ADJ-00009622

Complainant

Respondent

Anonymised Parties

Software developer

Software technology provider.

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00012587-001

17/07/2017

The complainant commenced employment as a junior developer in web design with the respondent on 7/4/14. His gross monthly salary was €2,723, net salary was €€2,271. He worked a 37.5 per week.

He developed anxiety about his performance on the job in 2015.

He was placed on a personal improvement plan on 18/1/16. This generated a lot of stress for the complainant.

He was dismissed on 18/1/17 for disclosing information to colleagues which had been classified as confidential., a disclosure which was described as gross misconduct. His complaint was received in the WRC on 17/7/18.

His preferred remedy is compensation.

The complainant’s representative advised that the complainant started to have problems with anxiety in 2014 and that this was compounded by the management’s treatment of him.

The complainant’s written evidence outlined the difficulties experienced by him in meeting the targets set for him by the respondent. He advised his manager in February /March 2015 that he suffered from anxiety and depression. His difficulties meeting targets led to him being placed on a (PIP) personal improvement plan on 18/1/16. He asked not be placed on such a plan, to be allowed to improve of his own accord. This was refused. The complainant found the personal improvement plan very stressful.

Because the complainant did not meet the targets set out in the PIP, the respondent activated the disciplinary procedure in April 2016 which resulted in a written warning for the complainant. He appealed this sanction and it was reduced to a verbal warning. The complainant further appealed the actual use of the disciplinary procedure on 6/5/16 arguing that due to his anxiety and depression he should never have been placed on a PIP- the trigger for the implementation of the disciplinary code and the resultant sanction, and in advance of an occupational health assessment. The outcome of that appeal, contained in a record of a meeting dated 3/6/16, was an assurance by the respondent HR department that neither the PIP nor the subsequent disciplinary process would feature in the end of year review. The disciplinary process was very stressful for the complainant.

He underwent an occupational health assessment on 19th May 2016. The report dated 23/5/16, recommends an assessment of work stressors using the UK Health and Safety Executive Management Standards, adopted by the HSA. The report suggested regular management meetings and an occupational health review in a further 4 weeks’ time.

The assessment recommended for 4 weeks’ time took place 5 months later. It was conducted   by a medical consultant in occupational medicine on 18/10/16 who declared him fit to work. He recommended robust supportive management for the complainant.

The complainant underwent an end of year performance review on 1/11/16. He got a score of 01 on his PCD (Performance and Continuous Development). The complainant states that HR had advised him in June that poor performance due to stress flowing from disciplinary procedure and PIP would not feature in the score. He exchanged scores with colleagues, told them he was unhappy with a 1 and intended to appeal it and did so on 7/11/17. Two weeks later, the complainant was given an improved   PCD score of 3 and was advised by email that it was strictly personal, private and confidential. He disclosed this improved mark to colleagues. His manager discovered that he had disclosed his revised CPD score and he was suspended on 30/11/16. The respondent activated the disciplinary procedure against him. He attended a disciplinary hearing on the18/1/17. He was found guilty of gross misconduct due to a breach of trust and confidence and due to the alleged organisational wide repercussions of a revised mark, seemingly withheld from the manager who had given him the score of 1. He was dismissed on 18/1/17. He appealed the decision at a hearing on the 16/2/17. His appeal was rejected

He has been on anti-depressant medication since 2016. He commenced counselling in June 2017.The complainant’s evidence was that he went on disability benefit, he thinks, in March 2017.

The complainant applied for one position near his home town in March 2017. He did not feel well enough to pursue or source other positions. He was afraid that he would break down at interview.

His GP’s report dated 13/11/17 was submitted to the hearing. He stated that the complainant

“had motivational issues which deteriorated after his initial performance review and has not worked since his contract was terminated in January 2017. He suffers with depression which does appear to have been made much worse after his work performance was called into question by his employers. Indeed, he did not require treatment for his depression prior to his performance review. He feels his confidence is gone and thus cannot succeed in getting another job.”

The complainant’s representative submitted ADJ 3010, a complaint of unfair dismissalin support of his claim. This decision awarded a year’s salary to a complainant unable to mitigate his loss due to an illness attributable to the actions of his employer. He also submitted the case of Liz Allen v Independent Newspapers (Ireland) Ltd, UD 641/2001 where the EAT found that the illness suffered by Ms. Allen was wholly attributable to the actions of the employer.

The complainant’s representative asked that he be awarded compensation as the dismissal was unfair and the actions of the employer was a major contributory factor to the complainant’s illness and his consequential inability to mitigate his loss. 

The respondent accepted that the dismissal was unfair on procedural grounds.

The respondent at the outset raised the issue of mitigation of loss and availability to work.

The respondent asked the start date for receipt of professional advice from his representative and the date of application for disability benefit.

On the basis that the complainant was unfit to work since the dismissal, the respondent argues that the maximum to which he is entitled is four weeks’ salary. The complainant made one effort to mitigate his loss.

The respondent noted that the occupational health report of October 2016, commissioned by the respondent and advanced as evidence stated that the complainant was fit to resume work.

In relation to the reliance on the determination in Liz Allen v Independent Newspapers (Ireland) Ltd, UD 641/2001, the respondent’s representative asked how could the respondent’s actions in the workplace be wholly responsible for the complainant’s state of health where the OHS report (23/5/16) states that non- work stressors impacted on his mental health. The respondent also objected to the comparison as the latter case concerned a complaint of constructive dismissal.

The respondent stated that given that the complainant applied for one position only and it is his evidence that he was unfit to apply for jobs, and was thus unable to mitigate his loss, the maximum compensation allowable is 4 weeks’ salary.

Given that the respondent is not contesting the complaint of unfair dismissal, my task is to consider the loss suffered by the complainant, the efforts of the complainant to mitigate his loss and the compensation if any which should be awarded to the complainant

The relevant statutory provision is Section 7 of the Unfair Dismissals Act, as amended. It provides as follows:

             “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:   ...              

(c)     (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 under section 17 of 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,

... (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) of             section   14 of 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.”

Loss.

The complainant has not worked since 18/1/17.

Efforts to mitigate his loss.

The responsibility lies with the respondent to demonstrate that the complainant acted unreasonably in attempting to mitigate his loss. Other than to state that the complainant’s ill health could not be wholly attributable to the respondents actions, the respondent did not address the link between the behaviour of the respondent and the complainant’s efforts to mitigate the loss but did differentiate between Liz Allen v Independent Newspapers (Ireland) Ltd., UD 641/2001 case and the within case as the Allen case is one of constructive dismissal and in that case the psychiatric evidence linked the employer’s behaviour to the claimant’s injury. It is the respondent’s case that the complainant, unable to mitigate his loss as he was unwell, can claim no more than four weeks’ salary as per section 7(1) (c)(ii) of the Act.

The complainant’s own evidence is that he applied for one job in, March 2017 and no other.

The complainant’s case is that the actions of the employer contributed to his ill health and prevented him from mitigating his loss. However, the OHS advisor ‘s report of 23/5/16 discloses that non- work related factors impacted on the complainant’s mental wellbeing, The GP's report of 13/11/17, based on 3 meetings with the complainant, the last of which occurred in June ’17, states that the complainant had suffered from poor motivation and low self-esteem prior to the PIP being implemented and this was made much worse after his work performance was called into question by his employer. I do not accept that the complainant’s illness is wholly attributable to the actions of the respondent. A responsibility lies with the complainant to assist in his own recovery.

The GP’s report of November 17 states that the complainant asked him in June 2017 to sign him up for disability benefit and that he did so but only for a few months as he felt that the complainant lacked motivation and that it would be beneficial for him to work. There was no evidence from the GP to the effect that long-term he was unfit to work.

So, for the period January to June he was not in receipt of disability benefit though his representative describes him as being unwell. He did apply for one job in the period January to June 2018.

I do not think it reasonable to expect an employer, the respondent, to abandon entirely his/her expectations of how a job should be done or how a client should be advised/assisted even when faced with an employee suffering from depression and anxiety. It is a question of how this is conveyed to the complainant and how the situation is managed. Insufficient evidence was presented to demonstrate that the robust supportive management arrangements, recommended by the occupational health advisors, were put in place. I accept that this omission on the part of the respondent may have impacted on the complainant. In addition, considering the medical evidence, and the fact that an unfair dismissal is a wrong done to an employee it is not unreasonable to conclude that the actions of the respondent impacted on his mental health and inhibited his capacity to mitigate his loss.

The EAT in Coyle V Tipper House Trust Ltd UD/904/93 upheld the complaint of unfair dismissal but did not award the complainant compensation concluding that he suffered no financial loss as he was unfit to work at the time of his dismissal and thereafter.

The complainant’s representative submitted the decision ADJ 3010 in support of his claim. This awarded a year’s salary to a complainant unable to mitigate his loss due to an illness attributable to the actions of his employer. This was based on medical evidence in support of the complainant and was also based on uncontested evidence. It was also accepted that the respondent failed to apply their own disciplinary procedure correctly.

I find that from the end of June 2017 onward, the complainant was on disability benefit, unfit to work and unable to mitigate his loss. For the previous 6 months, January -June2017, the complainant made one effort to mitigate his loss.

Based on the evidence tendered and in all of the circumstances, I award the complainant 3 months’ salary in respect of the loss incurred during the period January – June 2017. The sum to be awarded is €2271(net monthly pay) x 3 = €6813 which I deem to be “just and equitable having regard to all the circumstances”.

I find that the complainant was unfairly dismissed. I award him 3 months’ salary to the amount of €6813.

Unfair dismissal; mitigation of loss; failure to mitigate loss allegedly attributable to actions of respondent.