Complainant

Respondent

Parties

Battsetseg  Seddavaa

Beacon Sushi Limited

Representatives

Harriet Burgess BL instructed by Tracey Brady McGuigan Solicitors LLP

 N/A

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-00070096-001

19/03/2025

Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998

CA-00070096-002

19/03/2025

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

CA-00070096-003

19/03/2025

The Complainant was employed by the Respondent as a Chef beginning on 16 March 2023 and earned €576.92. She stated that she was unfairly dismissed following a miscarriage that she suffered on 8 December 2024.

The Complainant was employed by the Respondent as a Chef beginning on 16 March 2023. Her salary was €576.92 per week, in line with her Employment Permit. The Complainant informed the Respondent that she was pregnant in October 2024.

The Complainant messaged Mr Michael Piare, Managing Director of the Respondent on 7 December 2024 when she was experiencing the symptoms of her miscarriage and informed him that she would not be able to attend work. She stated: “Hi Michael I am not gonna work tomorrow I was bleeding at work and it hurts to walk down stinging” The Complainant suffered a miscarriage in / around 8 December 2024.

The Complainant’s colleague subsequently informed Mr Piare on 10 December 2024 that the Complainant had suffered a miscarriage and Mr Piare texted the Complainant a message of condolence on the same date. He also requested that she inform him when she would be back in work.

On 13 December 2024, the Complainant had a missed call from Mr Piare further to which he sent her a PDF letter via WhatsApp confirming that her employment had been terminated and that she had two weeks’ notice, which she was expected to work.

The Complainant attended the hospital again due to ongoing pains on the 18 December 2024, the day she returned to work. On the 28 December 2024, the Complainant got a text from Mr Piare requesting that all work property be returned, keys, uniform etc.

The Complainant disputed that the Respondent revoked the termination of her employment on 27 December 2024 and asserted that that there was therefore no question of a resignation by her.

On 16 March 2023, the Complainant applied for a part-time position with the Respondent in Sandyford. She was offered a contract with hourly pay, a staff handbook, uniforms, and a training manual. Her timekeeping was repeatedly poor, and despite several verbal warnings, she continued arriving late and unprepared for shifts. A formal written warning was issued on 19 March 2024, outlining lateness procedures and disciplinary guidance.

In August 2023, a work permit application was submitted on her behalf, which was granted in October 2023. She then signed a new full-time contract in February 2024. Shortly afterwards, she requested a seven-week holiday, exceeding her contractual entitlement of four weeks, but this was granted nonetheless.

Following resignations of two senior chefs in September 2024, the Complainant became the only chef, though colleagues had complained of her poor attitude and tardiness. In October 2024, she disclosed her pregnancy, and the Respondent adjusted duties to support her.

On 7 December 2024, she reported illness via WhatsApp, later confirmed as a miscarriage, and stated that she would be unable to attend work on 8 December 2024.

On 10 December 2024, a friend of the Complainant who also works for the Respondent informed Mr Piare that the Complainant had suffered a miscarriage and would taking an indefinite period of time off work. Mr Piare explained to the Complainant’s friend that he was sorry to hear this news but that the Complainant had to inform him directly of her absence in accordance with policy.

Despite being reminded that all absences must be reported directly, the Complainant did not contact the Respondent to inform him that she would not be available for three consecutive scheduled shifts on 11, 12 and 13 December 2024. In line with her contract and handbook, her employment was terminated on 13 December 2024. On 18 December 2024, she returned without a medical certificate, later producing a handwritten sick note from the Rotunda Hospital covering the period from 8–18 December 2024.

On 27 December 2024, the Respondent revoked the termination in sympathy, reinstating her employment. However, that evening the Complainant verbally stated she would resign on 31 December 2024. She later confirmed this by message, though she failed to provide a written resignation.

CA-00070096-003:

The Law 

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:

4)     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:

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

(b)   the conduct of the employee,

(c)    the redundancy of the employee, and

(d)   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”.

Section 6(7) of the Act states as follows:

Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer, considers it appropriate to do so—

(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 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.

Findings:

In examining the evidence, I noted that on 13 December 2024, the Respondent issued a letter terminating the Complainant’s employment with two weeks’ notice via Whatsapp. The termination letter did not set out any reasons for the dismissal. I also noted that no meeting was convened, no explanation was sought from the Complainant, and no consideration was given to the medical circumstances that had just arisen. The Complainant was also not afforded an opportunity to appeal that decision.

The Respondent asserted that the dismissal was due to the Complainant’s failure to comply with absence-reporting procedures on 11, 12, and 13 December 2024. However, by 10 December 2024, the Respondent was fully aware of the Complainant’s miscarriage and Mr Piare himself sent her a message of sympathy. In those circumstances, I find that a reliance by the Respondent on technical breaches of their reporting requirements to be neither reasonable nor proportionate.

Most significantly, the Respondent did not adhere to the basic principles of natural justice and fair procedures. Specifically, the Code of Practice on Grievance and Disciplinary Procedures (S.I. No. 146/2000) requires that employees be advised of the issues of concern, be given an opportunity to respond, be allowed representation, and have access to an appeals process before a decision to dismiss is taken. None of these steps were followed. The dismissal was therefore procedurally flawed, and contrary to the statutory Code.

While the Respondent alleged that the dismissal was later revoked and that the Complainant subsequently resigned, the fact remains that a clear and unequivocal letter of dismissal was issued on 13 December 2024. Once communicated, the dismissal took legal effect and I prefer the Complainant’s evidence that she did not accept its subsequent alleged attempted revocation, despite the Respondent’s evidence to the contrary.

Considering all of the foregoing points, I am satisfied that the dismissal was unfair.

CA-00070096-001:

This complaint was withdrawn.

CA-00070096-002:

This complaint was withdrawn.

CA-00070096-003:

Section 7 of the Unfair Dismissals Act, in relevant part, states that:

(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, considers appropriate having regard to all the circumstances:

(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

(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,

(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 financial loss referred to in that subsection was attributable to an act, 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,

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

3) In this section—

“financial loss”, in relation to the dismissal of an employee, includes 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 1973, or in relation to superannuation;

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

Findings:

As set out above, the Complainant was unfairly dismissed. I find that that compensation is the appropriate remedy because the employment relationship has irretrievably broken down.

In deciding on the level of compensation to award, I note the views of the Adjudication Officer in ADJ 32667, where, in calculating the award of compensation, she stated, inter alia, that: 

“in considering compensation, regard must be had to all of the subsection of Section 7-and the tests are not confined to the efforts of the former employee-or the Complainant in this case. In circumstances where the Respondent is found not to have met the tests set out in subsections (c) and (d) …. and the Complainant made no contribution to the decision to dismiss her under (a) (b) or (f) It would be wholly unjustified to penalise the Complainant solely for a conclusion that she did not make a sufficient effort of mitigate her losses where the balance of unfairness and failure to comply with the terms of Section 7 as a whole lie squarely with the Respondent.”

In the instant case, I accept that the Complainant did not personally notify the Respondent of her absence from work on 11, 12 and 13 December 2024. Strictly speaking, this may constitute an omission within the meaning of section 7(2)(b). However, the context is crucial. The Complainant had just suffered a miscarriage, was in a distressed medical and emotional condition, and had already informed the Respondent directly on 7 December 2024 that she was unwell. Moreover, the Respondent was expressly informed by her colleague on 10 December 2024 that she had miscarried and would be absent for an indefinite period. The Managing Director himself acknowledged this by sending a message of sympathy that same evening. Against this background, while there was technically a failure to comply with absence reporting procedures, it would be unreasonable to place significant weight on that omission.

By contrast, the Respondent’s conduct falls squarely within section 7(2)(a), (d) and (e). The Respondent issued a termination letter without providing any reason, did not convene a meeting, afforded no opportunity to respond, and offered no right of appeal. This represents a wholesale failure to comply with section 14 of the Act and with the principles of fair procedure contained in S.I. No. 146/2000, the Code of Practice on Grievance and Disciplinary Procedures. The responsibility for the dismissal and the resulting financial loss therefore rests overwhelmingly with the Respondent.

Turning to section 7(2)(c), the Complainant’s efforts to mitigate her loss must also be considered. I note that she secured temporary holiday-cover employment beginning 18 June 2025, earning €530 per week. However, she provided little evidence of efforts to obtain work during the almost six-month period prior to this. In the context of the restaurant/hospitality sector, where employment opportunities are easily available, it is difficult to understand why such a lengthy period elapsed before she secured alternative work. This failure to sufficiently mitigate her loss must be reflected in the award.

Considering all of the foregoing points, I make an award of €8,000 in respect of the unfair dismissal.