Complainant

Respondent

Parties

Iga  Piotrowska

Sunny Sky Solarium Nails & Beauty Ltd

Representatives

Sophia Dudek (Business owner)

Mohan Muriandy (Company Accountant)

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-00065833-001

06/09/2024

This hearing was conducted in person in the Workplace Relations Commission situate in Lansdowne Road, Dublin. In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021) the hearing was conducted in recognition of the fact that the proceedings constitute the administration of Justice. It was therefore open to members of the public to attend this hearing.

I informed the parties that pursuant to the Workplace Relations (Miscellaneous Provisions) Act, 2021 coming into effecton the 29th of July 2021 and where there is potential for a serious and/or direct conflict in evidence between the parties to a complaint, then an oath or affirmation may be required to be administered to any person giving evidence before me. I confirm that I have administered the said Oath/Affirmation as appropriate and in order that matters might progress. It is noted that the giving of false statement or evidence is an offence.

The complaint herein is set out in the Workplace Relations Complaint Form dated the 6th of September 2024.

At the completion of the hearing, I did take the time to carefully review all the oral evidence together with the written submissions made by the parties. I have noted the respective position of the parties.  I am not required to provide a line-by-line assessment of the evidence and submissions that I have rejected or deemed superfluous to the main findings.  I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held that a

“…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one.  Only broad reasons need be given…”. 

The Complainant was not represented and made her own case. The Complainant relied on the narrative that she set out in the complainant form as forming the pre-hearing submission . The Complainant’s oral evidence was in line with the complaint lodged, albeit she added detail. The Complainant agreed to make an Affirmation to tell the truth.

The Complainant provided me with supplemental documentary evidence in support of the Complainant’s case. In particular I was shown the letter of dismissal. No objection was raised to any of the materials relied upon by the Complainant in making her case. The Evidence adduced by the complainant was challenged as appropriate by the Respondent witness.

The Complainant alleges that she was summarily dismissed without notice and without warning and that she had no idea that her performance was being assessed and/or scrutinised by her Employer SD. The Complainant denies that her performance was poor and in any event was never told that it was poor. The Complainant was never given an opportunity to improve if that needed to be done.

In the circumstances the complainant says that she was Unfairly Dismissed.

Where it also became necessary, I explained how the Adjudication process operated with particular emphasis on the burden of proof which had to be attained by the Respondent in the first instance.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. 

The Respondent in the person of SD had assistance at this hearing in the person of the company Accountant. SD gave evidence for and on behalf of the Respondent company. All evidence was heard following an Affirmation.

The Respondent rejects that there has been an Unfair Dismissal and does not accept any contravention of Employment Rights as protected by statute.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

I have carefully considered the evidence adduced in the course of this hearing. The Complainant herein came to work for Sunny Sky Solarium Capel Street in March of 2020. The Complainant was made Manager by SD the Employer Owner of this salon as well as two other salons. On the 23rd of July 2024 the Complainant says that she was handed an envelope by SD. The envelope contained a letter of Dismissal. Seemingly by chance the Complainant was in the company of a fellow colleague at the time, and she says she was deeply embarrassed to have to share this moment with anyone.

The letter indicated that the Complainant had been dismissed from the business with immediate effect. The Complainant says that there had been no previous warnings given to her regarding a dismissal, neither written nor verbal. The letter came as a complete shock to the complainant to her.

In this dismissal letter it was  stated that there had been a thorough investigation undertaken that determined that the Complainant’s actions were gross misconduct and that the company had decided to terminate the employment with immediate effect without notice or payment in lieu of notice.

The Complainant pointed out that her Contract of Employment states:

‘The employee will be suspended on full pay pending completion of a thorough investigation of the complaint. If on completion of the investigation and the full disciplinary procedure, the company is satisfied that gross misconduct has occurred, the result will normally be dismissal without notice or payment in lieu of notice.’

The reasons for dismissal were stated in the aforementioned  letter as being:

 1. Consumption of unknown substances that significantly impaired your work performance. Such behaviour is strictly prohibited as would not be safety for you but also the safety and wellbeing of your colleagues.

2. Abuse towards customers. There had been multiple verified reports of you abusing customers who have visited Sunny Sky Solarium Capel St. This behaviour is entirely unacceptable and directly contravenes our commitment to providing exceptional customer service.

3. Breach of duty and bringing the company into disrepute. Your actions have severely breached your duty as an employee, and manager bringing the company into disrepute and undermining the trust and fidelity essential to the employer-employee relationship.

In effect the Complainant is saying that she is a stranger to all these issues. She says that none of these issues was ever raised with her formally or informally. There was no suspension and no investigation and no disciplinary process, and there was certainly no suggestion of the Complainant ever being allowed to defend her work ethic, her position in the company or her reputation. The Complainant was never told who had made complaints against her and for what. The Complainant was never told when exactly it was alleged that her work performance was impaired by reason of substance abuse and goes so far as to say that this allegation is simply made up.

In the dismissal letter, the reasons for dismissal are extremely vague and do not specify any specific time or date of any incident that has been deemed gross misconduct. The Complainant also notes that there was no right to appeal the decision made.

In fact, the Complainant stopped working on the day that she received that letter and only returned once to the workplace to return keys and claim personal items.

The Complainant does concede that on one occasion a customer had been irate when the Complainant had not been able to make an appointment for her The Complainant seemed to be aware that the said customer had complained to SD about this. The Complainant recalled a subsequent conversation about this which for no very apparent reason was conducted in front of a third party/friend of the Respondent who had nothing to do with the workforce. The Complainant expressed her discomfort at this occurrence.

The Complainant believes that a recent spate of anonymous negative reviews online had caused the Employer to react badly and single the Complainant out for blame. The Complainant felt that his was unfair as there are up to nine employees moving across three premises. The Complainant noted that the employer had been abroad for five months just prior to the dismissal and it was when she came back from her travels that SD made an assessment that the salon had suffered some sort of reputational damage for which the Complainant was to blame.

The Respondent agreed that she had not obtained HR advice when she opted to terminate the employment. She did not provide a notice period and believed her assessment of the situation entitled her to dismiss the Complainant Summarily.

It is to be noted that the established jurisprudence in relation to dismissal law in this jurisdiction takes a very restricted view of what constitutes “gross misconduct” justifying summary dismissal.

In this regard, I note that the Employment Appeals Tribunal (EAT) held in the case of Desmond Brennan -v- Institute of Technology Carlow UD281/2000 that:

“Lawyers use the adjective “gross” in limited cases. “Gross negligence” means negligence of a very high degree, and quite different from ordinary negligence which can happen quite easily.

Similarly, “gross misconduct” must be something very serious indeed, perhaps criminal or quasi-criminal in nature. The word used in s.6(4)(b) of the Unfair Dismissals Act is “conduct”, which is a neutral word, by contrast with the word “misconduct” used in the Minimum Notice and Terms of Employment Act to justify dismissal without notice.

The use of these two words in related statutes suggest two different standards, and over the years the Irish Courts have often found that the nature of an employee's conduct was such as to justify dismissal, but not to justify summary dismissal.

The words “gross misconduct” must therefore mean something even more serious."

It is well established in relation to dismissal law in this jurisdiction that there is a restricted view of what constitutes gross misconduct justifying summary dismissal. Gross misconduct can lead to instant or immediate dismissal without notice or pay in lieu of notice. Examples of gross misconduct include:

• Assault
• Drunkenness
• Stealing
• Bullying
• A serious breach of your employer's policies and practices

There is an element of what might be described as an immediate imperative associated with an entitlement to dismiss an employee for gross misconduct. So that when looking at the facts being relied upon by the Employer, the Employer must be able to demonstrate that it could, and in fact should, immediately dismiss an employee for a clear and unambiguous act of misconduct.

This is evidenced, for example, by the determination of the Employment Appeals Tribunal in Lennon v Bredin M160/1978 (reproduced at page 315 of Madden and Kerr Unfair Dismissal Cases and Commentary (IBEC,1996)) wherein the Tribunal states:

"Section 8 of the Minimum Notice and Terms of Employment Act 1973 saves an employer from liability for minimum notice where the dismissal is for gross misconduct. We have always held that this exemption applies only to cases of very bad behaviour of such a kind that no reasonable employer could be expected to tolerate the continuance of the relationship for a minute longer; we believe the legislature had in mind such things as violent assault or larceny or behaviour in the same sort of serious category. If the legislature had intended to exempt an employer from giving notice in such cases where the behaviour fell short of being able to fairly be called by the dirty word ‘misconduct’ we have always felt that they would have said so by adding such words (after the word misconduct) as negligence, slovenly workmanship, bad timekeeping, etc. They did not do so."

In the case of Moore v Knox Hotel and Resort Ltd, UD 27/2004, where the EAT stated that summary dismissal as a consequence of gross misconduct could be justified when the trust and confidence between the parties had been irrevocably broken:

"[The claimant's actions] destroyed the respondent's trust and confidence in the claimant and rendered the continuation of that employment relationship impossible, thereby justifying her […] dismissal”.   

As to whether there were substantial grounds for an employee’s dismissal on the ground of gross misconduct, the applicable legal test is the “band of reasonable responses” test, as comprehensively set out by Mr Justice Noonan in the context of Section 6 of the Unfair Dismissals Act 1977 in the High Court case of The Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241, wherein the Judge stated:

“It is thus clear that the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s. 6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer's conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned - see Royal Bank of Scotland -v- Lindsay UKEAT/0506/09/DM.”

If an Employee has been dismissed by an employer who has indicated vocally or in a printed letter that the reason for dismissal is for ‘’Gross Misconduct’’ it can come as quite a shock. If the employee has genuinely no understanding of how this decision was made then there might be a doubt as to whether this is an issue of Gross Misconduct. Even if the employer is satisfied the circumstances amount to ‘Gross Misconduct’ the employee is still entitled to fair procedures as they have a constitutional right to same.

On balance I am not satisfied that the Respondent herein has established that there has been Gross Misconduct. None of the allegations set out in the letter of dismissal have been established. More worryingly is the employer’s reaction to anonymous reviews left on the web page.

An employer should avoid reacting to an anonymous or malicious review containing potentially false or exaggerated accusations about an employee. Such reviews are unreliable and untraceable and acting of foot of them amounts to an unjust treatment where there is any doubt as to their accuracy.

In assessing compensation, I have to be mindful of the fact that the Complainant has seemingly not made many efforts to find alternative employment since July of 2024. A one-month spell in a Lidl was worked. The Complainant was on a salary of circa €300.00 per week with the Respondent company.

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

CA-00065833-001 - – The Complainant was Unfairly Dismissed in circumstances where there is no evidence justifying a Gross Misconduct dismissal and no procedures followed to allow for a termination of the employment for cause shown. The Complainant was further denied her entitlement to work a notice period. I award compensation in the sum of €6,000.00