Complainant

Respondent

Anonymised Parties

A Beautician

A Beauty Salon

Representatives

Conor Quinn,  John J. Quinn & Co.

Theresa Ham, Kingsford Solicitors

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-00033520-001

07/01/2020

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

CA-00033520-002

07/01/2020

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

CA-00033520-003

07/01/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00033520-004

07/01/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00033520-005

07/01/2020

The complainant was employed by the respondent from 1 September 2018 at an hourly rate of €13.50. She claims she was unfairly dismissed on 13 November 2019, did not receive a contract of employment, was not paid for a notice period when dismissed and was discriminated on the grounds of race when not given a contract of employment whilst other Irish employees were given a contract of employment. The respondent denies all claims.

The complainant also made a complaint (CA-00033520-002) in relation to holiday pay. This matter was resolved between the parties and withdrawn by the complainant prior to the hearing 

Summary of Complainant’s Case: the complainant submits she did not receive a contract of employment.

Summary of Respondent’s Case: the respondent confirmed the complainant did not receive a contract of employment. She says contracts were issued to all staff shortly after the complainant left their employment.

Findings and Conclusions: I concludethe complainant did not receive terms of employment as required by the legislation. The respondent contended the complainant suffered no detriment as a result of this. However, there was a dispute between the parties and both parties would have benefitted if the complainant had been issued with terms of employment. This would have clarified if she was restrained from taking up other employments and if she was aware how to make a complaint. I find this complaint is well founded and award redress of four week’s pay; which is €1,620.

Summary of Respondent’s Case: the respondent submits the complainant was not dismissed but left of her own accord without giving notice. The owner of the salon became aware the complainant was working in another salon and spoke to the complainant on 13 November 2019. She asked why the complainant was working elsewhere when she could have as many hours as she wanted working for the respondent. The complainant said she wanted to work on Sundays when the respondent was closed. The owner said she was open to the salon opening on Sundays but it would have to be through the books. Later that day the owner looked on social media and she was disappointed and shocked when she found out the complainant was working for a direct competitor. The owner told the complainant there was a problem working for a direct competitor and she could not work for the respondent if she was working for the competitor. She explained there was a conflict of interest if she was working for both salons. In an email on 15 November the owner confirmed she was not dismissing the complainant.

There followed an exchange of emails with the complainant’s husband. He told the owner the complainant was on sick leave due to stress and sick certificates were submitted. The owner said she would prefer to communicate with the complainant directly. On 11 December the complainant’s solicitor wrote to the owner indicating they were instructed to initiate unfair dismissal proceedings.

The respondent submits the complainant was not dismissed but left through her own actions. Furthermore, she has no claim of constructive dismissal.

Summary of Complainant’s Case: the complainant submits she started working at another salon because she wanted to work on Sundays, a day when the respondent was closed. She had a meeting with the respondent on 13 November 2019 and was asked by the owner why she was working for someone else who was a competitor, and was told she could not work for someone else who was so close to the respondent’s salon. She was told to choose the respondent or the other salon. She went home and did not know why she could not have two jobs and needed time to think. She considered she was dismissed the next day 14 November when she sought clarity from the owner who responded “If your happy to continue working with them then unfortunately you cant work at” the salon. The complainant replied saying she did not want to leave the other salon he owner responded “Ok so you understand if you want to continue to work in salon in ………….. that you cannot work here as that will affect my business”. The complainant took this to mean she was dismissed. Because of the stress caused by the situation she went to her doctor on 19 November and says she sent in the medical certs because she was confused and nervous. The respondent attempted to retract the dismissal on 6 December 2019 but the relationship had completely broken down at this point.

Findings and Conclusions: whilst the complainant was working for the respondent she started working in another salon on Sundays. When the owner found out she told the complainant if she wanted to work for the other salon she could not work for the respondent. The complainant said “I think I won’t stop another job as they didn’t do anything wrong to me”. She did not understand why she could not carry on doing both jobs, as she was only working in the other salon on a Sunday, when the respondent was closed. Furthermore, she had never been told she could not work elsewhere and did not have a contract with any restrictions. In later correspondence with the complainant’s husband the owner said the complainant was welcome to return to work but made no further mention of the complainant continuing to work in the other salon.

The situation was complicated because the complainant sent in medical certificates to show she was not fit to work but I accept the complainant’s evidence that she was confused by the situation.

In this case I think it was reasonable of the complainant to conclude that the owner would not allow her to work for the respondent whilst she worked in the other salon. The complainant did not want to stop working in the other salon and told the owner this. Therefore, she concluded she could no longer work for the respondent because of a decision by the owner. I find this amounts to a dismissal by the respondent.

Section 6(1) of the Unfair Dismissals Act 1977 (“the Act”), provides that:

“Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal, unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”

The burden of proof rests with the respondent to establish the substantial grounds justifying the dismissal of the complainant. The owner gave an ultimatum to the complainant, that she could not work for the other salon and the respondent, even though the complainant had not been informed of any restriction in taking on other employment; this is where the lack of a contract of employment is important. I therefore find the owner did not have substantial grounds to dismiss the complainant and the dismissal was unfair.

Summary of Complainant’s Case: the complainant submits she was dismissed on 14 November 2019 and no notice payment was received.

Summary of Respondent’s Case: the respondent submits the complainant was not dismissed but left of her own accord and they have no liability under this legislation.

Findings and Conclusions: I have found the complainant was dismissed and in evidence given she was not given a notice period. I find she was entitled to a notice period of one week and I award her €405.

Summary of Complainant’s Case: the complainant submits all other staff members received a contract of employment, including an Irish employee. She is Taiwanese and did not receive a contract of employment.

Summary of Respondent’s Case: the respondent submits she employed five staff, three of whom were Irish. The first member of staff to receive a contract of employment was a new employee who started work in May 2019. This person grew up in the far east but is Irish. The respondent submits the complainant was not treated differently because of her race.

Findings and Conclusions: The complainant says she was discriminated against on the grounds of race in relation to not being issued with a contract of employment. Her evidence at the hearing was that she was aware that an Irish employee received a contract but she was not aware if the other employees had been issued with a contract. The respondent gave evidence that the employee referred to by the complainant was issued with a contract when she started working for the respondent in May 2019 and was the first employee to be issued with a contract. The other existing employees were issued with employment contracts shortly after the complainant finished working for the respondent.

Section 85A (1) of the Employment Equality Acts, 1998 – 2007 states: “Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”

This means that the complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the respondent. The complainant was treated differently than one new employee but no differently than the other existing employees. I conclude she has provided no evidence that not being issued with an employment contract was in any way related to her race. I therefore find she is unable to establish a prime facie case of discrimination in relation to conditions of employment.

CA-00033520-001 - Terms of Employment (Information) Act 1994: for the reasons given above I find this complaint is well founded and award redress of four week’s pay; which is €1,620.

Ca-00033520-003 – Unfair Dismissals Act: for the reasons given above, pursuant to section 8 of the Unfair Dismissals Act 1977, I find the complaint is well founded. I note the complainant continued working for the other salon until the disruption caused by the onset of the Covid-19 pandemic. She did find other employment in July 2020 for 3 months before salons closed again. Taking everything into account I award the complainant compensation of the equivalent of six months’ salary: €10,530.

CA-00033520-004 – Minimum Notice: for the reasons given above I find the complaint is well founded and award the complainant €405.

CA-00033520-005 – Employment Equality Act: for the reasons given above I find the complainant has failed to establish a prima facie case of discrimination in relation to conditions of employment.

Unfair dismissal