Complainant

Respondent

Parties

Amie  Herriott

TLC Jewellery Ltd  t/a One Dame Lane

Representatives

Self- Represented

Kelvin Hyland of Peninsula Business Services Ireland

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-00073863-001

28/07/2025

The issue in contention concerns an alleged Unfair Dismissal of a Jewellery Store Employee by a Retail Jewellery Store. The employment began on the 11th April 2023 and ended (following a month’s notice) on the 29th May 2025.

The rate of pay was stated by the Complainant to have been €18:00 per hour for a 30-hour week. Commission was an extra determined by agreement with the Employer.

The Complainant was self-represented. She gave an Oral Testimony supported by an extensive and detailed Written Submission.

In essence her complaint was that she had been Dismissed without any proper procedures, prior warnings or any opportunities for Employer/Employee discussions. No Appeal took place following the Dismissal. The Dismissal communication was via a WhatsApp message.     

Throughout the employment almost all communications were via Voice Mail/Memos or WhatsApp which inevitably led to misunderstandings. In Cross Examination and in a post hearing opportunity to comment on a late Respondent Submission, issues regarding her private Jewellery business were raised.

The private business was very small in scale (almost a Hobby) and could never be seen as a competitor to the Respondent. Private Pieces for Sale, displayed in the Respondent Retail business, afforded additional opportunities for Respondent profit and never exceeded anything other than small numbers 10-15 approximately. 

Issues with time keeping were discussed and explained as quite often agreed with the Respondent. It was stated that an atmosphere of flexibility had always existed. It was well known that the Complainant had childcare issues especially regarding Creche Opening/Closing Hours.

The Complainant’s proposed relocation to Waterford was, in the Complainant’s view, not relevant to the Unfair Dismissal case.

In summary and supported by significant case law Precedents from both the WRC and the Superior Courts  ( Bank of Ireland v Reilly [2015]IEHC 241, Mooney v An Post[1998]4 IR288 and Frizell V New Ross Credit Union [1977] IEHC 137) being landmark Supreme Court and High Court decisions the Complainant argued that ,even irrespective of any (denied) issues with the Respondent , absolutely no Employment Procedures were followed . SI 146 of 2000 was referred to Statutory Code of Practice on Grievance and Disciplinary Procedures. This was no where to be found in the Respondent case. Accordingly, the Dismissal was totally procedurally Unfair.

Significant redress was requested.

The Respondent was represented by Mr Hyland of Peninsula Business Services. A Written Submission was submitted, and a significant Oral Testimony was given by the Business Principal, Ms K, supported in evidence by a number of more junior staff.

In essence the Respondent case was that the relationship, initially very productive, had broken down over 5 issues-- firstly and most significantly an issue of complete non predictable Availability/ Short Notice changes to Rosters /Daily Attendance times. This was the major source of the Respondent issues with the Complainant. Lesser but also critical issues were a lack of Work Accuracy with Customer orders, On Line queries/mistakes & incomplete follow up, lack of proper interactions with fellow Staff members and an ongoing “Boundary” issue with her own private jewellery activities. Witness evidence from other Staff members, corroborating these points was cited.

An issue with the “flexible” formulation of Salary Statement for a Mortgage application was also referred to.

Eventually the Principal, Ms K, sent a lengthy WhatsApp message on or about the 30th April 2025 setting out her concerns and stating that it was “Time to bring your role at the business to a close”. In her Oral Testimony the Principal, Ms K, emphasised how personally hard this decision had been to take. She personally and sincerely liked the Complainant and wished her well.

However, Ms K was running a small business and could not constantly accommodate the availability/non availability, often at extremely short notice, which coupled with the other problematic issues of the Complainant made the formal Employment Relationship impossible to continue. A month’s notice was given. It was her view that the Complainant had accepted this situation and had left with no ill will. In this context the question of an Appeal had not arisen.

3:1     The Law. – Natural Justice

In an Unfair Dismissal situation, the guiding principle has to be that of Natural Justice.

In Frizelle v New Ross Credit Union Ltd, [ 1997] IEHC 137 Justice Flood stated that where a question of Unfair Dismissal is in issue, there are certain matters which must be established to support the decision to terminate employment for misconduct:

“1.

The complaint must be a bona fide complaint unrelated to any other agenda of the Complainant.

2.

Where the Complainant is a person or body of intermediate authority, it should state the complaint, factually, clearly and fairly without any innuendo or hidden inference or conclusion.

3.

The employee should be interviewed and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment.

4.

The decision of the deciding authority should be based on the balance of probabilities flowing from factual evidence and in the light of the explanation offered.

5.

The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.

Put very simply, principles of natural justice must be unequivocally applied.”

More recently SI 146 of 2000 – Code of Practice on Grievance and Disciplinary Procedures has codified this Natural Justice principle into a set of guidelines. While not absolute, all Legal Precedents from the higher Civil Courts, the Labour Court and the EAT & WRC place considerable emphasis on them.

It would be fair to say that a Dismissal from Employment without any formal employment procedures would only arise in the most extreme of circumstances – serious violence, grievous personal or sexual /racial incidents or major theft being common examples.

3:2  The Role of the Adjudicator

There is extensive legal Authority regarding the principle that the Tribunal or the Adjudicator is not to substitute themselves for Employer and effectively engage in a de facto rerunning of a Disciplinary case.

The case of Foley v Post Office [2000] ICR 1283 was referenced in the Irish High Court by McGovern J in the case of Doyle v Asilo Commercial Limited [2008] IEHC 445

“It is not the function of the Courts to substitute itself for the employer and to make its own decision on the merits of the employer’s decision to dismiss.

As Mumery LJ stated in Foley v The Post Office at page 11295:

“ The employer, not the tribunal is the proper person to conduct the investigation into alleged misconduct. The function of the tribunal is to decide whether the investigation is reasonable in the circumstances and whether the decision to dismiss, in the light of the results of that investigation, is a reasonable response.”

The point is developed further in the Court of Appeal decision in the Iceland Frozen Foods v Jones [1983] ICR 17 where the “Band of Reasonableness” principle was elaborated upon at length.

Accordingly in the case in hand the key question is whether or not natural justice was followed in all procedural matters and the ultimate decision to dismiss was in the “Band of Reasonableness”.

The former Employment Appeals Tribunal usefully summarised its approach to dismissals for “conduct” and the question of “Reasonableness” as set out in Hennessy v Read and Write Shop Ltd. UD192/1978.

The Tribunal applies the test of “reasonableness” to

1.       the nature and extent of the investigation carried out by the Respondent prior to the decision to dismiss the claimant, and,

2.       whether the procedures adopted were fair and reasonable and

3.       the reasonableness of the conclusion arrived at by the Respondent.

However, all case rest on their own evidence and factual matrix and I will now examine these.

3:3        Consideration of the Evidence presented.

Accordingly, in the case in hand the key question is whether or not natural justice was followed in all procedural matters and the ultimate decision to dismiss was in the “Band of Reasonableness”.

3:4:       This case was difficult- it was based on background of a previously good personal relationship between two impressive Witnesses at the Hearing. Both Parties were under sworn Oath/Affirmation.

The Respondent is a significant entrepreneur in the Jewellery sector both at a Retail and an e-mail presence. She emphasised that she was a small business owner in a difficult market.

The Complainant is clearly an equally dynamic figure, a USA national in Ireland, balancing childcare with a Partner in what appeared to be an almost “Start Up” situation and simultaneously trying to develop a “craft” style jewellery business.

However, and unfortunately for the Respondent she was an employer with a number of staff employed. This carries possible Employment Procedural pitfalls for all Employers, irrespective of size of the business. It was clear that serious irritation with the Complainant had developed on the Respondent side. Advice might usefully have been sought, earlier, as to how to handle this in a Procedurally correct manner (Documented Warnings, Investigation Meetings, Disciplinary Meetings, Rights of Representation and a Final Appeal). However, none of these steps were in evidence and a Dismissal by WhatsApp, while not in itself a major fault, indicated a somewhat “Laisse Faire” approach to Employment Law.

Accordingly, the only possible conclusion for an Adjudicator is that the procedural shortcomings, alone, establishes in Law, that an Unfair Dismissal took place. 

Unfair Dismissal, Procedural issues.