ADJUDICATION OFFICER Recommendation on dispute under Industrial Relations Act 1969
Investigation Recommendation Reference: IR-SC-00003529
Parties:
| Worker | Employer |
Anonymised Parties | A Head Chef | A Cafe |
Representatives | Self -Represented | Vicki Buckley MV Legal |
Dispute:
Act | Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 13 of the Industrial Relations Act. | IR-SC-00003529 | 09/12/2024 |
Workplace Relations Commission Adjudication Officer: Thomas O'Driscoll
Date of Hearing: 01/12/2025
Procedure:
In accordance with Section 13 of the Industrial Relations Act 1969 (as amended)following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any information relevant to the dispute. As the Worker had less than 12 months’ service, the complaint was lodged under section 13 of the Industrial Relations Act 1969, seeking a recommendation on the fairness of the dismissal.
At the start of the hearing, I confirmed that I had no jurisdiction to consider any complaint under the Employment Equality Acts, as none had been filed, though mention was made in the Worker’s submission. The complaint before me, as lodged on 9 December 2024, is expressly a dispute under Section 13 of the Industrial Relations Act 1969 concerning alleged unfair dismissal. No Equality Acts complaint was filed nor was any discriminatory ground was identified on the statutory complaint form.
Furthermore, an Equality Acts claim must be submitted within the statutory six-month time limit and cannot be introduced retrospectively in later written submissions. The first reference to discrimination appeared in a submission dated 12 September 2025, which is well outside the statutory time limit, and I cannot amend or expand the original dispute notwithstanding the fact that no application was made to amend pleadings.
Background:
The Worker was employed as a head chef at the Employer’s café from 9 July 2024 until 19 November 2024 on a salary of €480 gross: €460 net for a 33-hour week. The Worker alleges that she was unfairly dismissed on 19 November 2024 by way of WhatsApp message after notifying the Employer that her immigration permission was in the process of being renewed. She claims the dismissal was abrupt and procedurally unfair. She submits it came at a moment of vulnerability due to her immigration status and recent marriage. The Employer disputes that the Worker was unfairly dismissed, contending instead that the Worker informed the business that she was “not legally allowed to work” pending the renewal of her permission, and that the Employer could not risk employing someone who did not have a confirmed right to work. The Employer argues that there was no dismissal in substance, as the Worker was told she could “come back in a heartbeat” once her permission was regularised. |
Summary of Workers Case:
The Worker submits that she was in the process of renewing/changing her immigration stamp and was confused by the system, which had recently moved online. She provided evidence of a valid work permit from her previous employer and confirmation of her Stamp 4 approval shortly after dismissal. (Submissions and documents, including permit approval and IRP confirmation, were exhibited.) On the morning of 19 November 2024, she sent a WhatsApp voice note to the Employer explaining her situation. She accepted at the hearing that she expressed uncertainty about whether she was entitled to work but stated this reflected confusion and lack of legal knowledge, not her actual legal status. Later that same day, she received a message from the Employer dismissing her with immediate effect and stating that she could not work without a valid visa. The Worker described this as devastating and carried out with no opportunity to clarify the position. The Employer removed her from the Revenue system the following day, confirming that the employment had ended. This, in the Worker’s view, contradicted the suggestion that she could "come back" and signalled a clear dismissal. The Worker asserts that she was not provided with a written contract or any procedures for dismissal. The dismissal by text, at short notice, left her financially and emotionally distressed. She remained unemployed for several months. |
Summary of Employer’s Case:
The Worker explicitly told the Employer—via WhatsApp voice message on 19 November—that she was “not legally allowed to work” while awaiting confirmation of her new immigration permission. This message caused immediate concern and prompted protective action by the Employer. The Employer responded by saying she could not “take the risk” of employing someone without a valid visa. The Employer submits the Worker explicitly told the Employer—via WhatsApp voice message on 19 November—that she was “not legally allowed to work” while awaiting confirmation of her new immigration permission. This message caused immediate concern and prompted protective action by the Employer. The Employer responded by saying she could not “take the risk” of employing someone without a valid visa but also stated the Worker could “come back in a heartbeat” once her permission was regularised. The Employer argues this did not amount to an irrevocable dismissal. The Employer wishes it to be noted that whilst the Worker did get back to her, it was to enquire only about tips that were due to her, with no reference to getting her job back. The Employer believed the Worker was on a Stamp 2 permission and argued that the “8-week continuation rule”, whereby a worker is entitled to a period of grace to renew an application, did not apply in those circumstances. The Employer stated that she was unaware of the continuity rule in any event, but that the message from the Worker indicated that she had no entitlement to work. The Employer stated that, due to a recent WRC inspection, she was particularly conscious of compliance obligations and could not risk retaining someone who said they were not legally permitted to work but also stated the Worker could “come back in a heartbeat” once her permission was regularised. The Employer argues this did not amount to an irrevocable dismissal. |
Conclusions:
In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties. Although the Employer stated that the Worker could “come back in a heartbeat,” the message also explicitly informed her that she was being removed from the books and that the Employer would advertise for a new chef. The Worker was removed from the Revenue system the following day. This constitutes a termination of employment in substance, and I conclude therefore that there was a dismissal.
The Worker was dismissed by WhatsApp message without any meeting nor any fact-finding process. I am satisfied the Employer gave no consideration of alternative arrangements nor any opportunity for the Worker to clarify her employment status. In my opinion, the Employer “jumped the gun.” The decision taken on the same day as the Employer’s WhatsApp message to contact Revenue amounted, for all intents and purposes, to a summary dismissal, conducted with no regard for fair procedures as required under S.I. No. 146/2000.
Even where immigration concerns arise, good practice requires an employer to pause and allow proper verification of the situation. This did not occur. There was an absence of any fair procedures or scrutiny of employment documentation. The fact that the Worker had no opportunity to meet or respond before dismissal went against the basic principles of good industrial relations practice. I find that the manner of the Worker’s dismissal was unfair. |
Recommendation:
Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation in relation to the dispute.
In assessing the appropriate level of compensation, I have taken into account the short duration of the employment, the Worker’s credible account of distress and disruption, and the need to mark the absence of fair procedure. While I note the Employer’s arguments concerning mitigation, the primary focus of a Section 13 recommendation is on fairness of treatment rather than detailed financial quantification.
Accordingly, I recommend that the Employer pay the Worker €3,000 in full and final resolution of this dispute.
Dated: 05-01-26
Workplace Relations Commission Adjudication Officer: Thomas O'Driscoll
Key Words:
Section 13 of the Industrial Relations Act 1969. Dismissal. |