Complainant

Respondent

Anonymised Parties

A Hairdresser

A Hair Salon

Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00030167-001

12/08/2019

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

CA-00030167-002

12/08/2019

The Complainant was employed as a Hairdresser with the Respondent from 1st July 2008 up until she resigned from her position on 6th March 2019.  She submitted that she had no option but to resign as she was delayed in returning to work from maternity/sick leave, was treated unfairly and with hostility upon her return.  She submitted her case in this regard under the Industrial Relations Act.  She also submitted a complaint under the Terms of Employment (Information) Act claiming that she was not notified of changes to her terms and condition which had occurred during her absence and due to the company being bought by a new owner during that time.

The Respondent is a Hair Salon, having bought the business in 2017 while the Complainant was on maternity related sick leave.  The Respondent denied the allegations.

CA-00030167-001

The Complainant submitted that she had been employed by the company since 1st July 2008 and that she had enjoyed a harmonious relationship with her employer up to the time she went on maternity leave. She submitted that following her maternity leave she had a period of pregnancy related sick leave and that during that time the branch she worked at was sold to the Respondent.  She advised that when she sought to return to work in October 2018 it took several attempts to arrange a meeting with the Respondent to discuss her return and that ultimately the meeting arranged was cancelled at an hours’ notice and rescheduled for the next day.

She submitted that when the meeting occurred she was advised of changes to her working pattern.  Prior to maternity leave she had worked Mondays, Tuesdays, and a half day Saturday but the Respondent advised that the salon no longer opened on Mondays and that as Tuesday was a slow day the Complainant would not be required on those days.  The Complainant submitted that she agreed to work on Thursdays from 9 am to 8 pm and to continue to work a half day on Saturday, however, she agreed to work full days on Saturday in the period coming up to Christmas, as she had done so in the past. She submitted that the Owner and the Salon Manager were present at the meeting and that it was agreed that the Salon Manager would contact her by phone to confirm a return to work date.

She submitted that although the meeting took place in early October it took several phone calls and emails from her requesting a start date before the Respondent made contact to confirm that she would be paid for one day per week and would not be needed until the new year.  The Complainant submitted that she responded by email to advise that she was unhappy with this proposal, that she would not agree the arrangement and that she felt unwelcome by the new owner. The Complainant submitted that when she finally returned to work she noted that only one of the employees of the former owner remained in employment. 

The Complainant further submitted that there were persistent and on-going issues in relation to her pay.  She submitted that she had accumulated annual leave while on maternity and sick leave and that it had been agreed with the Respondent that the leave would be paid for through her wages.  She submitted, however, that she had to consistently contact management and payroll staff about her payments and that it took a total of 14 weeks to receive all payments due. She further submitted that due to her concerns she contacted Revenue who advised that she had, at one stage, been removed from the employer’s account “in error”.  She submitted that she found all of this to be extremely embarrassing, stressful and humiliating.  Despite this, she submitted that she tried to contact the owner on several occasions to address the issues but that she received a response from the Salon Manager advising her not to address the owner directly with her grievances.

The Complainant submitted that, on a weekly basis, conversations took place regarding her working hours, her accrued leave and her annual leave entitlements.  She submitted that the half day Saturday became a “huge bone of contention” and that management applied “on-going bullish tactics” to pressure her to change this.  She submitted that she was always very conscientious about her appearance, that she was often complimented on this by customers but that this was referred to negatively by management during the various conversations.

The Complainant submitted that in February 2019 she was issued a disciplinary sanction- a written warning by the Salon Manager, referring to the issue as “fraud/theft”.  She submitted that although she reluctantly signed the letter she later appealed this in writing by email of 14th February and again on 27th February.  She submitted that the sanction was applied as she had given a discount to a customer without the authorisation of a manager.  She submitted that there was no manager present on the day and that this had been common practice prior to her maternity leave.  She also submitted that another staff member had provided a similar discount without manager authorisation on the same day and that no sanction had been applied.  She had noted that the owner had phoned the salon querying both discounts. She outlined that there was a lack of transparency around the procedures and that she felt there was one rule for her and another for other staff.  She submitted that she felt completely victimised and demoralised and that the combined effect of issues which had arisen since her return to work left her feeling extremely upset, distressed and humiliated by the Respondent.  She submitted that she communicated all her concerns to the Respondent during that time but that she received nothing more than “underhanded hostile actions and comments in return.” She submitted that at one point the Respondent blocked her email and that she had to communicate through a different email. 

The Complainant further submitted that the situation was having a detrimental impact on her and on her mental health and that she was left with no alternative but to resign her position with the Respondent.

CA-00030167-002

The Complainant submitted that when she returned to work following a period of absence due to maternity and sick leave the company had been bought over by the Respondent.  The Complainant submitted that she did not receive a new contract or any documentation outlining changes to her terms and conditions of employment, nor did she receive any documentation outlining changes in practices. 

CA-00030167-001

The Respondent had not provided a written submission and at the hearing on 23rd October 2019 advised that the notification of the hearing had not been sent to the usual business address.  In that context, the Respondent explained, they had not been in a position to formulate a written response.  As set out under Procedure above the parties agreed to proceed with the hearing and either make further written submission or adjourn to a later date as appropriate.

In that context the Respondent outlined the following:

That the Respondent bought over the business while the Complainant was on maternity/sick leave in 2018

That, at that time the Respondent met with all staff and advised them of their continuing employment, their terms and conditions and of all policies and procedures relevant to the new employment

That when the Complainant made contact to agree arrangements regarding her return to work there was concern about the amount of annual leave that was still outstanding and that it was the Respondent’s preferred position that the annual leave would be taken prior to returning to work.

That during the Complainant’s absence the working arrangements in the business had changed.  The Respondent stated that the business was not viable for opening on Mondays and so it had been decided to open the business Tuesday through to Saturday.  The Respondent pointed out that the busiest days were those over the weekend.  The Respondent advised that the Complainant had a contractual entitlement to 20 hours per week and that their aim, in returning her to work was to fulfil those contractual arrangements.  The Respondent confirmed that the Complainant agreed to work from 9 am to 9 pm on Thursday and a full day on Saturday, thus fulfilling the 20 hours contractual entitlement.  The Complainant was on a fixed salary of €150 p.w. + 12.5% of all their takings.

The Respondent confirmed that there was a clear policy in place in relation to application of discounts, namely, that any discount had to be approved by a manager.  In the instance referred to the Complainant had applied a 47% discount, and it was the Respondent’s view that this level of discount was simply uneconomical.  The Respondent further confirmed that the sanction applied was issued prior to Christmas 2019 and the appeal was not lodged until February 2020.

The Respondent stated that, although the Complainant outlined that the Respondent was trying to push them to resign, in fact when the Complainant submitted her resignation she was asked to withdraw it to allow a “cooling off” period to seek to resolve matters.  However, the Complainant did not withdraw the resignation and submitted her complaint for adjudication to the WRC.

CA-00030167-002

The Respondent denied that the Complainant had not received notice of her terms and conditions as per the Terms of Employment (Information) Act.  The Respondent stated that the Complainant’s contract was not materially altered, her working hours, annual leave and rates of pay remained the same as prior to her maternity leave as these entitlements were protected under the transfer.

The Respondent stated that the only substantial change was to her roster, and that while there was some discussion on this prior to her return to work, ultimately it was agreed between the parties to an arrangement of 9 am to 9 pm on Thursdays and a full day on Saturdays.  This was confirmed in writing by the Respondent to the Complainant.

In relation to the policies and procedures the Respondent stated that these were covered with the Complainant at Induction and that a copy of the policies and procedures was available at all times at reception.

CA-00030167-001

It was clear, at the hearing that a number of issues were not disputed between the parties as follows:

·       The employment status and duration of the Complainant

·       The fact of the transfer of the business and the employees

·       The facts surrounding the maternity and sick leave

·       The leave entitlement outstanding at the time of the return to work

·       The resignation of the Complainant.

The matters in dispute relate to the treatment of the Complainant surrounding and following her return to work based on the following specific examples:

·       Delay in returning the Complainant to work following maternity/sick leave

·       Challenges about working arrangements

·       On-going incorrect salary payments and failure to pay for leave outstanding within the agreed timeframe

·       Failure to notify policy and procedure changes to the Complainant before or upon her return to work

·       Unfairness of the disciplinary procedure and sanction applied to the Complainant

In considering these matters I took into account the written submission provided by the Complainant, copies of emails provided by her and her evidence at hearing.  I also took account of the evidence, given at hearing, by the Respondent.  Based on the foregoing I note as follows:

Delay in returning the Complainant to work following maternity/sick leave

I note  that the Complainant made contact with the Respondent in October 2018 to signal her return to work and while the Complainant was not specific in her submission about the first date she made contact in that regard, nor of her actual agreed return date, she did provide a copy of an email from her to the Respondent on 18th October outlining her annual leave and public holiday entitlement for 2017 and 2018.  In that email she stated that she was “looking forward to starting next week.” Based on this email I believe it’s safe to assume that the Complainant initially had an expectation of returning to work between 22nd and 26th October 2019.  I note also a number of emails exchanged between the parties on 24th October and that none of the emails from the Respondent seek to alter that expectation.

However, I note that on 2nd November 2019 the Complainant again emailed the Respondent and referred to a phone conversation of the previous day where she was told that she was “not needed.”  I note that this information is consistent with the Complainant’s submission and with her evidence at hearing.  The Respondent replied by email of 6th November and stated that the Complainant could not be reached by phone the previous day. From reviewing the exchange of emails between 6th November and 10th November it appears that phone conversations took place and that by that date there was still a level of ambiguity about what days the Complainant would work upon her return.  However, it is clear that the Complainant was specific about her availability.  At the hearing the Respondent confirmed that the Complainant returned to work on 15th November and this was not disputed by the Complainant.

I note also the position outlined by the Respondent at hearing, that there was concern about the amount of leave outstanding at the time of the proposed return and that it was the Respondent’s preference that this would be used prior to the return to work.  I consider that, to some extent, this accounts for the delay in finalising the return.  However, in reviewing the exchange of emails it is clear to me that the efforts around the return to work were very much one sided, with the Complainant submitting emails clarifying leave outstanding, salary and taxation details, and confirming flexibility regarding changing her roster. On the Respondent side no evidence was provided at hearing to satisfactorily explain the delay nor was any additional documentation submitted, although this was promised at the hearing.

In this context I find that the Complainant was unduly delayed in being returned to her position with the Respondent following her maternity and maternity related sickness.

Challenges about working arrangements

I note that both parties accepted that the Complainant worked Monday, Tuesday and a half day Saturday prior to her maternity leave.  I note that the Respondent advised at hearing that the hours of business had changed while the Complainant was on maternity/sick leave and that the business no longer opened on Mondays.

In her submission the Complainant submitted that she confirmed her availability was from 9 am to 8 pm on Thursdays, but that she was not available for Saturdays due to family reasons. At hearing the Respondent advised that the agreed working arrangement was 9 am to 9 pm on Thursday, with a full day being worked on Saturdays.

I note from the evidence given at hearing that as a result of the issues regarding the change of business hours and the Complainant’s availability, the parties met to discuss working arrangements prior to the Complainant’s return to work.  I note that following that meeting, phone conversations and an exchange of emails (copies provided by the Complainant) the Complainant asked about the possibility of working a full day on Saturdays by email of 10th November 2018 and I note that this arrangement was confirmed to the Complainant by email from the Respondent on 13th November 2018. 

Based on the above evidence and supporting documentation I find that there was clear agreement in place, at the time of the Complainant’s return to work as to what her weekly roster would be for the future.  I also find that it was a reasonable thing for the Respondent to seek the change to the Complainant’s previous roster in light of the business changes that had occurred during the Complainant’s maternity/sick leave.

On-going incorrect salary payments and failure to pay for leave outstanding within the agreed timeframe

I note that, in her submission, the Complainant indicated that she had on-going issues with her wages, that her wages “didn’t go through correctly and that on one occasion she had to be paid from the till.  She also advised that prior to her return to work agreement had been reached that her accumulated leave would be paid through her wages and that there were constant issues in relation to these payments.

At the hearing the Respondent clarified that there was a problem with the Bank on one occasion and that the Complainant was paid from the till.  The Respondent pointed out that this was an appropriate alternative arrangement in the circumstances.  The Respondent also confirmed that while agreement had initially been reached to pay for the annual and public holiday leave accumulated that the business was new and so it had proved challenging to make the payments.  In these circumstances the payments were staged over a period of time, but that the Complainant had received all payments due to her.

In reviewing copies of emails provided by the Complainant I noted the following emails:

·       Email of 18th October from the Complainant to the Respondent where she provided details of annual leave and public holidays outstanding and providing pps number.

·       Email of 2nd November from the Complainant to the Respondent where she noted a phone conversation of the previous day regarding confirmation that the Complainant would be paid for leave outstanding.  The email also referred to the fact that the Complainant was not paid for the previous week and was advised that this was because she was required to work a “back week”.  In the email the Complainant expressed her concern and frustration at the issues regarding her pay.

·       Email of 11th January 2019 from the Complainant to the Respondent where she expressed grave concern about her wages and where she set out a detailed account of salary issues of concern as follows:

§  15/11/2018 No wages due to back week. No public holiday payment

§  21/11/2018 No wages – Paid by cash on Saturday. No public holiday payment

§  1/12/2018 No public holiday payment

§  8/12/2018 4.5 hours public holiday pay – The Complainant advised she did not understand this payment

§  15/12/2018 5 hours holiday pay – The Complainant again stated she din’t understand this payment and hadn’t been advised that her holidays would be paid in this way

§  22/12/2018 No public holiday pay

§  31/12/2018 No public holiday pay

§  5/1/2019 No public holiday pay

§  12/1/2019 Public holiday pay for January 2019 only at the rate of €30 per day.  Again, the Complainant advised that she did not understand this payment.

In her email the Complainant advised the Respondent that she had experienced difficulties with standing orders from her bank and had incurred charges as a result.  I note that on 11th January the Respondent emailed the Complainant advising her of an “omission” from her wages in respect of Saturday 5th January 2019.  That email also advised her that there was nothing malicious in the payment errors to date and that they had come about due to human error. It is clear from the remaining emails provided that the parties had some direct discussion which culminated in an email of 18th January from the Respondent to the Complainant confirming that the outstanding leave would be paid over a two-week period.  This email also provided some clarity on calculations relating to issues raised by the Complainant in her earlier emails.

In considering this matter I am conscious of the challenges faced by an inexperienced employer in a start-up business, both in terms of knowledge and in terms of cash flow challenges.  I am also conscious of the needs of an individual employee returning from maternity leave with the additional financial commitments of twins and the normal Christmas financial pressures.  It is clear to me that agreement was reached to pay for the outstanding leave.  This was something the Respondent was not obliged to do unless there was a demonstrable agreement with the previous employer in this regard.  However, having agreed to this arrangement it is clear that the Respondent was not in a financial position to uphold that agreement and rather than meet with the Complainant and seek to agree a new arrangement the Respondent began “drip-feeding” payment through the weekly salary, leaving the Complainant short of her expected income and embarrassed by non-payments of financial commitments, as a consequence.  I also note the explanation of the respondent in relation to the cash payment made on one occasion and I concur with their view that it is appropriate and in line with the terms of the payment of Wages Act to pay by cash where normal payment methods fail.

In essence it took from the Complainant’s return to work on 13th November up until the end of January 2019 before all monies outstanding were paid to the Complainant.  This issue, together with payroll errors had a significant impact on the take home pay of the Complainant each week.  In these circumstances I find that the Respondent did not act reasonably in addressing the issues relating to wages during the course of the period in question.

Failure to notify policy and procedure changes to the Complainant before or upon her return to work

At the hearing the Complainant advised that she had sought a copy of the policies and procedures prior to returning to work so that she might familiarise herself with any changes that had occurred during her absence.  She advised that she had never received a copy.  The Respondent outlined, at the hearing, that the Complainant had been advised of the content of the policies and procedures at induction and that a copy of those policies was available at all times at reception.  The Respondent advised that the policies and procedures constituted a sizeable document and that a copy of the document would be dropped in to the WRC the following week for the attention of this adjudicator.

I note four emails exchanged between the Complainant and the Respondent of 24th October 2018.  I note that in those emails the Complainant queried certain facilities available to staff under the previous employer and sought to understand if those were still available.  The Respondent advised that there was a handbook available that covered the policies and procedures required and the Complainant asked that a copy be sent to her.  The Respondent never provided a copy of the staff handbook/policies and procedures to the WRC.

It is clear from their own evidence that the Respondent had a set of policies and procedures in place and that they outlined those to the Complainant at induction.  This is not disputed by the Complainant.  It is also clear from the evidence of the Complainant and from copies of emails submitted that the Complainant requested a copy of these document(s) but never received them and this is not disputed by the Respondent.  In fact, the Respondent made it clear that the content of the document(s) was covered at induction and that the document(s) is/are available at reception. 

It must be understood that it is insufficient to have policies in place without having a robust practice in place to ensure that staff know and understand the content of those policies.  In this context any brief overview that might be given at induction is insufficient to meet that standard and where there is a “sizeable” document in place it is grossly insufficient to say that this was available at reception.  The Complainant, in trying to ensure that she was up to date before returning to work, quite reasonably asked for a copy of these policies and procedures and up to the time she resigned her employment she never received the documents sought.  In these circumstances I find that the Respondent’s actions fell short of the standards that would be expected of a reasonable employer in this regard.

Unfairness of the disciplinary procedure and sanction applied to the Complainant

I note that in her submission the Complainant outlined her concerns about the disciplinary process that was applied to her while in employment with the Respondent.  She submitted that she had been issued with a written warning in February 2019 for “fraud/theft”. She clarified that this related to an instance where she had given a discount to a customer.  She clarified that this had been normal practice with the previous employer.  She pointed out that the Respondent treated her differently to another colleague who had also provided a discount to a customer on the same day, without management authorisation yet in this instance no disciplinary sanction was applied. The Complainant submitted that although she had signed the sanction on the day it was issued she had later sought to appeal the matter.  After having difficulty submitting her appeal due to her email being “blacklisted” the Complainant ultimately resigned her position.

I note the Respondent’s position that the Complainant had given a 47% discount to the customer in question and their view that this level of discount was uneconomical.  The Respondent advised that it was reasonable to sanction the Complainant for this, in view of the fact that this was against company policy.  I note that the Respondent advised that the Complainant had been asked to withdraw her resignation to allow the matter to be addressed but that she had declined to do so.

At the hearing, and in response to queries from the Adjudicator, the Respondent confirmed that the other staff member who applied a customer discount on the same day had been bringing in new business and had pre-agreement to provide discount to regular clients as a result.  The Respondent re-iterated the high level of the discount applied by the Complainant (47%) and clarified that even under the previous employer the discount that was applied was up to the 12.5% in line with the  provision in the employee contract.  On hearing this explanation, the Complainant advised the hearing that she had simply told the person on the desk to apply a discount, she had not advised what level of discount was to be applied.

In response to questions from the Adjudicator the Complainant confirmed that she was called from the floor into a meeting with the Respondent, she was not advised that the meeting was a disciplinary meeting, she had no prior notice of the meeting and was not advised that she could bring representation to the meeting.  Later the Respondent issued her with a written warning.  The Respondent clarified that the written warning was issued because the Complainant would not accept that she had done anything wrong.

The Complainant advised that her attempts at lodging an appeal proved difficult as her email address was “blacklisted” and it took a number of attempts before she could submit the letter.  The Respondent advised that she didn’t know how to black list anyone.

Having considered this matter I find that I concur with the Respondent in concluding that the application of a 47% discount was well beyond the bounds of what would be considered economical.  However, I note the Complainant’s position that she did not prescribe the level of discount to be applied and was unaware of that level until it was raised at the disciplinary meeting by the Respondent.  As the Respondent made no attempt whatsoever to investigate the matter it isn’t possible to determine if this is the case.  However, without investigation the Respondent concluded that it was the Complainant who was responsible.  Despite the fact that the Complainant had not received a copy of the policies and procedures as requested, she was issued with a disciplinary sanction for breaching those policies and procedures. 

As the Respondent never provided a copy of the policies and procedures to the WRC it is not possible to determine whether or not the company followed its’ own procedure.  However, what is abundantly clear is that the Respondent did not follow anything that could be described as a fair procedure nor did the company comply with the principles of natural justice. 

The Complainant was called in to a meeting with the Respondent, without prior notice of the meeting or the issues to be discussed.  She was not advised in advance that the meeting was disciplinary in nature nor was she advised of the right to be represented.  She attempted to provide her side of “the story” but this resulted in the Respondent concluding that she had not accepted that she had done anything wrong and so she was issued with a written warning as a result.

The disciplinary letter (a copy of which was provided by the Complainant) clearly described the Complainant’s actions in this regard as “theft/fraud” and it is understandable that after working with the company for 10 years she was outraged and affronted at this charge being levelled against her.  Whether or not the Respondent intentionally “blacklisted the Complainant”, it is clear from the emails provided by the Complainant that she was frustrated in her attempts to lodge her appeal and that the message she received was that she was “blacklisted”.  Her first attempt to lodge an appeal was dated 14th February 2019 and she ultimately succeeded in submitting an appeal using a new email address on 27th February 2019.

I note from emails submitted by the Complainant that the Complainant was offered a date to have her appeal heard, with two separate representatives of the company on 6th March 2019 but that she declined the meeting by email of the same date submitting her resignation instead because of what she described as the extremely negative impact on her and particularly on her health.

In all of the above circumstances I find that the Respondent completely overstated the description of the alleged wrong doing, failed to have a proper investigation of the issue and failed to follow any semblance of a fair procedure in addressing issues within the disciplinary procedure.

CA-00030167-002

I note the Complainant’s submission that she was not notified of her contract changes and changes to her terms and conditions following the takeover of the company while she was on maternity/sick leave.  I note also that she submitted that she did not receive a copy of the new policies and procedures despite seeking a copy of same in writing.

I note the Respondent’s position that the Complainant’s contract and terms and conditions were not materially altered following the transfer and so there was no requirement to provide a new contract.  I note also, the position of the Respondent that there were essential business changes required to make the business grow and profit and, in these circumstances, decisions had been made about business opening times while the Complainant was on leave.  As a result, it was necessary to engage with the Complainant and seek changes to her previous rostering arrangements and that these changes were agreed between the parties.

Having considered this matter carefully I conclude that the contractual entitlements of the Complainant were not materially altered following the transfer and that while her roster required change this change was ultimately agreed between the parties.  I note that agreement to the new roster was confirmed, in writing, to the Complainant by email of 13th November 2018. I note that the Complainant did not receive a copy of the new policies and procedures from the Respondent but I consider that such documents fall outside the remit of the Terms of Employment (Information ) Act.

CA-00030167-001

I found that the Complainant was unduly delayed in being returned to work following maternity/maternity related sick leave and that the Respondent did not act reasonably in addressing issues regarding underpayments and payment errors which had negative consequences for the Complainant.  I also found, that the Respondent’s actions fell short of the standards that would be expected of a reasonable employer in not providing the Complainant with copies of new policies and procedures as requested and that the Respondent completely overstated the description of the alleged wrong doing which led to disciplinary action, failed to have a proper investigation of that issue and failed to follow any semblance of a fair procedure in addressing the issue within the disciplinary procedure.

Based on these findings I recommend that the Respondent pay the Complainant the amount of €5000 by way of compensation.

CA-00030167-001

I found that the contractual entitlements of the Complainant were not materially altered following the transfer of employment and that while her roster required change this change was ultimately agreed between the parties. I found that the provision of policies and procedures does not come within the remit of the Terms of Employment (Information ) Act.  Based on these findings it is my decision that the Respondent has discharged their responsibilities under the act and that this case is not well founded.

Industrial Relations Act, poor procedures, transfer of employment, terms of Employment (Information) Act