Worker

Employer

Anonymised Parties

Hairdresser

Hair Salon

Representatives

  self

Nicola Murphy Peninsula Business Services Ireland

Act

Dispute Reference No.

Date of Receipt

Section 13 Industrial Relations Act 1969

CA-00065553

22/08/2024

The worker was approached by the owner to work for her Salon. She had previously worked at the Salon and was persuaded to leave a permanent role for a position with her old employer.

She was on a 3-month probation period which she passed.

She commenced her employment on the 13th of March 2024 and her employment was summarily ended on the 3rd of August 2024 by email.

The Worker had several absences during the period that were either certified sick absence or emergency requests for leave.

The Employer stated that she had treated the Worker fairly. Had paid her for time when she was absent. However, the straw that broke the camel’s back was a pattern of not turning up for Saturday shifts and the chaos that ensued from that.

The employment ended arising from an unplanned absence that again placed very significant pressure on other colleagues to complete their work and the Worker’s appointments.

The worker accepted that she was absent arising from being certified sick and arising from unforeseen events where she could not attend work. The issue was not the right to the Employer to address these problems rather the unfairness and harsh way that it was done. The worker stated that she was summarily terminated by email. She should have at least had formal warning. Any formal conversations that took place about attendance took place at the workers initiative. The salon has organisational challenges, and the worker believes that she was scapegoated. Clients were not left high and dry and the owner is exaggerating the impact it had on her business. The unfairness of the summary dismissal must be seen where the worker had left a job where she was successful to go and work for this salon as she was asked. The dismissal caused her both emotional pain and financial loss. The decision had no consideration for the workers personal circumstances and her financial obligations.

The worker is a very talented hairdresser. She was approached to come back to the salon. The only reason why the worker’s contract was ended arose from a pattern of absence at very short notice that gave rise to very significant client disruption and cancelled appointments.

The worker is making light of the disruption; however, it was significant and had significant financial impact on the business.

The worker had been paid for some absence. However, after warning the worker about her short notice absence, particularly on a Saturday’s, the straw that broke the camel’s back was a reoccurrence that gave rise to very significant customer disruption and upset.

The worker was uncontactable and, in that context, a written email was sent to her, it could not have been a surprise as the seriousness of her unreliable attendance was discussed with her.

The worker also had every opportunity to commence new employment as her skills are in high demand.

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

This is a trade dispute.

SI No 146/2000 code of practice requires that the worker is afforded fairness during her probationary period:

6.     The procedures for dealing with such issues reflecting the varying circumstances of enterprises/organisations, must comply with the general principles of natural justice and fair procedures which include:

•    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 or circumstances.

The Labour Court in Beachside Company Limited LCR 21798 considered if a worker could rely upon SI no 146 of 2000 during the probationary period. That decision stated:

Where an employee is considered unsuitable for permanent employment, the Court accepts that an employer has the right, during a probationary period, to decide not to retain that employee in employment. However, the Court takes the view that this can only be carried out where the employer adheres strictly to fair procedures.

The Employer has the right to dismiss during probation and the absence pattern would give rise to such discretion being exercised as it related to the worker’s performance of her duties. I note the Court of Appeal in Donal O’Donovan v Over-C Technology Limited and Over-C Limited [2021] IECA 37, the Court allowed an appeal against a decision of the High Court restraining the employer from dismissing an employee during his probationary period on performance related grounds. In this case the probation period had been completed and was for 3 months. There is no supporting documentation to say it was extended. However, the employment was ended after about 5 months.

The worker commenced her employment on the 13th of March 2024.

The worker’s employment was ended on the 3rd of August 2024.

The worker had completed a 3-month probation period.

Her gross monthly salary was €2780.

The code of practice in some respects was followed; however, the nature of the dismissal deprived the worker to a fair hearing, to explain why she failed to attend work again on a Saturday and with very little notice. In turn that caused very significant disruption to the business. The worker significantly contributed to her own dismissal. While there were procedural flaws the Employer was justified to end the contract. In these circumstances a very modest award is recommended. I recommend that the worker receive €800 in compensation. This is an award made for the nature of the summary dismissal in writing without a proper meeting and a fair hearing. The Employer maintains that a right of appeal was given and not exercised. That does not diminish the summary nature of the dismissal without a hearing. However, the pattern of absence would justify ending the contract.

Dismissal