ADJUDICATION OFFICER DECISION.
Adjudication Reference: ADJ-00015152
Parties:
| Complainant | Respondent |
Anonymised Parties | A general operative | A waste and recycling company |
Representatives | E.M. O'Hanrahan Solicitors | Company manager |
Complaint(s):
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-00019477-001 | 29/05/2018 |
Date of Adjudication Hearing: 20/09/2018
Workplace Relations Commission Adjudication Officer: Jim Dolan
Procedure:
In accordance Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The Complainant was employed as an agency worker and was assigned to work for the Respondent company (the client) as a general operative. He commenced duties with the Respondent on 15/04/2010 and was dismissed on 07/04/2018, at this time he was earning approximately €430.96 per week. A complaint was received by the Workplace Relations Commission on 29thMay 2018. |
Summary of Complainant’s Case:
The Complainant worked for the Respondent for eight years through an employment agency. When the Respondent introduced some operational change the Complainant, as an agency worker, was dismissed from employment on 07/04/2018. The facts of dismissal are not being disputed. |
Summary of Respondent’s Case:
The Respondent representative, to her credit, accepts that a mistake was made by the Respondent company, the result of this mistake was that the Complainant was unfairly dismissed. |
Findings and Conclusions:
From the uncontested evidence adduced at hearing, I find that the Complainant was recruited by a recruitment agency to work for the Respondent. Accordingly, in line with section 13 of the Unfair Dismissals (Amendment) Act 1993, I find that for these proceedings, the Complainant is an employee of the Respondent. There is no disputing the fact that the dismissal was unfair. Accordingly, there is no decision to be made in relation to the dismissal, the decision relates to mitigation. In calculating the level of compensation, I have to consider the efforts of the Complainant to mitigate his losses and I find that his efforts do not meet the standard set out by the Employment Appeals Tribunal in Sheehan v Continental Administration Co Ltd (UD 858/1999) 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 loss.” It is just over four months since the Complainant was dismissed, in this time he has registered with two agencies. The Complainant’s level of English language is very basic and this is not going to help him secure employment. To his credit he has commenced an English language course, this is something he could have considered seven or eight years ago. |
Decision:
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.
Having considered all aspects of this case I find that the complaint is well found and award the Complainant €11,204.96 which is equivalent to six months’ pay. |
Dated: October 2nd 2018
Workplace Relations Commission Adjudication Officer: Jim Dolan
Key Words:
Unfair Dismissal, Efforts to mitigate loss. |