Complainant

Respondent

Parties

Syed Saeed  Akhtar

Jin And Li Food Ltd. T/S Mizzoni Pizza, Mahon

Representatives

Self-represented

Daniel Johnson, Solicitor of Johnson & Company Solicitors

Act

Complaint 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-00067419-001

15/11/2024

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

CA-00067419-002

15/11/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00067419-005

15/11/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00067419-006

15/11/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00067419-007

15/11/2024

The Complainant was dismissed for gross misconduct from his job at a pizza/chipper business. The Employer submits that the Complainant exhibited a pattern of behaviour wherein he spoke inappropriately, in particular both to and about young girls/young female customers, culminating in an incident whereby he contacted a 16 year old girl via social media, whose mother complained to the business owner, on foot of which the Complainant was dismissed. The Employer further submits that the Complainant inappropriately used company customer data, in order to contact her. The Respondent submits that the dismissal was fair, that it was both proportionate and procedurally fair.

The Complainant acknowledges sending the messages but submits that it was a mistake and that he intended to send them to an adult woman. He further denies the allegations in relation to a pattern of his conduct and submits that he was not afforded fair procedures – that he received no escalating warnings - no oral warning, written warning, final warning. The Complainant further submits that he did not receive notice pay or a contract.

Open justice

The hearing took place in public at an in-person hearing at WRC Cork. No members of the press were present. No members of the public were present. The minor child (X’s daughter) whom the Complainant had contacted was present - she was identified as a potential witness for the Respondent but was ultimately not called to give evidence.

The Complainant represented himself. The Respondent company was represented by a Solicitor.

Consistent with the principle of ‘open justice’, I have had regard to the Supreme Court cases of Zalewski v Adjudication Officer & Ors [2021] IESC 24 and Sunday Newspapers Ltd & Ors v Gilchrist and Rogers [2017] IESC 18.

Considering Gilchrist, in light of the subsequent case of Zalewski, it would appear that a WRC Adjudication Officer (who is engaged in the ‘administration of justice’ under Article 37 of Bunreacht na hÉireann) has a common law jurisdiction, even outside of any legislation, to hold a hearing other than in public if it is required for the proper ‘administration of justice’, but that there is an obligation to institute the ‘minimum necessary restriction’ in order to give reality to the balancing of competing rights, with the principle weighing heavily in favour of ‘open justice.’ There is no blanket ‘in camera’ rule; and both the public and the bona fide press have a ‘legitimate interest.’ The Supreme Court held in Zalewski that justice must be administered ‘in public’, i.e. the hearing must be conducted in public and the parties to the action named in the written decision, save in ‘special circumstances.’ I find that no ‘special circumstances’ apply in this case. The hearing was held in public and the parties to the action are named. No application for it to be held other than in public was made by either party.

Calibrated Measures & Incremental Alternatives

In light of the fact that the evidence given involves a minor child, I have had regard to the particular sensitivities and vulnerabilities which can pertain to a minor child; and in particular to the requirement for ‘calibrated measures’ and ‘incremental alternatives’, as per Gilchrist, and the requirement to utilise only the ‘minimum necessary restriction.’

This case involves allegations of a pattern of impropriety regarding female minors by an adult male, who was in a customer-facing role at his workplace, culminating in a specific incident, which precipitated the Complainant’s dismissal by the Respondent employer, in which it is alleged that he contacted a 16 year old girl via social media. The Respondent further alleges that the Complainant improperly utilised customer data to contact her.

This approach is also consistent with Article 6 of the ECHR, which states at Article 6(1):-

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”[emphasis added]

It is also consistent with the views expressed in the UK line of authorities (persuasive only in this jurisdiction) which considered the balancing of Article 8 and Article 10 ECHR rights and where the balance may be found. In re S (FC) (a child) (Appellant) [2004] UKHL 47 at paragraph 20, the House of Lords stated that: ‘There are numerous automatic statutory reporting restrictions, e.g. in favour of victims of sexual offences: see, for example, section 1 of the Sexual Offences (Amendment) Act 1992. There are also numerous statutory provisions, which provide for discretionary reporting restrictions: see, for example, section 8(4) of the Official Secrets Act 1920. Given the number of statutory exceptions, it needs to be said clearly and unambiguously that the court has no power to create by a process of analogy, except in the most compelling circumstances, further exceptions to the general principle of open justice.’

The requirement placed on WRC Adjudication Officers by Zalewski who are engaged in the ‘administration of justice’ under Article 37 of Bunreacht na hÉireann, is that the standard of justice produced ‘cannot be lower or less demanding than the justice administered in the Courts under Article 34.’

Therefore, having carefully considered the applicable legal principles set out above, and the applicable case law of the Superior Courts, including the common law jurisdiction re-affirmed in Gilchrist, and the parameters within which I am required to operate, in writing this decision, I have:-

1.       Elected to anonymise the name of the minor child’s mother who gave evidence at the WRC hearing (Witness No. 3 for the Respondent), in order to redact the identity of the minor child, in my written decision. I refer to the witness only as X. [For completeness, I note that there is a legal difference between an identified potential witness, not called, and an ordinary member of the public, in common law jurisdictions.]

2.       Elected to generalise, in my written decision, the details of the allegations against the Complainant said to have been made against him by his wife, (who did not give evidence in this forum), mindful of the rule against hearsay, mindful of not prejudicing any other process in any other forum, the interests of justice in this or any other forum, and mindful of not identifying any minor child, including through jigsaw identification.

I have had regard to Dr. Julie Brophy’s Judicial Guidance document on ‘Anonymisation and the Avoidance of the Identification of Children’ produced by the Association of Lawyers for Children, in that regard.

For the purposes of the WRC hearing, I am simply recording the fact that Ms. Fidelma O’Callaghan (Witness No. 2 for the Respondent), gave evidence which I accept as being truthful (i.e. I accept that the conversation took place and that the contents of that conversation were as she described), of a conversation to which she was one of the two parties, and the Complainant was the other. Ms. O’Callaghan outlined that the Complainant came to work very distressed one day, and told her himself contemporaneously that his marriage was breaking up, and he needed to move out of the family home, in circumstances where his wife was making allegations against him in relation to alleged impropriety involving female minors. His colleague assisted him in trying to find somewhere to stay. (Screenshots of suggested possible rental properties were submitted) The Respondent employer is relying on this as part of the factual matrix set out in its defence of this case. For clarity and completeness, I am making no finding as to the content of those allegations, merely recording that I accept the fact that the Complainant told his colleague about them in real time. I further note that the Complainant denies all allegations and that he further submits that matters between himself and his wife are a ‘family matter’, and ‘a civil matter’ and submits that it has ‘nothing to do with this [employment matter].’

Summary of the Complainant’s written submission:

The Complainant submits that on Friday, 11th October 2024, during his lunch break, he was using his phone. He submits that he had texted one lady on Facebook Messenger. The same evening at 8pm, X [the minor child’s mother] along with a second person, attended at his workplace. He submits that X asked him if he had texted anybody. He said: ‘Yes, I texted my friend. Why?’, after which she said that the Complainant had texted her daughter. The Complainant submits that he told her: ‘No, I didn’t text your daughter.’ He submits that during the conversation between them, it emerged that he had accidentally texted her daughter who is underaged. The Complainant submits that he has apologised for that since, that that was clearly not his intention. The Complainant submits that he has poor eyesight and that he accidentally mixed up the recipients, which has now cost him his job and his reputation. He submits that X said to him: ‘lt's ok, we all know each other we live in the same area’ and she went home. The Complainant submits that the Gardai were not involved, as he submits X understood it was a ‘pure mistake.’

On 17th October 2024, the Complainant submits that he was working as usual and his boss Mr. Jin Hintao came to work at around 3.30pm together with the Mizzoni driver Ms. Fidelma O'Callaghan, and SO, who was a former employee of Mizzoni/not an employee of Mizzoni at the time. The Complainant submits that his boss addressed him in front of them and said that he wanted to talk to him. He submits that Mr. Jin Hintao said: ‘You texted a 16 year old girl.’ The Complainant submits that he acknowledged that he had, that he told his boss he did it by mistake, that he had spoken with her mother and had apologised for that already, and that no further concerns were raised by her.

The Complainant submits that he asked why he and his boss were talking about it, and why they were talking about it in front of others. The Complainant submits that he received no further explanation.

The Complainant submits that Fidelma O'Callaghan and SO started shouting at him in the shop, verbally insulting him, calling him ‘f***ing b*****d’ and a ‘pervert’. He further submits that his boss, Mr. Jin Hintao was just standing there, listening and smiling. [Adjudication Officer’s Note: These allegations are denied by both Ms. Fidelma O’Callaghan and by Mr. Jin Hintao.]

The Complainant submits that his boss then demanded the key from the shop and in front of the other two people present, said to the Complainant that he had to let him go, and he was immediately fired.

The Complainant submits that he gave his boss the keys and left, letting him know that he was going to complain to the WRC.

The Complainant submits that the same day, he texted his boss and asked for a letter stating the reason why he was fired. The Complainant submits that he told his boss he would collect it the next day, and his boss said he would need to talk to his Solicitor. (Screenshots were submitted by the Complainant.) [Adjudication Officer’s Note: The screenshots are consistent with the Respondent’s account of events.]

On 22nd October 2024, the Complainant submits that he received a text message from his boss requesting that he attend a meeting on 23rd October, in the shop. The Complainant submits that he did not feel safe going to the shop as he submits Mahon is a rough area. He submits that he requested to see his boss in Mahon Point Shopping Centre instead. The Complainant submits that he could not afford to bring a witness at the requested time, as everyone he knows was working at the time. So, he attended by himself, even though he would have preferred to have a witness present.

The Complainant submits that Mr. Jin Hintao attended along with the delivery driver from the Respondent employer, Ms. Fidelma O'Callaghan. The Complainant submits that he expressed concern and let his employer Mr. Jin Hintao know that he did not feel comfortable proceeding with that meeting due to Fidelma O'Callaghan’s presence, who he submits had previously shouted at him and verbally insulted him. The Complainant submits that the shopping centre is a public place, and he did not feel safe to proceed should her behaviour change again. The Complainant submits that he asked his employer to bring someone other than Ms. Fidelma O’Callaghan from the Mizzoni company for the meeting.

The Complainant submits that on the same day, Mr. Jin Hintao came to his home with a letter to attend another meeting at his workplace and gave it to him. The Complainant submits that he refused to meet at Mizzoni Pizza because he did not feel safe to go there.

He further submits that he did not understand why he had to attend any of those meetings at all after being fired on the spot without any proper investigation.

The Complainant submits that he asked Mr. Jin Hintao not to come to his home, as that affected his family peace and his wife works from home and she needs total silence when she is working. So, the Complainant submits that he asked him to communicate via post instead, so that he (the Complainant) could keep proper records of communications as well. Despite his requests, the Complainant submits that Mr. Jin Hintao came again on 25th October 2024, with another letter. (Copy of letter submitted).

The Complainant submits that later that night, someone damaged his car, which he reported to the Gardai; that he has received a few verbal threats in the area since the incident, and more property damage during Halloween (stones, eggs thrown at his property) and verbal threats from some passing residents in the area.

The Complainant further submits that he did not receive proper Terms of Employment. He submits that he never received a proper contract of employment despite working since June 2O2O. He submits that he received a very strange copy of Terms of Employment which his employer asked him to sign and keep for himself, but the employer did not sign it. The Complainant submits that he asked the employer to state his duties, pay rate, entitlements, policies and procedures of the business, etc., that he has asked for a staff book many times, but never received anything besides the two-page generalised contract that was given to him during the summer of 2024. (Copy of document submitted.)

At the hearing, Mr. Aktar, representing himself, gave evidence on his own behalf.

The Complainant said that on the day in question, he went to work. He opened the shop. He had a key. It was approximately 3.45pm. He said that Jin Hintao (‘John’), Fidelma O’Callaghan and SO came in and his boss said to him: ‘I need to talk to you.’ The Complainant said he asked ‘Why?’ He said he was told: ‘You send a message to [Minor child’s name redacted, X’s daughter]. The Complainant said that he acknowledged having sent the message. He said he explained that the child’s mother had been here (previously), that he apologised to her mother. He said he accepted it was a ‘total mistake’. He said that the mother had accepted his apology.

The Complainant said that he was told: ‘I have to let you go. Give me the key.’ He said that Ms. Fidelma O’Callaghan was standing next to him. He said that he did not understand.  He said Fidelma was shouting in front of his boss and his boss was smiling and doing nothing. He said that his boss had already counted his money – his holiday money. Then, he said to him: ‘You go.’  ‘I have to let you go.’ ‘Give me the key on the counter.’

The Complainant submitted that the decision was already made. He also objected to the procedures, which he submitted involved an outsider, SO, (not from his place of work) and a pizza delivery driver, Fidelma O’Callaghan, from his place of work.

He acknowledged that he received the letter from his employer inviting him to a disciplinary meeting. He said that the same day, somebody damaged his car. He submitted that Mahon was a dangerous place.

He further acknowledged that he received the second letter from his employer, again inviting him to a disciplinary meeting. He said that he arrived at Mahon Point shopping centre. He was objecting to their witness, Fidelma O’Callaghan.

In response to a query from the Adjudication Officer, He said that he received his holiday monies (accrued annual leave) plus one week’s notice. He said that he was put on paid suspension while the investigation was going on.

He submitted that there were no warning letters.  He outlined that he thought there should be escalating warnings - warning, verbal warning, written warning. He said he had worked there for 4.5 years.

The Adjudication Officer asked him whether he accepted that some behaviour is so serious that it could result in dismissal without there having been prior warnings? He re-iterated his view that there should have been an escalating system of warnings.

On cross-examination, by Mr. Daniel Johnson, Solicitor.

The text messages exhibited at page 20 of the Respondent’s booklet were put to the Complainant. He was asked if he accepted that he sent those messages. He acknowledged that he had.

He was asked about his use of the phrase: ‘Hope you don’t mind please.’ He said his use of ‘Hope you don’t mind please’ – that’s just manners. It was put to him that it was inappropriate. He submitted that the person he contacted, their date of birth was 2003, that she was not 16. He was asked how he was confused? It was put to him that he had not put any evidence before the Tribunal as to how he was confused. He said that his friend (that he contacted/intended to contact) worked in IT and that he had since deleted her information.

Page 16 of the Respondent’s booklet was put to him – this is a handwritten note made by his employer dated 07/09/2024 in relation to warning the Complainant as to his behaviour and the way he spoke to a young girl (12-13 years old). He said: ‘Totally deny. Never happened.’ It was put to him that there is evidence given that he was showing a pattern of behaviour and conduct that he was speaking inappropriately and speaking to young girls.

It was put to him that the date and time was 11th October at 17.37, when he sent the message. It was put to him that he was at work at that time. The Complainant said he was on his break. He was asked break from what. He said: ‘From work.’

It was put to him that he did not cooperate with the investigation. He said: ‘I tried everything. ‘I accept I text her.’ ‘I apologise.’

In relation to the invitation to a disciplinary meeting, it was put to him that he was given two (2) opportunities to refuse.

He was asked whether he put anything to his employer to explain his behaviour, in relation to the Whatsapp messages.

The Complainant said: ‘The first day he [the employer] says ‘bye bye.’ It was put to him that that information was given to him, and he was given the opportunity to respond and he did not cooperate with the investigation.

He was asked about Fidelma O’Callaghan helping him find accommodation. He said that it was ‘a family problem’, that he did ‘not understand why we are discussing this here.’

It was put to him that Fidelma had been helpful. He said: ‘She is a good woman.’ He went on to say: ‘But what she did this day [the day he was confronted about sending the message to the 16 year old girl, at his place of work]…No.’ It was put to him that Fidelma O’Callaghan denies his allegations.

The Complainant said that the Solicitor sent a letter to him twice. One day, Tusla called him. He said that his Solicitor told him: ‘If you want to give your information or not give your information, it’s totally up to you.’

The wording of the text message the Complainant sent to Jin Hintao (and which the Complainant submitted to the WRC as part of the documents upon which he was relying) was put to him: ‘…If u have the text that I sent the girl can u please send it to me my lawyer wants to see it and how long will it take for the investigation I can’t find the text that I sent the girl.’ He was asked if he accepted that there was an investigation ongoing? It was put to him that he had stated in that text message that there was.

Mitigation:-

In terms of mitigation, the Complainant outlined that:

He received €189 per week in Jobseeker’s allowance between October 2024 until May/June 2025. He said that in June 2025, he applied for disability allowance (that he had been attending a doctor/neurologist). He said that from 21/09/2025, he was working 10 hours per week in a pizza place in Cork city centre.

He said that his personal medical condition had nothing to do with his job. He said he was ‘surviving’ and he outlined particular mental health difficulties. [No medical reports were submitted in respect of same. The Respondent submitted at hearing that it was a stranger to the Complainant’s assertions in respect of any medical matters occurring subsequent to his employment; and that it absolutely denied any part in them.]

He was asked about distributing his CV. He said that he had dropped it into [Named Pizza Place] a suburb of Cork. He said: ‘CVs, I drop by hand.’ It was put to him that there is no evidence here today that he had applied for a job there. He said that he dropped CVs in the city centre, that he had 25 years’ experience as a ‘pizza chef.’

He was asked about [Pizza Business No. 1 based in Cork city]. He said that he had previously worked there for three or four years. He disputed what the Solicitor for the Respondent put to him that he was working there, subsequent to his dismissal from the Respondent’s business. He said: ‘I didn’t work there.’ The Solicitor for the Respondent put to the Complainant, as rebuttal evidence, a photograph of him appearing to work at [Pizza Business No. 1 based in Cork city]. The Complainant said: ‘I was there just for the trial. Drop my CV.’ He said he could not work, that he did the trial in November/October 2024.

He was asked about [Pizza Business No. 2]. He said that he never worked at [Pizza Business No. 2], that he went there to buy a kebab. He was asked if he was sure. He re-iterated emphatically that he was. The Solicitor for the Respondent put to the Complainant, as rebuttal evidence, a photograph of him appearing to work at [Pizza Business No. 2]. The Complainant said: ‘He keep me one day. Second day - he asked me for delivery.’ The Complainant said that he only had his learner’s permit and therefore could not do pizza delivery driving.

The Solicitor for the Respondent, expressing his incredulity at the Complainant’s evidence, asked the Complainant if it was a complete coincidence that on the only two days he was there doing a trial, that he happened to be seen?

The Complainant said that he tried to get every kind of job but he could not get a job. He said he cannot work because of his medical condition, because of the pressure.

The Complainant reiterated that he had not got a contract. It was put to him that he had received it in January 2024. The Complainant re-iterated that he had been given ‘no notice.’

Closing Submissions, by the Complainant

The Complainant submitted that he had received no letters from the company. [This was in contradiction to his evidence, in which he accepted he received the letters the company sent.]

He submitted that there was no warning, that he had worked there 4.5/5 years. He submitted that there is a process – he said there should have been a verbal warning, a written warning, but that there was nothing.

He queried if somebody were complaining about him, why did he keep working there? Why did the employer not fire him? Why did the employer keep him [as an employee]? He further submitted that the matters involving his family were a civil matter, and had nothing to do with his job.

As per the Respondent’s written submissions:

The company is a small fast food Restaurant company which operates under and trades under the title of Mizzoni Pizza at 1 Ave de Rennes, Mahon, Cork, T12 KV6Y Mahon, Cork City. The Complainant commenced employment with the company on 15th June 2020 and was employed as a Chef reporting under the direction of Mr. Jin Hintao, a Director of the company.  It is conceded that a Statement of the Complainants Terms of Employment were not given to the employee until 2024 due to an oversight.  (A copy of the Complainant’s Contract of Employment dated 20th January 2024 is exhibited at Appendix 1.) Save as expressly admitted, the company denies the Complainant’s claims in their entirety.

It is submitted that the Complainant’s employment was terminated on the grounds of gross misconduct on 25th October 2024 following a full and fair investigatory and disciplinary process.  The conduct in question related to inappropriate messaging and comments made to girls under the age of 18. Initially, it came to the company’s attention that the Complainant was very upset in January 2024 when he came to work in tears saying that his wife had asked him to leave the family home as [the specific nature of the allegations pertaining to alleged impropriety relating to minor children have been redacted by the WRC Adjudication Officer].  He was thinking about moving to Holland and then to Canada and a co-worker Fidelma O’Callaghan was asked by him to find accommodation for him locally in Cork so that he could continue to work with the company and to live nearby.  Fidelma O’Callaghan at his request helped him source alternative accommodation and sent him text messages with possible places to let. (A copy of the correspondence is exhibited at Appendix 2). Ultimately, he did not leave Cork or the family home or his employment with the company, but a red flag had been raised. He denied his wife’s allegations.

It is submitted that on 7th September 2024, it came to the company’s attention that the Complainant had been making inappropriate comments to young girls aged 12 or 13 years old who were customers of the business. He was talking to them and describing them as ‘very beautiful’ and ‘little princesses.’  The girls later described his comments as ‘creepy.’  He also made comments to fellow workers after the girls had left the premises that they were ‘beautiful girls’ and made lewd gestures with his hands suggesting that they had a female figure.

It is submitted that Mr. Jin Hintao, the owner and director of the company spoke to the Complainant on the same date and told him that his behaviour was inappropriate and that the consequences could be damaging to all. The Complainant responded that he was only joking but agreed that he would not talk like that again. Mr. Jin Hintao made a note of the verbal warning given to him on that date.  (A copy of the said verbal warning note is exhibited at Appendix 3.)

Dismissal

It is submitted that on 17th October 2024, it came to the company’s attention an allegation that the Complainant had sent inappropriate text messages to a minor, a daughter of a customer using the company customer database.  It was also brought to the company’s attention an allegation that he had made inappropriate comments to the same minor girl, the daughter of the customer under the age of 18 of a sexual nature.

The company then commenced an investigation by speaking to the mother of the child, [Name Redacted]. She confirmed the allegation was true. She subsequently furnished the Respondent with a letter dated 19th October 2024. (A copy of the correspondence is exhibited at Appendix 4). She further provided the Respondent with a screenshot of the messages received from the Complainant. (A copy of text messages is exhibited at Appendix 5).

It is submitted that on 17th October 2024, Jin Hintao spoke to the Complainant and told him that he was suspended immediately pending further investigation.   

It is submitted that the company wrote to the Complainant by letter dated 21st October 2024 inviting him to a disciplinary meeting on 23rd October 2024 in order to put the allegations and the documentation to him and to seek his response to the allegations. (A copy of the said correspondence is exhibited at Appendix 6).

It is submitted that the Complainant refused to attend the meeting at the work premises on the grounds that he felt unsafe in the Mahon area. He lives very close by in Mahon.

It is submitted that the company agreed to his proposal to meet in a Mahon Point Shopping Centre, also nearby. The company brought another employee, Ms. Fidelma O’Callaghan as a witness and to help with interpreting as Mr. Jin Hintao’s English is not good. It is submitted that the Complainant arrived at the café in the shopping centre, but when he saw Fidelma O’Callaghan, he said he did not feel safe and left.

The company wrote to him again on 23rd October 2024 inviting him to a further meeting on 24th October 2024. (A copy of the correspondence is exhibited at Appendix 7).

It is submitted that Mr. Jin Hintao hand delivered the letter to the Complainant’s home as it is located very near the business premises. It is submitted that the Complainant responded to say that he wanted a Mizzoni head office person present. Mr. Jin Hintao replied by text and indicated that Mr. Jin Hintao was his employer, and Mr. Jin Hintao was the appropriate person to deal with disciplinary matters.

It is submitted that the company proposed giving the Complainant a further opportunity to attend a further arranged meeting on 24th October 2024, at the workplace. Mr. Jin Hintao personally delivered the letters to the Complainant’s home address. The Complainant replied by text to say that he would not attend the meeting of 24th October 2024.

It is submitted that the company gave the matter further careful consideration in light of the allegations and the evidence provided by the child and her mother as well as the response of the employee and his failure to engage with the disciplinary process. The company has not received any response from the Complainant either in person or in writing to the allegations despite the opportunities presented to the Complainant to engage and respond. The company had previously given the Complainant a second verbal warning on 7th September 2024 for inappropriate language being used by the Complainant to young girls.

Consideration of Alternative Sanctions

It is submitted that there is clear evidence that the company considered the viability of alternative sanctions such as demotion or redeployment as an alternative to dismissal, but the company concluded that those sanctions would not be appropriate in this case, given the nature of this serious misconduct.

It is submitted that the company considered the matter carefully and it concluded that the conduct amounted to gross misconduct. The company considered alternative options falling short of dismissal.  However, the company reached the conclusion that the appropriate sanction was dismissal without further notice. The Complainant was informed by letter dated 25th October 2024 (A copy of the said correspondence is exhibited at Appendix 8).

Right of appeal

It is submitted that the Complainant was aware from the Terms of Employment signed on 20th January 2024, that he had a right to appeal any disciplinary action taken against him within five working days of the decision.

Proportionality of Sanction

The company rejects any assertion by the Complainant that the dismissal was disproportionate or that he had not received a warning.  It is submitted that the conduct complained of would be very damaging to the reputation of the business locally. The company relies on local good will and, it is submitted that if it was seen or perceived that employees were able to behave inappropriately towards young girls in the manner complained of herein, the viability of the company would be in jeopardy.  It is submitted that if the company was not seen to take immediate and decisive actions with regard to the employee, then the impression might be given that such behaviour was going to be tolerated.

Dismissal Clearly within Range of Reasonable Responses Open to the Company as the Complainant’s Employer

It is submitted that in all of the circumstances, the dismissal was fair. In particular, the company relies on the well-established doctrine of the range of reasonable responses reasonably open to an employer. Reliance is placed on the dicta of Noonan J in Bank of Ireland v Reilly [2015] IEHC 241 expressing agreement with the approach taken by Judge Linnane of the Circuit Court in Allied Irish Banks v Purcell [2012] ELR 189, who in turn had endorsed the ‘band of reasonableness’ test Lord Denning MR said should be applied by tribunals and courts called on to adjudicate in unfair dismissal claims: “The correct test is: Was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably take a different view.” British Leyland UK ltd v Swift [1981] IRLR 91, at page 93.

It is submitted that there is no plausible basis on which it could be suggested that dismissal was outside the range of reasonable responses open to the company in dealing with the findings regarding the Complainant in this case. The sanction of dismissal was a proportionate sanction in all the circumstances and was made at the conclusion of a disciplinary and appeal process conducted in accordance with fair procedures.

If, which is denied, it is found that the dismissal was procedurally unfair, the company will rely on Polkey v AE Dayton Services Ltd [1987] ICR 142 to argue that the Complainant would have been dismissed in any event and to seek a reduction in any award for compensation accordingly.

Further and in the alternative if, which is denied, it is found that the dismissal was unfair, any compensation awarded should be very substantially reduced to reflect the Complainant’s contributory conduct in his actions.

Failure to Demonstrate Mitigation of Loss

By letters dated 10th September 2025 and 26th September 2025 and by emails dated 12th September and 26th September 2025 the Complainant was requested to details his efforts to obtain employment and his employment record post dismissal. (A copy of the said correspondence is exhibited at Appendix 9.) He has not responded. Evidence will be given that the Complainant obtained alternative employment soon after the dismissal.

Legal Submissions (excerpt)

The Respondent submits that the dismissal was clearly within the range of reasonable responses open to the company as the Complainant’s employer. It is relying on the dicta of Noonan J. in the High Court case of Bank of Ireland V. Reilly [2015] IEHC 241 which endorses Lord Denning’s ‘band of reasonableness’ test, as outlined in British Leyland UK Ltd. V. Swift [1981] IRLR 91 at page 93. It is submitted that it is simply implausible to suggest otherwise, than that the sanction was proportionate in all the circumstances, and was made at the conclusion of a disciplinary and appeal process conducted in accordance with fair procedures.

If, which is denied, that the dismissal was procedurally unfair, the company will rely on Polkey V. AE Dayton Services Ltd.  [1987] ICR 142 to argue that the Complainant would have been dismissed in any event, and to seek a reduction in any award for compensation accordingly.

Further, and in the alternative, it is submitted that the Complainant’s contributory conduct in his actions should very substantially reduce any award for compensation.

At the hearing

Witness No. 1 for the Respondent – Mr. Jin Hintao, business owner/director

Jin Hintao, the business owner took the affirmation and gave evidence with the assistance of a Mandarin Chinese interpreter.

He outlined that the Respondent business trades as ‘Mizzoni’s Pizza’ and is based in Mahon, in Unit 1, that it is a small business situated in one of the laneways in the village. It has been trading there for eleven (11) years, that there are typically three (3) or four (4) members of staff, that it is a very small shop. The owner works there full-time, every day. The business offers pizza, burgers, chipper food etc. between 4pm – 11pm.

The Complainant started working for the Respondent business during Covid, in 2020 approximately – there is a Contract of Employment dated 15.06.2020. The owner outlined that the Complainant’s job was cleaning, cooking, serving; and that he had contact with the customers serving them on the counter. He worked five (5) to six (6) hours a day; three (3) days a week from 4 pm until closing (c. 10pm). He outlined that typically, when the shop is open, usually at the beginning of the week, there would be two (2) staff members working along with a driver, and towards the end of the week, typically four (4) staff members. He explained that some days, the Complainant would be working with one (1) other person, some days with three (3) others. Most of the time, the owner said he (the owner) would be with him (the Complainant) in the shop except on Tuesdays. On Tuesdays, the owner said he usually takes a break, and the Complainant would usually be working in the shop.

The witness explained that there were complaints about the Complainant relating to inappropriate conduct towards young female customers. He said that it was relayed to him by the company’s driver who was standing behind the customer and who noticed such behaviour. He said that it was also later relayed to him that the Complainant even on occasions asked for phone numbers from certain customers - adult females in their 20s. He said, there was also the occasional bad/rude attitude towards the customers, including inappropriate language towards a minor (young girl) in 2024. The witness said that he warned the Complainant orally a few times and he noted those complaints down. Page 16 of the Respondent’s booklet was put to the witness. It was submitted that it was a handwritten note, written by the witness contemporaneously. It was headed ‘2nd warning to Syed’ and dated ‘07/09/2024.’ It states: “I explained his behaviour and the way he spoke to young girl (12-13 yrs) was so inappropriate and the consequences could be damaging to all. Syed tried to explain that he was only joking with them but wouldn’t talk like that again.” The witness outlined that he wanted to make a note of the incident because he thought it was significant.

The text messages from the phone of Ms. Fidelma O’Callaghan (page 14 of the Respondent’s booklet) were put to the witness. He explained that in January 2024, the Complainant came to the shop and he told him that he was kicked out of home by his wife due to [specific nature of the allegations redacted – but they involved alleged impropriety with minor children]. He said that he was going to Amsterdam and from there to Canada; and the text messages related to finding the Complainant a temporary place to stay.

The witness outlined that some time in October 2024, two (2) days before he had the talk with the Complainant informing him of his suspension, the witness said that he was told that the Complainant had had inappropriate contact with a minor, 16 years of age. The person, SO, who told him that was a former staff member but who is now like a friend.  He told the witness that somebody else told him that the Complainant sent text messages to [minor child’s name redacted].

The witness said that he wanted to find out exactly what was going on. SO came to the shop within ten (10) minutes and showed the witness the screenshots of the text messages. The witness confirmed that those screenshots are the ones exhibited at Page 20 of the Respondent’s booklet.

The witness said that on the 16th or the 17th of October, he met with X, the minor child’s mother [Name Redacted]. When asked what he thought about those text messages, the witness said that he was shocked. He said that he thought it was serious misconduct considering that his business was well known in Mahon which is a small place. He said that he thought the Complainant’s conduct would have a serious negative impact on his business and on his reputation.

The next day when the Complainant came to work, the witness said to him that they had to have a talk. He told him about the complaint. The Complainant denied it - he said it was just a mistake. The witness put it to him that there are screenshots displaying the text messages that were sent to the girl. The Complainant said it was just a mistake. The witness told him it was very serious, and that he had to temporarily suspend his work and conduct a further investigation.

When asked how the Complainant reacted, the witness said that the Complainant ‘went mad.’ The witness said: ‘He said you can’t fire me like this. The witness said: ‘I told him I’m not firing you now. I’m just suspending you. This is a serious matter. I need to investigate.’ The witness said: ‘Next, I carried out my investigations. I didn’t know what to do. So, I consulted my Solicitor. Following the consultation, I sent him (the Complainant) several letters – I don’t remember whether it was 2 or 3. And on all occasions, he refused to meet with me.’

The invitation to attend a disciplinary meeting, (exhibited at page 21 of the Respondent’s booklet) was put to the Complainant. It was delivered personally by the witness/owner to his doorstep. The Complainant responded to the witness by sending a text message saying: ‘I can’t meet with you because Mahon is a dangerous place.’ Even though he has been living two (2) minutes’ walk from the shop.

The witness was asked whether the Complainant suggested somewhere else to meet. He said that the Complainant said he would like to meet but not just with him. He wanted to meet people from the HQ of Mizzoni. The witness said that the second time he offered to meet with the Complainant at a different place; and he also told the Complainant that it is not possible for representatives of Mizzoni HQ to come and meet with him.

The text message thread between the witness and the Complainant was put to him. 

[Adjudication Officer’s Note: I have reproduced the text messages as they are, making no alteration to syntax, grammar, typo etc. I have made one redaction.]

John in this instance, refers to Jin Hintao.

Under the heading, ‘Yesterday’, the text message sets out:

At 1.39pm ‘Hello John, can u please tell me the full name Fidelma and [SO, name redacted] if u have the text that I sent the girl can u please send it to me my lawyer wants to see it and how long will it take for the investigation I can’t find the text that I sent the girl’

Under the heading: ‘Today’

From the Respondent to the Complainant: At 1.50 pm: ‘Hi syed, are you ok to coming tomorrow for the meeting at 4pm at mizzoni? Please let me know, thanks, john.’ At 3.24 pm: ‘If you want to meet somewhere else fine for me’

From the Complainant: At 3.29 pm: ‘I will meet u tomorrow 4pm where u want to meet me let me now the place’

From the Respondent: At 3.30pm: ‘Mizzoni ok?’

From the Complainant: At 3.31pm: ‘Is fine 4pm tomorrow’

From the Respondent: At 3.31pm: ‘See you then’

Then, from the Complainant at 5.08pm: ‘Can u meet me mahon point shopping centre if u don’t mind’ At 5.09pm: ‘Down stairs coffee shop’

From the Respondent: At 5.09 pm: ‘fine 4pm’

The witness outlined that this text message thread referred to the second time he had sought to meet with the Complainant. He said that there was a previous invitation to a meeting where the response from the Complainant was that Mahon was too dangerous.

The witness was asked whether the meeting (arranged by text message) took place on October 23rd. He said: ‘No, it didn’t.’ He said the Complainant refused to meet with him.  The witness said that: ‘In response to my second meeting, the Complainant actually showed up. But when he saw my witness, he left. The meeting was at Mahon Point Shopping Centre. The witness said that it was ‘10 minutes’ walk, 5 minutes’ drive from Mizzoni to Mahon Point Shopping Centre.’ The witness said he spoke to the Complainant very briefly in Mahon Point Shopping Centre. When the Complainant showed up, when he saw the owner brought a witness [Fidelma O’Callaghan], ‘even though in the letter, I said he could bring his own witness, he showed up and he hadn’t brought anyone. He left.’ The witness said this took place in O’Briens downstairs, which was a public area, an open seating area.

Page 23 of the Respondent’s booklet of documents was put to the witness. It is a letter dated 23rd October 2024, headed: ‘Re: Invitation to Disciplinary Meeting on October 23’

It is addressed to the Complainant and sets out that:

‘I refer to the Invitation to Disciplinary Meeting on October 23rd 2024. You refused to attend the meeting. I am your employer and there is no requirement for any other person to deal with disciplinary matters.

I propose to give you a final opportunity to attend a further arranged meeting at 12pm 24th October 2024 at Mizzonis Mahon.

If you fail to attend or cooperate the disciplinary process will continue with or without your input and a decision shall be made thereafter.’

The Letter on Page 24 and Page 25 of the Respondent’s booklet was put to the witness. It is letter from the Respondent to the Complainant, dated 25/10/2024, which sets out:

‘Dear Syed

Further to my efforts to hold a disciplinary meeting on Wednesday the 23rd of October 2024 at 4p.m. and Thursday the 24th of October at 12p.m., I note that you failed to attend. I note that you refused to attend the meeting on Wednesday the 23rd of October on the basis that there was no representative from Mizzoni’s head office. As I explained in my letter to you of the 23rd of October, I am your employer and there is no requirement for any person from   Mizzoni’s head office to attend a disciplinary meeting. 

I gave you further opportunity to attend a re-arranged disciplinary meetings at 12p.m. on the 24th of October 2024 and you failed to attend. It is disappointing that you did not attend the meeting as it was an opportunity for you to provide your explanation and response to the allegations that you sent an inappropriate text message to a minor and also engaged in inappropriate comments to a minor of a sexual nature.

I have reviewed carefully the allegations made against you and the screenshot of a text message sent by you to a Minor [Name Redacted] on the 17th day of October 2024. I have also carefully reviewed the letter from [the mother of the minor child, Name Redacted] in which she outlines inappropriate behaviour by you towards her daughter [Name Redacted].

I consider the sending of text messages to a minor who is the daughter of a customer using information obtained from your employers database without the employer’s consent and to send it requesting a personal meeting with a minor to be totally inappropriate and it constitutes gross misconduct justifying dismissal without notice.

In relation to the inappropriate comments made to the minor as set out by the letter from [the minor child’s mother, Name Redacted] dated the 19th of October 2024, again I find the comments made by you to her to be of a sexual nature and totally inappropriate and constituting gross misconduct.

My business is a small local business which relies heavily on the good will of the local community. If members of the local community form the view that the staff of Mizzoni’s Pizza Mahon use the private personal data such as mobile telephone numbers to contact underage children in an attempt to meet such persons, then the damage to my business could be very serious. I am obliged to treat very seriously any action by an employee which damages the reputation of the business. The use of the mobile phone number was unacceptable without the consent of the owner of the mobile phone and an attempt to arrange a meeting with a minor is potentially very damaging to my business.

I have no option but to find for the termination of your employment without notice. This decision is in light of how serious your misconduct was.

I also considered demotion or redeployment to dismissal but as this is such a small business it is my opinion that these sanctions would not be appropriate in this case.

Your P45 will be issued in due course to your home address.

Yours sincerely

Jin Hintao’

The witness gave evidence that at this stage, he took the decision to proceed with the investigation. He decided to dismiss the Complainant because he thought that it was impossible to have a meeting and a discussion with him. He said he stopped paying the Complainant the week ending the 2nd or the 3rd of November. On the payslip, it said the 27th, but that was the start of the week. The Complainant’s payslip submitted referring to Week 43 [starting November 27/10/2024] set out that 18 hours work, €234 Gross; Deductions €1.21 [PAYE – €0; PRSI – €0; USC - €1.21;]; Nett Pay: €232.79.

The witness was asked why he would be worried about contact between his staff and young girls? He explained that ‘my shop is a small shop. Mahon is a small place. Everybody knows everybody. If word spread around about comments from my staff member, it would have a very serious impact on the reputation of my shop and on me personally.’

The allegation from the Complainant he was verbally abused by Fidelma and SO, and that the witness was ‘just standing there’ was put to him. He vehemently denied the allegation.

He was asked whether the letter from the child’s mother, exhibited at Page 17 of the Respondent’s booklet, helped with his investigation. The witness confirmed that it did: ‘Yes.’

On cross-examination

The Complainant asked why his wife/family were involved in this? He submitted it was a civil matter and nothing to do with his employment.

The Complainant disputed that there were complaints from a customer. He said that in the workplace, there should be a warning, then a written warning. He asked whether he had received any of those. The witness said: ‘No. Gave him an oral warning.’

The Complainant put to the witness that he had not received a contract of employment. The witness acknowledged that. He said that it was an oversight on his part, which occurred as the Complainant started his employment during Covid. But he did give him an opportunity to address the allegations.

In response to a query from the Adjudication Officer, the Complainant acknowledged that he sent the text messages.

The Complainant put it to the witness that his professional title was ‘Pizza Chef’.

Witness No. 2 for the Respondent, Ms. Fidelma O’Callaghan, employee.

Ms. Fidelma O’Callaghan, took the oath and gave evidence on behalf of the Respondent. She outlined that she had worked for ‘John’ [Jin Hintao] for the last eleven (11) years, in ‘Mizzoni’s.’ She said it had previously been ‘Apache’. She said that it had changed names but that she had had the same employer throughout that time. She outlined that she had worked with the Complainant in Mizzoni’s.

The witness referred to Page 14 and 15 of the Respondent’s booklet of documents, and outlined the circumstances in which she had helped the Complainant try to find a place to stay. She said that the messages and links to ads from a property rental website occurred in the following circumstances: She said that the Complainant had come to work very upset one day and told her that the reason he was very upset was that he was having marital problems. He told her directly that his wife had accused him of impropriety involving female minors, that he had to move out of the family home and that he needed a place to stay. [Adjudication Officer’s Note: I have generalised the evidence of this witness with respect to the specific allegations alleged to have been made for the legal reasons set out in the ‘Background’ section of this decision, and mindful of the considerations set out therein.] The witness outlined that the Complainant indicated that he was going to go to Holland for two (2) weeks, and then go to Canada altogether. She said he had a relative in Canada who was funding it. She that there seemed to be a pattern of the Complainant and his wife complaining each other. She said that she felt sorry for him and she helped him out.

She gave evidence that the Complainant commented on young girls/female customers and that his comments and interactions were not appropriate. She said that she had corrected him several times. She said that she would say to him: ‘That’s not great, Syed.’ And he would say to her: ‘Okay, okay.’

She said that she would say to him: ‘Syed, they’re too young.’ She said that it was like he ‘didn’t know right from wrong, and you had to tell him.’

She re-iterated that she felt sorry for him. She said that he would comment on young girls’ (teenagers) being ‘beautiful.’ She gave evidence that he made hand gestures indicating the female form and then suggested they were ‘beautiful.’ She was asked the age of the people involved. She said: ‘Oh, they were young. Teenagers.’ She said: ‘I’d say: ‘Syed, you can’t do that.’’

She also said that his interactions with women were inappropriate, that he was trying to chat up women at the school gate, but said the woman in that instance was an adult.

On cross-examination

He asked her about the day he was confronted in the shop about the allegations. He put it to her that his boss said to him: ‘I want to talk to you.’ And that his boss intimated he wanted to fire him. This was disputed. He asked the witness: ‘Why did you call me a pervert in front of my boss?’ He asked why SO was present, at the counter. She said that ‘he was there because he brought it to our attention.’

Witness No. 3 for the Respondent - The Mother of the Minor Child, X

She took the oath and gave evidence on behalf of the Respondent.

She said that her daughter was babysitting at her next-door neighbour’s house. She came in and said to her mother that she had just received ‘a creepy message’, and she said, ‘guess who it was from?’ She said it was ‘Syed.’ The witness told her daughter to show her the message. Page 20 of the Respondent’s booklet of documents was put to the witness – this is a screenshot of the messages between the Complainant and the witness’s daughter, which were sent through Messenger on Facebook.

The Complainant messaged: ‘What u have plan for weekend?’ The witness said: ‘My daughter texted back ‘yep.’ She didn’t understand what he was asking.’ The witness confirmed her daughter’s date of birth, and said: ‘She was 16 at the time.’

The witness said that she went to the shop to confront the Complainant. She asked him whether he had sent the message to ‘My [Name of Minor Child Redacted]’ She said that the Complainant used to say to her: ‘My [Name of Minor Child Redacted]’, ’Our [Name of Minor Child Redacted]’, ‘Your [Name of Minor Child Redacted].’

She said that he asked about her other child (son). He then asked about her daughter. ‘How is [Name of Minor Child Redacted]?’ She’s grand. My [Name of Minor Child Redacted]. ‘Our [Name of Minor Child Redacted].’ ‘Angrybird [Name of Minor Child Redacted]’ – he had a nickname for her.

The witness said: ‘He pulled out his phone and the first picture was my daughter’s.’

She said that the Respondent company’s driver, BS, went in behind the counter while the Complainant was out talking to her.

She said the Complainant said: ‘I don’t do things like that. I’m married and I’ve two kids.’ She said: ‘I said I know you’re married and you’ve two kids. This is Mahon. Everything gets around.’ She said that the Complainant said that it was ‘meant to be for a workmate for TK Maxx.’ He said: ‘I didn’t mean it.’

The witness said: ‘A couple of days later, [SO] called to my house at around 10.30 pm at night.’ She said he asked her if she knew why he was here. He asked whether she went behind the counter in Mizzoni’s and hit Syed with a pizza palate because he had texted her daughter. She said she told him ‘That didn’t happen. I went down to the shop to confront Syed because he had texted [my daughter].’

She said that she rang her daughter while SO was still there, and asked her if she still had the text messages, and she said that she did. She asked her daughter to send the messages on to her; and she sent them to SO.

She said that her daughter characterised the text messages as ‘creepy’; and that she then ‘came out with stuff that Syed was saying to her, as well.’ The witness said she decided ‘We’d have to go to the shop.’ She said: ‘It’s not right.’ She said that some of the things he said to her daughter included that he can wait another two years for [her daughter]. Then, he will be [her daughter’s] boyfriend. Her daughter said that he had told her while she was in the shop that he showers three times a day; and to ring him and that he will show her that he showers.

[The witness subsequently set out all of these allegations in writing and gave them to Mr. Jin Hintao.]

On cross examination

The Complainant acknowledged that he had sent the message but re-iterated that he had intended to send it to an adult woman. He put to the witness that he had apologised, that it was a ‘total mistake’.

He expressed the view that he did not know why the different people were involved. He expressed the view that he had been verbally abused, that his car had been damaged, that Mahon was dangerous. He reiterated that he did not know what his marital/family matters had to do with his employment. He said he had apologised.

Closing submissions on behalf of the Respondent

The Solicitor for the Respondent submitted that the dismissal was fair. What the Complainant did and that he accepted that he did by sending a text constitutes gross misconduct. He submitted that it was potentially catastrophic to the business, to his client’s livelihood, that if that reputation in a small area in Mahon, such as it is, that  if that reputation got out that Mizzoni’s were employing people who would predate and try to make contact with underage girls, it would be catastrophic to the business. He submitted that in order to protect his livelihood, the Respondent had no option but to take it very seriously. It tried to investigate it, spoke to the girl’s mother, tried to get to the bottom of it. It found the copies of the text messages (screenshots) to establish if there was a basis to it. Unfortunately, to his horror, he discovered that there was such a message sent. The owner went further - he spoke to the child’s mother, and asked her to set out in writing what she knew about it. He gave the employee an opportunity – there may have been an innocent explanation – to explain. The Respondent invited the employee on two different dates. The investigation process was effectively frustrated by the employee who refused to attend. The employer moved the location of the meeting to a very open public place, if there was any doubt about it. It is submitted that if the employee wanted to remain at work, he should have been able to attend the workplace for a workplace meeting. Mr. Hintao went further and arranged it in a shopping centre, to have a meeting, to hear the employee’s version of events, and in order to protect his livelihood. It is a very small business with 3-4 employees. So, one rogue employee would pose a great difficulty – all the employees would be tarred with the same brush. The Respondent carried out the investigation and was left with no option but to dismiss on grounds of gross misconduct without notice because of the seriousness of the conduct. On that basis, the dismissal was fair.

In relation to the issue of mitigation, an opportunity was offered to present evidence. There was no evidence, no documentation, no medical evidence, no record of application through emails. The duty in the case law is to at least spend time every day looking for employment. It seems that he was not really actively looking for employment. On the other hand, he says he did not work. It is submitted that it is a ‘bizarre coincidence’, that on the only occasions when the Employer produced photographs of him working, he says were the only days he worked (trial days, helping a friend). It is submitted that the credibility of the witness is in serious doubt. By failing to give us that information anyway, we submit that he has not discharged his burden, in line with the case law, in respect of the obligations of mitigation.

In relation to the issue of mitigation, he is alleging that he is in receipt of a disability benefit – that he is not in a position to work in any case, it seems. At hearing, he has alleged that it was the fault of the employer. That’s denied. It is submitted that there is no link with current symptoms and the Complainant’s period of employment with the Respondent. It was submitted that it has nothing to do with the Respondent. It was submitted that if he is unable to work, there is no clear time frame in relation to that.

In response to a query from the Adjudication Officer, in relation to dismissing without notice, it was submitted that there is a general right of an employer where a serious matter occurs, whether it is provided for in the contract or whether it is provided for in any policies, to take immediate action, where required, where the conduct is so serious, and where the conduct is detrimental to the employer.

In relation to the Terms of Employment complaint, it is conceded that he was not given it from Day 1. He was given it at a later stage, and it was signed by the employee at a later stage.

In relation to the unfair dismissal complaint, I find for the Respondent.

The burden of proof is on the Respondent in an unfair dismissal case, under the Unfair Dismissals Act 1977, once it has been established that a dismissal occurred.

It falls to me to consider whether the dismissal was both substantively and procedurally fair. I have directed my mind to the evidence in this case, and considered the submissions and the applicable law, both statute and case law.

I found the evidence of the Respondent’s witnesses to be very cogent and credible. I am persuaded by their evidence that the Complainant’s conduct is deeply troubling and I fully accept that it was a pattern of conduct, and that his colleagues had corrected him and attempted to guide him, on previous occasions. I further accept that his boss had addressed the matter with him and warned him previously. I accept the evidence given by the witness in relation to her recollection of what the Complainant told her as to the circumstances of the breakdown of his marriage, i.e. I accept that the conversation took place between the two of them (the witness and the Complainant), and I accept that her recollection of the conversation is accurate. I am, of course, making no findings as to whether or not there is any veracity to the allegations made by the Complainant’s wife against him - which would be improper for me to do - simply that they were made against him and that he told his colleague of that fact contemporaneously. And, in any event, I find that the final incident, was sufficient in and of itself to warrant summary dismissal.

I find that the dismissal was substantively fair. I find that the Respondent employer found itself in a situation which was untenable and had to act urgently to address the matter. I fully accept that dismissing someone in those circumstances falls squarely within the “band of reasonableness” of responses available to an employer faced with this situation. I also fully accept the evidence on behalf of the Respondent that there is a reputational issue for the company in respect of the conduct of its employees, when coming into contact with members of the public, and especially members of the public who are minors. I further note the Respondent employer’s additional concern about the utilisation of customer information (personal data) in order to contact the minor child, X’s daughter.

I also must consider whether the dismissal was procedurally fair. Having considered it carefully, I find that the steps taken by the employer meet the requirements of the threshold of procedural fairness.

By letter dated 18/10/2024 (which the Complainant submitted as part of his supporting documents), the Complainant was notified by his employer, that he was on a paid suspension from work, pending investigation into allegations that he had engaged in sending inappropriate text messages to a minor girl using personal data. The rationale for the suspension was set out as was its nature and what the implications were and were not was specifically explained. The requirement to co-operate with the investigation was set out, as was the Complainant’s right to be represented at the investigation meeting by a fellow employee. The letter further states: ‘Please read and ensure you understand the S.I. 146 of 2000 Industrial Relations Act 1990 Code of Practice on Grievance and Disciplinary Procedures (Declaration) Order 2000’. It sets out that one possible outcome of the investigation process is that a disciplinary hearing may be convened in accordance with the Disciplinary Procedure, and emphasised that no such decision has been made at this stage and no decision will be made until the conclusion of the investigation process, which is a fact gathering exercise only. The Complainant was further invited to produce any documents, witnesses or information that he thinks relevant to the matters under investigation, and if he had any queries to contact the Respondent employer.

The minor child’s mother, X, wrote a comprehensive letter to the employer setting out the allegations against the Complainant, as part of the investigation process.

By letter dated 21st October 2024, the Complainant was invited to a Disciplinary Meeting on October 23rd.  The letter sets out that after careful review and consideration of the documentation, the employer had decided to treat these matters as requiring a disciplinary hearing. It sets out:

‘The allegations are that:

1.       On the 11th October 2024 you sent inappropriate text messages to a minor, a daughter of a customer.

2.       ln the recent past you made inappropriate comments to a minor of a sexual nature, a daughter of a customer.’

A meeting was proposed for Wednesday, October 23rd at 4pm at Mizzoni’s, Mahon.

The Complainant was informed of his right to bring witnesses and submit documents for consideration.

The Complainant was informed that the outcome of the meeting could result in disciplinary action being taken against him, up to and including dismissal.

A copy of the screenshots between the Complainant and the minor child; and the letter from the minor child’s mother, X, dated 19th October 2024, were both enclosed.

The letter set out that: ‘No decision will be made until a full and thorough review of this matter is completed, and you have been afforded an opportunity to present your version of events at the meeting.’

The Complainant was informed of his right to be accompanied by a friend, if he wished. He was requested to confirm his attendance.

I note that the employer made considerable efforts to meet with the Complainant, who declined to meet with him and/or participate, on grounds that simply have no reality to them.

By, contrast, the Complainant was simply not a credible witness. In fact, his closing submissions contradicted his own direct evidence, something the Adjudication Officer put to him, in order to give him an opportunity to address it, as a matter of fair procedure. The evidence he gave in relation to the issue of mitigation, when CCTV pictures were put to him, was also unpersuasive.

CA-00067419-001 – I find for the Respondent. I find that this complaint is not well founded. I find that the Complainant received his terms of employment in January 2024. He did not receive them in 2020, at the start of his employment, which was conceded.  He filed this complaint in November 2024, and the cognisable period is six months. Therefore, I find that this complaint is not well founded.

CA-00067419-002 – I find for the Respondent. I find that this complaint is not well founded. I find that the summary dismissal without notice was both procedurally and substantively fair. It occurred subsequent to a period of paid suspension during which the Complainant declined to participate in the investigation conducted by his employer in line with S.I. 146/2000, the terms of which were specifically drawn to the attention of the Complainant, as were the other key aspects of fair procedure and natural justice. His Terms of Employment also set out a right of appeal to any disciplinary sanction within 5 days of it being imposed. Summary dismissal without notice for gross misconduct of the nature set out falls squarely within the ‘band of reasonableness’ of the options open to an employer.

CA-00067419-005 – I find for the Respondent. As I have found the summary dismissal without notice to be fair under CA-00067419-002 above, and there is nothing in the Minimum Notice & Terms of Employment Act 1973 precluding the dismissal of an employee for misconduct without notice, which is what occurred in this case, I find that this complaint is not well founded.

CA-00067419-006 – This is a duplicate complaint. I find that it is not well founded.

CA-00067419-007 – This is a duplicate complaint. I find that it is not well founded.

Unfair Dismissal; Minimum Notice; Terms of Employment; Open Justice; Redaction; Sexual impropriety; Minors;