Complainant

Respondent

Parties

Radoslav  Merglesky

Mike Delta Mike Holdings Ltd (In Liquidation)

Complainant

Respondent

Anonymised Parties

Representatives

  Self

 Did not attend

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00062960-001

22/04/2024

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

CA-00064440-001

02/07/2024

The Complainant was employed as a Pizza Chef by the Respondent.  He commenced employment on 21/04/2023 and was dismissed on 02/06/2024. He was paid €640 gross per week.  He submitted his complaints of discrimination and unfair dismissal to the WRC on 22/04/2024.

The Complainant gave evidence on oath.  The Complainant outlined that commenced employed as a Pizza Chef by the Respondent and his duties were agreed.  As part of his employment agreement the Complainant had made it known that he would require every second weekend off as he had complicated family access arrangements arising from on-going legal matters.  The Complainant gave evidence that this was agreed, and it was a feature of any previous employment he had.

The Complainant was offered various promotional opportunities but declined these as this would not align with his access arrangements.

There was a high turnover of employees and there were five Head Chef changes.  In October 2023 a new Head Chef commenced, and his idea of his role was very different to any other Head Chef.  He did not intend to work in any section, did not look after stock orders and did not have any experience with pizza or pasta.  His main interest was in staff rostering and he was more a kitchen manager than a Head Chef.  The Complainant also gave evidence that this person lacked food safety, food rotation, stock checking and food hygiene knowledge and this was apparent.

The Complainant submitted that the employees organised a meeting with the Managing Director, Mr Alan Glynn and the then General Manager to alert them to their concerns about the ongoing issues in relation to stock ordering, food hygiene and the potential risk for food contamination. He provided examples of poor work practices and what he referred to as “dodgy food” in the area.  The Head Chef was present at this meeting, and they were promised that improvements would occur.  However, nothing changed, and the Head Chef continued to employ new chefs.

The Complainant gave evidence that at the beginning of December 2023 he tried to engage with the Head Chef in relation to the high volume of orders as he was not getting any information in relation to the number of bookings.  This was a difficulty for him as he was the last one of three chefs in the pizza station.  One had left and the other was on sick leave.  He required this information in order to ensure that he had adequate stock prepared.

The Complainant outlined that after this the Head Chef purposely rostered him for days he could not work, and this resulted in him only getting four hours work.  He tried to discuss this with the Head Chef but got nowhere.  He explained his difficult family situation to him, and the Head Chef said that he misunderstood his situation and that he would roster him based on his contract arrangements.

The Complainant had a meeting with the Managing Director, Mr Alan Glynn, and the Head Chef.  The Head Chef explained in a very arrogant manner that he gave the Complainant the shifts he asked for.  The Complainant gave evidence that he told the Managing Director that he had a contract of employment for 40 hours and that he required this work in order to provide for his family.  The result of this misunderstanding by the Head Chef was that he was left in a difficult financial situation.

The Complainant stated that he was told by the Manging Director that he should notify the Head Chef through text messages when his access days were due in order to avoid this happening again. This would also help the complainant confirm that he had informed the Head Chef in advance if any .  The Complainant also stated that the Managing Director told him that he would check his contract and restore his hours and provide a statement to confirm this.  The Complainant gave evidence that he was never given this statement.

The Complainant outlined that after six weeks the Head Chef started to roster him again on the days his access arrangements were due.  On one occasion the Head Chef told him that he was stuck for the weekend and the Complainant changed his access arrangements to facilitate the Head Chef.  The Complainant gave evidence that his Saturday shift was then cancelled, and he was rescheduled for the following weekend despite the fact that the Head Chef was already aware he had changed the arrangements to suit the business.

When a new General Manager started the Complainant lodged a formal complaint in relation to the ongoing harassment and the concerns, he had about the food safety and hygiene practices in the kitchen. He also highlighted that there were issues with the clocking system and some hours were not recorded and therefore not paid.  The Complainant was not paid for 25 hours as a result of the fault and as a result of the failure of the Head Chef to correct the clocking records.

 He had a meeting with the General Manager who assured him that he would deal with the Head Chef.  The day after the meeting the Complainant received his  Evaluation by e mail from the Head Chef.  This was completed by the Head Chef and in this evaluation, he was criticised for the same issues as he had previously highlighted in relation to the Head Chef.  The Complainant also gave evidence that this evaluation contained a criticism for not complying with duties he never agreed to or was never paid for.  It is the Complainant’s position that this evaluation was completed in a biased manner and that was not in line with the procedures, and he had no input.  He was issued with the email and told that they expected improvements.  The Complainant gave evidence that he was told by the General Manager that the evaluation did not affect anything.

The Complainant gave evidence that he then escalated his grievance to the Managing Director, Mr Alan Glynn and included the negative evaluation from the Head Chef as part of this grievance.

The Complainant had a meeting with the Managing Director at which he outlined that he felt intimidated and that they wanted him to sign a new and revised contract of employment. The Complainant was told by the Managing Director, Mr Glynn,  that he had many complaints about his work, but he refused to provide any details and said these were not important and he confirmed that the Complainant’s contract had changed.

The Complainant gave evidence that he told the Managing Director that his contract could not change without his agreement and if they wanted him to take on additional duties, he was ready to discuss the pay rise.  The Complainant also gave evidence that he informed the General Manger that he was not paid for the shift cancelled by the Head Chef, and he was told that the Respondent was only obliged to pay him 50% of the cancelled hours.  The Complainant requested a copy of the legislation which authorised this. 

The Complainant also gave evidence that the Managing Director told him that sending messages about his unavailability was not the correct way, despite him having told the Complainant to do so in December 2023.   He was told  that this should now be done though an application.  The Complainant believes that the General Manager excused the behaviour and conduct of the Head Chef as a misunderstanding.

The Complainant stated that a few weeks after this meeting the General Manager told him that the Complainant’s view was correct in relation to the contract and hours not paid.  He confirmed that the Complainant was working on his original contract and that he would be paid for the remaining hours from the cancelled shift.  He never received this payment.

The Complainant gave evidence that the harassment by the Head Chef continued.  He provided examples of this whereby he would not respond to the Complainant’s texts and when more chefs were allocated to the Complainant’s shift, and they were not busy it was the Complainant who would be sent home. 

The Complainant submitted that the investigation by the General Manager consisted of asking the Head Chef if he was harassing the Complainant or if he was asking the Complainant to serve spoilt food to the customers.  The Managing Director insisted that the Complainant’s contract had changed from Pizza Chef to General Chef and that his hours of work had also changed.  The Complainant stated in evidence that he told the Respondent that he saw no reason to change his contract or to ignore the fact that his contract provided for 40 hours work per week.

The Complainant gave evidence that after he submitted his complaint to the WRC he was completely ignored and made to feel that he was not part of the team.  The Head Chef continued to employ chefs who were Spanish speaking.

The Complainant gave evidence that at the beginning of 2024 the business began to decline and staff were put on reduced hours.  He asked the Respondent to complete and provide him with the UP 80 form so that he could access benefits.  The Respondent delayed in providing this resulting in further financial hardship for the Complainant.  The Complainant asked when he could expect to resume full time hours and he was told that it would be in April 2024.  The Complainant did not understand why this was the case as the Respondent continued to employ more people.

When the Complainant got part time hours, he was not allowed to swop shifts with any other chef, and this was confirmed to him by the Sous Chef.  A new General Manager started, and the Complainant was aware that his person was friends with the Managing Director and the Head Chef. When the Complainant requested some days off in line with his contract, i.e., every second week end off, the General Manager refused.  The Complainant sent him an email and the General Manager responded that he was not aware of the access arrangements and apologised.  However, the same issue arose four weeks later, and, on this occasion, the General Manager stated that he was refusing the Complainant’s request for annual leave despite the fact that he had not applied for annual leave.

The General Manager also stopped paying employees, including the Complainant, for public holidays. The General Manager told employees that the Government had changed the criteria for entitlement.  The Complainant queried this and asked for clarification, and he was told that he was in breach of his contract of employment.

A few days later, 28/05/2024 he was invited to a disciplinary meeting.  This meeting was held on 30/05/2024 and attended by the General Manager and the Managing Director. The Complainant asked permission to record this meeting as he did not have any representation, or a work colleague and he was authorised to do so in writing by the Managing Director.  The Managing Director told the Complainant that he was dismissed and proceeded to read a letter of dismissal.  Any of the Complainant’s queries were met with the reply that he could raise these at an appeal hearing.  The Managing Director gave the Complainant a copy of the letter and said that he would forward the details of the various issues.  The Complainant stated that he did not receive any documentation from the Managing Director after the meeting or receive any pay in lieu of notice.

The Complainant opened the letter of dismissal at the hearing and reviewed the points outlined:

1.       It was alleged that he had obtained other employment in addition to his employment with the Respondent.  The Complainant gave evidence at the hearing that he was not working elsewhere, and the Respondent did not provide him with any details in relation to this assertion.  The Complainant noted that some week previously he told the Head Chef that he had an invite for a  trial with a potential employer, but this did not result in an offer of employment. At the hearing the Complainant provided copies of the text message exchanged with the Head Chef who confirmed that he agreed to the Complainant swopping his shift on this occasion but not in future.

2.       It was alleged that the Complainant failed to show up for work on 24/05/2024.  The reason the Complainant did not show up was because it was his family access weekend, and he should not have been rostered for this.  The Complainant outlined that the Respondent was aware of this arrangement, had agreed to it in advance of him commencing employment and facilitated it regularly.

3.       It was alleged that the Complainant failed to attend an appeal hearing in relation to an investigation into his grievances.  The Complainant had already explained that the Respondent deliberately scheduled this meeting for a day that they were aware he had family access.

4.       It was alleged that the Complainant ignored policies within the business. This was linked to his requests for time off.  The Complainant outlined that he was following the directions of the Managing Director to notify his Head Chef of the days he had family access responsibilities.

5.       It was alleged that the Complainant ignored policies outlined in the handbook.  This was a reference to the Complainant highlighting that the Respondent’s policy in relation to public holiday entitlement was not in line with the relevant legislation. The Complainant noted that a copy of the handbook provided to him by the General Manager was different to what was previously  provided by the Managing Director.  It was the Complainant’s evidence that the version provided by the General Manager was “doctored” in the section relating to payment for public holidays.  At the disciplinary meeting the Manging Director refused to allow the Complainant to put this to the General Manager. The Complainant also raised an issue in relation to the Respondent’s interpretation of the legislation about payment for cancelled shifts.  The General Manager had previously confirmed that the Complainant was correct.

At the end of the meeting the Complainant was told to leave and handed the letter of dismissal.  The Complainant noted that he received his pay two weeks later and this included payment for a public holiday despite the Respondent’s view that he was not entitled to this.  The Complainant confirmed that apart from the letter of dismissal he did not receive any other documentation in relation to his dismissal.

At the hearing the Complainant outlined details of his attempts to mitigate his loss.  He had various trial interviews and he obtained part time work for a period of twelve weeks.  He took up full time employment in September 2024. 

The Complainant submitted that his gross pay from the Respondent was €640 per week.  This is not disputed.  The Complainant worked in a part time role for a total of 12 weeks.  Based on his weekly wage of €640 I estimate his loss for the period of time he was not working full time as €4,840. 

The Complainant believes that he was dismissed because he raised concerns about the dangers posed by the food hygiene, stock rotation and the risk that this posed to customers.  The Complainant also believes that he was dismissed because he raised awareness among his colleagues about their public holiday entitlements, the erroneous nature of their new contracts and the payment for cancelled shifts.  The Complainant had researched these matters and was clear that the Respondent was not operating in line with the provisions of the legislation.  The Complainant also believes that he was continually harassed by the Head Chef who deliberately rostered him when he knew that he could not attend work.  The Complainant submits that any issues raised by him were completely ignored by the General Managers, the Managing Director and the Head Chef.  The Complainant noted that he had to question issues raised in the kitchen due to the fact that his English language was limited and the predominant language was Spanish.  The Complainant submits that he was never given an opportunity to answer any of the allegations or provide any information.  The allegations are spurious and when considered by the total lack of any procedure he was clearly unfairly dismissed.

The Respondent is now in liquidation and the initial hearing was adjourned in order to notify the Liquidator of the arrangements for a further hearing.  A second hearing took place on 03/10/2024 and there was no appearance by or on behalf of the Respondent or the Liquidator.  The Liquidator was advised of the arrangements on 07/08/2024.  The Respondent was provided with copies of all documentation submitted to the WRC by the Complainant but there was nothing received from the Respondent or the Liquidator.

CA-00062960-001:

This is a complaint seeking adjudication by the Workplace Relations Commission under Section 77 of the Employment Equality Act, 1998. 

The Employment Equality Act, Section 85a (1) provides as follows:

“(1) where in any proceedings facts are established by or on behalf of a Complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the Respondent to prove the contrary”.

In order to demonstrate that the Complainant has received less favourable treatment and that the less favourable treatment arose from his family status, the Complainant must first establish a prima facie case of discrimination.  Prima facia has been held by the Labour Court in Rotunda Hospital v Gleeson [DEE003/2000] to be:

“Evidence which in the absence of any contradictory evidence by the employer would lead any reasonable person to conclude that discrimination has probably occurred”.

This requires that a Complainant has to not only establish the primary facts upon which he will seek to rely but also that those facts are of sufficient significance to raise an inference of discrimination.  The Labour Court in Southern Health Board v Mitchell (2001) E.L.R. 201 held:

“The first requirement … is that the claimant must “establish facts” from which it may be presumed that the principle of equal treatment has not been applied to them.  This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the Respondent to prove that there is no infringement of the principle of equal treatment”.

In Cork City Council v McCarthy (2008) EDA0821 the Labour Court also stated:

“The type or range of facts which may be relied upon by a Complainant can vary significantly from case to case.  The law provides that the probative burden shifts where a Complainant proves facts from which it may be presumed that there has been direct or indirect discrimination.  The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts.  This entails a consideration of the range of conclusions which may be appropriately drawn to explain a particular fact or a set of facts which are proved in evidence”.

In Melbury Developments Ltd v Valpeters [2010] 21 ELR 64 the Labour Court warned that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

The Labour Court elaborated on the interpretation of Section 85A stating:

“Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule”.

The Complainant contends that he has been discriminated against on the basis of his family status.  This arose because he had an agreement with the Respondent that he would not be rostered every second week in order to facilitate family access arrangements which were put in place following a series of Court hearings.  The Complainant gave evidence that he enjoyed this arrangement for a period of time.  However, due to a very high turnover of Head Chef’s this began to change when a particular Head Chef decided to ignore the Complainant’s agreement and existing arrangements.  The Complainant tried to resolve this and escalated this to the General Manager and the Managing Director.  The Complainant’s evidence was that this did not sort things out but resulted in him being the recipient of harassment from the Head Chef.  His agreement was not adhered to and when he did not attend for work on the weekend of 24/05/2024 as he was rostered this formed part of the Respondent’s reasons to dismiss him on 02/06/24.

On the uncontested facts of this case, I have to determine whether a prima facia case has been established and if so, has the rebuttal been sufficient.  In applying the test in Melbury above I am satisfied that the Complainant has demonstrated sufficient facts that he was discriminated against because of his family status. As there was no appearance at the hearing either by the Respondent of the Liquidator there was no rebuttal of the Complainant’s complaints.

I am satisfied that the Complainant has made out a prima facia case of discrimination.  I find in favour of the Complainant and the claim must succeed.

I find that the Complainant was discriminated against on grounds of family status by the Respondent in his conditions of employment.

In the within case, I find that the appropriate form of redress for the effects of discrimination is compensation.

In accordance with Section 82 of the Act, I order the Respondent to pay the Complainant €16,000 in compensation for the effects of the discriminatory treatment. This amount equates to  approximately 6 months’ salary. The award is arrived at on the basis of the effects, including financial,  of the discrimination on the Complainant and the requirement pursuant to Article 17 of the Framework Directive that the sanction be “effective, dissuasive and proportionate” Von Colson CJEU C14/83.

CA-00064440-001:

This is a complaint of unfair dismissal seeking adjudication by the WRC under Section 8 of the Unfair Dismissals Act, 1977.  The fact of dismissal was not in dispute in this case as there was documentary evidence given to the Complainant by the Respondent confirming his dismissal.

The applicable law, Section 6 of the Unfair Dismissals Act 1977, as amended, (the Act) states as follows:

Section 6(1) of the Unfair Dismissals Act, 1977 provides that “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) of the Unfair Dismissals Act, 1977 provides as follows:

a)      Without prejudice to the generality of subsection (1) of this section the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

b)      the capability, competence or qualification of the employee for performing work of the kind which he was employed by the employer to do,

c)       the conduct of the employee,

d)      the redundancy of the employee, and

e)       the employee being unable to work or continue to work in the position he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

Section 6(6) of the Act states as follows:

“In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly of mainly from one or more grounds specified in subsection (4) of this section or that there were other substantial grounds for justifying the dismissal.

The Acts deem a dismissal to be unfair until the Respondent can demonstrate that it was neither substantively nor procedurally unfair.  The combined effect of these sections of the Act require me to consider whether or not the Respondent’s decision to dismiss the Complainant, on the grounds stated, was reasonable in the circumstances.  It is well established case law that it is the role of the Adjudicator in such cases, to consider the reasonableness of the Respondent’s decision in the circumstances.  As the Adjudication Officer in this case, it is not my responsibility to establish the guilt or innocence of the Complainant in relation to the events which were put forward by the Respondent as the reasons for the complainant’s dismissal. The Employment Appeals Tribunal (EAT) in the case ofLooney and Co Ltd v Looney UD 843/1984provides a valuable summary in relation to the role:

“It is not for the EAT to seek to establish the guilt or innocence of the claimant nor is it for the EAT to indicate or consider whether we in the employer’s position would have acted as it did in its investigation or concluded as it did in its investigation or concluded as it did or decided as it did, as to do so would be to substitute our own mind and decisions for that of the employer.  Our responsibility is to consider against the facts what a reasonable employer in his position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s actions and decisions are to be judged.”

The function of the Adjudicator is to assess what a reasonable employer, in the Respondent’s position and circumstances, might have done.  This is the standard by which the Respondent’s actions must be judged against.  The Act places the burden of proof on the employer to demonstrate that the dismissal was fair.  As part of exercising this burden of proof the Respondent needs to show that fair process and procedures were applied when conducting the disciplinary process.

In cases where a dismissal involves gross misconduct the EAT set out the appropriate test to be applied in such circumstances.  In O’Riordan v. Great Southern Hotels [UD1469-2003] the EAT stated as follows:

“In cases of gross misconduct, the function of the Tribunal is not to determine the innocence or guild of the accused of wrongdoing.  The test for the Tribunal in such cases is whether the Respondent had a genuine base to believe, on reasonable grounds, arising from a fair investigation that the employee was guilty of the alleged wrongdoing.”

In the within the Respondent or a representative on his behalf or the Liquidator did not attend the hearing. This resulted in the absence of any evidence that the Complainant was fairly dismissed or that the matters alleged constituted gross misconduct.

I have carefully considered the submissions received and evidence presented by the Complainant.

In reviewing the dismissal process it is clear that a number of concerns arise.  The Complainant was invited to a meeting and the Complainant was told at the meeting “I’m telling you we are delivering a decision. Any issues you have you can discuss on appeal”.  The Complainant was not provided with any documentation prior to the meeting and the letter of dismissal was read.  The Complainant was not given any opportunity to respond or asked to give any explanations. It is clear from the evidence provided that Mr Glynn as Manging Director had decided the outcome of the disciplinary meeting in advance and the sole purpose of the meeting was as he said; “I’m telling you we are delivering a decision”.

The onus was on the Respondent to conduct a thorough investigation and to provide any evidence obtained to the Complainant.  This was clearly an investigation that was conducted without any terms of reference or an investigation plan.  The result of this was that there was no regard given to fair procedures or respect for the rights of the Complainant.  

The letter of dismissal outlined five reasons for the Complainant’s dismissal. It is clear from the Respondent’s letter of dismissal (30/05/2024) that the Respondent did not undertake any investigation in relation to these allegations or give the Complainant any opportunity to respond to these allegations.  The Respondent undertook to provide documentation to the Complainant after the meeting, but the Complainant did not receive any.  In these circumstances the Complainant decided that an appeal process was futile.  The Complainant was also not paid in lieu of notice.

The Labour Court in T.E. Laboratories Ltd v Jakub Mikolajczyk ([2019] 30 E.L.R. 198 stated that the guidelines in relation to disciplinary investigations in the Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures)(Declaration) Order 200 (S.I. 146 of 2000) are “not without reason” and are so that “facts can be separated from suspicion and rumour and explanations can be offered by anybody who could, potentially, be facing a disciplinary process”.

A right to fair procedures and natural justice is implied into contracts of employment.  These rights are particularly important in disciplinary matters where a dismissal may have a negative repercussion on the employee’s reputation and their prospects for any future employment.  The subject of any disciplinary process should be provided with a full and fair opportunity to state his or her case as part of the investigation process.  It is widely accepted that as part of fair procedures and natural justice that an employee has a right to challenge his or her accusers before any findings are made.  While these rights may be less relevant at a preliminary investigatory stage, they are paramount to any disciplinary hearing which is the point at which a decision is made in such matters.  Indeed, where the potential sanction could warrant dismissal such a right cannot be ignored by the employer.  In Borges v. The Fitness to Practice Committee [2004]1 IR 103 provides that where investigative processes can lead to dismissal, cross examination is a vital safeguard to ensure fair procedures.  In that case, Keane CJ stated:

“It is beyond argument that, where a tribunal such as the first Respondent is inquiring into an allegation of conduct which reflects on a person’s good name or reputation, basic fairness of procedure requires that he or she should be allowed to cross-examine, by counsel, his accuser or accusers. [1971] IR 217.”

The Complainant did not appeal the decision to terminate his employment.  It would have been useful if he had done so as it could, potentially,  have provided an opportunity to look at some of the issues surrounding the disciplinary meeting.

In an Employee V an Employer ADJ-0000381on the subject of appeals the Adjudication Officer stated:

“An appeal is not just an afterthought or a procedure that must be completed as a matter of course.  It is a very important part of the disciplinary process and the greater the sanction that has been imposed the greater its importance.  An appeal allows a dismissed employee the last chance to make their case, highlight any mitigating factors and seek protection for faulty procedures or disproportionality of sanction.”

Overall, I find that there have been serious procedural flaws in the Respondent’s disciplinary hearing which resulted in the dismissal of the Complainant.  It is difficult to understand why these deficiencies were not recognised by the Manging Director and the General Manager, both of whom conducted the disciplinary meeting.

Where procedural deficiencies are identified these must be considered in line with section 6(1) of the Act which states that “having regard to all the circumstances.”  In that context I note the case of Elstone v CIE (High Court, 13 March 1989, unrep.) it was held:

“that the mere fact of some failing in due or agreed procedures is not a final and decisive matter for the court on appeal is clear from the provision of s. (6)1), that regard must be had ‘to all the circumstances’ and not to one circumstance to the exclusion of the other.”

The case of Shortt v Royal Liver Assurance Ltd [2008] IEHC 332, Laffoy, J held that a central consideration to fair procedures is whether or not any purported breach of natural justice was ‘likely to imperil a fair hearing or fair result.”

Having regard to the foregoing points and the totality of the evidence as presented, I find that no reasonable employer would have dismissed the Complainant in the circumstances and in the unreasonable manner in which the disciplinary process was conducted. There was no independent investigation in relation to the allegation that the Complainant had a second job and there was no evidence to support any of the other allegations. I find that the dismissal of the Complainant was unfair for the purposes of the Acts and the Complainant’s claim is well founded.

Regarding a remedy, objectively, this employment relationship is irretrievably broken, and reinstatement and re-engagement are not viable options as the Respondent is now in liquidation.

Redress:

Section 7 of the Act, in its relevant parts, provides:

7. Redress for unfair dismissal

(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:

…. (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, and the reference in the foregoing paragraphs to an employer shall be construed, in a case where the ownership of the business of the employer changes after the dismissal, as references to the person who, by virtue of the change, becomes entitled to such ownership.

 (2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid,

(d) 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 subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,

(e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, and

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.

(2A) In calculating financial loss for the purposes of subsection (1), payments to the employee—

(a) under the Social Welfare (Consolidation) Act 2005 in respect of any period following the dismissal concerned, or

(b) under the Income Tax Acts arising by reason of the dismissal, shall be disregarded.

…. (3) In this section—

“financial loss”, in relation to the dismissal of an employee, includes any actual loss and any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts 1967 to [2014], or in relation to superannuation;

“remuneration” includes allowances pay and benefits in lieu of or in addition to pay.

The Complainant submitted that he is seeking compensation for unfair dismissal. It is incumbent upon the Complainant to give plausible evidence on mitigation of loss. The Complainant provided credible evidence of his attempts to mitigate his loss.  He obtained part time work for a period of 12 weeks.  He obtained full time work in early September 2024 and is now paid €16.00 per hour and works 37 hours per week.

The Complainant’s obligation to mitigate his loss is set out in Section 7(2) (c) of the Unfair Dismissals Act and that is taken into consideration in any case when deciding on compensation.

For the sake of completeness, the obligation on the employee in Section 7(2)(c) is only one of six tests that are set out in that section and that Section 7(2) (c)  does not have a greater primacy than any of the others.  For convenience, the other five tests are again set out below:

“(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to -

(a)    the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer.” 

(b)    “The extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee“

(c)     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 subsection (1) of Section 14 of this Act or with the provision of any code of practice relating to procedures regarding dismissal approved by the Minister”.  

(d)    The extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, and  

(e)    The extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.   

It follows from the foregoing extract from the Act that in considering compensation, regard must be had to all of subsection of Section 7 and these tests are not confined to the efforts of the Complainant to mitigate his loss. In this case I find that the Respondent did not meet the tests set out in subsections (a), (c) and (d).  There was no right to fair procedures, and I find that the Complainant made no contribution to the decision to dismiss him.

The Complainant submitted that his gross pay from the Respondent was €640 per week.  This is not disputed.  The Complainant worked in a part time for a total of 12 weeks.  Based on his weekly wage of €640 I estimate his loss for the period of time he was not working full time as €4,840. 

Having regard to all the circumstances in this case, I find that the appropriate compensatory sum to be €8,000.  This quantum reflects the Complainant’s failure to appeal the decision to terminate his employment.

CA-00062960-001:

I find that the Complainant was discriminated against on grounds of family status by the Respondent in his conditions of employment.

In accordance with Section 82 of the Act, I order the Respondent to pay the Complainant €16,000 in compensation for the effects of the discriminatory treatment.

CA-00064440-001:

I have decided that the Complainant was unfairly dismissed and I direct the Respondent to pay the Complainant compensation of €8,000. as a just and equitable amount having regard to all the circumstances of this case.

Unfair dismissal.  Discrimination on family status grounds.