FULL RECOMMENDATION
PARTIES : PARADOX SALON LIMITED T/A NOEL MAHER HAIR COMPANY DIVISION :
SUBJECT: 1.An Appeal of Adjudication Officer Decision No.ADJ-00024532 CA-00031214-008 Background The Appellant commenced employment with the Respondent on 28thJune 2019. She terminated her employment on 1stOctober 2019. It is common case that, at the date of termination of the employment, the Complainant had less than one year’s continuous service with the Respondent. The Act at Section 2(1)(a) provides as follows 2.(1) Except in so far as any provision of this Act otherwise provides this Act shall not apply in relation to any of the following persons: (a) an employee (other than a person referred to in section 4 of this Act) who is dismissed, who, at the date of his dismissal, had less than one year’s continuous service with the employer who dismissed him, On the face of the Act at Section 2(1) therefore, the Appellant did not, at the date of termination of her employment, enjoy the protections of the Act. However, the Appellant in the within appeal contends that the reason for her dismissal was that she had, on 1stOctober 2019 and on other occasions previously, asserted her rights under the National Minimum Wage Act, 2000 (the Act of 2000) in that she sought from the Respondent payment of the National Minimum Wage. She contends that she dismissed herself from her employment by text on 1st October 2019 because of her frustration that she had not received payslips to update her Council rent, medical card or social welfare. She said that in response to her text of dismissal the Respondent then threatened her by text message saying that if she ever told him “what to do again I would find myself out of a job”. She said that all she had asked for was her payslips and her pay and that she was afraid to return to work after this as she felt she was being punished for asking for what was hers. The National Minimum Wage Act, 2000 (the Act of 2000) at Section 36, in relevant part, provides as follows: 36.(1) An employer shall not cause or suffer any action prejudicial to an employee for the employee having— (a) exercised or having proposed to exercise a right under this Act, (b) in good faith opposed or proposed to oppose by lawful means an act which is unlawful under this Act, or (c) become, or in future will or might become, entitled in accordance with this Act to remuneration at an hourly rate of pay that on average is not less than the national minimum rate of pay, or a particular percentage of that rate of pay. (2) Dismissal of an employee in contravention of subsection (1) shall be deemed to be an unfair dismissal of the employee within the meaning and for the purposes of section 6(1) of the Unfair Dismissals Acts, 1977 to 1993 (but without prejudice to sections 2 to 5 of the Unfair Dismissals Act, 1977, except that it is not necessary for the employee to have at least one year’s continuous service with the employer and that Act shall apply as if the Worker Protection (Regular Part-Time Employees) Act, 1991, were repealed in relation to the number of hours an employee is normally expected to work for the purposes of that Act) and those Acts, with the necessary modifications, shall apply accordingly. The appeal before the Court, having regard to the legislation as set out above, is concerned in the first instance with whether the dismissal of the Complainant amounted to a dismissal in contravention of subsection 1 of Section 36 of the Act of 2000. If it was such a dismissal, the dismissal was, by operation of the Act of 2000 at Section 36(2), unfair and Section 2(1)(a) of the Act will have no application. If it was not such a dismissal, the Complainant, having regard to the length of her service, does not, by operation of the Act at Section 2(1)(a), have the capacity to maintain the within appeal. Matter related to the Respondent’s submission The Respondent had been notified by the Court of the time frames for the making of his written submission to the Court set out in ‘Labour Court Rules 2020’which had been drawn up pursuant to Section 20(5) of the Industrial Relations Act, 1946. The Respondent made his written submission to the Court in contravention of those rules on the evening before the hearing. The Respondent was invited by the Court to make an application to the Court to admit the late submission. The Respondent stated that he did not wish to make such an application. The Court asked the Appellant whether she was satisfied to proceed in the absence of a written submission from the Respondent, taking account in particular of the fact that she would not have knowledge in advance of any oral submission which the Respondent might make. She stated that she was satisfied for the Court to proceed to hear the matter in the absence of a written submission from the Respondent. Summary position of the Appellant The Appellant was employed from 28thJune 2019 until she dismissed herself by way of a text message to the Respondent on 1stOctober 2019. She submitted that the Respondent did not provide her with payslips at all throughout her employment and had not paid her the National Minimum Wage during her employment until 13thSeptember 2019. The Respondent failed to provide her with arrears of pay owing to her as a result of her entitlement to the National Minimum Wage between 28thJune and 13thSeptember 2019. She became frustrated at the fact that she was without payslips to update her Council rent, medical card or social welfare and dismissed herself. She said that the Respondent replied to her text message in a threatening manner and thereafter she felt that she had no option but to resign her employment as a constructive dismissal. She made submissions to the Court regarding her dissatisfaction as regards training provided to her, the duties assigned to her and her ability to avail of annual leave on occasion. Summary position of the Respondent The Respondent made no written submission to the Court. He submitted orally at the hearing that the staff member who attended to payroll matters left the employment in June or July 2019 and, as a result, errors were made by him as he made efforts to manage payroll matters. He submitted that he had placed the Appellant on the correct rate of pay on 13thSeptember 2019 and that he had made payment to her in respect of all arrears owing to her during October 2019. He submitted that he had not taken any action to the Appellant’s detriment following her raising her entitlement to the National Minimum Wage. Discussion and conclusions. It is common case that the Appellant was not in receipt of the National Minimum Wage from the date of commencement of her employment on 28thJune 2019 until 13thSeptember 2019. It is also common case that the Appellant had not been supplied with payslips by the Respondent until a hand-written sheet was supplied to her on 30thSeptember 2019 which detailed the wages which had been paid to her in each week of her employment and the statutory deductions which had been made therefrom. It appears that this form of payslip was not acceptable to a number of public bodies with whom the Appellant had dealings. In order to maintain the within appeal the Appellant must establish, in accordance with the Act of 2000, that the Respondent has contravened Section 36(1) of that Act. She must, in accordance with the provisions of that section as it applies to the facts of the within appeal, establish that the Respondent caused an action prejudicial to her in response to her having exercised or proposed to exercise a right under the Act. In the event that she cannot establish such a contravention, she is excluded from the protection of the Act on the basis that she was employed for a period of less than one year at the date of termination of her employment. The Appellant contends that she was constructively unfairly dismissed. In essence she contends that the behaviour of the employer in response to her seeking to assert her rights under the Act was so unreasonable as to mean that she could not be expected to remain in the employment or in the alternative, she is contending that the Respondent’s behaviour in response to her seeking to assert her rights under the Act was such as to undermine the contract of employment. It is clear that the Appellant was dissatisfied with a range of matters during her employment including the failure of the Respondent to pay her in accordance with the requirements of the Act of 2000 or to provide her with a contract of employment, pay slips or details of a grievance procedure. She was also dissatisfied with the nature of the duties assigned to her during her employment. Having regard to Section 36(1) of the Act however, matters associated with non-receipt of payslips, failure to provide a contract of employment, failure to provide details of a grievance procedure or assignment of unsatisfactory duties to her are not matters of right under the Act. The Court must consider whether the Respondent, contrary to the Act of 2000 at Section 36(1), caused an action prejudicial to the Appellant for seeking to be paid the National Minimum Wage which is a right under the Act. The Act of 2000 makes clear at Section 36(2) that dismissal of an employee in contravention of Section 36(1) shall be deemed to be a dismissal for the purposes of Section 6(1) of the Act. The Act defines dismissal of an employee as including 1(b) 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, Having regard to these provisions therefore, this matter will turn on whether the Respondent breached the Act of 2000 at Section 36(1) It is common case that at the time of the termination of her employment the Appellant was, since 13thSeptember 2019, in receipt of the national Minimum Wage but had not received the payment required to address her complaint that she had not received her entitlement in the weeks between 28thJune 2019 and 13thSeptember 2019. The Appellant does not contend that the failure to provide her with a contract of employment, pay slips or details of a grievance procedure or to assign satisfactory duties to her were actions of the Respondent taken in response to her attempt to exercise her right under the Act of 2000. She contends that she terminated her employment by text to the Respondent on 1stOctober 2019. She submitted, and the Respondent agreed, that the Respondent regarded her employment as having been terminated by her in that text. Notwithstanding that the Appellant submitted that she terminated her employment in that text for reasons of frustration that she had not received payslips to update her Council rent, medical card or social welfare, she has also submitted that in fact her decision to terminate her employment arose from a responding text received from the Respondent which she regarded as punishment for ‘asking for what was hers’. The Court has considered the sequence of events as outlined by the Appellant and has concluded that if her submission as regards her decision to dismiss herself by text of 1stOctober 2019 is to be taken on its face, that decision cannot be understood to have been taken on foot of the response of the Respondent to that text. Having regard however to the fact that both parties were unrepresented at its hearing, the Court decided to consider the response of the Respondent to the text of the Appellant which was understood by both parties as having terminated her employment. In her text the Appellant said: “The sheet you gave me with my pay was refused by the social welfare and medical card unit. It’s not a proper pay slip. Also the cheque you said you’d write out for the money you owe me was not in the envelope you gave me. I won’t be returning to work until it is sorted as the figure you owe me is close to 600 euro” The Respondent responded by text to say: “I said I had to work out what I owed you for the cheque I didn’t say I was putting it in the envelope. Don’t ever tell me what I should be doing are (sic) you will find yourself with out of a job. If you don’t turn up for work I will take it as you (sic) resignation” The Appellant responded to say: “That’s fine I’ll refer all this to workplace relations” The Respondent replied to say “You’re (sic) cq will be in Oranmore salon after 1 tomorrow as I said I had no problem paying it to you I was waiting for accountant to do it up” The Appellant’s contention that she was constructively dismissed contrary to the Act of 2000 rests, on her submission, upon the text of the Respondent in response to her first text above which was the text which she says represented her dismissal of herself. That response was, she submitted, of such a nature as to cause her to be “afraid to return to work after this as I felt I was being punished for asking for what was mine” The Court, noting that the Respondent in the impugned text confirmed that he accepted that money was owing to the Appellant arising from her entitlements under the Act of 2000, cannot accept that the behaviour of the Respondent in the issuance of that text can be construed as being so unreasonable as to mean that the Appellant was left with no option other than to terminate her employment and neither can the Court conclude that the text represented an act which undermined the central tenets of the contract of employment. The Court is fortified in that conclusion by the fact that a subsequent text from the Respondent confirmed the intention to pay the Appellant her outstanding entitlements under the Act. The Court, in reaching its conclusion, has confined itself to matters which arose under the Act of 2000. The behaviour of the Respondent in failing to provide payslips or details of grievance procedure were significant failings but do not arise for consideration by the Court in the within appeal. At the time of the termination of her employment the Appellant was in receipt of the rate of pay to which she was entitled under the Act of 2000. In the view of the Court no reasonable conclusion could be drawn that the fact that arrears of payment remained due to the Appellant at that time amounted to an action prejudicial to the Appellant for having exercised a right under the Act. Her attempt to secure payment of the arrears due to her was itself the exercise of her right under the Act and the Respondent confirmed to her that such arrears would be paid to her. In all the circumstances, the Court concludes that the Appellant’s complaint of a contravention of Section 36(1) of the Act has not been made out and consequently she lacks the service to maintain her complaint under the Act. Decision The Court determines that the Complainant was not unfairly dismissed by the Respondent and the appeal fails. The decision of the Adjudication officer is set aside. The Court so decides.
NOTE Enquiries concerning this Determination should be addressed to Sinead O'Connor, Court Secretary. |