FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : AUDREY CAFOLLA T/A JESTERS HAIR STUDIO (REPRESENTED BY MR HUGH O’FLAHERTY BL, INSTRUCTED SHERWIN O'RIORDAN SOLICITORS) - AND - MS ROISIN COAKLEY (REPRESENTED BY MR ALLAN CRANN BL, INSTRUCTED BY SEAN ORMONDE & CO SOLICITORS) DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No’s: ADJ-00029343 CA-00039230-001. Background The Complainant commenced employment with the Respondent on the 12thAugust 2002. In line with Government restrictions arising from Covid, hair salons closed in mid-March 2020. When hair salons were allowed re-open the Complainant informed the Respondent that she was not in a position to return to work at that time due to childcare responsibilities. Her employment was terminated on the 16thJuly 2020. The Respondent submits that the Complainant by refusing to return to work had repudiated her contract and was deemed to have resigned. Dismissal is in dispute and therefore, it is for the Complainant to establish that a dismissal has occurred Summary of Complainant’s submission and evidence. Mr Crann BL submitted on behalf of the Complainant that the salon closed in mid-March 2020 in line with government guidelines and from time to time the Respondent sent text messages to the Complainant giving updates on the situation. On the 19thJune 2020 the Complainant received a call from the Respondent informing her that salons were scheduled to re-open on the 29thJune 2020. The Complainant was unable to return to work at that stage due to child minding responsibilities and she informed the Respondent of this and that she hoped to return in late August early September when the schools re-opened The Complainant in her evidence to the Court stated that she was the only person in the salon at that time with a young family. The Respondent was aware that her parents minded her son and that her son is asthmatic. The Respondent rang her on the 19thJune about re-opening the salon at the end of June 2020 and enquiring as to whether she could do extra days. The Complainant stated that she advised the Respondent that she had childcare issues as her parents were cocooning and could not mind her son. The Complainant stated that the Respondent asked her for a letter of resignation and stated that if she came back in September, she would give her a new contract. She confirmed to the Respondent that she was not resigning and would return to work when the schools opened. The Respondent replied that she wanted the Complainant to return to work immediately as there was a back log of work. The following Monday the 22ndJune 2020 she received a text from the Respondent asking that she send an email as well as the letter she was sending to the salon summarising her position. The Complainant stated that she replied by email on 24thJune 2020 stating that she was unavailable for work as she had no childcare and that she would be available when the schools re-opened. The email was headed this is not a letter of resignation. The Respondent replied to the email with suggestions of working one day or a half day a week on a temporary basis and asking what arrangement would work for her. The Complainant responded by email of the 30thJune stating that she had not expected salons to re-open until the end of July and therefore had not flagged up her childcare issues earlier. Her son was asthmatic which means he was in the vulnerable category, so options like summer camps were not appropriate for him and reconfirming that she would be available for work when the schools re-opened The Respondent replied by email of 3rdJuly 2020 noting that it appeared that she was not intending to be bound by her contract and asking her to confirm that she would return to work on Saturday 11thJuly 2020 and informing her that if she did not return, she would be deemed to have repudiated her contract. The Complainant stated that she acknowledged receipt of the email and that she informed the Respondent that she would be seeking legal advice. The Respondent issued a further letter to her on the 7thJuly 2020 stating that she was absent from work without permission and that if they did not receive confirmation by close of business the next day that she would attend for work on the 11thJuly 2020 her employment would be deemed to be at an end. The Complainant stated that she issued a detailed reply to that email advising the Respondent that her doctor had certified her as unfit to work and that she would submit the medical certificate. The Complainant stated that her doctor had certified her unfit for work on the 7thJuly 2020 for a period of four weeks. The Respondent replied on the 10thJuly acknowledging receipt of the Complainant’s email and medical certificate and advising that as she had not confirmed her return to work her employment would be treated as coming to an end on the 16thJuly 2020. The Complainant responded on the 16thJuly advising that she considered herself to be unfairly dismissed. The Complaint in her evidence to the Court stated that she was told on the 10thJuly that the Respondent could not accommodate her with two months unpaid leave. The Complainant stated that she understood the Government position was that she had to be facilitated in respect of her childcare needs and that Respondent had to be flexible. The Complainant confirmed to the Court that she has been unavailable for work by reason of illness since her employment ended except for a short period between mid July 2021 and August 2021. It was her evidence that she had looked for a variety of jobs on Indeed.ie but had been unsuccessful in her attempts. Under cross examination by Mr O’ Flaherty BL the Complainant confirmed that she had sought legal advice prior to the conversation of the 19thJune 2020 and the reference in her letter of the 16thJuly 2020 to obtaining legal advice was in respect of the position she found herself in at that time. The Complainant accepted that prior to the announcement to open hair salons there had been a lot of speculation about possible opening dates. However, she was still taken by surprise when it was announced as the end of June. The Complainant accepted that she had not raised the issue of her childcare difficulties with the Respondent prior to he phone call of the 19thJune 2020. The Complainant also accepted that the Respondent tried to engage in a discussion with her about possible alternatives, but she felt the only workable option was for her to return to work in September, when the schools reopened. It was put to the Complainant that the schools reopening would have no impact on her availability to works Saturdays a day she traditionally worked. The Complainant stated that she would have had to look to swop her Saturday for a different day as her husband worked half days on Saturdays and her Adult son worked the odd Saturday. The Complainant accepted that the salon was probably in difficulty following the closure however she felt that under the Government Covid guidelines she did not have to return to work if she had childcare issues and that the Respondent was obliged to be flexible in respect of her return to work. Mr Crann BL opened a number of Adjudication Officer and English legal cases to the Court which he submitted supported their contention that the test was what would a reasonable employer do. It was his contention that the Complainant was not stating that she would not return to work. She had clearly indicated to the Respondent that she would be in a position to return to work when the schools resumed. Ultimately, the Complainant was signed off as unfit for work by her GP on the 7thJuly so she was not in a position to meet the ultimatum issued by the Employer that she return to work on the 11th July 2021. It is the Complainants position that she did not resign her position but was in fact dismissed by the Respondent. Summary of Respondent’s submission and evidence Mr O’ Flaherty BL submitted that the Respondent ran a small local business, employed six staff most of whom were part-time, and her business was badly affected by the forced closure arising from Covid. The Complainant was a valued employee. Prior to the re-opening of hair salons there was a lot of public debate about when they would re-open so it should not have come as a surprise to the Complainant. The telephone call of the 19thJune 2020 was the first time the Complainant raised an issue in respect of her childcare. The Complainant has a husband and an adult son she could have worked Saturdays, but she refused to engage other than to state that she would be back to work when the schools re-opened. The Respondent tried to engage with the Complainant in order to come to an arrangement that would work for both of them, but the Complainant refused to engage on any solution other that what she wanted which was that her job be kept open for her until the schools reopened. The Respondent asked the Complainant to set out her position in writing. Mr O’ Flaherty BL submitted that there are two parties involved in a contract, in this case the Complainant was unwilling to fulfil her part of the contract and therefore she repudiated the contract. The Respondent was, on a temporary basis, willing to vary the contract to facilitate the Complainant working less than the 2/3 days she normally worked but the Complainant refused to do that. The actions of the Respondent in this case were totally reasonable and what occurred was not a dismissal but a repudiation of a contract by the Complainant. Ms Cafolla in her sworn evidence to the Court stated that she had been in business for 28.5 years and that the Complainant had worked for her for 18 years. During the Covid closure no money was coming in but she still had bills to pay. Prior to the re-opening clients had started ringing looking to pre book and she had taken some pre bookings in anticipation of re-opening. Prior to the 19thJune telephone conversation the Complainant had never indicated that she would have a difficulty coming back to work when salons wee allowed re-opened. A number of the Complainants clients had been on to pre book, and she had accepted bookings from them assuming the Complainant would be returning. Ms Cafolla stated that she was taken aback when the Complainant stated that she would not come back to work until schools re-opened and she asked her if she was resigning. Ms Cafolla stated that she knew the Complainants clients might not want someone else to do their hair, so she was trying to come up with a solution that worked for both of them. The Complainants position was that the only solution that she was prepared to consider was that she be given two months unpaid leave. This was not a workable option in terms of the running of the salon. Under cross examination from Mr Crann BL the Respondent stated she was happy to be flexible, but she needed the Complainant to come back to work. She acknowledged that childcare can be difficult and said she was prepared to look at a lot of options, but a two-month delayed return would not work for the salon. Ms Cafolla denied that she ever asked the Complainant to resign. Ms Cafolla confirmed that the salon closed in December 2020. It was put to Ms Cafolla that she had accepted the Complainant’s sick cert. She confirmed that she had. Mr O’ Flaherty BL submitted that the Respondent in this case was as flexible as she could be, but the Complainant wanted to take two months off and was not prepared to consider any other option. She was informed that she could not be facilitated with two months off but continued to insist that she would not be available until the schools re-opened. The Complainant in her evidence confirmed that for the majority of the period following her employment coming to an end she was not available for work. The Complainant provided very little evidence of mitigating her loss other than a general statement that she had look at all jobs and had signed up to Indeed.ie. Mr O’ Flaherty submitted that what occurred was not a dismissal within the meaning of the law and that the actions of the Respondent in this case were the actions of a reasonable employer. The Law Section 1 of the Act defines dismissal in the following manner “dismissal”, in relation to an employee, means— (a) the termination by his employer of the employee's contract of employment with the employer, whether prior notice of the termination was or was not given to the employee, Issue for the Court Dismissal as a fact is in dispute and therefore it is for the Complainant to establish that a dismissal occurred. If that is established, it is then for the Respondent to demonstrate that in the circumstances of this case dismissal was fair as there were substantial grounds justifying dismissal. Discussion The Respondent has submitted that the Complainant resigned. The facts show that the Complainant clearly indicated to the Respondent that she was not resigning. The Respondent sought to rely on the fact that the Complainant was failing to fulfil her side of the contract and that it was therefore the Complainant who had brought the contractual relationship to an end. However, prior to the deadline of 11thJuly 2020 put in place by the Respondent for the Complainant to return to work the Complainant submitted a medical certificate certifying her as unfit for work from the 10thJuly 2020 up to and including the 6thAugust 2020. The Respondent in her evidence to the Court confirmed that she had received and accepted that medical certificate. The Respondent knowing that the Complainant could not comply with the ultimatum to return to work on the date specified proceeded to terminate her employment with effect from 16thJuly 2020. The Court finds that the decision to dismiss by the Respondent knowing that the Complainant was not medically fit to return to work was not the action of a reasonable employer. The Court finds that the Complainant was unfairly dismissed. The Court notes the Complainant’s evidence that from the time her employment ended to the date of the Court hearing she was only available for work for a period of approximately six weeks. The Court also notes that only minimal information was supplied to the Court in respect of the Complainant’s efforts to mitigate her loss. Taking all this into account the Court awards compensation of two weeks salary being an amount of €600 The Court Determines that the Complainant was unfairly dismissed and awards compensation of €600. The appeal is upheld the decision of the Adjudication Officer is set aside. The Court so determines.
NOTE Enquiries concerning this Determination should be addressed to Cathal Nerney, Court Secretary. |
