EDA2557

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00033787 (CA-00044688-001)

BACKGROUND:

The Employer appealed the decision of the WRC Adjudication Officer under Section 83 (1), Employment Equality Acts, 1998 to 2015 on 4 June 2024. A Labour Court hearing took place on 10 June 2025. The following is the Determination of the Court.

DETERMINATION:

1. Background to the Appeal

 This is an appeal by Freshly Chopped limited (the Respondent) against Adjudication Officer’s Decision ADJ-00033787 CA-00044688-001 given under the Employment Equality Act’s 1998 to 2011 (the Act’s) in a claim in a claim by a previous employee Hannah Murphy (the Complainant) that she was discriminatory dismissed on the age ground. The Adjudication Officer upheld the complaint and awarded compensation of €10,000.

The complaint was lodged with the WRC on 17 June 2021, appealed to the Labour Court 4 June 2024 and a hearing was held on 10 June 2025. The Complainant commenced employment as a Store Manager with the Respondent on 7 December 2020 and was dismissed on 21 December 2020. The fact of dismissal is not in dispute.

2 Summary of Complainant’s submission and evidence

The Complainant in her evidence to the Court stated that she started her training for the role in the Fairview branch of the store which is located directly below their HQ. Over the course of the two weeks, she was employed she met Mr Burnel Area Manager a few times, and they had informal discussions about her training and how she was finding the role. It was her evidence that on one occasion Mr Burnel asked her how many uniforms she would require. At no time did he express any level of dissatisfaction with her training or performance. On 18 December Mr Burnel arranged for her to travel to the Swords Store to meet the team she would be working with.

On Monday 21 December 2020 she was due to take up her role as store manager in the Swords branch. However, on Sunday 20th December 2020, Mr Burnel requested that she attend the Fairview branch the following morning. On arriving at the Fairview branch on the morning of 21 December 2020, Mr Burnel informed her that she was being dismissed and stated that he felt despite her experience she was still very young and not ready for the job and if she was to come back in two years she would be better equipped for the job.

 The Complainant stated that she believed that the Respondent only became aware of her age when she attended the store for the first time on 7 December 2020. Following her termination, she wrote to Mr Burnel on 23 December requesting her termination in writing and that it include the two reasons he had given on 21 December. As no response was received a second email was sent on 4 January 2021. The reply received did not include the reason for her dismissal as requested. It was a standard termination during probationary period letter.

The Complainant stated that she was relying on a hypothetical comparator who was a person of a greater age than she was. It was her belief that such a person would not have been dismissed. It was her submission that she had made out a prima facie case and that she was relying on the case of Dublin Corporation v Gibney’s EES/1986 which held “Evidence which, in the absence of any credible contradictory evidence by the employer would lead any reasonable person to conclude that discrimination has probably occurred.” Also, the case of Mitchell v Southern Health Board (2001) which set out the three-tiered Mitchel test.

 In response to questions from Mr Hegarty representative for the Respondent the Complainant confirmed that she had applied online for the job and that following an interview Mr Burnel had offered her the job. She confirmed that prior to her dismissal Mr Burnel had spoken to her about her uniform in terms of not wearing her green shirt in the customer dining area. and about eating her lunch in the lobby. It was her evidence that this was only once, she denies that she was spoken to about her behaviour.   The Complainant confirmed that at the dismissal meeting the issue of her having her feet on the seats was raised. It was her evidence that this meeting lasted about ten minutes.

The Complainant submitted that nowhere in the correspondence from Mr Burnel after her dismissal did he deny that that he had said she was too young. It is her case that she was discriminated against by being dismissed and this was because of her age.

3 Summary of Respondents submission

Mr Hegarty representative for the Respondent submitted that they did not discriminate against the Complainant on age or any other ground.  Many of the Respondents employees are young and some are younger that the Complainant. The Complainant was let go because she did not successfully complete her probationary period. There were issues around her behaviour that caused concern.  These concerns had been raised with her, but the behaviours were not corrected.  The Complainant was recruited as a Store Manager and at the commencement of her training she was advised of the Respondent’s policy on employee behaviour throughout the store. She was advised to take her lunch in the facilities provided for staff, but she ignored this and lunched in the dining area reserved for customers. She also placed her feet on the seats provided for customers and was argumentative when receiving instruction. The Respondent was aware of the Complainant’s age and had no issue with it.   The Complainant’s employment was terminated for noncompliance with company policies.

The Respondent submitted that the Complainant had not established a prima facia case and referred to the case of Margetts v Graham Anthony & Company Limited EDA038which held “the mere fact that the Respondent falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The Respondent must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.” They also sought to rely on Galway Mayo institute of Technology v Vlad Teleanca EDA 1835 which relied on the “Mitchell test.” The law as set out in section 85A of the Acts requires that the Complainant establish a prima facia case of discrimination before the burden of proof shifts to the Respondent. In Melbury Developments Ltd v Valpeters [2010] ELR 64 the Court stated, “Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.”

The Complainant has also failed to identify a comparator and to demonstrate how such a comparator would be treated differently. It is the Respondent’s clear position that if any member of staff regardless of age, behaved inappropriately during the probationary period in the manner the Complainant did, their employment would be terminated.

4 Witnesses for the Respondent

 The first witness for the Respondent was Mr Burnel who at the relevant time was working as an Area Manager for the Respondent. He recruited the Complainant and would have seen her about the store during her training period as his office was upstairs in the same building.  It was his evidence that he spoke to her about her uniform and eating her lunch in the customer area within the first week of her employment. It was not a formal meeting just a quick chat. He would have mentioned to Mr Lim the owner that he had spoken to her. On the weekend prior to her dismissal, he received an email from Mr Lee with a picture of the Complainant sitting in her uniform with her feet up on the chairs in the public area attached. Mr Lee in the email said that the Complainant’s employment needed to be terminated. On receipt of that email, he contacted the Complainant and arranged to meet her in the Fairview store on the Monday 21 December 2021. Mr Burnel said that until he got that email, he was happy to let the Complainant start work in the Swords store on the Monday, but once he received the instruction from the CEO, he had to act on it.

Under cross examination by the Complainant, Mr Burnel ‘s evidence was that he did not accept that he said she was too young or that he said she should come back in two years. He made the decision to hire the Complainant. If he had thought, she was too young he would not have hired her. He confirmed that it is company policy just to dismiss employees without procedure during the probationary period. He confirmed that at the time he supervised twelve other managers. He confirmed that probationary period is six months and that they would normally speak to staff within the first two weeks to assess their attitude, as attitude is something that can’t be changed.

He confirmed that no issues were raised about the Complainant’s work, but he received a clear straight order to dismiss her, and he followed that order.

5 Relevant Law

Section 85A sets out the burden of proof as follows

—(1) Where in any proceeding’s 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.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a complainant.

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the F159[Director General of the Workplace Relations Commission] under section 85(1), facts are established by or on behalf of the Authority from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the respondent to prove the contrary.

(4) In this section "discrimination" includes—

(a) indirect discrimination,

(b) victimisation,

(c) harassment or sexual harassment,

(d) the inclusion in a collective agreement to which section 9 applies of a provision which, by virtue of that section, is null and void.

(5) The European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001 (S.I. No. 337 of 2001), in so far as they relate to proceedings under this Act, are revoked.

6 Discussion and Decision

 The following facts in this case are not in dispute. The Complainant was dismissed at a meeting on 21 December 2021. The Complainant was due to take up her position a store manager on 21 December 2021 but was advised on 20 December 2021 that she was to report to HQ/Fairview store instead. On 18 December 2021 the Complainant was brought out to the Sword store to meet the team she would be working with. There were no complaints about the Complainant’s work. The Complainant had been spoken to about her uniform, eating lunch in the customer area, and putting her feet on the seats in the customer area.

 Looking at that sequence of events something had to have happened between the Complainant finishing up work on Friday 18, when all parties understood, that she would take up her position in the Swords store on Monday 21 December, and Sunday 20th December, when she was told to report to the Fairview store instead.

The only evidence before the Court of something happening in that period was the evidence of Mr Burnel that he received an email from Mr Lee instructing him to dismiss the Complainant. It was the Complainant’s evidence that at the meeting on 21 December 2021 when she was being dismissed, Mr Burnel stated that she was too young and that she should come back in two years. Based on the Complainant’s evidence that statement if it was made, was made after the decision to dismiss had been made. The Complainant made no submission or gave no evidence in respect of how that statement was linked to the decision to dismiss her, nor did she contest the fact that the decision to dismiss was made by Mr Lee CEO and not Mr Burnel. While the manner in which she was dismissed may have been less than satisfactory, the complaint before the Court is one of age discrimination.

 The Court taking the submissions and the evidence before it into account finds on the balance of probabilities that he Complainants dismissal was not linked to her age but instead arose from a breach of policy relating to eating in the customer area and having her feet on the customer seats.

The appeal succeeds. The decision of the Adjudication Officer is set aside.

 The Court so determines.

	Signed on behalf of the Labour Court
	Louise O'Donnell
AR	______________________
10 July 2025	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Mr Aidan Ralph, Court Secretary.