Complainant

Respondent

Parties

Zita  O'neill

Milan Professional Limited

Representatives

Representative, Citizens Information Service

Anna Butler, (Penninsula)

Gina Cannon (General Manager)

Mohamed Alkurd (Managing Director)

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00041510-001

11/12/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00041510-002

11/12/2020

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

CA-00041510-003

11/12/2020

CA-00041510-001: The Complainant stated she was dismissed by phone call with no reasons given.

Ms Zita O’Neill, Complainant commenced work with the Respondent, Milan Professional Limited on 15 May 2018.  On the 10 September 2020 the Complainant was suspended following an alleged argument with the duty Manager.  On 18 September 2020 the Complainant received a call from the Area Manager. During this call the Complainant was dismissed.

CA-00041510-002: The Complainant stated she did not receive pay during the 10 working days she was suspended. The Complainant did not receive remaining annual leave entitlements or pay in lieu.  The Complainant did not receive notice or pay in lieu.

CA-00041510-003: The Complainant stated she was dismissed by phone call on 20 September without any notice or payment in lieu.

The Complainant Representative, Citizens Information stated Ms. O’Neill, the Claimant was employed by Milan Professional Limited t/a L’Ombre Hair & Beauty at their salon at Ashleaf Shopping Centre, Cromwellsfort Road, Crumlin, Dublin 12, the Respondent in this case since the 15 May 2018.

The Complainant was employed as a beauty consultant and worked 32 hours per week at a rate of €416 (gross) weekly.

The Complainant, Ms O’Neill said she had built up a loyal clientele within the salon and had a good relationship with all her colleagues, she was extremely happy in her employment and was therefore shocked and dismayed at the treatment of the Respondent company in relation to the manner of her dismissal.

The Claimant alleges that she was unfairly dismissed from her employment.

The Facts

The Complainant representative stated the following are the sequence of events which resulted in the Claimant being suspended and consequently unfairly dismissed from her employment: -

On the 10 of September 2020 the Claimant started work at 9.30am.

The Complainant, Ms O’Neill’s first client was booked in for a manicure and a facial which would take 1.5 hrs. 

A co-worker asked if Ms O’Neill could fit in an additional client, she was dealing with, for an eyebrow tint but the Claimant explained that would not be possible due to the client she had booked in.

After explaining to her co-worker that she would not be able to do the tint the manager double booked the co-workers client in to be done regardless of the client that the Claimant was dealing with.

The Claimant was conscious that having to deal with two clients at once would create a knock-on delay with other clients as the day progressed and would also put her under pressure.

After completing her client and the double-booked client the Claimant approached the Duty manager at the reception desk to speak to her about the delay which would now arise with clients as the day progressed.

The Claimant advised she tried very hard to communicate with the Salon Manager but she spoke over her and cut her off completely dismissing the Claimants concerns.

The Claimant claims she felt belittled and humiliated to be spoken to in the manner in front of both staff and salon clients.  And she consequently became upset. In her frustration and upset she does not deny she used some foul language.

The Claimant could see that this matter was only escalating and in order to diffuse same she removed herself to the staff room.  She also felt that in removing herself from the situation she could calm herself as she was extremely upset. 

The Salon Manager, followed her immediately to the staff room, where the Claimant was still crying and trying to compose herself.

Without giving the Claimant anytime to collect herself or even stop crying she was ordered to attend to her next client by the Salon Manager.

The Claimant did as she was instructed and went to deal with her next client. 

The claimant advised that she broke down crying again in front of the client and had to excuse herself.

The claimant, Ms O’Neill advised that she was distraught, humiliated and anxious to have to continue working after such an incident and for it to be witnessed in front of co-workers and clients. 

Suspension

After working for the rest of the day the Claimant was called into the office by the area manager and Duty Manager.

It is submitted that the Claimant was not offered any warning of this meeting or invited to bring anybody to accompany her. 

The Salon Manager was given the opportunity to give her side of the story but the Claimant submits that when she tried to explain what happened and how she was treated she was dismissed by the Area Manager, and told that a decision had already been made by Mohamed Alkurd, the owner of the Respondent company, and that he had instructed that the Claimant be suspended from employment. 

The Claimant alone was suspended and Mr. Mohamed Alkurd, Managing Director was not in attendance at this meeting. 

At no point was the Claimant given the opportunity to tell her side of the story and even if an opportunity had arisen, the decision to suspend the Claimant without pay was already made prior to the area manager coming to the salon. 

It is submitted that at no stage were minutes of this informal meeting taken, the Claimant was not given anything in writing to set out the reason for the suspension or indeed how it would affect her financially or whether it would be logged on her employee record, no offer or information in relation to the right to appeal the suspension was offered or advised to the Claimant. 

The complainant representative stated at this juncture she wished to refer to the Code of Practice on Grievance and Disciplinary Procedures as laid down by the Workplace Relations Commission to provide guidance in the best practice of dealing with grievance and disciplinary procedures within the workplace.   It is paramount in all grievance and disciplinary procedures that the principles of natural justice and fair procedure be followed and indeed respected thus to ensure a fair and transparent decision can be arrived at.

“6. The procedures for dealing with such issues reflecting the varying circumstances of enterprises/organisations, must comply with the general principles of natural justice and fair procedures which include:

That employee grievances are fairly examined and processed

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

That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors, circumstances.”

Dismissal

The Complainant’s representative stated on Monday the 14 September 2020 the Claimant received a text message from Salon Manager advising that a staff member had tested positive for COVID-19 and that she must restrict her movements until the 25 September 2020.

No other information was included in this text in relation to her employment, pay or indeed her wellbeing after the suspension.

At 5.01pm on Friday 18 September the Claimant received a phone call from the Area manager. 

The Area Manager made an allegation that on 3 September 2020 the Claimant had performed treatments of for two members of staff and for which the staff members had not paid. 

It is submitted that the Claimant’s employment was terminated during this phone call.

It is submitted that as with the suspension no written communications was sent to the Claimant and she was not offered any appeal mechanism to discuss or mitigate the allegation.

The Claimant has stated that all staff members had been advised of the procedures should treatments be performed on co-workers.  The Claimant has also advised that the two staff members in question have never been disciplined in relation to this allegation.

Non- Engagement of Respondent

The Complainant representative stated on the 8 October 2020 the Claimant approached the Citizens Information Service to seek advice in this matter and by letter dated the 8 October, 2020 a letter was sent to the Respondent, Mr Mohamed Alkurd, requesting the grounds on which the dismissal took place. 

A Data Access request under Article 15 of GDPR was made at this time. 

This letter was sent by registered post and a request was made for the reply to be sent to both the Claimant and her representative.

On the 22 October 2020 an email was sent to Mr. Mohamed Alkurd referring to the letter sent by Citizens Information on the 8 October, 2020 which stated the following: -

“To date I have not received a response to same and would be very grateful if you could address the issues raised and, if possible, a dialogue could be instigated to remedy the grievances raised by Ms. O’Neill.

Should no reply be forthcoming I will proceed to escalate the matter to the Workplace Relations Commission”

On the 23 October 2020 a letter dated the 19 October 2020 was received by the Citizens Information Service stating that the Claimant had been issued a letter on the 18 September 2020 “informing her our decision in regards to her employment and her rights”.

The Claimant denies any correspondence were received by her in relation to the letter dated the 18 September 2020.

On the 28 October an email setting out the timeline of events and correspondence was sent to Mr. Mohamed Alkurd.  This email also stated that the Claimant had never received any correspondence.

In his reply to said email dated the 29 October 2020 Mr. Mohamed Alkurd advised that the termination letter of the 18 September 2020 was sent by standard post and he would “investigate the matter further”.

It is submitted that the Respondent had no regard or will to explore this matter, to engage with the Claimant or abide by the legislation governing the dismissal of a Claimant.

Letter of Termination

The Claimant representative addressed the letter of termination which had a date of the 18 September 2020.  They stated that this letter was never received by the Claimant personally and was issued to her by the Citizens Information Service on the 23 October 2020.  I wish to refer to the Section 14 (4) of the Unfair Dismissal Act: -

14 (4) “Where an employee is dismissed, the employer shall, if so requested, furnish to the employee within 14 days of the request, particulars in writing of the grounds for the dismissal, but in determining for the purposes of this Act whether the dismissal was unfair there may be taken into account any other grounds which are substantial grounds and which would have justified the dismissal.” 

It is submitted that the letter dated the 18 September 2020 accused the Claimant of a number of unsubstantiated wrongdoings which had never been brought to the Claimant attention previously.

By letter dated the 9 November 2020 was sent to Respondent addressing the accusations contained in the letter of termination.

The Claimant representative submitted that the Claimant is not aware of any recorded warnings contained on her employment file whilst working under the Respondent employment.

The Claimant representative respectfully submit that should an employee be aggressive and unruly in their employment, as alleged by the Respondent, there is an onus under the Health and Safety Act for the employer to manage the environment to prevent such behaviour which would put the safety, health and welfare of others at risk.  I refer to Part 2, S. 8 of the Health and Safety Act, 2005: - 

“General duties of employer.

8.— (1) Every employer shall ensure, so far as is reasonably practicable, the safety, health and welfare at work of his or her employees.

(2) Without prejudice to the generality of subsection (1), the employer's duty extends, in particular, to the following:

(a) managing and conducting work activities in such a way as to ensure, so far as is reasonably practicable, the safety, health and welfare at work of his or her employees;

(b) managing and conducting work activities in such a way as to prevent, so far as is reasonably practicable, any improper conduct or behaviour likely to put the safety, health or welfare at work of his or her employees at risk;”

It is submitted that due to the failure to engage from the Respondent a complaint was notified to the Workplace Relations on the morning of the 11 December 2020.

The Complainant received an email from Gina Cannon on the afternoon of the 11 December 2020 with an accompanying letter which stated the following: -

“Further to your letter of the 28/10/2020 appealing against the decision to terminate your contract due to gross misconduct.  I request your attendance at an appeal hearing at 2pm on the 17 December……

“The grounds for the hearing your appeal are:

As the letter dated the 18 September 2020 from myself was never received by Ms. O’Neill.”

Claimant representative submitted that the Citizens Information Service replied on the 14 December 2020 advising the need to discuss the offer of an appeal hearing with the Claimant.

By email dated the 15 December 2020, after speaking to the Claimant in detail, a reply was sent to Gina Cannon, General Manager as follows: -

“I refer to your email of the 11 December and the letter enclosed.

There are several reasons Ms. Zita O’Neill is not confident in attending a meeting and I will briefly outline same as follows: -

The extraordinary lapse of time since her dismissal by phone call on the 18 September.

The lack of engagement from the company.

The disregard of fair procedure in the unfair dismissal.

The unproven vexatious allegations made by the company in relation to Ms. O’Neill’s good name and character.

To date no engagement has been forthcoming from the company and any correspondence made was instigated by the Citizens Information Service.

Due to the performance of the company to date in this matter she does not feel she will get a fair hearing.”

By email dated the 16 December 2020 Gina Cannon, General Manager acknowledged receipt of the email of the 15 December 2020.

Conclusion

The Complainant representative stated the Claimant in this matter was suspended without pay and then unfairly dismissed from her employment on a number of charges of which she was never given the opportunity to address or indeed reply to.  The Claimant denies the allegations made in the letter of the 18 September 2020 and the allegations made by phone call on the 18 September 2020.  The Claimant wishes to note that they are false accusations and were drafted to defend the Respondent’s culpability in dismissing her unfairly.

As well as the unfair dismissal claim the Claimant also submitted for the following matters to be adjudicated in this complaint: -

CA00041510- 002

The Claimant did not receive any payment for the 10 days of suspension.

CA00041510-003

The Claimant was dismissed without notice or payment in lieu of notice.

Introduction

The Respondent representative stated the Claimant was employed by the Respondent, Milan Professional Limited as a Beauty Therapist. The Claimant’s employment commenced on 21 May 2018. The Claimant’s employment ceased on 18 September 2020. The Respondent is a hair dressing salon and beautician.

The Respondent representative stated on 11 December 2020 the Claimant commenced the following claims:

Unfair Dismissal pursuant to s.8 Unfair Dismissals Act 1977;

Pay pursuant to s.6 Payment of Wages Act 1991;

Notice Pay pursuant to s.12 Minimum Notice & Terms of Employment Act 1973.

The Respondent denies the claims as alleged.

Facts

The Respondent representative stated the Claimant was employed by the Respondent as a beautician on 21 May 2018. The Claimant received her most recent statement of main terms on 25 July 2018.

The Claimant and the Respondent enjoyed a generally positive working relationship, however there were occasional lapses in the Claimant’s behaviour which required intervention.

The Respondent representative stated that on 10 September 2020, the Claimant engaged in violent behaviour towards her colleagues and manager, engaged in verbal bullying, neglected her duty, abused the company policies and procedures, refused to obey a reasonable management instruction and abused the trust placed in her as an employee.

A member of staff spoke with the Claimant’s Area manager.

The Area Manager then spoke with the Claimant. The Claimant sought to justify her behaviour by saying that the only way the Claimant’s line manager would listen to her is if the Claimant was aggressive and loud.

The Area Manager formed the view that in light of the gravity of the incidents and the lack of satisfactory explanation for the Claimant’s conduct, there was no alternative but to immediately take steps to remove the Claimant from the workplace.

The Claimant was suspended without pay.

On 18 September 2020, the Area Manager informed the Claimant that she was to receive a letter informing the Claimant that she was to be dismissed.

The Respondent posted the letter on 18 September 2020. The letter specified that the Claimant enjoys the right to appeal the decision.

The Respondent representative stated the Claimant denies receiving this letter.

On 8 October 2020 Ms Lorna Crowther of Dublin South Citizens Information Service wrote to the Respondent submitting a data access request on behalf of the Claimant.

The Respondent complied with the Data Access Request on 19 October 2020.

Per the email of Ms Crowther dated 28 October 2020, the documentation returned by the Respondent to Ms Lowther on 19 October 2020 was furnished to the Claimant on 28 October 2020.

Ms Crowther proposed the Claimant be afforded 10 working days to respond to the letter of 18 September 2020.

By email of 29 October 2020 the Respondent wrote to Ms Crowther agreeing that the Claimant could have 10 working days from 28 October 2020 to respond to the letter of 18 September 2020.

On 9 November 2020 the Claimant’s representative wrote to the Respondent asserting the Claimant’s position.

No further communication was received from the Claimant or Ms Crowther.

By email of 11 December 2020 Ms Cannon emailed Ms Crowther attaching an invitation for the Claimant to attend an appeal of the Claimant’s dismissal.

On 11 December 2020 the Claimant lodged these WRC claims.

On 14 December 2020 Ms Crowther replied to the Respondent stating that the Claimant would consider her position.

By email of 15 December 2020, Ms Crowther on behalf of the Claimant stated that the Claimant would not be appealing the decision to dismiss her.

Law

The Respondent representative stated the Claimant has brought the following claims:

Unfair Dismissal pursuant to s.8 Unfair Dismissals Act 1977;

Pay pursuant to s.6 Payment of Wages Act 1991;

Notice Pay pursuant to s.12 Minimum Notice & Terms of Employment Act 1973.

Unfair Dismissal

The fact of dismissal is not in dispute according to the Respondent.

S.6(4)(b) 1977 Act provides:

…the dismissal of an employee shall be deemed, for the purposes of the Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

                (b) conduct of the employee[.]

The Respondent representative stated the Claimant was dismissed because of egregious acts of misconduct in the workplace.

In Elia Erian Aziz v. Midland Health Board [1995] E.L.R. 48 it was held:

(3) While a disciplinary body exercising quasi-judicial functions is bound to adopt fair procedures, a bona fide defect in the procedures adopted is not necessarily fatal to the legality of the ultimate decision made.

(4)  Where a defect in the procedure adopted or in the conduct of the proceedings is alleged, the applicant in order to succeed must establish that the complaint is well founded and that the defect complained of raises a reasonable possibility that an injustice may have been done.

(5) Accordingly, where there is no reasonable possibility that an injustice may have been done to the person under investigation as a result of the defect complained of, the decision is lawful and has the same effect as it would have had if no such defect had been found.

In Loftus and Healy v. An Bord Telecom (Unrep. H.C. 13 February 1987) it was held that the it was not simply a question of whether or not the employees were deprived of a fair procedure but rather “whether the denial to them of such procedures is such that the defendant must be deemed to have failed to establish … [the basis of its dismissal] as the whole or main reason for justifying their dismissal.”

In Pacelli -v- Irish Distillers (UD 57I / 2001) the Tribunal stated that “…in determining this appeal we must look at the substance of the complaint and beyond mere defects of form.”

Lavery J. in  O'Mahony v. Arklow UDC  [1965] I.R. 710 at p. 735, held that the Court should not, and in the respectful opinion of this Tribunal, the Tribunal should not:

…parse and construe rules of procedure in a narrow and unreal way, looking for some flaw in procedure to invalidate a transaction where the requirements of justice and the substance of procedure have been observed.

In Looney & Co. Ltd. v Looney UD843/1984, (taken from Mary Redmond, Dismissal Law in Ireland) where the EAT said that it is their responsibility to:

consider against the facts what a reasonable employer in his position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s actions and decision are to be judged.

In Barry v Precision Software Ltd. (UD 624/2005) [2006] 10 JIEC 1801, the Tribunal said:

[I]n determining whether the dismissal was unfair or not, section 6(6) of the Unfair Dismissal Act 1977 provides that it will be for the employer to ensure that there were substantial grounds justifying the dismissal… It is not for the Tribunal to intrude into the Respondent's managerial decisions. The Tribunal has to look at what a reasonable employer would do in the circumstances. Neither is it for the Tribunal to consider what sanction it would impose. The Tribunal's function is to decide whether the employer's reaction and sanction came within the range of responses, which a reasonable employer might make.

In Allied Irish Banks Plc v Brian Purcell [2012] 23 E.L.R. 189. Linnane J. reinforced the above stating:

…it is not for the EAT or this court to ask whether it would dismiss in the circumstances or substitute its view for the employer's view but to ask was it reasonably open to the respondent to make the decision it made rather than necessarily the one the EAT or the court would have taken.

The Respondent representative stated accordingly, while the procedures in this case were defective, that does not in and of itself render the dismissal unfair.

Furthermore, the Claimant alleges a delay in communicating to her in writing her right to appeal. The Respondent sought to accommodate that issue, taking into account the pandemic. The Claimant engaged in further lengthy delay and ultimately cites that delay for which she bares significant responsibility as a justification for refusing to utilise the appeal offered to her.

The Respondent representative stated the Claimant’s failure to utilise the appeals procedure is fatal to the claim of Unfair Dismissal.

In Melinda Pungor v. MBCC Foods (Ireland) Ltd UD/548/2015 it was held that the Claimant’s failure to appeal her dismissal was fatal to her claim for unfair dismissal. The Employment Appeals Tribunal stated:

The appellant has an obligation to exhaust the internal disciplinary process prior to seeking to enforce her rights externally. She has not satisfied her obligation and did not adduce any evidence that might justify her decision not to exhaust the internal process.

In Aryzta Bakeries v. Vilnis Cacs UD/17/106 it was held:

…there is an obligation on the Claimant to exhaust available internal procedures and that the Claimant failed to do so.

Pay

The Respondent representative stated the Claimant’s claim for pay will be determined by the factual and legal determinations made in respect of the Claimant’s claim for Unfair Dismissal

Notice Pay

The Respondent representative stated the Claimant’s claim for notice pay will be determined by the factual and legal determinations made in respect of the Claimant’s claim for Unfair Dismissal.

Losses

The Respondent ceased operations and all employees were laid off in March 2020.

The Respondent recommenced operation in September 2020.

The Respondent again ceased operations on 22 October 2020.

The Respondent reopened on 1 December 2020.

The Respondent again ceased operations on 24 December 2020.

The Respondent re-opened on 10 May 2021 and remains open today.

According to the Respondent, the Claimant is only entitled to compensatory pay insofar as the Claimant would have been working for the Respondent. This limits the Claimant’s entitlements to a period of circa 10 weeks up to 10 May 2021 they stated.

Further, it is incumbent on the Claimant to seek to mitigate her losses.

On 30 July 2021 Ms Lisa Conroy on behalf of the Respondent wrote to the Claimant’s representative seeking a schedule of losses.

The Respondent representative stated it is for the Claimant to establish that she made diligent efforts to minimise her losses.

The Respondent representative stated the Claimant was dismissed for the reasons set out in the letter of Dismissal dated 18 September 2020.

Regardless of when the Claimant received the letter, the Claimant had a continuing obligation to utilise all available domestic remedies prior to lodging the within claim.

The Claimant failed to exhaust those remedies.  The Claimant’s claims should be dismissed they stated.

Respondent/Company Evidence

CA-00041510-001: Section 8 of the Unfair Dismissals Acts, 1977.

The Respondent General Manager, Gina Cannon confirmed that the Salon Manager was her direct manager and she called her and asked her to come to the salon as Zita was becoming aggressive and refused to work with her client.  The Salon Manager came up to the Salon and by then Zita was working with her client so she rang the Area Manager.  They agreed the best thing to do was to commence a disciplinary with Zita as it wasn’t the first time this happened and the Salon Manager felt intimidated going forward.  

The disciplinary hearing was conducted by the Area Manager at the time and the Salon Manager, was also present at this meeting. Zita O’Neill the Complainant also attended.

Both the Area Manager and the Salon Manager have left the company since so could not attend the meeting.

On 18 September the Area Manager was told on the phone that disciplinary outcome would be given to Zita via post.

The General Manager, Gina Cannon said she posted this outcome letter to her herself.  She took Zita’s address from the HR file.  She said she wrote the outcome letter herself.

Ms Cannon was not present at the disciplinary meeting but she confirmed she wrote the letter to confirm her termination.

Citizen’s Information, the Complainant’s representative wrote to Milan Professional Limited requesting the rationale for her termination and stated they had concerns with her dismissal which highlighted she didn’t receive her dismissal letter.

The Respondent, Milan Professional Limited acknowledged this and resent the dismissal letter. 

The Respondent stated they have the staff handbook on the premises.

Ms Zita O’Neill, Complainant did not appeal the decision.  Citizen’s Information confirmed due to the time lapse and unfair process to date she didn’t feel it was worth engaging in the process.

The witness, Ms Cannon was unsure when they were open/closed due to Covid in 2020.

CA-00041510-002: Section 6 of the Payment of Wages Act, 1991

In relation to suspension, Complainant’s Area Manager made that decision and she was not to be paid during that time she was suspended.

CA-00041510-003: Section 12 of the Minimum Notice and Terms of Employment Act 1973

Regarding the notice of termination, she did not receive any notice and was terminated immediately.

Evidence from Respondent:

CA-00041510-001: Section 8 of the Unfair Dismissals Acts, 1977.

Under cross examination by representative, Citizen’s Information, Ms Cannon, General Manager said she didn’t witness any violent behaviour on 10 September herself.

Also, at the meeting that evening Ms Cannon, General Manager was not present and understood she was suspended.  Ms Cannon confirmed she discussed the matter with the Area manager directly after the disciplinary meeting the outcome of the meeting.

On Page 43 of their handbook Ms Cannon, General Manager confirmed in Paragraph 4 the handbook refers to an investigation meeting occurring before a disciplinary meeting. She confirmed the investigation meeting didn’t occur they went straight to the disciplinary as she understood it was gross misconduct.

In a letter dated 18 September Ms Cannon, General Manager confirmed she wrote the letter and she said herself and the Area manager drafted the letter.

Ms Cannon, General Manager said that the Salon Manager reported the behaviour which resulted in the letter.

Ms Zita O’Neill, Complainant reported into the Salon manager on a daily basis. Ms O’Neill said she had no evidence presented reference bullying but had a letter from the Salon Manager but did not present this in evidence. Regarding staff treatment they get 20% discount.  Ms Cannon confirmed at the time of termination Zita O’Neill had no formal warnings on her HR file.  She understood that there were informal warnings not documented.

The Respondent, Mr Alkurd gave evidence under affirmation on behalf of the company.  He confirmed the Salon was closed from 22 October to 1 December 2020.  He stated he was not involved in the disciplinary hearing or the decision to dismiss.  He wasn’t involved other than being available to hear the appeal.

Under cross examination by representative, Citizen’s Information he said he wasn’t involved in the suspension and was told about it after the decision was taken.  He said he was not involved in the decision to dismiss and heard about it a few days later.

In the concluding statement Ms Anna Butler, Penninsula the representative for the Respondent said there was some procedural issues with the disciplinary process but they were a small organisation and heard disciplinary hearing due to actions of 10 September there were incidents of gross misconduct impacting staff safety and customer issues.  They said it would have been a fair process had she engaged in the appeal process; which she did not but she had legal advice from Citizen’s Information.

Complainant Evidence

Citizen Information representative for the Complainant asked Ms O’Neill to confirm when she started and she said September 2020.

Ms O’Neill, the Complainant confirmed on 10 September the incident that occurred was due to a disagreement with the Salon Manager, about the fact she had double booked her. The Complainant said what she was asking was impossible and she should have conferred with her first.

The Complainant, Ms O’Neill stated the Salon Manager kept talking over her and she raised her voice to be heard and then she went to the staff room as she was crying. The Salon Manager said to her you need to get back to work.  Ms O’Neill confirmed another staff member supported her.  She stated she was upset when dealing with her customer and as a result her appointments went array as a result.

The Complainant, Ms O’Neill was unaware the Area Manager was coming in and at the end of the day she was asked to speak to her in the office at 5.40 pm approximately on the same day.

She assured Ms O’Neill it was just the two of them to attend.  When Ms O’Neill went into the room the Salon Manager was also present.  Ms O’Neill stated that the Area Manager asked both herself and Salon Manager for both their points of view but said Mohamed Alkurd, Owner had decided she was being suspended.

The Complainant, Ms O’Neill confirmed that the next time she heard from the Respondent, Milan Professional Limited was on 18 September that the Area Manager called her to say Mr Mohamed Alkurd decided she was being dismissed due to the incident of 10 September and that she did treatments for two staff members.  Ms O’Neill stated that was not discussed at the meeting on 10 September.  She stated she did not benefit from colleagues’ treatments and thought they had paid.  Ms O’Neill stated she had never received a verbal warning before.

With reference to the appeal, Ms O’Neill, Complainant did not receive the letter of 18 September with dismissal reasons until after Citizen’s Information, Complainant representative emailed the Respondent on her behalf and they sent it to her then at the end of October.  Ms O’Neill felt there was no point appealing at this stage.

Under cross examination by the Respondent representative, Ms Anna Butler (Penninsula) asked the Complainant, Ms O’Neill did she refuse to leave the staff room on the day of the incident she said that didn’t occur. She said the only staff member intervention by Margaret was to prevent her leaving to make sure she was OK.

The Complainant stated that no member intervened between herself and the Salon Manager and this wasn’t raised the meeting.

The Complainant stated she received no informal warnings during employment.

The Complaining stated she contacted Citizen’s Information on 8 October and they sent out a letter to the Respondent that day.

The Complainant, Ms O’Neill, stated on the call she asked the Area Manager for her contract and disciplinary procedures on call of 18 September but she never received these.  Ms O’Neill contacted the Respondent on 8 October to say she hadn’t got the dismissal reasons in the letter.  Ms O’Neill confirmed her postal address was correct but she never received her dismissal letter until Citizen’s Information were involved.

The Complainant worked with the company for 3 years and was very upset reference the incident.  She said she recommenced work in August of 2021 again and is working since then.  She was unemployed from September 2020.

On 10 December offer of appeal, she said was too late and too much time had lapsed and Xmas was bad timing to attend with her.  She thought she wouldn’t get fair hearing.  Citizen’s Information replied on 15 December reference this.

In the concluding statement Citizen’s Information representative for the Complainant stated the Complainant, Ms O’Neill had excellent work record and the allegations in the dismissal letter were not put to her and she was summarily dismissed and she did not appeal as the owner was already involved in the process thus not giving her fair process.

Section 6(1) of the Unfair Dismissals Act 1977 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 in this case. Section 6(4)(a) of the 1977 Act provides that;

“…the dismissal of an employee shall be deemed, for the purposes of this Act not to be an unfair dismissal if it results wholly or mainly from …the capability, competence of qualifications of the employee for performing work of the kind he was employed by the employer to do.”

A number of judgements were considered by the Adjudicator in arriving at my decision. Mainly, the Looney v Looney, UD83/1984 in which the Eat referred to its role as follows:

“it is not for the Tribunal to seek to establish the guilt or innocence of the claimant, nor is it for the Tribunal to indicate or consider whether we, in the employer’s position, would have acted as he did in his investigation, or concluded as he did or decided as he did, as to do so would substitute our mind and decision for that of the employer.  Our responsibility is to consider against the facts what a reasonable employer in the same position and circumstances at the time would have done and decided and to set this up as a standard against which the employer’s actions and decision be judged.”

The Labour Court decision of Bord Gais Eireann -v- A Worker AD1377 aptly sets out my remit in relation to disputes regarding internal investigations (and also extends to disciplinary processes brought under Section 13 of the Industrial Relations Act 1969) as follows:

“It is not the function of the Court to form a view on the merits of complaints giving rise to those investigations nor can it substitute its views for those of the investigators appointed in either case. Rather, the role of the Court is to establish if the procedures used by the Company conformed to the generally accepted standard of fairness and objectivity that would normally be used in cases such as these.”

Therefore, my role is not to substitute my views for those involved in dealing with this matter but to establish if the procedures adopted by the Respondent conformed to the generally accepted standard of fairness, reasonability and objectivity that would normally be used in such cases considering the bar that constitutes gross misconduct and dismissal is a high one.

Bunyan v United Dominions Trust (1982) ILRM 404 states “the fairness or unfairness of a dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circumstances in that line of business, would have behaved”.

It is also relevant to consider is whether the decision to dismiss is proportionate to the gravity of the complaint and indeed as Flood J observed in Frizelle V New Ross Credit Union (1997) IEHC 137 “the decision must also be proportionate to the gravity and effect of dismissal on the employee”.

In Pacelli v Irish Distillers Ltd (2004) ELR25 the EAT stated that any investigation should have regard to all the facts, issues and circumstances.

The EAT also pointed out in Gearon v Dunnes Stores Ltd, UD367/1988 that the Complainant in that case had an entitlement to have her “submissions listened to and evaluated”.

Finally, in dealing with the issue of “Procedural v Substantive Justice” I note that “Procedural defects will not make a dismissal automatically unfair as an employer may be able to justify a procedural omission if it meets the onus of proving that, despite the omission, it acted reasonably in the circumstances in deciding to dismiss the employee. I will consider this also.

All aspects of the disciplinary investigation and disciplinary process were conducted with no regard for the SI 146 of 2000. The Complainant was not given the opportunity to state her case. The Complainant was not afforded the right to representation at all meetings under the disciplinary procedure, including at investigation stage. No evidence from the Complainant was considered, particularly the Complainant’s right to be heard and put forward her case before any decision was made or action taken.  Ms Gina Cannon, General Manager was not present at the disciplinary meeting but she confirmed she wrote the letter to confirm her termination.

In light of all of the above, the dismissal of the Complainant is not procedurally fair in many respects. I find that the process used during the disciplinary process was not fair and not in line with the rules of natural justice.

I have considered Section 6(4) of the Unfair Dismissals legislation which states as follows

4) Without 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 it results wholly or mainly from one or more of the following:

(a)the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do.

In line with the legislation failure to reach the required standard of performance is a reasonable reason for an employee’s termination of employment once fair procedures and process is afforded to the employee in accordance SI 146 of 2000. I find that the Respondent did not act within “the bands of reasonableness” in this case and the claim for unfair dismissal is well founded based on the evidence presented and is not in line with what a reasonable employer in the same position and circumstances would have done.

The bond of trust has been broken between the parties and I find that the Respondent did not act within “the bands of reasonableness” in this case and the claim for unfair dismissal is well founded based on the above.

All three claims are linked to the Unfair Dismissal Case.

I find the Complainant, Ms Zita O’Neill’s Dismissal to be unfair as no rules of natural justice occurred and the Complainant was afforded no opportunity put forward her case, understand all the allegations or have representation present nor was there any separation of process.  I therefore find her claim of Unfair Dismissal to succeed.

The Company confirm Ms O’Neill’s suspension from 10–18 September was unpaid and they confirmed she was not paid notice as they deemed her dismissal to be gross misconduct.

The Complainant, Ms Zita O’Neill was unemployed for 11 months after this time.

CA-00041510-001: 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.

The claim is well founded based on the evidence provided. I award the Complainant 11 months’ salary in compensation equivalent to €10,891 taking into account her loss and all the evidence presented related to this claim. 

CA-00041510-002: Section 6 of the Payment of Wages Act, 1991 requires that I make a decision.

The claim is well founded based on the evidence provided. Ms Zita O’Neill did not receive pay for her suspension and this claim succeeds and I award her 2 weeks wages accordingly totalling €907.63.

CA-00041510-003: Section 12 of the Minimum Notice and Terms of Employment Act 1973 requires that I make a decision.

The claim is well founded based on the evidence provided. Ms Zita O’Neill received no notice of her dismissal and based on her service and the fact she should have received same this claim succeeds and I award her 2 weeks wages in compensation accordingly totalling €907.63.