FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 9 (1), UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : PULP RECYCLING LTD (REPRESENTED BY MANAGEMENT SUPPORT SERVICES (IRELAND) LTD) - AND - WIKTOR OCWIEJA (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Foley Employer Member: Mr Marie Worker Member: Mr McCarthy |
1. Appeal of Rights Commissioner's Recommendation R-154324-UD-15/EH.
BACKGROUND:
2. The Worker appealed the Recommendation of the Rights Commissioner to the Labour Court in accordance with Section 9(1) of the Unfair Dismissals Act, 1977 to 2015 on the 2nd November, 2015. A Labour Court hearing took place on 28th January, 2016. The following is the Determination of the Court:
DETERMINATION:
This is an appeal by Mr Wictor Ocwieja (hereafter referred to as the Appellant) against the Recommendation of a Rights Commissioner in a claim that he had been unfairly dismissed by Pulp Recycling Ltd (hereafter referred to as the Respondent). In his claim the Appellant had sought redress in accordance with the terms of the Unfair Dismissals Acts, 1977 to 2015 (hereafter referred to as the Act).
In a Recommendation dated 14thAugust 2015 the Rights Commissioner found that the Appellant had been unfairly dismissed. The Rights Commissioner found that the Appellant had failed 100% to mitigate his financial loss and recommended in accordance with Section 7(1)(c)(ii) of the Act as amended that the Respondent pay to the Appellant a sum of €1,000 in compensation.
Background
The Appellant commenced employment with the Respondent on 2ndDecember 2013. The Respondent dismissed the Appellant with notice on 26thNovember 2014.
The Respondent issued a verbal warning to the Appellant at a meeting on 11thNovember2014. The warning related to what the Respondent considered to be an issue as regards absenteeism. Following two further incidents of absenteeism the Respondent dismissed the Appellant on 26thNovember.
Position of the Parties
The parties accepted before the Court that the dismissal of the Appellant was unfair.
Position of the Respondent
The Respondent in their written submission outlined to the Court a series of engagements between the parties subsequent to the dismissal on 26thNovember 2014 culminating in a written claim from the Appellant on 5thMarch 2015 seeking re-instatement in his position with the Respondent with effect from the date of his dismissal. The Respondent set out to the Court the detail of a written confirmation by the Respondent to the Appellant on 12thMarch 2015 of a willingness to re-instate the appellant with effect from the date of his dismissal.
Position of the Appellant
The Appellant set out to the Court the detail of a series of engagements between the parties subsequent to the dismissal on 26thNovember 2014 culminating in March 2015. The Appellant confirmed to the Court that redress in the form of re-instatement was sought from the Respondent in written correspondence on 5thMarch 2015. The Appellant stated that in the period between 5thMarch 2015 and 12thMarch 2015 he had lost trust and confidence in the Respondent. The Appellant confirmed that he had no engagement with the Respondent between 5thMarch 2015 and 12thMarch 2015. The Appellant confirmed to the Court that he refused an offer of re-instatement made by the employer on 12thMarch 2015. The Appellant claimed compensation in respect of financial loss arising from his dismissal in the amount of ten month’s pay.
Conclusions
Having regard to all the circumstances of this case the Court finds that the Respondent’s dismissal of the Appellant was unfair. In accordance therefore with Section 7 (1) of the Act the Court is required to determine the appropriate redress.
The Act provides at Section 7(2) as follows:
7(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 was 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, and
(d) the extent (if any) of the compliance or failure to comply by the employer or employee with any procedure of the kind referred to in section 14 (3) of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister.
In this case the employer, in offering to reinstate the Appellant, created the opportunity for the Appellant to mitigate entirely the financial loss suffered as a result of his dismissal. The Appellant chose not to avail of the opportunity to so mitigate his financial loss.
In all of those circumstances therefore the Court, finds that the Appellant was 100% responsible for the financial loss suffered by him as a result of his dismissal.
The Court finds therefore, in accordance with Sections 7(2)(b) and (c) of the Act, that compensation to the Appellant in respect of financial loss suffered as a result of his dismissal is not appropriate. Compensation therefore arises under Section 7 (c)(ii) of the Act as amended and the Court finds that the Respondent should pay compensation to the Appellant in the amount of €1,300.
Determination
The Court finds that the dismissal of the Appellant on 26thNovember 2014 was unfair. The Court recommends that the Respondent pay to the Appellant the amount of €1,300 in compensation for his unfair dismissal. The Recommendation of the Rights Commissioner is varied to that degree.
Signed on behalf of the Labour Court
Kevin Foley
8th February 2016______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.