ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00004696

Parties:

Complaint(s):

Date of Adjudication Hearing: 16/06/2017

Workplace Relations Commission Adjudication Officer: Caroline McEnery

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015, Section 8 of the Unfair Dismissals Acts, 1977 - 2015, and Section 79 of the Employment Equality Acts, 1998 - 2015,Section 7 of the Terms of Employment (Information) Act, 1994 and Section 27 of the Organisation of Working Time Act, 1997 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background:

This claim is taken by an Employee of a beauty and tanning salon against her Employer.

Summary of Complainant’s Case:

CA-00006528-001 Unfair Dismissal:

The Complainant stated that she was paid cash initially when she started working with the Respondent in February 2015. In July 2015 she was registered as an employee and was placed on the books from then on. The Complainant stated that on the 8 March 2016 the Respondent informed the Complainant that the previous day had been her last day and that she was to leave and take her things. The Complainant stated she went to citizen’s information the next day for advice with reference to her dismissal and she called the Respondent to say she was entitled to notice. He said fine and he told her to come to work the next week. The Complainant returned into work on the 12 of March 2016. The Respondent told her that he needed someone who was single and could work 24/7 as she hasn’t grown his business enough as she had a child but that she is a good worker. The Complainant then asked if she would be paid for her holidays. The Complainant then informed the Respondent that she was going to the WRC and he then paid some of her holiday pay. The Complainant never received a letter regarding her dismissal. She got a job after 6 – 8 months.

CA-00006528-002 Terms of Employment:

The Complainant stated that no contract existed. This was accepted by the employer.

CA-00006528-003 Hours of Work:

The Complainant did not receive any contract from the Respondent stating her hours. The Complainant started in the tanning side of the business and then the Respondent requested that she would do beauty and nails. The Complainant was a nail technician already so she said she would do nails. The Complainant was sent on one course and she received two diplomas from it. She is not a beautician as it was only a one day course and the Respondent took the cost of the course, €300, from her commission bonus. The Complainants hours were reduced in January from full time to eight hours without her agreement. The employees write their hours in a copy book which is then given to the Respondent and they are paid on this basis. The Complainants notebook went missing. These hours show that she often worked over 40/70 hours. The Complainant was paid in cash up until July. From July 2015 the Complainant went on the books and got €300 paid into her account until January 2016. From January 2016 the Complainant only worked 8 hours until March 2016. The Complainant didn’t get any breaks and they often would have worked up to twelve hours a day. Employees didn’t have time to take breaks and the Respondent would have given out to them if they took a break.

CA-00006528-004 Discrimination/Equality:

The Complainant states that she was discriminated against due to her Religion.

The Complainants religion is different to the Respondents. The Complainant is a Jehovah Witness and the Respondent is a Catholic she thinks. When the Complainant started working for the Respondent she told him her religion and that she had meetings on Wednesdays and Sundays. When there was nobody else to work the Complainant would work to cover and it was her own choice.

The Complainant was supposed to finish work at 6pm as her meeting would be due to start at 6.30pm. She was nearly always late for her meetings. One day a customer came in at 6.20pm and asked if she could get her nails done. The Complainant asked the Respondent if somebody else could do this as she had her meeting. He said he didn’t care about her religion and that his business should be her religion. The Complainant was offended by this in front of customers and colleagues. Both the Complainant and the Respondent were standing at reception another day when an electrician came to the desk and said “Merry Christmas”. The Complainant said thank you but I do not celebrate Christmas. The Respondent then added “they’re Jehovah’s” which offended the Complainant’s god and religion.

Summary of Respondent’s Case:

CA-00006528-001 Unfair Dismissal:

The Respondent stated that the Complainant’s work as a Nail Technician was on a trial basis.

The salon owner gave evidence that the Complainant was working on the sunbeds. She said that she could do nails and he spoke to her about increasing business. She said that she could do nails and beauty and that she could go back to working on the sunbeds if it wasn’t working out.

He stated that the Complainant complained about her legs and back and he told her to change her high heels as he thought that was the issue. She continued to complain.

She said that nails will take 2 – 2.5 hours to do and not 45 minutes as had been done by the Respondent’s ex-wife. There was no profit in nails as it was taking the Complainant too long.

He informed the Complainant that if nothing changes, he would have to get someone else or close the nail shop. He spoke to her many times about this.

When he informed her that he had someone else to do nails. He asked the Complainant to go back to working in the salon but she refused. She said that she did not want to work in sunbeds and that another beautician wanted her to do nails. She said she had another job.

The salon manager stated that it was taking the Complainant too long to do nails. He said that they had received complaints about her work. He did not give her a letter about these complaints. He said that the nails were not bringing in business. They have a new nail technician and are busier now.

A co-worker who was a witness at the hearing stated that there were complaints about the Complainant’s work. She also stated that it is much busier now with the new nail technician.

CA-00006528-002 Terms of Employment:

The Respondent accepted that there were no written Terms of Employment given to the Complainant.

CA-00006528-003 Hours of Work:

The Respondent stated that the Complaint was told to take her breaks when it was quiet but only for a few minutes. No records of breaks were kept. The Complainant was paid for her breaks and this was by her choice and by agreement with her. She said she would be eating when customers were there but she got paid for breaks.

The salon manager said that it was up to the Complainant to find time to take breaks. He said that there was a sign out book if she left the building. He stated that it was her decision that she didn’t take breaks.

CA-00006528-004 Discrimination/Equality:

The Complainant is a Jehovah Witness and she told her employer that her religion required meetings every Wednesday at 7pm. Her employer said that this would not be a problem and that he would inform the manager also as he completes the roster. The manager was accommodating most of the time. Everything was ok while she was working in the sunbed area as she could swap with other employees if needed. There was another employee who was also a Jehovah’s Witness and attended meetings. From June 2016 when the Complainant was working in the nail bar she had no one to swap shifts with her. She worked from 9am to 6pm. It was only an issue a few times.

The salon owner said that he is religious himself and that he has no issue with facilitating religious needs. He knew her religion. He knew that another employee was a Jehovah’s Witness also. He denied saying anything in front of the electrician. He said he never spoke about her religion other than facilitating her time off and he always obliged.

He said that another employee who is her best friend and agrees about her religion could not be at the hearing on the day.

He said that the Complainant did not like it when he said Jehovah instead of Jehovah Witness.

A co-worker who was a witness at the hearing stated that she never heard anything about issues to do with the Complaint’s religion.

Findings and Conclusions:

Section 6 (1) of the Unfair Dismissals Act 1977 states 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.”

Section 3 (1) of the Terms of Employment (Information) Act, 1994 states that

“An employer shall, not later than 2 months after the commencement of an employee's employment with the employer, give or cause to be given to the employee a statement in writing containing the terms of the employee's employment”

Section 25 (1) of the Organisation of Working Time Act, 1997 states that

“An employer shall keep, at the premises or place where his or her employee works or, if the employee works at two or more premises or places, the premises or place from which the activities that the employee is employed to carry on are principally directed or controlled, such records, in such form, if any, as may be prescribed, as will show whether the provisions of this Act are being complied with in relation to the employee and those records shall be retained by the employer for at least 3 years from the date of their making.”

Complaint CA-00006528-004 was submitted as a complaint under Section 21 of the Equal Status Act 2015. This Act applies to the supply of goods or services to members of the public. However, following oral submission at the hearing, it was clear and apparent that this complaint was intended to be heard under Section 79 of the Employment Equality Act, 1998.

The Adjudicator allowed the claim to be heard within the scope of the Employment Equality Act, 1998.

There are four claims for decision:

1. The Complainant is seeking for the Adjudicator to decide if the Complainant was unfairly dismissed.
2. The Complainant is seeking for the Adjudicator to decide if the Complainant was issued with a contract of employment.
3. The Complainant is seeking for the Adjudicator to decide if the Respondent was in breach of the Organisation of Working Time Act in relation to working hours and breaks.
4. The final matter for decision is in relation to whether the employee meets the prima facia case required in relation to the legislation on deciding if the Complainant was discriminated against on religious grounds.

Decision:

I have investigated the above complaints and make the following decision in accordance with the relevant sections of the legislation set out above and the following are my conclusions:  

1. Unfair Dismissal

               The Complainant’s complaint in relation to Unfair Dismissal succeeds due to the following;

1. The reason that was given to the Complainant for her dismissal was that she was too slow and that the Nail salon was not making any profit.
2. There was no process or procedure followed prior to her dismissal. 
3. The Complainant was out of work for 6 months. The Complainant is to be awarded 4 months’ salary, based on a weekly wage of €300 which equates to €5,200.

1. Terms of Employment

The Complainant never received a contract of employment. She was unaware of the companies registered name, her start date, her payment, her terms, her hours or work and breaks etc. The Complainant was paid in cash initially when she began working for the Respondent. She was disadvantaged by not having a contract and not having her terms and conditions outlined. The Complainant is to be awarded four weeks salary, based on a weekly wage of €300 which equates to €1,200.

1. Hours of Work

The Respondent was not able to provide proof of start times or finish times or of rest breaks being taken. The Complainant is to be awarded €1,000.

1. Discrimination/Equality based on Religious Grounds

In reaching my decision I have taken into account all of the evidence presented at the hearing.

Section 85A of the Employment Equality Act sets out the burden of proof which applies to claims of discrimination and requires the Complainant to establish, in the first instance, facts that she can rely on in asserting that she suffered discriminatory treatment. It is only when a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.

In deciding on this complaint, I must therefore first consider whether the existence of a prima facie case has been established by the Complainant. The Complainant has not presented evidence through her oral submissions which constitute a prima facie case. The Complainant has not presented sufficient specific details of her complaint in relation to dates, times, persons present and what exactly was said and therefore the Complainant has failed to establish the burden of proof in regards to her complaint.

As the Complainant has not met the required burden of prima facie case based on the evidence presented, this claim fails accordingly.

Dated: 25th November, 2019

Workplace Relations Commission Adjudication Officer: Caroline McEnery

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