Complainant

Respondent

Parties

Leanne  Slattery

Chloe`s Cuts, Colours & Curls

Complainant

Respondent

Anonymised Parties

Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00038830-001

21/07/2020

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

CA-00040380-001

13/10/2020

The Complainant is seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 and has sub submitted that she did not receive any redundancy payment (CA-00038830-001). This Complaint was withdrawn at the commencement of the hearing of this matter. 

The Complainant is seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977-2015 and has submitted that she was unable to work hours that were different from her original contractual hours so she did not attend work.  (CA- 00040380-001)

The Complainant attended remotely and gave evidence under oath. The Complainant commenced employment with the Respondent on the 24th October 2017. The Complainant was employed as a junior hairdresser and her gross pay was €494.00 (€426.73 net) per week for 37 hours worked.

The Respondents premises closed due to the onset of the pandemic on or about the 20th March 2020. The Respondent informed the Complainant on the 19th June 2020 that she was reopening for business on the 29th June 2020 as per the government guidelines. The Respondent asked the Complainant to confirm her ability to work and her acceptance of the new working rosters. The Complainant responded by email that she was that she was “.. fine with whatever needs to be done.”

In an exchange of text messages between the parties, from the 23rd June 2020 to the 25th June 202, the Complainant explained that she could return to work but the new hours do not suit her. The Respondent informed the Complainant that if she could not confirm her acceptance of the new hours that she would accept her resignation. The Complainant replied she had never mentioned resigning but the new hours do not suit her. The Complainant asked the Respondent if she was terminating her position as she was unable to accept the new roster. The Respondent replied that she does not wish to terminate her position but of she failed to show for work on the 30th June 2020 she would be removed from the roster. The Complainant did not attend for work on the 30th June 2020.

The Respondent emailed the Complainant on the 1st July 2020 stating she had accepted her resignation by text and the Complainant responded that she had never mentioned anything about resigning in a text message.

The Complainant submitted she was advised that she did not have to work any hours that were different from her original contractual hours and so she did not attend work on the 30th June 2020.

The Complainant commenced alternative employment in August 2020 and full time employment in September 2021.

This Complaint was received by the Workplace Relations Commission on the 13th October 2020.

The Respondent attended remotely and gave evidence under oath.

The Respondent submitted that upon reopening the business on the 29th June 2020, as per government guidelines, she informed the Complainant that the rosters would be changed for a short period. The Complainant responded she was willing to do whatever it takes. The Respondent  forwarded the roster to the Complainant but she refused to confirm three different sets of hours.

The Respondent explained to the Complainant the reason that her previous hours could not be allocated to her as they had to follow Government guidelines for the safety of the both staff and clients. Further, the Respondent informed the Complainant she would look at the rosters again in a number of weeks.

The Respondent submitted that the Complainant did not confirm any hours and  never showed for any of the hours she had been rostered. It was noteworthy that the Complainant stated on her Complaint form that her last day of employment was the 20th March 2020.

The Respondent submitted that she endeavoured to facilitate the Complainant and genuinely believed she was doing the best she could in the circumstances.

It is the Respondents position that the Complainant resigned her position and this Complaint is without merit.

I have carefully listened to the evidence tendered and submissions, both oral and written, made in the course of the hearing of this matter by both parties.

The lawful reasons for dismissal are set out in Section 6 (4) of the Unfair Dismissals Act 1977 which provides:

“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,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.”

Further, an onus is placed on the employer by Section 6 (6) of the Unfair Dismissals Act  1977 which provides

“In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal”

Accordingly, the burden of proof lies with the Respondent to show that the Complainant’s dismissal was fair. In formulating a decision in the particular circumstances of this case, I am cognisant that in my role as  Adjudication Officer, I must not assume the mantle of an employer regarding the facts in any case. My role is to decide whether , within the so called band of reasonableness  of decision making, an employers decision is not unfair. The notion of a band of reasonableness was first endorsed by the Court of Appeal in British Leyland UK Ltd -v- Swift (1981) IRLR 91. The band of reasonable response test was articulated by Lord Denning, MR:

“The correct test is: was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him then the dismissal was unfair. But if a reasonable employer might have reasonably dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness within which one employer might reasonably take one view, another quite reasonably take a different view”

Further, in Bunyan -v- United Dominions Trust (1982) ILRM 404, the EAT endorsed the view that “the fairness or unfairness of 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. The Tribunal therefore does not decide the question whether or not, on the evidence before it, the employee should be dismissed. The decision has been taken and our function is to test such decision against what we consider  the reasonable employer would have done and or concluded”

The Labour Court, recently citing Bunyan with approval has confirmed the applicability of the British Leyland Test in O’Brien -v- Dunnes Stores Limited UDD 1714. However, the Labour Court also stated in Morey -v- Dromina Community Playground UDD1715, that

“if the decision to dismiss was not within the range of reasonable responses then there cannot be substantial grounds justifying the dismissal.”

I note that the Complainant and the Respondent had an excellent relationship for many years and that the Complainant was a valuable employee.

The Complainant stated, on her Complaint form, that her employment ended on the 20th March 2020 but in the course of the hearing confirmed  it was the 1st July 2020 following the email from the Respondent. Further, the Complainant stated she “didn’t want to work hours that didn’t suit her”. The Complainant accepted that she did not return to employment on the 29th June 2020.

In the particular circumstances of this case, I am satisfied that the Complainant did effectively resign her position and the reasonable response by the Respondent in light of the Complainants attitude was justified.

I find that the Complaint (CA-00040380-001) made pursuant to Section 8 of the Unfair Dismissals Act 1977-2015 is not well founded.