HSD2514

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00047737 (CA-00058752-001)

BACKGROUND:

The Complainant appealed the Decision of the Adjudication Officer to the Labour Court in accordance with Section
29(1) of the Safety, Health and Welfare at Work Acts, 2005 to 2014. A Labour Court hearing took place on 10 June
2025.
The following is the Decision of the Court:-

DECISION:

Background to the Appeal

This is an appeal by Ms Deborah McMahon (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00047737/CA-00058752-001, dated 7 June 2024) under the Safety, Health and Welfare at Work Act 2005 (‘the Act’). Notice of Appeal was received in the Court on 2 July 2024. The Court heard the appeal in Cork on 10 June 2025.

Factual Matrix

The Complainant commenced employment as a Receptionist in Lawlor’s Hotel, Dungarvan on 6 December 2022. She was paid €560.00 gross per week. She encountered difficulties performing her duties due to the frequent presence of Mr Burke, the General Manager, in the reception area. The Complainant raised this issue with management on several occasions, from February 2023 onwards, alleging that she had been the target of verbal and sexual abuse by Mr Burke.

The Complainant was dismissed from her employment on 16 April 2023. She was paid in lieu of one week’s notice. No reason for her dismissal was given in the letter of dismissal which merely stated: “We note that your employment commenced on 6 December 2022, please take notice that we are terminating your contract with immediate effect.”

The Complainant referred her complaint under the Act, along with a complaint under the Employment Equality Act 1998, to the Workplace Relations Commission on 9 September 2023.

Preliminary Issue

Ms Niamh McGowan BL, instructed by Clark Hill Solicitors LLP, appeared ‘as a courtesy to the Court’ on behalf of Burke Hotels Limited. Counsel informed the Court that the Complainant was employed by that entity at all material times and submitted that the Court, therefore, had no jurisdiction to hear the within appeal against ‘Lawlor’s Hotel’, it being merely a registered trading name of Burke Hotels Limited, and not in itself a legal entity. Counsel said that no legal proceedings had been initiated by the Complainant against Burke Hotels Limited T/A Lawlor’s Hotel

Counsel further submitted that the Complainant knew or ought to have known that she had been employed by Burke’s Hotels Limited as that entity’s name appears on the contract of employment issued to her, the payslips she had received and the Employee Handbook given to her.

The Complainant’s representative submitted that the Court could proceed to hear the appeal against the named Respondent having regard to its previous decision in Auto Depot Limited v Vasile Mateiu UDD1954, dated 2 October 2019. The representative also submitted that the Court should place some weight on the fact that the letter dismissing the Complainant was issued in the name of Lawlor’s Hotel.

Counsel and the Solicitor acting for Burke Hotels Limited withdrew from the hearing after submissions had been made in relation to the preliminary issue.

The Complainant’s Evidence

The Complainant gave evidence in relation to the treatment she says she was subject to on a regular basis by Mr Burke and which she brought to Management’s attention verbally and in writing. Her representative opened an email dated 23 March 2023 from the Complainant to Ms Catherine Burke (a Director)  in which she states inter alia:

“I was taking a booking yesterday by phone when a gentleman arrived to check in. Your father proceeded to attend to the guest. I smiled at Mr Burke as he could see I was on the phone. Mr Burke proceeded to take the gentleman’s details verbally and snatched sheets next to me. Mr Burke then became very angry very quickly at me and in front of the guest told me “FUCK YOU”. The guest was horrified. Paddy was present but I am unsure if he heard. I will not be subjected to ridicule every day by Mr Burke. Its (sic) mentally not a safe working environment or pleasant. Where is the Dignity in the workplace? I go home broken some days. This is mentally not right. The guest in question showed empathy and asked if I was OK stating it was “out of order” what had happened. I can provide his details if you like? I will not be subject to ridicule every day by Mr Burke or any form of physical contact towards me by Mr Burke which has taken place – in my place of work which should be safe.”

The Complainant told the Court that Mr Burke had poked her inappropriately on several occasions, had grabbed her wrists many times and tried to grab credit card slips from her. On one occasion, she said, he slapped her on her shoulder. The Complainant’s evidence is that she raised complainants about Mr Burke’s conduct towards her with Catherine Burke, Tracey Nagle and Joan O’Keeffe. She exhibited a print out of her text messages from February 2023, for example, to Ms O'Keeffe (Duty Manager) in which she complained of having been poked by Mr Burke. The Complainant said she had availed herself of the Respondent’s grievance procedure on 23 March 2023 but that the issues she raised had not been investigated although she had been told by Catherine Burke that a meeting had been arranged. That meeting, it transpires, was subsequently cancelled. According to the Complainant, no performance or disciplinary issues had been raised with her during her employment. On the contrary, she said she had been commended at work. She referred to a text message she had received from Joan O’Keeffe on 25 February 2023 in which Ms O’Keeffe stated:

“Thanks Debbie. Sorry we’ll get there eventually! The team is growing and going in the right direction ever since you joined so a few more good people and we’ll be flying.”

She said that the last occasion on which she had had inappropriate contact from Mr Burke was 22 March 2023. This incident was not investigated.

The Complainant’s evidence then turned to her dismissal. She said that she arrived for a 4.00 pm to midnight shift that day but was told on arrival by Joan O’Keeffe to go to the front room where she was presented with the letter, referred to earlier, terminating her employment. Having read it, the Complainant said she asked Joan O’Keeffe ‘Why?’ to which Ms O'Keeffe, she said, replied: ‘I don’t want to get involved.’ She was not given a right of appeal.

Discussion and Decision

The Complainant’s evidence was uncontested. However, the Court had no reason to doubt the Complainant’s credibility. The emails and text messages which were exhibited to corroborate her evidence, strengthen her claims that she was regularly the target of inappropriate verbal and physical interactions by Mr Burke and that her complaints about this behaviour culminated in her dismissal without any pretence at fair procedures.

Nevertheless, the Complainant has named as the Respondent to the within proceedings, a mere trading name. She has not identified any legal entity as Respondent. The Court is satisfied that she was on notice at all times that her employer was Burke Hotels Limited as stated in her contract of employment and on her payslips. This oversight on the Complainant’s part is not something that the Court has any statutory basis to rectify. The Court is further satisfied that the facts of the within appeal are entirely distinguishable from those in Auto Depot Limited v Vasile Mateiu UDD1954, which the Complainant’s representative seeks to rely on. In the latter case, the Complainant had been employed by the named Respondent, and by a related company the name of which differed only very slightly from it, had never been given any written documentation or payslips and English was not his native language.

For all the foregoing reasons, the within appeal fails and the decision of the Adjudication Officer is upheld.

The Court so decides.

	Signed on behalf of the Labour Court
	Alan Haugh
CC	______________________
25 June 2025	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Ms Ceola Cronin, Court Secretary.