ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference:  ADJ-00027366

Parties:

Complaint(s):

Date of Adjudication Hearing:  26/03/2021

Workplace Relations Commission Adjudication Officer:  Gerry Rooney

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 – 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings.

Background:

These complaints, made by a Senior Hairdressing Stylist refer to an allegation of Unfair Dismissal and an alleged failure by the Respondent, a Hair Salon, to properly pay the Complainant’s wages after the termination of her employment.

Summary of Complainant’s Case:

CA-00034955-001 Complaint under Section 8 of the Unfair Dismissals Act, 1977

The Complainant submitted that she commenced employment as a senior hairdressing stylist with the Respondent on the 24th April 2018. Having worked for other employers in the area for nearly 20 years she maintained that she had built up a good clientele that she brought with her to the Respondent’s business.

The Complainant maintained that in the 17 months she had worked for the Respondent she did everything possible to help make the business a success. However, she had several issues with how the salon was run and how the Respondent treated staff over issues such as lunch breaks, bank holidays, and the payment of tips.

The Complainant submitted that 12th October 2018 was a very busy day. After work that day the Complainant spoke to the Respondent about the practice of staff being only allowed to take the tips if they were paid by cash, but they were not permitted to take the tip if the client paid by card. As this matter had been raised before the Complainant asked the Respondent to explain again why they could not take the tips if they were paid by card, and was told this was due to Vat.  The conversation took place in front of other members of staff, and in response to the Respondent the Complainant said jokingly "God, this hairdressing lark is gone to hell you can even have your tips anymore, you'd nearly look for a new job a new career".

The Complainant submitted that she was then called out to the back by the Respondent where the Complainant said to him “please let’s not start an argument”.  However,the Respondent started screaming in her face and said in a very intimidating manner to the Complainant “you have just handed in your notice”.  The Complainant replied that she had not handed in her notice, and when another member of staff came into the back area this member of staff also confirmed that the Complainant had not handed in her notice. The Complainant maintained that the Respondent continued to scream at her.  In response the Complainant said, "I don't have to listen to this" and she was told by the Respondent to pack her bags and that she was fired. The Complainant packed her bags and left and maintained that she had not hand in her notice and is she was to do so she would have done it in writing.

It was Ms XXX contention that she then moved back into the Kitchen area stating “I don’t have to listen to this” as she felt extremely intimated by the Respondent.  The Respondent then screamed at the Complainant, and the Complainant replied “I will then” and proceeded to collect her belongings as she did not feel safe and was extremely upset and in tears over the manner that the Respondent had shouted her. The Complainant also maintained that another Stylist then said to the Respondent “I think you’ve got your wires crossed she didn’t say that” but that the Respondent made no comment and the Complainant then left

The following Monday morning, as she had not heard from the Respondent, she tried to contact him about her pay. The Complainant had expected to get an apology. However, when the Complainant sought to contact the Respondent, she was advised by his partner not to contact the Respondent again as she had used threatening and abusive behaviour against the Respondent, and if the Complainant came anywhere near the salon, they would call the Gardai.

CA-00035577-001 Complaint under section 6 of the Payment of Wages Act, 1991                                                                                        

The Complainant maintained that she had been unfairly dismissed on 12th October 2019 when she was fired following raising an issue about the payment of tips to staff.

The Complainant submitted that she was only paid her last week’s wages, her commission, and two days holidays but she did not get paid her week in hand or two further days holidays that she was entitled to.

The Complainant advised that her wages were to be paid weekly in arrears by Credit Transfer directly to her Bank Account where the agreed rate of pay was €450 gross weekly. A commission of 15% was also to be paid to the Complainant in cash weekly in arrears on all income over €1,200 that the Complainant brought into the Salon.  The Complainant demonstrated these payments were made to her bank account. It was the Complainant’s contention that she did not receive payslips on a regular basis – in total only nine payslips were issued during the course of her 17-month employment.

It was also alleged that during the week of 15th June 2018 the Respondent informed the Complainant that he would be putting €350 through the books and paying the additional €100, along with all commission by cash. This reduction was demonstrated in the bank statements submitted by the Complainant and copies of the pay slips she received.

Summary of Respondent’s Case:

CA-00034955-001 Complaint under Section 8 of the Unfair Dismissals Act, 1977

The Respondent has denied the Complainant was fairly dismissed. It is the Respondents contention that the complaint is grossly inaccurate, fabricated, and in most parts not factual.

Referring to the incident that occurred on 12th October 2019, the Respondent submitted that at approx. 4pm the Complainant was working next to his station and the salon was still very busy with clients. It is maintained by the Respondent that the Complainant began to verbally run-down hairdressing as a trade and also the Respondent’s business by saying "there is no money in hairdressing anymore and I would be better off getting another job doing something else and especially here with the money I bring in the door".  It is further submitted that the Complainant continued to state that she was seriously thinking of leaving her role and that it was time to move on. The Respondent maintained such comments had been made three of four times before and on this occasion they were not part of a jovial conversation but were discussed in a manner that everyone in the salon could hear. The Respondent described it as becoming more uncomfortable for the Respondent and other staff and clients. The Respondent described it as unprofessional and disrespectful behaviour.

The Respondent described that as a new business he found the Complainant would act to manipulate situations to get her own way when, for example, seeking leave without notice or where the Respondent had sought to verbally discipline her. It was stated that the Complainant would threaten the Respondent by making statements such as “don’t dare to pull me up on anything, you better give me what I want or I will walk out the door”.

The Respondent submitted that at approximately 5:30pm on 12th October 2019, when the salon was closing and the staff where getting ready to leave, the Complainant waved two ten euros frantically, stating that was all she made in tips for the day and it was completely unfair that she could not take a tip on the credit card machine. It was alleged this occurred on the salon floor where other staff members were standing. The Respondent maintained that he was completely in shock and the very aggressive attitude. When the Respondent explained the tipping policy to the Complainant she was really agitated and was pointing her finger towards the Respondent. The Respondent submitted that the Complainant replied “well if I can't get those tips then there's no money in hairdressing for me anymore, I’ll be getting a job elsewhere”. He replied calmly that was her prerogative.

The Respondent then asked the Complainant to come out so he could talk to her away from other staff. At this point the Complainant became verbally aggressive and said, "Don't you be starting any shit now”. In light of what had been said earlier the Respondentstated, “am I to take it that you have handed in your notice”. He submitted that the Complainant replied, “oh get down off your fu*king high horse, you can take it whatever way you want”. The Respondent advised the Complainant that he was not going to tolerate this type of aggressive behaviour and told the Complainant that she should take her equipment and finish up. It was submitted that the Complainant became very aggressive again and that the Respondent received threatening texts and further emails form the Complainant after she left.

The Respondent acknowledged that he did not give the Complainant written notice but confirmed by email that he deemed her behaviour as gross misconduct and informed her that she would not be returning back to work due to this behaviour.

The Respondent submitted that the Complainant found alternative employment as a stylist on 15th October 2019.

CA-00035577-001 Complaint under section 6 of the Payment of Wages Act, 1991                                                                                        

The Respondent submitted payslips for 2019 for the Respondent and bank holiday pay rosters for the period.

The Respondent advised that wages are paid a week in arrears, and provided pay slips to demonstrate that all of the Complainant’s wages were paid up to and including 12th October 2019. The Respondent further maintained that the Complainant was paid 10% commission on takings over €1200, not 15% as submitted by the Complainant.

The Respondent advised that the Complainant had accrued 16.25 days annual leave for the 41 weeks of 2019.  It was submitted that she had taken 22.5 days leave up to and including 12th October 2019 leaving an over payment of 6.25 days. It further submitted that as a good will gesture the Respondent paid the Complainant a further 2 days holiday pay in her final pay. It was therefore argued that the Complainant was over paid by 8.25 days, equivalent to a week and a half of wages.

The Respondent maintains that when an employee is being dismissed for gross misconduct, he or she may not be entitled to notice of dismissal. Therefore, a weeks' notice was not relevant under the terms of minimum notice and terms of employment act 1973- 2001.

In response to the Complainant receiving part of her pay in cash, the Respondent maintained that on the 15th June 2018 the Compainant requested that she would receive some cash and the rest in the bank. The Respondent facilitated this request.

Findings and Conclusions:

CA-00034955-001 Complaint under Section 8 of the Unfair Dismissals Act, 1977

In accordance with Section 6(1) the Unfair Dismissals Act, 1977 “the dismissal of an employee should be deemed, for the purpose of this Act, to be an unfair dismissal unless having regard to all circumstances, there were substantial grounds for justifying the dismissal”.

S6(4) of the Act states [w]ithout prejudice to the generality of subsection (1) of this section the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if… inter alia it results wholly or mainly from the conduct of the employee.

In addition S6(7) of the Act requires that in determining if a dismissal is an unfair dismissal, regard may be had, if the Adjudication Officer considers it appropriate to do so- (a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and (b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure which the employer will observe before and for the purpose of dismissing the employee …or with the provisions of any code of practice. I must therefore consider both the substantive issues leading to the dismissal, and the fairness of the procedures adopted.

In the case within the evidence supports there was an altercation between the Complainant and the Respondent on 12th October 2019, and where words were exchanged that under the circumstances the Respondent maintained the behaviour of the Complainant amounted to gross misconduct, and therefore dismissed the Complainant with immediate effect on that day. It is not disputed that there was a dispute between the parties on that day and where both parties maintain it was the other party that behaved inappropriately.  What is clear however is that the Respondent has acknowledged he dismissed the Complainant on 12th October for gross misconduct.

The employee handbook submitted by the Respondent refers to disciplinary procedures which stated it will be normal on the first and second occasion that a warning will be given, which will be recorded.  In the within case no record of a warning was held in relation to the Complainant’s behaviour.  In addition, the procedure states that offences such as continued insubordination, which includes using aggressive behaviour towards management...[and] the use of foul language on the salon floor or whilst communicating with other employees shall render the employee to instant dismissal or suspension... subject to his/her right to make his/her defence.

It is evident in the within case that no opportunity was provided for the Complainant to make her defence before being dismissed for gross misconduct. Whilst the policy is silent on what precise procedures should be applied in affording an employee to make their defence, S.I. No. 146 of 2000Industrial Relations Act 1990 Code of Practice on Grievance and Disciplinary Procedures (Declaration) Order 2000 sets out the procedures employers are expected to follow.  Within these procedures employers must comply with the general principles of natural justice and fair procedures which include: that details of any allegations or complaints are put to the employee concerned; that the employee concerned is given the opportunity to respond fully to any such allegations or complaints; that the employee concerned is given the opportunity to avail of the right to be represented during the procedure; and that the employee concerned has the right to a fair and impartial determination of the issues concerned. 

I find that for the within case there was a clear absence of the adherence of the general principles of natural justice and fair procedures afforded to the Complainant.  The Respondent was upset by the behaviour of the Complainant on 12th October 2019 and decided to dismiss the Complainant without any recourse to fair procedures that day.  Irrespective of the alleged behaviour of the Complainant, she was entitled to have the matter dealt with fairly.  Indeed, the Complainant expressed this in text messages to the Respondent on the days following her dismissal, albeit the wording of such texts was unhelpful and misguided, as were the text responses submitted by the Respondent.

Notwithstanding, in the absence of any fair procedures afforded to the Complainant before her dismissal I find her complaint well founded and conclude she was unfairly dismissed.

CA-00035577-001 Complaint under section 6 of the Payment of Wages Act, 1991                                                                                        

Having considered this complaint I find that the Complainant did receive in excess of her annual leave entitlements prior to her date of dismissal and had been overpaid by approximately 8 days.  On that basis I do not find that this complaint is well founded.

Decision:

CA-00034955-001 Complaint under Section 8 of the Unfair Dismissals Act, 1977

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

For the aforesaid reasons, I find this complaint to be well-founded pursuant to Section 8 of the Unfair Dismissals Act 1977 and conclude that the Complainant was unfairly dismissed by the Respondent.

Section 7 of the Unfair Dismissals Act 1977 sets out the various forms of redress including reinstatement, re-engagement and financial compensation which may be awarded.

Relevant to the case within, where compensation only is sought, Section 7(1)(c)(i) of the Act provides: “…if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances,…”

Section 7(2) of the Act sets out the factors which should be considered when determining the amount of compensation and in such circumstances consideration has to be given to whether the loss was attributable to an act, omission or conduct by or on behalf of the employer;  the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee; and the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid.  I also have to consider…the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure applied to dismiss the employee… and the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.

In circumstances where it is undisputed that the Complainant failed to conduct an investigation and/or fair hearing of the events that occurred on 12th October 2019 before dismissing the Complainant I find that the omissions of the Respondent have led to an unfair dismissal.  For her part I find that the evidence supports that the behaviour of the Complainant, in the manner she spoke to the Respondent, has contributed to some degree to the circumstances giving rise to her dismissal and consequent losses.

In respect of the losses, I find that the Complainant to her credit found alternative work within a matter of days for more money that she was earning form the Respondent.  Accordingly, the loss is mitigated.

Therefore, I consider it just and equitable in all the circumstances to award the Complainant €900 (subject to any lawful deductions) which include her loss of earnings in lieu of notice.

CA-00035577-001 Complaint under Section 6 of the Payment of Wages Act, 1991

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Having considered the complaint and response I decide it is not well founded as the Complainant had received payment in excess of her entitlements at the time of the cessation of her employment, and therefore this complaint fails.

Dated:  23rd November 2022

Workplace Relations Commission Adjudication Officer:  Gerry Rooney

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