Complainant

Respondent

Anonymised Parties

Trainee Hair Stylist

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-00030881-001

12/09/2019

The Complainant contends that she was unfairly dismissed after she exercised her right to be paid minimum wage.

The Complainant stated that she was employed as a Trainee Hair Stylist by the Respondent from 8th May 2018. She approached her employer in April 2019 and told her that from 4th March 2019, she, the Complainant should have been paid minimum wage which was €9.80 per hour, instead of €8.12 per hour which was the rate paid to her.   The employer said she would speak to her accountant and get back to the Complainant. Subsequently, on 16th April 2019, the employer called the Complainant to a meeting and told her that on the advice of her accountant the wage increase was not viable, that cutbacks were being made, and that as one of the cutbacks, she was letting the Complainant go.   She gave the Complainant one week’s notice. The Complainant stated that she had never received a written contract of employment. The Complainant submitted that the Respondent breached the law under the National Minimum Wage Act 2000, Section 36 (1) and (2). The Complainant further submitted that she was victimised by the Respondent as she was dismissed because she exercised her right to request a pay increase under the National Minimum Wage Act 2000 and that this constituted an unfair dismissal within the meaning of the Unfair Dismissals Acts 1977 to 1993.   Section 36 (2) of the National Minimum Wage Act 2000 provides that it is not necessary for the employee to have at least one year’s continuous service for the Unfair Dismissals Act to apply.   The Complainant also submits that other employees who had less service than she had were retained in the employment. The Complainant also stated that in a previous incident in July 2018, when she could not attend a training course due to illness, the Respondent dismissed her without due process and only re-instated her following contact with the Respondent from the Complainant’s father who pointed out to her that she did not follow procedures. The Complainant contends that she was unfairly dismissed.

The Respondent contends that the Complainant is ineligible to have her claim heard under the Unfair Dismissals Act 1977 as she does not have at least 52 weeks continuous service.   The Respondent pointed out that the Complainant in fact did not commence the employment until 23rd May 2018 and the employment was terminated on 20th April 2019.   In response to her claim that she was dismissed for exercising her rights under the National Minimum Wage Act 2000, the Respondent submits the following:

The Complainant was on a trainee contract with the Respondent as a trainee hairdresser.   She was earning €8.12 per hour under the contract. On 4th March 2019 training rates and simplified sub-minimum rates based solely on age were abolished under the Employment (Miscellaneous Provisions) Act 2018. The Complainant alleges that the employer dismissed her due to the increase to the minimum wage increase not being viable for the company and therefore cutbacks had to be made. The Respondent submits that the Complainant was paid the difference in her wages from 4th March 2019 to the termination of her contract and as a result the Complainant is not in a position to assert her rights under the relevant legislation. The Complainant was dismissed as there had been ongoing issues with her performance and demeanour within the business. On several occasions the Respondent had to discuss with the Complainant her attitude towards her work. The Respondent paid for and arranged for the Complainant and another staff member to go on a course on 16th July 2018. The Complainant did not attend the course or inform the Respondent.   The Respondent found out that she did not attend as the other staff member was supposed to travel with the Complainant but could not go as the Complainant did not go. The Complainant had broken up with her boyfriend and thought this was an appropriate reason not to travel to attend the course. The Respondent tried to dismiss the Complainant on that occasion, but following an aggressive intervention by the Complainant’s father, the Respondent felt so intimidated that she allowed the Complainant to return to work, despite there being a financial loss to the business.   The Respondent paid the Complainant €1,728.49 during the period 1st January 2019 to 1st March 2019. During that period, the Complainant generated €1,445.67 in income, showing a deficit of €282.82. It was not financially viable for the Respondent to retain the Complainant.  

It is common case that the Complainant’s wages should have increased to €9.80 per hour from 4th March 2019 when the Employment (Miscellaneous Provisions) Act 2018 came into effect. That Act effected changes to the National Minimum Wage Act 2000. Under the 2018 Act, wage rates for employees under 18 and those over 18 have been simplified and are now solely based on age.   Trainee rates of pay have been abolished.  I note the Respondent’s evidence that they paid the Complainant her ‘back money’ due in relation to this increase at the end of her employment. However, this instant complaint relates to the Complainant’s contention that she was unfairly dismissed for having exercised her right to be paid the rate.     The Complainant’s evidence was that she approached her employer on 11th April 2019 seeking her right to the increase under the Act. The evidence is that on 16th April 2019 the Respondent dismissed the Complainant on the grounds that she could not afford the increase. A letter from the Respondent employer stated: “As the Government abolished trainee pay rates in Hairdressing and the wage bill was not viable for the company, therefore cutbacks had to be made”.   I note that in its submission to the hearing, the Respondent submitted that there were ongoing issues with the Complainant’s performance. The question then arises was the Complainant dismissed for having exercised her right to minimum wage, or was she dismissed because of performance issues?     I find that the Respondent gave cogent evidence regarding the Complainant’s performance and attitude. However, if performance and attitude were issues, there are well established procedures for dealing with such issues, and the Respondent did not afford the Complainant due process in that regard.   I note the timing of the Complainant’s assertion of her right to be paid minimum wage and the fact that some 5 days later the Complainant was dismissed. I have concluded that the Complainant was dismissed for having raised her right under the National Minimum Wage Act 2000 as repealed by Section 3 (b) of the Employment (Miscellaneous Provisions) Act 2018 and that dismissal was unfair.

Unfair dismissal, exercised right to minimum wage.