ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00005813

Complaint(s):

Date of Adjudication Hearing: 24/05/2018

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015, Section 8 of the Unfair Dismissals Acts, 1977 - 2015, and Section 13 of the Industrial Relations Acts 1969,following the referral of the complaint and dispute to me by the Director General, I inquired into the complaint and dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint and dispute.

Background:

The Complainant was employed as a Generative Operative from the 21st August 2015 until the 9th September 2016. He was paid €500 per week. The Complainant maintained he was unfairly dismissed after raising complaints of bullying and ill treatment during his employment. The Complainant submitted that he received an email from the Respondent on the 9th September 2016 terminating his employment with immediate effect. The Complainant claimed he was unfairly dismissed and was seeking compensation for the alleged unfair dismissal and future loss of earnings. The Complainant also raised a complaint under the Industrial Relations Act regarding the alleged handling of his bullying complaint.

Summary of Respondent’s Case:

The Respondent acknowledged that the Complainant was employed from the 21st August 2015 as a full-time member of its maintenance yard staff and as a winter services driver. The Respondent submitted that the Complainant was not dismissed but resigned from his employment. The Respondent maintained a disciplinary process was carried out after the date of the Complainant’s resignation with regard to complaints the Complainant had raised in relation to the alleged bullying behaviour.

The Respondent advised that it was in receipt of a formal notification of a compliant made by the Complainant to PIAB where the Complainant is seeking compensation from the Respondent in relation to a personal injury in relation to the alleged bullying. The Respondent maintains that the Complainant is claiming for loss of earnings for the same period in both sets of Proceedings and this creates a potential for double recovery.

The Respondent submitted that the two claims are inextricably linked and that therefore it is an appropriate case for the High Court intervention by way of case management which should be sought in order to identify precisely the case to be made before the WRC, and that which may ultimately come before the High Court. The Respondent was therefore seeking an adjournment of the hearing for the purposes of seeking directions from the High Court.

CA-00007801-001Complaint under Section 8 of the Unfair Dismissals Act, 1977

The Respondent advised that the Complainant had been a childhood friend of its Service Manager and following a recommendation by the Service Manager the Respondent employed the Complainant on 21st August 2015 under a Job Plus Incentive scheme. The Respondent maintained that prior to the Complainant’s appointment he had been on long term unemployment.

The Respondent submitted that due to the personal relationship between the Complainant and the Service Manager the Complainant was promoted to a supervisor in early October. It maintained that a core component of this position involved receiving calls and preparing drivers for road gritting runs on the nights when the Service Manager was not working.

The Respondent submitted that a few months into the Complainant’s employment a number of conduct issues arose with the Complainant. These included the Complainant continually leaving tools lying around the yard which caused damage and breakage at a cost to the company of around €500. The Respondent submitted that the Complainant received a number of verbal warnings in relation to this conduct.

The Respondent also maintained that Complainant regularly took private conversations on his mobile phone during working hours, amounting to hundreds of such messages. The Complainant was also verbally warned in relation to this conduct.

The Respondent further alleged that the Complainant failed to wash down his truck at the end of each week and this neglect caused rust to the engine and the bodywork at a cost of €3,000 to the Respondent before the truck could be put back into service.

The Respondent submitted that on the 27th November 2015 the Complainant was on call as supervisor, and a call came through to the Service Manager for work to be completed from a client. The Service Manager submitted that he contacted the Complainant, but the Complainant was unable to do the run because he was intoxicated. As a consequence, the Service Manager had to call a colleague to drive the run while the Complainant sat in the passenger seat and gave directions. It was submitted that despite this amounting to gross misconduct the Service Manager requested that the Complainant be given another chance, and this was acceded to by the Managing Director.

It was submitted that on the 3rd December 2015 the Complainant was again intoxicated on duty and called a colleague to drive the run. The Respondent submitted that the Complainant forged dockets on the system in order to create the impression he had also completed the run that evening. This issue only became known to the Respondent after the Complainant had left in September 2016.

The Respondent submitted that on the 24th February 2016 the Complainant caused €2,882 worth of damage to public property while on a run in a local hospital due to dangerous and reckless driving.

The Respondent maintained that between 26th February 2016 and an incident on the 7th September 2016 the Complainant’s work on all fronts, including his attendance on duties, dis-improved. The Respondent maintained this was despite many talks and warnings and advice provided by the Service Manager to the Complainant. The Respondent contended there were many incidents of additional costs and negligence associated with the Complainant’s vehicle and his maintenance work with other vehicles. It further maintained that for most of the period that the Complainant was working his phone was constantly being called by his partner, and these calls seemed to upset him.

The Service Manager outlined in his evidence that there was much banter during work as they were all close friends. Jokes and banter between the workers, and between the Complainant and the Service Manager was typical, and where the Complainant would have engaged in that banter as much as anyone else. It was a small business where staff members were also active in a motorcycle club, and this demonstrated the friendship that existed. The Respondent submitted that to fill in time during the quieter periods employees, some of whom were members of a motorbike club, would polish their own motorcycles.

The Respondent submitted that the Managing Director was actively involved in developing the business with product development in Europe and leading up to the time of the alleged incidents in September 2016 he would have been away on business, and the Service Manager would have been successfully managing the maintenance side of the work.

The Respondent submitted that on the 7th September 2016 when the Complainant was asked by the Service Manager to clean the rust out of an exhaust pipe that the Complainant grabbed a hammer and hammered the exhaust out of all recognition. As the Service Manager became concerned about what he had witnessed, and about allowing the Complainant to continue to drive for the company, he asked the Complainant to get a doctor’s certificate confirming that he was safe to drive. The Respondent submitted that at this stage the Complainant lost his temper, threatened the Service Manager and told the Service Manager he could shove my job where the sun don’t shine and where the Complainant left the workplace. The Service Manager maintained the Complainant had resigned at this stage, and also advised that later that day the Complainant’s emails to the Managing Director would confirm he had left.

The Service Manager advised the Complainant that he was not being fired but that he was leaving at his own accord and maintained this was repeated three times to the Complainant; however, the Complainant left on his motorbike at speed. The Service Manager stated that he discovered a half empty can of Carlsberg in the driver’s cockpit of the van that the Complainant had taken home with him the previous night.

In his evidence the Managing Director advised he was on the phone to a client when he overheard shouting between the Complainant ad the Service Manager. He had asked the Office Manager to review what had happened. This report was produced by the Office Manager having met with the Service Manager who was accompanied by another member of staff.

The Respondent submitted that later that day (7th September 2016) the Complainant emailed the Managing Director and made a complaint that the Service Manager was bullying him. The Respondent advised this was the first time a complaint had been raised of such nature by the Complainant.

The Respondent submitted that on the 8th September 2016 the Complainant reported in sick. On the 9th September 2016 the Respondent convened a meeting with the Service Manager and the Complainant. Notes of this meeting submitted at the hearing indicate this meeting was a Disciplinary Meeting. At this meeting a list of the aforementioned performance issues was put to the Complainant by the Service Manager. The Complainant left the meeting before it had concluded. The Respondent advised that having heard both parties it was considered the Complainant was guilty of gross misconduct. The Respondent maintained that without being aware that the Complainant had already resigned his position it purported to summarily dismiss the Complainant and advised the Complainant it was offering him another position of Winter Services Driver for the coming season.   The Respondent maintained that it therefore did not dismiss the Complainant.

The Respondent asserted that the Complainant resigned from his position on the 7th September 2016 by communicating this orally to the Service Manager and that his resignation became effective at that point. In this regard the Respondent referred to the juris prudence of Horwood V Lincolnshire County Council UK EAT/0462/11. The Respondent maintained there was no dismissal and therefore there was no unfair dismissal.

Notwithstanding, the Respondent submitted that if the Adjudication Officer was minded to find that the Complainant was dismissed that such dismissal was justified by substantial grounds mainly repeated conduct amounting to gross misconduct, and a decision to dismiss would therefore not be unfair. The Respondent maintained at the investigation meeting of 9th September 2016 the Complainant had admitted to each incident of conduct amounting to gross misconduct. It advised that given these admissions the Respondent was entitled to find within the same meeting that the conduct amounted to gross misconduct and that the appropriate sanction was summary dismissal. The Managing Director in his evidence acknowledged that no specific disciplinary procedure was adhered to prior to the decision of 9th September 2016. The Respondent acknowledged that a more fulsome procedure would have been preferable but nonetheless submitted that the procedure actually followed was, in the circumstances, within the band of reasonable responses open to a reasonable employer. The complaints of bullying behaviour made by the Complainant were not dealt with separately or investigated.

Whilst Respondent contended there was no unfair dismissal, the Respondent submitted with regard to mitigation for any loss of earnings of the Complainant if he was deemed to be unfairly dismissed, that the Complainant has been certified as medically unfit to work since the date of his employment termination. Therefore, it argued the Complainant has not suffered any financial loss. The Respondent further denied that it’s conduct in any way contributed to the Complainant’s unfitness for work. It advised there was very little work activity during the period where he alleged he was being bullied as the summer is the quietest time of the year for the business and that the area worked in by the Complainant was very stress free. The Respondent advised that the Complainant’s main work was over the winter months where it related to de-icing the roadways.

At the hearing within the Respondent advised that on the 17th September 2016 the Complainant emailed a client of the Respondent and alleged that the Respondent’s drivers were not qualified to perform their jobs and that the vehicles were not properly maintained.

The Respondent also requested that in the event that any award was to be considered that the Adjudication Officer would have regard to Section 7(2) of the Unfair Dismissals Act 1977, to the extent to which the conduct of the Complainant contributed to the dismissal. The Respondent submitted that even if there was a dismissal, and even if it was procedurally unfair (which it denied), the Complainant was guilty of repeated acts of gross misconduct and a as such a summary dismissal was an appropriate sanction.

CA-00007801-002 Complaint under Section 13 of the Industrial Relations Act, 1969

In response to the complaint under the Industrial Relations Act, the Respondent advised that it did not volunteer to participate in this complaint and accordingly it was not agreeable to engage in dealing with the dispute under the Industrial Relations Act.

Complainant’s Submission.

CA-00007801-001Complaint under Section 8 of the Unfair Dismissals Act, 1977

The Complainant advised that he took up employment with the Respondent as a General Operative in August 2015. He maintained he was subject to bullying behaviour and ill treatment during his employment with the Respondent. The Complainant provided evidence of a number of incidents where such behaviour had taken place. This evidence included photographs, Facebook postings and a video that was posted on Facebook where the Complainant was working under a vehicle and the Service Manager came up with a fire extinguisher and turned the fire extinguisher on when the Complainant was under the car.

In general, the Complainant presented a scenario where the workplace was a place where he was constantly subject to slagging off and dismissive behaviour from the Service Manager and some of his colleagues. This included being blamed by the Services Manager for not fulfilling duties such as ordering diesel which were in fact the duties of the Services Manager and where the Service Manager would have indicated he had spoken to the Managing Director so that Complainant would not get into trouble; references by from the Services Manager in relation to the Complainant’s mental health and asking the Complainant if he had taken his tablets and whether this was the reason for the mistakes; where the Services Manager had been overheard by the Complainant saying to the Managing Director that the way to treat the Complainant was to knock him down so that he would be built up stronger than before; a fear that he would lose his job if a complaint was made as the Services Manager, whose son had been a director of the company for a time, referred to the business as his son’s company; being told to go home and take Prozac; being told where the gate was if he raised concerns about the hours driving he may have to do; having a fire extinguisher let off by the Service Manager when the Complainant was working under a car despite the fact the Service Manager had been hospitalised some years earlier due to a fire extinguisher accident; and having perfume sprayed on him by the Services Manager and being told let’s see how you explain that when you get home; and that the Service Manager would have referred to him as his b**ch. The Complainant maintained that he was also experiencing mental health issues and was on medication for same, and that the Service Manager and others in the workplace would have been aware of this. Comments would have also been made by the Service Manager to the Complainant about his medication during the course of his employment.

The Complainant advised that the incident regarding the fire extinguisher was posted on Facebook and it became known to members of a motor cycle club that he, the Service Manager and other staff were members of. He advised that when the President of the club witnessed the video that the Service Manager was expelled from the club as a consequence of the behaviour.

The Complainant advised that he was subject to further slagging from the Service Manager following a dispute over a power washer on the 7th of September 2016, and where the Service Manager asked the Complainant to provide medical certification for his fitness to drive. This was upsetting for the Complainant as the Service Manager would have been aware of the Complainant’s mental health issues, and this is what led to an argument between himself and the Service Manager. As a consequence of this the Complainant maintained that he could take no more of the behaviour and left his workplace that day. He advised that on the 7th September 2016 he made a formal complaint to the Managing Director, in two emails, alleging the bullying against the Service Manager, where in the first email the Complainant refers to matters having gone too far this time. In the second email the Complainant advised the Service Manager took it out on the Complainant and the Complainant finished the email by saying he loved the job and that he should not have to put up with what he had been putting up with from the Service Manager. It was not the intention of the Complainant to leave his job, but he left his work that day and took a sick day the following day.

On the 8th September 2018 the Complainant advised he received an email from the Managing Director asking that he attend the Respondent’s offices on the 9th September 2016. The Complainant maintained that when he arrived at the meeting on the 9th of September 2017 which was also attended by the Service Manager and the Managing Director, he was presented with a theretofore unseen list of grievances against him. He maintained that these complaints were false and had not been put to him before the meeting of the 9th September 2017. He maintained they were a reaction by the Service Manager to his complaint of the bullying behaviour.

The Complainant advised he was not afforded any fair procedures at this meeting and was not given an opportunity to defend himself. As a consequence, he left the meeting. He advised that he received an email from the Respondent on the same date terminating his employment with immediate effect. The email stated after due consideration, we feel there is no option but to terminate you full time employment at the Maintenance Yard…We are however, prepared to still offer you a position of Winter Services Driver for the coming season, based on the production of a satisfactory medical note stating you are fit for driving and your personal undertaking that you will follow instructions, as given to you by your supervisors. We are sorry the situation has come to this…

The Complainant maintained that he has been unemployed since the dismissal and as a consequence of ill health due to the dismissal he has not been in a position to seek alternative employment.

The Complainant also advised that he had been made a Protective Disclosure. He advised that the Protective Disclosure Act 2014 provides protection to him where he made a disclosure of relevant information which had come to his attention in the course of his employment. The Complainant advised that the relevant information as set out Section 5 of the Act was that he had reasonable belief of relevant wrongdoings and where these wrongdoings related to the behaviour of the Service Manager and that as a result of this behaviour the health or safety of staff and the Complainant was likely to be endangered. The Complainant maintained that in order for his complaint to be considered a Protective Disclosure for the purposes of the 2014 Act the relevant information (which related to his health and safety) was reported in accordance with Section 6 of the Act to his employer where he reasonably believed that the relevant wrongdoing was the conduct of a person other than his employer, and where his employer had a legal responsibility to address the matter.

The Complainant maintained that in accordance with Section 5 of the Protected Disclosure Act 2014 he had a reasonable belief that what he was reporting was a Protected Disclosure. He Further referred to Henrietta McGrath Partnership V Anna Monaghan PDD2/2016 where the Labour Court determined that considerations should be given as to whether the treatment attributed to an employee having made a Protected Disclosure. In this regard the Labour Court determined there will be a breach to Section 12 of the 2014 Act where the making of the Protected Disclosure can be identified as an operative cause. The Complainant therefore submitted that it was because of, or in relation to him raising a Protected Disclosure in regard to his health and safety, he was dismissed. The Complainant therefore argued that but for the fact that he raised a Protected Disclosure in regard to the wrongful act of the Service Managers behaviour that he would not have suffered the dismissal.

CA-00007801-002 Complaint under Section 13 of the Industrial Relations Act, 1969

As the complaint was considered under the Unfair Dismissals Act the Complainant did not make a submission under the Industrial Relations Act.

Findings and Conclusions:

CA-00007801-001Complaint under Section 8 of the Unfair Dismissals Act, 1977

In accordance with Section 6(1) the Unfair Dismissals Act, 1977 “the dismissal of an employee should be deemed, for the purpose of this Act, to be an unfair dismissal unless having regard to all circumstances, the were substantial grounds for justifying the dismissal”.

S6(4)(b) of the Act states without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from…the conduct of the employee,

In addition S6(7) of the Act requires that in determining if a dismissal is an unfair dismissal, regard may be had, if the Adjudication Officer considers it appropriate to do so- (a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and (b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure which the employer will observe before and for the purpose ofdismissing the employee …or with the provisions of any code of practice.

I must therefore consider both the substantive issues leading to the dismissal, and the fairness of the procedures adopted.

As to whether there were substantial grounds for the Complainant’s dismissal on the ground of gross misconduct, the applicable legal test is the “band of reasonable responses” test, as comprehensively set out by Mr Justice Noonan in the context of Section 6 of the Unfair Dismissals Act 1977 in the High Court case of The Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241, wherein he stated: “It is thus clear that the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s. 6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer's conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned - see Royal Bank of Scotland -v- Lindsay UKEAT/0506/09/DM.”

In the case within the Respondent has first argued that the Complainant in fact left his position on 7th September 2016 by telling the Services Manager what he could do with the job. In the event that it is not deemed that the Complainant resigned, the Respondent has also argued that the conduct of the Complainant was such that it warranted a summary dismissal, and that was the decision made by the Respondent after conducting an investigation of the matters on 9th September 2016. So, on the one hand the Respondent has said the Complainant resigned on 7th September 2016 and was not dismissed, yet on the other hand it has submitted that it decided to dismiss the Complainant for gross misconduct on 9th September 2016, but offered him a seasonal job and explaining this di not amount to a dismissal in any event.

Based on the evidence provided I am satisfied that the Complainant had not in fact resigned his position on 7th September 2017. He clearly left the place of work on 7th September 2016 and emailed the Managing Director advising as to why he left that day. However, he did not submit any resignation, he merely stated that he felt the behaviour of the Services Manager was that of bullying. He was sick the following day, and attended work for a meeting on 9th September 2016.

The evidence supports that up to that point the Complainant had experienced a series of incidents referred to as banter by the Service Manager. Having reviewed this evidence, whilst acknowledging some of the alleged incidents have been denied by the Service Manager, I find that what appears to have occurred does demonstrate an extraordinary culture of behaviour in the workplace, and where the Service Manager appears central to a lot of the actions that the Complainant submitted was undermining for him. Based on the evidence presented I find that if these issues had in fact occurred, (and where a Facebook video does show the fire extinguisher incident), it would not be reasonable to refer to them as banter - which is described as the playful and friendly exchange of good humoured and playful remarks. However, the issues were not investigated by the Respondent, nor is it the responsibility for this hearing to determine whether bullying behaviour did in fact occur.

What is significant however is that after the Complainant left the workplace on 7th September 2016 he did email the Managing Director to raise his concerns about what he had been experiencing. What occurred next was a disciplinary meeting, as identified in the contemporaneous notes provided in evidence. This disciplinary process referred to the alleged behaviour of the Complainant over the previous year and led to the Complainant getting an email from the Respondent that he was to be dismissed, and to be offered alternative employment in seasonal driving. I am therefore satisfied the Respondent dismissed the Complainant on 9th September 2016.

Furthermore, at the meeting on the 9th September 2016 the Complainant was not advised in advance that it was to be a disciplinary meeting, he was not accompanied, and nor was he aware in advance of the meeting of the allegations against him that were to be discussed. The Complainant’s concerns of bullying behaviour against the Service Manager was not addressed or considered.

I find that Respondent failed to adhere to any fair procedures or the principles of natural justice before issuing the dismissal notice to the Complainant. As such the respondent has breached the guidelines as issued in S.I. No. 146 of 2000, Code of Practice on Grievance and Disciplinary Procedures (Declaration) Order 2000. It may well have been that the Service Manager had concerns about the Complainant’s conduct over the year, but it is a fact that there are no records to corroborate that any previous warnings were given to the Complainant. I am satisfied there are no records to support that that the Service Manager had not raised these issues as being of any real significance until after the Complainant had complained to the Managing Director about the Service Manager’s behaviour.

Furthermore, in its handling of the Complainant’s complaint against the Service Manager, I find the Respondent disregarded the guidelines as laid out in S.I No. 17/2002 - Industrial Relations Act 1990 (Code of Practice Detailing Procedures for Addressing Bullying in The Workplace) (Declaration) Order 2002. Instead of dealing with the Complainant’s concerns, the Respondent chose to proceed to summarily dismiss the Complainant and failed to address the Complainant’s complaint of bullying.

Having considered all the evidence presented, I find that the Complainant was unfairly dismissed.

Having considered the complaint of a protected disclosure, I find that the complaint submitted to the WRC referred to an Unfair Dismissal. The complaint under the Protected Disclosure Act was made as an alternative. The complaint was not initially made under Schedule 2 of the Protected Disclosure Act, 2014. Having heard the complaint under the Unfair Dismissal’s Act I do not consider it appropriate to hear it again under the Protected Disclosures Act.

CA-00007801-002 Complaint under Section 13 of the Industrial Relations Act, 1969

As the complaint was considered under the Unfair Dismissals Act it was not subject to a finding under the Industrial Relations Act.

Decision:

CA-00007801-001Complaint under Section 8 of the Unfair Dismissals Act, 1977 

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

For the aforesaid reasons, pursuant to Section 8 of the Unfair Dismissals Act 1977 I find this complaint to be well-founded and conclude that the Complainant was unfairly dismissed by the Respondent.

Section 7 of the Unfair Dismissals Act 1977 sets out the various forms of redress including reinstatement, re-engagement and financial compensation which may be awarded. Relevant to the case within, where compensation only is sought, Section 7(1)(c)(i) of the Act provides: “…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,…”

Section 7(2) of the Act sets out the factors which should be considered when determining the amount of compensation and in such circumstances consideration has to be given to whether the loss was attributable to an act, omission or conduct by or on behalf of the employer; 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; and the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid. I also have to consider…the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure applied to dismiss the employee… and the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.

With regard to the financial loss as a consequence of the unfair dismissal, and with reference to Section 7(2) of the 1977 Act regarding the Respondent’s actions, the Complainant has argued that in accordance with Brady v Minister for Social Protection the High Court made clear that a Complainant is entitled to compensation for loss of income into the future as a result of his dismissal. Similarly, in Allen v Independent Newspapers the Employment Appeals Tribunal confirmed that it was entitled to take into account the actions of an employer in deciding on the level of compensation to which an employee is entitled. In that case the EAT stated that the fact the employee had been ill since her dismissal did not render her disqualified for compensation under the 1977 Act.  

The Respondent has argued that the dismissal has not led to the Complainant’s inability to work in that the Complainant has submitted a separate personal injury claim in which the Complainant has maintained that his inability to work relates to the alleged bullying behaviour from the Service Manager, and that his doctor opinioned the Complainant may be able to work after 12 months.

The Respondent further argued jurisprudence in GAB Robins (UK) Limited V Gilligan Triggs [2008]EWCA Civ 17 where the Tribunal’s findings that the claimant could be compensated for loss of earnings due to an illness that was attributable to the Respondent’s conduct was overturned on appeal. In the appeal it was acknowledged that the loss did not flow from the claimant’s dismissal but from antecedent breaches of the implied terms of contract. The Respondent in the case within has argued that an antecedent, namely the alleged behaviour of the Service Manager, is also the basis of the personal injury claim being made by the Complainant.

It is not for this hearing to decide on whether there has been a personal injury. What this case must decide upon is what loss of earnings has incurred by the Complainant due to his unfair dismissal.   I am satisfied the Complainant’s medical report indicates that his inability to work has been a consequence of the Complainant’s dismissal on 9th September 2016 which the doctor asserts was the causation of the current depression of the Complainant.

It is in my remit under the Unfair Dismissals Act to consider future loss as a result of an unfair dismissal. I am not considering any loss due to the antecedent , if any, regarding the alleged bullying behaviour. That matter has not been investigated and has been subject to argument and dispute between the parties, and is subject to a decision under the personal injury claim.

For the avoidance of doubt the hearing within considered evidence relating to the alleged bullying behaviour in light of the Complainant’s position that he was dismissed due to raising such a concern.     I am satisfied he did raise this concern, it was not addressed reasonably by the Respondent, and the Complainant was dismissed two days later. It is therefore the loss following this dismissal that is within boundary lines of this hearing. I am satisfied that at the time of the hearing the Complainant had not been compensated in any other court for a loss of earnings.

Accordingly, taking all of the above into consideration, and the jurisprudence referred to, I consider it just and equitable in all the circumstances to award the Complainant a total of €26,000(subject to any lawful deductions) in compensation for his loss.

CA-00007801-002 Complaint under Section 13 of the Industrial Relations Act, 1969

As the matter was heard under the Unfair Dismissal Act I do not make any recommendations under the Industrial Relations Act.

Dated: 14th December 2018

Key Words: Unfair Dismissal, resignation, personal injury, protected disclosure, future loss of earnings.