ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00059755
Parties:
| Complainant | Respondent |
Parties | Ana Gabriela Munoz Garcia | Sumac Foods Limited Rialto Bridge Cafe |
| Complainant | Respondent |
Anonymised Parties | {text} | {text} |
Representatives | Self-represented | Nidia Portugal |
Complaint(s):
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-00072421-001 | 13/06/2025 |
Date of Adjudication Hearing: 10/12/2025
Workplace Relations Commission Adjudication Officer: Dónal Moore
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015; following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S.I. 359/2020, which designated the WRC as a body empowered to hold remote hearings.
The parties were put under notice of the decision in the Zalewski case, that their evidence would be heard under oath or affirmation and of the penalty for perjury. Additionally, the parties were informed that they would be afforded an opportunity to cross-examine witnesses, and the hearing was to be held in public; the parties offered me neither objection nor reason to have the hearing held in private. Accordingly, the witnesses made an affirmation to be truthful with the Commission, and the Interpreter was likewise cautioned and took an oath to be truthful with the commission.
In attendance were the Complainant, Ms Garcia who was represented herself and for the Respondent, Ms Portugal. There were other parties present in a supportive capacity.
In coming to my decision, I have fully considered the oral and documentary evidence tendered by the parties.
It was offered in evidence that the Complainant had mitigated their losses by finding alternative work. The date offered for this was sometime around the end of September, the Complainant was requested by me to tender a pay slip or other evidence of their start date with the new employer. This was received by the Commission with a date of the 10th of October 2025.
I have taken the time to carefully review all the evidence both written and oral. I have noted the respective position of the parties. I am not required to provide a line for line rebuttal of the evidence and submissions that I have rejected or deemed superfluous to the main findings. I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held that minute analysis or reasons are not required to be given by administrative tribunals that the duty on administrative tribunals to give reasons in their decisions is not an onerous one and only broad reasons need be given. I am required to set out ‘such evidential material which is fundamentally relevant to the decision’ per MacMenamin J. in Nano Nagle School v Daly [2019] IESC 63
Where I deemed it necessary, I made my own inquiries to better understand the facts of the case and in fulfilment of my duties under statute.
Background:
The Complainant submitted their complaint on 13/06/2025 and referred the matter under s77 of the Employment Equality Act and s8 of the Unfair Dismissals Act 1977. These complaints are considered parallel complaints and cannot be run together, and the Complainant was informed previously by the Commission that the second complaint was withdrawn. I informed the Complainant of this, and they understood that the S77 Employment Equality Act Complaint fell and the only complaint to be considered was the complaint under the Unfair Dismissals Act. The Complainant took up her role with the Respondent on 25/11/2023 and the role ended on the 31/05/2025. This period of time is in excess of the 12 months service required under the Act and the date of submission being the 13/06/2025 where they set out, they were dismissed on the 31/05/2025 means the complaint is within statute for my jurisdiction. I asked the Complainant to provide some evidence of when they took up their new role and allowed time for them to make good on this. |
Summary of Complainant’s Case:
Specific Complaint CA-00072421-001 The Complainant set out their case in the following: Details: · Employment Start: November 2023 with the Respondent · Role & Hours: Initially part-time (Saturdays), later increased hours and responsibilities. · Performance Record: No verbal or written warnings; no formal complaints about performance. · Hours and Salary: The Complainant worked 24 hours per week and was paid €324.00 gross per week.
Dismissal:
As part of the submission of the Complainant it was argued that there are procedural issues in circumstances where they had no prior notice, investigation, disciplinary process, or opportunity to respond and no appeal offered. There was no written contract, but correct payment and payslips provided. The Complainant asserts the dismissal was unjustified and constitutes unfair dismissal under Act. |
Summary of Respondent’s Case:
The Respondent set out that the dismissal was due to trading difficulties where the business had too many front-of-house (FOH) employees, and sales were low during that period. In addition, the Respondent set out that the employee’s performance was declining; she appeared in bad mood and frequently complained about other FOH staff. To address this the manager spoke with her about this in a concerned way and the employee said she was fine but continued complaining. The Respondent states they aim to maintain a positive workplace and noted the diversity among staff (Mexican and Irish employees) and generally good atmosphere, with staff recommending friends to work there. The Respondent set out that they had to choose someone to let go due to staffing and performance issues and they selected the Complainant for reasons outlined. The Complainant was informed on May 19 that the employment would cease. In mitigation, the Respondent set out that they offered the Complainant reduced roster hours over two weeks to allow time to find another job. Further to this they offered to let the Complainant stay until they found new work, but this offer was declined as the Complainant planned to travel to Mexico. The Respondent offered a reference letter and to ask contacts for job opportunities and ensured all statutory payments were made. The Respondent manager expressed hurt over being called derogatory names during a difficult personal time for them whilst dealing with an illness. |
Findings and Conclusions:
1. In conducting my investigation, I have considered all relevant submissions presented to me by the parties. 2. Neither party was represented at the hearing by a legal professional and on that basis, I took the time to explain the legal process to them. I allowed for cross-examination, and this was taken up to a very limited extent. 3. In concluding on these complaints, it should be borne in mind that under the Unfair Dismissals Act 1977, a dismissal is presumed to be unfair, and it is the Respondent that bears the burden of proof in substantiating that the dismissal was fair, on the balance of probabilities. 4. The Respondent set that there were complaints about the Complainant, and the Complainant had repeatedly complained about colleagues. The Respondent had two meetings with the Complainant on this but admits she did not record the same and did not record the offer to change her hours and shifts. 5. Takings were down and they had to choose someone to terminate to reduce costs and had chosen the Complainant due to her alleged poor performance. The Respondent also set out that she had offered the Complainant some work until such a time as she found alternative work and this was declined. The Complainant concurred with this refusing the work due to the atmosphere in the business. It was the Respondent contention that the Complainant wished to travel and did not want to continue the work offer. It was put in evidence that the Complainant was paid all proper wages due to her plus a little more and this was confirmed by the Complainant. 6. In cross-examination the Complainant put it to the Respondent that at she never referred to her performance and only to the company she was keeping. This referred to a former employee who had parted on poor terms in relation to an honesty matter. It was also set out and not denied that there were no records of the performance issues and the Respondent agreed that she had not recorded the meeting and the Complainant set out that she had never received the same. 7. The Complainant also set out that she never received a contract reduced to writing, although she always had payslips and was paid her notice period. She denied that she ever brought anything but her best self to work. 8. The Respondent confirmed that they had in place policies and procedures for poor performance, but they had not followed them as they should. It was not denied that the Complainant had never received a contract of employment reduced to writing which would have helped them in their defence of the claim. 9. The Complainant did not address the matter of her not wanting additional work as she wanted to travel abroad, and she did not rebut the evidence that she was offered work to keep her paid until she found new work. The Complainant offered me no evidence of her attempts to find new work and thus mitigate her losses with the exception of the role she took up on the 10/10/2025. 10. However, it is agreed between the parties that there was a dismissal and while there were procedures in place they were not followed because the Respondent did not wish to be confrontational. The only mater for me to conclude is if it was fair or not. 11. Given the nature of the Act, it sets out that in almost all cases a dismissal is unfair until the employer rebuts that that assertion. To rebut the assertion the Respondent would have to show evidence of policies and procedures in place that were applied fairly in the selection process for dismissal, in the within case. There is the matter of the purported poor performance, but there is no process followed and no evidence at an attempt to improve performance. Given the foregoing I can only conclude that the dismissal in the way it was handled was unfair. Re-instatement 12. Having decided the dismissal was unfair, I am obliged to consider reinstatement and s7(1)(a) provides that reinstatement shall be in the position which the employee held immediately before dismissal on the terms on which they were employed before and deemed to have commenced on the day of the dismissal. Reinstatement is entirely within the discretion of the Adjudicator, having regard to all the circumstances. 13. I must apply the reasoning in An Bord Banistíochta Gaelscoil Moshíológ v Labour Court [2024] IESC 38 the Supreme Court addressed the matter of reinstatement that reinstatement is “a very strong remedy, and is only applicable in clear cut cases, where it is the appropriate response to perhaps high-handed and unjustifiable conduct on the part of an employer, and where any other remedy is not sufficient vindication of the employee” 14. In all the circumstances of this case, where there is an absolute breakdown in trust between the parties and where the Complainant is already successfully employed in another role; I do not find reinstatement a suitable remedy; nor do I find re-engagement a suitable remedy for the same reasons. Compensation 15. It is clear to me that the Complainant has some responsibility for their dismissal, as they refused the offer of shifts until they could find a new role. Whilst this would be uncomfortable for the parties the Complainant has also not offered any evidence of mitigation of losses other than the resumption of work on the 10/10/2025 in circumstance where she chose to refuse those additional shifts. 16. The Complainant has set out that they were unemployed from the 31st of May 2025 where they were paid €324.00 weekly gross: working 24 hours per week. They gave evidence that they had found a new role, but at the hearing could not be clear as to when that role began. I gave the Complainant some time to provide evidence of the exact date. They later confirmed this as the 10/10/2025 Mitigation 17. My calculations set out that the Complainant was without work for 12 weeks, however, I am not satisfied that the Complainant was reasonable in refusing the extra shifts offered by the Respondent which would have further mitigated their losses. I am also not satisfied that the Complainant did not refuse these in order to travel; in which case they would not have been available for work. Had they provided me with evidence of applying for other roles and interviews etc I would have concluded they had fully mitigated their losses and this lack of evidence has some bearing on the amount of compensation.
Award 18. Considering all the circumstances of this case I am awarding the Complainant compensation under the Act in the amount of €1,944.00 gross as is just and equitable in all the circumstances. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act and Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
I find that the Complainant is well founded and I am awarding the Complainant compensation under the Acts in the amount of €1,944.00 gross as is just and equitable in all the circumstances. |
Dated: 15/01/2026
Workplace Relations Commission Adjudication Officer: Dónal Moore
Key Words:
Procedures, Mitigation of Loss |