Complainant

Respondent

Anonymised Parties

A Hair Stylist

A Hair Salon

Representatives

  Complainant

 Boyd HR

Act

Complaint/Dispute Reference No.

Date of Receipt

Request for an investigation by a Workplace Relations Commission Inspector under the Organisation of Working Time Act, 1997

CA-00031267-003

03/10/2019

Request for an investigation by a Workplace Relations Commission Inspector under the Organisation of Working Time Act, 1997

CA-00031267-005

03/10/2019

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

CA-00031267-006

03/10/2019

Request for an investigation by a Workplace Relations Commission under the Terms of Employment (Information) Act, 1994

CA-00031267-007

03/10/2019

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

CA-00031267-008

03/10/2019

The complainant worked as a Stylist with the respondent.  Following a meeting between the two during which the complainant felt she was being pressurised to leave the complainant lodged a grievance.  The respondent set up a procedure to deal with the matter which the complainant did not participate in.

The complainant commenced with the respondent in June 2015 in the position of hair stylist.  She was never given a copy of her terms and conditions of employment. As time passed she had the additional responsibility of managing a trainee.  The complainant raised issues about working conditions, for example in relation to the location of sockets and the absence of hot water on occasion.  The complainant raised the issue of her wages with the respondent and the respondent eventually agreed to pay her a higher hourly rate and commission. The salon coordinator left in early 2019 and this led to a decline in the management of the staff of the salon and the complainant felt that this led to more responsibility being placed on her.

In early May 2019 the complainant raised the question of payment for Public Holidays with the respondent who could not give her an answer and who undertook to check with the accountant and get back to her after she, the respondent, returned from holidays. Since her employment commenced the complainant did not receive payment for bank holidays.

On 28th May the respondent called the complainant to a meeting without prior notice and told her that the meeting related to her negative attitude which was affecting other staff. The respondent said that this had caused another member of staff to take time off on sick leave. This allegation was untrue and was this was confirmed to the complainant by the member of staff in question.  During the meeting the complainant formed the opinion that the respondent was trying to force her to resign.  On 30th May, due to stress, the complainant went off sick and was logged off the online app after only one day.

On 6th June the complainant raised an official grievance.  The respondent had no policy or procedures in place to deal with this. The complainant felt that she could not return to her work in light of the false accusations made by the respondent at the meeting on 28th May.  On 19th June, the complainant handed in her resignation. On 1st July the respondent offered a grievance hearing to be conducted by a HR Firm.  The complainant felt an independent review was preferable.  On 11th October the respondent accepted the resignation and agreed to pay €452 in respect of outstanding money owed.

The respondent is not contesting the claim made by the complainant under Section 7 of the Terms of Employment (Information) Act, 1994. The complainant was not issued with a Contract of Employment. It must be noted, however, that she never requested a copy of her Terms and Conditions of Employment in her four years working with the respondent.

 The respondent had occasion to have an informal conversation with the complainant on May 28, 2019. The meeting was in respect to the complainant’s attitude at work and its effect on lowering the morale of other Staff. The complainant admitted in her letter to the respondent of June 6, 2019 that 'my outlook has been forced into negativity due to circumstances and lack of overall guidance and management.' The meeting on May 28, 2019 was informal and a natural part of everyday management. It was not a disciplinary type meeting. It is important to note that the complainant did not mention to the respondent at this meeting on May 28th or the following day at work May 29th that she had any grievance with respect to her employment.

In her letter to the respondent on June 6, 2019 , the complainant stated that 'there was no way I feel I can return to my role is such a stressful work environment' and that 'l feel that you have forced me into a position whereby I cannot possibly return to my role'. The complainant worked on Wednesday, May 29, 2019 and left taking all of her equipment with her.

The complainant spoke to the respondent in relation to her rate of pay during the summer of 2018 and the respondent agreed to pay her a higher rate of pay.

The complainant highlights issues of 2015, running out of hot water and issues with the sockets. These operational issues were rectified. Furthermore when the complainant raised her concerns about her low earnings, the respondent gave her a pay increase. Having rectified any issue that the complainant had in the past, the complainant had no reason to believe that other issues would not be addressed by the respondent.

At no stage was the complainant managing the salon.  The salon coordinator did not leave until April 2019.

In the respondent’s reply to the complainant on June 13, 2019, she was offered Mediation so as to resolve any interpersonal issues between them. The complainant in her letter of June 19, 2019 stated that she would not accept the offer of mediation and that she would seek redress for the amount of monies owed. In a follow-up letter of July 1, 2019 the respondent offered the complainant the opportunity to raise any grievances she had with respect to her employment at a hearing scheduled for July 8, 2019. The complainant in reply dated July 4  stated that 'As my grievances were mainly under the Terms of Employment Act (1994) and the Payment of Wages Act (1991), I feel that this is best left to the WRC to investigate as that way I can be assured of a non-bias process that neither of us has to incur financially to facilitate'.

The complainant refers to the company having no policy or procedures in place. However, on receiving the grievance she was responded to on 13th June and offered mediation. She was subsequently sent a copy of the grievance procedure on 1st July and she was offered a grievance hearing with an independent HR Company which she declined. The reasonableness test evaluates whether the actions of the employer were so unreasonable that the employee was left with no option but to resign. The decision of the complainant to resign was not a reasonable one. The respondent was not an unreasonable employer nor were her actions or conduct unreasonable. There was a genuine attempt made by the respondent to deal with the concerns raised throughout all the correspondence and no attempts were made by the complainant to resolve the issues, only letters relating to how much she would be compensated.

The  complaint alleges that she received no payment for Public Holidays  However there is evidence that she received all her public holiday entitlements for the year preceding her complaint. As the salon closes on Mondays, the complainant received one fifth of her normal weekly wages as compensation for the public holidays. Furthermore, a payment of €452.76 was made on 26th November 2019 for outstanding public holidays sales commission and annual leave.

The complainant alleges that she had not received any payment for bank holidays since she started work with the respondent. This allegation is rejected. The WRC Inspection of the complainant’s records showed no non-compliance.

CA-00031267-003, CA-00031267-005  and CA-00031267-007

I do not have jurisdiction on the issue of inspections.

The complaint in relation to holidays was withdrawn by the complainant in advance of the hearing.  The pay records for weeks containing a public holiday indicate additional payment to the complainant. From the evidence provided I am satisfied that the respondent made the appropriate payments in relation to public holidays and therefore this complaint is not well founded.

CA-00031267-006  Terms of Employment

The respondent acknowledges that the terms of employment were not given to the complainant as required under the Act.  The respondent states that the complainant did not ask for these.  The requirement under the Act is on the employer to give these to the employee and this was not done.  The complaint is therefore well founded. It is clear that the absence of these contributed in part to the uncertainty the complainant suffered relating to the duties appropriate to her role and therefore the effect was significant.

CA-00031267-008 Unfair dismissal

Section 1 of the Unfair Dismissals Acts 1977 defines a dismissal as including:

‘the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer,’

Where constructive dismissal is claimed the initial burden is on the complainant to show that a dismissal actually took place. There are two tests, either or both of which may be invoked by an employee.

 In the first test - the “contract” test - the employee may argue entitlement to terminate the contract. The second test – the “reasonableness” test - applies where the employees asserts that in the circumstances it was reasonable for him or her to terminate the contract without notice.

Not every breach of contract will give rise to a justified repudiation. It must be a breach of an essential term which goes to the root of the contract. There is, however, the additional reasonableness test which may be relied upon as either an alternative to the contract test or in combination with that test. This test asks whether the employer conducts his or her affairs in relation to the employee, so unreasonably that the employee cannot fairly be expected to put up with it any longer. Thus, an employer's conduct may not amount to a breach of contract but could, none the less, be regarded as so unreasonable as to justify the employee in leaving. Further, the employer may commit a breach of contract which may not be of such a nature as to constitute repudiation but is so unreasonable as to justify the employee in resigning there and then. What is reasonable is pre-eminently a question of fact and degree to be decided having regard to all the circumstances of the particular case.

The complainant contends that she was constructively dismissed.  It is therefore necessary to consider whether the conduct of the respondent amounted to a breach of an essential term of the contract and/or secondly, whether the conduct of the respondent was so unreasonable that the complainant had no alternative but to tender her resignation. 

A number of the complaints detailed by the complainant at the hearing related to the management of the business and could not reasonably be said to be a breach of the complainant’s contract.  These issues were rectified and therefore the conduct of the respondent could not be considered so unreasonable as to justify the complainant resigning.

 It is clear that the conduct of the meeting which took place on 28th May is the principal issue which impacted directly on the complainant.  From the evidence given by the respondent I believe she acted reasonably in bringing matters of concern to the attention of the complainant.  I do not believe the meeting was of a disciplinary nature, but rather falls within what could be considered a normal interaction between management and a member of staff to deal with issues of concern,  and therefore did not require due process one would expect in a disciplinary hearing.  However, it is clear that the complainant found the meeting stressful.  This resulted in a period of sick leave and the lodging of a grievance a week later on 6th June in which the complainant indicated she did not intend to return.  It is of note that the respondent did not immediately accept the resignation of the complainant and sought to address the problem. The complainant has stated that she was unaware of the existence of a grievance procedure.  However, the respondent acted quickly on receipt of the grievance to put in place a procedure to deal with the issues raised.  I think it is of note that the respondent sought the assistance of a reputable third party to assist in the matter. The initial proposal was to partake in mediation to address the issues which, in my view, was the appropriate course of action.  When this was declined by the complainant a procedure was offered to hear the grievances which again was declined by the complainant.

In case Conway v Ulster Bank Limited. the EAT considered that the claimant did not act reasonably in resigning without first having "Substantially utilised the grievance procedure to attempt to remedy her complaint."  In this instance I find that an appropriate procedure for dealing with her grievance was offered to the complainant in a timely fashion which she elected not to use. I therefore conclude that the complainant was not unfairly dismissed.

CA-00031267-003, CA-00031267-005  and CA-00031267-007

I do not have jurisdiction on the issue of inspections.

The complaint in relation to holidays was withdrawn by the complainant.

The complaint in relation to public holidays and is not well founded.

CA-00031267-006

The complaint under section 7 of the Terms of Employment (Information) Act, 1994 is well founded and I order the respondent to pay the complainant the sum of €1000 in compensation

CA-00031267-008

The complainant was not unfairly dismissed.

Constructive dismissal.  Use of grievance procedure.  Terms and conditions of employment