Complainant

Respondent

Parties

Inese  Upeniece

Lorraine's Nail & Beauty Clinic

Representatives

  Self

 Ms Lorraine Cooney

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-00049749-001

19/04/2022

The complainant was employed as a Nail Technician with the respondent from 07/02/2019 until 23/04/2022.  She was paid €199.50 gross per 19-hour week.  The complainant is seeking compensation for what she contends was an unfair dismissal on 13/04/2022.  The respondent submits that there was no dismissal, and that the complainant submitted her resignation on 13/04/2022.

The complainant submitted that she was employed as a nail technician with the respondent from 07/02/2019 until 13/04/2022.  She submitted a letter of resignation on 12/04/2022 and was then told by the respondent the following day that she could not work out her notice period.  She believes that she was dismissed without notice as the respondent was angry that she was leaving. The complainant gave evidence that she was not properly paid for public holidays and that she was also due holiday pay.  In response to a question from the Adjudication Officer the complainant accepted that she did not submit any complaint to the WRC in relation to pay or public holiday entitlement.

The complainant confirmed that she had no documentation confirming a dismissal.  The complainant agreed with the Adjudicator that she submitted the letter of resignation which was submitted to the hearing by the respondent.

The respondent had no questions by way of cross examination for the complainant.

The respondent confirmed that she is the owner of the business.  She employed the complainant as a nail technician on a 19 hour per week basis and she was paid €199.50 gross €198.50 net) per week.  She worked on a Tuesday to Saturday basis and was never required to work on a public holiday.

The respondent refutes that she dismissed the complainant.  The complainant gave her a letter of resignation on 12/04/2022 and gave her two weeks’ notice.  The following day she told the complainant that she would not have to work her notice and confirmed to her that she would be paid in full.  The respondent provided the hearing with evidence of the payments up to the date of her resignation which was 23/04/2022.  The complainant was not due any holiday pay as she had already taken her holidays.

The respondent confirmed that the redacted bank statement was hers and that it showed the payments of €198.50 made to the complainant on 19/04/2022 and 25/04/2022.  The respondent also confirmed that the complainant was not required to work a “back week”.

In response to a question from the Adjudication Officer the respondent gave evidence that she told the complainant that she would not be required to work out her notice as she became aware that the complainant was opening her own business and had already taken contact details of her customers.  She was also aware that the complainant had told the respondents’ customers about the opening of her own business.

The complainant had no questions for the respondent by way of cross examination.

The facts of this case are not in dispute.  What is disputed is whether the complainant was dismissed by the respondent on 13/04/2022.  In that context it is important to review the complainant’s letter of 12/04/2022:

“Dear Lorraine,

I am writing to formally inform you of my resignation from my position as a nail technician at Lorraine’s Nail & Beauty Clinic.  My last day of employment will be April 23, 2022.  It has been a pleasure working with you and your team over the last three years.  I wish you and your staff all the best. 

Sincerely, Inese.”

In a case where dismissal is in dispute the burden of proof is on the complainant to demonstrate that there was a dismissal.  Was it reasonable for the complainant to consider that she was dismissed?

This case revolves around the fundamental issue of whether an actual dismissal, as defined by the Unfair Dismissals Acts 1977-2015 (The Act), took place.  A complaint of unfair dismissal which is referred under Section 8 of the Act requires a dismissal to have taken place as a requirement by virtue of Section 6 of the Act which provides:

“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.”

Section 1 of the Act defined “dismissal” in relation to an employee in the context of a complaint of unfair dismissal as:

“(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”.

This wording places the burden of proof of the fact of dismissal on the employee, where it is in dispute, and it is not until that has been established that the onus of proving that the dismissal was not unfair rests with an employer.

Having considered the evidence adduced at the hearing of this complaint and the evidence submitted by the respondent I find that the complainant was not dismissed by the respondent on 13/04/2022.  I find that the complainant submitted her letter of resignation on 12/04/2022 and while she was not required to work out her notice period, and she was paid up to the 23/04/2022.

I find that this complaint is not well founded, and that the complainant was not unfairly dismissed.

Unfair dismissal.  Burden of proof.