Complainant

Respondent

Parties

Beata Elzbieta  Kowalska

Skinlab Aesthetic Clinic Ltd.

Representatives

Marcin Szulc, Rostra Solicitors

David Colgan, B.L., instructed by Hennessy Perrozzi LLP

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00067957-001

06/12/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00067957-002

06/12/2024

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

CA-00067957-003

06/12/2024

The Complainant’s employment transferred to the Respondent on 01/06/2024.  She worked as a Cosmetologist.  She was paid €15.00 per hour.  Her hours were reduced in October 2024 and she was later informed that the Respondent was moving to a new premises which was approximately 14 kilometres further away.  This would not suit her public transport arrangements.  She is seeking a redundancy payment and she wants her pay deductions restored.  The Complainant states that she never received any document in relation to her terms and conditions of employment.

The Respondent submits that the pay reductions and change of premises were part of a cost saving measure plan to keep the business going.  The Respondent believes that no redundancy situation exists and that no pay is due as the Complainant was kept up to date with the measures necessary to keep the business going.

The Complainant gave evidence on oath.  She confirmed that she was informed that the salon where she worked was closing and moving to a new premises on 29/10/2024 and she was given the address of the new location.    This location meant that instead of a 30-minute commute by public transport it would now take an hour.  The Complainant took the bus journey to the new premises on three occasions and this was the time it took to complete the journey.  This was a big increase in her travel time on a weekly basis.

The Complainant also gave evidence that her working day would be reduced if a client cancelled their appointment.  In this situation the Respondent would send her home.

The Complainant also gave evidence that she did not receive a contract of employment or any written terms and conditions.

The Complainant stated that she usually worked 8 hours per day from Monday to Friday and her position was full time.  The Complainant stated in evidence that when the Respondent reduced her pay from October 2024 that she did not agree to this.  She received a text message from the Respondent to say that she needed to reduce her hours.  These reductions continued until the end of October.  The Complainant confirmed that the calculations which were included in her written submission showed that she was due a total of €2,883.75

The Complainant gave evidence that she applied for Social Welfare and she needed a document from the Respondent to confirm her reduced hours.  She sent this request to the normal email address used by the Respondent.  The Respondent did not respond to her request and as a result she did not receive any Social Welfare payments.  The Complainant was also asked by Social Welfare to submit confirmation from her employer that her employment ended on 26/11/2024.  She did not get this and therefore she did not receive any Social Welfare payments.

Cross examination of the Complainant:

The Complainant was cross examined by Mr Colgan, B.L., on behalf of the Respondent. It was put to the Complainant that the travel time to the new location was dependant on the time of day and the conditions in place.  The Complainant stated that she took the journey on three occasions and it was one hour.

The Complainant confirmed  that her usual start time was 10.00am and if there was a cancellation at 10.00am she would be asked to come in later.  It was put to the Complainant that she was told in February 2024 about the move to the new premises.  The Complainant stated that she was told that the Respondent was looking for a place.  It was put to the Complainant that when she was told that a new premises was found she replied to the text message stating that it was good and this indicated that she was happy with the proposed move.  The Complainant clarified that when she stated “that’s good”  she was genuinely happy for the Respondent that she had found a premises.   The Complainant stated that it was good for the Respondent but not for her.    The Complainant also clarified that when she received a text from the Respondent on 28/10/2024 she did not reply as she was working with the Complainant on 29/10/24 and she was actually off on the 28th.  The Complainant stated that she got the specific address of the new premises on 29/10/24.

It was put to the Complainant that all her dealings with the Respondent were amicable until she went to a solicitor.  The Complainant stated that she was not sure what her rights were in that situation. The Complainant agreed that she was never told not to go to the new location or that there was no job there for her.  The Complainant was asked if she was encouraged to go to the new location and that there would be more hours available.  The Complainant stated that she was not told the specific number of hours that would be available and she did not accede to the request because of this.   

The Complainant was asked what her weekly hours were and she stated that these were 40 and she usually worked from 10.00am to 6.00pm   The Complainant stated that the word “usually” meant that she was forced not to work if a client had cancelled.  It was put to the Complainant that her hours for 2023 constantly varied and there was no verbal agreement that she would have 40 hours.  The Complainant stated that she always understood her working week to be 40 hours.                                                                                                                                                                                                                                                                                                                                                                                                                                                                               

Ms Dominika Ladowska gave evidence on oath.  She confirmed that she is the Respondent.  The Respondent is a small beauty salon which has operated for eight years.  The Respondent owns and operates the business. The Complainant worked there along with another employee.  During and after COVID-19 the business had to deal with significant financial challenges.  The Respondent made both employees aware of the financial difficulties and the cost saving measures.  The financial situation reached the stage where it was necessary to reduce the Complainant’s working hours and she was notified of this by text on 04/10/2024.  The Complainant replied that a social welfare form had to be completed so that she could claim for loss of wages.  The Respondent also began looking at rental costs and sourced a new premises.  The Complainant was advised of this on 08/10/2024.  The Complainant did not raise any issue at that time about the move.  The Respondent advised the Complainant on 15/10/2024 when the new location was sourced and she responded positively.  The Respondent confirmed that the existing location would continue until the end of November 2024.  Shortly after this the Respondent received a letter from the Complainant’s solicitor seeking statutory redundancy.  The Complainant did not attend for work at the new location despite being encouraged to do so by the Respondent.  The Complainant resigned. 

The Respondent gave evidence that it is her experience that the travel time from the Complainant’s address to the new location is about 45 minutes.  She is aware of this as she had attended a hospital close to where the Complainant lives.

The Respondent gave evidence that the Complainant did not want to work long hours.  Her hours of work did vary and during her last month of work she was doing reception duties as there were no clients.    The Respondent gave evidence that on reviewing her records the Complainant’s average working week was 32.64 hours.

The Respondent was cross examined by Mr Marcin Szulc on behalf of the Complainant.  It was put to the Respondent that in the text message of 15/10/2024 the Complainant did not say that the move to the new premises was good “for us”.  The Respondent agreed that these words were not in the text message.    The Respondent was asked what the Complainant’s weekly working hours were and she said that she usually worked from 10.00am until 6.00pm but these varied because of the client bookings or cancellations.

It was put to the Respondent that she failed to give the Complainant written terms and conditions in writing and that she (the Respondent) is stating that the Complainant was not working 40 hours per week.  It was also put to the Complainant that when the business was experiencing financial difficulties she stated that she took all the steps available and that full hours were made available to the Complainant again.  The Respondent stated that full hours were available from 10 December as there was always a lot of increased business at Christmas time and the move to the new premises had worked out.

It was put to the Respondent that the Complainant gave evidence to say that she gave her notice on 15/11/2024.  The Respondent stated that they had moved premises at that stage and the Complainant used an email address associated with the old premises.  The email changed when the move took place.  The Respondent was also asked about the Complainant’s social welfare claim sent to her on 14/10/2024.  The Respondent said that she was unsure of what the position was at that time.  She did not expect that the Complainant would not contact her given the good relationship that they had.

The Respondent confirmed details of the reduced rent which applies to the new premises and that she has one other employee.                                                                                                                                                                                

CA-00067957-001:  This is a complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967.

The Complainant is seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967.  The Complainant is seeking a redundancy payment.

Section 7(2) of the Redundancy Payments Act, 1967, states:

For the purposes of subsection (1), an employee who is dismissed shall be taken to have been 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 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.

(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”.

Redundancy occurs where an employee’s position ceases to exist, and the employee is not replaced.  Any employee aged 16 or over with 104 weeks’ continuous service with an employer is entitled to a statutory redundancy payment in this situation.  In this case it is not disputed that the Respondent did carry on the business for the purpose of which the Complainant was employed.  The Respondent confirmed at the hearing the Complainant was an employee since 03/03/2020.

The evidence of the Respondent is that there was work there for the Complainant and sought to increase the number of days work that would be available to the Complainant.  There was no evidence that the Complainant was dismissed by reason of redundancy.  The Respondent had a similar role and the only change was the location of the premises.    It is clear from the evidence of the Complainant that she refused to accept the move which would have retained the same terms and conditions.  Her only issue was that of public transport.  This was an unreasonable and the difference in travel time was not onerous.

Having considered the evidence and circumstances in the context of the definitions outlined in the Act I find that the Complainant was not dismissed by reason of redundancy and is therefore not entitled to a statutory redundancy lump sum.

CA-00067957-002:  This is a complaint seeking adjudication by the Workplace Relations Commission under Section 6 of the Payment of Wages Act, 1991.

Section 5 of the Payment of Wages Act 1991 provides as follows:

“(1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless–

(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c)  in the case of a deduction, the employee has given his prior consent in writing to it.

(6) Where—

(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.”

In Marek Balans v Tesco Ireland Limited [2020] IEHC 55 Finnegan J. considered Section 5 of the Act as follows:

“Section 5 of the Act of 1991 prohibits the making of deductions from wages save in certain circumstances. Section 5(6) provides that where the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee, then, except insofar as the deficiency or non – payment is attributable to an error of computation, the amount of the deficiency or non – payment should be treated as a deduction made by the employer from the wages of the employee on the occasion. Central to the court's analysis must be the concepts of wages properly payable and the circumstances in which, if there is a deficiency in respect of those such payments, it arose as a result of an error of computation”.

What Amount is Properly Payable?

The Act provides that where the total amount of wages properly payable to an employee is not paid, any deficiency is regarded as a deduction. Consequently, to ground a claim under the Payment of Wages Act 1991 an Adjudication Officer needs in the first instance to ascertain what wages are properly payable. The starting point for assessing what is properly payable is the contract of employment. As there are no written details of the terms of employment, I have reviewed the various emails and text messages exchanged between the Complainant and the Respondent.  The Complainant is clear that she did not consent to the reduced hours.  The Respondent acknowledges that a deduction was made as part of the cost saving measures.

Was there a shortfall in payment?

Section 5(1) of the Act prohibits an employer from making deductions to an employee's wages except in accordance with the provisions of that section.

At the hearing it was confirmed that the Complainant’s gross pay was €15.00 per hour, and I find that the complaint is well founded.  The Complainant provided a detailed analysis of the amounts paid and the accrued shortfall between her regular gross pay and what she was paid for the period when her hours were reduced.   In the absence of any written terms and conditions and any similar analysis by the Respondent I have decided to accept this analysis in part.  The Complainant is due the sum of €1,730.00.

CA-00067957-003:  This is a complaint seeking adjudication by the Workplace Relations Commission under Section 7 of the Terms of Employment (Information) Act, 1994.

This is a complaint pursuant to the Terms of Employment (Information) Act, 1994.   The Complainant submits that she did not receive a document which complies with Section 3 of the Act.  Section 3(1A) of the Terms of Employment (Information) Act, 1994 states that-

(1A) Without prejudice to subsection (1), an employer shall, not later than 5 days after the commencement of an employee’ s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’ s employment, that is to say: 

(a) the full names of the employer and the employee; 

(b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act 2014); 

(c) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires; 

(d) the rate or method of calculation of the employee’s remuneration and the pay reference period for the purposes of the National Minimum Wage Act 2000; 

(e) the number of hours which the employer reasonably expects the employee to work — 

(i) per normal working day, and 

(ii) per normal working week.

Section 3 of the Terms of Employment (Information) Act 1994 provides for further details to be given to an employee not later than one month after the commencement of the employee’s employment.

The Terms of Employment (information) Act, 1994 implements an EU directive and applies to all persons working under a contract of employment or apprenticeship (whether on a fulltime or part time basis).  It includes persons working through an employment agency where the party remunerating is responsible for the provision of the said statement of terms.  The Act also provides that an employer must notify the employee of any changes in the particulars already detailed in the statement of terms.

It was not disputed by the Respondent that the Complainant did not receive such a document.   As there is an onus on the Respondent to provide a signed and dated copy and to retain such a document for at least a year after the employment ends, I find that there was a contravention of the Act during the relevant period.  In circumstances where I consider the complaint to be well founded, I may require a statement to be provided.  In addition, I am entitled to direct a payment of compensation up to the value of four weeks remuneration such that is just and equitable in all the circumstances.  Given the circumstances of this case there is no longer a requirement to provide the terms.  I am guided by the Labour Court in Morehampton Foods Ltd v Gibbons TED 18/2017, where the Court confirmed that a failure to comply with s.2 of the Act “constitutes a single contravention of the Act” and that it was not the case that every omission from a statement mandated by s.3 constituted a stand-alone infringement to which the statutory limit on compensation should be separately applied.  Having considered the evidence in this case I believe that the full compensatory limit under section 7(2) should be applied.  I therefore order that the Respondent pay the Complainant the sum of €2,400 representing four week’s full-time remuneration (40 hours at €15.00 per hour) which I consider to be a just and equitable sum having regard to all the circumstances in this case.

CA-00067957-001:  I find that the Complainant was not dismissed by reason of redundancy and is therefore not entitled to a statutory redundancy lump sum.  I find that this complaint is not well founded.

CA-00067957-002:  I find that this complaint is well founded.  I therefore order that the Respondent pay the Complainant the sum of €1,730.00 representing four week’s full-time remuneration (40 hours at €15.00 per hour) which I consider to be a just and equitable sum having regard to all the circumstances in this case.

CA-00067957-003:  In find that this complaint is well founded.  I order that the Respondent pay the Complainant the sum of sum of €2,400.

Redundancy Payment.  Terms and Conditions.  Payment of Wages