Complainant

Respondent

Anonymised Parties

A Team Manager

A Sports Club

Act

Complaint Reference No.

Date of Receipt

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

CA-00010168-001

10/03/2017

The complainant claims that he was summarily dismissed by the respondent after a meeting with its chairman and two other members of its Board.

The respondent did not engage in the process and did not attend the hearing.

The complainant is a professional manager of a sports team. He claims that he was employed as a manager/ coach on a two-and-a-half-year contract. He claims that he was paid €800 per week during the playing season and €300 on a retainer during the off-season and worked long hours each week circa 80 hours per week. He said that as part of his job, outside of the management and coaching of the team, he was involved in the promotion of the club and trying to generate financial sponsorship at local and national level.

He claims that with one year left on his contract he was told that the club was seeking new investment and direction, and that there could be changes through-out the club. He said that the team suffered a heavy defeat and he was called into a meeting with the club’s chairman and other Board members who, he claims, said that “things were not working out” and it was “time to part ways”. The complainant claims that he was offered the wages outstanding to him at the time and a small sum of money to “walk away”. He said that he told the respondent that he wanted to keep his job, that he had one year left in his contract and did not want to go. However, he claims that he was told in no uncertain terms that his job was gone with immediate effect. He tried to get in contact with the respondent on many occasions since to resolve the situation but it has not engaged.

The complainant claims that new investment has come into the club. However, he said that the club did not go into examinership or liquidation, the respondent is still in existence, however, the club has rebranded and a new board of management is now in place.

The respondent did not forward any written submissions in response to this complaint and did not attend the oral hearing. I have not received any explanation for the non-attendance of the respondent at the hearing.  

CA-00010168-001 – Complaint under the Unfair Dismissals Act, 1977

The Relevant Law

Section 6 of the Unfair Dismissals Act, 1977 provides:

“(1)   Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

…

(4) 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 one or more of the following:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

…

(6) In determining for the purposes of this Act, whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were substantial grounds justifying the dismissal.

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, 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 referred to in section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7(2) of this Act.”

The respondent did not attend the hearing and therefore having regard to the complainant’s uncontested evidence, I find that the following key facts have been established in relation to the complaint:

· The complainant commenced employment with the respondent in May 2015 as a professional sports team manager on a permanent fixed-term contract for two and a half years.

· The complainant worked satisfactorily for a period of time albeit with limited resources. The complainant was heavily involved in other duties to help the club out financially.

·The complainant was summoned to a meeting with the club’s chairman and other board members and was summarily dismissed from his employment.

Having considered the uncontested evidence where the complainant claims that the respondent wanted him out and was looking for any excuse, I find that the complainant was not provided with any fair or reasonable opportunity to address the respondent’s concerns in relation to the team’s performance. In the circumstances, I find that there was a manifest failure by the respondent to adhere to the basic requirements of procedural fairness in reaching the decision to terminate the complainant’s employment. I find that the complainant’s employment was terminated in a manner which was procedurally flawed and in breach of the Code of Practice on Grievance and Disciplinary Procedures (SI. No. 146 of 2000).

The said Code sets out the general principles that should apply in the operation of disciplinary procedures and the promotion of best practice in giving effect to these procedures. The Code states that the procedures applied must comply with the general principle of natural justice and fair procedures, which include that:

1.       the details of the allegations or complaints be put to the employee concerned;

2.       the employee concerned be given the opportunity to respond fully to any such allegations or complaints;

3.       the employee concerned is given the opportunity to avail of representation; and

4.       the employee concerned has the right to a fair and impartial determination of the issues being investigated, taking into account the allegations or complaints against him or her, the response of the employee concerned to them, any representations made by or on behalf of the employee concerned and any other relevant or appropriate evidence, factors or circumstances.

I am satisfied that an employer is required to act fairly in all situations. This Code of Practice is a template that an employer should consider when making fundamental decisions in relation to its employees. Having regard to the foregoing, I find that the dismissal of the complainant was unfair on procedural grounds.

Mitigation of Loss

I note that the complainant has not worked as a manager/coach since the termination of his contract, albeit, he was able to get some work with another club in a consultation part time basis after his dismissal but at a much lower rate of pay – circa three hundred a week. I have not been presented with evidence to show that serious efforts were made to mitigate his loss beyond this part time role. The complainant claims that that is the nature of the profession that there are not that many jobs available and it is not a case of him not looking for work, that it is simply the situation in the business.

I note the decision of the Employment Appeals Tribunal in the case Sheehan v Continental Administration Co Ltd (UD858/1999) where it stated, “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”. Notwithstanding the complainant’s claim that there is not much work available in this profession, there is a legal duty to mitigate financial loss by taking diligent steps to secure comparable alternative employment. I also note the decision in Burke v. Superior Express limited UD 1227/2014 where the EAT held that the standard required is a high one. Therefore, I must find that the complainant has not fully endeavoured to mitigate his loss.

The complainant’s evidence was that his wages were roughly €800 for 34 weeks per annum and €300 as a retainer for the off season-18 weeks. Combining these figures, the complainant is entitled to redress of €32,600 for the remaining year of his contract. His evidence is that the role he obtained in consultancy pays €10,200 (34 weeks) per annum. Therefore, the complainant incurred a loss of €22,400.

On the basis of my findings above I declare the complaint is well founded. I direct the respondent to pay the complainant compensation of €13,000 (thirteen thousand euro) within 42 days of the date of this Decision. This award of compensation takes into account the complainant’s failure to fully mitigate his loss.

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.   I find that the complaint made pursuant to the Unfair Dismissals Act is well-founded and the respondent shall pay to the complainant redress of €13,000 (thirteen thousand euro).

Unfair Dismissals Acts - summarily dismissed – respondent did not engage – unfairly dismissed – compensation.