FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 9 (1), UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : STADA PRODUCTION IRELAND LTD T/A SUIR PHARMA IRELAND (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - IMELDA KELLY (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Hayes Employer Member: Mr Marie Worker Member: Ms O'Donnell |
1. Appeal Of Adjudication Officer's Recommendation No. R-152631-UD/JT.
BACKGROUND:
2. The Worker appealed the Recommendation of theAdjudication Officerto the Labour Court on 1st December, 2015 in accordance with Section 9(1) of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 25th May, 2015. The Employer was not present and was not represented at the hearing. The following is the Determination of the Court:
DETERMINATION:
This is an appeal under section 9(1) of the Unfair Dismissals Act 1977 to 2015 by Ms Imelda Kelly (The Complainant) against a decision of the Adjudication Officer dated 12 November reference number 2015 r-152631-ud-JT. The Adjudication Officer decided that Stada Production Ireland Ltd t/a Suir Pharma Ireland had not unfairly dismissed the Complainant. The Complainant filed her appeal with the Labour Court on 1 December 2015. The case came on for hearing before the Court on 10 May 2016. The matter was adjourned at the Respondent’s request. The case finally came on for hearing on 24 May 2016.
When the matter was called the complainant moved her appeal. The respondent was neither present nor represented at the hearing. Accordingly the respondent offered no evidence to the Court justifying its decision to dismiss the Complainant from her employment.
- Section 6(1) of the Act states
6.—(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.
As there were no grounds justifying the dismissal were outlined to the Court in accordance with section 6(1) of the Act the dismissal is deemed to be unfair.
Section 7 of the Act states
- 7.—(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances:
re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or
re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or
(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 undersection 17of 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 references 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.
(1A) In relation to a case falling within section 6(2) the reference in subsection (1)(c)(i) to 104 weeks has effect as if it were a reference to 260 weeks.
(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,
(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) ofsection 14of 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.
(2A) In calculating financial loss for the purposes of subsection (1), payments to the employee—
(a) under the Social Welfare Acts, 1981 to 1993, in respect of any period following the dismissal concerned, or
(b) under the Income Tax Acts arising by reason of the dismissal,
shall be disregarded.]
Having heard from the Employee the Court in accordance with the provisions of Section 7 above awards the Complainant compensation in the sum of €15,000 for the infringement of her rights under the Act.
The decision of the Adjudication Officer is set aside.
The Court so determines.
Signed on behalf of the Labour Court
Brendan Hayes
13th June 2016______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.