Complainant

Respondent

Anonymised Parties

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Representatives

Robert Cussen & Son Solicitors

Sherwin O'Riordan Solicitors

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-00018321-001

05/04/2018

At the outset of the hearing the respondent drew attention to the fact that it was incorrectly identified in the complaint and consented to a change in the legal name.

The respondent does not dispute the fact of dismissal. It also acknowledges a lack of fair procedure in the process of terminating the employment. However, there is substantial mitigation for the respondent’s actions.

However, the respondent had treated the complainant well in the course of his employment since he started in November 2015. It paid for his motor insurance as a gesture of good will, provided him with a fuel card and facilitated him in using the company premises for private work.

He was also paid for a period of sick leave absence of nine and a half days in 2017.

However, the complainant regularly failed to present for work in time; in December 2017 he was late on eight occasions and failed to show up at all on one. In respect of some of these the complainant gave prior notice but for others he did not. The respondent did not know whether he would attend for work or not.

In addition, the complainant constantly used his mobile phone while at work and this posed a threat to his own health and safety as well as that of his co-workers as he balanced the phone in one hand and continued to work with the other.

For these reasons he was given an oral warning in August 2017 and again in October 2017 and told that further persistent breaches could lead to his dismissal.

On December 13th, in the course of a conversation with the complainant the respondent reminded him that he had had exhausted his annual leave entitlement and would have to return to work on December 2th after the Christmas break.

The complainant said ‘I’m not working on the day after Stephen’s Day, don’t be stupid’ and repeated this in a different form.

The complainant also sought to persuade co-workers that they should not work on December 27th either, one of whom told him he would have to work if he had no leave left.

In the event the complainant did not attend for work on the day.

The respondent says that it does not operate any facility to take unpaid leave where annual leave has been exhausted. The incident to which the complainant refers related to an employee who had booked a foreign holiday while with a previous employer and who was facilitated as he had not accumulated entitlement with the respondent.

In respect of the complainant’s loss the respondent submits that he secured employment on February 19th 2018 and that any liability for loss attributable to the dismissal should end at that point. It was not the respondent’s fault that the position was not continued.

The complainant confirms that he told his employer that he was ‘unavailable’ for work on December 27th, and that as he had no leave left he would take the day off as unpaid leave. He says there was a practise that additional days could be taken as unpaid leave.

He confirmed by text message on December 26th that he would not be coming to work the following day.

The following day the respondent terminated the employment on the telephone.

The complainant did secure employment for a period of twenty weeks on a probationary contract which was not continued.

It is clear from the submissions by the parties that the respondent did not follow even an elementary version of a fair procedure in terminating the complainant’s employment. The failure to do so is inexcusable and fatal.

Accordingly, the complainant’s dismissal was unfair and in breach of the Act.

In respect of the award of compensation there are a number of factors to be considered in assessing loss attributable to the dismissal.

A dismissed employee is required to mitigate his losses by actively seeking employment. In this case the complainant did so, securing work just under two months after the dismissal on February 19th. This came to an end on July 16th, some twenty weeks later. In that period his earnings were €130 more than his declared earnings with the respondent.

The respondent has submitted that it should have no liability for loss beyond February 19th.

The complainant gave further evidence of his efforts to find employment after that date saying that he had difficulty getting a job because he had no reference from the respondent. He had done four interviews in the two months before the hearing but was mainly relying on ‘word of mouth’ to identify possible vacancies.

He also worked on a small number of occasions providing security at entertainment venues earning a total of about €200.

This means that he was more or less totally unemployed between July 2017 and the date of the hearing almost exactly thirteen months later. There was no evidence of his efforts to seek and secure employment in that period, apart from the two months before the hearing.

Where employment has been terminated liability for loss may remain with a respondent if, for example subsequent employment is intermittent, or at a lower level of earnings. While such earnings may be used to discount the liability for loss, it will not necessarily stop the clock ticking on the loss, as was urged by the respondent in this case.

A more decisive consideration in this case is what appears to be the complainant’s almost total failure to mitigate his loss in that second period from July 2017 to date.

He is a motor mechanic and it is stretching credibility that he could not secure any employment whatsoever in that period. But, whatever the truth of this, more significantly he offered no evidence of any attempts to do so.

The respondent relied on Sheehan v Continental Administration Company Ltd (UD858/1999)   where the EAT held that;

‘A claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work. The time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss’.

To this might be added, it is not enough to rely on ‘word of mouth’.

Accordingly, for that reason my award will be confined to the losses for the initial period of unemployment of seven weeks. There was some confusion about the complainant’s earnings. These were stated on the complaint form to be €541.00 gross per week and it is this figure I use in my calculation.

I uphold complaint CA-00018321 and award the complainant €3787.00 subject to the usual statutory deductions.