EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
– claimant UD188/2013
Signature Operations Limited
T/A Advanced Laser Light
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms S. McNally
Members: Mr D. Hegarty
Mr J. Flannery
heard this claim at Cork on 25th September 2014 and 20th January 2015
Mr David Gaffney, Sweeney, Solicitors, Marlboro House, Marlboro Street, Cork
First hearing- Ms.Carol Hickey, Hickey Doran Solicitors,
The Square, Passage West, Cork
Second hearing- No attendance or representation
The determination of the Tribunal was as follows:-
Summary of Evidence
The respondent operates three clinics in Ireland with nine employees. The clinics provide laser hair removal and skin treatments. The claimant commenced employment in 2009 in the role of beauty therapist. The respondent director/owner (LM) gave evidence of providing training to the claimant. No training records or training manual were submitted at the first hearing.
In and around 2012 LM received some complaints from clients about the claimant’s work in particular complaints about hair removal not carried out properly. No written complaints or files of clients who complained were available at the first hearing.
She met with the claimant in May 2012 and raised the performance issues. As part of the process she sat in on some treatments. Another performance issue regarding the failure by the claimant to record the use of product applicators was raised at a second meeting in July 2012. Following a number of other complaints from clients a verbal warning was issued in July 2012. There was no noticeable improvement with performance and the work relationship deteriorated.
On the 12 December 2012 a regular client was booked in for a procedure which included a skin peel and thread vein laser. On the day the claimant suggested she have laser rejuvenation treatment instead of the skin peel. The claimant performed two laser treatments which caused the client to suffer third degree burns to her face. Photographs which had been taken were not available. The client contacted LM directly that night and a GP was sent to the client. After some time the skin healed and no action was taken by the client. LM had immediately sought a full report on what had happened from the claimant who had expressed no concern over the incident. On the 4 January she received the incident report.
LM submitted that she took the decision to dismiss the claimant on the following grounds
- Complaints about treatments
- Communication issues
- The incident of the 12 December 2012 causing injury to a client
- Failure to obtain consent from client
She dismissed the claimant on the15 January 2013 to protect the reputation of the clinic. No appeal was offered to the claimant.
At the conclusion of the first day of hearing the respondent’s representative reserved the right to call a further witness at the resumed hearing. At the commencement of the resumed hearing
the Tribunal waited for an appropriate period for the respondent and/ or the respondent’s representative to appear. There was no appearance by the respondent or the respondent’s representative. It was noted by the Tribunal that the claimant’s representative had been informed that the respondent’s representative would not be appearing. The tribunal continued to hear the claimant’s evidence.
Giving sworn testimony, the claimant said that she had initially worked for a different company (here referred to as MLI) before starting for the respondent company. They both had the same trading name. MLI was now in receivership. The claimant had a contract with the respondent from November 2009. She had started working for MLI in March 2009. After over a year the business morphed into the respondent company.
On the 20th of December 2012 the respondent was breaking for Xmas when LM (the respondent’s principal) wanted to speak to the claimant. LM followed the claimant to the tea break room. The claimant said that she would need a witness. The claimant told the Tribunal LM had “said I’d run (the respondent) into the ground”. LM showed her photos of JN (a client). A meeting was arranged for 3 January 2013.
On 2 January 2013 LM had sent the claimant a text message about JN and the claimant’s attitude in the clinic. The claimant did not retain that text message for the Tribunal.
For the arranged meeting on the 3rd of January 2013 the claimant brought TE (her husband) who took notes. Because they thought that LM spoke too fast they recorded the meeting with the consent of LM. The claimant asked LM to explain the complaint against her. The claimant got no photos or documents but LM said that she was not happy with her. LM had given the claimant no training. LM had told the claimant that she had spoken to a doctor about JN’s injuries but the claimant did not see anything from a doctor and had received no complaint from JN other than an initial call which did not alert the claimant of any injury. LM had asked what had happened and had said she wanted a written report from the claimant.
LM said that she would have to think and let the claimant know. The claimant did not think that she would be fired. LM could not name clients when the claimant asked who else had made complaints about the claimant’s performance.
Before that the claimant had not known that there was anything wrong in her performance. LM had valued her as an employee and had offered her a managerial position. The relationship had broken down in the summer. Meetings were cancelled. LM kept putting off appointing the claimant to a managerial position. The claimant had not been disciplined about her timekeeping or any other issue.
The Tribunal was then referred to a dismissal letter dated 15 January 2013 in which it was said that the claimant had been guilty of serious negligence in her treatment to a client, had shown no concern for the client JN and had failed to improve her performance despite having been warned. From 3 to 15 January the claimant had worked as normal. She did not know why this was the case.
Asked about the allegation that she had shown no concern, the claimant said that she had not been getting on with LM. The claimant accepted that she had been paid two weeks’ notice.
Regarding post-dismissal financial loss incurred, the claimant sought new work and the Tribunal was given details of efforts to mitigate her loss by working in several employments before gaining a post in a family business such that she was not claiming ongoing loss.
Questioned by the Tribunal, the claimant said that beauty treatments could have blistering in the short-term but they did not generally come to anything serious. JN had rang her but the claimant felt there was no serious blistering but told her to ring her if she had further problems. The claimant believed that a piece of tissue was left on the skin by JN and when removed caused some blistering. JN had received beauty treatments a lot. The claimant said that it was important not to do two treatments on the same day over the same skin area and that she had not done this, while the two treatments were done on the one day they were over two different areas of skin which is allowable practice. The claimant was of the view that the respondent had not proven anything serious against her.
Having carefully considered all the evidence adduced, the Tribunal is unanimous in allowing the claim under the Unfair Dismissals Acts, 1977 to 2007, and, in all the circumstances of the case, deems it just and equitable to award the claimant compensation, taking account some contribution on the part of the claimant, the sum of €6,000.00 under the said legislation.
Sealed with the Seal of the
Employment Appeals Tribunal