Complainant

Respondent

Parties

Ann Marie Smullen

Zest At Limited

Representatives

 MacSweeney & Company Solicitors

 Alastair Purdy and Co Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00047402-001

30/11/2021

CA-00047402-002

30/11/2021

The Complainant commenced employment with the Respondent on the 04/12/2017. The Complainant submits that she was unfairly dismissed by the Respondent who terminated her contract of employment on the 16/7/2021. The Respondent refutes this allegation and contends that the Complainant resigned at a meeting on the 7/7/2021. The Complainant received weekly remuneration in the sum of €625. The parties agreed that the date of termination of the Complainant’s contract was the 16/7/2021. 

On the 30/11/2021, the Complainant referred a complaint to the WRC pursuant to the Unfair Dismissals Act 1977 as amended.

The Complainant gave evidence outlining the history and nature of her employment with the Respondent and the background giving rise to this complaint of unfair dismissal. The Complainant submits that she was dismissed on the 16/7/2021 when she received her final payslip by email and did not resign as submitted by the Respondent.

Evidence of the Complainant, Ann Marie Smullen

The Complainant stated that she has a degree in culinary arts specializing in pastry. The Complainant confirmed that she was employed with the Respondent as a bakery manager and had fixed days which she worked from Tuesday to Saturday which suited her needs as a parent. The Complainant provided detail regarding the distinction between the “hot bakery", where all goods were baked, and the work involved more manual handling and the “cold bakery” where she worked where cakes were finished off and involved more delicate and decorative work.

The Complainant stated that she has problems with her back and with her wrists and she is conscious of lifting. The Complainant stated did she had a concern regarding the change of role that was put to her which would involve more lifting and stated that she did not feel that she was physically able to do it.

The Complainant stated that she was laid off in March 2020, and received some correspondence during the lockdown. She stated that she was aware of another member of staff who was brought back to the cold bakery to do fondant cakes. The Complainant stated that on the 1/7/2021 the Complainant got a call from Mr Miller who stated that there was a position available in the hot bakery as the chef had left, he stated that there would be no reduction in pay but that she would have a rolling pattern of days of work with four days on and that her role would not have a title.

The Complainant stated that she had a meeting with Mr Miller on the 2/7/2021 where he stated that he could not say when her original job would come back. At the meeting the Complainant stated that she was concerned about the physical aspect of the role and she mentioned to Mr Miller her concerns with her back and wrist and her concerns regarding her daughters welfare with the rolling pattern of work days. The Complainant stated that the meeting became heated, that Mr Miller became aggressive towards her and she left the meeting.

The Complainant said that she requested a meeting with Mr Malone, whom she met with Ms Barry on the 7/7/2021. The Complainant stated that she voiced her concerns about her back and wrist in relation to the alternative role and offered to provide a doctor's certificate but that Mr Malone “fobbed it off” . The Complainant stated that Mr Malone said he needed to get someone for the hot bakery and if the Complainant didn't take the job that she would be reported to the Department of Social Welfare.

The Complainant said that she asked Mr Malone if there were alternative positions available and she was told that there was no other positions. The Complainant confirmed that she did not make any reference to resigning nor did she use the word “resign” at the meeting. The Complainant said to Mr Malone that she would remain loyal to the business and would wait until her original role came back and that she would work away on her own cake business.  The Complainant stated that she didn't object when she received her final pay slip in July 2021 as she was afraid that she could be reported to the Department of Social welfare.

The Complainant stated that she was registered with various named recruitment agencies. The Complainant stated that she was looking for a role working with pastry in a bakery working with refined confectionery. The Complainant said she secured an interview for a bakery in Ennis but that based on the salary on offer it was not financially viable for her to take it up. The Complainant was offered a position with the named café which she refused as it was only two days per week. The Complainant  refused a role with a named cafe in Galway, as the pay was too low and also refused a role in another named cafe due to the start time of 4:00 am. 

The Complainant confirmed that she started a new role with a named cafe on the 7/ 11/ 2022 working three days per week earning €16 per hour.

The Complainant confirmed that she operates her own named cake business and draft unaudited trading accounts for 2021 and for six months ending on 30/6/2022 were exhibited at the hearing, she confirmed that she earned for 2021 a net profit before tax of €4370, and for 2022 a net profit of €3,879 for six months up to 30/6/2022.

In cross examination the Complainant confirmed that she received her final pay slip in July 2021. It was put to the Complainant that it was fair to say that she could have objected to the decision to dismiss her. The Complainant stated that she felt she couldn't object to this decision due to the threat of intimidation from Mr. Malone. The Complainant clarified that she felt threatened that she would be reported to the Department of Social welfare. The Complainant denied that she was incorrectly claiming the “PUP” payment as she had not been offered suitable alternative employment.

In cross examination the Complainant confirmed that she didn't disclose that she had problems with her back and wrist prior to commencing her role. It was put to the Complainant that the evidence of the Respondent would be that at either meetings with Mr Miller or Mr Malone the Complainant did not refer to any issues with her back.  The Complainant disagreed and stated that she offered to provide a medical certificate.

It was put to the Complainant that she had not provided vouching documentation regarding her efforts to mitigate her losses. The Complainant confirmed that she hadn't set aside time each week to apply for jobs, as she was focusing on her own cake business. The Complainant confirmed that she hadn’t accepted  various  roles for personal reasons and also to do with the low pay on offer. The Complainant confirmed that her own cake business was incorporated in June 2022.

The Complainant confirmed, in reply to a question that I put to her, that her understanding of her position after the meeting on the 7/7/2021 was that she remained on layoff. The Complainant said that when she saw the accrued holiday pay on her final pay slip she knew she had been dismissed.

Submissions on behalf of the Complainant

In the Complainant’s written submissions, the Complainant denies that she "resigned". It was submitted that the most that the Respondent can say is that it had "no alternative but to assume" the Complainant had resigned, if she didn't accept the varied role on offer.

The Complainant refers to Kerr'sIrish Employment Law Legislation, where it is noted (at JB.111) that:

"In a normal case, if unequivocal words of resignation are used, the employer is entitled to immediately accept the resignation and act accordingly.

It was submitted that relying on the above, the wording of a resignation is required to be unequivocal, which it was submitted was not the situation in the present case.

The Complainant placed reliance on Kwik-Fit (GB) Ltd —v- Lineham 1992 I.R.L.R. 156 (at paragraph 31) where it was noted that "if words of resignation are unambiguous then prima facie an employer is entitled to treat them". However, it was submitted  that the Court went on to say that "in the field of employment, personalities constitute an important consideration”

The Complainant also placed reliance on Millett v ShinkwinDEE 4/2004, where the Labour Court noted;

"A resignation is a unilateral act which, if expressed in unambiguous and unconditional terms, brings a contact of employment to an end.

It was submitted that on no account could the words used by the Complainant be considered to constitute an unambiguous or unconditional resignation. Furthermore, it was submitted the authorities are consistent in indicating that where any ambiguity arises in respect of an alleged resignation, the onus is on the employer to clarify matters, before implementing a termination.

The Complainant also placed reliance on the cases of Sothern v Franks Charlesly & Co [1981]/ I.R.L.R. 278, and Lucyna Cierocke v Viking Lodge Hotel[2012], DEC-E2012-056.

It was submitted that in line with decisions such as Parcourt Ltd c/a Cgfé Viena v A WorkerEED0211 andDollymount Creche & Montessori v Finnerty EED034, there is a heavy onus on an employer to have indisputable evidence that a worker is resigning, before issuing a P45 during the protected period.

It was submitted that the Complainant’s  situation bears no comparison to the situation in the case of Daragh Bolton v Stobart Air UC (in Liquidation), where the Adjudication Officer "accepted that the Claimant had no intention of returning to work". It was submitted that the Complainant sought the two meetings, including the one in which she was dismissed or per the Respondent "deemed to have resigned".  Insofar as it is claimed that the Adjudication Officer inferred from the lack of objection by Mr. Bolton to his removal from payroll that it was "indicative of him not wanting to return to work", it is submitted that differs from the present situation, where there was an active threat made by Mr Malone to report the Complainant to the Department of Social Welfare. Accordingly, it was submitted that the Bolton case does not support the Respondent’s defence, in the present circumstances.

It was submitted that following the Complainant’s dismissal, she sought alternative employment, that many of the roles she applied for did not suit her personal requirements/ needs. The Complainant did ultimately secure a suitable role with a named Café which she commenced on 7/11/2022, earning €16 per hour, 3 days per week.

It was submitted that for the foregoing reasons the Respondent unfairly dismissed the Complainant and that she is seeking compensation as a remedy. 

In summing up the Complainant’s representative submitted that if an employer is going to rely on words as evidence of a resignation those words must be unambiguous and clear. It was submitted that the Respondent is not entitled to tell the Complainant that she is voluntarily resigning her employment.  It was submitted that the Respondent cannot establish that there was a resignation, based on the evidence provided, therefore it was contended that the Complainant was unfairly dismissed.

The Respondent denies that the Complainant was unfairly dismissed from her employment, on the basis that the Complainant brought an end to her own employment when she acknowledged and accepted her resignation during a meeting with the Respondent.

Evidence of Mr Danny Miller, Executive Chef

Mr Miller stated that he has been employed with the Respondent since 2007 and confirmed the Complainant reported to him. Mr Miller stated that the Complainant was a good employee and brought new skills to the role, he had no issues with their working relationship.

Mr Miller provided an overview of the operation of and differences between the “hot” and “cold” bakeries, including any difference in the weight of bags to be lifted in both bakeries.

Mr Miller provided an outline of the impact of the COVID-19 pandemic upon the business in March 2020 and thereafter. He stated that the Complainant’s role was affected during the lockdown period and he took on her role in overseeing cakes in the cold bakery. Mr Miller confirmed that the employees who returned to the business in July 2020 had to take on different tasks.

Mr.Miller stated that he spoke to the Complainant 3/4 times during the lockdown period. At the start of July 2021, he spoke to her regarding an alternative job offer. Mr Miller stated that he was responsible for making the decision to call the Complainant to offer her an alternative role and that during the phone call he went through the role with her. He stated the Complainant did not raise any issues with him regarding working in the hot bakery such as having to lift heavy bags.

Mr Miller stated that they had a meeting two days later, where the role was brought up and very quickly the meeting turned, and the Complainant stated that she wouldn't take the alternative role. Mr Miller stated that during the meeting “things took a turn”, he denied that he was rude and aggressive at this meeting. Mr Miller stated that the Complainant confirmed the role was not suitable and did not provide a reason for this.

In cross examination Mr. Miller, denied that the alternative role was different to the Complainant’s previous role in that she would not be carrying out any finishing work in the cold bakery. Mr Miller disputed that the hot bakery involved more heavier work. Mr Miller confirmed there were no minutes taken of the meeting. Mr Miller agreed that the Complainant did want her job back in the cold bakery.

Evidence of Mr Ean Malone, Managing Director

Mr Malone confirmed his position as the Managing Director with the Respondent which operates two companies, Zest and EFG. Mr Malone confirmed that in March 2020 at the start of the lockdown the workforce was reduced to six senior managers and both himself and Ms Barry took themselves off the payroll. Mr Malone provided detail regarding the operation of the business during the COVID-19 pandemic, and the staggered return to work of their workforce.

Mr Malone confirmed that he thought the alternative role offered to the Complainant was suitable, he didn't see a problem in shifting roles and stated that he was not “asking her to drive a truck”, this was not outside of her qualifications. Mr Malone confirmed that the pay was the same, however the Complainant would not have the title of bakery manager.

Mr Malone confirmed that the Complainant had requested the meeting on the 7/7/2021. Mr Malone stated that he did not get into the specifics of the role, that Mr Miller had explained the detail of the role to the Complainant, and his impression was that the role didn't suit the Complainant based on personal reasons connected to family matters.

Mr Malone confirmed that the Complainant was looking for an assurance that she would return to a managerial role in the cold bakery but that he could not give any certainty when her role would come back. He denied the allegation that the meeting turned sour.

Mr Malone stated that he informed the Complainant that if she would not take up the alternative role, which in his view was a reasonable alternative, they would need to advertise the position and would then have to assume she didn't want to come back. Mr Malone stated in his opinion he felt the Complainant didn't want to take up the position because it didn't suit her due to her personal circumstances, not due to the role itself.

Mr Malone stated that he was aware of government briefings regarding the “PUP” (Pandemic Unemployment Payment) and if people were refusing to come back to roles who were receiving the payment there was an obligation on employers to report such employees to the Department of Employment and Social Protection (DEASP). Mr Malone confirmed that he did not threaten to report the Complainant to DEASP that he was making a general statement. Mr Malone stated that the Complainant stated in response that she was going to work away herself and he stated that she said five times “that is a pity”. Mr Malone stated that the meeting finished on the understanding that if a suitable position came up that he would be in contact with her.

Mr Malone confirmed in his opinion the Complainant did not want to return to work and confirmed that the Complainant’s role has not come back. Mr Malone confirmed that the Complainant was taken off the payroll and they did not receive any objection to this.

Mr Malone confirmed in relation to the job market that in his view that there is a very high demand for all types of chefs, there are over 40,000 vacancies in the hospitality industry where there is a high demand for a bakery manager or pastry manager.

In cross examination Mr Malone confirmed that the Complainant was the last person invited back. Mr Malone confirmed that he was not aware of the decision made by Mr Miller to leave the Complainant at home instead of inviting her back to work due to the Complainant’s personal issues. Mr Malone confirmed that there were no documents or written notes of the meeting on the 7/7/ 2021, and that the Complainant had requested both meetings.

Mr Malone denied that at the meeting on the 7/ 7/ 2021 that he threatened to report the Complainant to DEASP, but stated that he made a statement of fact to the effect that if an employee refused to take an alternative role it was in the media that an employer was obliged to report such an employee to DEASP. Mr Malone confirmed that he didn't report the Complainant to DEASP for refusing to take the alternative role, as her contract was terminated, he didn't need to report her.

It was put to Mr Malone that there were several alternatives open to him including leaving the Complainant on layoff. Mr Malone stated that if an employee refused to take a reasonable alternative offer an employer was obliged to report them to DEASP, he further stated that he could have left her on the books and then report her to DEASP for refusing to take the alternative offer of employment.

Mr Malone stated that the Complainant said in reply on two occasions “that's a pity” which he stated he interpreted as she was agreeing to resign her position. Mr Malone confirmed that he did not follow up in writing the outcome of the meeting with the complainant, as himself and Ms Barry felt this was a general conversation and they didn't think it was necessary to document the meeting.

Evidence of Ms Fiona Barry, Financial Director 

Ms Barry stated that she is the Financial Director with the Respondent and a co-director with Mr Malone. Ms Barry stated that she attended the meeting on the 7/7/21 with Mr Malone and that the Complainant was offered a position in the hot bakery temporarily and that she would then be moved to the cold bakery once a position became available. Ms Barry stated that the Complainant did raise concerns relating to personal matters in respect of the position as she wanted to have set days off. She stated that the meeting was amicable.

Ms Barry stated that Mr Malone put it to the Complainant that if she was not taking the role in the hot bakery they would be advertising the position, and would assume that she was not coming back. Ms Barry said Mr Malone told the Complainant that they had an obligation to report her to DEASP for refusing an alternative role. Ms Barry stated that there was no communication from the Complainant in this regard.

In cross examination Ms Barry stated that the obligation to report the Complainant to DEASP arose on the basis that they had offered her a role which she didn't accept, if they left her on the books, they would have to fill out a form for DEASP (in relation to her PUP payment) stating that there was no job suitable for her.

Ms Barry stated that she had no recollection of the Complainant referring to any medical issues. Ms Barry confirmed that the word “resignation” was not used. She couldn't recall the Complainant stating that the outcome of the meeting was “fair” or stating the words “it's a pity” or “unfortunate”.

Submissions on behalf of the Respondent

It was submitted by the Respondent that as the dismissal is deemed to be in dispute the onus rests  with the Complainant to prove otherwise.

The Respondent submitted in their revised supplement submission that it was communicated to the Complainant at the time that in circumstances where she was refusing the opportunity to return to employment, that it would be taken that she was not returning to employment and that she was resigning. It was submitted by the Respondent that the Complainant expressly acknowledged this and tacitly accepted same. This is supported by the fact, that upon confirmation of termination, no correspondence was received by the Respondent from the Complainant objecting to this or contesting the resignation. In support of this contention, the Respondent relies upon the WRC decision in A dispatch & delivery supervisor v A specialist food company (2018) ADJ-00005463.

It was submitted that in accordance with the definition of “dismissal” under the 1977 Act, that the Complainant’s case does not meet the threshold of dismissal and as such cannot be afforded protection under the 1977 Act. The Respondent relies on the decision of the WRC in ADispatch & Delivery Supervisor v A specialist food company (2018) ADJ-00005463.

The Respondent submitted that during the meeting on the 7/7/2021, upon the Complainant refusing the role in the hot bakery, it was relayed to her that the Respondent will be taking the view that she does not want to return to the Respondent company and that she was in fact resigning. It was submitted that the Claimant accepted this position, did not object to or resist the idea that she was resigning, nor did she outline any intention that she wished to return to employment. In this regard the Respondent relies on the decision of the WRC inDaragh Bolton Stobart Air UC in Liquidation (2022) ADJ00029917.

Notwithstanding and without prejudice to the foregoing argument, in circumstances where the Adjudicator Officer finds that the Complainant was dismissed, the Respondent contends that the dismissal is still deemed to be fair. In this regard reliance is placed on the decision of the WRC inDaragh Bolton Stobart Air UC in Liquidation (2022) ADJ00029917,which it was submitted is on all fours with the present case.

It was submitted that in circumstances where the Adjudicator Officer finds that the Complainant’s dismissal was unfair, mitigation and contribution should be assessed when determining the Claimant’s financial loss in accordance with Section 7 of the 1977 Act.

It was submitted that in determining whether there has been a breach of the duty to mitigate regard should be had to the test of reasonableness. In the same way an employee must not unreasonably restrict his or her search solely within a narrow field, he or she must be open to finding work in a broader sphere. It was submitted that the Complainant has commenced a business on her own accord, a wedding cake business, and in so doing, the Complainant has taken herself out of the jobs market and as such, has failed to mitigate her loss.

In summing up the Respondent’s representative submitted the Complainant tacitly resigned her role. It was submitted that the Respondent’s understanding of the outcome of the meeting on the 7/7/2021 was that the Complainant had resigned her role and that she did not object to this understanding and reliance is placed on the decision of the WRC in Daragh Bolton Stobart Air UC in Liquidation (2022) ADJ00029917. In relation to mitigation it is submitted that there was an obligation on the Complainant to find alternative employment and that if she refused roles any loss is therefore attributable to the Complainant’s actions.

The Relevant Law

Section 1(a) of the Acts defines dismissal as including:

“the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee . . .”

Section 6 of the Act in the relevant part provides;

6.— (1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

Section 6(4)(b) expressly lists the grounds where dismissal of an employee shall not be deemed to be unfair. Section 6(6) imposes the burden of proof on the employer to show that the dismissal was fair.

Section 6(7) provides for an Adjudication Officer to have regard :-

 “(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and (b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14 (1) of this Act (to provide written reasons when requested) or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7 (2) of this Act.” 

Section 7 outlines the provision for a remedy in the circumstances of a successful claim for unfair dismissal. 

As set out in the authorities and caselaw cited on behalf of the Complainant, where “unequivocal words of resignation” are used by an employee an employer is entitled to “immediately accept the resignation and act accordingly”, as referred to in Kerr'sIrish Employment Law Legislation. 

I note that a similar definition is provided by Ryan, Redmond on Dismissal Law, 3rd Ed, 2017 at para 22.22, who describes a resignation as “Where unambiguous words of resignation are used by an employee to an employer, and are so understood by the employer, generally it is safe to conclude the employee has resigned. “

I consider that the Labour Court decision of Donna Millett v Charles Shinkwin [2004] 15 E.L.R. 319, as cited by the Complainant is relevant,  wherethe Court stated the following:

“A resignation is a unilateral act which, if expressed in unambiguous and unconditional terms, brings a contract of employment to an end………

There is, however, a significant body of authority for the proposition that there are exceptions to this general rule and that there are occasions in which an apparently unconditional and unambiguous resignation may be vitiated by the circumstances in which it is proffered.”

In the context of a situation where an employee tries to withdraw a notice of resignation Ryan in  Redmond on Dismissal Law, 3rd Ed, 2017 at para 22.25, states relying on the UK case of Kwik-Fit (GB) Ltd v Linehan [1992] IRLR 156  in relation to a doubt as to a resignation by an employee “The employer should investigate the facts, to see whether to a reasonable employer an intention to resign is the correct interpretation of the facts.” It is therefore clear that there is a positive obligation upon an employer to clarify whether an employee has resigned or not.

Where the fact of dismissal is in dispute, it is for the Complainant to show that a dismissal occurred as defined by Section (1) of the Acts. If the Complainant can prove that a dismissal took place, the burden of proof then shifts to the Respondent to show that the dismissal was both substantively and procedurally fair.

Findings

There is a difference in the evidence given by the witnesses for the Respondent and the Complainant in respect of various factual matters. I do not consider it relevant to my findings to resolve all of those conflicts. The relevant evidence relates to what transpired at the meeting of the 7/7/2021 between the Complainant, Mr Malone and Ms Barry. 

It is undisputed between the parties that at the meeting on the 7/7/ 2021 the Complainant did not offer her resignation or use the words “resign”. This is clear from the evidence of the Complainant and Ms Barry who corroborated this fact in her evidence.

It is submitted by the Respondent that the Complainant brought an end to her own employment when she acknowledged and accepted her resignation during a meeting with the Respondent on the 7/7/2021.

The Complainant stated in her evidence that Mr Malone informed her at the meeting on the 7/7/2021 that he needed to get someone for the hot bakery and if the Complainant did not take the job that she would be reported to the DEASP. I accept the evidence of Mr Malone who stated that he informed the Complainant that if she did not take up the alternative role, which in his view was a reasonable alternative, they would need to advertise the position and would then have to assume she didn't want to come back, which was corroborated by the evidence of Ms Barry. 

Mr Malone submitted in evidence that the Complainant stated twice at the meeting of the 7/7/2021 in reply to the above statement, “that is a pity” which he interpreted as she was agreeing to resign her position. I note that Ms Barry did not corroborate this evidence but instead stated that there was no communication from the Complainant.

Applying the legal authorities as set out above, a resignation is “is a unilateral act “undertaken by an employeewhere the words used must be expressed in “in unambiguous and unconditional terms,”. Based on the evidence adduced at the hearing, I am satisfied that the Complainant did not offer her resignation or use any words which could be considered to amount to unambiguous words of resignation, at the meeting on the 7/7/2021.

The Respondent’s submits that the Complainant is deemed to have resigned by her refusal to accept an alternative role. I do not agree with the Respondent’s submission in this regard as it is clear from the legal authorities that firstly a resignation is a unilateral act undertaken by an employee and secondly that clear “unambiguous words of resignation” must be used by an employee, which did not occur in this case.   

Even if I accept the evidence of Mr Malone that the Complainant stated, “that is a pity”, I find that this does not amount to unambiguous words of resignation by the Complainant, nor does it amount to a tacit acceptance by the Complainant of her resignation. 

I accept the Complainant’s submission that she had no pre planned intention of resigning prior to the meeting of the 7/7/2021, which she requested and that the concept of “resignation” was introduced by the Respondent. I note from Mr Malone’s evidence that he stated “in his opinionthe Complainant did not want to return to work” however Mr Malone did not put this to the Complainant at the meeting nor was there any attempt made to clarify this further to the meeting. The Complainant understood that she was on lay off further to the meeting which I accept as a reasonable belief given the ambiguous nature of the meeting. I am satisfied that there was a significant degree of doubt further to the meeting.

It is clear from the above authorities that if an employer has any doubt regarding a resignation by an employee there is an onus on the employer to clarify matters. Based on evidence adduced, I am satisfied that the Respondent did not make any effort to clarify with the Complainant her understanding of the outcome of the meeting on the 7/7/2021. I consider that a reasonable employer would have contacted the Complainant to clarify the situation and confirmed the position in writing with the employee.   

Based on the evidence adduced at the hearing and applying the above legal authorities to the facts of this case, I am satisfied that the Complainant did not resign her position as alleged on the 7/7/2021 but was dismissed by the Respondent.  

It is undisputed between the parties that the Respondent removed the Complainant from the payroll and sent her her final pay slip including all accrued annual leave by email dated 16/7/2021, which the Complainant understood to mean that the Respondent had dismissed her. I do not consider it material that the Complainant did not object to this as the onus rests with the Respondent to clarify with the Complainant the situation prior to terminating her contract.  Accordingly, I find that the Complainant was dismissed in accordance with Section (1) of the Acts. It was agreed between the parties that the relevant date regarding the date of dismissal is the 16/7/2021.

Dismissal

Section 6(6) imposes the burden of proof on the employer to show that the dismissal was fair. In the instant case, the Respondent has not put forward any evidence to show that there were substantial grounds for the Complainant’s dismissal, beyond a bald assertion that the dismissal was fair. I am satisfied that the Respondent is unable to shift the burden of proof in this case on the basis that the dismissal of the Complainant was not based on any of the reasons outlined in Section 6(4) of the Act.   

It is well established that an employee has a contractual, constitutional, and statutory entitlement to fair procedures. S.I. No. 146/2000 - Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order 2000, sets out the minimum requirements regarding fair procedures in the context of disciplinary matters. I am satisfied that no procedures were applied to the Complainant’s dismissal in breach of the Complainant’s procedural rights. Accordingly, I find that the Complainant’s dismissal was both substantively and procedurally unfair.

For the avoidance of doubt, I do not consider that the facts of this case are on all fours with the decision of the WRC inDaragh Bolton Stobart Air UC in Liquidation (2022) ADJ00029917 on the basis that there is no evidence in this case to suggest that the Complainant had no intention of returning to work.  

I am satisfied that the appropriate form of redress, having regard to all the circumstances, is that of compensation. The Act provides that an Adjudication Officer can order compensation for financial loss (which is defined as including any actual loss and any estimated future loss) attributable to the dismissal, as “is just and equitable” having regard to all the circumstances, of up to a maximum of 104 weeks remuneration.

Considering the Complainant’s weekly remuneration figure is €625, the maximum amount of compensation that I can award in this case is €65,000 equivalent to two years’ salary.

In this regard I must assess the complainants’ efforts to mitigate her losses as required under Section 7. I note that the Complainant has been working on her own named cake business which appears to have been established for many years prior to her dismissal. I note that the Complainant’s solicitor submitted a second set of unaudited accounts for 2022 and 2021, prior to the second day of hearing which were exchanged with the Respondent, who did not raise any objection to same. The accounts record a pretax profit of €9,679 and €5,406 for those years respectively which I shall consider on a pro rata basis given the date of dismissal. In terms of assessing the Complainant’s actual loss figure I note that there is a shortfall of income between the Complainant’s yearly salary of €32,500 and the income from her existing business.  

I note from the Complainant’s evidence that she did not accept several offers of employment for various reasons as outlined in her evidence, and she stated in cross examination that she did not set aside time each week to apply for roles as she was focusing on her own cake business. I note that no supporting documentation was exhibited. The Complainant confirmed that she started a new role with a named cafe on the 7/ 11/ 2022 working three days per week earning €16 per hour, therefore there is a shortfall in income with her previous salary, which I shall consider in my assessment of future losses.    

In assessing the Complainant’s financial loss, I am mindful of the decision of the Employment Appeals Tribunal (EAT) in Sheehan v Continental Administration Co. Ltd. UD 858/1999 where the Tribunal set out the extent of the onus upon a Complainant to make efforts to mitigate their loss in the following terms;

“a claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work….The time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather [is] to be profitably employed in seeking to mitigate his loss”. 

Considering the above decision and based on the evidence adduced, I find that the Complainant has made limited efforts to mitigate her loss. Based on the Complainant’s evidence, it appears to me that the Complainant chose to confine herself to developing her own cake business (which was established prior to her dismissal) which has resulted in a significant shortfall in income when compared with her previous salary. Accordingly, I do not consider it reasonable that the Respondent should be held fully accountable for all the Complainant’s financial loss. 

Notwithstanding my conclusions regarding the adequacy of the Complainant’s efforts to mitigate her losses, considering the circumstances of this case, I find that the balance of unfairness and failure to comply with the terms of Section 7 as a whole lie squarely with the Respondent.

In light of the foregoing, I find that the Complainant is entitled to compensation for actual, ongoing and future losses in the sum of €24,082 which I consider just and equitable in the circumstances of this case. 

I find that the Complainant was unfairly dismissed by the Respondent within the meaning of Section 6 of the Unfair Dismissals Acts for the reasons set out above. Accordingly, I find that the complaint is well founded. I determine that an award of compensation to include actual, on-going and future loss to be the appropriate award in the circumstances of this case. I require the Respondent to pay the Complainant €24,082 in compensation.

Resignation – doubt as to dismissal – unfair dismissal