ADJUDICATION OFFICER DECISION / RECOMMENDATION
CORRECTION ORDER ISSUED PURSUANT TO SECTION 41 OF THE WORKPLACE RELATIONS ACT 2015
This Order corrects the original Decision / Recommendation issued on 13 May 2020 and should be read in conjunction with that Decision / Recommendation.
Adjudication Reference: ADJ-00023940
Parties:
| Complainant | Respondent |
Anonymised Parties | A complainant | A respondent |
Representatives |
| Dermot O'Loughlin |
Complaints:
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-00030549-001 | 29/08/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00031141-002 | 25/09/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00031141-003 | 25/09/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00031141-004 | 25/09/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00031141-005 | 25/09/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00031141-006 | 25/09/2019 |
Date of Adjudication Hearing: 04/02/2020
Workplace Relations Commission Adjudication Officer: Conor Stokes
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 8 of the Unfair Dismissals Acts, 1977 - 2015, and/or Section 13 of the Industrial Relations Acts 1969 following the referral of the complaints/disputes to me by the Director General, I inquired into the complaints/disputes and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints/disputes.
Background:
The complainant was employed as a Beauty Therapist by the respondent from 1 April 2017 until 10 August 2019. The respondent operates a hair and beauty outlet. The complainant was only given a contract to sign on 21 February 2019 outlining her terms and conditions. The employment relationship came to an end on 10 August 2019. |
Summary of Complainant’s Case:
The complainant submitted that there was a concerted effort to limit the assignment of clients to her, that there was a breach of her employment contract in that not achieving her targets is not a basis for dismissal. The complainant also submitted that she was unfairly dismissed and dismissed without notice. The complainant also submitted that her contract stated that her wage was €12.50 an hour but it transpired that she was only being paid €12 per hour. The complainant submitted that she was not provided with a statement of her core terms in writing between April 2017 and June 2019 (when she was received a copy of her signed contract). The complainant also submitted that she was not given notification of any changes in the terms of her employment. The complainant submitted that she was subjected to repeated harassment and inappropriate comments relating to her age and when she made a complaint it was not followed up. The complainant submitted that the disciplinary sanctions process and the grievance procedure were not followed. |
Summary of Respondent’s Case:
In relation to the Unfair Dismissal complaint the respondent submitted that it gave the complainant a fair and reasonable opportunity to make necessary improvements to meet her targets. The respondent submitted that it gave the complainant two written warnings and that she had the opportunity to appeal against the warning but decided not to do so. The respondent submitted that the complainant never formally challenged any aspect of the targets set until 8 August 2019. In relation to the Terms and Conditions of Employment complaints the respondent submitted that both parties signed a contract on 21 February 2019. The respondent submitted that the contract stated €12.50 per hour but should have read €12 per hour. The respondent submitted that this error in the contract was an administrative oversight. In relation to the Industrial relations disputes the respondent submitted that it never received a bullying and harassment complaint from the complainant and rejects any allegation of improper behaviour. In relation to the operation of the disciplinary sanctions, the respondent submitted that it undertook a series of discussions and written warnings and that these were not carried out improperly. |
Findings and Conclusions:
CA-00030549-001 The complainant contends that she was dismissed unfairly and was not afforded the due procedure in relation to her dismissal. In response the respondent outlined a series of one-to-one meetings that took place with the complainant regarding her non-achievement of her targets, the two written warnings that were issued to the complainant, the right to be accompanied to a meeting and that the complainant made no complaints regarding the setting of her targets. I note that the notice of a dismissal notice does not detail the complainants right to appeal, but as raised by the respondent this was outlined in the employee handbook. Section 6 (4) of the Unfair Dismissals Act, 1977 states that: (4) 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.
Having considered the arguments presented by both parties, I am satisfied that the complainant was given two written warnings, was given due notice of the possibility of her dismissal and had the opportunity to appeal the decision. Accordingly, I find that the dismissal did not amount to an Unfair Dismissal. CA-00031141-002 It was admitted by the respondent that no contract of employment was signed until 21 February 2019 and the respondent did not contradict the complainant’s assertion that she did not receive a statement of her terms and conditions until June 2019. Section 3 of The Terms of Employment (Information) Act, 1994, states that (1) 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 of the terms of the employee’s employment, that is to say— (a) [ … ] (b) [ … ] (c) the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places, (d) the title of the job or nature of the work for which the employee is employed, (e) the date of commencement of the employee’s contract of employment, (f) a reference to any registered employment agreement or employment regulation order which applies to the employee and confirmation of where the employee may obtain a copy of such agreement or order, ] (g) that the employee may, under section 23 of the National Minimum Wage Act, 2000, request from the employer a written statement of the employee ’ s average hourly rate of pay for any pay reference period as provided in that section, ] (h) the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval, (i) any terms or conditions relating to hours of work (including overtime), (j) any terms or conditions relating to paid leave (other than paid sick leave), (k) any terms or conditions relating to— (i) incapacity for work due to sickness or injury and paid sick leave, and (ii) pensions and pension schemes, (l) the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee’s contract of employment) to determine the employee’s contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice, (m) a reference to any collective agreements which directly affect the terms and conditions of the employee’s employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made. (1A) Without prejudice to subsection (1), an employer shall, not later than 5 days 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 of the terms of the employee ’ s employment, that is to say: (a) the full names of the employer and the employee; (b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act 2014 ); (c) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires; (d) the rate or method of calculation of the employee ’ s remuneration and the pay reference period for the purposes of the National Minimum Wage Act 2000 ; (e) the number of hours which the employer reasonably expects the employee to work — (i) per normal working day, and (ii) per normal working week. I am satisfied that this element of the complainant is well-founded. Accordingly, I find that the complainant is entitled to succeed in this aspect of the complaint. CA-00031141-003 During the hearing, the respondent confirmed that it did not issue a note of the amended terms and conditions to the respondent. Section 5 of The Terms of Employment (Information) Act, 1994, states that (1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6 , the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than— (a) 1 month after the change takes effect, or (b) where the change is consequent on the employee being required to work outside the State for a period of more than 1 month, the time of the employee’s departure. I am satisfied that this element of the complainant is well-founded. Accordingly, I find that the complainant is entitled to succeed in this aspect of the complaint. CA-00031141-004 The complainant made a complaint regarding the operation of the Bullying and Harassment procedures operated by the respondent. The complainant submitted that the respondent did not pursue her complaint and follow due procedure as outlined in the handbook. The respondent in turn submitted that no complainant had been made under the Bullying and Harassment procedures. Having considered the evidence submitted by both parties it is clear that an element of a complaint was made to the respondent the day before her dismissal but following the arrangement of the final meeting. CA-00031141-005 The complainant made a complaint as to the operation of the disciplinary sanctions up to and including dismissal. The respondent noted that it gave careful consideration to the sanction of dismissal and noted that given the discussions and warnings in relation to her missing the targets, felt that there was no option but to dismiss the complainant. CA-00031141-006 The matter has been noted under complaint 002 above. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints/disputes in accordance with the relevant redress provisions under Schedule 6 of that Act.
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.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
CA-00030549-001 As I have found that that the dismissal did not amount to an Unfair Dismissal, my decision is that the complainant is not entitled to succeed in relation to this element of the complaint. CA-00031141-002 Having regard to my findings above regarding the non-provision of the statement of the terms and conditions, my decision is to award the complainant compensation equivalent to two weeks remuneration - €550, i.e. 22 hours x €12.50 (the contractual hourly rate) x 2 weeks for this breach of The Terms of Employment (Information) Act, 1994. CA-00031141-003 Having regard to my findings above regarding the lack of notification of any change to the complainant’s terms and conditions, my decision is to award the complainant compensation equivalent to two weeks remuneration - €550, i.e. 22 hours x €12.50 (the contractual hourly rate) x 2 weeks, for this breach of The Terms of Employment (Information) Act, 1994. CA-00031141-004 Having regard to my findings, my recommendation is that the respondent introduce into or amend the Bullying and Harassment procedures to provide a clearer system for taking a complaint, including the steps catering for oral and written complaints. CA-00031141-005 My recommendation in relation to this element is that the respondent should introduce a series of template letters to ensure that the appropriate letters are issued with the correct titles, i.e. First written warning, second written warning, final written warning, etc. I further recommend that such correspondence should include specific reference to the process for pursuing an appeal of the warning. CA-00031141-006 My decision is that this matter has been dealt with under CA-00031141-002 above. |
Dated: 13th May 2020
Workplace Relations Commission Adjudication Officer: Conor Stokes
Key Words:
Definition of unfair dismissal, precise pay rates, terms and conditions of employment, well founded Bullying and Harassment procedures. |
ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00023940
Parties:
| Complainant | Respondent |
Anonymised Parties | A complainant | A respondent |
Representatives |
| Dermot O'Loughlin |
Complaints:
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-00030549-001 | 29/08/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00031141-002 | 25/09/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00031141-003 | 25/09/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00031141-004 | 25/09/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00031141-005 | 25/09/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00031141-006 | 25/09/2019 |
Date of Adjudication Hearing: 04/02/2020
Workplace Relations Commission Adjudication Officer: Conor Stokes
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 8 of the Unfair Dismissals Acts, 1977 - 2015, and/or Section 13 of the Industrial Relations Acts 1969 following the referral of the complaints/disputes to me by the Director General, I inquired into the complaints/disputes and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints/disputes.
Background:
The complainant was employed as a Beauty Therapist by the respondent from 1 April 2017 until 10 August 2019. The respondent operates a hair and beauty outlet. The complainant was only given a contract to sign on 21 February 2019 outlining her terms and conditions. The employment relationship came to an end on 10 August 2019. |
Summary of Complainant’s Case:
The complainant submitted that there was a concerted effort to limit the assignment of clients to her, that there was a breach of her employment contract in that not achieving her targets is not a basis for dismissal. The complainant also submitted that she was unfairly dismissed and dismissed without notice. The complainant also submitted that her contract stated that her wage was €12.50 an hour but it transpired that she was only being paid €12 per hour. The complainant submitted that she was not provided with a statement of her core terms in writing between April 2017 and June 2019 (when she was received a copy of her signed contract). The complainant also submitted that she was not given notification of any changes in the terms of her employment. The complainant submitted that she was subjected to repeated harassment and inappropriate comments relating to her age and when she made a complaint it was not followed up. The complainant submitted that the disciplinary sanctions process and the grievance procedure were not followed. |
Summary of Respondent’s Case:
In relation to the Unfair Dismissal complaint the respondent submitted that it gave the complainant a fair and reasonable opportunity to make necessary improvements to meet her targets. The respondent submitted that it gave the complainant two written warnings and that she had the opportunity to appeal against the warning but decided not to do so. The respondent submitted that the complainant never formally challenged any aspect of the targets set until 8 August 2019. In relation to the Terms and Conditions of Employment complaints the respondent submitted that both parties signed a contract on 21 February 2019. The respondent submitted that the contract stated €12.50 per hour but should have read €12 per hour. The respondent submitted that this error in the contract was an administrative oversight. In relation to the Industrial relations disputes the respondent submitted that it never received a bullying and harassment complaint from the complainant and rejects any allegation of improper behaviour. In relation to the operation of the disciplinary sanctions, the respondent submitted that it undertook a series of discussions and written warnings and that these were not carried out improperly. |
Findings and Conclusions:
CA-00030549-001 The complainant contends that she was dismissed unfairly and was not afforded the due procedure in relation to her dismissal. In response the respondent outlined a series of one-to-one meetings that took place with the complainant regarding her non-achievement of her targets, the two written warnings that were issued to the complainant, the right to be accompanied to a meeting and that the complainant made no complaints regarding the setting of her targets. I note that the notice of a dismissal notice does not detail the complainants right to appeal, but as raised by the respondent this was outlined in the employee handbook. Section 6 (4) of the Unfair Dismissals Act, 1977 states that: (4) 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.
Having considered the arguments presented by both parties, I am satisfied that the complainant was given two written warnings, was given due notice of the possibility of her dismissal and had the opportunity to appeal the decision. Accordingly, I find that the dismissal did not amount to an Unfair Dismissal. CA-00031141-002 It was admitted by the respondent that no contract of employment was signed until 21 February 2019 and the respondent did not contradict the complainant’s assertion that she did not receive a statement of her terms and conditions until June 2019. Section 3 of The Terms of Employment (Information) Act, 1994, states that (1) 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 of the terms of the employee’s employment, that is to say— (a) [ … ] (b) [ … ] (c) the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places, (d) the title of the job or nature of the work for which the employee is employed, (e) the date of commencement of the employee’s contract of employment, (f) a reference to any registered employment agreement or employment regulation order which applies to the employee and confirmation of where the employee may obtain a copy of such agreement or order, ] (g) that the employee may, under section 23 of the National Minimum Wage Act, 2000, request from the employer a written statement of the employee ’ s average hourly rate of pay for any pay reference period as provided in that section, ] (h) the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval, (i) any terms or conditions relating to hours of work (including overtime), (j) any terms or conditions relating to paid leave (other than paid sick leave), (k) any terms or conditions relating to— (i) incapacity for work due to sickness or injury and paid sick leave, and (ii) pensions and pension schemes, (l) the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee’s contract of employment) to determine the employee’s contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice, (m) a reference to any collective agreements which directly affect the terms and conditions of the employee’s employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made. (1A) Without prejudice to subsection (1), an employer shall, not later than 5 days 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 of the terms of the employee ’ s employment, that is to say: (a) the full names of the employer and the employee; (b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act 2014 ); (c) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires; (d) the rate or method of calculation of the employee ’ s remuneration and the pay reference period for the purposes of the National Minimum Wage Act 2000 ; (e) the number of hours which the employer reasonably expects the employee to work — (i) per normal working day, and (ii) per normal working week. I am satisfied that this element of the complainant is well-founded. Accordingly, I find that the complainant is entitled to succeed in this aspect of the complaint. CA-00031141-003 During the hearing, the respondent confirmed that it did not issue a note of the amended terms and conditions to the respondent. Section 5 of The Terms of Employment (Information) Act, 1994, states that (1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than— (a) 1 month after the change takes effect, or (b) where the change is consequent on the employee being required to work outside the State for a period of more than 1 month, the time of the employee’s departure. I am satisfied that this element of the complainant is well-founded. Accordingly, I find that the complainant is entitled to succeed in this aspect of the complaint. CA-00031141-004 The complainant made a complaint regarding the operation of the Bullying and Harassment procedures operated by the respondent. The complainant submitted that the respondent did not pursue her complaint and follow due procedure as outlined in the handbook. The respondent in turn submitted that no complainant had been made under the Bullying and Harassment procedures. Having considered the evidence submitted by both parties it is clear that an element of a complaint was made to the respondent the day before her dismissal but following the arrangement of the final meeting. CA-00031141-005 The complainant made a complaint as to the operation of the disciplinary sanctions up to and including dismissal. The respondent noted that it gave careful consideration to the sanction of dismissal and noted that given the discussions and warnings in relation to her missing the targets, felt that there was no option but to dismiss the complainant. CA-00031141-006 The matter has been noted under complaint 002 above. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints/disputes in accordance with the relevant redress provisions under Schedule 6 of that Act.
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.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
CA-00030549-001 As I have found that that the dismissal did not amount to an Unfair Dismissal, my decision is that the complainant is not entitled to succeed in relation to this element of the complaint. CA-00031141-002 Having regard to my findings above regarding the non-provision of the statement of the terms and conditions, my decision is to award the complainant compensation equivalent to two weeks remuneration - €550, i.e. 22 hours x €12.50 (the contractual hourly rate) x 2 weeks. CA-00031141-003 Having regard to my findings above regarding the lack of notification of any change to the complainant’s terms and conditions, my decision is to award the complainant compensation equivalent to four weeks remuneration - €550, i.e. 22 hours x €12.50 (the contractual hourly rate) x 2 weeks. CA-00031141-004 Having regard to my findings, my recommendation is that the respondent introduce into or amend the Bullying and Harassment procedures to provide a clearer system for taking a complaint, including the steps catering for oral and written complaints. CA-00031141-005 My recommendation in relation to this element is that the respondent should introduce a series of template letters to ensure that the appropriate letters are issued with the correct titles, i.e. First written warning, second written warning, final written warning, etc. I further recommend that such correspondence should include specific reference to the process for pursuing an appeal of the warning. CA-00031141-006 My decision is that this matter has been dealt with under CA-00031141-002 above. |
Dated: 13th May 2020
Workplace Relations Commission Adjudication Officer: Conor Stokes
Key Words:
Definition of unfair dismissal, precise pay rates, terms and conditions of employment, well founded Bullying and Harassment procedures. |