Complainant

Respondent

Parties

Hannah  Kenny

Harkin Tavern Limited

Representatives

Joseph Ateb SIPTU

Stephen Harkin, Director

Ciara Gahan, Company Secretary

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-00071119-001

28/04/2025

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

CA-00071119-002

28/04/2025

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act 1997

CA-00071119-003

28/04/2025

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act 1997

CA-00071119-004

28/04/2025

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

CA-00071119-005

28/04/2025

The complaints were referred to the WRC on 28 April 2025. The Complainant was employed by the Respondent as floor staff. She worked from 1 December 2019 until 22 February 2025 on a flexible roster and earned €14.00 per hour. She claimed unfair dismissal, unpaid notice, holiday pay, a public holiday entitlement, and the absence of written terms of employment.

The Respondent denied all claims. It asserted that the Complainant was summarily dismissed for gross misconduct, arguing there was no unfair dismissal and no notice pay due. It contended that all holiday and public holiday entitlements were paid and denied that it failed to provide a written statement of terms of employment. All claims, they maintained, were unfounded.

The Complainant contended that she had been unfairly dismissed from her employment. She further claimed that she was not paid her statutory minimum notice entitlement, outstanding annual leave and public holiday entitlements, and that she had not been furnished with a written statement of her terms and conditions of employment.  

The Complainant gave evidence that she attended work as normal on 22 February 2025. She stated that there was what she described as a “common procedure” within the Respondent’s premises whereby, if tourists asked about merchandise, staff members would facilitate requests for items such as branded glasses, tops or cups and that it was her understanding that monies arising were treated by staff as tips. The Complainant stated that it was her understanding that this practice occurred amongst staff members and that she had witnessed senior staff and bar staff engaging in similar practices previously on multiple occasions.

The Complainant stated that on the date in question she brought old staff t-shirts to work from her home. She explained that these were uniforms/tops that staff were no longer permitted to wear. She stated that, around midday, Ms Gahan asked her what the tops were. The Complainant stated that when she explained what they were, Ms Gahan became angry and began swearing at her. The Complainant stated that Ms Gahan did not instruct her to remove the tops from the premises but instead asked another member of staff to place them under the counter.

The Complainant stated that she had observed other staff engaging in similar practices previously but that she herself had never previously done so.

The Complainant completed her shift and went home. She stated that later that day she received WhatsApp messages from Mr Harkin and that communications then continued back and forth by WhatsApp.

The Complainant gave evidence that, following these exchanges, she requested a copy of her contract of employment. She stated that she was informed by Mr Harkin that she did not have a contract and that she worked under “terms of employment” which, she was told, had previously issued by email. The Complainant stated that the first time she saw a written statement of terms and conditions of employment was after her dismissal when a generic document was furnished to her union representative.

The Complainant stated that she was dismissed on 7 March 2025. She gave evidence that the dismissal letter referred to a right of appeal and that she indicated she wished to appeal the decision. However, she stated that no appeal hearing was ever arranged.

The Complainant stated that she requested to invoke the Respondent’s disciplinary procedures but that the Respondent did not revert to her in that regard. She maintained that she was not afforded fair procedures or due process prior to her dismissal.

The Complainant stated that she was never invited to a disciplinary meeting and was never furnished with witness statements or investigation materials. She stated that she now understood this to be because no written witness statements had been taken by the Respondent.

The Complainant further stated that, although the dismissal letter referred to CCTV footage, she was never shown any CCTV footage and was not afforded any opportunity to review or respond to that material prior to the decision to dismiss her employment.

Under cross-examination, it was put to the Complainant that it was not common practice for staff members to sell tops, cups or branded glasses to customers. The Complainant rejected that proposition and maintained that such conduct was common amongst staff members and that she had personally witnessed it occurring on multiple occasions. She accepted that neither of the Respondent’s owners were present when she observed those incidents.

On behalf of the Complainant, it was submitted that the Respondent failed to afford the Complainant fair procedures at every stage of the disciplinary process. The Complainant’s representative submitted that the Complainant was suspended by WhatsApp message, was never formally interviewed, was not furnished with the evidence relied upon against her, including CCTV footage, and was denied any meaningful opportunity to respond to the allegations prior to her dismissal. It was further submitted that no written witness statements or investigation notes existed and that the intended appeal process lacked independence.

In closing submissions, the Complainant’s representative submitted that the dismissal was both procedurally and substantively unfair and relied upon the principles of fair procedures and natural justice, including the principle of audi alteram partem, as reflected in S.I. No. 146/2000 and the 1977 Act.

He further submitted that no witness had observed the Complainant selling company merchandise or receiving monies from customers and that the Respondent’s conclusions were therefore based upon assumption and suspicion rather than direct evidence. It was further submitted that Mr Harkin had accepted the account provided by Ms Gahan without conducting a fair or balanced investigation and had effectively predetermined the outcome from the outset.

In that regard, reliance was placed upon a WhatsApp message sent by Mr Harkin to the Complainant prior to any investigation in which he stated: “I don’t believe you.” It was submitted that this demonstrated that the Respondent had formed a concluded view regarding the Complainant’s conduct before any proper investigation process had taken place.

The Complainant’s representative further submitted that attempts had been made by the union to engage with the Respondent to arrange both an investigation process and an appeal process, but that neither ultimately occurred.

Evidence of Stephen Harkin – Co-Owner and Director

In direct evidence Mr Harkin stated that on 22 February 2025, he received a telephone call from his wife and co-owner, Ciara Gahan, who informed him that the Complainant was selling company-branded uniforms and keeping the money. After unsuccessful calls, he contacted her via WhatsApp, where she stated that tourists had asked about old tops and that monies arising were generally treated by staff as tips. Mr Harkin stated that he suspended her that day and that over the course of the next three days he verbally questioned staff who denied selling items. He reviewed CCTV but did not show it to the Complainant. On 7 March 2025, he dismissed her for gross misconduct. In his evidence, he maintained selling company goods and retaining the monies received amounted to theft.

Mr Harkin acknowledged that the Complainant requested her contract, and he told her she worked under terms of employment which were updated annually and emailed to staff. Mr Harkin did not have a copy of the email correspondence attaching terms of employment but said they would have been emailed to the Complainant with her payslip in early February 2025.

In relation to the appeal process, Mr Harkin accepted that the dismissal letter referred to a right of appeal. He stated that he had intended to hear any appeal himself but accepted that no appeal hearing ultimately took place. He further stated that the decision to dismiss was final and that the Complainant “was not coming back.” He asserted that all holiday entitlements had been paid.

In cross-examination, Mr Harkin confirmed that Ms Gahan had contacted him in bad humour, reporting that the Complainant was attempting to sell uniform tops. He accepted that Ms Gahan never informed him that she had witnessed the Complainant selling tops or receiving monies from customers. He further accepted that no individual had reported seeing the Complainant sell any items or receive money from customers.

Following that call, Mr Harkin contacted the Complainant by WhatsApp. He accepted that nowhere in the WhatsApp exchanges did the Complainant expressly state that she had sold tops or received monies from customers. Mr Harkin acknowledged that the Complainant stated that staff generally treated monies received for such items as tips. He further accepted that he had told the Complainant, “I don’t believe you,” before any investigation had been conducted.

Mr Harkin accepted that no notes were taken during verbal discussions with staff members and that no written witness statements or investigation materials were furnished to the Complainant. He further accepted that the Respondent did not have a CCTV policy or GDPR policy in place, notwithstanding the Respondent’s reliance on CCTV footage during the disciplinary process.

In relation to the appeal process, Mr Harkin accepted that the dismissal letter referred to a right of appeal but that no appeal hearing ultimately took place. He stated that he would have heard the appeal himself but accepted that he had already decided that the Complainant would not return to work. He further accepted that the wording of the dismissal letter referring to an appeal was “bad wording” in circumstances where he had no intention of reconsidering the dismissal decision.

Evidence of Ciara Gahan – Co-Owner and Company Secretary

In her direct evidence, Ms Gahan stated that on 22 February 2025, she saw company tops laid out on the counter of the Respondent’s restaurant. She asked the Complainant why she was selling tops, as they were company property. According to Ms Gahan, the Complainant stated that the tops were old and unusable and that she intended keeping the money. Ms Gahan stated that she told the Complainant the uniforms were not hers to sell, asked her to remove them, and later removed them herself. She stated she found the situation shocking and called Mr Harkin to report that the Complainant had tried to sell company tops.

Under cross-examination, Ms Gahan acknowledged that she did not see the Complainant sell anything or receive any money. She confirmed that she did not tell Mr Harkin that she had witnessed an actual sale, only that she was upset and disappointed by the Complainant.

In making these findings, I have considered the documentation submitted by the parties, the oral evidence adduced at the hearing summarised above and the oral and written submissions made by and on behalf of the parties at the hearing.

Both parties agreed that the Complainant earned €14.00 per hour on a flexible roster, with varying hours week to week. To ensure a fair basis for awards, I have reviewed the provided pay slips and payroll documentation submitted by the parties. The total gross weekly earnings were summed and divided by the number of weeks to determine an average gross weekly wage of €316.22. This average will serve as the basis for any awards under the relevant legislation.

CA-00071119-001: Unfair Dismissals Act 1977 (as amended)

Section 6 of the 1977 Act provides the statutory framework governing this complaint.

Section 6(1) of the 1977 Act provides that a dismissal is unfair “… unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.” The burden of proof rests on the Respondent to provide evidence of the “substantial ground justifying the dismissal” of the Complainant.

Section 6(6) of the 1977 Act provides that:

“In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.”

Section 6(4) of the 1977 Act states:

“Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

…

(b) the conduct of the employee….   

Section 6(7) of the 1977 Act, which was inserted by the Unfair Dismissals (Amendment) Act 1993, expands on the issue of reasonableness.  It provides that when considering a complaint of unfair dismissal, I, as the Adjudicator Officer, may have regard -

“(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and 

“(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7(2) of this Act.”

The combined effect of the above provisions of the 1977 Act requires me to consider whether the Respondent has established substantial grounds justifying the dismissal and whether the Respondent acted reasonably, including whether fair procedures were afforded to the Complainant prior to the dismissal decision.

The dismissal of the Complainant, as a fact, is not in dispute and therefore, it is for the Respondent to establish that in the circumstances of this case the dismissal was fair. The 1977 Act requires that the employer must be able to show that fair procedures were followed and that there existed substantial grounds justifying the decision to dismiss. In The Governor and the Company of Bank of Ireland v James Reilly [2015] IEHC 241, Mr Justice Noonan elaborated on what was required by section 6 of the 1977 Act as follows:

‘It is thus clear that the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s. 6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer’s conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned – see Royal Bank of Scotland v. Lindsay UKEAT/0506/09/DM.”

It is also well established that the role of an adjudicative body is not to determine whether misconduct actually occurred, but rather to assess whether the employer formed a genuine belief, based upon reasonable grounds, following a fair investigation process.

In JVC Europe Ltd v Jerome Ponisi [2012] 23 E.L.R. 70, Charleton J. stated that “[t]he issue for the tribunal deciding the matter will be whether the circumstances proven to found the dismissal were such that a reasonable employer would have concluded that there was misconduct and that such misconduct constituted substantial grounds to justify dismissal.”

Accordingly, the question for determination is not whether I would have reached the same conclusion as the Respondent, but whether the Respondent acted reasonably in treating the matters complained of as sufficient grounds for dismissal and whether that conclusion was reached following a fair and reasonable process.

I have considered the oral and documentary evidence adduced by the parties. I note that the Respondent alleged that the Complainant engaged in misconduct by selling old staff uniforms/tops on the Respondent’s premises and retaining monies received from customers. I accept that, if established following a fair and reasonable investigation and disciplinary process, such conduct could potentially constitute serious misconduct warranting disciplinary sanction, including dismissal.

However, I am not satisfied that the Respondent conducted a fair or reasonable investigation prior to dismissing the Complainant.

The evidence before me was that the Complainant was suspended by WhatsApp on 22 February 2025. Over the course of the following days, Mr Harkin conducted informal verbal discussions with staff members. No written witness statements were taken and no contemporaneous notes were maintained. The Respondent accepted in evidence that the Complainant herself was never formally interviewed as part of any investigation process and that communication with her occurred largely through WhatsApp exchanges.

The dismissal letter dated 7 March 2025 expressly stated that the Respondent’s conclusions had been reached “after reviewing CCTV footage”. However, it is not disputed that the CCTV footage was never shown to the Complainant whether prior to the dismissal decision or at all. In circumstances where the Respondent relied upon CCTV footage in reaching the decision to dismiss, yet failed to afford the Complainant any opportunity to review, challenge or respond to that material during the disciplinary process, I did not consider it appropriate to admit or rely upon the CCTV footage in determining this complaint.

I further note that, notwithstanding the reference in the dismissal letter to the CCTV footage, the Respondent did not adduce oral evidence regarding what, if anything, the footage was said to depict beyond the assertion that the Complainant acted on her own initiative and refused to remove the items from the counter on one occasion. In those circumstances, no evidential weight can attach to the CCTV footage in determining this complaint.

I further note the Respondent’s evidence that no individual, whether directly or otherwise, witnessed the Complainant selling tops or receiving monies from customers.

I also note that, notwithstanding the WhatsApp exchanges relied upon by the Respondent, the Respondent accepted in evidence that the Complainant never expressly stated that she had sold tops or received monies from customers.

In those circumstances, I am satisfied that the Respondent reached conclusions regarding serious misconduct without direct evidence that the Complainant had sold company property or retained monies received from customers.

The principles of fair procedures require that an employee be informed of the allegations against them, be furnished with the evidence relied upon insofar as practicable, and be afforded a fair opportunity to respond before disciplinary findings are reached. Those principles are reflected in the Code of Practice on Grievance and Disciplinary Procedures, S.I. No. 146/2000.

I am satisfied that the process adopted by the Respondent fell significantly short of the standard of fairness required. In response to questions from the Adjudication Officer, the Respondent accepted in evidence that no formal disciplinary process was followed. There was no investigatory meeting with the Complainant, no disciplinary hearing, no evidence of written allegations being furnished, and no appeal process.

While the dismissal letter dated 7 March 2025 referred to a right of appeal, the Respondent accepted in evidence that no appeal hearing took place notwithstanding the Complainant's request to appeal. The Respondent stated that he had made the decision to dismiss the Complainant and that he himself was to hear any appeal. He further accepted that the decision to dismiss was final once communicated to the Complainant and stated in evidence: “I reached the decision she was not coming back,” which he stated was the reason the appeal did not proceed.

I further note that the evidence establishes that the Respondent had formed adverse conclusions regarding the Complainant’s conduct before any proper investigation process had been undertaken.

I am satisfied from this evidence that the purported appeal process was neither independent nor genuine. The evidence establishes that the Respondent had predetermined the outcome and that no meaningful opportunity to challenge the dismissal decision was afforded to the Complainant following her dismissal.

In circumstances where the Respondent relied upon CCTV evidence which was never disclosed to the Complainant, where no witness observed the Complainant selling company property or receiving monies from customers, and where the Complainant never admitted engaging in such conduct, I am not satisfied that the Respondent carried out a reasonable investigation before concluding that gross misconduct had occurred.

Having regard to all the circumstances, I find that the dismissal was both procedurally and substantively unfair within the meaning of the 1977 Act.

I accept that the Respondent may have had genuine concerns regarding the Complainant’s conduct. However, suspicion alone cannot displace the requirement for fair procedures and a reasonable investigation. The deficiencies in the Respondent’s process were not minor or technical in nature but went to the core of the fairness of the dismissal process itself. The evidence establishes a wholesale failure to afford the Complainant the protections inherent in a fair disciplinary process and the principles of natural justice.

Accordingly, I find that this complaint is well founded.

I am satisfied from the Complainant’s evidence that she made reasonable efforts to mitigate her financial loss following the termination of her employment. I accept her evidence that it took approximately eight weeks for her to secure alternative employment and that, given the nature of the allegations and the proximity of the Respondent’s premises to her home and local community, she experienced particular difficulty securing alternative employment within her local community.

CA-00071119-002: Minimum Notice and Terms of Employment Act 1973

The Complainant contended that she did not receive her statutory minimum notice entitlement or payment in lieu thereof upon the termination of her employment.

Section 4(1) of the Minimum Notice and Terms of Employment Act 1973 provides that an employer shall, in order to terminate the contract of employment of an employee who has the requisite service, give the employee the prescribed minimum period of notice. Pursuant to section 4(2)(c), an employee with not less than five years’ service but less than ten years’ service is entitled to four weeks’ notice.

I have already found that the Complainant’s dismissal was unfair. While the Respondent contended that the Complainant was summarily dismissed for gross misconduct, I am not satisfied that the Respondent has established circumstances such as would disentitle the Complainant to her statutory notice entitlement.

The evidence before me establishes that the Complainant commenced employment with the Respondent on 1 December 2019 and that her employment ended on 22 February 2025. I am therefore satisfied that the Complainant had in excess of five years’ continuous service and was accordingly entitled to four weeks’ notice pursuant to section 4(2)(c) of the 1973 Act.

I am satisfied on the evidence that the Complainant did not receive either her statutory notice entitlement or payment in lieu thereof.

Accordingly, I find that this complaint is well founded.

CA-00071119-003: Organisation of Working Time Act 1997

The Complainant claimed that she was owed 21.19 hours annual leave entitlement when her employment ended. The Respondent produced a payslip dated 7 March 2025 and payroll documentation evidencing payment in respect of accrued annual leave. Having considered the documentary evidence and the submissions of the parties, I am satisfied, on balance, that any outstanding annual leave entitlement due to the Complainant was discharged upon the cessation of her employment.

Accordingly, I find that this complaint is not well founded.

CA-00071119-004: Organisation of Working Time Act 1997

The Complainant contended that she did not receive her public holiday entitlement in respect of St. Brigid’s Day on 3 February 2025 contrary to the 1997 Act.

While the payslip relied upon by the Respondent did not separately itemise payment in respect of the public holiday entitlement, the Respondent provided an explanation in relation to the manner in which the payment was calculated and furnished payroll documentation in support of that explanation.

Having considered the documentary evidence and the submissions of the parties, I am satisfied, on balance, that the Complainant received her entitlement in respect of the public holiday concerned.

Accordingly, I find that this complaint is not well founded.

CA-00071119-005: Terms of Employment (Information) Act 1994

Section 3 of the Terms of Employment (Information) Act 1994 as amended (hereinafter referred to as “the 1994 Act”) sets out the terms of employment which an employer must provide to an employee in written form.

Section 7 of the 1994 Act provides that compensation up to a maximum of 4 weeks’ remuneration may be awarded if a complaint is deemed well founded.

The Complainant commenced employment with the Respondent on 1 December 2019 and her employment ended on 22 February 2025. She gave evidence that she was never furnished with either a contract of employment or a written statement of her terms and conditions of employment. According to the Complainant, the first occasion upon which she saw the generic terms of employment which the Respondent maintained complied with the 1994 Act was after her employment ended, when it was furnished to her union representative by the Respondent.

While the Respondent did not produce documentary evidence demonstrating compliance with the 1994 Act, Mr Harkin stated that the terms of employment attached to the Complainant’s written submissions was the Complainant’s written statement of terms and conditions of employment. While accepting that it was a generic document, he maintained that it demonstrated that the Respondent had complied with its statutory obligations.

I accept that the Respondent believed that the generic terms of employment relied upon during the hearing satisfied its obligations under the 1994 Act and that the Respondent’s evidence was that the document was updated periodically to reflect changes in legislation and increases in the minimum wage. However, having considered the evidence in its entirety, I am not satisfied that the Respondent furnished the Complainant, either at the commencement of her employment or at any stage thereafter, with a written statement complying with section 3 of the 1994 Act. In reaching this conclusion, I have had regard to the absence of documentary proof of service of such a document, the Respondent’s acceptance that the document relied upon was generic in nature, and the Complainant’s consistent evidence that she first saw the document only after the termination of her employment when it was furnished to her union representative.

I am therefore satisfied that the Respondent failed to comply with its obligations under section 3 of the 1994 Act.

Accordingly, I find that the complaint is well founded.

CA-00071119-001: Unfair Dismissals Act 1977 (as amended)

For the reasons set out above, I decide that the Complainant was unfairly dismissed from her employment with the Respondent and that this complaint is well founded. By way of redress the Complainant sought compensation.

In determining the appropriate level of compensation, I have considered the Complainant’s financial loss, her efforts to mitigate that loss and the circumstances of the dismissal. The Complainant remained unemployed for a period of approximately eight weeks. I am satisfied that the Complainant made reasonable efforts to mitigate her financial loss.

I direct the Respondent to pay the Complainant compensation in the sum of €2,529.96 gross. I am satisfied that this amount is just and equitable having regard to all of the circumstances.

CA-00071119-002: Minimum Notice and Terms of Employment Act 1973

For the reasons set out above, I decide that this complaint is well founded and I direct the Respondent to pay to the Complainant the sum of €1,264.48, representing 4 weeks’ gross pay.

CA-00071119-003: Organisation of Working Time Act 1997

For the reasons set out above, I decide that this complaint is not well founded.

CA-00071119-004: Organisation of Working Time Act 1997

For the reasons set out above, I decide that this complaint is not well founded.

CA-00071119-005: Terms of Employment (Information) Act 1994

For the reasons set out above, I decide that this complaint is well founded.

In making a decision on what compensation to award in respect of this complaint I have had regard to the Labour Court decision in the case of Beechfield Private Homecare Limited v. Megan Hayes Kelly, TED1919, wherein the Complainant claimed that her employer was in breach of the 1994 Act because there were omissions and errors in her contract of employment. In his determination, the Chairman of the Court, considered the errors and omissions to be “at the serious end of the spectrum” and awarded the maximum of four weeks’ pay in redress.

In line with the aforementioned authority of the Labour Court, I conclude that, having regard to all the circumstances, it is just and equitable to order the Respondent to pay the Complainant compensation in the amount of €1,264.48 representing four weeks’ pay for contravention of a statutory right. This award represents compensation for a contravention of the 1994 Act and is therefore not subject to statutory deductions.