ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00023930

Parties:

Complaint(s):

Date of Adjudication Hearing: 10/12/2019

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure:

Date of Adjudication Hearing: 10/12/2019

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure:

In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015,following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The Complainant, a trainee hairdresser, submitted that she was dismissed two days after she advised the Respondent that she was pregnant. She had just over nine months service. The Respondent denied the dismissal was unfair or that it was as a result of the Complainant’s pregnancy.

Summary of Respondent’s Case:

The Respondent advised that the Complainant commenced work on the 18th September 2018. The Complainant was appointed by the Salon Manager as her sister-in-law was friendly with the Complainant's parents. The Respondent submitted that the Salon Manager had been told the Complainant was a quiet girl who was looking for change and needed to “come out of herself”. The Salon Manager spoke to the Director of the business and they agreed to give the Complainant a chance in the role of trainee hairdresser. The contract of employment, which was signed on 2nd April 2019, stated that the probation period was for six months and this could be extended to nine months if necessary.

The Respondent maintained that as a trainee hairdresser the Complainant’s role included learning how the work was done, learning to help shampoo, meeting and greeting clients, and providing teas and coffee. The Complainant was also required to source models so she could practice the skills.

The Respondent advised that there were no concerns with the Complainant’s performance until after Christmas in 2018. The Respondent submitted that after the Christmas period there was a deterioration of performance where the Complainant was unable to work, was upset in the salon, and where her duties suffered. It was also submitted that a trainee’s performance needed to be up to scratch. The Complainant’s work suffered drastically where she was moping around the shop, not coming in, would come in without make up on, and despite the Salon Manager speaking to her the Complainant never came back with a positive response. The Salon Manager submitted that over this period she had tried hard to encourage the Complainant because of the family relationship.

In her evidence at the hearing the Director advised that apprentice hairdresser training lasted for four years, and initially trainee hairdressers would be subject to three, six, and nine-month reviews before progressing to qualify for training. The Director confirmed that the Complainant’s performance was good until the Christmas period and her performance went downhill after then. The Director advised that staff members such as senior stylists could not ask the Complainant to do things or they would have their “head bitten off” by the Complainant. When the Complainant was asked about how she was she would say all was ok.   When the Complainant was upset in work in February 2019 she was allowed to go home.

By March 2019 the Managing Director had concerns that the contract was not working out and she was considering terminating the employment relationship. However, the Salon Manager said she would speak with the Complainant and take her under her wing. The Director understood the probation period would roll over. Despite speaking with the Complainant on many occasions the Salon Manager submitted she observed no improvement from the Complainant. The Complainant was asked to get models in for training, but this did not happen, and matters did not improve. As time progressed the Respondent concluded that whilst the Complainant was a nice person hairdressing was not for her.

By June 2019 there had been no improvement, so the Director and the Manager met with the Complainant on 8th June 2019 before the Complainant went on holidays. The Complainant was advised of the concerns that had been observed, that the training was a tough four years and that she was asked if she wanted a career in hairdressing. The Complainant was asked to think about it when she was away. The Complainant then went on holidays until 18th June 2019. There were no notes taken of this meeting.

The Director outlined that for a day or two after the Complainant returned from her holidays she was upbeat. However, after a week the feedback from staff members was that there was no change. The Director concluded the job was not for the Complainant and had decided to terminate the contract.

Before sharing this decision, on 27th June 2019 the Complainant informed the Salon Manager that she was pregnant. Notwithstanding the decision to terminate the Complainant had been decided and on 29th June 2019 the Complainant was told. The Salon Manager and the Director explained they had no problems with facilitating staff who are pregnant and denied the decision to dismiss the Complainant was because she was pregnant. The Respondent acknowledged that it dismissed the Complainant on 29th June 2019 and this decision was based on the Complainant’s performance during her extended probation period. The Respondent acknowledged there was no notes of the performance review meetings held with the Complainant, nor was there any written notification of extending the Complainant’s probation period in March 2019.

The Respondent maintained another employee had become pregnant in 2018 and there were no issues about bringing that employee back to work. That employee gave evidence at the hearing where she submitted she joined as a trainee in July 2017 and had received regular reviews where she was told by her manager that they were happy with her performance. In April 2018 she became pregnant and told the Respondent in September 2018. That employee explained the Salon Manager and Director had been happy for her, that she received nothing but support, and retuned to work in June 2019.

The Respondent therefore advised the dismissal of the Complainant had nothing to do with the Complainant’s pregnancy but was a result of her performance, and where she was dismissed during her probation period. It therefore denied there was an unfair dismissal.  

Summary of Complainant’s Case:

The Complainant submitted that she commenced work on 18th September 2018 as an apprentice/trainee hairdresser. She was provided with full time employment and her most recent review was 8th June 2019 that she maintained had been positive, where she was told she was an asset, and she had left that meeting on a high. The Complainant maintained that on 27th June 2019 she informed the Respondent that she was pregnant and she was congratulated, but on 29th June 2019 she was informed that her contract was being terminated. Prior to being informed of the decision to dismiss her the Complainant contended that there had been no disciplinary issue raised with her and that she had not received any notice in writing. She also submitted that she had received a good reference from the Respondent where they stated they were extremely pleased with her, that she was friendly, professional, punctual, and reliable to have around.

Since her dismissal the Complainant was out of work for four weeks and she found alternative employment a month later but at less hours and earned only €120 per week, and from finishing her maternity leave she has had an ongoing loss as a consequence of the dismissal. The Complainant was seeking compensation for the alleged dismissal.

The Complainant submitted that during her employment with the Respondent she was only subject to passing comments on her performance and was not sat down until June 2019. She also stated there was only comments about bringing in models and it was not a big issue at the time. She further maintained that there was nothing negative commented to her and she was the only trainee in the salon from Christmas until she left. She acknowledged the work was tough and exhausting but she was always good with the clients. She advised nobody made her aware of the concerns that were presented by the Respondent at the hearing. The complainant also submitted that she was not sat down with in March 2019 as suggested and there was only one comment on her makeup once, and she was not aware of the other issues that had been mentioned.

The complainant submitted that on the 8th June 2019, before she went on her holidays, they were busy the Respondent did not get a chance to talk with her until the end of the day. She said at the end of the day when she cleaning up she was told the Salon Manager and Director were meeting her just to see how she was getting on, and it was a positive conversation. She said she was never told that she could work better, and nobody had asked her to do better. The Complainant also maintained that hairdressing as a career was never mentioned to her during the discussion. The Complainant submitted that when she returned from her holiday there was no further discussions on her performance, and on 27thJune 2019 she advised the Respondent that she was pregnant. The Complainant submitted that they seemed happy for her and congratulated the Complainant. However, on 29th June 2019 she was told things had not changed and although she maintained she was never asked to change, she was dismissed and in shock. The Complainant submitted that the dismissal was due to the fact that she had told the Respondent she was pregnant.

Findings and Conclusions:

I have read the written submissions of the parties and considered the submissions made at the hearing.

S6(2)(f) of the Unfair Dismissals Acts 1977-2015 provides: “without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal if it results wholly or mainly from…the employee’s pregnancy… or any matters connected therewith”.

Based on the evidence presented I am satisfied the Complainant was appointed as a trainee hairdresser on 18th September 2018, and that she was dismissed on 29th June 2019, two days after she informed her manager that she was pregnant. In response to this the Respondent has submitted that from Christmas 2018 it became concerned with the Complainant’s performance. The Respondent maintains it spoke to the Complainant r on a number occasions about her performance, was minded not to extend her probation in March 2019 but decided to do so. It spoke again spoke to the Complainant on 8th June 2019 about her performance before she went on leave, and as her performance had not improved on her return from leave the Respondent decided to dismiss the Complainant on 29th June 2019. The Respondent acknowledged that it had been informed two days earlier that the Complainant was pregnant but denied the basis of its decision to dismiss her was due to her pregnancy. The Complainant submitted that it had made its mind up to dismiss the employee before it was told she was pregnant and followed through on that decision on 29th June 2019. It further maintained that it had spoken to the Complainant on numerous occasions about the Complainant’s performance between January and June 2019.

Having reviewed the submissions, I find that whilst the Respondent may have had concerns about the Complainant’s performance, it did not provide any written evidence that it had spoken to the Complainant formally about her performance; that it had formally extended the Complainant’s probation; or put the Complainant on formal notice that the termination of her contract of employment was likely to occur if her performance did not improve. Furthermore, it afforded the Complainant an opportunity to take annual leave after 8th June 2019 and upon her return had decided to dismiss her but that the Complainant told the Respondent she was pregnant before it had told her she was to be dismissed. It is noted the Respondent gave a positive reference to the Complainant that does not indicate any of the concerns it is relying upon to justify her dismissal.

The contract of employment states that the probationary period is six months, and the company reserves the right to extend this to nine months if necessary. Throughout this period the company will review your performance on a regular basis. Based on this, the date to extend the probation would have been c 18th March 2019, yet no notification of such an extension was provided by the Respondent nor is there any evidence of a plan of action regarding what improvements were needed and how they would be measured. Similarly, the nine-month period would have been completed on c 18th June 2019. The Respondent did not notify the Complainant either before or on that date that the extended probation period, if it existed, had been completed satisfactorily or not. Instead it continued with the Complainant’s employment without providing any notice. It was only after the Complainant had notified her manager that she was pregnant, which was past the none month probationary period, did the Respondent tell the Complainant her job was to be terminated.

I therefore find, in the absence of any credible evidence to the contrary, that the decision to dismiss the Complainant related to her pregnancy and I uphold the Complainant.

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.

As I have found the Complainant was unfairly dismissed, I award €5,600 gross for her financial loss and loss of future earnings which considers her period of maternity leave, and is just and equitable under the circumstances.

Dated:   23rd April 2020

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Key Words: