UDD1870

This matter came before the Court by way of an appeal brought on behalf of Sothern Real Estate Alliance Limited (‘the Respondent’) against a decision of an Adjudication Officer (ADJ- 00001234, dated 18 November 2016) under the Unfair Dismissals Act 1977 (‘the Act’). The Respondent’s Notice of Appeal was received by the Court on 9 December 2016. The Court heard the appeal in Dublin on 27 September 2018.

Complainant’s Employment History

Mr Harry Sothern, a Director of the Respondent, gave evidence of the basis on which he retained the Complainant as a ‘property consultant’ in or around 22 March 2012. Mr Asmussen BL, however, informed the Court that the Respondent was not seeking to maintain on the appeal that the Complainant lacked locus standi to bring the within complaint. It is, therefore, not necessary to consider the terms under which the Complainant was engaged at this point of the determination.

It appears the Complainant’s sister, MD, was employed as a secretary/receptionist in the business from early 2013. Mr Sothern stated in evidence that after the commencement of MD’s employment he noticed a reduction in the number of enquiries from potential vendors coming directly to him. As a consequence, he says that he made a general announcement in the office in Spring 2015 that all enquiries from potential vendors should be directed to him personally. Nevertheless, according to the witness, the trend whereby the business the Complainant appeared to be taking in was increasing while the business referred to him was decreasing. This meant that the Complainant’s commission payments continued to grow. Mr Sothern suspected that the Complainant and MD were colluding to bring this situation about. He therefore arranged in June 2015 to have a friend of his son’s (a Mr Fox) to pose as a potential vendor. Mr Fox duly sent an enquiry to a general email address operated by the Respondent, indicating that he was considering selling a number of properties in the Carlow area. MD regularly checked incoming emails at this email inbox. According to Mr Sothern, MD forwarded Mr Fox’s email to the Complainant’s personal email address; the Complainant then drafted a reply which MD then transcribed and sent to Mr Fox using the Complainant’s office computer and work email address. Mr Fox, in turn, it appears forwarded the Complainant’s replying email directly to Mr Sothern.

Thereafter, Mr Sothern made direct contact with a number of the Complainant’s recent vendor customers and confirmed that none of their enquiries had been directed to him, contrary to his express instructions to the reception/secretarial staff, including MD. Having considered the situation and the abuse of trust, as he perceived it, perpetrated by the Complainant for her own gain, he called a meeting with the Complainant in the office on 22 June 2015 at which he informed the Complainant that their ‘contractual arrangement’ was at an end with immediate effect. Mr Sothern confirmed his decision in this regard by letter dated 20 July 2015.

Whether Complaint Instituted Within Time

The Respondent raised the issue of whether or not the Complainant had referred her complaint under the Act within the statutory time frame for doing so at first instance. The Adjudication Office found that she had. Nevertheless, the issue was raised by the Respondent afresh on the appeal and, therefore, falls to be determined by this Court. Mr Sothern confirmed that he summarily terminated the Complainant’s employment relationship with the Respondent on 22 June 2015. The Workplace Relations Commission received the initial complaint on 22 December 2015. It follows that the complaint was received within the six-month time limit provided for in section 8(2) of the Act.

Section 8(2) of the Act provides:

• “(2) A claim for redress under this Act shall be initiated by giving a notice in writing (containing such particulars (if any) as may be specified in regulations under subsection (17) of section 41 of the Act of 2015) to the Director General—
  • (a) within the period of 6 months beginning on the date of the relevant dismissal, or

    (b) within such period not exceeding 12 months from the date of the relevant dismissal as the adjudication officer considers appropriate, in circumstances where the adjudication officer is satisfied that the giving of the notice within the period referred to in paragraph (a) was prevented due to reasonable cause,

  and a copy of the notice shall be given by the Director General to the employer concerned as soon as may be after the receipt of the notice by the Director General.”

• “(a) where prior notice of the termination of the contract of employment is given and it complies with the provisions of that contract and of the Minimum Notice and Terms of Employment Acts 1973 to 2005, the date on which that notice expires,
  (b) where either prior notice of such termination is not given or the notice given does not comply with the provisions of the contract of employment or the Minimum Notice and Terms of Employment Acts 1973 to 2005, the date on which such a notice would have expired, if it had been given on the date of such termination and had been expressed to expire on the later of the following dates—
  • (i) the earliest date that would be in compliance with the provisions of the contract of employment,
    (ii) the earliest date that would be in compliance with the provisions of the Minimum Notice and Terms of Employment Acts 1973 to 2005.
  (c) where a contract of employment for a fixed term expires without its being renewed under the same contract or, in the case of a contract for a specific purpose (being a purpose of such a kind that duration of the contract was limited, but was, at the time of its making, incapable of precise ascertainment), there is a cesser of the purpose, the date of expiry or cesser”.

Evidence Regarding Mitigation of Loss

The Complainant’s evidence is that she was initially in shock when informed by Mr Sothern of his decision to terminate her contract summarily. Nevertheless, she began looking for alternative employment within a few days of her meeting with Mr Sothern on 22 June 2015. She carried out a number of on-line searches but they turned up nothing suitable within commuting distance. Therefore, she made a decision within two to three weeks to open her own business. To this end she secured a premises, licence, insurance, phone, business bank account and registered with Daft.ie. She submitted a statement of accounts for the year ending 30 June 2016 prepared by her accountant which shows her business made a loss that year of €2,790.00 . Her gross income with Sothern Real Estate for the year to 30 June 2015 was €24,552.00.

Discussion and Decision

By his own admission, Mr Sothern did not apply fair procedures prior to arriving at his decision to dismiss the Complainant. At that time, he acted on the assumption that the relationship between the Complainant and the Respondent was that of an independent contractor and client. The Respondent, as noted earlier, confirmed that it was no longer maintaining that position. It follows that the termination of the Complainant’s employment was an unfair dismissal within the meaning of the Act.

Having regard to the breakdown in trust that occurred between the Parties, neither reinstatement or re-engagement is an appropriate remedy. The Respondent urged the Court – in the event that it were to find the complaint well-founded and was minded to make an award of compensation to the Complainant – to factor in the Complainant’s own contribution to the events that precipitated her dismissal. The Court notes the Respondent’s submission in this regard. However, the Court is also mindful that the Respondent must bear ultimate responsibility for what transpired bearing in mind the terms on which the Complainant was engaged, which terms meant that her entire income derived from commission earnings on sales, lettings and valuations brought in by her. From the moment she commenced employment with the Respondent she was therefore effectively competing for business with her colleagues in the business.

Having regard to the totality of the evidence adduced, the Court measures the compensation payable to the Complainant under the Act at €27,000.00.

The Court so determines

Signed on behalf of the Labour Court



Alan Haugh
CC______________________
19 December 2018.Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary.