Complainant

Respondent

Anonymised Parties

A Beauty therapist Manager

A Beauty Salon

Representatives

Peninsula Group Limited

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-00029589-001

10/07/2019

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

CA-00029589-002

10/07/2019

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

CA-00029589-003

10/07/2019

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

CA-00029589-004

10/07/2019

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

CA-00029589-005

10/07/2019

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

CA-00029589-006

10/07/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00029589-007

10/07/2019

The complainant was employed by the respondent from May 2013 to January 2019.   She submitted a number of complaints against the within respondent on the 10th of July 2019. I proceeded to a hearing of these matters on the 13th of January 2020. Both parties attended the hearing.   The cognisable period for these complaints runs from 11th of January 2019 to 10th of July 2019 and the complainants employment terminated on the 24th of January 2019.

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

CA-00029589-001

10/07/2019

The complainant submits that

She was employed by the respondent in A beauty salon from May 2013 where she worked part-time as a beauty therapist,

In May 2016 she asked the respondent for a pay rise, this was agreed, and she was asked to take on the role of manager which she agreed to

She was dismissed from her employment on 24th of January 2019, no reason was given for her dismissal other than her client numbers were down and no procedures were followed.

She was dismissed with no verbal warning, no written warning, no complaints and no notice.

The respondent submits that

The complainant was employed by the respondent as a Beauty Therapist from 15th May 2013 in a salon owned by Ms. L and Ms. K who also worked in the salon,

The company changed name on the 1st February 2018 and Mr. M husband of Ms. L became the business owner,

The complainant voluntarily left her employment on 24th of January 2019 after the respondent had confronted her about poaching clients from the business and providing salon services to a number of clients at her own home on her days off,

the Complainant had contacted the Respondent to meet on the 24th January 2019 and following this meeting and the Complainants obvious failure to be honest about her activities which were having an adverse effect on the Respondents business, the Complainant was summarily dismissed on the basis of gross misconduct,

The Complainant was paid any wages due together with holiday pay and one weeks’ notice irrespective of the summary dismissal.

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

In such cases the burden of proof rests with the Respondent to establish the substantial grounds justifying the dismissal of the Complainant.

The lawful reasons for dismissal are set out in Section 6 (4) of the Unfair Dismissals Act 1977 which 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, 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.”

The respondent in its written submissions asserts that that the complaint was dismissed due to her own conduct and relies on Section 6(4) in this regard.  

Further, an onus is placed on the employer by Section 6 (6) of the Unfair Dismissals Act 1977 which provides

“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 complainant in the present case advised the hearing that she was subjected to an unfair dismissal by the respondent when she was dismissed from her employment on the 24th of January 2019 by a man Mr. B whom she had never met before but whom she was advised was the business owners accountant.

The complainant advised the hearing that Mr. B had told her that the business owner Mr. M (husband of Ms. L who worked in the salon and was co-owner) had noticed that her client requests had gone down in the last three years. He had a piece of paper in his hand and called out three numbers that were scribbled down on it in descending order something along the lines of 75, 65, 52.    Mr. B was implying that there were less clients requesting the complainant to do their treatments. He went on to say that the business was no longer profitable, and he was here to give her her P45 and as of immediate effect she was no longer an employee of the business. The complainant advised the hearing that she was told to gather her things and to leave now. The complainant stated that the initial reason given for her dismissal was a reduction in her client numbers which was not true.

The respondent advised the hearing that the conduct of the Complainant which gave rise to her dismissal was her intentional poaching of the Respondents clients and offering salon services at her home on her days off.    The respondent stated that this had the effect of decreasing business for the Respondent and was contrary to the implied trust and confidence that was implied in the employment relationship between the parties. The respondent stated that in August 2018 Ms. L co-owner of the Respondent salon had noticed that the Complainant had been posting pictures on Instagram of her work at the Respondent’s salon and that she had not been tagging them in her work when it is widely accepted that all employees honour the Company when posting the work they have done whilst at work there.  Ms. L stated that she raised this with the complainant on a number of occasions and that each time the complainant agreed that she would begin to do this, but she never did.

Witness for the respondent Ms. L co-owner of the salon and wife of the business owner Mr. M told the hearing that she had noticed that some regular clients had not been to the salon for some time and that she and her sister Ms. K had met with the Complainant and another employee Ms. C in December 2018 to discuss whether or not they i.e. the employees had noticed that many regular clients had not been in to the salon in some time. While another employee Ms. C remarked that certain longstanding regular clients had not visited the salon in sometime the Complainant albeit her position as Manager did not contribute or comment to this discussion.

The respondent advised the hearing that the situation worsened when the complainant began marking herself off on Saturdays. The respondent stated that it was brought to their attention by one of the other staff that the complainant had on one occasion contacted a client and informed them that she would not be working Saturdays, and that later that day the same client cancelled her appointment. This led to the Respondents suspicion that the complainant had poached this client and offered to do her work from home. The complainant in response to this stated that the reason for her taking Saturdays off was because the respondent had asked her to work a day less in order to reduce wage costs and to facilitate their paying staff members a pay rise of an extra 50 cent per hour. The complainant stated that she had agreed when asked to reduce her work by one day and that she was aware that a client who specifically asked for her on a particular Saturday had later cancelled when she was told that the complainant was not working on Saturday.

Ms. L co-owner of the salon advised the hearing that she had received a text from a client in January 2019 stating that that the complainant had put up a ‘snapchat story’ taken at her new home, in the background of which, you could clearly see a salon style ring light, waxing products, nail bar and a beauty bed.  The respondent advised the hearing that Saturdays are the busiest for those in the beauty industry, and they had noticed that the Complainants appointments column had begun to reduce weekly and that those regular clients were no longer attending, leading them to believe that she had been looking after these clients on days she had taken off as she appeared to be fully equipped to work from home in light of the photos which the respondent say appeared to depict a treatment room set up in her own home consisting of a beauty bed, nail bar, waxing products and a salon style ring light.

The respondent submits that a ‘reasonable employer’ given the accumulation of all of these factors would ‘reasonably believe’ that their employee is or is conspiring to work in competition with them and in doing this, poaching their clients.

The respondent told the hearing that they (Ms. L and Ms. K ) had intended to call the complainant to a disciplinary meeting in this regard but before they had a chance to do so the complainant had asked them if she could meet with them as she had said she felt there was tension between them which needed to be cleared.  The meeting between Ms. L Ms. K and the complainant was scheduled to take place at 2 o clock in the salon on 24th of January 2019.   The Respondents stated that they were happy to meet with the Complainant as they assumed that the Complainant had decided to “come clean” about her behaviour.

The respondents told the hearing that they had requested that Mr. B, accountant and colleague of the business owner Mr. M attend the hearing as a witness.  At this meeting the Complainant was asked whether she had noticed there were some regular clients not returning, mainly numbers from the Complainant’s column had dropped.    The respondent stated that the Complainant was also asked whether she was allegedly trying to set up a salon from home by poaching the Respondent’s clients from the computer and the treatment rooms.  The respondent told the hearing that the complainant denied these allegations.  

The respondent advised the hearing that having confronted the complainant about her wrongdoing it was decided that the employment relationship could no longer continue.   The respondent stated that this was mutually agreed with the Complainant and she appeared to understand that the employment relationship could no longer continue.

The complainant disputes the respondents version of events and advised the hearing that the issue of certain clients not returning to the salon had been brought up on the 24th of January meeting and had previously come up in a meeting prior to January 2019 but the complainant stated that she herself had raised this as an issue previously as people had been complaining that they could not get through to the salon by phone and that efforts to secure appointments via Facebook were only replied to a number of days later.   The complainant stated that the phone problem was due to the fact that the salon did not have a receptionist but that occasionally family members of Ms. L and Ms. K would come in and answer phones.   The complainant stated that this was an issue which she had previously raised.  The complainant stated that the issue of tagging the salon in her work had been raised with her in a friendly manner when Ms. L had asked her to be sure to tag the salon in any posts of makeup she had done, to which she the complainant had replied ‘yes you must show me how to do that’. The complainant stated that this was not a warning of any kind just a friendly conversation. The respondent however now asserts that this amounted to an informal verbal warning.

The Respondent advised the hearing that the decision to end the employment relationship was one which was mutually agreed between the parties on the 24th January 2019.   The respondents at the hearing stated that Mr. B, a colleague of Mr. M the business owner was brought in as a witness on the 24th of January 2019 as both Ms. L and Ms. K were friends with the complainant and Mr. M the business owner had concerns about how they would handle the meeting.   When asked at the hearing whether he had dismissed the complainant from her job Mr. B stated that he had no authority to dismiss her as he was not part of the business and that he had only attended the meeting as a witness as a favour to Mr. M the business owner who was unable to attend himself.   Mr. B when questioned as to how the meeting had ended stated that the had told the complainant that her continued employment had become untenable.  

The complainant stated that the respondent had never accused her or asked her if she had been poaching clients from the business and she stated that the reason given for dismissing her was that her client numbers had fallen. The complainant stated that she was in shock and tried to dispute this but stated that Mr. B did not give her a chance to speak before telling her to gather her things and go.   The complainant stated that Ms. L and Ms. K had allowed this man Mr. B to come in and dismiss her from her job.   The complainant stated that she was completely shocked and tried to argue with him that her client numbers had not fallen and her appointments column was always full but that he wouldn’t listen. The complainant stated that she was told that her outstanding wages and p45 would be sent out to her over the coming days. The complainant stated that it wasn’t until a few days later that Ms. L had mentioned to her over the phone that they had suspected that the complainant had been poaching clients.

Having given a great deal of consideration to these matters I am satisfied from the evidence adduced that the complainant was dismissed and the questions I deem that now need to be considered and decided upon are: (1) was it reasonable for the Respondent to dismiss the Complainant and (2) was the process that ended with her dismissal a fair process?

Accordingly, in the circumstances of the facts of this case I deem that it is my function as the Adjudicator to decide whether the employer’s decision to dosmiss was within the band of reasonableness of a reasonable employer or not. In this regard, I note the UK Court of Appeal of British Leyland UK Limited v Swift [1981] IRLR 91, where, Lord Denning stated:

“The correct test is: was it reasonable for the employers to dismiss the complainant? If no reasonable employer would have dismissed her, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed her, then the dismissal was fair. It must be remembered that in all these cases, there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably take a different view.

In her judgement in the Circuit Court case of Allied Irish Banks plc v Purcell [2012] 23 ELR 189, Ms Justice Linnane referred to the British Leyland case and remarked as follows: “It is clear that it is not for the EAT or this court to ask whether it would dismiss in the circumstances or substitute its view for the employer’s view but to ask was it reasonably open to the respondent to make the decision it made rather than necessarily the one the EAT or the court would have taken.”

The complainant advised the hearing that she had at the 24th of January meeting challenged the respondents assertion that her client numbers had fallen but that she was given no chance to prove this as Mr. B had simply told her to gather her things and go.     The complainant stated that the allegation that she was poaching clients was never raised with her prior to her dismissal nor was she ever given an opportunity to defend herself against such an allegation. The complainant told the hearing that the first time such an allegation was raised with her was in a phone call from Ms. L a few days after she was dismissed.     The complainant subsequently denied that she had been poaching clients and stated that she had a treatment room at home which she used to perform treatments on family members and friends.

The complainant told the hearing that she had been shocked and intimidated by Mr. B on the 24th of January and could not understand why he had been brought in to speak to her while Ms. L and Ms. K co-owners of the salon had allowed him to dismiss her. The complainant stated that prior to this meeting she had no idea or inclination that her employment was in jeopardy or that she was at risk of dismissal. The complainant told the hearing that she and another employee had a few weeks previously had asked for a pay rise which was initially agreed at 50 cent per hour, but she stated that Ms. L had phoned her at home later that day and told her that the company could not afford to pay her this pay rise unless she reduced her working week by one day. The complainant stated that she had agreed to this and when she had asked if this day off could be a Saturday, the respondent agreed to and implemented this.  

The complainant told the hearing that she was shaken and upset after the meeting with Mr. B.  She stated that she went to her car and cried.   The complainant stated that she was at the time 7 weeks pregnant but had not told the respondent of this.

The complainant told the hearing that no procedures were followed and that she had received no warnings verbal or written to suggest that her employment was in danger.

The Respondent has submitted that it acted reasonably in dismissing the complainant in circumstances where it had a reasonable belief that she was poaching customers form the business.     The respondent at the hearing adduced no evidence to suggest that it had any proof that the complainant was poaching clients from the business or that she was intending to leave and set up her own business.   In addition, no evidence was adduced to suggest that the respondent had raised this suspicion with the complainant prior to her dismissal or that she had been given any chance to either confirm or deny these allegations before being dismissed. Accordingly, having considered the evidence adduced, I disagree with the Respondent and I find that the facts presented in this case do not fall within the boundaries of the band of reasonableness as discussed in the case law above.   In addition, I must look at the process involved and whether that Process was fair.

The respondent in its submission denies that its process and procedure in investigating the matter were procedurally unfair. The respondent submits that it acted like a reasonable and prudent employer and had a duty to protect their business.   The respondent also asserts that in the event that some procedural unfairness is identified, it is denied that per s.6(1)(a) of the 1977 Act, “having regard to all the circumstances” the dismissal was unfair.

The respondent in its defence has argued that even if some procedural unfairness is identified in its dismissal of the complainant this does not necessarily render the dismissal unfair and submits that regard must be had to all of the circumstances. The respondent cites a number of cases in support of this argument namely

In Elstone v. CIE (High Court, 13 March 1987, unrep.)

Loftus and Healy v. An Bord Telecom (High Court, 13 February 1987, unrep.)

Shortt -v- Royal Liver Assurance Ltd. [2008] IEHC 332,

RAS Medical Limited T/A Park West -v- The Royal College of Surgeons in Ireland [2017] IECA 228 it

Kelly v. CIE (Circuit Court, 11 February 1985):

McGee v. Beaumont Hospital

The respondent in its defence of this does not point to any procedures which were followed in arriving at its decision to dismiss the complainant but instead seeks to advance a case that a lack of procedures does not in and of itself render the dismissal unfair.

In considering what if any procedures were followed, I note that the complainant submits that she did not receive any contract or terms of employment this matter is the subject of a separate complaint under CA-00029589-005, thus she was unaware of any grievance or disciplinary procedure which was or should have been followed. The respondent at the hearing did not point to any documented grievance or disciplinary procedures but did allege that the matter of poaching clients was raised with the complainant on a number of occasions.   The complainant disputes this and says that this allegation was never mentioned or raised with her until after her dismissal.

The complainant told the hearing that the first time this was mentioned to her was at end January start February after the complainant had written to the respondent to ask them to stop spreading lies and rumours about the reason for her leaving the salon as she had heard that they had been telling customers that he complainant was involved in a serious incident and had to be let go.   The complainant stated that such rumours could ruin her career and so she had written to the respondent to ask them to stop.  The complainant stated that Ms. L of the respondent had phoned her after receiving the letter and had referred to the fact that she had been told about a snapchat post which had looked like the complainant was selling beauty products from her own house as the products were pictured in the background. The complainant stated that Ms. L during this conversation had admitted that she might have ‘jumped the gun’ and that Ms. L had told her that after two other employees had left the salon and opened up their own business Ms. L was afraid the complainant was doing the same.      The complainant stated that Ms. L had said she was angry and hurt and knew how much custom the complainant could take from the salon if this was true and that she couldn’t risk it. The complainant told the hearing that she was shocked and upset to learn that the respondent had tried to ruin her career over a suspicion about a video that the respondent didn’t even see for themselves first hand.

In considering the procedures to be followed in cases of dismissal I am mindful of the Code of Practice on Grievance and Disciplinary Procedures (S.I. 146 of 2000) which sets out the general principles that should apply in the operation of disciplinary procedures and the promotion of best practice in giving effect to these procedures.     The Code states that the procedures applied must comply with the general principle of natural justice and fair procedures.

It is clear from the evidence adduced in relation to this matter that the respondent in this case did not follow any procedures and did not have regard to the Code of Practice on Grievance and Disciplinary Procedures (S.I. 146 of 2000) in arriving at the decision to dismiss the complainant.

Having considered the totality of the evidence adduced here I am satisfied that the respondent in this case failed to follow its own disciplinary procedures and also failed to comply with fair procedures and natural justice before dismissing the complainant.   In the circumstances, I find that the complainant was unfairly dismissed by the respondent and accordingly I declare this claim to be well founded.  

The complainant advised the hearing that she was seven weeks pregnant at the time of her dismissal but that she had not notified the respondent of this fact at the time. The complainant advised the hearing that she did not enter any other employment before her maternity leave which commenced in September 2019 and that she had been unable to secure maternity benefit for the period of her maternity leave due to the fact that she had been dismissed by the respondent in January 2019.  The complainant at the hearing did not provide any documentary evidence of attempts to mitigate her loss.

The complainant stated that she had however managed to secure a job in Spring 2019 prior to her maternity leave but she had agreed she would not start this job until March 2020 as it required full time training which she states she would only be able to undertake after her maternity leave.  The respondent disputed the complainants assertion that she had not been working and submits that the complainant was working on clients from her home during April 2019, the respondent as evidence of this provided pictures of individuals with makeup and treatments carried out by the complainant which had been posted by the complainant on social media. The complainant advised the hearing that these were old pictures and pictures of family and friends whose make up she had done at home and she stated that she had continued to post pictures on social media in order to keep her name out there as a beauty therapist while not in employment and while waiting to start employment in another salon in March 2020.

In respect of mitigation of loss, I note the decision of the Employment Appeals Tribunal in the case Sheehan v Continental Administration Co Ltd (UD858/1999) where it stated, “a complainant 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 complainant 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 and based on the unfairness of the dismissal, and taking into account the complainant’s lack of evidence in respect of her attempts to secure employment in the aftermath of her dismissal, I find that it is just and equitable in all the circumstances of this case to order the respondent to pay the Complainant the sum of €3,500 in compensation.

Accordingly, I declare this claim to be well founded, I find that the complainant was unfairly dismissed, and I award the complainant the sum of €3,500 in compensation.

Accordingly, I declare this claim to be well founded, I find that the complainant was unfairly dismissed, and I award the complainant the sum of €3,500 in compensation

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

CA-00029589-002

10/07/2019

The complainant submits that

She was not paid for her Public holiday entitlements

The respondent submits that

The complainant on her departure was paid amounts owing for Public holidays

The Applicable Law

Section 21(1) of the Organisation of Working Time Act, 1997 provides as follows:

21.(1) Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely—

(a) a paid day off on that day,

(b) a paid day off within a month of that day,

(c) an additional day of annual leave,

(d) an additional day’s pay:

Provided that if the day on which the public holiday falls is a day on which the employee would, apart from this subsection, be entitled to a paid day off this subsection shall have effect as if paragraph (a) were omitted therefrom.

The complainant has submitted a claim in respect of Public holiday entitlements. The claim was submitted on the 10th of July 2019 therefore the cognisable period for this claim dates from 11th of January 2019 to 10th of July 2019. The complainant was dismissed on the 24th of January 2019 and could not identify any public holidays which fell due to be paid during the cognisable period. Accordingly, I declare this claim to be not well founded.

I declare this claim to be not well founded.

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

CA-00029589-003

10/07/2019

The complainant submits that

She is owed for outstanding annual leave,

she had received an Annual leave payment which coincided with a 19-hour week when she had in fact worked a 26-hour week,

she is entitled to receive holidays corresponding to 26 hours per week

The respondent submits that

the complainant was paid for all outstanding annual leave at the end of her employment.

The Applicable Law

Section 19(1) of the Organisation of Working Time Act, 1997 provides as follows:

19.(1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—

(a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

(b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

(c) 8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):

The cognisable period for the purpose of this claim is confined to the six-month period ending on the date on which the complaint was referred to the WRC i.e. from 11th of January 2019 to 10th of July 2019.

Section 2(1) of the Act defines the Leave Year as “a year beginning on any first day of April”. The six-month period referenced in the complaint encompasses the leave year 2019/2020, which began on 1 April 2019 to end March 2020.

The complainant has submitted a claim in respect of paid Holiday/Annual Leave entitlement. The respondent advised the hearing that the complainant was paid for all outstanding annual leave. The respondent advised the hearing that the complainant at the time of her termination of employment was paid for 4 weeks holidays amounting to 76 hours and for which she was paid on the 2nd of February 2019. The payslip for this date was submitted in evidence.

The complainant did not deny this but stated that she had received an Annual leave payment which coincided with a 19-hour week but claims she had in fact worked 26 hours a week, she submits that she is entitled to receive holidays corresponding to a 26 hours per week and not a 19 hours week.

Both parties agreed that the complainant had worked three days per week.   The complainant advised the hearing that she had initially worked 19 hours per week, but she stated that this increased to 26 hours per week from around May 2018. The respondent disputed this and stated that the complainant worked 19 hours a week and provided payslips in support of this.   The complainant told the hearing that she was paid cash by the respondent on a Saturday evening where €390 was taken from the till and placed in an envelope and handed to her.   The complainant stated that she only ever received a payslip if she asked for one. The complainant provided no explanation as to why the payslips indicated that she worked 19 hours and was paid €285 (gross) for same.     The respondent produced a wages record signed by the complainant on a weekly basis which corresponded to the amount shown on the weekly payslips. These wage records show that the complainant signed for an amount of €262 (net) wages each week and were presented in evidence. The complainant confirmed that this was her signature and that she had signed each week for receipt of wages to the amount of €262 (net) per week.  

The respondent stated that there were occasions where the complainant had worked extra hours and stated that she was paid for these extra hours or else took time in lieu for them.   The complainant at the hearing was unable to provide any documentary evidence in support of her assertion that her regular working week was 26 hours and all documentation presented by the respondent supported the respondents position that the complainant was employed to work 19 hours per week and was paid accordingly as evidenced by the records of wages signed for by the complainant each week.  

I am satisfied based on all of the documentary evidence produced that the complainants regular working week was 19 hours for which she was paid €285.     Both parties agree that the complainant was paid at the rate of €15 per hour.

Both parties agree that he complainant was issued with a payment in lieu of annual leave calculated on the basis of 8% of her working hours which I am satisfied on the balance of probabilities based on the documentary evidence produced was 19 hours per week.   Having considered the totality of the evidence adduced I am satisfied that the Complainant was afforded her full statutory entitlement to annual leave during the cognisable period. Accordingly, I find that the Respondent did not contravene the provisions of Section 19 of the Act and that this complaint is not well founded.

I find that the Respondent did not contravene the provisions of Section 19 of the Act and that this complaint is not well founded.

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

CA-00029589-004

10/07/2019

The complainant submits that

She did not get breaks during the working day as her employer overbooked her with appointments and was expected to work so she had to work through her breaks,

She was requested not to leave the premises at lunchtime as she was required to answer phone calls, take appointments, and answer the door to clients.

The respondent submits that

The complainant in her position as Manager was responsible for marking in lunchtimes for herself and for r other staff members.

Section 12 of the Act provides that an employee shall not be required to work more than 4 hours 30 minutes without a break of at least 15 minutes and shall not work more for more than 6 hours without a 30-minute break. This 15-minute break can be included in the 30-minute break but would have to start no later than 4 hours and 30 minutes after the commencement of work.

The complainant advised the hearing that the respondent would mark out different times each day for breaks, some days it would be 30 minutes some days it would be 15 mins or 20 minutes and very occasionally an hour.     The complainant added that the respondent would over book her column with appointments so that she always had to work through her breaks. The complainant told the hearing that Ms. L and Ms. K co-owners of the business had also expressed that they did not want her to leave the premises on her lunch break as they wanted her to answer phone calls, take appointments, and answer the door to clients, therefore if the phone rang constantly for her entire break, she often did not get to sit down or eat lunch at all.  The complainant advised the hearing that the respondent did not employ a receptionist and so it was left up to her and other staff to answer the phone and take bookings when possible in between appointments.

The respondent advised the hearing that the complainant in her position as Manager was responsible for marking in lunchtimes for herself and for other staff members.    The respondent stated that the premises had a kitchen equipped with a microwave kettle and George Foreman grill for staff to use if they chose to bring their lunch to work with them and which the complainant often did.

The respondent stated that break records are kept and referred the hearing to an appendix containing records dated from August to October 2018 which set out daily start and finish times for the complainant and which also indicated daily break periods of 30mins to 1 hour. In examining these records, I note that they do not relate to the cognisable period of the complaint which dates from 11th of January 2020 to 10th of July 2020.   I also note that the break records presented do not set out specific times during which breaks are to be taken or indicate times when breaks were taken during the working day. In addition, there is also no indication that the breaks were actually permitted or taken or the duration of same. I note that the records presented and which purport to show breaks taken by the complainant are not signed by the complainant and do not contain any signature or any sign in or sign out times in respect of these permitted breaks.

In accordance with Section 12 it is for the respondent to prove that breaks have been taken where a claim is made in that regard.      The respondent at the hearing did not produce any sign in and sign out sheets as evidence of breaks taken by the complainant during the cognisable period.  

Accordingly, I am satisfied based on the balance of probabilities and from the evidence adduced that this claim is well founded, and I award the complainant €500 for the breach.

Accordingly, I am satisfied based on the balance of probabilities and from the evidence adduced that this claim is well founded, and I award the complainant €500 for the breach.

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

CA-00029589-005

10/07/2019

The complainant submits that

The complainant stated that she did not receive a written statement of his terms and conditions of his employment while in the employment of the respondent.

The respondent submits that

The respondent stated that the complainant was provided with a contract on commencement of her employment.

The Complainant claims that the Respondent has contravened the provisions of Section 3 of the Terms of Employment (Information) Act, 1994 in relation to her employment. The Complainant stated that she had never received any contract or written statement of her terms and conditions of employment since commencing her employment with the respondent in May 2013.

Section 3(1) of the Terms of Employment (Information) Act 1994 requires 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 following particulars …… “.

The Respondent at the hearing produced a half page undated document which it referred to as a Job Description for the complainant.   This document does not contain any of the references required under s.s 3 (e) through to (m), was not signed or dated by the complainant and did not contain any option for signature or date furthermore the complainant advised the hearing that she had not received this document.   I also note that there was no signed letter from the complainant confirming receipt of her terms and conditions of employment.   In addition, the document produced does not comply or come close to complying with the terms of Section 3.   The respondent at the hearing accepted that the complainant was not provided with a statement in writing as required by Section 3 but submits that the complainant has failed to show that she suffered any losses in relation to the failure to be provided with a statement compliant with Section 3. The respondent relies on the Labour Court decision in Philmic Ltd (TED1616) in making this assertion. I am satisfied that the facts of this case differ significantly to those in the Philmic case where the respondent had merely failed to include in a contract references to s.s. 3 (g) and (ga).

Section 3(1) of the Act is clear that an employer shall provide the employee with a statement within two months of the start of the employment relationship. Where this is not provided, the employee has recourse to the Workplace Relations Commission where Section 7(2) enables the adjudication officer to take steps to amend or add to a statement, to require a statement be provided or to award financial redress.

Having regard to the evidence adduced, I am satisfied based on the balance of probabilities and from the evidence adduced that this claim is well founded that the Respondent in this case contravened the requirement under Section 3 to provide the specified written statement.   Accordingly, I declare this claim to be well founded and the respondent is directed to pay the complainant €500 in compensation.  

I declare that the complaint is well founded. The respondent is directed to pay the complainant €500 in compensation.

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

CA-00029589-006

10/07/2019

The complainant submits that

she was employed by the respondent from May 2013 to January 2019 and is entitled to 4 weeks’ notice based on her service,

the complainant was paid one weeks’ notice and this one week was based on a 19-hour week not the 26 hours she had worked.

The respondent submits that

the complainant was paid one week in lieu of notice.  

The respondent in its written submission to the WRC alleged that the complainant was subjected to a summary dismissal for gross misconduct and was not entitled to notice or pay in lieu of notice. However, the respondent at the hearing changed its position on this and submitted that there was no dismissal claiming that there was a mutual agreement between the parties that the complainant would leave following the meeting of 24th of January 2019.  The complainant has lodged a separate claim in respect of her dismissal, and this is dealt with in CA-00029589-001.

Applicable Law

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,

(b) if the employee has been in the continuous service of his employer for two years or more, but less than five years, two weeks,

   (c) if the employee has been in the continuous service of his employer for five years or more, but less than ten years, four weeks,

   (d) if the employee has been in the continuous service of his employer for ten years or more, but less than fifteen years, six weeks,

(e) if the employee has been in the continuous service of his employer for fifteen years or more, eight weeks.

The complainant in the present case was employed by the respondent from May 2013 and her employment terminated on the 24th of January 2019.   The complainant advised the hearing that she was paid one week’s notice by the respondent and that this notice payment was for a 19-hour week when she had in fact worked 26 hours per week.   The respondent agrees that the complainant was paid one week in lieu of notice. Both parties agree that the complainant was employed from May 2013 to January 2019 and that she had only received one weeks’ notice pay.

Both parties agreed that the complainant had worked three days per week.   The complainant advised the hearing that she had initially worked 19 hours per week, but she stated that this increased to 26 hours per week from around May 2018. The respondent disputed this and stated that the complainant worked 19 hours a week and provided payslips in support of this.   The complainant told the hearing that she was paid cash by the respondent on a Saturday evening where €390 was taken from the till and placed in an envelope and handed to her.   The complainant stated that she only ever received a payslip if she asked for one. The complainant provided no explanation as to why the payslips indicated that she worked 19 hours and was paid €285 for same.   The respondent produced a wages record signed by the complainant on a weekly basis which corresponded to the amount shown on the weekly payslips. These wage records show that the complainant signed for an amount of €262 each week and were presented in evidence. The complainant confirmed that this was her signature signed each week for receipt of wages to the amount of €262 per week.  

The respondent stated that on occasions where the complainant had worked extra hours she was paid for these extra hours or else took time in lieu for them.  The complainant at the hearing was unable to provide any documentary evidence in support of her assertion that her regular working week was 26 hours and all documentation presented by the respondent supported the respondents position that the complainant was employed to work 19 hours per week and was paid accordingly as evidenced by the records of wages signed for by the complainant each week.   While I don’t doubt that there may have been occasions when the complainant did work more than the specified hours per week and may have been paid cash for these extra hours, I am satisfied from all of the documentary evidence produced and based on the balance of probabilities that her regular working week was 19 hours for which she was paid €285.   Both parties agree that the complainant was paid at the rate of €15 per hour.

The parties do not dispute the length of service or that the complainant was paid one weeks’ notice.   Accordingly, I am satisfied based on her length of service that the complainant in this case was entitled to four weeks pay in lieu of notice and I declare this claim to be well founded. I direct the respondent to pay the complainant an additional three weeks’ pay in lieu of notice to which she is entitled based on 19 hours per week at €15 per hour.

I declare this claim to be well founded. I direct the respondent to pay the complainant an additional three weeks’ pay in lieu of notice to which she is entitled based on 19 hours per week at €15 per hour.  

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00029589-007

10/07/2019

The complainant submits that

One of the reasons for dismissal was "The company cannot afford to employ you when overall takings are down"

her employers ignored her request for redundancy.

The respondent submits that

There was no redundancy situation.

The complainant at the hearing formally withdrew the claim of redundancy.   Accordingly, I declare this claim to be not well founded.

I declare this claim to be not well founded.