*Zest operate five cafes.
THE OPERATOR of the Zest chain of cafes in the Midwest has been ordered to pay €24,083 compensation for the unfair dismissal of its former Bakery Manager.
At the Workplace Relations Commission (WRC), Adjudicator, Moya de Paor has found that wedding cake maker, Ann Marie Smullen was unfairly dismissed substantively and procedurally by Zest At Ltd in July 2021.
Zest At Ltd operates five cafes in Ennis, Limerick and Shannon airport and also has a food production facility at the airport.
In her findings, Ms de Paor found that Ms Smullen did not resign her position as alleged by her employer at a meeting on July 7th 2021 but was instead dismissed.
Zest At Ltd removed Ms Smullen from the payroll and sent her final pay slip including all accrued annual leave by email on July 16th 2021.
Ms Smullen – who has a degree in culinary arts specialising in pastry – was employed as Bakery Manager and was laid off with other staff members in March 2020 due to the Covid-19 pandemic.
In 2021, Ms Smullen was offered an alternative role in the ‘hot bakery’, would have no reduction in pay but her new role would not have a title.
Ms Smullen has problems with her back and wrists and did have a concern about her new role and if she would be physically able to do it.
Ms Smullen requested a meeting with MD, Ean Malone and they met in July 2021 where Financial Director, Fiona Barry was also in attendance.
In her findings, Ms de Paor accepted that Ms Smullen had no pre-planned intention of resigning prior to the July 7th meeting and the concept of ‘resignation’ was introduced by her employer.
Ms de Paor noted that MD and co-owner of the business, Ean Malone stated that it was his opinion that Ms Smullen “did not want to return to work”.
Ms de Paor stated that Mr Malone did not put this to Ms Smullen nor was there any attempt to clarify this further to the meeting.
In her findings, Ms de Paor also found that the employer did not make any effort to clarify with Ms Smullen’s understanding of the outcome of the meeting.
Ms de Paor stated that a reasonable employer would have contacted Ms Smullen to clarify the situation and confirmed the position in writing with the employee.
Ms de Paor stated that she was also satisfied that no procedures were applied to Ms Smullen’s dismissal in breach of her procedural rights.
At the meeting, Ms Smullen stated that she voiced her concerns about her back and wrist in relation to the new role but alleged that Mr Malone “fobbed it off”.
Ms Smullen alleged that Mr Malone told her that he needed someone for the hot bakery and if she didn’t take the job that she would be reported to the Dept of Social Welfare.
Ms Smullen – who operates her own wedding cake and occasion cake business – stated that she did not use the word ‘resign’ at the meeting.
In evidence, Mr Malone denied that he threatened to report Ms Smullen to the Dept of Social Welfare but stated that that he made a statement of fact to the effect that if an employee refused to take an alternative role, it was in the media that an employer was obliged to report such an employee to the Dept of Social Welfare.
Mr Malone stated that Ms Smullen said in reply on two occasions at the meeting ’that’s a pity’ which he stated he interpreted that she was agreeing to resign her position.
Mr Malone said that he thought the alternative role offered to Ms Smullen was suitable and that he was not “asking her to drive a truck”.
