ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00057162
Parties:
| Complainant | Respondent |
Parties | Lisa Carroll | Arena Hospitality Ltd (trading as Bel Cibo) |
Representatives |
| Darryl Egan – Managing Director |
Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00069078-001 | 05/02/2025 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00069078-002 | 05/02/2025 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00069078-003 | 05/02/2025 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00069078-004 | 05/02/2025 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00069078-005 | 05/02/2025 |
Date of Adjudication Hearing: 01/07/2025
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 8 (1)(a) of the Unfair Dismissals Act of 1977 (as substituted) and where a claim for redress under the Unfair Dismissals legislation is being made, the claim is referred to the Director General of the Workplace Relations Commission who in turn refers any such claim to an Adjudication Officer, so appointed, for the purpose of having the said claim heard in the manner prescribed in Section 41 of the Workplace Relations Act, 2015. In particular, the said Adjudication Officer is obliged to make all relevant inquiries into the complaint. The Adjudication Officer will additionally and where appropriate hear all relevant oral evidence of the parties and their witnesses and will take into account any and all documentary or other evidence which may be tendered in the course of the hearing.
In circumstances where the fact of dismissal is not in issue, the evidential burden of truth rests with the Respondent. Per Section 6(6)of the 1977 Act, in determining for the purposes of the Acts whether or not a dismissal of an employee was an unfair dismissal or not it shall be for the employer to show that the dismissal resulted wholly or mainly from one or other of the specified grounds (as outlined in the Act – conduct, redundancy etc.), or that there were other substantial reasons justifying the dismissal. Gross Misconduct might be considered a substantial reason.
An Adjudication Officer must, in determining if a dismissal is unfair, have regard to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal (per Section 7).
It should be noted that Section 2 (1)(a) specifically excludes any employee who has not had one year of continuous service with the employer who dismissed him or her from being afforded any relief under the Unfair Dismissals Act.
The Complainant has additionally referred a matter for adjudication as provided for under Section 12 of the Minimum Notice and Terms of Employment Act, 1973 and the referral has been made within six months of the date on which this claim accrued to the Complainant. In particular the complaint is that the Employee did not receive the appropriate Statutory Minimum notice (or payment in lieu) on termination of the employment and as outlined in Section 4 of the Minimum Notice and Terms of Employment Act 1973. Where the Adjudicator finds that the section was contravened by the Employer in relation to the Employee who presented the complaint, the Adjudication officer can direct that the employer concerned pay to the Employee compensation for any loss sustained by the Employee by reason of the contravention.
The Act requires a minimum period of notice to terminate the employment of an employee who has been employed for a qualifying period. The period of notice is to be calculated in accordance with the length of continuous service. This starts at thirteen weeks and goes up to fifteen years. Even where payment has been accepted in lieu of Notice the date of termination shall be deemed to be the date on which the notice would have expired.
In addition to the foregoing, the Complainant herein has referred a further matter for adjudication as provided for under Section 7 of the Terms of Employment (Information) Act, 1994 in circumstances where a Contract of Service has commenced and where the said Employee employed by an Employer is entitled to have been provided (within two months of the commencement of the employee’s employment with the employer) with a Statement of certain Terms of the employment.
The Act also provides that an employer must notify the Employee of any changes in the particulars already detailed in the Statement of Terms. This is set out in Section 5 of the Terms of Employment (Information) Act 1994 which puts the onus on an employer to notify the employee in writing of the nature and date of change in any of the particulars of the statement as provided by the Employer. The obligation does not extend to a change occurring in provision of statutes and instruments made under statute.
Background:
This hearing was conducted in person in the Workplace Relations Commission situate in Lansdowne Road, Dublin. In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021) the hearing was conducted in recognition of the fact that the proceedings constitute the administration of Justice. It was therefore open to members of the public to attend this hearing.
In line with the coming into effect of the Workplace Relations (Miscellaneous Provisions) Act, 2021 on the 29th of July 2021, I can confirm that the witnesses herein were required to give their evidence on oath or affirmation. This was done in recognition of the fact that there may have been a serious and direct conflict in evidence between the parties to the complaint. It is noted that the giving of false statement or evidence is an offence.
The Specific Details of the complaint are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 5th of February 2025. In general terms, I will therefore be looking at issues that have arisen in the six-month period directly preceding this date.
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Summary of Complainant’s Case:
The Complainant attended to give evidence on her own behalf. The Complainant was deeply dissatisfied at the manner of her dismissal and believed that it amounted to a summary dismissal in circumstances where no warning had been given that ongoing absenteeism might lead to dismissal. The Complainant further referenced ongoing issues with changing pay dates in the course of the employment. Early on in the employment payments were made on a Friday whilst later in the employment the payments were made earlier in the week. Where it also became necessary, I explained how the Adjudication process operated with particular emphasis on the burden of proof which had to be attained by the Complainant in the first instance. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. |
Summary of Respondent’s Case:
The Respondent entity was represented by its Managing Director. He gave evidence based on his personal understanding of the factual backdrop. The witness provided me with evidentiary documents on the day of the hearing. This included the Contract of Employment. The Respondent rejects that there has been an Unfair Dismissal and does not accept any contravention of Employment Rights as protected by statute. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. |
Findings and Conclusions:
I have carefully considered the evidence adduced by both parties herein. The Complainant was engaged as a General counter deli assistant and commenced her employment on the 18th of November 2023. The employment lasted less than 52 weeks and the Complainant’s employment was terminated by letter emailed to the Complainant on or about the 18th of October 2024. The letter of dismissal cited unacceptable levels of absenteeism as the reason for the dismissal. There had clearly been an ongoing issue with the Complainant not turning in for work, disappearing from work and calling in sick just prior to her allocated shift commencement. In the first ten months of the year, the Complainant had been unavailable to work for 19 full days. I would have to accept that the Complainant knew that there was an issue regarding her high levels of absenteeism and I was directed to a letter dated the 25th of March 2024 which referenced the matter as being “totally unacceptable”. The Complainant accepted that she had had sight of this letter given to her by her line Manager. I understand that the complainant did not take this as a warning formal or informal and she was therefore taken by surprise when her employment was unilaterally terminated by her employer without any disciplinary investigation or process on the 18th of October 2024 as previously described. Whilst I might take issue with the processes applied to bring the Complainant to the point of dismissal, the fact remains that she cannot get relief under the Unfair Dismissal Act in circumstances where she does not have one year of continuous service with his employer. I did note that the Industrial Relations route might have been opened to the Complainant had she confirmed in her workplace relations complaint form complaint form that she had less than fifty-two weeks of service. The Complainant confirmed that in lieu of working a week’s notice the Complainant was ultimately paid her Statutory Minimum Notice. It is noted that this payment was not made until after the complaint form herein had issued. Lastly the Complainant brought a complaint concerning the failure of the Employer to notify the employee of any changes in the particulars already detailed in the Statement of Terms. This is set out in Section 5 of the Terms of Employment (Information) Act 1994 which puts the onus on an employer to notify the employee in writing of the nature and date of change in any of the particulars of the statement as provided by the Employer. The obligation does not extend to a change occurring in provision of statutes and instruments made under statute. I have had sight of an unsigned copy of the Complainant‘s Contract of Employment which is of generic order and was, I understand, available to the Complainant at all times on the employment portal. I tried very hard to understand what the Complainant was referencing when she triggered this complaint. A shift in the pattern of pay from a Friday to Monday was notified by What’s App and given a six-week lead intime. This ultimately did not, to my mind fall foul of the legislation.
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Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00069078-001 – The Complainant was unable to demonstrate that the employer had not notified the Employee in writing of any changes in the particulars already detailed in the Statement of Terms. The complaint herein is not well founded. Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA-00069078-002 – The Complainant does not have 52 weeks of continuous service and is therefore ineligible to claim relief under the Unfair Dismissals Act, 1977. I must decline jurisdiction. Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 CA-00069078-003 – Minimum Notice payment has been discharged, and any ongoing complaint is not well founded. Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 CA-00069078-004 - Minimum Notice payment has been discharged, and any ongoing complaint is not well founded. Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 CA-00069078-005 Minimum Notice payment has been discharged, and any ongoing complaint is not well founded.
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Dated: 07-08-2025
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words:
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