FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : WINNAH ROSE HAIRDRESSING LTD (REPRESENTED BY PENINSULA BUSINESS SERVICES) - AND - MEGHAN RYAN DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No: ADJ-00024549 CA-00030881-001. In this decision of the Court, the parties are given the designation of Complainant in the case of Ms Ryan and Respondent in the case of Winnah Rose Hairdressing Limited t/a Ni Lasaigh Hair Salon Background The Complainant commenced employment with the Respondent on 8thMay 2018 according to herself and, according to the Respondent, on 23rdMay 2018. Her employment terminated on 20thApril 2019. Notwithstanding the dispute between the parties as regards the date of commencement of employment it is common case that, at the date of termination of the employment, the Complainant had less than one year’s continuous service with the Respondent. The Act at Section 2(1)(a) provides as follows: 2.(1) Except in so far as any provision of this Act otherwise provides 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, The Complainant in the within appeal contends that the reason for her dismissal was that she had, on 11thApril 2019, asserted her rights under the National Minimum Wage Act, 2000 in that she sought from the owner of the Respondent an increase in her weekly wage in accordance with the then applicable National Minimum Wage. She contends that the Respondent owner had been absent from work from that date until 16thApril 2019 and on her return had advised the Complainant that her employment was to be terminated with one week’s notice on the basis that her accountant had advised her that the wage increase was not viable and that the termination of her employment was part of necessary cutbacks which had to made as a result.The National Minimum Wage Act, 2000 (the Act of 2000) at Section 36, in relevant part, provides as follows: 36. (1) An employer shall not cause or suffer any action prejudicial to an employee for the employee having— (a) exercised or having proposed to exercise a right under this Act, (b) in good faith opposed or proposed to oppose by lawful means an act which is unlawful under this Act, or (c) become, or in future will or might become, entitled in accordance with this Act to remuneration at an hourly rate of pay that on average is not less than the national minimum rate of pay, or a particular percentage of that rate of pay. (2) Dismissal of an employee in contravention of subsection (1) shall be deemed to be an unfair dismissal of the employee within the meaning and for the purposes of section 6(1) of the Unfair Dismissals Acts, 1977 to 1993 (but without prejudice to sections 2 to 5 of the Unfair Dismissals Act, 1977, except that it is not necessary for the employee to have at least one year’s continuous service with the employer and that Act shall apply as if the Worker Protection (Regular Part-Time Employees) Act, 1991, were repealed in relation to the number of hours an employee is normally expected to work for the purposes of that Act) and those Acts, with the necessary modifications, shall apply accordingly. The appeal before the Court, having regard to the legislation as set out above, is concerned with whether the dismissal of the Complainant amounted to a dismissal in contravention of subsection 1 of Section 36 of the Act of 2000. If it was such a dismissal, the dismissal was, by operation of the Act of 2000 at Section 36(2), unfair. If it was not such a dismissal, the Complainant, having regard to the length of her service, does not, by operation of the Act at Section 2(1)(a), have locus standi to maintain the within complaint.Summary position of the Respondent The Respondent submitted that the Claimant was dismissed on 20thApril 2019 and that the dismissal resulted from performance issues including difficulties which occurred in July 2018 as well as the outcome of a performance assessment over the period of January and February 2019 which concluded that the Complainant generated less income than the cost of her wages in the period. In evidence to the Court, the owner of the Respondent company asserted that whereas these issues were elements in the decision to dismiss the Complainant, the impact of a requirement to apply the National Minimum Wage to her also played a part in the decision to dismiss. The owner, in her evidence to the Court, also acknowledged that she had provided the Complainant with a letter signed by herself which asserted that the Complainant’s employment had been terminated because‘the Government abolished trainee pay rates in Hairdressing and the wage bill was not viable for the company. Therefore cutbacks had to be made’. The Respondent also submitted that the Complainant’s attitude to her work and her demeanour were issues throughout her employment albeit any instance of having raised concerns over such matters was not recorded. Summary of the Complainants’ Case The Complainant submitted that she had been victimised by the Respondent because she exercised her right to request a pay increase under the National Minimum Wage Act 2000 and that this constituted an Unfair Dismissal within the meaning of the Act. She submitted that because training rates in Hairdressing were abolished in accordance with the terms of the Employment (Miscellaneous Provisions) Act, 2018, on 4thMarch 2019 she became entitled to payment of the National Minimum Wage in accordance with the terms of the National Minimum Wage Act, 2000. She submitted that on 11thApril 2019, because the National Minimum Wage had not been applied to her, she approached the Respondent for a meeting to discuss the matter. The Respondent advised her that she would meet her accountant to discuss the matter. The Respondent was absent from work between that date and 16thApril 2019. On that date she advised the Complainant that the wage increase was not viable and therefore cutbacks would have to be made and that as one of the cutbacks the Respondent was letting the Complainant go. She submitted that she was never made aware of performance issues and did not have any contract of employment or any performance appraisal process in her employment. Discussion and conclusions. The owner of the Respondent company, who was the decision maker in the matter, has accepted in her evidence to the Court that the prospect of the application of the National Minimum Wage to the Complainant in April 2019 formed at least a part of the decision to dismiss her. The Court notes in particular that the Act of 2000 provides that an employer shall not cause or suffer any action prejudicial to an employee for the employee having become, or in future will or might become, entitled in accordance with that Act to remuneration at an hourly rate of pay that on average is not less than the national minimum rate of pay. That Act also provides that the dismissal of an employee for such a reason shall be deemed to be an unfair dismissal of the employee within the meaning and for the purposes of section 6(1) of the Unfair Dismissals Acts, 1977 to 1993. The Court notes that the Respondent has identified a range of matters as having contributed to the decision to dismiss the Complainant. The Respondent has referred to matters which arose in July 2018 in respect of which no disciplinary action was taken at the time. The Respondent has also referred to an Employee Performance Summary conducted between January and February 2019. Finally, the Court notes the undisputed interaction between the Complainant and the Respondent on 11thApril 2019 and the confirmation of her dismissal on 16thApril 2019. The Court concludes that, having regard to the relationship in time between the various elements asserted to have contributed to the decision to dismiss and the content of the letter subsequently signed by the Respondent which stated that the reason for the dismissal was that ‘the Government abolished trainee pay rates in Hairdressing and the wage bill was not viable for the company’, on the balance of probability, the operative reason for the dismissal of the Complainant in April 2019 was the fact that she had become entitled to receive the National Minimum Wage. Having reached that conclusion and having regard to the provisions of the Act of 2000 at Section 36(1)(c), the Court is left with no alternative but to find that her dismissal on 20thApril 2019 was, by operation of the Act of 2000, unfair within the meaning of the Act. The Court has concluded that the form of redress which is appropriate in all of the circumstances is compensation as provided for in the Act. The Complainant has asserted that she made significant efforts to mitigate her loss and provided the Court with copies of her communications with approximately four prospective employers dating from June and September 2019. The Complainant succeeded in securing employment in September 2019 and since that time she has received a rate of pay in her new employment of approximately twice the amount she received in her employment with the Respondent. In those circumstances the Court concludes that the Complainant was 100% successful in mitigating the financial loss attributable to her dismissal. Having reached that conclusion the Court is confined in making an award by Section 7(c)(ii) of the Act which makes provision as follows: 7.— (1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following F49 [ the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances: (ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances, The Court in the within matter has concluded that the Complainant incurred no financial loss attributable to her dismissal.Decision The Court determines that the Complainant was unfairly dismissed by the Respondent and that the Respondent should pay compensation to her in the amount of €940.80 which, having regard to her entitlement, as acknowledged by the Respondent, to the National Minimum Wage at the date of her dismissal, is four weeks pay which is the amount the Court considers is just and equitable having regard to all of the circumstances. The decision of the Adjudication officer is varied accordingly. The Court so decides.
NOTE Enquiries concerning this Determination should be addressed to Mary Kehoe, Court Secretary. |