Complainant

Respondent

Anonymised Parties

Hairdresser

Hairdressing Salon

Representatives

Marius Marosan

Eoin O’Connor BL instructed by Powderly Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00056834-001

24/05/2023

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

CA-00056834-002

24/05/2023

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

CA-00056834-003

24/05/2023

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

CA-00056834-004

24/05/2023

The Complainant was employed as a trainee junior stylist in the Respondent’s hair salon.  The business was established by Mr X and his wife Mrs X, who both work as stylists in the business.  The Complainant worked 40 hours per week and was paid €15 per hour gross. 

The Complainant has submitted complaints under the Terms of Employment (Information) Act 1994, as amended, the Minimum Notice & Terms of Employment Act 1973, as amended, and the Unfair Dismissals Act 1977, as amended.  The Respondent rejects the complaints. 

The Complainant submits that she never received her core terms of employment, which she was supposed to receive within 5 days of starting her employment with the Respondent in accordance with section 3(1A) of the Terms of Employment (Information) Act 1994, as amended (the Act).  The Complainant submits that an employee starter form which she signed on 17 May 2022 does not comply with the requirements of section 3(1A) of the Act.

The Complainant also submits that she was never given a contract of employment or terms and conditions of employment in the first two months after she started to work for the Respondent company as prescribed by section 3 of the Act. 

The Complainant pointed out that that Hedigan J. in the High Court case Arturs Valpeters v Melbury DevelopmentsLtd 2009 MCA found that, "An award ofcompensation can be made pursuant to Section 3 and 7(2) ofthe Terms of Employment (Information) Act 1994 in the absence ofany loss accruing to an employee from the failure ofan employer to provide a contract of employment to an employee."

The Complainant also cited Megan Hayes Kelly -v- Beechfield Private Homecare Limited (TED 1919), where the Labour Court found that: "It is well-established in the Determinations ofthis Court that it is not necessary for a Complainant under the 1994 Act to demonstrate that he or she suffered a detriment as a consequence of the Respondent's failure to fully comply with its obligations under section 3 ofthat Act.[...] The Act provides that the Workplace Relations Commission, and this Court on appeal, can award up t0 four weeks remuneration when it determines that section 3 ofthe Act has not been complied with.”

The Complainant submits that the Respondent has breached section 3 of the Act.  The Complainant submits that she should be awarded the maximum compensation in line with the ECJ decision in Von Colson andKamann (1984), ECR 1891 which found that compensation must be of an amount which acts as deterrent.

The Respondent submits that the Complainant received her contract of employment and employee starter form in compliance with Terms of Employment (Information) Act.  The Respondent further submits that the two complaints under the Act are duplicates of each other. 

At the hearing the Respondent was unable to produce a copy of Complainant’s contract of employment.

Section 3(1A) of the Terms of Employment (Information) Act 1994 (the Act) requires that:

“ … an employer shall, not later than 5 days after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment, that is to say:

(a) the full names of the employer and the employee;

(b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act 2014);

(c) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires;

(d) the remuneration, including the initial basic amount, any other component elements, if applicable, indicated separately, the frequency and method of payment of the remuneration to which the employee is entitled and the pay reference period for the purposes of the National Minimum Wage Act 2000;]]

(e) the number of hours which the employer reasonably expects the employee to work—

(i) per normal working day, and

(ii) per normal working F12[week;]

(f) where sections 4B to 4E (in so far as they are in operation) of the Payment of Wages Act 1991 apply to the employer, the employer’s policy on the manner in which tips or gratuities and mandatory charges (within the meaning of section 1 of that Act) F9[are treated,]]

(g) the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is employed at various places or is free to determine his or her place of work or to work at various places;

(h) either—

(i) the title, grade, nature or category of work for which the employee is employed, or

(ii) a brief specification or description of the work;

(i) the date of commencement of the employee’s contract of employment;

(j) any terms or conditions relating to hours of work (including overtime);

(k) where a probationary period applies, its duration and conditions.]The Respondent argued that the two complaints which the Complainant has submitted pursuant to the Act are duplicates of each other.  I am of the view that this is an incorrect interpretation of section 3 of the Act which specifies the particulars of the terms of employment which an employer must give in writing to an employee. The information required by subsection (1A) must be given not later than five days after the commencement of employment. The remaining information must be given not later than two months after the date of commencement of employment.”

I find that that the employment starter form which the Complainant signed on 17 May 2022 does not fulfil the requirements of section 3(1A) of the Act.  Accordingly, I find that Respondent breached the provisions of section 3(1A) of the Act in relation to the Complainant.

Section 3(1) of the Act requires that:

“3(1) An employer shall, not later than one month after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment, that is to say—

(fa) a reference to any registered employment agreement or employment regulation order which applies to the employee and confirmation of where the employee may obtain a copy of such agreement or order,]

(ga) that the employee may, under section 23 of the National Minimum Wage Act, 2000, request from the employer a written statement of the employee’s average hourly rate of pay for any pay reference period as provided in that section,]

(h) the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,

(j) any terms or conditions relating to paid leave (other than paid sick leave),

(k) any terms or conditions relating to—

(i) incapacity for work due to sickness or injury and paid sick leave, and

(ii) pensions and pension schemes,

(l) the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee’s contract of employment) to determine the employee’s contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice,

(m) a reference to any collective agreements which directly affect the terms and conditions of the employee’s employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they F9[were made,]

(n) the training entitlement, if any, provided by the employer,

(o) in the case of a temporary contract of employment, the identity of the user undertakings (within the meaning of Directive 2008/104/EC of the European Parliament and of the Council of 19 November 20085 on temporary agency work), when and as soon as known, and

(p) if the work pattern of an employee is entirely or mostly unpredictable, the statement shall inform the employee of —

(i) the principle that the work schedule is variable, the number of guaranteed paid hours and the remuneration for work performed in addition to those guaranteed hours,

(ii) the reference hours and days within which the employee may be required to work, and

(iii) the minimum notice period to which the employee is entitled to before the start of a work assignment and, where applicable, the deadline for notification in accordance withsection 17 of the Organisation of Working Time Act 1997, and

(q) where it is the responsibility of the employer, the identity of the social security institutions receiving the social insurance contributions attached to the contract of employment and any protection relating to social security provided by the employer.”

The burden of proof under section 3(1) of the Act lies with the Respondent.  Despite its assertions that the Complainant had been supplied with a statement in compliance with section 3(1) of the Act, the Respondent was unable to provide the hearing with a copy of the statement.  Accordingly, I find that Respondent breached the provisions of section 3(1) of the Act in relation to the Complainant.

The Respondent argued that the two complaints which the Complainant has submitted pursuant to the Act are duplicates of each other.  I am of the view that this is an incorrect interpretation of section 3 of the Act which specifies the particulars of the terms of employment which an employer must give in writing to an employee. The information required by subsection (1A) must be given not later than five days after the commencement of employment. The remaining information must be given not later than one month after the date of commencement of employment. 

While I have found that the Responded breached both section 3(1) and section 3(1A) of the Act in relation to the Complainant, it should be noted, however, that each separate infringement of section 3 of the Act does not entitle the Complainant to separate compensation. 

In accordance with my powers under Section 7 of the Terms of Employment (Information) Act 1994, I declare that the Respondent has contravened Section 3 of the Act and that the complaints are well founded. I order the Respondent to pay to the Complainant compensation in the amount of €2,400 gross being the equivalent of four weeks’ pay, the maximum payable under the Act.

The Complainant submits that she was dismissed without notice and was never paid her notice entitlement, as provided by section 4 of the Minimum Notice and Terms of Employment Act 1973, as amended. The Complainant submits that she is entitled to one week’s notice.

The Complainant submitted that she had accrued two weeks’ annual leave for which she was entitled to payment after her employment had been terminated.

The Respondent submits that the Complainant received her statutory notice of 1 week’s pay. The Complainant finished working for the Respondent on 15 April 2023.  She did not work for the Respondent thereafter.

At the hearing, the Respondent exhibited a copy of the Complainant’s final payslip dated 12 May 2023 on which one item was noted – Bank Holiday 40 hours – for which the Complainant was paid €600 gross.  The Respondent submits that this represents a week’s pay, which is what the Complainant was entitled to pursuant to the Act. 

There is a dispute between the parties as to whether the Complainant resigned or was dismissed.  Both parties rely on the text messages between the Complainant and Mrs X which were sent on 15 April 2023.  In the first text message, Mrs X wrote: “Please do not come back to the salon.  I am his wife and it is also my decision who works here.  He is still my husband and my salon.  Then, you can do whatever you want.”

The Complainant replied: “OK. Are you still in the salon? I want to come and write my resignation letter.”

Both parties were in agreement that the Complainant did not work for the Respondent after 15 April 2022. 

I am of the view that the intention of Mrs X’s text 15 April 2023 was clear and unequivocal and that it represented a summary dismissal of the Complainant.  I find, therefore, that the Complainant was dismissed by the Respondent on 15 April 2023.

The burden of proof to show that the Complainant had been paid notice in line with the requirements of the Act falls squarely on the Respondent.  Mrs X did not appear to be familiar with the payroll practices in the Respondent company.  Unfortunately, her husband Mr X, who seemed to be responsible for payroll, did not attend the hearing.  In the absence of any documentation or persuasive evidence to the contrary on behalf of the Respondent, I am of the view that the payment of 12 May 2023 represented payment for the Complainant’s outstanding annual leave.

I find, therefore, that the Complainant was not paid the one week’s notice to which she was entitled.

I find that this complaint is well founded.  I direct that the Respondent pay the Complainant compensation of €600 gross, the equivalent of one week’s pay.

Preliminary Issue: Length of Service

Section 2(1)(a) of the Unfair Dismissals Act 1977 (the Act) provides:

“This Act shall not apply in relation to any of the following persons:

 an employee (other than a person referred to in section 4 of this Act) who is dismissed, who, at the date of his dismissal, had less than one year’s continuous service with the employer who dismissed him.”

The Complainant signed an employee starter form on or about the 17 May 2022. The Complainant commenced work on or about 12 June 2022. A screenshot of the Respondent’s accounting software shows her commencement date. Furthermore, the Complainant’s second payslip is dated 30 June 2022 and shows that the Complainant had completed two weeks work at that point.  The Respondent submits that two weeks before 30 June 2022 is commensurate with a start date of 12 June 2022.

The Complainant, on her claim form, has stated that she commenced work on or about 9 May 2022 and was dismissed on or about 16 June 2023. The Respondent does not accept that the Complainant has satisfied the one-year continuous service requirement. By text message dated 15 April 2023, Mrs X informed the Complainant that she was not to return to the salon.  The Complainant replied by text message on the same day: 

“OK. Are you still at the salon? I will come and write my resignation letter.”

The Respondent submits that the Complainant was dismissed by text message dated 15 April 2023 and therefore did not have the one year’s continuous service completed at that point.  In the alternative, the clear and unambiguous words of the Complainant where she stated that she would write her resignation letter was a unilateral act of resignation. 

As Meenan notes in Employment Law (2nd edn 2023) at [19.01]:

“Termination of the contract of employment may generally arise by reason of dismissal or by resignation.” 

Preliminary Issue: Length of Service

The Complainant submits that she started working for the Respondent on 9 May 2022 as Front of House. She worked an average of 43 hours per week and was paid €15 per hour.  The Complainant was employed on a permanent basis and her last day of work was 16 May 2023 when she was dismissed without notice.  On 22 May 2023 she sent a request to the company seeking a statement clarifying the reason for her dismissal, as per section 14 of the Unfair Dismissals Act 1977 (the Act), but her request was ignored. 

Preliminary Issue: Length of Service

The relevant provision regarding qualifying service under the Unfair Dismissals Act 1977 (the Act) is at section 2(1)(a):

“(1) Except insofar as any provision of this Act otherwise provides, this Act shall not apply in relation to any of the following persons:

(a) an employee (other than a person referred to in section 4 of this Act) who is dismissed, who, at the date of his dismissal, had less than one year's continuous service with the employer who dismissed him.”

Section 4 refers to the dismissal of apprentices in the period of six months following completion of their training and is not relevant to this complaint.

Start Date

The Complainant’s start date is in dispute between the parties.  The Complainant asserts that her commencement date was 9 May 2022.  The Respondent, however, asserts that the Complainant’s start date was 12 June 2022. 

Section 1 of the Act defines “employee” as “an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment …”. 

The only documentation attesting to the Complainant’s employment relationship with the Respondent, which was opened at the hearing, was the employee starter form which the Complainant signed on 17 May 2022.  In the absence of a contract of employment, I find that the Complainant entered into employment with the Respondent on 17 May 2022, the date on which she signed the employee starter form. 

Date of Termination

The Complainant’s date of termination is also in dispute.  The Complainant asserts that her employment with the Respondent was terminated on 16 May 2023.  Whereas the Respondent asserts that the Complainant’s employment was terminated on 15 April 2023.

Section 1(1)(b) of the Act specifies that “date of dismissal” means:

“(b) where either prior notice of such termination is not given or the notice given does not comply with the provisions of the contract of employment or the Minimum Notice and Terms of Employment Act 1973, the date on which such a notice would have expired, if it had been given on the date of such termination and had been expressed to expire on the later of the following dates-

(i)                  The earliest date that would be in compliance with the provisions of the contract of employment

(ii)                The earliest date that would be in compliance with the provisions of the Minimum Notice and Terms of Employment Act 1973.”

Elsewhere in this decision, I found that the Complainant was dismissed by the Respondent on 15 April 2023.  I also found that she was not paid her statutory notice, which in her case was one week in accordance with the provisions of the Minimum Notice and Terms of Employment Act 1973, as amended.  Therefore, I find that, pursuant to section 1(1)(b) of the Unfair Dismissals Act 1977, as amended, (the Act), the Complainant’s date of dismissal was 22 April 2023 i.e., 15 April 2023 plus one week.

In summary, the Complainant commenced her employment with the Respondent on 17 May 2022 and her date of termination was 22 April 2023. 

I find, therefore, that at the date of the termination of her employment, the Complainant had accumulated less than the 12 months’ service required by section 2(1)(a) of the Act and that, consequently, she does not have sufficient service to bring this complaint.

In conclusion and having regard to all of the circumstances of the complaint, I find that this complaint is not well founded.

Minimum notice not paid; Breach of Terms of Employment (information) Act; Unfair dismissal – insufficient service