UDD161

FULL RECOMMENDATION

UD/15/3

DETERMINATIONNO.UDD161

r-154008-ud-15/MH

INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 9 (1), UNFAIR DISMISSAL ACTS, 1977 TO 2015

PARTIES :

SOUTHSIDE MOTOR FACTORS LTD
(REPRESENTED BY SOUTHSIDE MOTOR FACTORS LTD)

- AND -

KARL HARMON

DIVISION :

Chairman: Mr Duffy
Employer Member: Ms Doyle
Worker Member: Ms Tanham

SUBJECT:
1. Appeal of a Rights Commissioner's Recommendation No. r-154008-UD-15.

BACKGROUND:

2. The Worker appealed the Recommendation of the Rights Commissioner to the Labour Court on 28th October, 2015 in accordance with Section 9(1) of the Unfair Dismissal Acts, 1977 to 2015. The following is the Court's Determination:

DETERMINATION:

This is an appeal by Karl Harmon against the Recommendation of a Rights Commissioner / Adjudication Officer in his claim of unfair dismissal against his former employer, Southside Motor Factors Limited.

The claim is taken under the Unfair Dismissals Act 1977 -2015 (the Act)

In this Determination Mr Harmon is referred to as the Complainant and Southside Motor Factors Limited is referred to as the Respondent.

Background
The Rights Commissioner / Adjudication Officer found that the Complainant was unfairly dismissed. He found that the Complainant was certified as unfit for work due to illness for five months following his dismissal, after which he obtained alternative employment at a somewhat lesser rate of pay. The Rights Commissioner / Adjudication Officer measured the Complainant’s financial loss attributable to the dismissal at €3,400 and awarded him compensation in that amount.

The Complainant appealed against the Recommendation, contending that the amount awarded was inadequate. The Respondent did not cross-appeal.

The Complainant was employed by the Respondent from 1^stMay 2009 until his employment was terminated on 30^thDecember 2014. He was paid €463.60 for a 40 hour week. The Respondent did not take issue with the conclusions reached by the Rights Commissioner / Adjudication Officer, either in respect of the finding of unfair dismissal or as to the quantum of the compensation awarded.

Basis for the appeal
The only issue for determination in this appeal is whether the compensation awarded to the Complainant is adequate in all the circumstances.

The Complainant accepts that he was unavailable for work for an extended period after the dismissal. When he recovered from his illness he found alternative employment. The Court was told by the Complainant’s representative that the appeal was taken because of the manner in which the Complainant was treated by the Respondent and because of allegations that has been levelled against the Complainant by the Respondent in the course of defending the claim. The Complainant does not contend that the compensation awarded was less than the economic loss that he suffered in consequence of the dismissal.

Measuring Compensation
Section 7(1)(c) of the Act, (as amended by s.6(a) of the Unfair Dismissals (Amendment) Act 1993 ) provides: -

- (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances, or
  (ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances,
and the reference in the foregoing paragraphs to an employer shall be construed, in a case where the ownership of the business of the employer changes after the dismissal, as references to the person who, by virtue of the change, becomes entitled to such ownership.

Section 7(2) of the Act provides: -

(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—
- (a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,
  (b) the extent (if any) to which the said financial loss attributable to an action, omission or conduct by or on behalf of the employee,
  (c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid,
  (d) 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 subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,
  (e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, and
  (f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.

It is clear from the foregoing that an award of compensation for unfair dismissal is to make reparation for financial loss actually incurred in consequence of the dismissal. There is no provision for including an amount intended as punitive or exemplary compensation. In this case the Complainant has grounded his appeal on his belief that additional compensation should be awarded because of what he regards as unfair treatment of him by the Respondent before the dismissal, the manner of the dismissal and the manner in which the Respondent defended the claim. The Respondent strongly controverts the Complainant's claims concerning his treatment in respect to these matters but without prejudice to its position in that regard submitted that these are not matters (even if established) that could allow the Court to award compensation in an amount that goes beyond the financial loss attributable to the dismissal.

The Court accepts that the Respondent’s submissions on that point are correct in law.

Conclusion
For the foregoing reasons the Court is satisfied that the conclusions reached by the Rights Commissioner are correct and that his Recommendation ought to be affirmed.

The appeal is disallowed and Recommendation of the Rights Commissioner is affirmed.

Signed on behalf of the Labour Court

Kevin Duffy
17th February, 2016______________________
CCChairman

NOTE

Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary.