ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00044757
Parties:
| Complainant | Respondent |
Anonymised Parties | A Hairdresser | A Hair Salon |
Complaint:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 15 of the European Communities (Organisation of Working Time) (Mobile Staff in Civil Aviation) Regulations 2006 - S.I. No. 507 of 2012 | CA-00054784-001 Closed | 26/01/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00054784-002 | 26/01/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00054784-003 | 26/01/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946 | CA-00054784-004 Closed | 26/01/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946 | CA-00054784-005 Closed | 26/01/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00054784-007 | 26/01/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Protection of Young Persons (Employment) Act, 1996 | CA-00054784-008 Closed | 26/01/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 25 of the Protection of Employees (Temporary Agency Work) Act, 2012 | CA-00054784-009 Closed | 26/01/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under Part 14 Section 103(55M) of the Health Act, 2007 | CA-00054784-010 Closed | 26/01/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00054784-011 Closed | 06/03/2023 |
Date of Adjudication Hearing: 04/10/2023
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Procedure:
In accordance with section 41 of the Workplace Relations Act 2015 and section 79 of the Employment Equality Acts 1998 - 2015, these complaints were assigned to me by the Director General. I conducted a remote hearing on October 4th 2023, at which I made enquiries and gave the parties an opportunity to be heard and to present evidence relevant to the complaints.
The complainant attended the hearing accompanied by her father. The owner of the hair salon where the complainant worked from March until December 2022 attended the hearing on his own account.
The complainant was not represented and she said that she filled in the complaint form while she was feeling very stressed. At the opening of the hearing, I established that her complaints are related to holiday pay and public holiday pay owed to her when she left her job and to her claim that her employer had no consideration for her mental health. These are listed as CA-00054784-002, CA-00054784-003 and CA-00054784-007 and the remainder of the complaints are closed.
The complainant suffers from depression and another mental health condition and, for this reason, I have decided to anonymise this decision.
Background:
The complainant has been a hairdresser for the last 12 years and she commenced working with the respondent on March 8th 2022. She was paid an hourly rate of €14.00 and she worked an average of 25 hours each week. The complainant left her job after nine months, on December 15th 2022. She gave no notice of her intention to resign. These complaints relate to the respondent’s failure to pay the complainant for her outstanding holidays and public holidays at the termination of her employment. She also complains that her employer gave no consideration to her mental health. |
CA-00054784-002 and CA-00054784-003
Complaints under Section 23 of the Organisation of Working Time Act 1997
Summary of Complainant’s Case:
When she finished up working for the respondent on December 15th 2022, the complainant said that she had taken 10 days’ holidays between March and December. She claims that she was entitled to be paid for the holidays she had not taken. She said that she sent messages on WhatsApp to her employer, but that he didn’t respond. The complainant also said that she was due to be paid in lieu of public holidays. She explained that, although the salon was closed on public holidays, the respondent permitted all staff to take a day off in lieu, regardless of their normal requirement to work on the day that the public holiday fell. |
Summary of Respondent’s Case:
The respondent agreed that he did not pay the complainant for her untaken holidays and public holidays after she resigned. He calculated that she was owed €700 in relation to an outstanding entitlement to eight days’ annual leave and two public holidays. He said that his policy is to give employees an extra day off in lieu of every public holiday, regardless of whether they are rostered to work on the public holiday. |
Findings and Conclusions:
As the complainant worked for the respondent for nine months, she was entitled to 15 days’ holidays when she finished up on December 15th 2022. As she had taken 10 days’ holidays, she had a remaining entitlement to five days. The respondent’s approach to public holidays is more generous than the provisions at section 22 of the Organisation of Working Time Act, because he permits all employees to take a day off in lieu of each public holiday, even where the employee is not normally required to work on the public holiday. The complainant didn’t work on Mondays and, for this reason, she was entitled to one fifth of a week’s pay for each of the public holidays that fell on a Monday, and not one day’s pay. Leaving that aside, the respondent agreed that the complainant was entitled to 10 days’ pay in lieu of holidays not taken up to the date of her departure and I accept his evidence in that regard. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
I decide that these complaints are well founded and I direct the respondent to pay the complainant compensation of €1,200, comprising €700 in respect of arrears of pay for annual leave and public holidays and €500 for breach of a statutory right, his failure to pay her for her outstanding holidays at the date of termination. |
CA-00054784-007
Complaint under Section 6 of the Employment Equality Act 1998
Summary of Complainant’s Case:
When the complainant left her job on December 15th 2022, she said that her mental health was suffering and that she felt overwhelmed and wanted to go home. She said that she phoned the respondent and asked him if she could go home and she said that she would come back the next day. She said that the respondent refused, because she had clients booked in for appointments for the afternoon. She said that he offered her a financial incentive to stay, but she said that her health was more important than money, and she wanted to go home. Around midday, she finished looking after a client and she left, with no intention of coming back. The complainant said that she felt bad about leaving the respondent with a full column of clients, but she was struggling with her mental health and she just couldn’t cope. She said that she hasn’t been able to work since she left her job with the respondent, and she is still being treated by her psychiatrist. The complainant’s position is that the respondent should have had some consideration for her mental health and should have allowed her to go home that day. |
Summary of Respondent’s Case:
The respondent agreed with the gist of what the complainant said regarding her last day at work. He said that December is a very busy month in a hairdressing salon and, on December 2nd, the complainant had a full column of clients, but she didn’t come to work. She phoned at 4.00pm to say that she had slept it out. On December 7th, the complainant was late again. The respondent said that he spoke to her about her lateness and not showing up, but there was no discussion about disciplinary action and no warnings were issued. When she asked to go home on December 15th, the complainant again had a full column of clients and, if she went home, they would have to be cancelled or other staff would have to look after her clients as well as their own. The respondent said that he offered the complainant €1,000 to encourage her to remain at work, but she didn’t accept this offer. The respondent said that he understood that the complainant has mental health issues, but that he was trying to run the salon, and her absences and lateness was having an effect on clients and staff. When she left, without giving any notice, her colleagues had to pick up the slack, when they were already busy. He said that he never received a medical certificate from the complainant and that day-to-day operations were badly affected when she didn’t come to work. |
Findings and Conclusions:
As a business that provides a personal service to clients, hairdressing relies on staff to come to work regularly and on time. The failure of a stylist to turn up for an appointment creates stress for other employees and gives the impression that the business is disorganised and disinterested in customers. I understand that the complainant was feeling unwell, but it is not reasonable, in a hairdressing salon, not to turn up for work, or to walk out, before trying other options. This complaint comes under the heading of “reasonable accommodation.” It is the complainant’s case that her employer should have had consideration for her mental health, meaning that he should have been tolerant of her failure to turn up for work, being late, or wanting to go home. The complainant referred to one incident, on December 15th 2022, when she asked to go home, and her employer tried to persuade her to stay. It is my view that most employers in the same circumstances as the respondent would have done the same thing. Very few employers can provide the flexibility that the complainant expected, and it would be particularly difficult to do so in a hairdressers. I understand that the complainant has mental health issues, but it seems to me that most employees who find themselves struggling emotionally at work will make an effort to finish out the day, perhaps after taking a break, going for a walk or having a cup of tea and a chat with someone. The respondent said that the complainant never provided him with a medical certificate concerning her condition, although she submitted a letter from her psychiatrist as part of her submission to the WRC. Before she left her job, she never asked for reasonable accommodation and she didn’t say what she needed to help her to remain at work. It is apparent therefore, that during the course of her employment, the complainant didn’t ask for reasonable accommodation. It is my view that it was unreasonable for the complainant to simply leave her job on December 15th 2022, and to claim afterwards that her employer did not consider her health. While she was employed, she had a responsibility to communicate with her employer about her health and to plan so that the circumstances that occurred on December 15th could have been averted. In conclusion therefore, I find that the facts the complainant has set out are not adequate for me to presume that she was discriminated against because of her mental health. |
Decision:
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
I decide that this complaint is not well founded. |
Dated: 11th October 2023.
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Key Words:
Holiday pay, mental health, reasonable accommodation |