Complainant

Respondent

Parties

Tracey  O'Donnovan

Shirley Flynn Beau Ireland

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-00046539-001

05/10/2021

The hearing was conducted remotely in accordance with the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and Statutory Instrument 359/2020 which designates the Workplace Relations Commission as a body empowered to hold remote hearings.

The Complainant and Respondent swore an affirmation and gave evidence at the hearing There were several witnesses who appeared to give evidence to support the Complainant’s case; Chrissie Mullane, client, Tammie Cousins, Complainant’s current employer and former colleague and Shauna Woodland, former colleague. Tara Lynn Wallace, former tenant gave evidence on behalf of the Respondent. All witnesses swore an affirmation.

Both the Complainant and Respondent were given the opportunity to cross examine and re-examine, where necessary.

It was requested from the Complainant that she furnish text messages relating to her resignation post hearing and she duly did so on 8 September 2022. The Respondent was requested to furnish a copy of the signed contract of employment which was received on 10 September 2022. Other the specifically requested documents or responding submissions filed by the parties after the hearing, no further documents can be considered for the purposes of this decision.

The Complaint Form was received by the Workplace Relations Commission by the Complainant on 5 October 2021. It was her evidence that she resigned from her role as a Hair Stylist with the Respondent on 15 September 2021 via text message and worked a period of two weeks’ notice until on 25 September 2021.

It was agreed between the parties that her weekly wage was €350 and the Complainant worked 3 days per week.

It was the Complainant’s evidence that she commenced employment as a Hair Stylist with the Respondent in October 2017. It was agreed by all she was an excellent hairdresser. She described having a positive working relationship with the Respondent and her colleagues until “something changed” after the business reopened after the Covid lockdowns. She felt her relationship with the Respondent while previously fair and open, became fraught with tension and lack of interest in the business. It was the Complainant’s evidence that the Respondent had openly discussed the advice her Accountant gave her to close the salon and focus on Botox treatments as it made more financial sense. The Complainant gave evidence that she worked hard to keep the business going and “make money” for the Respondent, working through her lunch breaks to fit in clients. She felt that despite this the Respondent was happy to cancel or reschedule clients in favour of the Respondent herself having her hair done on what were prime Saturday appointments. It was her evidence that she was happy to do the Respondent’s hair but at less busy times. When the Complainant raised this with the Respondent, it caused further tension.

The Complainant highlighted three main issues with her employment:

1.       The Respondent’s response the resharing of a customer’s picture on the Beau Ireland Facebook page by the Complainant and her attempt to discuss it the next morning with the Respondent.

2.       The issue raised by the Complainant with the Respondent on numerous occasions about cancelling or rescheduling client’s appointments in favour of a prime appointment time for the Respondent’s own blow dry. Text messages to support this allegation.

3.       The behaviour of the Respondent’s partner, James O’ Sullivan towards the Complainant including a pushing incident in the salon.

Upon cross examination by the Respondent the posting of a photo on social media was debated, and the Complainant was asked why she was “saying those things about Jimmy”. The Respondent asked why the Complainant did not follow the instruction to which the Complainant replied that it was the Respondent who deleted it as she was on the way to a funeral that evening. No further questions were put to the Complainant.

Upon inquiry, the Complainant gave evidence that she did not have a contract of employment or employee handbook nor was she given or offered a Grievance Procedure at any stage by the Respondent. She stated she tried to speak to the Respondent on 16 September 2022 about her issues in the workplace but felt the Respondent wanted her to leave and she constantly felt provoked by the Respondent in recent time.  She continued that the Respondent did not ever ask for to reconsider her decision to leave. The Complainant coming back to the question re whether she followed the Grievance Procedure, asked “what’s a grievance procedure?” and confirmed upon explanation that she was never given such a procedure or raised a grievance.  

The Complainant confirmed she worked her two weeks’ notice because “I thought I had to work but she was rarely there” during that period. The Complainant described her last day when the only contact she had with the Respondent was when she handed her an envelope with her wages and walked her to the door noting there was no “thank you for all your hard work, nothing”.

Ms Chrissie Mullane gave evidence that she witnessed the Respondent’s demand that the Complainant change a client’s booking in favour of an appointment for Respondent herself. This incident was witnessed by Ms Mullane on 5 September 2021 and at the time commented to the complainant how unprofessional it was. Ms Mullane said “she was surprised at her” about the Respondent. The Respondent choose not to cross examine Ms Mullane.

Ms Shauna Woodlands a trainee with the Respondent’s salon who worked directly with the Complainant and Respondent. Ms Woodland gave evidence of the following morning after the Complainant was told to take down the picture from the Beau Ireland Facebook page by the Respondent and her partner, Mr O’Sullivan. It was Woodland’s evidence that when the Complainant raised the issue with the Respondent she responded, “I had enough bitching from Jimmy all night.” It was Ms Woodland’s evidence that the Complainant very upset at the Respondent’s response and replied that “she did not work for Jimmy”. Further evidence was given as to the presence of Mr O’Sullivan in the salon noting that it created an unease atmosphere in the salon to have “a man wandering around the salon” and “stopping and staring”, “judging everything” and complained that he would “sit in the staff room”. Ms Woodland noted she witnessed an incident where Mr O’Sullivan pushed off the Complainant as she came in the door. The Respondent cross examined Ms Woodland on the pushing incident and asked if she could clarify what she meant by Mr O’Sullivan’s presence in the salon. 

Ms Tammie Cousins, former colleague of the Complainant in the Respondent’s salon and current employer, gave evidence that she offered the Complainant a position in her salon two weeks after she left the Respondent on 4 October 2021 with the 21 October 2021 being her commencement date. Ms Cousins confirmed in evidence that she pays the Complainant €300 per week. It was Ms Cousins’ evidence that she purchased items from the Respondent’s salon at the end of October 2021. She stated she spoke with the Respondent on the phone on 25 October 2021 and told her she had intended to close the salon. Upon cross examination, Ms Cousins confirmed she did have the conversation with the Respondent and even remembers where she was sitting at the time of the call.

The Respondent confirmed the name and address of her business and was a registered sole trader. She gave evidence that she closed her business on 1 October 2021. The Respondent later confirmed the Complainant’s assertion that she continues to offer services at a dental surgery. Furthermore, she did not deny the Complainant’s evidence that the Respondent advertised her business under the same name but at a different location on Facebook.

In response the issues highlighted by the Complainant in her evidence, the Respondent confirmed that she did want her hair done and was “tired of getting my appointment cancelled” by the Complainant in favour of customers. The Respondent verified the text message presented by the Complainant of change to a client’s booking in favour of the Respondent’s appointment. She explained in her evidence that she wanted the Complainant to blow dry for hair on Saturday afternoons regardless of the other appointments. In relation to the meeting of 15 September 2021, she confirmed there was “tension building” and she could not understand why the Complainant kept refusing her “15 minute blow dry”. She said that she “went out on a Saturday night and wanted her hair done” and her preferred appointment was 11.30am on a Saturday but was repeatedly changed by the Complainant. The Respondent confirmed she accepted the resignation at that stage stating “I knew it would end up shutting down the business but it wasn’t going to work at that stage.”It was when the Complainant left that her business closed as she could not afford the rent without her.

It was the Respondent’s evidence that the only reason she closed her business was due to the Complainant’s resignation. The Respondent closed her business in October 2021 following notice to quit given to her landlord by letter dated 1 October 2021.  It is noted that the reasons for terminating the lease due to the loss of a key employee who was responsible for 40% of the business turnover for “a better job opportunity because of my financial restraints.” She continues that she “went against my accountants advice for the last 2 years for even though I was trading at a loss year on year.” The further notes the overheads of the business have become too much to allow her continue. The Respondent conclude that she is was “only able to give you 1 months’ notice as that’s the only affordability I have.”

The Respondent was cross examined as to why she did not seek to replace the Complainant when she left rather than close her business completely. The Respondent initially said she was in such shock at the resignation, then she said she knew she could not replace the Complainant and later clarified that the employment market at the time was difficult and was unlikely to find someone. The Respondent denied that she was happy to see the Complainant leave as it tied into her overall plan to close the business, relieve herself of the burden of the building lease and focus on her Botox business, as advised by her Accountant earlier in 2021.

Under cross examination, the Respondent then gave evidence that she ”knew the tension could not be resolved.” And she concluded that they “could no longer work together” when the Complainant refused or do her hair “Saturday after Saturday”.

Upon inquiry the Respondent confirmed she did not offer the Complainant a Grievance Procedure, nor did she consider invoking the Disciplinary Procedure if she felt there was a failure to carry out her instruction. The Respondent gave evidence that she “didn’t realise that I had to have” a Grievance Procedure. The Respondent then referred to a contract of employment for the first time, signed by the Complainant on 25 October 2018. A copy of same was later submitted to the WRC. Reading from the contract under the heading of Grievance and Disciplinary, it noted “See note 15” with note 15 being a link to the WRC website. Again, the Respondent confirmed she did not offer this to the Complainant stating, “I was not aware of it. I know I should have been.” When asked if the Respondent encouraged the Complainant if she would take time to consider her decision to leave, she replied “because I knew the tension could not be resolved”.  When asked if she took disciplinary action against the Complainant if there was an issue with her scheduling of appointments, she confirmed she did not.

The Respondent confirmed that Mr James O’Sullivan was neither employed or a director of the business. He was the Respondent’s partner who came into the salon.

Ms Wallace was a tenant of the Respondent and worked in the same salon as the Complainant. She gave evidence that she never heard the parties exchange cross words nor did she feel uncomfortable with Mr O’Sullivan’s presence in the salon.  Upon cross examination Ms Wallace accepted that she was located in another area of the premises and therefore was not in close proximity to all the events raised by  Complainant.

Issue for this Decision

Where there is no dispute as to the fact the Complainant resigned from her employment with the Respondent therefore, the burden of proof rests with the Complainant to establish that she was left with no option but to terminate her employment due to the conduct of the Respondent.

The Law

Section 1 of the Unfair Dismissals Acts 1977 to 2017 defines of constructive dismissal is:

“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”.

The case law in the area of constructive dismissal has developed two tests: the contract test and the reasonableness test.

Contract Test

Where the Respondent’s conduct amounts to a repudiatory breach of the contract of employment such that the Complainant is ‘entitled’ to resign Western Excavating (ECC) v Sharp [1978] IRLR 332, held that to require that the Respondent was “guilty of such conductwhich is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract”.

Reasonableness Test

The reasonableness test, which can be relied upon either as an alternative or in combination with the contract test, is where the Respondent conducts her affairs in relation to the Complainant so unreasonably that the Complainant cannot be expected to put up with it any longer. Described as the reasonableness test in Western Excavating (ECC) v Sharp [1978] IRLR 332

The Labour Court in Cedarglade Limited v Hilban UD/17/145 applying the reasonableness test held; “constructive dismissal cases, the Court must examine the conduct of the parties. In normal circumstances a complainant who seeks to invoke the reasonableness test in furtherance of such a claim must also act reasonably by providing the employer with an opportunity to address whatever grievance they may have. They must alert the employer to their situation in order to allow the employer an opportunity to rectify the problem before resigning. They must demonstrate that they have pursued their grievance through the procedures laid down in the contract of employment before taking the step to resign: Conway v Ulster Bank Limited UDA 474/1981.”

Internal Grievance Procedures

Delving into the reasonableness test further it has been well established that in order for a Complainant to succeed in a constructive dismissal claim, she must first exhaust all internal grievance procedures; Conway v Ulster Bank Limited UDA 474/1981 and Zabiello v Ashbrook Facility Management Ltd. UD1106/2008.

Applying the law to this particular case, it is necessary to examine the events around the Complainant’s resignation. The Complainant sent a text message to the Respondent on 15 September 2021 following another disagreement around the Respondent’s questioning of having her hair appointment cancelled in what she described as an “on going problem”. The Complainant sent a replying text stating she was “really not happy working for u anymore, there is always tension in there and its stressing me out.im going to b looking for another job because this isnt good for my health”. There was undisputed evidence of the parties that they met the next morning in the Respondent’s office where the Complainant formally gave her resignation. It is again not disputed that the Complainant set out, at this meeting before handing in her resignation, her issues as to the change in atmosphere in the salon, the Respondent’s disinterest in the business, the concerns the Complainant had for her job due to the Respondent’s considerations around closing the business due to financial constraints and the Complainant’s attempts to keep the business going, working through her lunch break and taking paying clients at prime appointment times instead of the Respondent. However, it was unclear from the evidence whether the Complainant raised her issues regarding Mr O’Sullivan at this meeting or not. It is accepted based on the collaborative evidence of Ms Woodland that the issue of the way he spoke to the Complainant was raised by her with the Respondent the day after the phone call about the social media post. There was no evidence presented that the Respondent made any effort whatsoever to address the Complainant’s concerns instead concluding on the day herself that matters could not be resolved.

It was accepted by both parties that there was no grievance procedure in place, except for a mere heading in an incomplete contract of employment. The Respondent openly admitted, in evidence, that she was not aware of the existence of a Grievance Procedure nor did the Respondent offer such an option to the Complainant. Interestingly, the Respondent accepted, as an employer, she ought to have known. The reasonable employer would have been expected to conduct themselves in an objective manner and address the concerns according to the procedures set out in S.I. No. 146/2000 - Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000.

Of note, in this case was further acknowledged by the Respondent in her own evidence that she had no interest seeking to address the concerns even in an informal manner. At a minimum, it is expected that a reasonable employer ought to listen to her employee, consider what is being said and respond to resolve the issues. Instead, the Respondent gave evidence that she knew “the tension could not be resolved” and concluded they “could no longer work together”. It is clear the Respondent made no effort whatsoever to resolve matters which falls significantly short of what is expected of a reasonably employer.

The two-week notice period in which the Complainant continued working is another unique feature of this case. Generally, this would indicate that a Complainant could continue to work with the employer. However, in the circumstance of this case the Respondent not only avoided the Complainant but failed to allow time to reconsider the resignation. Considering the background of this claim together with the Respondent’s financial considerations, I find that the Complainant’s resignation was convenient for the Respondent who had the already formed the intention of closing her business. It is uncredible that a business owner of 16 years who had what was described as having a good client base, an employee and rented space to other beauty professionals would make a snap decision prior to the Complainant leaving to close it rather than seek to employ a replacement hair stylish. This is further evidenced by the Respondent’s own letter to her landlords dated, 1 October 2021.

The burden of proof is on the Complainant in a claim for constructive dismissal and applying the reasonable test and in particular the considerations by the Labour Court in Cedarglade Limited v Hilban the difficult conduct of the Respondent is a key competent in this case. This follows the Adjudication Officer’s decision in A Solicitor v A Solicitor’s Firm, ADJ-00011116 where the conduct of the employer was considered “destructive of a relationship of mutual trust and confidence”.

 In conclusion, I prefer the evidence of the Complainant which was supported by documentary evidence and witnesses. The Respondent while very clear of some incidents did not have the same clarity or focus on her evidence of other key event.  Having heard the evidence of the parties, the Respondent demonstrated that she longer intended to be bound by the implied contract of employment. I further find that the Complainant did seek to raise her legitimate concerns with the Respondent on more than one occasion thereby giving her a reasonably opportunity to address them having regard for Section 1 of the Unfair Dismissal Acts. Consequently, I find the Complainant’s case is well founded.

I find the complaint well founded.

Redress

Section 7 (1) of the Unfair Dismissal Acts 1977

“7.—(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the rights commissioner, the Tribunal or the Circuit Court, as the case may be, considers appropriate having regard to all the circumstances:

(c) payment by the employer to the employee of such compensation (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) in respect of any financial loss incurred by him and attributable to the dismissal as is just and equitable having regard to all the circumstances.

(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) 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,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid, and

(d) the extent (if any) of the compliance or failure to comply by the employer or employee with any procedure of the kind referred to in section 14 (3) of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister.

(3) In this section—

“financial loss”, in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation;

“remuneration” includes allowances in the nature of pay and benefits in lieu of or in addition to pay.”

In assessing the level of compensation to be awarded I note that the Complainant was paid a weekly wage of approximately €350 by the Respondent at the time of her dismissal. She mitigated her loss by taking up new employment on 21 October 2021 and continue to earn €300 gross per week.

On the basis of the Complainant’s financial loss of two weeks wages together with eleven month difference of €50 per week , I am awarding her the sum of €3,100.

Unfair Dismissal=Constructive Dismissal – Grievance Procedure