Complainant

Respondent

Parties

Chloe  Cahill

 Salon Select Limited

Complainant

Respondent

Anonymised Parties

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Representatives

  Self-represented

Nonattendance

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-00066987-001

28/10/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00066987-002

28/10/2024

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

CA-00066477-001

04/10/2024

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant gave her evidence under affirmation.  The respondent did not attend the hearing.  The hearing notification was sent the Registered Office of the company (as per the CRO details) and to the home address of the Owner of the Salon.  I am satisfied that the respondent was on notice of the hearing.  The hearing was due to start at 9 am.  Following a pause of 15 minutes to enable the respondent to attend or otherwise notify the WRC, the hearing proceeded in the absence of the respondent.

The complainant stated that she took maternity leave from 8 December 2023 until 10 June 2024. She opted to take the additional maternity leave open to her, with a subsequent end of maternity leave date of 23 September 2024. She was due to start work again on 4 October. She stated that in August she heard that the salon was closing down and spoke to the owner who assured her that he had work for her in an alternative location. In early September, he called her down to the salon again as they were clearing it out and informed her that they didn't have alternative work for her; that salon was closing down; and that no alternative was opening up. He said to her that he only said he had an alternative location as he did not know what to say to her.  He indicated to her that she would be paid the outstanding monies due to her. However, no payment was made.

The complainant outlined that she had written agreement from the owner signed before she went off on maternity leave that she could carry over almost 13 days of annual leave from 2023 to 2024 and that these were due to be taken from October 2024. She noted that she did not receive an entitlement for 2024 nor did she receive either public holiday or bank holiday payments. She confirmed that her holiday allowance for 2024 up to September was 15 days and that there were eight public holidays due to her.

When asked about her salary she stated that her pay slips indicated a payment of €633 per week but that all that was ever paid over was €600.  She confirmed that the amount on her payslip indicated a daily rate of €126.60 per day.

As regards the Unfair Dismissal, the complainant stated that the Salon where she worked closed down and as far as she was aware no other Salon had been opened by the owner. She stated that she sought a redundancy payment from the owner and sent in a completed RP-77 form on 18 October 2024 but had received no response despite trying numerous times to contact him by phone.

The respondent did not attend the hearing of this matter.

The complainant came across as a very credible witness, giving cogent responses and providing whatever details she could in support of her version of events.  She provided what paperwork was given to her but noted that most of the paperwork (signed Contract of Employment, etc.) was retained by the owner and, unfortunately, she was not in a position to provide much more then she made available at the hearing.

CA-00066477-001: Organisation of Working Time Act

Entitlement to annual leave.

19.—(1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—

(a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

(b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

(c) 8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):

Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.

Entitlement in respect of public holidays.

21.—(1) Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely—

(a) a paid day off on that day,

(b) a paid day off within a month of that day,

(c) an additional day of annual leave,

(d) an additional day’s pay:

Provided that if the day on which the public holiday falls is a day on which the employee would, apart from this subsection, be entitled to a paid day off this subsection shall have effect as if paragraph (a) were omitted therefrom.

Considering the evidence put forward by the complainant and having regard to my finding regarding her credibility, I am satisfied that the complainant has established that she was entitled to annual leave for 2024, the annual leave that she was specifically contracted to carry over for 2023 and Public Holidays entitlement.  Therefore, I find that the complaint is well founded, that the Act has been contravened and that the complainant is entitled to 36 days payment in respect of holiday and annual leave owing to her which was due to her in Autumn 2024.

CA-00066987-001 Unfair Dismissals Act.

The Unfair Dismissals Act excludes from its scope termination of employment arising from redundancy.

Section 6(4) of the Acts states:

(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

The complainant outlined the details of the termination offer employment and conceded that is amounted to a redundancy. Accordingly, I find that the complaint falls to be considered under Section 6(4)(c) of the Act and that the complainant was not unfairly dismissed but rather her employment came to an end by way of redundancy.

CA-00066987-002: Entitlement to a Redundancy Payment

The complainant submitted that she tried to get a redundancy payment from the owner going so far as to submit a completed copy of the redundancy form RP-77 in October 2024 to her employer. The employer did not respond to the receipt of that form. The complainant kept a copy of the completed form which she submitted to the hearing.

Section 7(1) and (2) of the Redundancy Payments Act, 1967 states as follows:

7.—(1) An employee, if he is dismissed by his employer by reason of redundancy or is laid off or kept on short-time for the minimum period, shall, subject to this Act, be entitled to the payment of moneys which shall be known (and are in this Act referred to) as redundancy payment provided—

(a) he has been employed for the requisite period, and

(b) he was an employed contributor in employment which was insurable for all benefits under the Social Welfare Acts, 1952 to 1966, immediately before the date of the termination of his employment, or had ceased to be ordinarily employed in employment which was so insurable in the period of four years ending on that date.

(2) For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if for one or more reasons not related to the employee concerned the dismissal is attributable wholly or mainly to—

(a) the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed, or

(b) the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish, or

(c) the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or

(d) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or

(e) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained,

Having regard to the foregoing, and to the evidence provided by the complaint, I am satisfied that her employment came to an end by way of redundancy in accordance with the Act.

I find that the complainant has established an entitlement to a redundancy payment in accordance with the Act and accordingly, I find favour of the worker in the appeal of the employer’s decision to deny her redundancy.

The complainant gave evidence of having been employed with the respondent from 25 September 2017 until 9 September 2024.  Having regard to the foregoing, and to the evidence provided by the complaint, I am satisfied that her employment came to an end by way of redundancy in accordance with the Act.

CA-00066477-001: Organisation of Working Time Act

Having considered all the written and oral evidence presented in relation to this complaint, my decision is that the complaint is well founded and that the Act has been contravened.  Arising from the foregoing, I require the employer to pay the complainant compensation of €6000 which I consider to be just and equitable in all the circumstances of this complaint.

CA-00066987-001 Unfair Dismissals act.

Having regard to all the written and oral evidence presented in relation to this complaint, I am satisfied that the complainant was not unfairly dismissed.

CA-00066987-002: Entitlement to a Redundancy Payment

Having considered all the relevant information provided by the complainant, I am satisfied that she has established that she is entitled to a redundancy payment in accordance with the Acts.  My decision is to allow the complainant’s appeal against the decision of the employer.

Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.

I have decided that the complainant is entitled to a statutory redundancy payment based on the following criteria:

Date of Commencement: 16 September 2018

Date of Termination: 14 March 2023

Gross Weekly Pay: €452.00

This award is made subject to the complainant having been in insurable employment under the Social Welfare Acts during the relevant period.

Organisation of Working Time – Annual Leave – Public Holiday entitlement - complainant well founded – compensation awarded – Unfair Dismissal – complainant not unfairly dismissed – Redundancy Payment – complainant entitled to payment