Complainant

Respondent

Parties

Huzeyfe  Yildirim

Salons Expert Limited t/a L'Ombre

Complainant

Respondent

Representatives

Self-Represented

Ms Vivienne Fay,   HR Consultant of Irwin Management Consultancy Ltd

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-00068810-001

24/01/2025

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

CA-00068810-002

24/01/2025

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

CA-00068810-003

24/01/2025

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

CA-00068810-004

24/01/2025

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

CA-00068811-003

24/01/2025

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

CA-00068812-002

24/01/2025

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00068812-004

24/01/2025

The issues in contention concern a Worker employed by a Beauty Salon Company from 28th March 2023 to 1st January 2025. He alleged that he was Unfairly Dismissed, denied Holiday and Public Holiday Pay; Not provided with a Contract of Employment or Statement of Terms and Conditions, Not given Statutory Minimum Notice, Was Harassed/Discriminated against under the Employment Equality Act,1998 and Discriminated against on the Grounds of Civil Status.

The rate of pay was variable as were the weekly hours. For a 40-hour week he stated that he would have received approximately €500.

A Tabular format is used for convenience. The Complainant was self-represented but supported his Oral Testimony by copy written e mails, text messages and interparty communications

Act

Complaint/

Dispute Reference No.

Summary evidence & case

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

CA-00068810-001

The Complainant alleged that he had been a Turkish national on an “Ankara” protocol visa. This, he believed, required him to be with the same employer for a period three years to obtain a Stamp 4 Permanent resident visa. The Respondent employer exploited this visa vulnerability. When he began raising questions in late 2024 regarding his hours and or holidays his work times were drastically reduced. Eventually he was told by a phone call on the 1st January 2025 that he was no longer required. There was no Notice Period, no warnings or any employment procedures or Appeal offered. It was a straightforward peremptory Unfair Dismissal.

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

CA-00068810-002

Allegation that no holidays were/offered or paid

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

CA-00068810-003

Allegation that no Public Holidays were paid.

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

CA-00068810-004

Allegation that the Complainant was Discriminated against on the Civil Status ground and suffered Harassment for invoking his rights.

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

CA-00068811-003

Repetition of CA-00068810-001 above

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

CA-00068812-002

The Complainant never received a Written Statement of his Terms and Conditions.

In Oral testimony the Complainant alleged that the Contract produced in evidence by the Respondent was a forgery with a bogus Complainant signature. He cited the major disparity between the signature on his Passport in comparison with the alleged signature of the Contract

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00068812-004

The Complainant never received any Statutory Notice on the ending of his employment.

A Tabular format is used for convenience.

The Respondent was represented by Ms Fay of Irwin Management Consultancy Ltd. An Oral Testimony was given and supported by a Written Submission. The Respondent Principal Mr Y and Manager, Ms P, gave supporting oral evidence.

Act

Complaint/

Dispute Reference No.

Summary evidence & case

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

CA-00068810-001

The Respondent outlined a number of serious performance shortfalls on the Complainant’s part. Thes included very inappropriate behaviours with female staff (a mobile phone video was played in support) and a general level of inefficiency. Issues arose in December 2024 regarding working hours. The Complainant was actively seeking other employment and had sought to cut down his hours from a 5-day week to a two- or three-day week. Working hours would be based on his decision alone. He would notify the Respondent when he, the Complainant, was available depending on his other work commitments. This was completely unsatisfactory from a management point of view. A phone discussion had taken place on the 1st January 2025 where it became clear to the Respondent Principal that the working relationship was now unsustainable from a managerial viewpoint. Taken with the complaints from Female staff members and the witness testimony from Branch Managers the Principal had decided to end the employment on grounds of Gross Misconduct.

Ms P, Branch Manager gave supporting evidence regarding inappropriate behaviours and general inefficiencies of the Complainant.

In addition, allegations regarding abuse of his alleged Vulnerability on Immigration Status grounds were robustly denied. The Respondent had consciously adopted a very informal / non written approach to disciplinary matters to avoid causing visa issues during the period of employment. It was not the case that no warnings were given but they had been intentionally informal for the visa reason outlined above.

The Complainant submitted a number of witness statements in support of his case. These were disputed by the Respondents as very negative hearsay from disgruntled and biased former staff.  Ms Fay pointed out that as the Authors were not present no proper cross examination was possible. They were of no evidential value.

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

CA-00068810-002 - normal Holiday Pay

Ms Fay cited the relevant Cognisable Period for Holiday Claims under the OWT Act of 1997 being six months from the date of the complaint i.e. from 24th January 2025 back to the 24th July 2024.

She outlined in detail from pay slips supplied the holiday \payments made to the Complainant in the Cognisable period.

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

CA-00068810-003 – Public Holidays

Ms Fay cited the relevant cognisable Period for Holiday Claims under the OWT Act of 1997 being six months from the date of the complaint i.e. from 24th January 2025 back to the 24th July 2024.

She outlined in detail from pay slips supplied the Public Holiday \Payments made to the Complainant in the cognisable period.

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

CA-00068810-004

The Complaint was seeking redress for Discrimination Ground of Civil Status and Harassment on his visa status.

There was absolutely no basis for any complaint on Civil Status -it simply was never an issue as to what his Civil Status was during the employment.

As regards Harassment over his visa status the Respondent resolute denied this. The Principal had gone to considerable lengths and some patience to keep the visa issue “off the radar”. The Principal had been extremely patient and generous to the Complainant during this time.

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

CA-00068811-003

Repetition of CA-00068810-001 above

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

CA-00068812-002

This was completely denied. A written contract was produced in evidence signed by the Complainant dated the 5th April 2023. It was stated under Oath that the employee signature was correct.

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00068812-004

The Complaint was dismissed for Gross Misconduct, and no legal notice was payable.

3:1      Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA-00068810-001.

3:1:1       Legal position

The situation is covered by the Unfair Dismissals Act,1977 and in support by SI 146 of 2000, Statutory Code of Practice on Grievance and Disciplinary Procedures. There is also extensive case law precedent.  In summary a Dismissal from employment has to allow for certain basic steps such as proper Warnings, an Investigation and a Disciplinary Process, the Right for Representation and an Independent Appeal post the Dismissal.

 It is accepted from precedent that in cases of Gross Misconduct the steps can be abbreviated but only where the Gross Misconduct is so appalling that any “normal bystander” would agree. In this case the alleged behaviours were certainly unsatisfactory but not so bad as to allow all procedures to be set aside.

However, all cases rest on their own evidence and factual matrix. These must be considered next.

3:1:2      Consideration of evidence & Procedural Issues.

The Parties were under sworn Oath but appeared to have widely varying recollections. Witness statements also appeared to vary significantly depending on their side of the case was being supported. The brief video evidence from the Respondent was certainly not helpful to the Complainant. This video was disputed by the Complainant as being from a “bit of loose banter and or horseplay” with no malign intent but was not denied. Likewise, the Complainant witness statements were questioned by Ms Fay as hearsay, the authors were not present, and she alleged that they came from ex staff with a negative agenda towards the Principal.

Ms P, the Manager, who was preset and under Oath, corroborated in detail the Respondent case.

None the less the Procedural issues were significant.

SI 146 of 2000 – Statutory Code of Practice on Grievance and Disciplinary Procedures was not in evidence in any shape or form. No proper Loss of Employment warning was given and irrespective of Gross Misconduct no meetings to discuss / investigation took place, with no Representation offered and no appeal allowed for. On these procedural grounds an Unfair Dismissal took place. There is extensive case law precedent to support this view – Redmond on Dismissal Law, 3rd Edition, Bloomsbury ,2015 is a most useful reference here.

3:2        Holiday Pay claim CA-00068810-002 Organisation of Working Time Act,1997 - Ordinary Holidays and CA-00068810-003 Public Holidays.

Ms Fay, for the Respondent, cited the relevant “Cognisable Period” for both Holiday Claims under the OWT Act of 1997 being six months from the date of the complaint i.e. from 24th January 2025 back to the 24th July 2024.

Sworn Respondent evidence was given supported by relevant Pay Slips. The Complainant contested some of this evidence. Unfortunately, it appeared that a degree of confusion arose with the Complainant as regards the definition of proper Holiday & especially Public Holiday Payments. The issue of the “cognisable period” was also problematic for the Complainant.

On balance and taking the sanctity of the Sworn oath into account, the Adjudication view has to be that the Respondent version of events /pay evidence is of a higher degree of probability.

The Holiday Pay claims have to be seen to fall in favour of the Respondent.

3:3        Employment Equality Act, 1998 - CA-00068810-004

There were two complaints under this reference – Discrimination under Civil Status and Harassment over visa status/ Ankara Convention rules.

As regards a “Civil Status” complaint this appeared to have been misunderstood by the Complainant.

There was no evidence of any issue under the Civil Status heading as understood by the Act.

As regards the Harassment under the Ankara Convention for Turkish citizen in the EU/Ireland there was a considerable discussion. It appeared that the Complainant had arrived in Ireland, almost by invitation, from the Respondent Principal. Matters had been, initially, very amicable with Family celebrations, holiday trips etc. The work model was very loose and appeared to be based on the personal contacts with the Respondent Principal. However, matters deteriorated when the Respondent changed his business model regarding delivery to Salons resulting in the work available to the Complainant being reduced. The Complainant then sought extra work elsewhere. He had qualified for Residency at this stage.

Section 14 A (7) of the Employment Equality Act,1998 is useful here.

Harassment and sexual harassment.

14A.—(1) For the purposes of this Act, where—

(7) (a) In this section—

(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and

(ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature,

being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.

(b) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.

 The Employment Equality Act,1998 at Section 85 A -Burden of Proof is also worth noting.

Burden of proof.

85A.—(1) Where in any proceedings facts are established by or on behalf of a Complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the Respondent to prove the contrary.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a Complainant.

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the F159[Director General of the Workplace Relations Commission] under section 85(1), facts are established by or on behalf of the Authority from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the Respondent to prove the contrary.

(4) In this section "discrimination" includes—

(a) indirect discrimination,

(b) victimisation,

(c) harassment or sexual harassment,

(d) the inclusion in a collective agreement to which section 9 applies of a provision which, by virtue of that section, is null and void.

(5) The European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001 (S.I. No. 337 of 2001), in so far as they relate to proceedings under this Act, are revoked.]

In plain English this means that a Complainant has to establish some prima facie details of basic evidence to enable a case to proceed. It does not have to be absolute proof just enough to establish an “Inference” that there is a case there that the Respondent must then justify/defend.

In this case there was a lot of material discussed about the relationship between the Parties. This included an expense paid holiday trip to Mexico among other matters. Both sides were on Sworn Oath with many allegations being made by both sides and rebutted.

From an Adjudication point of view, it was hard to see the basis of a Harassment claim regarding visa status. The Parties were both under sworn Oath and had widely differing recollections.

On the balance of probability and relying on experience from Legal precedents the Adjudication view has to be that no prima facie case of Harassment was made out to the standards required in the Act.

3:4        CA-00068811-003 Unfair Dismissals Act,1977.

Duplicate of CA-00068810-001 dealt with at 3:1 above.

3:5         CA-00068812-002 Terms of Employment (Information) Act,1994

A signed contract was submitted in evidence by the Respondent. This was dismissed as a “forgery” by the Complainant.

Both Parties were under Sworn Oath. Ms Fay is a most capable representative of a reputable Consultancy Company. The WRC is not equipped to adjudicate, in the absence of major detailed evidence, on what is a Forged Document and what is not.

On balance and bearing in mind the sanctity of the Oath, the Adjudication view has to go with the Respondent here.

3:6         Minimum Notice - CA-00068812-004

The Adjudication view above at Section 3:1 was that an Unfair Dismissal had taken place. Accordingly, it follows that Statutory Minimum notice is payable to the Complainant.

Act

Complaint/

Dispute Reference No.

ADJUDICATION DECISON

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

CA-00068810-001

A finding of Unfair Dismissal is made on procedural grounds.

Section 7 of the Unfair Dismissal Act ,1977 requires redress that is “just and equitable taking all circumstances into account”.

A redress payment of € 1,350. (This being 3 weeks’ pay on a basis of an average of €450 per week) is awarded in favour of the Complainant.

This being his approximate loss until he resumed alternative employment on the 20th January 2025 with a Security/Cash in Transit Company.

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

CA-00068810-002

Ordinary Holidays

Case is not Legally Properly Founded. Respondent sworn evidence accepted.

It is deemed to have failed.

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

CA-00068810-003

Allegation that no Public Holidays were paid.

Case is not Legally Properly Founded. Respondent sworn evidence accepted.

Complaint is deemed to have failed.

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

CA-00068810-004

Allegation that the Complainant was Discriminated against on the Civil Status ground and Harassment for invoking his rights.

On the basis of Sworn evidence the Respondent version of events is accepted. No proper Prima facie case has been made.

There was no proper Prima Facie evidence to sustain a complaint of Discrimination on Civil Status grounds.

There was no proper Prima Facie evidence to sustain a complaint of Harassment in relation to Visa application issues.

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

CA-00068811-003

Repetition of CA-00068810-001 above. Complaint Not Properly founded

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

CA-00068812-002

Allegation that Complainant never received a Written Statement of his Terms and Conditions.

Respondent sworn evidence accepted.

Complaint fails.

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00068812-004

Allegation that the Complainant never received any Statutory Notice on the ending of his employment.

As an Unfair Dismissal was found an award of Minimum Notice is made.

The Act specifies that if an employee has less than two years completed service payment of one week’s pay is due.

The rate of pay was extremely variable here but a reasonable average of €450 per week is deemed appropriate.

Accordingly, a Payment of €450 is awarded to the Complainant.

Unfair Dismissal, Employment Equality, Working Time and Employment information.