UDD1760

The Adjudication Officer, in a decision dated 7^thJuly 2016, decided that the Appellant did not, at the date of her dismissal, have the requisite service in order to make a complaint under the Act and he stated that the complaint could not be proceeded with.

Preliminary Matter

The Respondent submitted that in accordance with the Act at Section 2(1) the Act does not apply to an employee who, at the date of dismissal, had less than one year’s continuous service with the employer. The Respondent submitted that the Appellant commenced employment on 29^thJuly 2014 and was dismissed on 28^thJuly 2015 and consequently could not be regarded as having one year’s service at the date of her dismissal.

The Interpretation Act, 2005 at Section 18(h) provides as follows

• 18 (h) Periods of time. Where a period of time is expressed to begin on or be reckoned from a particular day, that day shall be deemed to be included in the period and, where a period of time is expressed to end on or be reckoned to a particular day, that day shall be deemed to be included in the period;

Discussion and conclusions

The Respondent conceded before the Court that, having regard to the procedures employed in making the decision to dismiss, the dismissal of the Appellant was unfair within the meaning of the Act. In those circumstances the Court is required to consider the question of redress in accordance with the Act at Section 7.

The Respondent submitted that the Court should take account of the fact that the Appellant had, by her actions, contributed to her dismissal. The Court notes that no evidence of fair procedure or natural justice in formulating the decision to dismiss was put before the Court. The decision to dismiss was, according to the evidence of the Respondent’s manager who took the decision to dismiss, taken in response to the failure of the Appellant to carry out an instruction of the Respondent’s compliance manager and in response to her absenteeism level. No evidence was put before the Court of an attempt to hear the Appellant in relation to these matters prior to her dismissal. The Court cannot, taking account of the submissions of the parties as regards the facts of this matter, now impute to that decision a contribution by the Appellant.

The Appellant sought compensation as redress in respect of her unfair dismissal.

The Appellant has failed to provide the court with evidence and detail as regard her attempts made in accordance with the Act at section 7(2)(c) to mitigate her loss arising from the dismissal. She submitted that she did earn a total of €4,000 in the two years following her dismissal and that she, in September 2017, secured employment which remunerates her at a higher level than the employment of the Respondent.

The parties agreed that the earnings of the Appellant for the purposes of the Act prior to her dismissal can be taken as €250 per week. This equates to €13,000 per annum. The Court finds that compensation is the appropriate form of redress. The Court further finds, taking account of the absence of evidence as regards mitigation of loss and her earnings in the two years following her dismissal as submitted by her as well as the fact that she has secured employment, that compensation should be in sum of €17,000.

Determination

The Court determines that the Appellant was unfairly dismissed by the Respondent and determines that the Respondent should pay to her the sum of €17,000 in compensation.

The Court so determines

Signed on behalf of the Labour Court



Kevin Foley
19 December 2017.______________________
MNChairman



NOTE

Enquiries concerning this Determination should be addressed to Michael Neville, Court Secretary.