Complainant

Respondent

Anonymised Parties

A Hairdresser

A Hair Salon

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-00025376-001

29/01/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 19 of the Carer's Leave Act 2001

CA-00025376-002

29/01/2019

The complainant was employed by the respondent from November 2012 until on or about 25th January 2019. The complaints were submitted to the Workplace Relations Commission on 29th January 2019. The complainant contends that she suffered penalisation and was unfairly dismissed when she indicated her intention to return to work following a two-year period of Carer’s Leave.

The complainant submits that she was employed 15 hours per week until she went on Maternity Leave in July 2016. The complainant outlined that she applied for and was granted Carers Leave from March 2017 until March 2019. She then met with her employers with a view to returning to work for 15 hours per week in or around March 2019. The complainant stated that she was subsequently dismissed during a telephone conversation with her employer when the employer would not permit her to return to work for 15 hours per week. The complainant submits that she was unfairly dismissed and penalised as a result of having been absent on Carer’s Leave and not permitted to return to work for her established pattern of attendance.

The respondent submits that the complainant was not dismissed unfairly or at all or that she was penalised for exercising her rights to Carer’s Leave. The respondent stated that the complainant was employed as a trainee hairdresser on a full-time basis and had not completed the required training at the time she went on Maternity Leave in July 2016. Following the period of Carer’s Leave, the complainant sought to return to work for 15 hours per week. The respondent stated that it could not facilitate the complainant with the reduced hours on her return to work in March 2019 as she was a full-time trainee hairdresser and had not yet completed her training.

The respondent stated that the complainant temporarily worked just 15 hours per week on medical advice prior to going on Maternity Leave. The respondent accepted that it provided a letter for the complainant confirming that she worked 15 hours per week in February 2017 but that was in relation to a request from the complainant concerning an application to the Department of Employment Affairs and Social Protection (DEASP) at that time. The respondent does not accept that its email correspondence in February 2017 or the temporary reduction in hours prior to the complainant’s maternity leave indicates that the complainant worked only 15 hours per week. The respondent stated that it had hoped the complainant would return to work on a full-time basis to complete her training but that this did not happen. The respondent contends that the complainant accepted this at the time and that the respondent, for its part, committed to make enquiries with its contacts in relation to seeking alternative employment for the complainant elsewhere at the reduced number of hours each week.

The Applicable Law

Section 6(4) of the Unfair Dismissals Act, 1967 states as follows:

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.

Section 16 of the Carer’s Leave, 2001 states as follows:

16(1) An employer shall not penalise an employee for proposing to exercise or having exercised his or her entitlement to carer’s leave.

(2) Penalisation of an employee includes—

(a) dismissal of the employee.

(b) unfair treatment of the employee, including selection for redundancy, and

(c) an unfavourable change in the conditions of employment of the employee.

(3) If a penalisation of an employee, in contravention of subsection (1), constitutes a dismissal of the employee, as referred to in subsection (2)(a) the employee may institute proceedings under the Unfair Dismissals Acts, 1977 to 1993, in respect of that dismissal and such dismissal may not be referred to a rights commissioner under Part 4.

(4) An employee who is entitled to return to work in the employment concerned in accordance with section 14but is not permitted by his or her employer to do so—

(a) shall be deemed to have been dismissed on the date on which he or she was entitled to so return to work and the dismissal shall be deemed, for the purposes of the Unfair Dismissals Acts, 1977 to 1993, to have been an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal, and

(b) shall be deemed for the purposes of the Redundancy Payments Acts, 1967 to 1991, to have had his or her contract of employment with his or her employer terminated on the date aforesaid.

The complainant asserts that she was penalised by not being permitted to return to work for her established 15 hours of work per week and was unfairly dismissed when she could not return to work on a full-time basis.

The parties are in direct conflict in relation to the complainant’s established hours of work which is a key element of the within complaints. The complainant stated that she worked 15 hours per week prior to going on Maternity Leave and should have returned to that pattern of attendance following her Carers Leave in March 2019.

The respondent stated that the complainant was employed in a full-time capacity as a trainee hairdresser until a short number of weeks prior to going on Maternity Leave in July 2016. The respondent outlined that the complainant’s hours were reduced to 15 hours per week temporarily on the grounds of medical advice received by the complainant at the time. The respondent contends that it was unable to provide the complainant with just 15 hours per week after her return to work following the period of Carer’s Leave as she had not yet finished her training and was required to resume full time employment in order to do so.

In relation to the complainant’s assertions that she was required to work only 15 hours per week, I note that the respondent issued an email to the complainant on 13th February 2017 to that effect, however, I accept the respondent’s contention that this related to applications the complainant had made or was intending to make to the DEASP at that time. I do not find that the temporary reduction in working hours prior to Maternity Leave in July 2016 or the email from the respondent on 13th February 2017 confirms that the complainant’s established pattern of work was just 15 hours per week. Having considered the matter I find on balance that the complainant’s substantive role was that of a full-time trainee hairdresser.

I note that the complainant was unable to return to work full time due to the ill health of her Daughter and that the respondent was unable to offer the complainant the reduced number of hours she sought for the reasons stated. In all of the circumstances of the within complaints and having considered the provisions of Section 6(4)(d) of the Unfair Dismissals Act, 1977, I conclude that the complainant was not unfairly dismissed.

I also note the provisions of Section 16(3) of the Carer’s Leave Act, 2001 which precludes the complainant from referring a claim of penalisation relating to her dismissal under that act in circumstances where she has also referred a complaint under the Unfair Dismissals Act, 1977. Accordingly, I find that complaint of penalisation relating to her alleged dismissal referred under the Carers Leave Act, 2001 is misconceived.

Having considered the submissions of both parties, I do not find that the complainant was unfairly dismissed. Accordingly, the complaint is not well founded.

Having considered the submissions of both parties, and in accordance with the provisions the legislation I find that the complaint is misconceived.

Unfair Dismissal, Carer’s Leave, Penalisation