Complainant

Respondent

Parties

Kelsey  Duggan

Karen Atkinson, t/a W Beauty

Complainant

Respondent

Anonymised Parties

Representatives

  Self

 Karen Atkinson (Wheeler)

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 8 of the European Communities (Working Conditions of Mobile Workers engaged in Interoperable Cross-Border Services in the Railway Sector) Regulations, 2009-SI No. 377 of

CA-00065653-001

28/08/2024

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

CA-00065653-004

28/08/2024

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

CA-00065653-007

28/08/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00065653-008

28/08/2024

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

CA-00065653-009

28/08/2024

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

CA-00065653-010

28/08/2024

The Complainant was employed as a Beauty Therapist by the Respondent.  She commenced employment on 10/06/2024 and was dismissed on 18/07/2024.  She was paid €12.70 per hour and worked a 30–38-hour week.  She submitted her complaints to the WRC on 28/08/2024.

The Complainant initially submitted 15 complaints in relation to her period of time working for the respondent.  At the hearing a total of 6 complaints were listed for this hearing.

The Complainant believed that she was continuously employed from 06/05/2024 by the respondent. 

The Respondent clarified that the business went into liquidation and she took over three of the salons following discussions with the liquidator.  While she was employed by the previous company she had no involvement in running the business.  The Respondent was clear that there was no transfer of undertakings associated with this transaction.

The Complainant gave evidence on affirmation.  She was accompanied at the hearing by her mother who was attending in a supporting capacity. The Complainant submitted that she was very badly treated by the respondent.  She was commencing her career as a beauty therapist and did not receive any support or training while employed.  She raised serious concerns about the manner in which her employment was abruptly terminated by the Respondent in  a text message.

CA-00065653-001:  This is a complaint seeking adjudication by the WRC under Regulation 8 of the European Communities (Working Conditions of Mobile Workers engaged in Interoperable Cross-Border Services in the Railway Sector) regulations, 2009, SI No 377 of 2009.

At the hearing the Complainant confirmed that she had inadvertently ticked the box associated with this complaint on the manual complaint form.  She accepted that this regulation did not apply to her employment with the respondent.

CA-00065653-004:  The Complainant gave evidence that she received no documentation in relation to her terms and conditions.  She was sent a contract and an employee handbook on 18/07/2024 which was the date of her dismissal.

CA-00065653-007:  The Complainant submitted a complaint seeking adjudication by the WRC under Section 8 of the Unfair Dismissals Act, 1977.  The Complainant outlined that she feels that the manner of her dismissal was appalling, insensitive and lacked any notice.  In response to a question from the Adjudication Officer the Complainant confirmed that she was unaware that the was a service provision contained in the Unfair Dismissals Act.  She stated that she wanted to make sure that the manner of her dismissal was noted as she was dismissed by a text message.

CA-00065653-008: The Complainant gave evidence that she was promised that she would receive training when she took on the role with the respondent.  During her time there she was given no time to adjust.  The Complainant also stated that she was not provided with training in relation to certain procedures that she was uncomfortable undertaking.  She stated that she was required to carry out treatments on clients without any training provided to her.  The Complainant gave evidence that other employees were provided with training.

CA-00065653-009:  The Complainant submitted this complaint on the basis that she did not get a daily rest period as outlined in the Organisation of Working Time Act, 1997.  She submitted that she frequently did not get the 30-minute break while employed by the respondent.  The breaks were put on the roster and it was up to the manager to allow these.

CA-00065653-010:  The Complainant stated that she could be rostered for work from 9.30am to 9.00pm.  The roster did provide for a 30-minute break but there was no provision for a 15-minute break.  This happened for the entire duration of her employment with the respondent. The Complainant also stated that she was told that if she was not fully booked for the duration of her shift she was not entitled to a break.  The Complainant refutes the Respondent’s  evidence that she was told that she could take a 15-minute break when circumstances allowed.

In her closing submission the Complainant outlined that she was extremely troubled by the voice message left by the Respondent when her employment was terminated.  She had no notice and the Complainant refutes the Respondent’s  assertion that she was unprofessional.  The Complainant stated that her working conditions were terrible and she had to provide her own uniform and protective gloves.  She only saw the Respondent once during her employment as the Respondent worked in another branch.  The Complainant also stated that her wages were regularly left short and she had to follow this up. The Complainant submits that her breaks were an issue and were not properly organised and on many occasions she did not get these. She felt that the business was not run in a professional manner and she was treated unfairly.  The Complainant stated that in her current role she is happy and the salon is run on a professional basis.

The Complainant stated that her employment with the Respondent had affected her mental health as a result of the unfair treatment and working conditions.

Ms Karen Atkinson confirmed that she is the owner of the business and operates as a sole trader.  She took over the business on 10 /06/2024 after discussions with the liquidator.  She had no ownership involvement in the previous business.  Ms Atkinson gave evidence on affirmation.  She stated that she employed the Complainant from 10/06/2024.

CA-00065653-004:   The Respondent stated that she issued a contract of employment and employee handbook to the Complainant on 18/07/2024.  The Respondent acknowledges that there was a delay and this was due to the fact that she had taken over the business and assumed that she would have a grace period to get things organised.  Any queries regarding any aspect of the employment could always be answered by the salon manager or the respondent.

CA-00065653-007:  The Respondent outlined that the Complainant was employed for a total of six weeks.  As she was employed for under 13 weeks she was not obliged to give her notice.  The Respondent received texts from the Complainant on 28/07/2024 and 29/07/2024 and as she did not want to ignore her she sent her a text message to say that as her employment was on a trial basis she could no longer keep her on.  The Respondent submitted a copy of the text message to the hearing.  The Respondent acknowledges that sending the text was not an ideal way to end the employment but this occurred as she did not want to ignore her.  The Respondent stated that she felt the text message was polite.  The Respondent also stated that after this she received a lot of texts which she perceived as threats  and other comments about her business.

CA-00065653-008: The Respondent denies that the Complainant was discriminated against due to lack of training.   It is the Respondent’s  position that they were running a beauty salon and not a beauty training school.  The Complainant had completed her training in a beauty school and was employed as a Beauty Therapist as she had completed this training course.  The Respondent also stated that the Complainant did get some training and she brought her sister in to assist her.

CA-00065653-009; CA-00065653-010:    The Respondent submits that the Complainant’s roster had an allocation of a 30-minute rest period.  The senior person in the salon would allocate the 15 minutes when it was possible to do so.  The 30-minute break was always rostered but the 15-minute break was  dependent on the client schedule. The Respondent submitted screen shots of the roster showing that the 30-minute break is always allocated on the booking system.   The 15-minute break is taken when staff have free space and the Complainant always had free space on the booking system.  The Respondent submits that senior staff would have advised the Complainant of this.

The respondent, in a closing statement, stated that she always provided training to employees.  When someone is taken on she must ensure that they have the appropriate certification in order to undertake the duties required.   It was not correct of the Complainant to state that she was responsible for providing face masks and gloves.  The Respondent provided these and provided copies of her order for those.  The delay in getting uniforms sorted was purely a supplier issue. 

The Respondent also noted that the delays in relation to payments were sorted and resolved.

The Respondent also noted that her experience of having the Complainant as an employee had an effect on her mental health and she had to block her number to ensure that the messages stopped.  The Respondent submitted that when she took on the business as a sole trader you are not provided with a manual and she just wanted to do what was right to run the business.

CA-00065653-001:  This is a complaint seeking adjudication by the WRC under Regulation 8 of the European Communities (Working Conditions of Mobile Workers engaged in Interoperable Cross-Border Services in the Railway Sector) regulations, 2009, SI No 377 of 2009.   The Complainant is not a person who is covered by the provisions of these regulations.  This complaint is misconveived.

CA-00065653-004:  It is not disputed that the Complainant did not revive details of her terms and conditions when she commenced employment on 10/06/2024.

The Applicable law:

The relevant sections of the Act provide as follows:

3.—(1A) Without prejudice to subsection (1), 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 or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act 2014);

(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;

(e) the number of hours which the employer reasonably expects the employee to work—

(i) per normal working day, and

(ii) per normal working week;

(f) where sections 4B to 4E (in so far as they are in operation) of the Payment of Wages Act 1991 apply to the employer, the employer’s policy on the manner in which tips or gratuities and mandatory charges (within the meaning of section 1 of that Act) are treated,

(g) the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is employed at various places or is free to determine his or her place of work or to work at various places;

(h) either—

(i) the title, grade, nature or category of work for which the employee is employed, or

(ii) a brief specification or description of the work;

(i) the date of commencement of the employee’s contract of employment;

(j) any terms or conditions relating to hours of work (including overtime);

(k) where a probationary period applies, its duration and conditions.]

(1B) Where a statement under subsection (1A) contains an error or omission, the statement shall be regarded as complying with the provisions of that subsection if it is shown that the error or omission was made by way of a clerical mistake or was otherwise made accidentally and in good faith”.

An Adjudication Officer has jurisdiction under this Act to assess if the Respondent breached the Act by failing to provide the Complainant with a written statement of the terms of her employment as per s. 3 of the Act. 

The Terms of Employment (Information) Act imposes obligations on an employer and confers a corresponding right on a worker to have the basic terms of employment set out in writing in accordance with section 3 of the Act. The obligation to give an employee a written statement of terms of employment rests solely with the Respondent.  The Respondent failed to do so in this case.

The requirement to supply a written statement to an employee is an important one which provides the basis for an employee to have the clarity as required by the Act as regards his or her terms of employment. The Complainant in this case was without that clarity for a period up to 16 November 2022 in relation to certain terms of employment, as specified in the Act.

As a result, I  find that this complaint is well founded.

In circumstances where I consider the complaint to be well founded, I may require a statement to be provided.  In addition, I am entitled to direct a payment of compensation up to the value of four weeks remuneration such that is just and equitable in all the circumstances.  Given the circumstances of this case there is no longer a requirement to provide the terms.  Where a contravention of the Act occurs the Adjudication Officer must make an award that is just and equitable having regard to all the circumstances. It was not disputed that the Complainant was in receipt of an hourly rate of pay of €12.60 and that she worked between 30 -38 hours a week.

The Respondent fully accepts that it failed to provide the Complainant with a written statement of terms of employment as required under s.3(1)(A) of the Act within 5 days of the commencement of his employment. It is accepted that the statement issued to the Complainant on 18/07/2024 which was the date she was dismissed.

In circumstances given the Complainant’s short tenure of employment I consider that an award of €750.00 to be just and reasonable having regard to all the circumstances.

CA-00065653-007:  The Complainant submitted a complaint seeking adjudication by the WRC under Section 8 of the Unfair Dismissals Act, 1977.  The Complainant confirmed that she was unaware that the was a service provision contained in the Unfair Dismissals Act. 

The Relevant Law:

Section 2 (1) of the Unfair Dismissals Act states that “This Act shall not apply in relation to any of the following persons:

(a)    An employee (other than a person referred to in section 4 of this Act) who is dismissed, who, at the date of his dismissal, had less than one year’s continuous service with the employer who dismissed him”

I note that the Complainant did not have sufficient service to allow her to pursue a claim under the Act.  

The following dates are relevant to that position:

·       The Complainant commenced employment on the 10/06/2024

·       The Complainant’s employment  terminated on the 18/08/2024.

The Complainant was advised that the Adjudication Officer does not have jurisdiction to hear her complaint based on the dates of her employment. 

CA-00065653-008: The Complainant gave evidence that she was promised training when she took on the role with the respondent.  In order to pursue a complaint under one of the nine grounds under the Act a Complainant must select which of the grounds the claim is based on.

The Complainant has a number of hurdles to pass under the Employment Equality Acts.  Firstly, the complaint of discrimination must be linked to one of the nine grounds outlined in Section 6 (1) of the Act.  It is not sufficient to state that it was merely access to training. The Complainant has not selected any ground.  Section 22(1) of the Act also states that it is incumbent on the Complainant to identify a comparator.  She has not done so.

The next hurdle is that the Complainant, under Section 85 A of the Act must prove on the balance of probabilities the primary facts on which she relies in seeking to raise a presumption of unlawful discrimination.   The test for applying this section is well settled in several decisions and specifically in Mitchell v Southern Health Board [2001] ELR 201:

“The claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.  It is only when these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the Respondent to prove that there is no infringement of the principle of equal treatment”.

I find  that this discrimination complaint is fundamentally misconceived.  There is no valid basis to the claim and I find that this complaint is not well founded.

CA-00065653-009:  The Complainant submitted this complaint on the basis that she did not get a daily rest period as outlined in the Organisation of Working Time Act, 1997.  She submitted that she frequently did not get the 30-minute break while employed by the respondent.  The breaks were put on the roster and it was up to the manager to allow these.

The Relevant Law:

Section 12 of the Act provides:

“12. – (1) An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her a break of at least 15 minutes.

(2) An employer shall not require an employee to work for a period of more than 6 hours without allowing him or her a break of at least 30 minutes; such a break may include the break referred to in subsection (1).”

The Complainant’s complaint is that there was a breach of the Act by the Respondent when she did not always get a 30-minute break.  No evidence was provided to particularise and support this claim.  If the Complainant did not get her 30-minute break it was incumbent on her to raise this promptly with the relevant manager or senior staff member.  The Respondent has rosters and records which they submit demonstrates no breach of the Act.   I find this complaint to be not well founded.

CA-00065653-010:  The Complainant stated that she did not receive any 15-minute breaks during her employment.  The Respondent submitted that she did. The employer did not have detailed records regarding breaks given to salon staff.

The Relevant Law:

“Records.

25.—(1) An employer shall keep, at the premises or place where his or her employee works or, if the employee works at two or more premises or places, the premises or place from which the activities that the employee is employed to carry on are principally directed or controlled, such records, in such form, if any, as may be prescribed, as will show whether the provisions of this Act and, where applicable, the Activities of Doctors in Training Regulations are being complied with in relation to the employee and those records shall be retained by the employer for at least 3 years from the date of their making.

(2) The Minister may by regulations exempt from the application of subsection (1) any specified class or classes of employer and regulations under this subsection may provide that any such exemption shall not have effect save to the extent that specified conditions are complied with.

(3) An employer who, without reasonable cause, fails to comply with subsection (1) shall be guilty of an offence.

(4) Without prejudice to subsection (3), where an employer fails to keep records under subsection (1) in respect of his or her compliance with a particular provision of this Act or the Activities of Doctors in Training Regulations in relation to an employee, the onus of proving, in proceedings before a rights commissioner or the Labour Court, that the said provision was complied with in relation to the employee shall lie on the employer”.

As no written record of the breaks given to salon staff has been being compiled and retained by the respondent, I find that on balance, the Complainant has established a well-founded complaint in regard to a breach of Section 12 of the Act.  The Complainant was employed by the Respondent for a period of 5 weeks and 3 days.  Arising from this I require the employer to comply with the provisions of the Act and to provide its salon staff with breaks.   I also require the employer to pay the Complainant compensation of €200 which I consider to be just and equitable having regard to all the circumstances.

CA-00065653-001:  The Complainant is not a person who is covered by the provisions of these regulations. I find that this complaint is misconceived.

CA-00065653-004:  I have decided that this complaint is well founded.  I consider that an award of €750.00 to be just and reasonable having regard to all the circumstances. I order the Respondent to pay this award within 42 days of the date of this decision.

CA-00065653-007:  I have decided that I do not have jurisdiction to hear her complaint based on the dates of her employment which were provided. 

CA-00065653-008:  I find  that this discrimination complaint is fundamentally misconceived.  There is no valid basis to the claim and I find that this complaint is not well founded.

CA-00065653-009:  I find this complaint to be not well founded.

CA-00065653-010:  I find that this complaint is well founded.  I require the Respondent to comply with the provisions of the Act and to provide its salon staff with breaks.   I also require the Respondent to pay the Complainant compensation of €200 which I consider to be just and equitable having regard to all the circumstances.  I order the Respondent to pay this award within 42 days of the date of this decision.