ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00057269
Parties:
| Complainant | Respondent |
Parties | Lorraine Brady | Thomas Kendall Hair Thomas Kendall |
Representatives |
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Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Sick Leave Act 2022 | CA-00068911-001 | 28/01/2025 |
Complaint seeking adjudication by the Workplace Relations Commission under section 45A of the Industrial Relations Act,1946. | CA-00068911-002 | 28/01/2025 |
Complaint seeking adjudication by the Workplace Relations Commission under section 45A of the Industrial Relations Act, 1946. | CA-00068911-003 | 28/01/2025 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00068911-004 | 28/01/2025 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00068911-005 | 28/01/2025 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00068911-006 | 28/01/2025 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 7 of the Terms of Employment (Information) Act, 1994. | CA-00068911-007 | 28/01/2025 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00068911-008 | 28/01/2025 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00068911-009 | 28/01/2025 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00068911-012 | 28/01/2025 |
Date of Adjudication Hearing: 10/07/2025
Workplace Relations Commission Adjudication Officer: Roger McGrath
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 complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
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 presents. The legal perils of committing Perjury were explained to all parties.
Background:
The complainant commenced employment in September 2017, in a hairdressing salon as a hairdresser. Her employment ended on 15 December 2024. She worked two days per week, and she was paid €270 gross per week. The respondent did not attend the hearing. I am satisfied the respondent was on due notice of the hearing particulars. |
CA-00068911-001 Complaint under Sick Leave Act, 2022.
Summary of Complainant’s Case:
The complainant gave evidence on Affirmation. The complainant stated that she did not think she had taken a day off work sick in the six months preceding the termination of her employment. She may have taken one day in the preceding 12 months. |
Summary of Respondent’s Case:
The respondent did not attend the hearing. |
Findings and Conclusions:
Section 41 (7) of the Workplace Relations Act, 2025, states; Subject to subsection (8), an adjudication officer shall not entertain a dispute referred to him or her under this section if— (h) in the case of a dispute relating to the entitlement of an employee under the Sick Leave Act 2022, it has been referred to the Director General after the expiration of the period of 6 months beginning on the day immediately following the date of the occurrence of the dispute, and From the evidence adduced this claim does not fall within the reckonable period and therefore cannot succeed. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
The complaint is not well founded. |
CA-00068911-002 Complaint seeking adjudication by the Workplace Relations Commission under section 45A of the Industrial Relations Act,1946.
This complaint was withdrawn by the Complainant.
CA-00068911-003 Complaint seeking adjudication by the Workplace Relations Commission under section 45A of the Industrial Relations Act, 1946.
This complaint was withdrawn by the Complainant.
CA-00068911-004 Complaint under section 27 of the Organisation of Working Time Act, 1997.
Summary of Complainant’s Case:
The complainant gave evidence that from when she commenced employment with the respondent, she never got a 30-minute lunch break. She never got a 15-minute break. She worked two days a week from 10.00 to 18.00 hrs on Tuesdays and 10.00 to 20.00 hrs on Fridays. |
Summary of Respondent’s Case:
The respondent did not attend the hearing. |
Findings and Conclusions:
Section 12 of the 1997 Act states: Rests and intervals at work. 12.—(1) An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her a break of at least 15 minutes. (2) An employer shall not require an employee to work for a period of more than 6 hours without allowing him or her a break of at least 30 minutes; such a break may include the break referred to in subsection (1). (3) The Minister may by regulations provide, as respects a specified class or classes of employee, that the minimum duration of the break to be allowed to such an employee under subsection (2) shall be more than 30 minutes (but not more than 1 hour). (4) A break allowed to an employee at the end of the working day shall not be regarded as satisfying the requirement contained in subsection (1) or (2). On the uncontested evidence of the complainant I find she did not receive the breaks due to her under the 1997 Act. This is a serious breach of the Act. Section 27 (3) of the 1997 Act states: (3) A decision of an adjudication officer . of the Workplace Relations Act 2015 in relation to a complaint of a contravention of a relevant provision shall do one or more of the following, namely: (a) declare that the complaint was or, as the case may be, was not well founded, (b) require the employer to comply with the relevant provision, (c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all of the circumstances, but not exceeding 2 years’ remuneration in respect of the employee’s employment. In the circumstances I find compensation is warranted in this case. I believe an amount equal to three month’s pay, that is €3,240 is just and equitable. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
The complaint is well founded and I order the respondent to pay the complainant compensation of €3,240. |
CA-00068911-005 Complaint under section 7 of the Terms of Employment (Information) Act, 1994.
Summary of Complainant’s Case:
The complainant sated that she never issued with a written contract of employment or any time of document detailing her terms and conditions of employment. |
Summary of Respondent’s Case:
The respondent did not attend the hearing. |
Findings and Conclusions:
Section 3 of the 1994 Act states: 3.—(1) An employer shall, not later than one month 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— Section 7(3) (d) of the 1994 Act states: (d) in relation to a complaint of a contravention under change section 3, 4, 5, 6, 6D, 6E, 6F, or 6G, and without prejudice to any order made under paragraph (e) order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks’ remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977. On the uncontested evidence of the complainant, I conclude that the complaint is well founded. In the circumstances I believe compensation of one month’s pay, €1,080, is warranted. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
I order the respondent to pay the complainant €1,080 in compensation. |
CA-00068911-006 Complaint under section 7 of the Terms of Employment (Information) Act, 1994.
Summary of Complainant’s Case:
The complainant stated that changes to the days she worked were just imposed on her she was not notified properly of such changes nor did she have any input into the decision. |
Summary of Respondent’s Case:
The respondent did not attend the hearing. |
Findings and Conclusions:
Section 5 of the 1994 Act states: Notification of changes. 5.—(1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than— (a) the day on which the change takes effect, or Section 3 of the 1994 Act states: 3.—(1) An employer shall, not later than one month 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— Section 7(3) (d) of the 1994 Act states: (d) in relation to a complaint of a contravention under change section 3, 4, 5, 6, 6D, 6E, 6F, or 6G, and without prejudice to any order made under paragraph (e) order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks’ remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977. On the uncontested evidence of the complainant, I conclude that the complaint is well founded. In the circumstances I believe compensation of one month’s pay, €1,080, is warranted. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
The complaint is well founded and I order the respondent to pay the complainant €1,080. |
CA-00068911-007 Complaint under section 7 of the Terms of Employment (Information) Act, 1994.
Summary of Complainant’s Case:
The complainant stated that whenever she had to do training, she had to pay for it herself and had to do it in her own time. Only shortly before her employment ended she had to attend a course which cost €450 which she had to pay for from her own pocket. |
Summary of Respondent’s Case:
The respondent did not attend the hearing. |
Findings and Conclusions:
Section 6G of the 1994 Act states: 6G.— Where an employer is required by law or by a collective agreement to provide training to an employee to carry out the work for which he or she is employed, such training shall — (a) be provided to the employee free of cost, (b) count as working time, and (c) where possible, take place during working hours. Section 7(3) (d) of the 1994 Act states: (d) in relation to a complaint of a contravention under change section 3, 4, 5, 6, 6D, 6E, 6F, or 6G, and without prejudice to any order made under paragraph (e) order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks’ remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977. On the uncontested evidence of the complainant, I conclude that the complaint is well founded. In the circumstances I believe compensation of one month’s pay, €1,080, is warranted. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
The complaint is well founded and I order the respondent to pay the complainant €1,080. |
CA-00068911-008 Complaint under section 8 of the Unfair Dismissals Act, 1977.
This complaint was withdrawn by the complainant at the hearing.
CA-00068911-009 Complaint under section 8 of the Unfair Dismissals Act, 1977.
Summary of Complainant’s Case:
The complainant gave evidence that throughout her employment with the respondent she had been subject to abusive calls and nasty comments made by the respondent while she was working in front of customers and colleagues. At times she was afraid of her employer. In the weeks leading up to her last day of employment things were getting worse and she was got more abusive texts from her employer. On Saturday 14 December 2024, she attended the salon. The atmosphere was bad with the respondent shouting at the staff in an abusive manner. He told the complainant that “you’re next to go”. When the complainant replied that she hoped he would give her notice, the respondent replied “yhe (sic) two days’ notice!”, at the same time he made a “slit throat gesture” while looking at the complainant. The complainant was upset at this but stayed on to finish her clients’ appointments. Nevertheless, the complainant decided that day that she would not be going back to what she described as “that toxic atmosphere.” This was the worst time for her to end her employment as she usually got good tips and presents from her clients. The complainant texted the respondent on the following Tuesday to inform him of her decision not to go back to work. She did not get a reply. When she attempted to contact the respondent again, she found he had blocked her from the app. The complainant stated that she had found employment in early March 2025, with better terms and conditions than she had in her employment with the respondent. |
Summary of Respondent’s Case:
The respondent did not attend the hearing. |
Findings and Conclusions:
This is a complaint of Constructive Dismissal. Section 1(b) of the 1977 Act defines constructive dismissal in the following manner: “the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer,” It is for the complainant to establish that her employment came to an end in circumstances amounting to a dismissal as that term is defined by the Act at Section 1 above. That section of the Act, and the case law since its enactment, has established two circumstances where an employee is entitled, or it would be reasonable, to terminate the employment relationship. Contract Test Firstly, in circumstances where the employer’s conduct amounts to a repudiatory breach of the contract of employment, the employee is entitled to regard himself or herself as having been dismissed. This is often referred to as the “contract test”. It was described by Lord Denning M.R. in Western Excavating (ECC) Ltd v Sharp [1978] I.R.L.R. 332as follows: “If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself discharged from any further performance”. In plain English, this means that where an employer makes a fundamental breach of an essential term of the contract of employment, the employee may consider him or herself to be constructively dismissed. In the instant case there was no evidence presented to suggest that the respondent breached the contract test and attempted not to be bound by one or more of the terms of the contract of employment Reasonableness Test Secondly, an unlawful constructive dismissal may arise where an employer’s behaviour is so unreasonable as to mean that the employee is left with no reasonable alternative but to terminate his or her employment. This test of reasonableness, when applied to the within matter, asks whether the employer conducted its affairs in relation to the complainant so unreasonably that he could not fairly be expected to put up with it any longer. In this context, the complainant must establish that she also conducted herself reasonably in terms of affording the employer the opportunity to address the issues which ultimately led to the termination of the employment. From the uncontested evidence adduced, and I believe the trustworthiness of the complainant, it is clear that she was well within her rights to leave her employment as she did on Saturday 14 December 2024 and never to return. The gesture utilised by the respondent that day was threatening and bound to cause fear in the complainant’s mind. Such behaviour is totally unacceptable anywhere let alone in a workplace. From the complainant’s evidence of the complainant, the respondent treated his staff in an abusive and reprehensible manner, no one should have to put up with such behaviour. I find this was a constructive dismissal. Section 7 of the Act states: (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 the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances: (a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or (b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or (c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances, or (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. Taking into account the fact that the complainant had commenced work with a new employer by early March 2025, I find an award of 12 week’s pay, that is €2,484, is just and equitable in this case.
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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.
Decision:
This was an unfair dismissal and I order the respondent to pay the complainant €2,484 in compensation for her loss of earnings. |
CA-00068911-012 Complaint under section 27 of the Organisation of Working Time Act, 1997.
This complaint was withdrawn by the complainant at the hearing.
Dated: 29th September 2025
Workplace Relations Commission Adjudication Officer: Roger McGrath
Key Words:
Constructive Dismissal, behaviour, abusive. |