Complainant

Respondent

Anonymised Parties

A Spa Therapist

A Spa

Representatives

Ciaran F. MacLochlainn C. S. Kelly & Co.

Emma Lyons

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00030585-001

31/08/2019

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

CA-00030585-002

31/08/2019

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

CA-00030585-003

31/08/2019

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00030585-004

31/08/2019

The complainant was dismissed by the respondent for using her phone at work and for placing ads for her own business during work time. The complainant alleges that the disciplinary process was flawed.

The complainant commenced work in the respondent Spa on 13th November 2015. She worked Fridays and Saturdays and one Sunday per month averaging about 19 hours per week in line with the conditions of the Workplace Family Payment scheme. The respondent (Ms A) was the manager of the Spa at that time which was then owned by the hotel in which it was located. The respondent took over the Spa in September 2017.

In July 2018 the complainant, having completed a course in reflexology, began to explore offering holistic services on a self-employed basis and believes the respondent was aware of this. By November the complainant’s business had been established and she ensured that this did not interfere with her work in the Spa.

On 17th June The complainant was dealing with a client having a facial. When the mask was on she left the client for 5 – 10 minutes to get a cup of tea. While there she used her phone to post on her Facebook page in respect of a special offer in her own business.

On Saturday 22nd June 2019 the complainant was given a letter by Ms A which stated that ‘An allegation of gross misconduct has been made against you in relation to incidents that occurred during Many and June 2019’. The letter did not specify wat the alleged misconduct was or who had made the allegation but said that the complainant was being suspended pending investigation.

On 24th June the complainant received a letter stating that the investigations were complete and the complainant was being invited to a disciplinary hearing on 27th June. The complainant was not provided with any documentation regarding the outcome of the investigation nor was she interviewed as part of the investigation.   The letter stated that ‘we enclose her social media material that we intend to rely on during the disciplinary meeting and refer you to terms 27 and 28 in your contract of employment. It is alleged that you are in clear breach f the terms of your contract.’

The letter did not say who was making the allegations and was not provided with a copy of the complaint made against the complainant. Neither was she advised of her right to be accompanied at the meeting.

The disciplinary meeting took place on 2nd July 2019. The note of the meeting is clear that the respondent focus was on whether or not the Facebook post was scheduled or not. The respondent then proceeded to introduce other issues not mentioned in the letter of 24th June including the complainant’s interaction with social welfare, days that the complainant had asked off from work and whether the complainant had attended a particular dinner dance.

The complainant received a letter on 4th July confirming her dismissal for ‘clear breach of your contract of employment’.

The complainant appealed this decision and the appeal hearing conducted by Ms B took place on 2nd August. The complainant was advised that she could bring a work colleague or a trade union representative with her. She arrived with a friend who was not allowed attend because she was neither a work colleague or union representative. The respondent was not in attendance and no evidence was presented on her behalf at the hearing and the complainant did not have any opportunity to question any such evidence as may have been submitted outside of the hearing. The complainant did raise concerns as to the independence of the person conducting the appeal.

The outcome of the appeal was communicated to the complainant on 28th August and upheld the decision to dismiss. The words ‘Gross misconduct’ were not used at any stage until the submission for this hearing.

The respondent’s disciplinary procedures, in relation to an investigation, provide that ‘The person undertaking the investigation will not then hear the disciplinary case, should it progress to that level’. The procedure also provides that an employee will be informed by a manager of their right to be accompanied to the hearing.

The disciplinary process used by the respondent was not fair and impartial. The respondent, Ms A, was the person who made the complaint against the complainant, the person who oversaw the investigative stage, the person who oversaw the disciplinary stage and person to whom the appeals were made. This contravenes the legal maxim of nemo iudex in causa sua.

The complainant was never provided with the outcome of the investigation nor questioned as part of it.   The complainant was not afforded the right of representation.

The test to be applied in respect of dismissals for misconduct decided on by the EAT in Hennessy v Read & Write Shop (UD 184/1990) stated;

In deciding whether or not the dismissal was unfair we apply a test of reasonableness to

1         the nature and extent of the enquiry carried out by the respondent prior to the decision to dismiss the claimant and,

2         the conclusion arrived at the respondent that, on the basis of the information resulting from such enquiry that the claimant should be dismissed.

The respondent failed to carry out a fair and impartial investigation and the decision to dismiss was not reasonable on the basis of information resulting from the enquiries carried out.

When the respondent (Ms B) signed the lease with the hotel taking over the running of the spa she was fully aware of the TUPE regulations. The hotel advised all of the employees by letter dated 7th August 2017 of the transfer. The respondent held a meeting with all staff on 5th August informing staff of the transfer and that their contracts would remain unaltered. She invited any employee with concerns to talk to her but none did.

The complainant had started in the Spa on 13th November 2015 on a variable hours contract signed by the complainant.

Following a disciplinary procedure the complainant was dismissed due to the use of her mobile phone during working hours and promoting her business during working hours while treating clients. A subsequent appeal upheld the decision.

The complainant’s contract states;

‘It is a condition of your employment that apart from your work within the company, you do not engage in any other employment or self-employment, or engage in any profession, trade or business, directly or indirectly, without the company’s prior consent’

At no point did the hotel advise that they had provided consent in respect of the complainant’s self-employment. Regarding the complainant’s statement that the respondent was aware of her self-employment she relies on text messages in January and May 2019. These refer to her availability to have bookings at home.   The respondent was aware that she was carrying out holistic treatments at home for close family and friends with no remuneration. The respondent was not aware that the complainant had been running a profitable business until 17th June 2019.

Around 12.15 Pm on 17th June Ms B logged into Facebook. The complainant was on duty in the Spa. Ms B came across a Facebook post which the complainant had placed on her personal Facebook pate at 12.21 which was advertising treatments from her home for 35 euros. On further investigation it became apparent to Ms B that the complainant was operating a profitable business which was contrary to her conditions of employment. Furthermore, these posts were placed during working hours and while treating a client. Another employee of the respondent confirmed that the complainant had been observed using her mobile phone promoting her business. Mobile phones are strictly prohibited within the Spa and contrary to the Employee Handbook. The complainant’s business was directly competing with the services offered by the Spa.

During both the disciplinary hearing and the appeal the complainant admitted to placing the posts using her mobile phone but did not accept that there had been any wrongdoing which was of concern to the respondent.

The complainant was also in breach of the Working Family Payments scheme and she at no stage informed the respondent that she had notified Social Welfare or Revenue about her business. During her employment Ms B became increasingly concerned regarding the information that the complainant was relaying to her in respect of her welfare entitlements. In May 2019 the complainant had informed the Social Welfare that the respondent had reduced her hours to one day per week, when in fact it was the complainant who had said that she was only available to work one day per week.

Following the discovery of the social media posts Ms B carried out an investigation into the complainant’s business. From other posts it became apparent that the complainant was operating a business from 2014, which was contrary to what she said during the disciplinary hearing.

During the disciplinary hearing Ms B raised her concerns about the complainant’s availability to only work on Saturdays when her social media account stated that she would be available for appointments every Friday. There were also postings showing the complainant’s availability throughout the week for her business.

During the disciplinary meeting the complainant would not accept that she was at fault. She refused to apologise or provide assurances that the behaviour would not be repeated. Without such assurances the respondent felt that she could not longer manage her within the Spa.

The complainant stated that she did not receive her terms and conditions of employment. She signed a contract containing these on 8th April 2016. She was also provided with a copy of the Staff Handbook.

Regarding the question of minimum notice as the complainant had committed gross misconduct the respondent was entitled to terminate her contract with immediate effect.

CA-00030585-001 – Terms of Employment

The complainant withdrew this complaint at the hearing and therefore the complaint is not well founded.

CA-00030585-004 - TUPE

The complainant withdrew this complaint at the hearing and therefore the complaint is not well founded.

CA-00030585-002 - Unfair Dismissal

Section 1 of the Unfair Dismissals Act 1977 defines a dismissal as follows;

“dismissal”, in relation to an employee, means—

(a) the termination by his employer of the employee's contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

Section 6 (6) of the Act states;

(6) 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 burden is therefore on the employer to demonstrate that the dismissal is fair.

The Code of Practice on Disciplinary Procedures (Declaration) Order 1996 (S.I. No 117 of 1996) includes the following advice on the principles of natural justice to be applied in any disciplinary case;

• That details of any allegations or complaints are put to the employee concerned
• That the employee concerned is given the opportunity to respond fully to any such allegations or complaints
• That the employee concerned is given the opportunity to avail of the right to be represented during the procedure
• That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors, circumstances.

The letter of 24th June 2019 requesting the complainant to attend for a disciplinary hearing referred only to Terms 27 and 28 of her contract of employment.   These state as follows;

27 Other employment

It is a condition of your employment that apart from your work within the company , you do not engage in any other employment or self-employment, or engage in any profession, trade or business, directly or indirectly, without the company’s prior written consent.

28 Devote Full Time to the Company

You must devote the whole of your time, attention and abilities during the hours of work for the Company to your duties for the Company and may not in any circumstances, whether directly or indirectly, undertake any other duties of whatever kind during your hours of work for the Company.

It is the respondent’s position that all of the matters raised at the hearing, including issues related to the complainant’s hours of work and her engagement with Social Welfare and use of a mobile phone, fell under these two clauses. This is a contention I cannot accept. One of the principles of Natural Justice in an employment situation is ‘That details of any allegations or complaints are put to the employee concerned ‘. The complainant is entitled to know the detail of what is being alleged in order that he or she may adequately respond. This did not happen in this case and therefore did not have the opportunity to respond fully to any such allegations or complaints.

Secondly, it is a requirement of natural justice that that the employee concerned is given the opportunity to avail of the right to be represented during the procedure. The letter of 24th June 2019 made no mention of this entitlement.   While the Handbook contains a reference to this, it was four years since the complainant had been given this document and it is unreasonable that she would be expected to be aware of her rights based on this alone.

It is the respondent’s evidence that she undertook an investigation before deciding to call the complainant to a disciplinary hearing. This investigation is flawed insofar as the respondent did not meet with the complainant to establish her side of the story. Furthermore, evidence from another employee, upon which the respondent relied, was not put to the complainant and an opportunity to test this evidence was not provided.

It is clear that the respondent failed to afford the complainant proper procedures in dismissing her and therefore I conclude that he complainant was unfairly dismissed.    

The complainant has stated that her business did not conflict with that of the respondent - her employer – and that she did nothing wrong in the incidents on 17th June regarding phone usage and carrying out her own business during work time. However, it is clear from the evidence given that the respondent believed that there was a conflict of interest, and that the complainant should not carry out her own work in the respondent’s time. The respondent sought an assurance that this would cease but the complainant was not prepared to give any such commitment and it is the respondent’s position that the failure to give this commitment was a fundamental reason for the decision to dismiss. Having heard the evidence I believe that there was a potential conflict of interest in the complainant’s private business and the respondent’s business. What there can be no doubt about is that the complainant was not entitled to carry out tasks related to her own business during time paid for by the respondent. I therefore conclude that the complainant’s behaviour contributed significantly to her dismissal and have considered this in deciding on the appropriate compensation.

The complainant has argued that her loss of Working Family Payment was directly attributable to her dismissal. There is nothing to prevent her accessing this support in the future. The complainant, in evidence, has stated that she is interested in 3 days per week work going forward due to her particular circumstances and I have considered this in deciding on the appropriate compensation.

CA-00030585-003 - Minimum Notice

Section 4 of the Minimum Notice and Terms of Employment Act 1973 states;

”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—

(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,

The complainant was unfairly dismissed without notice and did not receive the statutory payment in lieu of minimum notice and therefore the Act was contravened.

CA-00030585-001: The complainant withdrew the complaint under section 7 of the Terms of Employment (Information) Act, 1994 and therefore the complaint is not well founded.

CA-00030585-004: The complainant withdrew the complaint under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003) and therefore the complaint is not well founded.

CA-00030585-003: I find that the respondent has contravened the Minimum Notice & Terms of Employment Act, 1973, and I order the respondent to pay the complainant €437 in compensation.

CA-00030585-002: Unfair Dismissals Act, 1977. I find the complainant has been unfairly dismissed and I order the respondent to pay the complainant €5000 in compensation

Unfair procedures.   Minimum Notice.