Complainant

Respondent

Parties

Tiago  Lucio

Avise Hair Creations Ltd

Representatives

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-00073998-001

01/08/2025

The Complainant worked in the Respondent hair salon from March 2023 until August 2025.  While both parties accept that they had a number of disagreements over the course of the working relationship, despite this they generally got on well. The Complainant resigned in August 2025 following a disagreement in July and a period of two weeks sick leave.  

The Complainant attended the hearing and gave evidence under oath with the assistance of a translator.

While the Complainant had made more wide ranging written submissions his evidence was that the reason he resigned related to a period in July 2025 when the Respondent asked him to take annual leave for a week due to a colleague being due to leave the business in August. They wanted him to take his leave while the colleague was still available for cover and he agreed to this.

It was then later discussed that the Complainant might take on work for two of the five days and this was agreed. When the Complainant came back from annual leave the following week he was upset to discover that the Respondent did not intend to pay him on top of his taking five annual leave days. Instead he was told he had only taken three annual leave days and had worked two as normal. The Complainant accepts that they did not agree any specific payment for those days in advance.   

Two of the Respondent company Directors’, Ms Naoise Fitzgerald and Ms Fiona Fitzgerald, attended the hearing and made written and oral submissions.

The sequence of events outlined by the Complainant in relation to the leave is correct. They were in fact unaware that this was the main issue which drove him to resign. They had had a disagreement with him on his last working day when they raised him being late to work and they thought that was the catalyst for his resigning.

As outlined above the Complainant returned to work following a period of annual leave and some working days annoyed to discover he would be paid for the working days as normal rather than on top of his leave. On the 23rd of July the Complainant became extremely frustrated in the course of a disagreement with Ms Fitzgerald and left work with her agreement.

That evening he discovered he had been taken off the booking system which she accepts. Ms Fitzgerald explained that she was not certain when he would return and they needed to avoid automatic booking of appointments which the Complainant might not be filling.

The Complainant and Ms Fitzgerald exchanged whatsapp messages the following day where she asked after him and he explained he was frustrated with the working relationship. He did not bring up the booking system.

On Monday the Complainant went to a GP and submitted a sick certificate. The Respondent requested a further certificate as the submitted certificate came from a online GP located outside the EU. The Complainant was due to return on the 5th of August but resigned at that point and started working in a new salon on slightly higher pay.

The Law

The Unfair Dismissals Act provides that a dismissal can occur where an employee resigns.

This is outlined in section 1 of the act which defines dismissal as to include:

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,

The above has been interpreted as putting the burden on the employee to establish not only was their decision to resign reasonable but that it was due to the unreasonable conduct of the employer.

Or as the UK Court of Appeal put it in the seminal case of Western Excavating (ECC) Ltd v Sharp [1978] ICR 221:

“is that the employer must act reasonably in his treatment of his employees. If he conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, the employee is justified in leaving. He can go, with or without giving notice, and claim compensation for unfair dismissal”

The Respondent’s approach to dealing with the Complainant working during a period of annual leave was not only reasonable but was the lawful option. Minimum annual leave entitlements are not employee benefits. They are health and safety requirements imposed by EU directive. It is not open to an employer to let an employee work during annual leave in order to pay double time or some other premium. The leave must either be taken or not taken. In this case two days were not taken as annual leave and were appropriately treated as working time with the leave reserved for some future time.

In the circumstances the Complainant’s claim for constructive unfair dismissal cannot succeed.

I dismiss the claim for the reasons outlined above.