Complainant

Respondent

Parties

Danielle Bird

Cherryhill Inns Limited

Representatives

Daithi O'Donnabhain , Barry C. Galvin & Son LLP, Solicitors

Rachel O’Flynn BL instructed by Mary Foley TJ Hegarty LLP

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00045383-001

27/07/2021

The Complainant commenced employment as a pastry chef with the Respondent on 6 November 2019 and she submits that she was unfairly dismissed by reason of redundancy on 26 July 2021.

The Respondent company runs a number of public houses and submits, without prejudice to its application on jurisdiction, that termination of employment was wholly or mainly by reason of a downturn and/or change in the needs of the business, and which constituted redundancy. The Respondent submits that redundancy being a fair reason for termination, it denies that it is a case of unfair dismissal.

Mr Simon Fitzgibbon, Chief Financial Officer (CFO), gave evidence that the Complainant was the only pastry chef in the group, and she was located at Reardens Bar. He described how there was a downturn in business of baked products and desserts after the Covid-19 pandemic. He exhibited a sheet which he claimed showed a significant downturn in product sales. He said the company had no option but to make a decision to make the Complainant redundant. He accepted that there was no selection process. He referred to a paragraph of   the Respondent’s redundancy policy which stated that   if there was only one employee in a particular sector of the business and that sector becomes redundant, the business will not prepare a selection matrix and that employee will be made redundant. The witness stated that the pastry and dessert products are now sourced from an outside firm.

It was put to the witness that the Complainant was a qualified chef and he was asked as to why she was not considered for other roles in the portfolio of bars owned by the Respondent. The witness re-iterated that the Complainant was made redundant in accordance with the redundancy policy and no other options needed to be considered. The witness accepted as correct documentary evidence of an article in the local media, dated 14 August 2021, where the Respondent was seeking to create 60 positions across its range of bars and were inviting applicants for those positions.  

The Complainant gave evidence that she previously worked in the Oliver Plunkett Bar, an outlet within the Respondent company, where there was never an issue with her work or produce. She was moved to Reardens, her last place of employment, on return from the lockdown period. When she told Ms A, a principal of the company, that she was pregnant at 12 weeks, the Complainant stated that Ms A said, “What will this mean for the company.” There were no complaints about the Complainant’s work up to then but after the disclosure of pregnancy, the Complainant perceived a series of what she described as “nit-picking” regarding her bread baking and scone recipe from Ms A. The Complainant said this treatment resulted in unacceptable behaviour towards her and she recalled one incident where Ms A shouted at her in front of five other staff members. The Complainant said that Ms A’s comment was “Why was the bread made last night. I want today’s f****** bread today.” She reported the incident to the HR manager on 2 July 2021. She explained to the HR manager that the only solution would be to return to the Oliver Plunkett Bar. When the Complainant came into work on the following  Monday of  5 July,  she went to see HR. The HR Manager and Simon Fitzgibbon were in the room, and it was explained to her that the sales of pastries and cakes were not selling well. The Complainant explained that her produce which was delivered to the Oliver Plunkett Bar was not being factored in. She was told to give a detailed account of her day and not to leave the premises until she met with Mr B, the General Manager who the Complainant claimed, told her to watch her tone because the company were well within their rights to terminate her contract.

On 26 July 2021 the Complainant said she was pulled aside by Mr A who informed her she was no longer viable. She started crying and protested that the company could not do that because she had a contract. Mr A told her that it doesn’t matter, that the company were looking into this looking into this for a few weeks and were well within their rights to terminate her contract. She was told to finish up that day and she would be paid to the end of the week. The Complainant stated that she was a qualified chef in other areas, and she could have been offered an alternative position in a company with 250 people employed in the drink and food business, and where active recruitment was ongoing at the time of termination of her contract. 

The Complainant submitted no documentary evidence of mitigation of loss but stated that she had applied for work in a local bar but that they would not take her because she was pregnant. She had relied on people who were informed of her plight, to make contact with her  her when work was available. The Complainant was not available for work whilst on maternity leave and eventually found work at a local hotel in October 2022 at the same hourly rate, but on reduced work hours of her own choice.    

In cross-examination on the Complainant’s efforts to find work, the Complainant accepted that she was not available for work during her Maternity Leave for 26 weeks from December 7, 2021. At the termination of the Maternity Leave in 2022 and until she took up working again October 2022, she acknowledged she stayed at home out of choice to look after her children and mother.

The Applicable Law:

Section 6(1) of the Unfair Dismissals Act 1977 provides that: -  

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(2) provides that, without prejudice to the generality of s.6(1), the dismissal of an employee shall be deemed to be an unfair dismissal if it results wholly or mainly from:

…(f) the employee's pregnancy, attendance at ante-natal classes, giving birth or breastfeeding or any matters connected therewith…

Section 6(4)(c) of the 1977 Act provides that: -  

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 ... the redundancy of the employee...

Section 6(7) provides that: -

 Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, the adjudication officer or the Labour Court, as the case may be, 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.

The Complainant in this case argued that the main reason for her redundancy was her pregnancy whilst the Respondent contended that there was a genuine redundancy situation because of fall off in demand for the pastry and bakery products that she produced. The CFO of the Respondent gave evidence of a significant dip in sales post-Covid at Reardens but likewise the Complainant gave evidence that a substantial proportion of her products went to the Oliver Plunkett Bar, which was not included in the exhibited spreadsheet. The strong evidence in this case which provides greater context to the purported redundancy situation was given by the Complainant. In unrebutted evidence the Complainant described what can mildly be described as an unempathetic response by Ms A to the Complainant’s disclosure of her pregnancy coupled with subsequent criticism of her work that heretofore was unproblematic. When she reported the outburst of Ms A in front of over staff on one occasion to HR, it ended up with a veiled threat from Mr B that her tone should change or else her employment would be terminated; and indeed it was. Three weeks later she was told that she was being made redundant on the day her employment was terminated. No consultation or alternative employment was offered in an organisation that embarked on a public recruitment drive for all positions some weeks later.  The accumulation of evidence in this case points strongly to the fact that this was not a genuine redundancy. No proper procedures which would have demonstrated the authenticity of the dismissal were forwarded in evidence by the Respondent and I am satisfied that the Respondent did not act reasonably as provided for under 6(7) of the Acts.

For the reasons outlined above, I find that the Complainant was unfairly dismissed.

There is an obligation under section 7 of the Acts on a complainant to mitigate her loss. The evidence suggests that the Complainant’s efforts to find alternative work was not as it should be. I understand that she made choices to care for her children and mother for a period before she found work in October 2022, but I cannot ignore the fact that her efforts were weak and not up to that standard required under section 7 of the Acts. Having taken this into account, I direct the Respondent to pay the Complainant the compensatory sum of €13,000 which is approximately 26 weeks net pay, which I believe is just and equitable having regard to all the circumstances of this case.

For the reasons outlined above, I find that the Complainant was unfairly dismissed, and  I direct the Respondent to pay the Complainant the compensatory  sum of €13,000 which is approximately 26 weeks net pay, which I believe is just and equitable having regard to all the circumstances of this case.

Unfair Dismissal, Pregnancy, Redundancy.