Complainant

Respondent

Parties

Donal  O'Meacair

Reynolds And Roche Limited t/a Zero One Hair Salon

Complainant

Respondent

Anonymised Parties

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Representatives

  Complainant

David O’Riordan,  Sherwin O'Riordan

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-00051749-001

19/07/2022

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

CA-00051749-002

19/07/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00051749-003

19/07/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00051749-004

19/07/2022

The complainant commenced employment with the respondent on 01 February 2020.  He worked as managing director of the hair salon.  His salary was €1,000 per week.  He worked 40 hours per week, and he had 20 days holidays per year.  His employment was terminated on 15 April 2022. 

The complainant submitted complaints to the Workplace Relations Commission on 19 July 2022.   The complainant submitted four complaints.  He claimed he was unfairly dismissed, that he was not paid for the four weeks before his date of dismissal, that he did not receive his statutory notice period and that he was not paid for 15 days accrued but untaken holidays.

The respondent at the hearing on 22 January 2024 did not contest any of the complaints.

CA-00051749-001

Complaint submitted pursuant to section 8 of the Unfair Dismissals Act, 1977

The complainant commenced employment with the respondent company on 01 February 2020.  He worked as the managing director of the hair salon.  The respondent company had two directors, the owner, and her mother.  In 2021 the owner was on extended sick leave when the other director began to request financial information from the complainant.

In January 2022 the owner remained on sick leave when the other director sent an e-mail to the complainant indicating there was no longer a requirement for a managing director and his employment would be terminated.  A similar email was sent to the complainant on 19 March 2022.  The complainant asserts that he was unfairly dismissed on 15 April 2022.

CA-00051749-002

Complaint submitted pursuant to section 12 of the Minimum Notice and Terms of Employment Act, 1973.

The complainant asserts that he was not paid the statutory minimum notice he was entitled to receive when he was unfairly dismissed.

CA-00051749-003

Complaint submitted pursuant to section 6 of the Payment of Wages Act, 1991.

The complainant asserts that he was not paid for the four weeks prior to the date of his unfair dismissal.  He did receive pay slips, but no payment was made to his bank account.

CA-00051749-004

Complaint submitted pursuant to section 27 of the Organisation of Working Time Act, 1997.

The complainant asserts that the was not paid for 15 days annual leave that he had accrued but not taken at the date of his unfair dismissal. 

The complainant gave evidence of his efforts to mitigate his loss.  Initially following his dismissal, he was unable to apply for other jobs as he was taking care of his child.  The mother of the child is the owner of the respondent company and was unable to share caring for the child as she was on sick leave.  Due to his caring responsibilities the complainant returned to his home place where he would have more family support.  He undertook a course to assist him in working in the renewable energy sector.  The documents submitted by the complainant demonstrate that he expressed interest in partnership programmes in June 2022 and applied for various jobs from December 2022.  At the date of the hearing the complainant had not obtained paid employment.

The respondent did not contest any for the four complaints.

CA-00051749-001

Complaint submitted pursuant to section 8 of the Unfair Dismissals Act, 1977

The respondent did not contest the complaint of unfair dismissal.  The complainant had selected compensation as the form of redress.

As the respondent has not contested the complaint of unfair dismissal the only issued to be decided is the amount of compensation to be awarded.

Legislation

Section 7 of the Act provides:

7.— (1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances:

(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

(c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (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) as is just and equitable having regard to all the circumstances, or

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances, and the references in the foregoing paragraphs to an employer shall be construed, in a case where the ownership of the business of the employer changes after the dismissal, as references to the person who, by virtue of the change, becomes entitled to such ownership.

Section 7(2) sets out what should be considered in determining the amount of compensation payable:

(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,

(d) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,

(e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, and

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.

The complainant was unfairly dismissed effective 15 April 2022.  I accept that the complainant had caring responsibilities for his child and as such he was restricted in his ability to apply for other jobs.  The complainant was dismissed as the Covid pandemic was beginning to have an impact on the jobs market.  This was particularly so in the IT industry which was an area of interest to the complainant.  However, even given those circumstance the Act places a responsibility on a complainant to mitigate their loss.  Considering all the circumstances I am satisfied that the complainant should have made a greater effort to obtain other employment.  There was no evidence that he considered applying for jobs outside his immediate area of interest, but he did commence a course aimed at pursuing work in the renewable energy sector.  In those circumstances I cannot award the full 104 weeks compensation.

I have considered the actions of the respondent.  Given that the complaint was not contested I am satisfied that this matter could have been concluded at an earlier date.

The complainant’s salary was €1,000 per week.  He did not have any pension entitlement and he had been employed for just over two years.  He received two bonus payments of €500 per year by way of gift cards, which were tax free.  He had a car for company business and receipted expenses. 

Having considered all the circumstances, I consider it just and equitable to award the complainant compensation of €78,000. 

CA-00051749-002

Complaint submitted pursuant to section 12 of the Minimum Notice and Terms of Employment Act, 1973.

I am satisfied that the complainant was not paid his statutory minimum notice.  Section 4 of the Act provides:

4.— (1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—

(a) if the employee has been in the continuous service of his employer for less than two years, one week

I determine that section 4 of the Act was contravened by the respondent.  I direct the respondent to pay compensation to the complainant in the amount of €1,000.

CA-00051749-003

Complaint submitted pursuant to section 6 of the Payment of Wages Act, 1991.

The complainant stated that he received payslips for the period between 18 March and 15 April 2022 but that no payment was transferred to his bank account.  The complaint was not contested by the respondent.  I determine that the complaint is well founded.  I direct the respondent to pay to the complainant €4,000 gross.

CA-00051749-004

Complaint submitted pursuant to section 27 of the Organisation of Working Time Act, 1997.

The complainant stated that he received 20 days annual leave per year.  At the date of his dismissal, he had accrued 15 days leave that he had not taken.  The statutory leave year ends on 31 March each year.  This complaint was submitted on 19 July 2022, within the six-month period after the end of the statutory leave year.  The respondent did not contest this complaint.

Section 23 of the Act provides:

23.— (1) (a) Where—

(i) an employee ceases to be employed, and

(ii) the whole or any portion of the annual leave in respect of the relevant period remains to be granted to the employee, the employee shall, as compensation for the loss of that annual leave, be paid by his or her employer an amount equal to the pay, calculated at the normal weekly rate or, as the case may be, at a rate proportionate to the normal weekly rate, that he or she would have received had he or she been granted that annual leave.

I decide the complaint is well founded.  I direct the respondent to pay the complainant compensation in the amount of €3,000 gross.

CA-00051749-001

Complaint submitted pursuant to section 8 of the Unfair Dismissals Act, 1977

I decide that the complainant was unfairly dismissed.  Having regard to all the circumstances I consider it just and equitable to award compensation to the complainant for his loss arising from his unfair dismissal.  I direct the respondent to pay to the complainant compensation in the amount of €78,000.

CA-00051749-002

Complaint submitted pursuant to section 12 of the Minimum Notice and Terms of Employment Act, 1973.

I decide that section 4 of the Act was contravened by the respondent.  I direct the respondent to pay compensation to the complainant in the amount of €1,000.

CA-00051749-003

Complaint submitted pursuant to section 6 of the Payment of Wages Act, 1991.

I decide that the complaint is well founded.  I direct the respondent to pay to the complainant €4,000 gross.

CA-00051749-004

Complaint submitted pursuant to section 27 of the Organisation of Working Time Act, 1997.

I decide the complaint is well founded.  I direct the respondent to pay the complainant compensation in the amount of €3,000 gross.

Unfair Dismissal

Minimum Notice

Pay

Pay for annual leave