Complainant

Respondent

Anonymised Parties

A Hair Stylist

A Hair Salon

Representatives

Gilvarry & Associates

Peninsula Group Limited

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00016106-001

01/12/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00016106-003

01/12/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00016106-004

01/12/2017

The complainant submitted that she was unfairly dismissed, that the complainant did not receive terms and conditions of employment and that she did not receive minimum notice.

The complainant submitted that she never received terms and conditions of employment. When issues arose at work, there was no grievance or disciplinary procedures in place.

The respondent confirmed that the complainant did not receive terms and conditions of employment.   It was submitted that the complainant was not prejudiced as a result of not receiving such terms and that the complainant never requested them. The respondent submitted that all staff now have contracts of employment and handbook.

Section 3 details 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 …particulars of the terms of the employee’s employment…”

The respondent accepted that the complainant did not receive terms and conditions of employment.

I find that the respondent has not met their obligations in providing the complainant with her terms and conditions of employment. I find the Act was contravened and I find the complaint well founded and order the respondent to pay the complainant €550.

The respondent did not dispute that the complainant had been dismissed. It was submitted that the complainant had become disruptive during her employment and presented with an attitude when at work.

The complainant received a warning n June 2017 following complaints about her poor attitude towards her work and her colleagues and also received another warning in September 2017 when the complainant upset a bridal party as she refused to do hair the way she was asked to do.

The owner of the respondent Ms A had advised employees that they could avail of a complimentary reflexology treatment in the salon or discount on other treatments. It was hoped that if the employees enjoyed it, they could talk to customers about the benefits of it. On Monday 4th September 2017, Ms A was away and the complainant was due to avail of a complimentary reflexology treatment from Ms B, another employee at the salon. Ms A asked the complainant, by text, if she enjoyed the treatment and the complainant confirmed that she did. Later that day, the respondent received a call from Ms B who was upset and crying.   She detailed that the complainant had put her in a difficult position as instead of availing of reflexology treatment, she instead insisted on having a pedicure. Ms B detailed that she was told by the complainant not to tell the respondent that she had taken a pedicure instead of reflexology. The complainant also told Ms B that she was pregnant.

The respondent contacted the complainant later that evening and the complainant confirmed that she had had a pedicure and not a reflexology treatment. The complainant hung up the phone to the respondent. The respondent took her name off the hair salon app as she did not know if she would turn up to work. The respondent had planned to discuss the issues with the complainant on her next working day, Thursday 7th September but the complainant arrived while the respondent was with a client and started to scream at the respondent. It was submitted that the respondent’s decision to advertise for a hair around this time stylist was purely coincidental.

The respondent was very upset at the manner in which the complainant spoke to her and advised her if she did not leave that she would call the gardai. The respondent took the decision to dismiss the complainant as she felt she was left with no alternative owing to the complainant’s behaviour.

While it was accepted that there may have been procedural issues surrounding the dismissal, it was submitted that they did not necessarily negate the fairness of the outcome. The complainant had received warnings for her behaviour previously, the respondent had engaged with the complainant but was met with hostility and the respondent acted reasonably and proportionately. It was also set out that the respondent is a small business with a small client base and complaints from clients around the complainant’s behaviour needed to be addressed.

Case law referenced included Aziz v The Midland Health Board [1995] ELR 48, Loftus and Healy v An Bord Telecom [13 February 1987 unreported HC], Looney & Co Ltd v Looney UD843/1984,Barry v Precision Software Ltd UD624/2005, Allied Irish Banks Plc Brian Purcell [2012] 23 ELR 189.

The respondent submitted that the complainant had not secured employment since lodging her claim and that she had been due to give birth on 19th April 2018 and as the respondent does not pay maternity benefit the complainant’s losses cease as of the time she would have commenced maternity leave.

The complainant commenced work on 7th November 2015.

Targets were set for all hair stylists and the complainant always met or exceeded her targets. In early September 2017 the respondent advised employees that turnovers needed to increase and that less time was to be spent on each customer. The complainant defended the time taken with customers and believed that the respondent was not happy that the complainant expressed her opinion.

The respondent also provided beauty treatments to clients and was looking to expand that part of the business. The respondent offered free reflexology sessions to staff or discount on pedicures so that if staff enjoyed them, they would recommend the treatments to customers. The complainant arranged a reflexology session for 4th September 2017.   The complainant came to the salon and spoke to Ms B and advised Ms B that she was pregnant and asked if reflexology would be safe for a pregnant woman. Ms B advised that she was not sure and they both agreed that a pedicure would be provided instead.

The complainant had no wish to disclose her pregnancy at that stage as she had suffered a miscarriage just a few months previously, and only disclosed it to Ms B in the strictest confidence as she was concerned about having reflexology.   When the complainant received a text from the respondent asking if she enjoyed the reflexology, the complainant checked with Ms B regarding how the treatment had been recorded in the system.   She was advised by Ms B that it was recorded as reflexology and told the respondent she enjoyed the treatment.   Later that evening the respondent phoned her and appeared to be furious and asked her why she lied. The complainant had to ask her to stop attacking her on the phone.

Later that evening the respondent posted an ad entitled “Experienced Stylist required” on Facebook and on Wednesday 6th September the complainant discovered that her name had been removed from the App that the salon used. The complainant questioned the respondent about this and was told that she would not be working and the respondent would be in touch with her.

On Thursday 7th September the complainant arrived at work and asked could she speak to the respondent who told her to take her stuff. The complainant said she would wait and asked was she fired.   The respondent advised that she would be contacted later that day by the respondent’s solicitor.

The complainant had an unblemished record and never received any of the warnings that the respondent alleges that she received. The complainant was summarily dismissed and the respondent conflated circumstances to justify the dismissal with no justification for same.   Case law included Sabine Von Coulson Case

It is set out in Section 4 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 one or more of the following:

( a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

( b) the conduct of the employee,

( c) the redundancy of the employee, and

( d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.”

Section 6 details that

“In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.”

The respondent offered discounted and complimentary treatments to employees. The complainant had booked herself in for one of the complimentary treatments but on the day asked the employee administering the treatment, if the treatment was safe as she was pregnant. A treatment was completed which was a discounted treatment but was recorded on the system as the complimentary treatment. The respondent became aware of this, phoned the complainant and when the complainant returned to work, she was dismissed.

Section 14(1) of the Act refers to “a notice in writing setting out the procedure which the employer will observe before and for the purpose of dismissing the employee” i.e. the employer’s stated disciplinary policy.

The constitutional right to fair procedures and natural justice was recognised in re Haughey ([1971] I.R. 217), where O'Dalaigh C.J. stated that: “Article 40 s 3 of the Constitution is a guarantee to the citizen of basic fairness of procedures”. The principles enshrined in Haughey were implied into contracts of employment by the Supreme Court in the case of Glover v BLN Ltd ([1973] I.R. 388) and have been cited in Labour Court Decisions including UDD1815 A Commercial State Body v a Worker, UDD1611, Kilsaran Concrete Kilsaran International Ltd and Vitalie Vet, UD1294/2008.

Walsh J, giving the majority judgment for the Supreme Court in Glover v. BLN Limited [ 1973] IR 388, also detailed:-

"This court in re Haughey [1971] IR 217 held that [Article 40.3] of the Constitution was a guarantee of fair procedures. It is not, in my opinion, necessary to discuss the full effect of this Article in the realm of private law or indeed of public law. It is sufficient to say that public policy and the dictates of constitutional justice require that statutes, regulations or agreements setting up machinery for taking decisions which may affect rights or impose liabilities should be construed as providing for fair procedures. It is unnecessary to decide to what extent the contrary can be provided for by agreement between the parties.”

The court in Glover v BLN Limited (1973) IR 388 decided that where there was provision in a contract of employment for some form of disciplinary procedure, it was an implied term of the agreement that any enquiry held under it should be conducted fairly. It is quite clear from the case law of the superior courts, that there is no fixed standard of natural justice which lays down how certain specific matters must be complied with. The protection to be afforded to a person whose conduct is being investigated will vary according to the circumstances.

Furthermore, Frank Shortt v Royal Liver Assurance Limited (1998, 3571), sets out that the disciplinary process may not be perfect but it should come within the perimeter of what could reasonably be considered a fair response by the employer in the circumstances. This was also detailed in Mooney v An Post ([1994] E.L.R. 103), where what exactly is required of an employer to satisfy the requirements of natural justice may differ from case to case.   In that case, Keane J. stated that the two principles of natural justice, namely “audi alterem partem and nemo iudex in causa sua cannot be applied in a uniform fashion to every set of facts”. Therefore, while employers are required to afford natural justice and fair procedures to employees when carrying out disciplinary procedures, regard must be had for the particular circumstances of the case to ascertain what the requirements of natural justice and fair procedures demand in the particular circumstances. If the process followed by the employer, while not entirely faultless, is within the scope of what could be considered a reasonable response in the particular circumstances, then the employer's actions will be deemed to be acceptable.

However, there are certain fundamental requirements of fair procedures as outlined in Glover v BLN Limited (1973) IR 388 which cannot be dispensed with regardless of the particular circumstances that arise in an individual disciplinary matter. They include but are not limited to:

(i)                  the requirement to make the employee who is the subject of the investigation aware of all the allegations against him or her at the outset of the process;

(ii)                the requirement that an employer who has published a disciplinary procedure to its employees follow those procedures scrupulously when conducting a disciplinary process; and

(iii)               in the event that an allegation against the employee is upheld, any disciplinary sanction imposed is proportionate to the complaint that has been substantiated.

The above fair procedures will be the focus in this instant case, but this not does not claim to be a complete statement of all fair procedures.

(i) The rationale is clear as to why the person who is subject to a disciplinary investigation should be made fully aware of the complaint(s) against her.   This is to ensure that the complainant has a meaningful opportunity both to prepare and to present a defense. The complainant had a conversation on the phone with the respondent who was clearly unhappy with what happened but did not make the complainant aware of the specific allegations against her.

(ii) The complainant did not receive a copy of the respondent’s disciplinary process and there was no expected procedures followed with regards to an investigation including right to representation, right to reply and right of appeal.  When an investigation is carried out there may be occasions where, as detailed in Kelly v Minister for Agriculture[2012] IEHC 558, the full range of fair procedures might not apply at the investigative stage.   However, it is clear that in the instant case that the respondent was the judge and jury in the decision to terminate the complainant’s employment.

(iii) No evidence was provided of previous warnings that had allegedly been given to the complainant. I do note that the respondent’s instructions were very clear that reflexology was complimentary and that other treatments secured were to be at a discount only. The complainant went against the respondent’s directive by securing a treatment that she did not pay for what was owed. However, the respondent did not carry out any investigation where this could have been explored, and no other sanction was considered and indeed moved very quickly to advertising for another hair stylist.

While it was noted in Meath County Council v. Creighton UD11/1977and in Carr v. Alexander Russell Ltd (1976) IRLR220 that ‘An employer may be able to justify a procedural omission if it meets the onus of proving that, despite the omission, it acted reasonably in the circumstances in deciding to dismiss an employee’ I find that the proceedings were not conducted fairly and I find that the decision to dismiss the complainant was unreasonable and unfair and that the claim is well founded.

Having considered the remedies available I have decided that reinstatement or re-engagement of the Complainant is not a practical option in this case and that compensation is the appropriate redress. With regards to mitigation of loss, I have examined the complainant’s efforts to mitigate her loss. The complainant found it difficult to secure a job while pregnant and after she had her baby in April 2018, she resumed her search for work in October 2018 and I note that she has failed to secure work up to the time of the hearing. I have examined her efforts which are not at the standard set out in Sheehan v Continental Administration Co Ltd (UD 858/1999) in that a “claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work ... The time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss."  

Having assessed all the information before me I find the complainant was unfairly dismissed but has made limited efforts to mitigate her loss. Having examined the evidence, I note that the complainant’s weekly pay was €267.74 and I find it is just and equitable in all the circumstances to order the respondent to pay the Complainant 28 weeks’ pay which, I will reduce by 10 per cent, owing to the complainant’s limited proof of employing a reasonable amount of time each weekday in seeking work”. I find it is just and equitable in all the circumstances, therefore, to order the respondent to pay the Complainant the sum of €6,748.

The complainant details that she was dismissed without notice. She commenced employment on 7th November 2015 and her employment ceased on 7th September 2017.

The complainant was summarily dismissed and she is not entitled to notice or payment in lieu of notice.

I have already found that the complainant was unfairly dismissed, and it was accepted that no minimum notice had been paid.

Section 4 of the legislation details

4.— (1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—

( a) if the employee has been in the continuous service of his employer for less than two years, one week,

I find that the Act was contravened, and the complaint is well-founded, and I order the respondent to pay the complainant €267.74.

CA-00016106-001

I find the Act was contravened and I find the complaint well founded and order the respondent to pay the complainant €550.

CA-00016106-003

I find the complainant was unfairly dismissal and I find it is just and equitable in all the circumstances to order the respondent to pay the Complainant 28 weeks’ pay which, I will reduce by 10 per cent, owing to the complainant’s limited proof of employing a reasonable amount of time each weekday in seeking work”. I find it is just and equitable in all the circumstances, therefore, to order the respondent to pay the Complainant the sum of €6,748.

CA-00016106-004

I find that the Act was contravened, and the complaint is well-founded, and I order the respondent to pay the complainant €267.74.

Term and condition, minimum notice, unfair dismissal