Complainant

Respondent

Anonymised Parties

A Trainee Hairdresser

A Hair Salon

Representatives

In Person

Managing Director

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000

CA-00031214-001

01/10/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00031214-004

01/10/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00031214-005

01/10/2019

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

CA-00031214-006

01/10/2019

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012

CA-00031214-007

01/10/2019

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

CA-00031214-008

01/10/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00031214-009

01/10/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 24 of the National Minimum Wage Act, 2000

CA-00031214-010

01/10/2019

The complainant was employed by the respondent as a Trainee Hairdresser from 28th June 2019 until her resignation on 1st October 2019. The complaint was submitted to the Workplace Relations Commission (WRC) on 1st October 2019.

At the adjudication hearing of the within complaints, the complainant withdrew Complaint Application No’s CA-00031214-001, CA-00031214-004, CA-00031214-005, CA-00031214-007 and CA-00031214-009.

The remaining complaints relate to alleged breaches of the Terms of Employment (Information) Act, 1994 (CA-00031214-006), an alleged Constructive Unfair Dismissal (CA-00021214-008) and a claim of Penalisation under the National Minimum Wage Act, 2000 (CA-00031214-010).

CA-00031214-006 – Terms of Employment Information Act, 1994

The complainant stated that she never received written terms and conditions of employment in line with the provisions of the Legislation.

CA-00031214-008 – Unfair Dismissal (Constructive)

The complainant outlined a number of issues she experienced while employed by the respondent in relation to receiving the correct rate of pay as well as not being provided with payslips. The complainant stated that she should have been paid the National Minimum Wage of €9.80 per hour from the beginning of her employment and that she made a number of unsuccessful attempts to have her employer rectify the situation and pay her the arrears that she was owed. The complainant contends that the respondent threatened to dismiss her when she sought to be paid the correct rate of pay. The complainant further stated that she required the payslips as her entitlements from Department of Employment Affairs and Social Protection were being reviewed and payslips were required for that purpose. The complainant stated that she was waiting approximately three months for the issue to be resolved and having made a number of attempts to resolve the issue, she decided to leave the employment on 1st October 2019. The complainant contends that she had no other option but to resign from her employment on the basis of how she had been treated by the employer.

CA-00031214-010 – Penalisation (National Minimum Wage Act, 2000)

The complainant contends that she was penalised by the respondent after repeatedly seeking to be provided with payslips and to have her hourly rate of pay increased to reflect her entitlements under the National Minimum Wage Act. The complainant stated that the respondent threatened her with dismissal and that it was difficult for her to return to work in those circumstances.

CA-00031214-006 – Terms of Employment Information Act, 1994

The respondent confirmed that written terms and conditions of employment had not been furnished to the complainant in line with the requirements of the legislation.

CA-00031214-008 – Unfair Dismissal (Constructive)

The respondent accepts that the complainant was entitled to be paid €9.80 per hour from the commencement of her employment. The respondent stated that it was in the process of resolving this issue as it had just employed a new Bookkeeper at that time. The respondent acknowledged the delay in rectifying the issue and also acknowledged its delay in providing the complainant with a copy of the grievance procedures and staff handbook. The respondent Principal accepted that he had spoken inappropriately to the complainant and had threatened her position in the employment during a conversation in relation to her rate of pay. The respondent expressed his regret at this isolated incident but explained that on the day in question he was dealing with a number of problematic issues at that point in time.

CA-00031214-010 – Penalisation (National Minimum Wage Act, 2000)

The respondent acknowledged that he had spoken inappropriately to the complainant on one occasion and had expressed his regret both shortly after the incident and again at the adjudication hearing. The respondent denies that the complainant was penalised on the basis that matters relating to her outstanding entitlements were in the process of being resolved when the complainant resigned from her employment.

CA-00031214-006 – Terms of Employment Information Act, 1994

The complainant did not receive written terms and conditions of employment in line with the provisions of Section 3 of the Terms of Employment (Information) Act, 1994. I also note that she did not receive a Staff Handbook or a copy of the respondent’s Grievance Procedures. Having considered this issue, I am satisfied that the complaint is well founded.

CA-00031214-008 – Unfair Dismissal (Constructive)

I have considered the verbal submissions of both parties in relation to this complaint. The role of the Adjudication Officer is to decide on balance, if it was reasonable of the complainant to resign from her employment because of the actions of the respondent. On this issue I note that the complainant was not in receipt of a Staff Handbook or Grievance Procedures and was trying to resolve the issue of her rate of pay as well as trying to obtain payslips for a review of her Social Welfare entitlements. The complainant stated that she tried at least three times to have the issues resolved and during one interaction, the respondent threatened her with dismissal when she sought to have her rate of pay rectified. I note that the employer stated that this was out of character and had expressed his regret to the complainant. However, I note that none of the issues were rectified until after the complainant had resigned from her employment despite multiple attempts on her part to have the situation rectified.

The Applicable Law

Constructive Dismissal is defined under Section 1 of the Unfair Dismissals Act, 1977 as follows:

“the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee to terminate the contract of employment without giving prior notice of the termination to the employer”.

The burden of proof rests with the Complainant in this case.

There are two tests in relation to proving that a Constructive Dismissal has occurred. These are the “Contract Test” and the” Reasonableness Test.” Both relate to the behaviour of the employer.

In Western Excavating (ECC) Ltd v Sharp [1978] IRLR 27 the “contract test” is summarised as follows:

“If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any other performance.”

Addressing the “reasonableness test” the decision summarises the conduct of the employer as follows:

“whether the employer conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so the employee is justified in leaving.”

In all of the circumstances of this complaint, I am satisfied that the complainant was unaware of the respondent’s grievance procedures and had repeatedly tried to resolve issues with the employer. This had proved unsuccessful on at least three occasions and the respondent accepted that he should not have threatened the complainant with dismissal during a conversation relating to the complainant’s rate of pay. I am satisfied, on balance that, towards the end of the complainant’s employment and having continually tried to have matters resolved, the complainant was justified in her belief that there was nothing else she could do but resign.

Mitigation of Loss

The complainant stated that she had been unable to secure alternative employment since her resignation from the respondent. The complainant confirmed that due to child minding responsibilities, she is available to work 3 full days per week or 5 days during school hours. The complainant submitted a number of job applications that he had made and also submitted confirmation of a number of agencies that she had registered with.

In calculating the appropriate compensation due to the complainant, I am mindful of the EAT Decision of Coad v Eurobase (UD1138/2013) in relation to the complainant’s efforts to mitigate her loss. In that case the EAT found that the complainant’s efforts had not met the standard as set out in the case of Sheehan v Continental Administration Co. Ltd (UD858/1999) which stated:

“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.”

In the instant case, the complainant did not provide sufficient evidence that she has met the standard in attempting to mitigate her loss. I have taken that into account in the level of compensation awarded.

CA-00031214-010 – Penalisation (National Minimum Wage Act, 2000)

The complainant claims to have been penalised by the respondent and has referred to the same issues that she raised in her complaint alleging Constructive Unfair Dismissal. As the complainant has succeeded in that complaint, I find that she cannot also succeed in the within complaint based on the same set of facts. Accordingly, the complaint of penalisation is not well founded.

CA-00031214-006 – Terms of Employment Information Act, 1994

The respondent is directed to pay the complainant €499.80 (Two weeks gross pay) in relation to the breach of Section 3 of the Act.

CA-00031214-010 – Penalisation (National Minimum Wage Act, 2000)

The complainant was not penalised by the respondent as claimed. The complaint is not well founded.

CA-00031214-008 – Unfair Dismissal (Constructive)

The complaint is well founded. The respondent is directed to pay the complainant €2,000 in compensation.

Unfair Dismissal, Written terms and conditions of employment