Complainant

Respondent

Parties

Shauna  Johnson

Luscious Makeup And Hair

Representatives

Self-Represented

Kelvin Hyland  of Peninsula Business Services Ireland

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-00072713-001

23/06/2025

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

CA-00072856-001

27/06/2025

The issues in contention concern a Complaint of Constructive Unfair Dismissal with an associated Payment of Wages Complaint by Stylist/ Make Up Technician from a Make Up and Hair Salon.  The employment began on the 3rd June 2022 (with a brief break in service) and ended on the 31st of May 2025.

The rate of pay was stated by the Complainant to have been € 290 Gross for a 20-hour week.

The Complainant was self-represented . She gave a comprehensive Oral Testimony  supported by a detailed Written Submission. She presented as a very capable and competent witness.

1:1      Section 8 of the Unfair Dismissals Act, 1977 CA: 00072713-001

In summary the Complainant argued that her position had become impossible due to being treated very different ( more rigidly with adherence to Rules etc) to other staff members, she was denied unpaid time off  (2 hours) to attend an important family event, unfavourable comments regarding her physical appearance , blocking her graduation from a prestigious Stylist Course and general comments regarding her “attitude”.

A new Manager had been appointed early in 2025 and relationships had not gone well. Matters had come to a head on Saturday the 31st May 2025  when the Complainant was issued with a second “Letter of Concern” and her Course was cancelled. A forceful conversation had followed between the Complainant , the Owner and the Manager. She resigned verbally and left the Salon early.

Correspondence followed with the Manager offering her an opportunity to reconsider her resignation. She declined and formally confirmed her resignation by e mail on the 2nd June 2025.

A subsidiary issue was the question of her accrued time / holidays and time in lieu.

1:2          Payment of Wages Act, 1991  CA:00072856-001

At the conclusion of the employment a major disagreement arose over the time balances of the Complainant. The Respondent claimed that they were owed a residual sum of € 380.21 gross by the Complainant and were seeking full re payment. Considerable discussion took pace regarding time in lieu balances ,overtime etc.  The residual amount owing was denied by the Complainant and was the basis of a Payment of Wages complaint.

The Respondent was represented by Mr Hyland of Peninsula Business Services. Oral Testimony was given by Ms McD from the Respondent. A comprehensive Written Submission was relied upon in support.

2:1      Section 8 of the Unfair Dismissals Act, 1977 CA: 00072713-001

The claim of “Constructive Dismissal” was completely rejected. The Complainant had verbally resigned in a forceful fashion ( following conversations with the Owner and Manager) on the 31st of May 2015. She had followed this with a written E mail on the 3rd June 2025. In this mail she had stated 

“I think my position is no longer tenable and do not see a path forward working at L Salon

The Manager had written to her that morning asking her to reconsider her Verbal Resignation and encouraging her to use Internal Company Procedures to process any employee grievances she might have.

The issue that that had  led to the heated meeting on the 31th May had been a request for  special personal  time off on the 21st June, a Saturday, to attend her son’s Football Graduation. This was not possible as Saturday was the Salon’s busiest day. In addition, the Complainant had already taken  extensive time off for various personal reasons.

These days/hours off had resulted in a sizeable negative time balance at the date of her resignation.

She had not responded well to Managerial direction/Instructions and had developed quite a Negative attitude to the Management.

Mr Hyland pointed to the failure of the Complainant to use internal procedures and her negative reaction to the Manager’s offer of a reconsideration of the Verbal resignation. This was her second Verbal Resignation -on an earlier date she had returned to work following discussions with the Owner.

By any accepted standards it was a straight forward Resignation and no claim of constructive dismissal could be supported.

2:2          Payment of Wages Act, 1991  CA:00072856-001

The Respondent asserted that all Payroll matters had been handled correctly. An outstanding amount of gross €380.21 being mostly overtaken Annual Leave was due to the Employer and as per the Contract of Employment was deducted from her final salary payment.

3:1      Section 8 of the Unfair Dismissals Act, 1977 CA: 00072713-001

This was a case of Constructive Dismissal. It was explained to the Complainant wo was unrepresented at the Hearing that legally, the former Employee has to establish a good case.

3:2        The Relevant Law.

The Unfair Dismissal Act,1977, the Constructive Dismissals “Tests”, the issue of the use of Procedures prior to a Resignation and the body of Legal precedents.

In relation to Constructive Dismissal the Adjudicator in A Maintenance Supervisor v A Charity ADJ 00002881 set out a comprehensive review which is worth quoting.

 For a claim of constructive dismissal to be properly brought under Section 8 of the Unfair Dismissals Acts 1977-2015, the Complainant must satisfy the definition in Section 1(b) which provides:

 “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,…”

 As endorsed by the Labour Court in Paris Bakery & Pastry Limited -v- Mrzljak DWT1468, the classic formulation of the legal test in respect of constructive dismissal was set out by the UK Court of Appeal in Western Excavating (ECC) Ltd -v- Sharp [1978] 1 All E.R. 713. It comprises of two limbs, referred to as the ‘contract’ and the ‘reasonableness’ tests. It summarised the ‘contract test’ as 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 as discharged from any other performance.”

 The reasonableness test assesses the conduct of the employer and whether it

“…conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so the employee is justified in leaving.”

According to the Irish Supreme Court in Berber -v- Dunnes Stores [2009] E.L.R. 61:

 “The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.”

Unlike the position where dismissal is not in issue, this definition firmly places the onus/burden of proof on the employee to show that the resignation was justified in all the circumstances.

Furthermore, in the case of use/non-use of Employment Procedures the oft quoted text is from the case of Harrold v St Michael’s House, [2008] E.L.R. where the determination quoted from Redmond, Dismissal Law in Ireland (2002):

“There is something of a mirror image between ordinary dismissal and constructive dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so too an employee should invoke the employees’ grievance procedures in an effort to revoke his grievance. The duty is an imperative in employees’ resignations.”

Accordingly, and In plain English, a Complainant, the former employee, has to establish that

1.       The employment contract was fundamentally broken

2.       The Parties behaved “Unreasonably” i.e. so badly that no reasonable person could tolerate it and  resignation was the only option.

3.       Internal HR Procedures were used / not used.

However, legal issues notwithstanding, all cases rest on their own evidence and this will be examined next. The three “tests” above  will be used as a template.

3:3       Review of the Evidence

3:3:1        Test One : The contract of Employment / Breach of ?

In Constructive Dismissal cases a “Breach of the Contract” has to be very serious – in general involving the non-payment of wages or asking an employee to do work that is totally outside of their job area. In the case in hand ,while there was some dispute over hours/holidays etc wages were paid and the work carried out was that as described i.e. Make-up Artist/Salon Assistant.

As a basis for a constructive dismissal claim the Adjudication view has to be that this Test does not support the Complainant’s case.

3:3:2        Test Two: “Unreasonable” Behaviours

“Unreasonable” behaviours in a Constructive Dismissal case have to be very bad indeed. Issues such as once off Shouting Matches generally would not fit this bill. The Oral Evidence from the Parties at the Hearing indicated to the Adjudicator a very talented Employee that the Respondent Employee was anxious to keep but not at any price. A considerable amount of legitimate flexibility had arisen in relation to Hours/Time tec. The new Manager ,Ms McD, had taken a more robust approach and it was inevitable tensions would arise. The issue of the Special Personal leave for the Complainant’s son Football Ceremony became an issue in this context. The cancellation of the specialist Hairdressing course , as a result of the Complainant’s leave issues was a matter of considerable annoyance to the Complainant. It all came to head on the 31th of May 2025 where there was no doubt that the Complainant verbally resigned. This was confirmed by e mail on the 3rd of June 2025 where it was stated that

I think my position in no longer tenable and do not see a path forward working at X.

Ms McD, the Manager, had written to the Complainant that morning (3rd of June) asking her to reconsider and avail of internal procedures re grievances etc.

From an Adjudication, a Third-Party view, the behaviours of both sides , as expressed in the correspondence and oral testimony, were quite forceful and direct . However, there were not so Unreasonable, so bad, as to warrant a resignation.

It also had to be noted that the Respondent employer had offered in the letter of the 3rd June to reinstate the employee. It was noteworthy the Complainant had already resigned previously and had been reengaged after  a brief absence.

As a basis for a  constructive dismissal the behaviours were not ,having reviewed all the evidence both Oral and Written,  put simply, bad enough, legally, to warrant a Resignation.

3:3:3       Test Three: Use of Internal procedures

It appeared that no formal Internal Procedures / Formal Grievance issue etc were ever used by the Complainant. To be fair to her, she maintained that the Contract of Employment and the Handbook were very late additions to the Employment and she had never been given any understanding of them. None the less, Ms McD, had given the Complainant a copy of the Grievance Procedures  (enclosed with the letter of the 3rd June 2025) and suggested that she utilise them.

All told the Procedures Test cannot be seen as favourable to the Complainant particularly when they were offered in the 3rd June e mail from Ms McD.

3:4       Summary Conclusions

The three Tests set out above do not favour the Complainant. A Constructive Dismissal is a hard case, Legally,  for any former employee to justify. Regrettably for the Complainant here this is the case, Constructive dismissal has not been established. The Complainant is unsuccessful.

3:5       Payment of Wages Act, 1991  CA:00072856-001

The Complaint here was rooted in a major dispute over Hours of Work, time in Lieu and Overtime. The Respondent argued that they had  a proper  HR/Payroll system and all matters were resolved satisfactorily. The arguments from the Complainant were that the system was fine but it was the disputed Inputs that mattered.

Having considered all the evidence both Oral and Written from convincing witnesses  the amount of €300 was viewed , on the basis of reasonable probability, as a Deduction under Section 5 of the Act.

Listening to both sides the Adjudication view was that a Full and Final Settlement of €300 ,in redress of the Deduction, be paid to the Complainant to close the complaint.

Constructive Unfair Dismissal , Payment of Wages Act.