FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : SISTERS OF CHARITY OF THE INCARNATE WORD HOUSTON TEXAS T/A CARRIGORAN HOUSE (REPRESENTED BY DESMOND RYAN, B.L., INSTRUCTED BY HOLMES O'MALLEY SEXTON SOLICITORS) - AND - AINEIS BROCK DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr Hall |
1. Appeal of Adjudication Officer Decision No. ADJ-00007824.
BACKGROUND:
2. The Employee appealed the Decision of the Adjudication Officer to the Labour Court on 10 July 2018 in accordance with Section 8(A) of the Unfair Dismissals Acts 1977 to 2015. A Labour Court hearing took place on 14 November 2018. The following is the Determination of the Court:-
DETERMINATION:
This is an appeal by Ms Aineis Brock against the Decision of an Adjudication Officer under the Unfair Dismissals Acts 1977- 2015 (the Acts) in her claim of unfair dismissal against her former employer, Sisters of Charity of the Incarnate Word Houston Texas t/a Carrigoran House. The Adjudication Officer found that the Complainant’s complaint was well-founded and awarded her €18,800 compensation less 20% owing to the failure of the Complainant to mitigate her loss to the level expected. Therefore, the Respondent was ordered to pay the Complainant an award of €15,040 in compensation.
For ease of reference the parties are given the same designations as they had at first instance. Hence Ms Aineis Brock will be referred to as “the Complainant” and Sisters of Charity of the Incarnate Word Houston Texas t/a Carrigoran House will be referred to as “the Respondent”.
Status of the Complainant
The employment status of the Complainant was in dispute between the parties. The Complainant asserted that she had been an employee under a contract of service with the Respondent whereas the Respondent submitted that she had never been an employee and was at all times an independent contractor under a contract for services. Accordingly, the Respondent did not accept that the Complainant had a valid claim under the Act against the Respondent.
Position of the Parties
The Complainant did not appeal the finding of the Adjudication Officer that she had been an employee under a contract of service with the Respondent from 1stFebruary 2000 until her dismissal on 28thFebruary 2017. However, she did appeal against the quantum of compensation awarded by her. Without prejudice to its position that the Complainant was never an employee, the Respondent did not cross-appeal. Consequently, it was agreed between the parties that the only issue before the Court was the appropriate quantum of compensation.
The Complainant outlined for the Court her losses and future loss. She also outlined details of her efforts to seek alternative employment and informed the Court that she was currently undergoing a training course to enhance her career prospects.
In this case the Complainant grounded her appeal on her contention that she should be compensated for her loss of entitlement to annual leave, public holidays and pension contributions as she was treated by the Respondent as an independent contractor instead of an employee for ten years. She also claimed that her lack of entitlement to social welfare benefits after she was dismissed should be taken into account.
The Respondent disputed the Complainant’s efforts to mitigate her losses and held that she had failed in her duty in that regard as she had failed to produce evidence of attempts to secure alternative employment.
Measuring Compensation
Section 7(1)(c) of the Act, (as amended by Section 6(a) of the Unfair Dismissals (Amendment) Act 1993) provides: -
- (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,
- (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
- (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 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.
- (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,
Conclusion
In all the circumstances of this case the Court has taken account of the actual and prospective financial loss suffered by the Complainant arising from her dismissal. The Court has also taken into account, as it is required to do by Section 7(2)(c) of the Acts, the extent to which the Complainant has taken measures to mitigate her loss. In that regard, the Court is satisfied that the Complainant has taken measures to some degree to mitigate her losses and this has been taken into account in measuring the quantum of compensation that should be awarded. Therefore, the Court awards one year’s salary (€24,440) less 20% owing to the failure of the Complainant to mitigate her loss to the level expected.
Having regard to all of these considerations the Court awards the Complainant compensation under the Act in the amount of €19,552.00.
Determination
The Complainant’s appeal is allowed in part and the Decision of the Adjudication Officer is varied accordingly. The Court orders the Respondent to pay the Complainant the sum of €19,552.00 within six weeks from the date of this Determination.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
LS______________________
27 November 2018Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Louise Shally, Court Secretary.