Complainant

Respondent

Parties

Carmelita  Mazzone

Priory Coffee Company Limited

Representatives

Ali Bracken Ziad BL instructed by Ms Clodagh Grace Healy Crowley & Co. Solicitors

Conor White Comyn Kelleher Tobin

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-00066596-001

10/10/2024

The Complainant worked as a Café Assistant at the Respondent’s Fermoy branch from 10 January 2023 until 13 September 2024. Her complaint was lodged on 10 October 2024. Her workplace details record 37.5 hours per week and a gross weekly pay of €589.79. The dismissal was communicated by text message on 9 September 2024; a meeting followed on 13 September 2024.

 The Respondent maintains dismissal was for poor performance. At the hearing, the Respondent tendered written submissions but called no witnesses and accepted it was “not in a position to adduce evidence” beyond appendices. The Complainant gave sworn evidence.

 The Complainant says she was dismissed by text without warning or disciplinary process, contrary to her contract’s four-stage procedure (verbal warning; first written warning; final written warning; dismissal/appeal). She denies ever receiving any verbal or written warning, any invitation to a disciplinary meeting, or any opportunity to be accompanied. She says she learned of the “issues” only when she met a manager on 13 September 2024 after receiving the text on 9 September 2024 indicating she had been dismissed.

She obtained irregular substitute SNA work from 4 October 2024 and received Jobseeker’s Benefit. She accepted she did not apply for café or other hospitality roles and prioritised availability for schools to build SNA experience.

The Respondent says dismissal was for capability/competence and conduct, relying on a list of performance matters (cleanliness; attitude; breaks during service; Google/social-media complaints; refusal of tasks; locking error; etc.). It says a “final warning” had issued after online reviews in December 2023, and further matters arose in 2024. It accepts dismissal was by text on 9 September 2024, with a follow-up explanation on 13 September 2024. The Respondent accepted that no documentation, nor evidence of any kind, was proffered to show that warnings were given to the Complainant prior to the dismissal by text. The Respondent points to the contractual disciplinary/appeal procedure and submits the Complainant failed to appeal.

The Respondent argues the Complainant failed to mitigate her loss—remaining in casual SNA work and not applying for readily available café roles in the locality. It relies on section 7(2) UDA and decisions emphasising mitigation.

The fact of dismissal is not disputed in his case admitted. Under s.6 of the Unfair Dismissals Act 1977, as amended (the Act”) ),he dismissal is presumed unfair unless the Respondent shows it resulted wholly or mainly from a permissible ground (capability/competence/conduct etc.) and that fair procedures were observed.

The reasonableness or otherwise of an employer in carrying out a dismissal is addressed under Section6(7) of the Act which provides:

"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 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."

Procedure:

The Respondent’s own contract sets out a four-stage disciplinary procedure (verbal warning; first written; final written; dismissal) with an appeal right. No documentary evidence of any warning, investigation, invite letters, right to representation, or minutes was produced; the Respondent confirmed at hearing there were no documents and called no witnesses to prove warnings or meetings occurred. The dismissal was initiated by text. On the Complainant’s unchallenged sworn evidence, she received no warnings and no meeting. On these facts, I find a fundamental denial of fair procedures in breach of the Respondent’s own policy and of basic natural justice.

An employer may have genuine performance concerns; however, where dismissal is for performance/conduct, procedural steps (notice of allegations, opportunity to respond, representation, and proportionate sanction following warnings) are essential. The Respondent’s failure to produce evidence warnings or any fair process renders the dismissal procedurally unfair in this case, irrespective of the alleged performance issues.

Substantive reason:

The Respondent listed performance issues but did not prove them through admissible evidence at hearing. In the absence of witnesses or contemporaneous records and faced with a dismissal by text without prior process, I cannot find that the dismissal “resulted wholly or mainly” from proven capability or conduct, as required by s.6(4) UDA.

Appeal:

The Respondent argues the Complainant should have appealed the dismissal. An internal appeal can sometimes ameliorate earlier defects. The Complainant credibly explained that when she rang after the text, she was told the decision was already taken by management. In these circumstances, I do not treat non-appeal as determinative of fairness.

In consideration of the above reasons, I find the Complainant was unfairly dismissed.  

Redress:

Section 7 of the Act, in its relevant parts, provides:

7. Redress for unfair dismissal:  

(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 or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances:

…. (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, or

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid as is just and equitable having regard to all the circumstances,

and the reference in the foregoing paragraphs to an employer shall be construed, in a case where the ownership of the business of the employer changes after the dismissal, as references to the person who, by virtue of the change, becomes entitled to such ownership.

(2A) In calculating financial loss for the purposes of subsection (1), payments to the employee— under the Social Welfare Consolidation Act 2005 in respect of any period following the dismissal concerned, or

(b) under the Income Tax Acts arising by reason of the dismissal, shall be disregarded.

…. (3) In this section—

“financial loss”, in relation to the dismissal of an employee, includes any actual loss and 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 [2014], or in relation to superannuation.

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

Under s.7(2) UDA, I must consider the Complainant’s mitigation. She obtained casual SNA work from 4 October 2024, earning €1,747 to 24 April 2025, while also receiving Jobseeker’s Benefit. She accepted she did not apply for café or other hospitality roles and chose to keep herself available for schools to build SNA experience. While a dismissed worker need not abandon a new career direction entirely, the duty is to take reasonable steps to reduce loss. On her own evidence, her availability choices restricted earnings and she made no applications for comparable café/hospitality roles in her area. I therefore find weak mitigation and will reduce compensation accordingly.

Given the breakdown of trust indicated by a summary dismissal by text, the passage of time, and the Complainant’s move toward a different sector, reinstatement or re-engagement is not appropriate. Compensation is the suitable redress.

In assessing redress under the Unfair Dismissals Acts, I am required to consider the financial loss sustained by the Complainant as a direct consequence of her dismissal, taking into account her obligation to mitigate that loss.

The Complainant’s projected net earnings from the date of dismissal to 17 October 2025, based on her average net weekly pay of €510.79 over a period of 57 weeks, amount to €29,115. A further €3,502 paid by the Department of Education, as accepted by the Complainant, is deducted. Social welfare payments to the Complainant are disregarded in line with section 7(2A) above.  The Complainant’s claimed net loss therefore amounts to €25,613. Having considered the evidence and the Complainant’s limited efforts to mitigate her loss, I find it appropriate to reduce the compensatory amount by approximately 30% to reflect that factor. Accordingly, I direct the Respondent to pay to the Complainant the sum of €18000 which I assess as just and equitable having regard to al the circumstances.

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 €18,000.

Unfair Dismissals Act 1977, Procedures.