UDD253

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00036211 (CA-00047402-001).

BACKGROUND:

Both parties appealed the decision in accordance with Section 8A of the Unfair Dismissals Act 1977 to 2015.

The Employer appealed the decision to the Labour Court on 14 February 2024.  

The Worker appealed the decision to the Labour Court on 15 February 2024. 

A Labour Court hearing took place on 28 January 2025.

The following is the Decision of the Court:-

DECISION:

Background to the Appeal

In a decision made under the Unfair Dismissals Act 1977 (‘the Act’), bearing reference number ADJ-00047402-001 and dated 6 January 2024, an Adjudication Officer found that Ms Ann Marie Smullen (‘the Complainant’) had been unfairly dismissed by her former employer, Zest AT Limited (‘the Respondent’), in July 2021. The Adjudication Officer awarded the complainant compensation of €24,082.00.

The Respondent appealed from the decision of the Adjudication Officer by Notice of Appeal received in the Court on 14 February 2024. The Complainant cross-appealed by Notice of Appeal received in the Court on 15 February 2024. The Court heard the appeal in Galway on 29 January 2025.

At the outset of the hearing, the Respondent’s Solicitor conceded that the Respondent accepted that it had unfairly terminated the Complainant’s employment by virtue of its failure to apply fair procedures. The evidence heard by the Court, therefore, focused principally on the Complainant’s losses arising from her unfair dismissal and her efforts to mitigate those losses in the period after her dismissal.

The Complainant’s Evidence

The Complainant told the Court that she had established her own small business producing cakes for special occasions in 2005 and had maintained that business throughout her period of employment with the Respondent. She said that her salary with the Respondent had been €32,500 per annum.

Her evidence was that following her dismissal in July 2021, she made considerable efforts to grow her business while at the same time applying for jobs which she believed she had the appropriate skill set to perform and registering with on-line agencies such as Indeed and Broadline Recruitment. She said, for example, that she had applied for a job in August 2021 as a confectionary baker in a named bakery in County Clare believing that the job would be offered on a full-time basis. She was successful at interview but was offered part-time work only, on a three-day per week basis at €11.00 per hour. She declined the offer as she determined that it would not have been financially viable for her having regard to the length of the commute from her home to the place of work in question.

The Complainant next outlined a similar experience she had when she applied for a job in Salthill in October 2021. The Complainant then gave evidence of having applied for a job with a well-known insurance company based in Galway; she was invited to interview online but on the day the link provided didn’t function correctly. The next application that the Complainant referred to was for work in a named café in July 2022. Again, she was offered only two days per week at an hourly rate of €11.00 and for this reason declined the offer. The same café, she said, advertised a three-day per week role in November 2022, paying €384.00 per week, and she accepted this role which lasted only until April 2023 when she resigned in order to care for an ill parent. She said she had also applied unsuccessfully for a role as macaroon baker with a Galway-based bakery. The Complainant next secured a full-time role as a confectionary chef in a well-known establishment in Galway in March 2024 earning €16.00 per hour.

The Complainant gave evidence of her earnings from her self-employed business and her efforts to expand that business. She said that her net profit before tax for 2022 was €16,035.00 and in 2023 it rose to €27,681.00.

The Complainant also stated in her direct evidence that she has suffered for many years with back and wrist issues meaning that she is capable of doing only light, delicate finishing work in the catering context and is unable to perform heaving kitchen work.

Under cross-examination, the Complainant confirmed that she had been in receipt of the PUP payment in 2021 and had subsequently availed herself of Job Seeker’s benefit. She also said that her decision to refuse the first offer of employment she had received in August 2021 was motivated in part by her preference to be at home with her daughter who required additional supports at that time. The Complainant also confirmed that she had become unavailable to take up employment for a period of several months after April 2023 because she was caring for an ill parent who subsequently passed away.

Finally, when pressed by the Court, the Complainant submitted that she was seeking compensation in the amount of one year’s salary i.e. €32,000.00 for her unfair dismissal by the Respondent.

Discussion and Decision

The Court has carefully considered the Complainant’s evidence in relation to her loss and mitigation. The Court finds that the Complainant’s efforts in relation to mitigation to fall very far short of what is expected of somebody in her circumstances. The Court  appreciates that the Complainant put considerable effort into expanding her existing speciality cake business and also developing a related chocolate business but that those considerable efforts on her part did not ultimately yield a sufficiently increased income to maintain her family. The Complainant’s own evidence is that she applied for some five jobs between July 2021 and March 2023, four of which she declined. She also gave evidence of having been unavailable take up employment for long stretches during that period as she had caring responsibilities that took priority.

In all the circumstances, having regard to the evidence adduced, the Court measures the appropriate compensation payable to the Complainant under the Act at €10,000.00. The decision of the Adjudication Officer is varied accordingly.

The Respondent’s appeal succeeds in part and the Complainant’s cross-appeal fails.

The Court so decides.

	Signed on behalf of the Labour Court
	Alan Haugh
TH	______________________
5th March 2025	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Therese Hickey, Court Secretary.