Complainant

Respondent

Parties

Daryl  Malone

Southside Barber Limited (In Liquidation)

Representatives

Ms. Clare-Ann Temple, Benville Robinson LLP Solicitors

No Appearance

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-00057716-001

14/07/2023

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

CA-00057716-002

14/07/2023

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

CA-00057716-003

14/07/2023

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

CA-00057716-005

14/07/2023

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

CA-00057719-001

14/07/2023

The Complainant commenced employment on 9th August 2021. The Complainant was a permanent, full-time employee, in receipt of a average weekly payment of €417.00. The employment was terminated by the Respondent on 27th February 2023.

On 14th July 2023, the Complainant referred the present set of complaints to the Commission. Herein he alleged that his former employer dismissed him without recourse to any form of procedure, that he did not receive a contract of employment at or near the commencement of his employment and that he was routinely underpaid towards the end of his employment. This matter was referred with, and heard in parallel to, other complaints listed under file reference ADJ-00046861, and decision should be read in conjunction with the same.

A hearing in relation to this matter was convened for, and finalised on, 4th December 2023. These hearings were conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced during the hearing.

On the day prior to the hearing, the Respondent stated that he was in hospital and advised that his representative would attend the hearing in his stead. In circumstances whereby no corroborating certification was offered to explain the Respondent’s absence, the matter was not adjourned and proceeded in the absence of the primary witness for the Respondent. In correspondence opened prior to the hearing, it was confirmed that the Respondent was, and remains in liquidation. In circumstances whereby the representative for the Respondent was not appointed by the liquidator, it was agreed that she could not advance any defense on the part of the Respondent, and simply acted as an observer during the hearing.

At the outset of the hearing, the representative for the Complainant raised an issue as to the correct title of the Respondent. In this regard, she submitted that the correct Respondent for the purpose of the present complaint was an individual company director of the impleaded entity.

As this issue will potentially be determinative of the entire proceedings, the same will be considered in advance of the substantive matter.

At the outset of the hearing, the representative for the Complainant submitted that the correct Respondent for the purposes of the present complaint is an individual that acts as a director of the impleaded Respondent.

In this regard, the Complainant stated that the Respondent operates three individual barbers, operating under a single named franchise. On 6th December 2021, the Complainant was presented with a contract of employment. This contract listed his employer as the general franchise name, which is not of itself a legal entity. Regarding place of work, the contract list three different venues, each of which the Complainant understood to be a difference legal entity. In this regard, the Complainant submitted that the common factor between all premises was the managing director. He submitted that this was the person that interviewed him and was his line manager across all three premises. He further opened correspondence that was issued to him in relation to his employment, that was signed by the managing director in a personal capacity. Having regard to the foregoing, the Complainant, via his representative, submitted that his former employer was in fact the managing director of Respondent, employing him in his personal capacity. In this regard, she submitted that any employer has a statutory duty to set out their legal title in writing at the outset of the engagement. In circumstances whereby this did not occur, she submitted that the correct employer is the person that acted as signatory to the relevant correspondence and remained the sole point of contact for the Complainant across the three sites.   

As set out above, the Respondent issued no submission or called no evidence in defence of this preliminary issue. In addition to the foregoing, it is clearly apparent that both potential Respondents were on notice of the hearing and the submission to be raised by the Complainant in this regard.

By submission, and at the outset of the hearing, the representative for the Complainant submitted that the correct Respondent for the purposes of the present complaint is the natural person of the managing director of the impleaded entity.

While it is noted that the Respondent provided no submission or comment in relation to this matter, it still falls to the Complainant to prove that the above-mentioned person was in fact his employer and, as a consequence, attracts liability under the impleaded Acts.

In this regard, the Complainant is correct in that the statement of terms, as issued, is apparently silent as to  the legal title of his employer. In this regard, it is noted that the title on document refers to a franchise operation which is not the Complainant’s employer. Under the section “Employer / Place of Employment”, the form simply states “Dalkey / Blackrock / Cornelscourt”. From the evidence of the Complainant, it is apparent that each of these sites is a separate legal entity, with the Complainant working primarily at the Dalkey site.

As part of the appendices to the Complainant’s submission, he opened the documentation received from revenue. In this regard, the same indicates that the Complainant had been engaged by an alternative company in 2021, and that the Complainant was paid by the Respondent entity from 2022 to the date of cessation in 2023. In consideration of the foregoing, it is apparent that the Complainant’s paymaster was the impleaded Respondent organisation towards the end of his employment.

As part of his submission, the Complainant stated that the only correspondence received from his employer was signed by the managing director, and was silent as to the actual legal identity of his employer. Having reviewed the same, it is apparent that the correspondence in question is again headed with the name of the franchise operation, rather than any specific legal entity. While this is clearly confusing and unacceptable, it cannot be said that it automatically follows that the signatory to the correspondence can be identified as the Complainant’s employer on foot of the same. In these circumstances, such correspond would be required to be signed by the individual making the decision and would not necessarily indicate an employment relationship between the signatory and the recipient.

Having regard to the information provided, it is apparent that the identity of the Complainant’s employer is unclear from both the statement of terms and the correspondence issued in the course of employment. While the Respondent has a legal duty to provide such information at the outset of employment, their failure in this regard cannot serve to attach liability under the impleaded Acts to an individual within the organisation. Rather, the documentation received from revenue indicates that the Complainant was registered as an employee of the a limited company and, towards the end of employment at least, he was regularly paid from this legal entity. Having regard to the foregoing, I find that the impleaded person was not the Complainant’s employer and that he was engaged by the limited company. .

In evidence, the Complainant stated that he commenced employment as an apprentice barber with the Respondent. He stated that he did not receive a statement of terms of employment for a period of some months following his commencement. In this regard, he further submitted that the statement was defective once the same was received.

On 10th February 2023, the Complainant felt sick and had to go home. In accordance with the Respondent’s internal procedures, he informed the supervisor on duty prior to contacting the managing director by means of Whatsapp text message. By response, the managing director stated that the Complainant should not attend work the following day as he was not required. By response, the Complainant noted that he was on the roster for the forthcoming week and asked whether the absence would be treated as a form of leave. By response, the Managing Director of the Respondent stated that the Complainant had been “nothing but trouble lately”, that he had “not been a team player” and that the other staff members had become “fed up with it”. Following the same, the Complainant met with the Respondent in order to “iron things out”. During this meeting, the Complainant was presented with a document purporting to be written warning. In messages received thereafter, the Respondent refused to allow the Complainant to return to work until he had signed the letter of warning and signalled his agreement to the terms of the same. Thereafter, the Complainant issued a letter of grievance in respect to the issues that had arisen in the course of his employment. By response, received thereafter, the Respondent advised that the Complainant demonstrated no willingness to return to work and stated that he considered that employment to be terminated.

By submission, the Complainant submitted that he was dismissed without cause or without the Respondent adopting any form of procedure. Having regard to the foregoing, he submitted that his dismissal should be deemed to be unfair for the purposes of the present Act.

In addition to the foregoing, the Complainant submitted that the Respondent had consistently underpaid him towards the end of his employment.

The Respondent did not attend the hearing as scheduled, and did not provide any form of replying submission to the complaints raised by the Complainant. In such circumstances, the matter will be considered on the basis of the Complainant’s evidence only.

In the present case, the uncontested evidence of the Complainant was that he was summarily dismissed by way of text message. In this regard, he submitted that was not provided with an opportunity to contest the rationale for his dismissal and that the same was fundamentally unfair towards him.

Section 6(1) of the Unfair Dismissals Acts provides that,

“Subject to the provisions of this section, the dismissal of an employee shall be deemed for the purpose of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal”

Section 6(4)(B) provides that where a dismissal arises “wholly or mainly” as a consequence of “the conduct of the employee” such a dismissal “shall be deemed…not to be an unfair dismissal” for the purposes of the Acts.

Section 6(6) of the Unfair Dismissals Act provides that,

“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 [6](4)”

Section 6(7) provides that in determining whether a dismissal is unfair, regard may be had:

a) “to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

b) to the extent (if any) of the compliance or failure to comply…with the procedure…or with the provisions of any code of practice….”.

The matter of Noritake (Irl) Ltd v Kenna (UD 88/1983) sets out the following three criteria to determine “reasonableness” for the purposes of the Acts:

·       “Did the company believe that the employee misconducted himself as alleged?

·       If so, did the company have reasonable grounds to sustain that belief?

·       If so, was the penalty of dismissal proportionate to the alleged misconduct?”

S.I. No. 146/2000, commonly referred to as the “Code of Practice on Grievance and Disciplinary Procedures”, sets out a basic procedure which a Respondent should follow prior to dismissing an employee. These include; putting the allegations to the Complainant in writing in advance of a hearing, allowing the Complainant the opportunity to properly defend himself at the hearing, permitting the appropriate right of representation, and allowing an internal appeal of any determination. In addition to the same, I note the contract of employment sets out a multi-step disciplinary process, incorporating all of the protections set out in S.I. No. 146/2000.

Regarding the sequence of events leading up to the dismissal of the Complainant, it is apparent that the Respondent failed to respect the Complainant’s natural and contractual rights. In particular, it is noted that no formal disciplinary process was adopted by the Respondent prior to termination. It is further noted that the first message from the Respondent in this regard, which was a response to the Complainant advising that he was unwell, made adverse findings against the Complainant without undertaking any form of investigation or allowing him any substantive right of response. Thereafter, the parties commenced an informal set of communication that did not respect, or even attempt to address, any of procedural rights listed above. In addition to the foregoing, the actual rationale for dismissal was and remains unclear, with vague allegations of supposed misconduct being raised against the Complainant. Such a process is undeniably unfair, on both a procedural and substantive basis, and serve to render the dismissal of the Complainant unfair for the purposes of the impleaded Act.

CA-00057716-001- Complaint under the Terms of Employment (Information) Act 1994

Section 3(1) of the Act (as amended) provides that,

“An employer shall, not later than 2 months 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”

In addition to the same Section 3(1)A of the Act provides 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…

(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.”

The uncontested evidence of the Complainant in this regard is that while he did receive as statement of terms, he received the same outside of the time frame outlined in the provision above. In addition to the foregoing, the Complainant submitted that the contract is silent as to the legal title of his employer. Having regard to the foregoing, I find that the Respondent is in breach of their obligation under Section 3, and consequently, the complaint is well-founded. 

Regarding redress, Section 7 of the Act (as amended) empowers me to award compensation not exceeding four weeks’ remuneration in respect of breach of the Act. Having regard to the totality of the evidence presented, in particular the difficulties caused by the Respondent’s failure to set out their legal title, I award the Complainant the sum of €1,668.00, or four week’s remuneration, in compensation.

CA-00057716-002- Complaint under the Unfair Dismissals Act

I find that the Complainant was unfairly dismissed as defined by the Acts.

I find that the Complainant was unfairly dismissed within the definition of the Acts and consequently I find that her application is well-founded.

In relation to redress, Section 7(1) empowers me to order re-instatement, re-engagement or a payment of compensation to be made to a successful Complainant under the Act. Given that neither party wished for the employment relation to recommence, compensation is the most appropriate redress in this circumstance.

In calculating such compensation, regard must be had to the Complainant’s attempts to mitigate his losses following her dismissal. In this regard, the Complainant stated that he found alternative employment shortly after following dismissal.

Having regard to the foregoing, I award the Complainant the sum of €5,000 in compensation.

CA-00057716-003- Complaint under the Terms of Employment (Information) Act 1994

In circumstances whereby this complaint is a duplicate of the matter listed above, I find the the same is not well-founded.

CA-00057716-005- Complaint under the Payment of Wages Act

Regarding this complaint, the uncontroverted evidence of the Complaint was that the Respondent underpaid him by approximately €150 on two occasions prior to his termination. The Complainant also submitted that the Respondent failed to pay his daily wages on a number of occasions.

Having regard to the foregoing, I find that the complaint is well-founded, and award the Complainant the sum of €500 in compensation. This payment should be subject to all normal deductions as income.

CA-00057719-001- Complaint under the Payment of Wages Act

In circumstances whereby this complaint is a duplicate of the matter listed above, I find that the complaint is not well-founded.

Correct Respondent, Unfair Dismissal, Liquidation