Worker

Employer

Anonymised Parties

A Spa Therapist

A Spa

Representatives

Self-represented

Did not attend

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

IR - SC - 00002614

13/05/2024

The Worker commenced her employment with the Employer on 3 November 2023 as a spa therapist. Her employment was terminated on 14 March 2024.

The Worker alleges that she was unfairly dismissed.

The Worker submits that on 14 March 2024 she had a minor medical procedure. She thought that she would be able to attend work but she was advised not to attend and a cert was issued by a named medical practitioner.

The Worker immediately sent the cert to her manager via WhatsApp. Her manager, in turn replied saying that she felt that the Worker was unreliable and she was let go. In her next text, the manager said that the Worker had more time off that other staff. The Worker submits that these were days off without pay that she had booked in advance and were never considered an issue at the time of booking.

The manager also mentioned that the Worker was a full-time member of staff. The Worker submits that she never received or signed any contract.

The Worker submits that the dismissal came as a complete shock as she was never given any verbal or written warning.

At the adjudication hearing, the Worker stated that she applied for a full-time position of a Beauty and Massage Therapist with the Employer on 13 October 2023 on indeed.ie. She did not apply for a work placement. The Worker presented a copy of the correspondence regarding the application and the invitation to an interview. A named manager conducted the interview with her on 30 October 2023. The Worker commenced her employment on 3 November 2023.

The Worker said that at no stage was she furnished with a contract or a handbook.

The Worker said that all employees were getting complaints at times. Sometimes these complaints related to facilities rather than an employee but they would still be logged under the name of an employee. The Worker said that she did not have a higher level of complaints than other employees.

The Worker admitted that her manager spoke with her once inquiring about her being  tired. The Worker said that it was tiredness from running up and down between two hotels she worked at which were in different parts of the city. She said that she could have a booking in the hotel A at 10am and it would be changed to the hotel B at 10.30am and she would have to run to get there on time.

The Worker said that as part of her course she was required to complete 600 hours. If a student was already in employment, work hours could be used for college purposes.

The Worker said that she had a chest infection but worked on 12 March 2024. She was off on Thursday 14 March 2024 and had a small scheduled procedure on that day. Her medical consultant required her to stay out of work for two days. The Worker furnished her Employer with a medical cert. She said that she called in sick only once previously.

The Worker said that she thought the Employer treated her very unfairly. There was no communication after the WhatsApp dismissal message, she had no right to appeal the decision. She thought that the Employer should have at least called her and talked to her.  The Worker said that when the Employer received the first letter from the WRC, it contacted her college to withdraw the forms it had already signed and submitted but the college refused to do so.

The Worker said that she suffers from mental health issues so she needed to take some time off after the dismissal as she could not sleep. She was prescribed medication. She is now back to college. While she is short some 100 hours, it will not affect her college assessment.

There was no attendance by, or on behalf of, the Employer at the adjudication hearing.

On 19 June 2024, the WRC received an email from the Employer stating that the Worker was on placement with the Employer and was dismissed early due to poor performance and feedback as well as consistent sick days/asking for time off. The Employer asserted that the Worker was on full-time hours as part of her placement to make up her 600 hours.

The Employer stated in the email that, to avoid any disruption to her college work and completing her course, the manager told the Worker that she would fill in the Worker’s forms as if she had completed her 600 hours. The Employer did believe at the time that the Worker was truly unwell and unfit to work.

The Employer further said in the email that the Worker started with the Employer in November under the pretence that that was when her placement began.

In an email received by the WRC on 11 July 2024, the Employer stated that it believed it really was an issue for the Worker’s college as the Employer was a "work" placement in order for the student to meet the 600 hours as required to fulfil the criteria for her course. The Employer suggested that the Worker was not permanent staff on a contract, she was only there for her work placement on full-time hours, not full-time staff.

The Employer suggested that there were ongoing issues with the Worker such as health issues, erratic behaviour, moods and inconsistency of service and care towards the clients and work colleagues. The Employer stated that this was discussed with the Worker in person due to numerous client and staff complaints about her negative attitude.

The Employer stated in its email that the Worker was advised to put her best face forward at all times, as she worked closely with the public.

The Employer stated further that it endeavours to accommodate students with the opportunity to complete their 600 hours as part of their course. The Employer suggested that it is not obliged to pay students for this work placement. However, the Worker was paid.

The Employer stated further that the Worker did not complete her 600 hours with the Employer and asserted that the college was aware and supportive of the Employer’s decision.

The Employer stated that the nature of its business is hands on, close contact, and it needs reliable team players in order run a successful team and ensure a trustworthy reputation. The Employer felt that the WRC complaint was just another ploy for attention by the Worker and it had taken up valuable time that could be better spent by the Employer and her team.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

I accept the Worker’s assertion that she was an employee of the Employer.

Whilst an employee with less than twelve months of service is not covered by the Unfair Dismissals Acts, it does not negate their entitlement to fair procedures in relation to grievance and disciplinary matters.

The Labour Court emphasised the importance of fair procedures in Beechside Company Limited t/a Park Hotel Kenmare and A Worker, LCR21798, noting: “… it is imperative that an employer in a dismissal case must not only show that there were substantial grounds justifying the dismissal but also that fair and proper procedures were followed before the dismissal takes place. This requirement of procedural fairness is rooted in the common law concept of natural justice.”

The Code of Practice on Grievance and Disciplinary Procedures (S.I. 146 of 2000), which promotes best practice in the conduct of grievance and disciplinary procedures, emphasises the importance of procedures to ensure fairness and natural justice. 

The Code of Practice emphasises that good practice entails a number of stages in the disciplinary and grievance process as follows:    

·       That employee grievances are fairly examined and processed.

·       That details of any allegations or complaints are put to the employee concerned.

·       That the employee concerned is given the opportunity to respond fully to any such allegations or complaints.

·       That the employee concerned is given the opportunity to avail of the right to be represented during the procedure.

·       That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors, circumstances.

In reaching my conclusions in this dispute, I am mindful of the recommendation of the Labour Court in LCR22391 C&W O'Brien Architects v A Worker, wherein the Court took into account the provisions of the Code of Practice on Grievance and Disciplinary Procedures (S.I. 146 of 2000) which, in the words of the Court: “emphasises the importance of ensuring that an employee is aware of any disciplinary procedure which is initiated in respect of her and to know any case being made against her and to have a fair opportunity to respond to any such case. The Code also emphasises the importance of the availability of an internal mechanism wherein a sanction which has been imposed can be appealed.”

The WRC and the Labour Court have consistently held that an employer is required to follow fair procedures before it makes a decision to impose a disciplinary sanction on a worker or to dismiss a worker. 

In the circumstances, I must conclude that the Employer’s handling of the matter clearly breached the Worker’s right to fair procedures and natural justice. In particular, I note that the Worker was not afforded fair procedures in accordance with the Code of Practice on Grievance and Disciplinary Procedures (S.I. 146 of 2000).

I recommend that the Employer pay the Worker the sum of €3,000 in compensation for her unfair dismissal.

Unfair dismissal- no fair procedures