ADJUDICATION OFFICER DECISION.
Adjudication Reference: ADJ-00056173
Parties:
| Complainant | Respondent |
Parties | Odonchimeg Genenbat | Colm Tyrell t/a Love Your Nails |
Representatives | Self – Represented but assisted by Mr M Jamts | Non-Appearance / Written Submission supplied. |
Complaint:
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-00068355-001 | 29/12/2024 |
Date of Adjudication Hearing: 23/05/2025
Workplace Relations Commission Adjudication Officer: Michael McEntee
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
In deference to the Supreme Court ruling, Zalewski v Ireland and the WRC [2021] IESC 24 on the 6th of April 2021 the Parties were informed in advance that the Hearing would normally be in Public, Testimony under Oath or Affirmation would be required and full cross examination of all witnesses would be provided for.
The required Affirmation / Oath was administered to all witnesses present. The legal perils of committing Perjury was explained to all parties.
The issue of anonymisation in the published finding of the WRC was considered by the Parties. It was not deemed necessary.
Background:
The issue in contention was the alleged Unfair Dismissal of the Complainant, a Nail Technician, by the Respondent Salon. The employment began on the 26th November 2024 and ended on the 27th December 2024. The rate of pay was stated by the Complainant to have been € 260 for an average of 20-hour week. |
1: Summary of Complainant’s Case:
The Complainant made a detailed Oral Testimony supported by copy documentation and by her advisor Mr Jamts. She was of a Non-Irish / English Language background and relied heavily on a Translator supplied by the WRC. She had begun work on the 26th November 2024. No standard employment documentation was provided. No pay slips were provided. All went well until the 14th December when she asked for Pay Slips to ascertain her rate of pay. Pay Slips were not supplied. This request for Pay Slips and clarification of her rate of pay was in keeping with the National Minimum Wage Act requirements. She went on Holidays for the Christmas break on the 24th December 2024. On the 27th, the day she was due back, she was informed by text that her employment had been terminated. She claimed that the provisions of the National Minimum Wage Act allow for a Worker to claim for Unfair Dismissal if a Worker seeks information regarding her wages and is refused. Her communications of the 14th December fall into this category. Accordingly she is claiming Unfair Dismissal. The National Minimum Wage Act, 2000 at Section 36 allows for an Unfair Dismissals Act 1977 claim even if the employee has less than one year’s continuous service. Under the Unfair Dismissals Act,1977 it is well accepted that normal procedures, interviews and appeals are required in a dismissal. None of these procedures were followed. |
2: Summary of Respondent’s Case:
The Respondent choose not to attend in person but submitted a detailed statement on the 14th January 2025. The time, date and place of the Oral Hearing were satisfactorily communicated to the Respondent. The non-Provision of Pay Slips was an administrative error. The pay slips were provided as soon as the Respondent became aware that the Complainant was not receiving them. After considering the Complainant’s work performance the Respondent came to the difficult decision not to continue her employment post the Christmas break. By e mail of the 14th January 2025 to the WRC, the Respondent stated that the dismissal arose out of Employer issues regarding the Complainant’s time keeping (inability to achieve/complete customer treatments in the time allocated) and customer satisfaction issues. In addition, as she was going back to school the question of her regular availability also arose. However, the key question was the slowness of her work on customer treatments. |
3: Findings and Conclusions:
3:1 Legal Issue The Complainant, in this case, has chosen to bring her Complaint under the Unfair Dismissals Act,1977. Normally this would not be applicable but the Complainant by invoking the 12 months Service exemption in the Unfair Dismissals Act, allowed for by the National Minimum Wage Act 2000, Section 36 ,has been able to sustain her complaint under the Unfair Dismissals Act. The relevant section is set out below. National Minimum Wage Act,2002 Prohibition of victimisation of employee by employer. 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.
(Highlighting/Underlining by Adjudication Officer). Accordingly, the case had to proceed on this basis. 3:2 Consideration of the evidence presented. From the written materials and the Oral Testimony of the Complainant it was clear that a Dismissal had taken place on the 27th December 2024. This was not contested. The fact that the Complainant was able to invoke the Unfair Dismissal Act ,1997 considerably strengthens her case. Normal Procedures in an Unfair Dismissal case had to be followed. None of these Procedures (Warnings, Investigations /Disciplinary meetings, presentation of evidence and a Final Appeal) were in evidence. The Non-Attendance of the Respondent to the Oral Hearing was unfortunate. However, his e mail of the 14th January 2025 was comprehensive. The Dismissal reasons in this mail were challenged by the Complainant at the Oral Hearing. However, the Respondent was not present to offer any counter arguments. 3:3 Conclusions Either by accident or design the Complainant was able to utilise a mechanism to have her case heard under the Unfair Dismissals Act,1977. Accordingly, the absence of normal procedures makes the Dismissal Unfair, and redress has to be awarded to the Complainant. However, the Redress amount to be awarded had to be seen in the overall context of the case. The employment was of Short Duration and the Wages involved were modest. The non-Appearance of the Respondent at the Oral Hearing was also a noteworthy factor. |
4: Decision:
Section 41 of the Workplace Relations Act 2015 and Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
CA: 00068355-001
Section 7 of the Unfair Dismissals Actt,1977 requires redress to be “Just and Equitable” having “Regard to all the Circumstances”.
A Redress award of € 1,000 is made in favour of the Complainant. This equates to approximately 4 weeks wages. It is set at this level in view of the very arbitrary nature of the Dismissal without any proper procedures. The somewhat cavalier approach of the Respondent to his non-attendance at the Oral Hearing was also noted.
Dated: 07 07 2025
Workplace Relations Commission Adjudication Officer: Michael McEntee
Key Words:
Unfair Dismissal, Exemption to 12 months service rule. |
ADJUDICATION OFFICER DECISION.
Adjudication Reference: ADJ-00056173
Parties:
| Complainant | Respondent |
Parties | Odonchimeg Genenbat | Colm Tyrell t/a Love Your Nails |
| Complainant | Respondent |
Representatives | Self – Represented but assisted by Mr M Jamts | Non-Appearance / Written Submission supplied. |
Complaint:
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-00068355-001 | 29/12/2024 |
Date of Adjudication Hearing: 23/05/2025
Workplace Relations Commission Adjudication Officer: Michael McEntee
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
In deference to the Supreme Court ruling, Zalewski v Ireland and the WRC [2021] IESC 24 on the 6th of April 2021 the Parties were informed in advance that the Hearing would normally be in Public, Testimony under Oath or Affirmation would be required and full cross examination of all witnesses would be provided for.
The required Affirmation / Oath was administered to all witnesses present. The legal perils of committing Perjury was explained to all parties.
The issue of anonymisation in the published finding of the WRC was considered by the Parties. It was not deemed necessary.
Background:
The issue in contention was the alleged Unfair Dismissal of the Complainant, a Nail Technician, by the Respondent Salon. The employment began on the 26th November 2024 and ended on the 27th December 2024. The rate of pay was stated by the Complainant to have been € 260 for an average of 20-hour week. |
1: Summary of Complainant’s Case:
The Complainant made a detailed Oral Testimony supported by copy documentation and by her advisor Mr Jamts. She was of a Non-Irish / English Language background and relied heavily on a Translator supplied by the WRC. She had begun work on the 26th November 2024. No standard employment documentation was provided. No pay slips were provided. All went well until the 14th December when she asked for Pay Slips to ascertain her rate of pay. Pay Slips were not supplied. This request for Pay Slips and clarification of her rate of pay was in keeping with the National Minimum Wage Act requirements. She went on Holidays for the Christmas break on the 24th December 2024. On the 27th, the day she was due back, she was informed by text that her employment had been terminated. She claimed that the provisions of the National Minimum Wage Act allow for a Worker to claim for Unfair Dismissal if a Worker seeks information regarding her wages and is refused. Her communications of the 14th December fall into this category. Accordingly she is claiming Unfair Dismissal. The National Minimum Wage Act, 2000 at Section 36 allows for an Unfair Dismissals Act 1977 claim even if the employee has less than one year’s continuous service. Under the Unfair Dismissals Act,1977 it is well accepted that normal procedures, interviews and appeals are required in a dismissal. None of these procedures were followed. |
2: Summary of Respondent’s Case:
The Respondent choose not to attend in person but submitted a detailed statement on the 14th January 2025. The time, date and place of the Oral Hearing were satisfactorily communicated to the Respondent. The non-Provision of Pay Slips was an administrative error. The pay slips were provided as soon as the Respondent became aware that the Complainant was not receiving them. After considering the Complainant’s work performance the Respondent came to the difficult decision not to continue her employment post the Christmas break. By e mail of the 14th January 2025 to the WRC, the Respondent stated that the dismissal arose out of Employer issues regarding the Complainant’s time keeping (inability to achieve/complete customer treatments in the time allocated) and customer satisfaction issues. In addition, as she was going back to school the question of her regular availability also arose. However, the key question was the slowness of her work on customer treatments. |
3: Findings and Conclusions:
3:1 Legal Issue The Complainant, in this case, has chosen to bring her Complaint under the Unfair Dismissals Act,1977. Normally this would not be applicable but the Complainant by invoking the 12 months Service exemption in the Unfair Dismissals Act, allowed for by the National Minimum Wage Act 2000, Section 36 ,has been able to sustain her complaint under the Unfair Dismissals Act. The relevant section is set out below. National Minimum Wage Act,2002 Prohibition of victimisation of employee by employer. 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.
(Highlighting/Underlining by Adjudication Officer). Accordingly, the case had to proceed on this basis. 3:2 Consideration of the evidence presented. From the written materials and the Oral Testimony of the Complainant it was clear that a Dismissal had taken place on the 27th December 2024. This was not contested. The fact that the Complainant was able to invoke the Unfair Dismissal Act ,1997 considerably strengthens her case. Normal Procedures in an Unfair Dismissal case had to be followed. None of these Procedures (Warnings, Investigations /Disciplinary meetings, presentation of evidence and a Final Appeal) were in evidence. The Non-Attendance of the Respondent to the Oral Hearing was unfortunate. However, his e mail of the 14th January 2025 was comprehensive. The Dismissal reasons in this mail were challenged by the Complainant at the Oral Hearing. However, the Respondent was not present to offer any counter arguments. 3:3 Conclusions Either by accident or design the Complainant was able to utilise a mechanism to have her case heard under the Unfair Dismissals Act,1977. Accordingly, the absence of normal procedures makes the Dismissal Unfair, and redress has to be awarded to the Complainant. However, the Redress amount to be awarded had to be seen in the overall context of the case. The employment was of Short Duration and the Wages involved were modest. The non-Appearance of the Respondent at the Oral Hearing was also a noteworthy factor. |
4: Decision:
Section 41 of the Workplace Relations Act 2015 and Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
CA: 00068355-001
Section 7 of the Unfair Dismissals Actt,1977 requires redress to be “Just and Equitable” having “Regard to all the Circumstances”.
A Redress award of € 1,000 is made in favour of the Complainant. This equates to approximately 4 weeks wages. It is set at this level in view of the very arbitrary nature of the Dismissal without any proper procedures. The somewhat cavalier approach of the Respondent to his non-attendance at the Oral Hearing was also noted.
Dated: 07 07 2025
Workplace Relations Commission Adjudication Officer: Michael McEntee
Key Words:
Unfair Dismissal, Exemption to 12 months service rule. |
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