Complainant

Respondent

Parties

Tracey  Ring

Student Facilities & Services (UCC) Designated Activity Company (DAC) T/A Unisalon

Representatives

Martin A. Harvey & Co. Solicitors

 Self-represented

Act

Complaint Reference No.

Date of Receipt

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

CA-00048543-001

09/02/2022

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

CA-00048543-002

09/02/2022

The Complainant worked as a hairdresser in the Respondent’s salon, based in the Student Centre in University College Cork (UCC) in a permanent part-time role.

The Complainant’s average weekly wage was €240.00 net.

Her gross and net rate of pay was the same, due to the level of her earnings.

The Respondent denies the claims.

In respect of CA-00048543-001, the Respondent submits that the Complainant was not unfairly dismissed, but rather that the business had collapsed due to Covid-19 and the consequent government-imposed restrictions.

In respect of CA-00048543-002, the Respondent submits that the Complainant was provided with more than the requisite minimum notice, and that no monies are outstanding.

The Complainant submits that she was unfairly dismissed by the Respondent. The Complainant further submits that she was not provided with notice or payment in lieu of notice.

The Complainant submits that she commenced employment with the Respondent in July 2018 and was employed as a hairdresser at the Respondent’s salon at the Student Centre, University College Cork.

The Covid-19 Pandemic commenced in March 2020, which resulted in the Claimant being placed on temporary layoff due to the related restrictions. The Claimant was placed on the Temporary Wage Subsidy Scheme (TWSS) by her employer.

The Complainant was informed by the Respondent in July 2020, by email, that the salon was going to re-open on a phased opening basis with a skeleton staff, as some restrictions were easing, and that she would not be required to return to work for the first phase. The Complainant was advised that she would remain on the Temporary Wage Subsidy Scheme (TWSS) and that a further update would be provided to her, as soon as one was available.

There was a meeting between the Complainant and the Respondent employer in September 2020, in which the employer outlined to the Complainant that no more than three customers and three members of staff could be accommodated on the premises, at any one time, due to the social distancing requirements/restrictions.

In the intervening period, the Complainant suffered a bereavement.

In September 2021, the Complainant realised that her payments under the Temporary Wage Subsidy Scheme ceased.  She had had no contact from the Respondent employer. The Complainant contacted the Respondent. At this juncture, she was advised that the Respondent had attempted to contact her by telephone and a letter dated July 20th, 2021, had been sent to her. The Complainant submits that she did not receive this letter.

The Complainant received a letter from the Respondent, dated September 24th, 2021, which stated that there was no longer a position available for a Junior Stylist (the role held by the Complainant).

The Complainant submits that the text of the letter dated July 20th, 2021, which the Respondent alleges was sent to the Complainant and which the Complainant submits was not received by her, was contained within this letter. The Complainant particularly highlighted the fact that a copy of the putative original letter was not appended to the letter of the September 24th, 2021.

The text of the letter allegedly sent on the July 20th, 2021, and which the Complainant submits she did not receive, informed the Complainant that her position was no longer tenable due to the restrictions imposed as a result of the Covid-19 Pandemic, and that she was being provided with six weeks’ notice. This was the first time the Complainant was advised of her dismissal.

The Complainant was later advised, when she enquired, that her termination date was September 3rd, 2021.

The Complainant submits that there were no warnings provided nor was a consultation process entered into in relation to the dismissal. The Complainant submits that no right of appeal was provided to the Complainant in relation to her dismissal. The Complainant denies receipt of the letter dated the July 20th, 2021.

The Complainant submits that she was dismissed without any adherence whatsoever to natural justice and fair procedures, that the Respondent simply terminated the Complainant’s employment on September 24th, 2021, retrospectively without notice and without any regard for her rights.

The Complainant submits that if a genuine restructuring existed, which is denied, then the Complainant should have been afforded natural justice and fair procedures in respect of same, which she was not. The Complainant submits that it is settled law and accepted best practice, in such circumstances, that the Complainant should have been notified of her role being at risk, a consultation process should have been entered in to, alternatives to redundancy should have been considered and a right of appeal should have been afforded. The Complainant further submits, in support of her case, that an entitlement to a redundancy payment was never mentioned.

The Complainant submits that it is clear from the within facts that neither substantial grounds justifying the dismissal existed nor were fair procedures implemented, and as such the dismissal was unfair and the Complainant is entitled to redress in line with Section 7 of the Unfair Dismissals Acts 1977-2015.

The Complainant cites the Labour Court case of Beechside Company Ltd t/a Park Hotel Kenmare and A Worker LCR211798 wherein the Labour Court stated: “The Court has consistently held the view that it is imperative that an employer in a dismissal case must not only show that there were substantial grounds justifying the dismissal but also that fair and proper procedures were followed before the dismissal takes place. This requirement of procedural fairness is rooted in the common law concept of natural justice.”

The Complainant submits that significant substantive and procedural issues have arisen with regard to the her dismissal, that the Complainant was dismissed without notice, without substantial reason and without any adherence whatsoever to fair procedures.

Mitigation of Loss – Unfair Dismissal

The Complainant submits that she has taken steps to mitigate her losses by looking for alternative employment and secured employment in a different sector from October 26th, 2021. The Complainant is seeking compensation of loss of earnings arising from being unfairly dismissed: The Complainant submits that her net loss of earnings is €240 x 8 weeks which totals €1,920 net.

Minimum Statutory Notice

The Complainant is also seeking compensation under the Minimum Notice and Terms of Employment Act 1973 on the basis that she was not provided with any notice or with any payment in lieu of notice in accordance with her statutory rights under the legislation and her contract of employment. The Complainant submits that the letter alleged to have been sent by the Respondent to the Complainant dated July 20th, 2021, providing 6 weeks’ notice, was never received by the Complainant. The Complainant is seeking payment in the sum of two weeks’ pay totalling €480 net.

The Complainant gave evidence on her own behalf:

The Complainant clarified that she was a junior hairstylist working for the Respondent business – that ‘she did colours’, that ‘the only thing [she] didn’t do was cutting.’ She said that in March 2020, she was placed on temporary lay-off.

She acknowledged that the Respondent had tried to contact her. She said that the Respondent had been in contact with her by ‘Facebook Messenger’ (Ms. Gráinne Thompson) and that she received emails from the Respondent. She confirmed that she did have a broken phone, at one stage.

The Complainant said that received an email requesting that she attend in person at a meeting on September 15th, 2020.

She said that on September 15th, 2020, she was advised, by the Respondent, that due to the restrictions being ongoing, things were somewhat in flux. She was advised as to ‘how things were panning out.’ The expectation was that the salon would be open ‘three (3) days in winter and two (2) days in summer.’

She was asked: ‘Were you notified that your role was at risk?’ The Complainant said that the Respondent said, ‘they’d keep me updated’ and that she was ‘grateful [she] was being paid.’

The Complainant stated that she agreed with Ms. Cooper’s evidence (the finance manager); She said (of the letter of July 20th, 2021): ‘I promise I didn’t get the letter.’ She added that she was ‘taken aback’ and ‘vomiting’ when it came to light that her job was gone. She said that when she rang the business and spoke to Ms. Paula Cooper, she said to her: ‘Paula, can you give me the gist of the letter?’, which Ms. Cooper did, over the phone.

The Complainant said that she thought it was ‘so unfair’, that she had ‘a permanent contract’, that she ‘never received the letter of July 20th’ and that ‘it should have been sent by registered post if they were to let you go.’

She said that between 12th July, 2021 and 20th July, 2021, ‘they rang my son.’

The Solicitor for the Complainant asked the Complainant whether, in terms of her conversation with Ms. Cooper, were there any next steps? ‘Or was it a fait accompli?’

Q: ‘Were there any alternatives?’

A: ‘No.’

Q: ‘To avoid your role being made redundant?’

A: ‘No.’

The Complainant disputed the Respondent’s assertion that she was a ‘salon assistant’ rather than a junior stylist, and further disputed the Respondent’s assertions in relation to the current position of the business, adding that the business was now open more widely than it had been previously – that it had been open two days per week over the summer but was now open four days per week. She also re-iterated that she did not receive the letter of July 20th, 2021, and that she thought how she had been treated was ‘very unfair.’

Mr. Terry Brennan, General Manager Student Facilities & Services (UCC) DAC presented the Respondent’s case.

In respect of the claim for unfair dismissal (CA-00048543-001), it is the Respondent’s position that the Complainant was not unfairly dismissed, but rather that the business had collapsed due to Covid-19 and the consequent government-imposed restrictions; the Respondent further submitted, in support of its case, that even at the time of the hearing (September 2022), the business had yet to recover, and that there are currently only two stylists working part-time in the salon, two days a week. The Respondent submitted that the Complainant was a valued employee and that were business to pick up, it would have no difficulty re-employing her.

In respect of the claim for statutory notice pay, the Respondent submits that the Respondent gave the Complainant more than requisite notice and that no monies are outstanding.

The sequence of events, as set out from the employer’s perspective was that:

·       Government-imposed Covid restrictions were imposed in March 2020, resulting in the salon being fully closed.

·       Restrictions were then eased somewhat, which allowed the salon to reopen on a phased basis, and by email, dated July 7th, 2020, the Complainant was informed by the Respondent that they did not require her to return, at this point. [They did not have a working phone number for the Complainant at this stage – she replied to them, providing them with a working phone number for her.] She was in receipt of TWSS and would continue to be in receipt of TWSS.

·       There was an in-person meeting on September 15th, 2020, with the Complainant, setting out the uncertainty in relation to the business. The government-imposed social distancing requirements limited both the number of staff and the number of customers which the salon could physically accommodate at any one time. The Complainant was not required to return at this time, and she continued to be in receipt of TWSS.

·       As the restrictions were eased further, and somewhat wider opening was allowed, it became apparent that the business had in fact collapsed. The Respondent asserts that it did not have the business required to support the people working for it, at that time

·       The Respondent stated that it informed the Complainant that she was being let go on July 20th, 2021 – by letter. The Respondent asserted that this was following multiple attempts to contact the Complainant by phone (clarified on cross-examination to be two (2) attempts, within the relevant time period).

The Respondent in its submission, and Mr. Brennan in his evidence used the words ‘laid off’, ‘let go’, and ‘terminated’ interchangeably.

Three witnesses appeared for the Respondent:

·       Mr. Terry Brennan - General Manager, Student Facilities & Services (UCC) DAC

·       Ms. Paula Cooper - Finance Manager, Student Facilities & Services (UCC) DAC

·       Ms. Gráinne Thompson - Events, Media & Communications Manager, Student Facilities & Services (UCC) DAC

Mr. Terry Brennan, General Manager Student Facilities & Services (UCC) DAC – Witness for the Respondent

The witness gave evidence, on behalf of the Respondent, that the turnover of the business collapsed from €76,000 to €20,000, in the relevant time period, due to Covid-19 and the resulting government restrictions. He stated that all the necessary Covid-19 restrictions were followed, as required, and that even when somewhat wider opening was allowed, the uptick in business which had been hoped for and anticipated, with students back on campus, did not transpire.  

He stated that by August 2021, it was apparent that the ‘business was never going to recover.’ and that they ‘had to lay [the Complainant] off.’ Mr. Brennan said that the business continued to struggle and can now only support two (2) senior stylists part-time, which represents only a fraction of the staff the business previously employed.

He stated that on September 15th, 2020, there was a meeting in-person, at which the Complainant was appraised of the business conditions and told that the Respondent ‘couldn’t guarantee her position due to the financial position.’

The Adjudication Officer, at the hearing, clarified with the Respondent that nothing had been put in writing, at that stage? The Respondent’s response was to state that the Complainant was ‘very difficult to contact’ and said that the Complainant had had an issue with ‘broken phones.’

The Complainant was in receipt of TWSS and then EWSS from March 2020, for a period of eighteen months ‘up until where we laid her off (03/09/202).’

He stated that on September 3rd, 2021, the Complainant was paid for the last time, including holiday pay, which amounted to €469.60.

He said that a letter was sent to the Complainant’s home address and that ‘she claimed she didn’t get the letter.’

He said that the Complainant contacted the salon, by phone, when she didn’t get paid.

He said that Ms. Paula Cooper informed the Complainant ‘that she had been laid off.’

He said that on September 24th, 2021, he wrote to the Complainant expressing surprise that she was unaware of her employment status.

The Adjudication Officer, at the hearing, clarified that the public policy underpinning TWSS was to maintain the employment relationship - to keep the employee on the payroll, as long as possible.

Mr. Brennan said that on July 20th, 2021, a letter was sent by ordinary post and that a second letter was subsequently sent, by registered post.

He stated that on October 24th, 2021, a Data Access Request was received from the Solicitor for the Complainant, and the Respondent complied with same.

On cross-examination:

Under cross-examination, Ms. Walsh, Solicitor for the Complainant, sought to clarify with Mr. Brennan, what, if any process was followed in respect of the termination of the Complainant’s employment; and what, if any, evidence, stems from July 2021, the date at which the Respondent asserts as the date it notified the Complainant of the termination of her employment.

Mr. Brennan said that in August 2021, the position of the business was ‘in dire straits’ and that they ‘had to lay [Ms. Ring] off.’

Mr. Brennan was asked what process, if any, was applied?

He said that the business had attempted to engage with the Complainant ‘numerous times’ in July 2021. It was put to him that he had ‘failed to particularise that.’ [This was clarified by a subsequent witness for the Respondent to be two occasions, within the relevant time-frame.]

Mr. Brennan said that the process was ‘following on from September 15th, 2020, where we didn’t guarantee her position.’ He said that ‘[the senior management team] had to act in the interests of the business’ and that ‘the business had gone from €76,000 a year to €20,000 a year.’

He said that the Respondent had attempted to contact the Complainant between July 12th, 2021, and July 20th, 2021, to set up a meeting with her. He was asked what the purpose of the meeting was going to be – whether it was to discuss the Complainant’s role was, in fact, redundant.

Mr. Brennan said that the meeting was to discuss the tenability of the Complainant’s employment. He said that July 20th, 2021, (when the Respondent says it sent the first letter, by ordinary post) was the first time ‘a conclusion had been reached.’ He said: ‘The decision wasn’t made until I wrote to her.’

He said that ‘we took the decision’ after ‘we had made any reasonable attempts to [contact the Complainant]’ emphasising ‘we had to act in the interests of the business.’

He clarified that no attempts to contact the Complainant had been made by Ms. Gráinne Thompson, via Facebook messenger between July 12th, 2021, and July 20th, 2021 (a means of communication previously used to contact the Complainant.)

It was put to the witness, under cross-examination, whether he was aware of an employer’s legal obligations, whether the company had a policy and if it was implemented. It was put to him that if a dismissal occurs, an employee is entitled to a right of appeal, and he was asked whether the Complainant received a right of appeal. Mr. Brennan disputed this. He said that the Complainant had been ‘laid off and not dismissed.’ He said that she had be ‘laid off due to economic circumstances.’ Mr. Brennan used the words ‘laid off’, ‘let go’, and ‘terminated’ interchangeably. He was asked whether he was of the view that the Complainant remained on ‘temporary lay off?’ He was asked whether he thought it was appropriate to terminate an employee’s employment by letter. It was put to him that there were no letters where the Complainant was asked to attend a meeting, rather there was just a letter dismissing her.

Ms. Paula Cooper, Finance Manager, Student Facilities & Services (UCC) DAC – Witness for the Respondent

Ms. Cooper gave evidence that: ‘On September 23rd, 2021, [the Complainant] rang reception, and was put through to me. I rang her straight back.’ ‘She was ringing to see what the story with her wages was?’ She said that the Complainant was surprised and said that she had not received the letter. She said that she confirmed that the address that she had for the Complainant was correct and also asked her for a phone number. She said that the Complainant asked her for the ‘gist of the content of the letter’, that she ’probably didn’t read it word for word.’ She said that the gist of the letter was that ‘campus was very quiet’ that ‘the company business has changed dramatically’ that ‘in July 2021, students coming back to campus wasn’t what we had hoped’, that ‘the Covid guidelines meant that in a small space (the salon) with the Covid restrictions, the position of salon assistant was no longer there.’ She said that the Complainant was given six weeks’ notice (as per the letter). She explained that the Complainant had been in receipt of TWSS then EWSS (both Covid related government supports to businesses).

The Adjudication Officer, at the hearing, enquired as to whether the mechanism of payment to the Complainant altered at any point.

Ms Cooper said: ‘No. The last time we paid her was September 3rd [2021], which would have been holidays.’

On cross-examination:

Ms Cooper was asked about her attempts to contact the Complainant. It was put to her that she had ‘made very few attempts to contact the Complainant’ and she was asked ‘was your role quite limited?’

Ms. Cooper said that the ‘Senior Management Team had a number of meetings in relation to our business going forward’, that they had hoped that September 2021, the students would be back on campus, but that by July 2021 it was apparent that what they had been hoping in terms of the business would not be the case.

Ms. Cooper was asked what steps were taken in relation to the Complainant’s rights, as an employee.

She said that ‘in September 2020, there was the initial meeting’, and then, ‘the three (3) of us sat down about it going forward.’

She said that she ‘had limited processes in the contacting of [the Complainant].’

Ms. Gráinne Thompson - Events, Media & Communications Manager, Student Facilities & Services (UCC) DAC - Witness for the Respondent

Ms Thompson said that she ‘made several attempts – 3 attempts to contact [the Complainant]’

She said that the Respondent had ‘the wrong mobile [phone number] for some time’, that the Complainant ‘got in contact – her phone had been broken.’

She said that the Respondent had been in touch with the Complainant in September 2020. Then, ‘when the salon was closed’, there was ‘no reason to contact her.’

Ms. Thompson said that she made ‘the first attempt to contact’ the Complainant ‘on 12th July, 2021’ by phone. She said that she spoke to the Complainant’s son (who now had that phone).  

She said that the reason she was contacting the Complainant was ‘to tell her the position of the company, which was basically telling her what we had said to her previously.’ (In September 2020)

She said that she ‘tried that same number on July 20th’ (2021). She said that she got a pre-recorded voicemail message saying: ‘this number cannot be answered.’

She said that she made no further attempts to contact the Complainant.

On cross-examination:

Ms. Thompson was asked: ‘Had the decision being made at that stage?’ (i.e., when Ms. Thompson was first attempting to contact the Complainant.)

She said: ‘No. but we were in discussions internally.’

Ms. Thompson said that she ‘phoned [the Complainant] on the 20th’ and then ‘made a decision to write to her.’ She said that the Respondent had ‘attempted to phone her twice’ then ‘wrote to her.’

Under cross-examination, Ms. Thompson confirmed that no further attempts had been made to contact the Complainant.

Ms Thompson was asked about the discussions which took place and whether they involved the Complainant. She confirmed that they did not – the discussions which took place were internal and involved the senior management team (SMT) only.

Ms. Thompson was asked when the decision was made that the Complainant’s role was being made redundant? She said that it was the date of the first letter – July 20th, 2021.

The burden of proof in relation to an unfair dismissal claim falls on the employer to demonstrate that the dismissal of the employee was fair, under the Unfair Dismissals Act 1977. The standard of proof is on the balance of probabilities.

The Complainant was a permanent employee with more than twelve (12) months’ service. The Respondent, it its evidence, described her as a ‘valued’ employee.

I find that the Respondent dismissed the Complainant summarily, and without notice, and without adhering to any of the standard, well-established practices or requirements, which it is obliged to implement in order to lawfully terminate an employee’s employment.

An employer does not have a free hand to act as it pleases. An employer is bound to act within the requirements of the law, irrespective of the circumstances the employer is navigating. It is not in dispute that there was a global pandemic. However, there is a well-trodden path in respect of dismissing an employee lawfully, by reason of redundancy. Specifically, it requires the employee to be put on formal notice that his/her role is at risk of redundancy. It requires a genuine consultation process being entered into, with the employee, by the employer. Often, an employer will implement a selection matrix (and a points system) to determine which roles in the organisation are to be made redundant, in a bid to be as fair to employees as possible, as redundancy is ‘impersonal’ – it is the role and not the person that is being made redundant. A lawful redundancy process requires the genuine consideration of suitable alternative employment within the organisation, including any suggestions the employee brings to the table. It requires the employee to be afforded a right of appeal.

There is no reality to the idea that the in-person meeting in September 2020 constituted the first stage of a redundancy process, in circumstances where, taking the Respondent’s case at its height, the Complainant was dismissed by letter dated July 20th, 2021, with no further intervening contact or consultation. Furthermore, throughout this period, the Respondent was in receipt of government supports in respect of the Complainant’s wages (TWSS and then EWSS), the public policy purpose of which was to maintain the employment relationship between employer and employee. It is the Complainant’s case that the first she learned of her dismissal was when she did not get paid, and she rang the Respondent on September 23rd, 2021, to query the fact she had received no money. She then received a letter dated September 24th, 2021, which purported to retrospectively dismiss her. I prefer the Complainant’s evidence over the Respondent’s, on the balance of probabilities.

There are simply no lawful circumstances in which the Respondent can treat an employee in the manner in which it treated the Complainant. It falls to me to consider whether the dismissal was both substantively and procedurally fair. I find that it was neither.

I am required to direct my mind to the reasonability of the conduct of the employer. I find that the employer’s conduct in this instance was entirely unreasonable and is unlawful.

I find that the Respondent unfairly dismissed the Complainant retrospectively, on 24th September, 2021.

I find that the Respondent dismissed the Complainant without notice.

In respect of CA-00048543-001, I direct the Respondent to pay the Complainant €1,920 within 42 days of the date of this decision.

In respect of CA-00048543-002, I direct the Respondent to pay the Complainant €480 within 42 days of the date of this decision.

Unfair Dismissal; Minimum Notice; Summary Dismissal; No Notice; No redundancy process; No fair procedures or natural justice;