FULL RECOMMENDATION
SECTION 9 (1), UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : TAPASTREET LIMITED (REPRESENTED BY PETER O' BRIEN, B.L., INSTRUCTED BY PATRICK F O' REILLY & CO, SOLICITORS) - AND - JOSEPH MITCHELL (REPRESENTED BY MASON HAYES & CURRAN, SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr McCarthy |
1. An appeal of an Adjudication Officer's Decision No ADJ-00000462.
BACKGROUND:
2. The Employer appealed the Recommendation of the Adjudication Officerto the Labour Court on 12th July 2016 in accordance with Section 9(1) of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 12th January 2017. The following is the Determination of the Court:
DETERMINATION:
This is an appeal by Tapastreet Limited against the Decision of an Adjudication Officer under the Unfair Dismissals Acts 1977 – 2015 where Mr Joseph Mitchell claimed that he had been unfairly dismissed by his employer. The Adjudication Officer held that the complaint of unfair dismissal was well-founded and awarded Mr Mitchell €30,000 compensation.
For ease of reference the parties are given the same designation as they had at first instance. Hence Mr Joseph Mitchell will be referred to as “the Complainant” and Tapastreet Limited will be referred to as “the Respondent”.
Background
The Respondent is a Dublin-based technology start-up company which was founded in 2012. The founders, shareholders and executive directors were the Complainant and Mr David Johnson. Ms Kathryn Tunney and Mr Paul Kidney were non-executive directors and shareholders. Ms Tunney's husband, Mr Roddy Ryan attended all meetings as Ms Tunney's "advisor".
The Complainant was appointed as the Chief Executive Officer (CEO)
by way of a contract in writing dated 17th July 2013. At all material times, the Complainant was a member of the Board of Directors and a shareholder. As CEO the Complainant was responsible for implementing the overall business strategy as determined by the Board of Directors. He set targets for the business in terms of projected revenue growth and was responsible for the day-to-day operations of the business including such matters as hiring and managing staff, business administration including payroll, recording staff holidays and working hours, etc.
Summary of the Complainant’s Case
Mr Ger Connolly, Solicitor, Mason Hayes & Curran, Solicitors, on behalf of the Complainant, submitted that the case before the Court concerned the Complainant’s tenure as CEO and not his tenure as an executive Board Member nor as a shareholder of the Company. He contested the Respondent’s contention that the dispute in question was primarily a shareholder dispute.He also disputed the Respondent’s contention that the Complainant was dismissed on the grounds of gross misconduct. He maintained that the Complainant was never disciplined at any time during his employment and was never the subject-matter of any allegation of misconduct let alone gross misconduct. Furthermore he contended that the Complainant’s dismissal was without regard to his rights to fair procedures and natural justice.
Mr Connolly stated that the letter sent to the Complainant by the Respondent notifying him of his dismissal made no reference to “gross misconduct”. It stated:-
- “The Board of Tapastreet Ltd, at its meeting of the 16thOctober 2015, has decided to terminate your employment as CEO in Tapastreet Ltd with effect from 4pm today. We have instructed our lawyers to contact your lawyers to resolve the details pertaining to your termination".
Mr Connolly said that it is not disputed that there were disagreements between the shareholders and directors as to the future strategy of the Company and the Complainant questioned that direction as was his right as a shareholder and director. However, he contended such a dispute between the Board and its CEO does not absolve the employer of its statutory obligations when purporting to terminate the employment of an employee.
Mr Connolly disputed the Respondent’s contention that the Complainant blocked, hindered and rejected investment in the Company. He said that as a founder of the Company the Complainant wanted it to succeed.
Mr Connolly stated that the Company is a start-up company operating in a very competitive market. As with all start-up companies there are significant risks involved and investors are aware of this fact. Secondly, Mr Kidney and Ms Tunney (and her advisor, Mr Ryan) were actively involved in all decisions concerning the Respondent's business strategy from the start. He contended that the Respondent was attempting to hold the Complainant fully responsible for the Company’s perilous financial situation.
He denied the Respondent’s assertion that the Complainant sought to
liquidate the Company in order to buy it for €1. Instead the Complainant made a proposal to the Board of Management outlining a way in which the shareholder impasse could be resolved and he suggested mediation (which was supported by two investors, Enterprise Ireland and Kernel Capital), however, this was rejected.His proposal included a means by which the parties could separate in that the Complainant would start a new business with a copy of the software. This involved him resigning as a Director and selling his shareholding for €1. His proposal to liquidate the Company was shared by Mr Johnson, Director.
Mr Connolly contended that the Respondent was in breach of its own Disciplinary Procedure. The Complainant's contract of employment at Clause 13 has states that"Any matters of concern will be brought to your attention and you will be given the opportunity of giving an explanation before any decision is made as to the form of disciplinary action to be applied".He said that allegations of gross misconduct were never put to the Complainant.
He stated that the removal of the Complainant as CEO was contemplated as far back as April 2015 when a draft term sheet under "Pre-conditions" stated"Joseph Mitchell to be appointed as "Commercial Director".This was not the first time it had been suggested to the Complainant that he step down from his role. When he questioned the viability of a new business strategy, “the Channel Strategy”, at a board meeting on 21 September 2015, his future employment was an issue. A new document on the Channel Strategy was again presented unsighted to the Complainant at a board meeting on 25 September 2015 and it suggested that the Complainant should become the Chief Operations Officer. It was voted upon immediately following which Mr Kidney was appointed Chief Operations Officer with full executive responsibility thereby de facto replacing the Complainant as CEO.
At a meeting with the Chairman of the Board on 9 October 2015 the Chairman told him that his position as CEO was untenable given that he did not support the Channel Strategy at the meetings of 21 and 25 September 2015. The Complainant was presented with two options:-
- (a)Resign as CEO before 5 pm that day and be paid his six months contractual notice; or
(b)the Board of Management would commence the process of dismissing him.
The Complainant declined both options and indicated that he would not be bullied out of the Company he founded. Following this meeting and in his belief that the Chairman had no authority to propose this action, the Complainant wrote to both Enterprise Ireland and Kernel Capital on 15 October 2015, informing them of this fact. Thereafter an emergency board meeting was held on 16 October 2015 the purpose of which was to consider the appropriate executive role for the Complainant. The Board of Directors decided that day to remove the Complainant as CEO and a letter was sent to him stating:-
- "The Board of Tapastreet Ltd, at its meeting of the 16th October 2015, has decided to terminate your employment as CEO in Tapastreet Ltd with effect from 4pm today. We have instructed our lawyers to contact your lawyers to resolve the details pertaining to your termination".
Summary of the Respondent’s Case
Mr Peter O’Brien, B.L., instructed by Patrick F. O’Reilly & Co., Solicitors, on behalf of the Respondent, stated that by early 2015 it had become apparent that the business strategy pursued and implemented by the Complainant as CEO was simply not working. The Complainant had initiated and pursued a business to consumer strategy that was proving to be wholly unsuccessful and he had made forecasts for achieving revenue levels for the business which were repeatedly revised downwards and at no time were these targets ever achieved nor even came close. For example, see table below of the Complainant's projected targets and actual outcomes achieved:-
| Management Forecasts Projected Sales July 2014 Projected Sales Nov 2014 Projected Sales March 2015 Actual Sales | Q3 2014 18k 5k 1k | Q4 2014 82k 60k 3k | Q1 2015 183k 137k 1.7k 3k | Q2 2015 382k 294k 14k 4k | Q3 2015 660k 549k 64k 0 | Q4 2015 845k 845k 123k 0 |
Mr O’Brien said that the Complainant repeatedly readjusted the projected sales figures downwards and his business strategy simply did not achieve the projected forecasts. The business continued to burn through the very significant sums which had been invested both privately and publicly without any return or prospect of return.Therefore, as a result of the financial difficulties and the repeated failure of the business to meet its targets or projections, a new and radically different business development strategy was decided upon by the Board of Directors in the spring of 2015. Yet the Complainant continued to assert during this period that he was entitled to more equity.
The new business strategy was developed in April and May 2015 along with a new funding proposal which included additional capital funding by the non-executive directors.
Mr O’Brien said that the Complainant failed to take any steps to implement the new business strategy and failed to engage with the Board or the employees and he failed or to carry out his functions as CEO. He failed to nominate or agree to the appointment of a Chairperson of the Board of Directors and while he engaged outside professional business advisers he did not follow their advices. He failed to engage at work or to motivate staff whose numbers continuously fell during this period. He said that the loss of confidence by so many of the staff was of extreme concern to the Board. By September 2015 the business was teetering on the brink of failureand on 4 September 2015, without any prior discussion with other Board members, the Complainant himself tabled a resolution to put the Company into liquidation on the basis that it was dysfunctional and ineffective and he did not support the new business strategy.
On 10 September 2015 one of its major investors asked the Board of Directors to nominate a Chairperson to break the impasse at the Board. When the Complainant declined to do so the investor ultimately proposed Mr Ian Duffy as Chairman and he attended his first Board meeting on 21 September 2015. Mr. Duffy made continued efforts as Chairman to persuade the Complainant to follow the agreed Board strategy.
At the Board meeting on 25 September 2015 the new business strategy was ratified and adopted by a majority decision of the Board. However, the Complainant refused to support the new business strategy and insisted that the Company be put into liquidation. He made a subsequent proposal on 30 September 2015 to acquire the intellectual property of the Respondent via a new company to be formed by him for €l. This proposal effectively amounted to asset-stripping for his own personal benefit. This was rejected outright by the Board of Directors as being wholly contrary to the best interests of the Company.
At a meeting between the Board and the Complainant held on 9 October 2015 the Chairman described the relationship with the Complainant as dysfunctional and despite all the good things achieved by him in the Company he seemed to have significant difficulty in working with the Board. The CEO needs to be leader of the Company and he was unable to fulfil those duties. At that meeting the Complainant was presented with two options (i) to resign his position amicably with payment of six months' notice in accordance with the provisions of his contract of employment as CEO or (ii) have the Board consider and vote on whether the Complainant should be summarily dismissed by reason of gross misconduct.
The Complainant replied on 12 October 2015 by way of Solicitors' letter with an assertion that the Company would in time become a successful venture and stated his whole-hearted commitment to the business. Mr O’Brien stated that in the light of the Complainant's prior actions and expressed position, the Respondent found this extraordinary. The Board of Directors had lost confidence in his leadership as CEO and the Board of Directors voted to summarily dismiss him and this was implemented by means of a letter of dismissal dated 16th October 2015.
Mr O’Brien contended that the Complainant was fairly dismissed. He referred to Clause 13 of the Complainant's employment contract which provides that'Summary dismissal may take place in instances of what weregard as serious misconduct.'He said thatthe reasons for the Complainant’s dismissal were as follows:-
- •The Complainant 's failure to carry out his duties as CEO over a period of at least six months;
•The Complainant 's rejection of and refusal to implement the agreed business strategy of the Appellant;
•The Claimant's solicitation and acceptance of substantial additional investment in the business in Summer 2015 on the false representation that he supported the Channel Strategy;
•The Complainant 's continuing refusal to nominate or agree to a Chairperson of the Board;
•The Complainant 's expressed view that the Appellant was incapable of continuing as a going concern;
•The Complainant 's proposal to immediately liquidate the Appellant;
•The Complainant 's proposal to asset-strip the Appellant's intellectual property for his own personal benefit and to acquire same for nominal consideration;
•The reputational damage done to the Appellant by reason of the Complainant circulating his liquidation proposal to investors.
Summary of the Witness Evidence
The Complainant’s Evidence
The Complainant gave sworn evidence in which he said that he was shocked at being informed that he was dismissed for “gross misconduct”. He said that he had never been accused of gross misconduct and that this reference to “gross misconduct” was first mentioned at the hearing before the Adjudication Officer. He said that the items mentioned by the Respondent to ground his dismissal (as set out above in the Summary of the Respondent’s Position) were never brought to his attention and were not discussed at the meeting held with the Chairman on 9thOctober 2015, as contended by the Respondent.
The Complainant told the Court that at that meeting on 9thOctober 2015, which was held in Balfe’s Restaurant, the Chairman put it to him that his position was untenable as he was not prepared to support the Board of Management’s new business strategy, he had voted against the strategy and instead he was proposing to liquidate the Company and acquire its assets for €1.00.
The Complainant disputed the Respondent’s contention that he was refusing to implement the new business plan. He said that he had no faith in the plan as it did not include any revenue projections. He said that he was only been presented with the document, which was 27 pages long, at the Board of Directors’ meeting held on 25thSeptember 2105, the same day he was required to vote on the proposal. He said that as a co-founder of the Company he had a vested interest in its survival and accordingly, having consulted his legal advisers, he put forward two alternative strategies to the Board on 30thSeptember 2015. This included the setting up by him of a new company which would in tandem with the existing Company have unrestricted access to the existing code, he would resign as a Director and as an employee of the Company waiving all claims against the Company and sell his shares to a purchaser nominated by the Company for €1.00. He explained that this proposal involved the Respondent following its new business strategy while at the same time he would start up a new revenue-generating company using the Respondent’s existing code. He said that he put this concept to its major investors and suggested that if necessary the parties could engage in mediation to resolve the impasse between them. However, he said that at the one-to-one meeting on 9thOctober 2015 the Chairman put it to him that he should resign with six months’ pay in lieu of notice or be dismissed.
He told the Court that while he did not support the Channel Strategy, he had already contacted Trinity College on the programming of widgets and with Basekit for assistance on implementing it. He said that for three-and-a-half months he worked without being paid in order to get the Channel Strategy up and running.
The Complainant told the Court that he was unemployed following his dismissal on 16thOctober 2015 for a number of months. He has been employed since 11thJuly 2016 on a higher salary than he was earning with the Respondent.
Mr Ian Duffy’s Evidence
In his sworn evidence Mr Duffy said that he had been asked by the Respondent’s key investors to become Chairman of the Respondent as the Company was in crisis, there was deadlock between the Directors which could not be resolved and an outside person was needed to resolve the impasse and move the Company forward. Two of the Directors wanted to see a new business strategy for the future of the Company and two wanted to liquidate the Company. He was appointed as Chairman of the Board of Directors on 21stSeptember 2015. He said that his first task was to hear the views of the Directors, to agree a new business strategy and decide on a business focus for its future.
Mr Duffy told the Court that there was a willingness on the part of the majority of the shareholders to support the new business strategy – the Channel Strategy - and the only other proposal made on the part of the Complainant and Mr Johnson, Director, was to liquidate the Company. He said that additional funding of €100,000 was available in the event that the Channel Strategy was accepted by the Board. Mr Duffy said that the Channel Strategy had been in discussion for six months before it was presented in the 27-page document at the meeting on 25thSeptember 2105. He said that the Complainant’s refusal to adopt the Channel Strategy resulted in significant conflict especially as he wanted to liquidate the Company.
Mr Duffy said that he engaged with the Complainant on a number of occasions after his appointment and before his dismissal to try and resolve matters, however, at the one-to-one meeting on 9thOctober 2015 he put it to the Complainant that his situation had become untenable due to the fact that as a co-founder and CEO of the Company all he wanted to do was put the Company into liquidation. He described this situation as a “doomsday” situation whereby all stakeholders would lose if the Company was liquidated and it was not the duty of the Directors or Shareholders to do that. Furthermore, Mr Duffy accused the Complainant of airing the Company’s “dirty laundry” in public by writing to its major investors about the precarious financial situation the Company was in and outlining his proposal to put it into liquidation. He said that this was wholly inappropriate. These concerns coupled with the fact that as CEO he had voted against the Channel Strategy and had sought to asset-strip the Company’s intellectual property gave him, as the representative of the Board, great concern. He described the Complainant’s latter actions as opportunistic, na�ve and extremely damaging. He said that such a move would result in the creation of a competitor for the Respondent at a time when the Company was in a very precarious situation. Mr Duffy said that his job was to protect the interests of the shareholders.
Mr Duffy also said that the CEO’s insistence in attending the ICANN conference as the Respondent’s representative at the time, where he engaged in blackening the name of the Company, and engaged in a public dispute with one of the Respondent’s Directors, was a further reason to view the Complainant’s position as being untenable and required action to remove him. The Complainant insisted on attending despite been asked to go on “garden leave”. The Respondent wished to attract new contacts at the ICANN conference and therefore the Complainant’s presence was concerning.
Mr Duffy told the Court that at the Board of Management meeting held in the morning of 16thOctober 2015 the matter was discussed. At that stage the Board had not decided to terminate the Complainant’s employment but to seek an amicable solution with him. In the best interests of the Company and in order to move forward it was necessary for the Complainant to be removed from his role. Therefore, at the meeting held in the afternoon of 16thOctober 2015, the matter was raised and every effort was made by the Board to reach an amicable conclusion with the Complainant. He was asked to step down from his role as CEO, he refused and was insisting on liquidating the Company and acquiring the intellectual property in exchange for the selling of his shares for €1.00 which were worthless in any event, however, when this was unsuccessful, he was dismissed.
In cross examination, Mr Duffy accepted that he did not use the term “gross misconduct” when the Complainant was dismissed on 16thOctober 2015 nor had he outlined the reasons (cited above in the Summary of the Respondent’s Position) for the Complainant’s dismissal and he accepted that normal disciplinary procedures were not adhered to in this case. However, he said this was due to the Complainant’s failure to support the Channel Strategy; his proposal to liquidate the Company and to use its intellectual property; his refusal to accept “garden leave”; his undermining of the Company by communicating with the Respondent’s investors in the manner that he did; his attendance at the ICANN conference and his general failure as a CEO to meet the Company’s projected targets. He said that in his informal discussions with the Complainant he told him that if he continued behaving the way he was that he would have to be removed from his role as CEO. He said that at the Board of Management meeting on 16thOctober 2015 he reported to the Board on his discussions with the Complainant and informed them that in his view the Complainant’s actions had put him in an invidious position and accordingly it was justified in seeking his immediate removal.
Mr Duffy stated that in his view while mediation may have been appropriate in respect of removing the Complainant as CEO from the business, it was not appropriate regarding the new business strategy for the Company going forward as the Channel Strategy had been voted upon and approved by a majority of the Board and was supported by its major investors. This Strategy had been approved on 25thSeptember 2015 but not implemented as the CEO was not in favour of it. He said that by 16thOctober 2015 when all matters regarding the Complainant had escalated against the interests of the Company, it became clear that the Complainant had to go. The Complainant was presented with an option to either resign with six months’ pay in lieu of notice or be dismissed. He refused to resign so he was dismissed.
Conclusions of the Court
While the termination of the Complainant’s employment did not arise by mutual consent and the fact of dismissal is not in dispute, therefore, the Respondent carries the onus of showing that having regard to all the circumstances there were substantial grounds justifying the dismissal. The Respondent contends that the dismissal was justified on grounds of the Complainant’s gross misconduct.
There is no dispute that the Company was in a very precarious condition, revenue targets were seriously misjudged and not even close to be attained. It is clear to the Court that as CEO the Complainant must take ultimate responsibility for the failures of the Company. The Complainant told the Court that while he was prepared to carry out the wishes of the Board of Management he had no faith in the Channel Strategy as the proposals did not include revenue projections. Instead of implementing the new business strategy designed to ensure its survival, he sought to liquidate the Company. However, the Court notes that he had previously indicated support for the new business strategy and had taken steps to implement it, yet refused to carry out the instructions of the Board when the strategy was adopted by the Board.
The Court accepts that an employer has a right to dismiss where it is necessary to protect its business interests, however, the employee’s interests must also be considered. In reconciling these interests, an employer must act fairly and observe fair procedures. The reason for the dismissal must have been the reason in the mind of the employer at the time of the dismissal and not one substituted at a later date and that reason must provide substantial grounds for the dismissal. In his evidence the Complainant was clear that he was never accused of gross misconduct and that such an allegation was never made to him. Similarly, the Chairman stated that he never put such an allegation to the Complainant. It is clear to the Court that this allegation was first used when the complaint under the Act was being adjudicated upon at first instance.
As CEO of the Company, the Complainant’s role required a high degree of trust and confidence. Based on the evidence given whereby the Complainant intended to put the Company into liquidation and set up a competitor company using the Respondent’s intellectual property, the Court is of the view that clearly gives rise to a breakdown in that trust and confidence. These actions coupled with the Complainant’s actions in undermining the Company with its major investors at a time when they were about to invest further, leads the Court to accept that the Respondent had lost trust and confidence in the reliability of the Complainant to carry out his role as CEO.
The Court is satisfied that these actions by the Complainant could be regarded as of sufficiently grave to justify dismissalas it impacted on the business and reputational interests of the Respondent. However, while the Court accepts that such conduct goes to the heart of the relationship and was sufficiently serious as to warrant dismissal, it did not amount to gross misconduct. Gross misconduct generally presupposes intention and deliberate misconduct,Devlin v Player Wills (Ireland) LimitedUD 90/1978.
It is not for the Court to establish whether the Complainant was incompetent to carry out his role or otherwise but rather it is sufficient that the Respondent honestly believed on reasonable grounds that he was.
This approach of whether a reasonable employer would have dismissed the employee in the same circumstances was explained by Donaldson LJ inUnion of Construction Allied Trades and Technicians v Brane[1981] IRLR 224(Court of Appel for England and Wales) in the following terms: -
- It is a very sensible approach for Tribunals to put themselves into the position of the employer, informing themselves of what the employer knew at the moment, imagining themselves in that position and then asking the question, ‘Would a reasonable employer in those circumstances dismiss?’ However, Tribunals must not fall into the error of asking themselves the question; ‘Would we dismiss?’ because there is sometimes a situation in which one reasonable employer would and one would not. It is sufficient that a reasonable employer would regard the circumstances as sufficient reason for dismissing. The statute does not require the employer to satisfy the Tribunal of the rather more difficult consideration that all reasonable employers would dismiss in those circumstances”
- “It must be remembered that in all these cases there is a band of reasonableness within which one employer might reasonably take one view: another quite reasonably take a different view. One would quite reasonably dismiss the man. The other would quite reasonably keep him on. Both views may be quite reasonable. If it was quite reasonable to dismiss him, then the dismissal must be upheld as fair: even if other employers may have dismissed him”
- [T]he fairness or unfairness of dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circumstances in that line of business, would have behaved. The tribunal therefore does not decide the question whether or not, on the evidence before it, the employee should be dismissed. The decision to dismiss has been taken, and our function is to test such decision against what we consider the reasonable employer would have done and/or concluded.
Having regard to all the circumstances in the instant case, the Court accepts that the Respondent was of the view that there were substantial grounds justifying the dismissal of the Complainant where it held the view that there was a significant breakdown in trust and the Complainant was no longer able to fulfil his duties as CEO of the Company. The Court accepts that in the same circumstances a reasonable employer would have dismissed a CEO for their failure to carry out their duties where the Company’s business suffered as a result.
Fair Procedures
However, the Court must examine whether the Respondent gave due regard for the Complainant’s right to natural justice. In his evidence the Chairman accepted that normal disciplinary procedures were not adhered to. He said that he had tried to persuade the Complainant to resign and be paid a financial settlement. The Chairman was of the view that to retain the Complainant as CEO would damage the Company’s reputation and therefore when he refused to resign the Board made a decision to dismiss him. The Court notes that the Board made the decision to dismiss him on 9 October 2015 and it wrote to him on 16 October 2015 to inform him and to notify him that the Respondent’s Solicitors would be in touch with his Solicitors “to resolve the details pertaining to your termination”. However, the Respondent failed to advise the Complainant of his right to have a representative present with him at the meeting held on 9 October 2015 at which meeting he was given two options regarding the termination of his employment. This was despite the fact that the Complainant’s legal advisers had written to the Respondent on 12 October 2015 threatening High Court action against the Respondent if the Complainant was removed from his employment. The principle of the right of an employee to representation was set down by the High Court inStoskus v Goode Concrete Limited[2007] IEHC 432 and in the Supreme Court decision inAlan Burns and Another v The Governor of Castlerea Prison[2009] IESC 33. He was dismissed with immediate effect and without consideration of any alternative sanction being imposed on him. While consideration had been given to demoting him to Chief Operations Officer on 25 September 2015, no such option was available to him on 16thOctober 2015, when he was dismissed. Moreover, the Complainant was dismissed without notice and without an opportunity to appeal.
In these circumstances the Court has come to the conclusion that the decision to dismiss the Complainant was tainted with procedural unfairness. Accordingly he is entitled to succeed in his appeal.
Redress
The Complainant was unemployed from 16 October 2015 until July 2016 when he secured alternative employment on a full time basis and earning a higher salary. He said that while he was unemployed he applied for four jobs and also managed to get a small amount of consultancy work, earning him in the region of €5,000. While employed by the Respondent the Complainant was paid €70, 000 per annum.
In separate proceeding, under the Payment of Wages Act 1991, the Court has awarded the Complainant six months’ pay for the Respondent’s failure to pay the Complainant in lieu of his contractual entitlement to notice.
In all the circumstances of this case the Court considers that the appropriate redress is an award of compensation. The Court has taken account of the actual and prospective financial loss suffered by the Complainant arising from his dismissal. The Court has also taken into account, as it is required to do by Section 7(2)(b) of the Act, the extent to which the Complainant’s conduct contributed to the loss that he suffered. In that regard, the Court is satisfied that the Complainant, by his conduct, contributed to a substantial degree to the dismissal and this has been taken into account in measuring the quantum of compensation that should be awarded.
Having regard to all of these considerations the Court awards the Complainant compensation under the Act in the amount of €5,385.
Determination
For the reasons set out herein, the Respondent’s appeal is rejected and the Decision of the Adjudication Officer is substituted with this Determination.
Signed on behalf of the Labour Court
Caroline Jenkinson
CR______________________
2nd February, 2017Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.