Complainant

Respondent

Anonymised Parties

Beauty Therapist

Beauty Salon

Representatives

John Hennessy of Hennessy & Perrozzi Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00039935-001

19/09/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00039935-002

19/09/2020

At the start of the hearing I explained the implications of a recent Supreme Court judgement in Zalewski v Adjudication Officer and WRC. This meant hearings are now held in public and decisions will not be anonomised. I also clarified that evidence should be taken on oath where there is a conflict in that evidence. I told the parties I would be prepared to continue with the hearing without evidence being taken but I would consider what to do if a conflict arose. Both parties confirmed they understood what I had said and that they were happy to continue with the hearing.

The complainant worked for the respondent from 1 August 2018 until 1 July 2020 at a rate of €12 per hour. She says she left because of bullying and harassment and was not paid for outstanding annual leave when she left.

CAA-00039935001 - Organisation of Working Time Act: the complainant submits she was not paid for all outstanding leave when she left the respondent’s employment. She submitted a payslip for the end of 2019 which showed she showed ‘annual leave remaining’ of 25.8 hours and another for week 9, week ending 1 March 2020, that this had increased to 36.64. She says she was paid 7.80 hours when she left and is therefore owed 28.84 hours, amounting to €346.08.

CAA-00039935002 - Industrial Relations Act: the worker submits there was an incident with the owner of the salon on 27 February 2020. The owner had booked in a client at the same time and for the same treatment, which needed the same equipment, as the worker had already booked for her client. The worker started first and this led to the owner disturbing her many times and speaking to her very badly. Later in the day there was a dispute with the owner about the booking for a client and the owner got very annoyed with the worker. She was very stressed by everything that happened that day. The owner sent a text later on and asked if the worker had any problems and she replied she was not ok with the way the owner treated her.

The next day she went to her doctor who advised to stay at home until the situation changed, she emailed the cert to the employer and she replied saying the worker did not work there anymore. The worker says this treatment amounts to bullying and harassment.

CAA-00039935001: Organisation of Working Time Act: the respondent submits the complainant has been paid for all outstanding leave and submitted a letter from the company carrying out their payroll administration showing what she was owed.

CAA-00039935002 - Industrial Relations Act: the employer acknowledges there was a disagreement between the worker and the owner. The worker was very annoyed and left her employment. There were a series of texts between the two which ended with the worker resigning.

The company says the one off interaction does not fall within the definition of bullying and referred to the Supreme Court case, Ruffley v Board of Management Ruffley v The Board of Management of Saint Anne's School [2017] [IESC 33], which considered the definition of bullying used in the section 5 of the Industrial Relations Act 1990 (Code of Practice Detailing Procedures for Addressing Bullying in the Workplace) (Declaration) Order 2002 (SI No 17 of 2002). This defines workplace bullying as “repeated inappropriate behaviour”, which may be “direct or indirect, whether verbal, physical or otherwise” engaged in by an individual or a group against the plaintiff at their workplace and which “could reasonably be regarded as undermining the individual's right to dignity at work.”.

CAA-00039935001: Organisation of Working Time Act: the complainant’s payslips show she was paid for 39.93 hours of leave after she left. This was 21.29 hours accrued when she was on sick and 18.64 hours accrued before that, up to the beginning of March 2020. The complainant’s payslip for week 9, 1 March 2020, shows ‘annual leave remaining’ of 36.64 hours. Despite any retrospective re-calculation I take that to be the annual leave accumulated by the complainant at that point in time. In these circumstances I find the complainant is owed 36.64 hours less 18.64 hours; which is 18 hours at €12 per hour, a total of €216.

CAA-00039935002 – Industrial Relations Act: the code of Practice has been updated and is now Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work) Order 2020. The definition of bullying is essentially the same and is: “Workplace bullying is repeated inappropriate behaviour, direct or indirect, whether verbal, physical or otherwise, conducted by one or more persons against another or others, at the place of work and/or in the course of employment, which could be reasonably regarded as undermining the individual’s right to dignity at work. An isolated incident of the behaviour described in this definition may be an affront to dignity at work, but, as a once off incident, is not considered to be bullying”.

I am aware that what happened on 27 February 2020 between the worker and the owner led to the worker leaving her employment and taking time off because of the stress. However, the incident, as a one-off incident, does not fall within the definition of bullying in the Code of Practice.

As the worker has left the employer’s employment there is nothing I can recommend which could improve the situation between them.

CAA-00039935001: Organisation of Working Time Act: for the reasons given above I find the complaint is well founded and I award the complainant €216.

CAA-00039935002 - Industrial Relations Act: for the reasons given I can make no recommendation.

Outstanding annual leave