Complainant

Respondent

Parties

Patricia  Griffin

Kings Salons Limited Hair At 74

Complainant

Respondent

Anonymised Parties

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Representatives

Sinead Curtis Kennedy Fitzgerald LLP Solicitors

Maria Dillon Horan & Son Solicitors

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-00052059-001

03/08/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00052059-002

03/08/2022

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

CA-00052059-003

03/08/2022

The Complainant alleges that she was Unfairly Dismissed from her Employment, was not paid her notice payment and was terminated due to her failure to sign a new contract of employment.

 The Complainant after taking the oath gave her evidence in relation to mitigation as follows:

The Complainant is 58 years old and found herself in a very difficult situation in terms of finding a job. It was also in the pandemic. She decided to set up a new business at home as lots of her clients asked her if she would. She now works from her kitchen at home.  She hit the ground running as lots of her clients came with her. She used to do three days a week in the salon. She now works whenever she has a client.  She could do five days a week, but she does not. She has no support staff, and she has to use her kitchen to prepare meals for the family and to do household tasks.  

The Complainant submitted her tax returns. Had the Complainant stayed in her employment with the Respondent she would have earned € 34,472.00. Her actual income over that period of time was € 14,053.00. Her net loss was € 20,400.19

During cross examination the Complainant was asked if she had considered hiring a chair in a saloon. She said she didn’t want to do that. She felt she was too old to start again in another Salon. She wants to work from home.  The Complainant also accepted that she did not ask for a reference. She didn’t want to ask for one because of the way she was treated. She did think about it but felt she couldn’t ring and ask for one.

Ms. Kennedy in legal submissions stated that when assessing the financial loss to the Complainant one must consider S7 (3) 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.

The complainant had been working in the respondent entity for 26 years. Only fourteen months after her dismissal a redundancy situation arose. She obviously was not entitled to the redundancy payment, but the act clearly sets out that the Adjudicator can have regard to her rights accrued. 

Ms. Maria Dillion read out the submission.

The Company ceased trading on the 29.04.2023. It simply wasn’t viable to keep it running.

Ms King took over the family business from her father who was a barber. That was just months before the pandemic. The Complainant was an excellent stylist and had a large client base. Her employment transferred in or around late 2019 to the Respondent entity.

In an email dated in April 2020, correspondence between all of the staff and Ms. King set out all of the challenges that the salon was facing at the time, in light of the pandemic.

30.04.2020 the Complainant came back with various queries and she sought reassurance that the covid measures would be temporary. Ms King was reliant on HABIC at the time. There is a very detailed document prepared by them submitted. It set out the very details requirements that were needed to re-open during the pandemic. HABIC also had a HR department which was available to the Respondent too. It was on foot of all of these concerns that led Ms King to refocus her mind on the Contracts. In the cover letter 12.01.2022 it was clear that Ms. King was seeking to have the new contract signed. The new contract did amend the Complainant terms and conditions of employment. She stated that it was requirement under Irish law to have terms and conditions of employment signed. On the 8th February a letter was sent setting out that without a signed contract of employment her employment could not continue. She refused to sign it. The employment ended. The departure of the Complainant has had a very detrimental knock- on effect on the business to the point that it has now stopped trading.

The Respondent now knows and accepts that she acted on bad legal advise when she gave the Complainant the ultimatum, sign the new contract or the employments ends.

All three claims have been conceded by the Respondent. Therefore, the only matter left for me to consider is the issue of loss.

The Complainant has a legal obligation to mitigate her loss. In that regard she gave evidence that she set up a business from her own kitchen. Many of her clients came with her so she styles their hair whenever she is requested to. She accepts that she did not attempt to find work in another salon or to hire a chair in a salon. She didn’t want to do that at 58 years of age. That decision did have a negative impact on her earning capacity. She now works alone from home with very limited facilities. Had she been successful in getting work in a Salon her income could have been potentially much higher.

The act clearly sets out the limitations in relation to any compensation award and the obligations on a Complainant to mitigate their loss.

I accept that the Complainant has gone some way to mitigating her loss but the fact that she didn’t seek work outside of her home and did not even seek a reference from the Respondent does mean that she did not do everything that could have to mitigate the loss.

S7 (1)(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;

I accept that when assessing “ financial loss” in relation to Unfair Dismissal claims I can and should address my mind to the rights of the employee as set out in (3) above. That is not to say that the Complainant would be entitled to the financial value of a Redundancy claim based on her years work. In taking that into consideration the maximum award cannot exceed 104 weeks.

Having considered the matter carefully together with the evidence of the parties and the documentation submitted and the legal argument made, I find that the complaint CA-00052059-001 is well founded and the  appropriate amount of compensation is € 12,500.00

CA-00052059-002 The Complaint is well founded. The Complainant is entitled to € 1104.00

CA-00052059-003 The Complaint is well founded. The Complainant is entitled pursuant to Section 4 (1) ( e) of the Minimum Notice and Terms of Employment Act 1973 to eight weeks’ notice. Therefore, I award the Complainant € 4,416.00

 CA-00052059-001 The Complaint is well founded . I award the Complainant  € 12,500.00

CA-00052059-002 The Complaint is well founded. I award the Complainant€ 1,104.00

CA-00052059-003 The Complaint is well founded. I award the Complainant € 4,416.00