Sales Assistant | A Shop Owner |
Representatives | Mark O'Connell Lalloo Solicitors | Ciaran Loughran IBEC |
Complaint(s):
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-00022159-001 | 26/09/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00022159-002 | 26/09/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00022159-003 | 26/09/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00022159-004 | 26/09/2018 |
Date of Adjudication Hearing: 22/01/2019
Workplace Relations Commission Adjudication Officer: Roger McGrath
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 Section 8 of the Unfair Dismissals Act, 1977-2015 and Section 79 of the Employment Equality Acts, 1998 - 2015, 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).
Preliminary Point
At the outset of the hearing the representative for the Complainant requested that the Unfair Dismissal element of his client's claim be taken under the Industrial Relations Act. The Complainant's representative submitted that he was not seeking to change the substance of the claim and therefore the Respondent was on notice of the claim and not prejudiced.
In response, the Respondent submitted that the Complainant had legal advice from day one and the claim should have been submitted under the appropriate Act at the time the Complaint Form was submitted. The Respondent also pointed out that the fact of dismissal is in dispute in this case.
Decision on the Preliminary Point
The WRC Complaint Form is an important document and those competing it must give thought to the appropriate pieces of legislation under which they wish to process a claim. In the circumstances I have decided to refuse the Complainant's request.
Background:
The Complainant commenced employment with the Respondent, a small "high-end" owner managed lady's boutique in Dublin on 1st May 2018. Her employment ended on 9th September 2018. The Complainant was employed in the role of Sale Assistant. She worked 6 hours per week and her weekly pay was €184.00. The Complainant lodged a Complaint Form with the WRC on 26th September 2018. |
CA-00022159-001 Complaint under the Unfair Dismissals Act, 1977.
The fact of dismissal is in dispute in this case.
Summary of Complainant’s Case:
The Complainant submitted that she was attending a full-time course Monday to Fridays and was working with the Respondent on a casual basis for a period of three years, working Saturdays and Sundays. However, when the Complainant became pregnant the Respondent's attitude to her changed and that she was dismissed for pregnancy or related matters. The Complainant submits that on 9th September 2018 the Respondent dismissed her. On that day she that the Respondent told her to go home, because of an issue about her hair, and that she should call, "when she got her brain back." The Respondent subsequently emailed the Complainant and offered her working hours but these deviated from her previous hours and were at times when the Respondent knew the Complainant could not work. In oral evidence, the Complainant stated that she had never been given a contract by the Respondent so how could there be a policy about hair styles or uniforms. The Complainant stated that she was dedicated to her work, but the Respondent never saw good in her work, but she did see her hair being too long or too loose. She picked on her when she became pregnant. The Complainant stated that on 9th September 2018 she started work at around 1.00pm and opened the shop, she was rostered to work until 6.00pm. Sometime later the Respondent came in and noticed that the Complainant's hair was not fully up, it was half-way down. The Respondent asked the Complainant, "what's happening with your hair?" The Complainant stated that the Respondent "went mad". The Complainant stated that she knew her hair should be up, but she had been too busy to put it up. The Complainant stated that the Respondent screamed at her about not complying with the rules. She then says that the Respondent took her to the back of the shop and told her that she did not need people without brains, to leave her keys, get her belongings and go home. The Complainant states that the Respondent told her that she should call her when she "got her brains back". The Complainant was seven and a half months pregnant at the time and walked home crying. The Complainant stated that she thought she had been dismissed because the Respondent told her to leave her keys (to the shop) behind. In cross examination, the Complainant agreed that although she did not have a contract she was told what to do with her hair, necklaces etc. She also agreed that the Respondent had reminded her several times about her hair. The Complainant stated that she believed the Respondent became aware of her pregnancy in April 2018. The Complainant also agreed that she sent a WhatsApp message to the Respondent on the 9th September, after she had left the shop, apologising for the breach of rules. The Complainant submits that the Respondent subsequently offered her hours that she knew would not suit the Complainant; Monday, Tuesday and Saturday with the only option being all or nothing.
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Summary of Respondent’s Case:
The Respondent submits that all staff in the shop are required to work a combination of weekdays and weekends. In advance of commencing with the Respondent, the Complainant informed the Respondent that she was pregnant. Upon commencement the Complainant was made aware of the uniform policy and the importance of adhering to same, in particular with regards to the accepted hair styles. In July 2018, the Complainant informed the Respondent that she had started a course and that she would be unavailable during certain periods. The Respondent told the Complainant that she could work before and after course times and in the evenings which the Complainant accepted. On 3rd August the Complainant requested to work only Saturdays and Sundays. The Respondent agreed to this request but told the Complainant that she would have to make herself available for training on weekdays for essential updates. The Complainant agreed to attend weekday shifts in this regard. On several occasions the complainant was spoken to about her adherence to the Uniform Policy and particularly that she was not wearing her hair in the prescribed manner period On the 9th of September 2018, the Respondent once again reminded the Complainant of the requirement to adhere to the uniform standards and sent the Complainant home an hour early with pay, to allow her time to consider the policy. The Respondent stated that she did not ask the Complainant to leave her key behind but rather the Complainant left the key saying, "here's the key". The Complainant contacted the Respondent shortly afterwards acknowledging and apologising for her non-compliance. Some three hours later, the Complainant contacted the Respondent seeking her P45 and claiming that she had been dismissed. The Respondent replied to the Complainant by email on the 10th of September 2018 to state that there were hours available for her, working around the restrictions imposed by the course attendance and that no dismissal had occurred. The Respondent reiterated the requirement for uniform compliance and requested the Complainant's adherence to same. The Complainant responded requesting to be included on the roster to which the Respondent agreed and offered hours. The Complainant declined the hours offered and ceased communication with the Respondent shortly after.
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Findings and Conclusions:
I have considered this matter carefully. The Complainant has put forward that the Respondent's attitude to her changed when she became pregnant, ultimately leading to the incident on the 9th of September 2018, which the Complainant asserts amounted to a dismissal. The actions of the Respondent in offering the Complainant roster slots that the Respondent knew the Complainant could not work only served to reinforce the belief that a dismissal had taken place. The first issue to be decided is whether the Complainant was dismissed. The question of dismissal, centres on the incident which took place on 9th September 2018. There is a variation between the two protagonists as to the words used during the incident, and there is a major difference in the interpretation of what these words meant. For the Complainant the words, and the request to leave her keys behind, meant she had been dismissed. For the Respondent the same incident was merely an expression of exasperation over a recurring breach of the regulations by the Complainant and an attempt to get her to follow the regulations. The words were not anything approaching a dismissal or the expression of a wish that the Complainant would not work in the shop in the future. There is no corroborative evidence to the effect that the Respondent's words and actions were such as to explicitly terminate the Complainant's employment, and a reasonable listener might, and in my belief would, interpret them as an indication that the Complainant should go home and return when she was correctly attired and groomed for work. This could and should have been handled better by the Respondent, but I do not find that the actions of the Respondent could be interpreted as a dismissal. The fact that discussions took place after the incident about hours of work for the Complainant further indicates to me that the Respondent wanted the Complainant to continue working in the shop. Nothing in the evidence adduced leads me to believe that the actions of the Respondent could be construed as equalling a dismissal or entitling the Complainant to believe that a dismissal had taken place. Having considered all the evidence adduced I am satisfied that the Complainant was not dismissed by the Respondent. |
Decision:
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
The complaint is not well founded. |
CA -00022159-002 Complaint under the Terms of Employment (Information) Act, 1994.
Summary of Complainant’s Case:
The Complainant submits that she was never given a contract of employment. |
Summary of Respondent’s Case:
It is the Respondent's position that this claim does not relate to a contravention of one's rights but an attempt to secure compensation arising out of an oversight on the Respondent's part. The Complainant has not suffered any loss or detriment as a result of the non-receipt of a contract during the course of her employment and therefore no compensations is owing. |
Findings and Conclusions:
I find that the Respondent has breached Section 3 (1) of this Act. I note that Hedigan J. in the High Court case Arturs Valpeters v Melbury Developments Ltd 2009 MCA stated, "An award of compensation can be made pursuant to Section 3 and 7(2) of the Terms of Employment (Information) Act 1994 in the absence of any loss accruing to an employee from the failure of an employer to provide a contract of employment to an employee." I note that Section 7 (2) (d) of the Act states, "compensation of such amount (if any) as is just and equitable having regard to all the circumstances but not exceeding 4 weeks' remuneration". |
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act and as per Section 7 of the Terms of Employment (information) Act, 1994.
Decision:
I have decided that the complaint is well founded, and that the Respondent should pay the Complainant compensation of €300.00. |
CA-00022159-003 Complaint under the Employment Equality Act, 1998.
Summary of Complainant’s Case:
The Complainant submits that she was victimised by reason of her gender and that she was victimised by reason of her gender. The Complainant's submission is the same as that as outlined in CA-00022159-001. |
Summary of Respondent’s Case:
In addition to the Respondent’s submission in CA-00022159-001, the Respondent submits that the Complainant has discharged the burden of proof required to establish that a prima facie case of discrimination. Notwithstanding the above, the Respondent submits that she never treated the Complainant less favourably than any other employee. All employees are casual staff who work variable hours and a combination of weekdays and weekends. All employees in the shop are women. The Respondent was aware of the Complainant's pregnancy from the outset of her employment, four months before the alleged date of discrimination. In relation to working hours, the Respondent contends that the reduced availability of the Complainant to work was of her own engineering and the allocation of hours was as per the normal procedure and wholly unconnected to the Complainant's pregnancy.
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Findings and Conclusions:
The Complainant's pregnancy is sufficient to shift the onus to the Respondent to prove that no infringement of the principle of equal treatment has taken place. I find that the Respondent has discharged the burden of proof. Firstly, the Respondent was aware that the Complainant was pregnant when she took her on a regular basis is hardly the act of someone who would later discriminate against a pregnant woman. The incident of 9th September related to issues to do with uniformity and dress regulations, nothing to do with any matters related to her gender. I find that the Complainant was not treated any less favourably because of her gender. The Respondent offered the Complainant hours of work after the incident of 9th September 2018. I do not find there was any victimisation of the Complainant by the Respondent. |
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
Decision:
The complaint is not well founded. |
CA-00022159-004 Minimum Notice and Terms of Employment Act, 1973
Summary of Complainant’s Case:
The Complainant submits that she was dismissed and was not paid her notice entitlements. |
Summary of Respondent’s Case:
The Respondent submits that the Complainant was not dismissed and therefore she was not entitled to a notice payment. |
Findings and Conclusions:
I findno dismissal took place, therefore no notice entitlement was due. |
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Decision:
The complaint is not well founded. |
Dated: 3rd May 2019
Workplace Relations Commission Adjudication Officer: Roger McGrath
Key Words:
Regulations, understanding of words |