Complainant

Respondent

Anonymised Parties

A Senior Sales Executive

A Car Sales Company

Representatives

SIPTU

Ms. Sarah Daly B.L. on the instructions of  Derek Murphy 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-00027352-001

28/03/2019

The Complainant was employed by the Respondent as a Senior Sales Executive from 7 June, 2017 until 4 February, 2019 when his employment was terminated. The Complainant claims that he was summarily dismissed from his employment by the Respondent’s Managing Director on 4 February, 2019. The Complainant claims that he was unfairly dismissed from his employment.

The Respondent disputes the claim of unfair dismissal and contends that the Complainant resigned from his position of his own volition during the course of a meeting with the Managing Director on 4 February, 2019. The Respondent contends that numerous attempts were made to contact the Complainant after his resignation to advise him that his position was still available but he refused to return to work.

The Complainant reported for work on Monday, 4 February, 2019 at 8:30 a.m. following a two week absence due to stress. The Complainant stated that this absence from work on sick leave arose as a result of him having been overworked and feeling “burned out” in his job.

The Complainant was asked by the Receptionist at 9:30 a.m. that morning to go to the Head of Business’ office for a meeting with his Manager, Mr. A and the General Manager, Ms. B. This meeting lasted for 30 minutes and the Complainant’s absence from work was discussed during the meeting. At this meeting the Complainant sought a 30-minute break at lunch time and a finishing time at close of business (5:30 pm) where possible as his normal finishing time most evenings was between 6:30 to 7:00 pm. Throughout the discussions at this meeting it was agreed that a plan would be put in place to accommodate these issues that was acceptable to the Complainant. The Complainant stated that he was satisfied with the outcome of this meeting and the agreed resolution that had been put in place to address the concerns he had raised in relation to his conditions of employment.

The Complainant returned to his work station at 10:30 a.m. and 15 minutes later Mr. A requested the medical certificate relating to his sick absence. The Complainant was informed by Mr. A that the General Manager, Ms. B, was seeking the medical certificate. The Complainant was informed at 11:00 a.m. that the Respondent’s Managing Director, Mr. C wished to meet with him in the sales office. The Complainant stated that he took a seat on entering the room and Mr. C commenced the conversation by stating that: “Over the last 30 years I’ve had many a lad like you. I had one asshole who let me down in January, do you know what he is doing now? He delivers lawnmowers 3 days a week, he doesn’t assemble them, he just delivers them 3 days a week”. The Complainant submits that Mr. C then stated that he [the Complainant] needed to get real and shake himself, wake up and figure out if he wanted a job or not. Mr. C told the Complainant to take a good look in the mirror and then ask himself “do I think that the business stops when I’m not there”.

The Complainant submits that he attempted to speak during the meeting but was told by Mr. C not to interrupt him while he was speaking. Mr. C continued by stating that the customer doesn’t come in for [the Complainant] and that it doesn’t matter whether he was there or not as the show must go on. The Complainant submits that Mr. C then proceeded to attribute the credit for all of the sales that he made to his Manager (Mr. A) and stated that the customers come back for the experience and not him [the Complainant]. The Complainant submits that Mr. C stated that he was where he is now because Mr. A had invested time in him and that he owed the business an apology as he had left them down in the middle of the January sales.

The Complainant submits that he attempted to ask Mr. C if he was aware of the reason for his absence from work, but Mr. C would not listen and replied not to challenge him. The Complainant tried to explain that he was out of work due to sickness only to be interrupted by Mr. C who banged the table and repeated the instruction not to challenge him. The Complainant submits that Mr. C was very irate and then instructed him in an abrupt manner to “give me the keys to your car, you’re done, you’re finished”. The Complainant submits that he gave Mr. C the keys of his company car and left the meeting. The Complainant met his Manager, Mr. A, on the way out of the premises and informed him that he had been fired by Mr. C and proceeded to walk home. The Complainant stated that Mr. A offered to drive him home but he declined this offer and walked home. The Complainant stated that Mr. A followed him after he left the premises and subsequently gave him a lift home.

The Complainant submits that the reason why Mr. C dismissed him was as a result of him having been absent from work on sick leave and having sought to obtain his statutory entitlements to proper work hours and rest breaks in accordance with the Organisation of Working Time Act, 1997. The Complainant submits that the bond of trust in the working relationship with the Respondent was completely destroyed and that he could not have possibly returned to work thereafter as a result of the manner in which Mr. C spoke to him on 4 February, 2019.

In cross-examination, the Complainant denied that the Respondent made numerous attempts to try and contact him after the events on 4 February, 2019 to advise him that his job was still available and that he had not been dismissed. The Complainant accepts that he had a conversation with Mr. A after his employment was terminated but stated that the reason Mr. A contacted him was to enquire if he was okay on a personal level.

The Complainant also stated that Mr. C contacted him by telephone from France approx. six days after his dismissal and asked him if he would call into the office for a discussion on his return to Ireland. The Complainant denies that Mr. C asked him to return to work during this conversation and contends that the only reason that Mr. C contacted him was because of the manner in which he had been dismissed.

The Complainant worked as a Senior Sales Executive and the Respondent was very happy with his performance in that he was one of the top performing members of the sales team. In January, 2019 the Complainant took a two week period of sick leave. The Complainant advised his Manager, Mr. A, that the cause of his sick leave was work related stress and referred to issues with respect to his rest breaks. On his return to work, the Complainant’s Manager, Mr. A, and General Manager, Ms. B, met with him to discuss the Complainant’s concerns. During the course of this meeting, Mr. A and Ms. B noted that the Complainant had not been taking his annual leave and sometimes worked his weekly rest days during busy periods. The Complainant discussed his time management and the need to ensure that he had sufficient rest opportunities.

The Complainant was then asked to meet with the Respondent’s Managing Director, Mr. C. During this meeting Mr. C discussed the matters raised but found the Complainant was agitated, and the discussion was not going well. Mr. C attempted to explain that as January/February was an extremely busy period that everyone needed to get on with things as best they could. The Complainant then said to Mr. C that he was leaving and put his keys on the table and walked out of the office.

Mr. C then contacted the Complainant’s Manager, Mr. A, and asked him to call the Complainant to try and discuss what was wrong so that the Complainant could return to work. Mr. A called the Complainant’s mobile, but it was switched off. He then tried the Complainant’s landline and sent messages via social media to try and contact him. Mr. A continued to attempt to make contact and eventually spoke to the Complainant. The Complainant informed Mr. A that he had been “fired”. Mr. A informed the Complainant that this was not true and that his role was still open to him. He explained that if the Complainant honestly believed that he was fired, he was mistaken and that his job was there for him.

The Respondent submits that numerous attempts were made to advise the Complainant that his job was available and that he had not been dismissed. Mr. C also called the Complainant directly, but the Complainant did not take his call. Mr. A then received a telephone call from the Complainant’s Trade Union representative in or around 15 February, 2019. The Complainant’s representative advised that it was the Complainant’s intention to pursue an unfair dismissal claim and Mr. A repeated that the Respondent had not dismissed the Complainant and that his job remained available to him. The Complainant ultimately sought and received his termination documents.

The Respondent submits that the Complainant did not raise a grievance prior to his resignation. He gave the Respondent no opportunity to address his issues (perceived or actual) and did not engage with the grievance procedures available within the company and set out in the employment handbook.

Evidence of Mr. C, Managing Director

Mr. C stated that he was informed by the Manager, Mr. A, on 4 February, 2019 that the Complainant had returned to work that morning following a period of sick leave and that the issues which the Complainant had raised in relation to his alleged workplace stress had been resolved. Mr. C stated that he had a meeting with the Complainant later that morning to “try and get him to focus on the job”. Mr. C stated that the Complainant got annoyed during this meeting and said that he was “giving up”. Mr. C stated that he informed the Complainant that he would not require the company car any longer if he was leaving his employment and asked him to return the keys.

Mr. C denies that he dismissed the Complainant or informed him that he was “fired” during the course of this meeting and contends that the Complainant resigned of his own volition. Mr. C stated that he had a conversation with the Manager, Mr. A, after the Complainant left the meeting and instructed him to “get [the Complainant] back if he wanted”. Mr. C stated that he contacted the Complainant by telephone from France “within a day or two” after he resigned and asked the Complainant if he would meet with him on his return to Ireland to discuss the matter. Mr. C stated that the Complainant did not contact him subsequently and the next contact that he had in relation to the matter was from the Complainant’s Trade Union representative.

Evidence of Mr. A, Manager

Mr. A stated that the Complainant was an excellent employee and the Respondent had no concerns in relation to his performance. Mr. A stated that he visited the Complainant at home during the period of his sick absence from work in January, 2019 and was aware that he had some issues in relation to hours of work and rest breaks. Mr. A stated that he brought these issues to the attention of the General Manager, Ms. B, and the Managing Director, Mr. C, and it was agreed that they would try and resolve these issues with the Complainant on his return to work. Mr. A stated that a meeting was arranged with the Complainant on his return to work on 4 February, 2019 and the workplace issues raised by him were discussed and a resolution was agreed to address his concerns. Mr. A stated that both the Complainant and management were happy with the outcome that had been agreed at this meeting.

Mr. A stated that he met the Complainant later that morning on 4 February, 2019 as he was leaving a meeting with Mr. C, Managing Director. Mr. A stated that the Complainant informed him that he was after being “fired” by Mr. C and he offered the Complainant a lift home as he left the premises. Mr. A stated that the Complainant declined the offer of a lift and left the premises on foot to walk home. Mr. A stated that he followed the Complainant in his car and gave him a lift home.

Mr. A stated that he spoke to Mr. C on the telephone after dropping the Complainant home and that Mr. C informed him that the Complainant had “left his job”. Mr. A stated that Mr. C informed him that he could get the Complainant back if he wanted. Mr. A stated that the Complainant was an excellent employee and he made every effort possible to try and get him to return to work. Mr. C stated that he tried to contact the Complainant by telephone and via social media and left messages for him to get in contact. M. A stated that the Complainant returned his call and he informed him that his job was still available and asked him to return to work. Mr. A stated that the Complainant informed him that he wouldn’t be comfortable returning to work after what had happened with Mr. C.

Evidence of Ms. B, General Manager

Ms. B stated that she attended the meeting with the Complainant and Mr. A following the Complainant’s return to work from sick leave on 4 February, 2019. Ms. B stated that the workplace issues raised by the Complainant were discussed at this meeting and an agreement was reached to resolve these issues. Ms. B stated that she saw the Complainant handing the keys of his car back to the Managing Director, Mr. C following their meeting which took place later that morning. Ms. B stated that she spoke to Mr. C after the Complainant left the premises and was informed that the Complainant had “finished up”. Ms. B stated that she spoke to Mr. A, Manager, on his arrival back to the premises after driving the Complainant home. Ms. B stated that Mr. A informed her that the Complainant had indicated that he was after being fired. Ms. B subsequently spoke to Mr. C who confirmed that “under no circumstances” had the Complainant been “fired” and that he had informed Mr. A to get the Complainant back if he wished.

Legal Submissions

The Respondent submits that the first matter to consider is whether in this case there was a dismissal or not. The Respondent strenuously submits that in this case there was no dismissal. The Respondent relies upon the attempts made by Mr. A and Ms. B to address the issues behind the Complainant’s alleged workplace stress. It is submitted that where it was decided that the Complainant would not be continuing in employment such a meeting would not have occurred prior to the dismissal. The Respondent submits that numerous attempts were made, including calls made by both Mr. A and Mr. C, to assure the Complainant of his continuing employment and to query the reasons behind his resignation in an effort to address same. Again, such action is inconsistent with an intention of the Respondent to dismiss the Complainant.

The Respondent submits that it is well aware of its legal obligations in terms of steps required to a dismissal being effected. Full disciplinary procedures are in place within the Complainant’s workplace. This process was never engaged in relation to the Complainant’s employment. To be clear the Complainant was never considered for dismissal and the Complainant’s actions were never such to warrant or merit any disciplinary action, let alone dismissal. The Complainant had taken a period of sick leave, and the Respondent is accustomed to staff requiring sick leave from time to time. Where an employee avails of sick leave, the Respondent takes steps, where feasible and appropriate, to address the causes of such sick leave absences to support employees on their return to work. As evident from the meeting which was held with Mr. A and Ms. B, the Respondent dealt with the Complainant’s sick leave in a supportive and appropriate manner and there is no question that the Complainant was considered for dismissal due to his sick leave.

The Respondent submits that it is unclear if the Complainant is suggesting that he was constructively dismissed. The Respondent contends that it took immediate action to try and address the Complainant’s issues by arranging a meeting with his Managers, Mr. A and Ms. B. By the Complainant’s own account, the workplace issues were addressed in relation to his rest periods and so on. The Respondent evidenced by this action that as an employer they were interested in understanding the Complainant’s concerns and were willing to take steps to address these.

The meeting that took place between Mr. C and the Complainant is in dispute in terms of the facts. Mr. C’s position is that he did not terminate the Complainant’s employment and indeed the reason for the meeting was to ensure that the Complainant continued to return to work as he was a very important member of the team and his presence in the workplace (as a top performing sales executive) was a key requirement for the business. On that basis it is submitted that it would have made little sense for Mr. C to terminate the Complainant’s employment after Mr. A and Ms. B had already been instructed to, and did, spend time and effort in trying to address his concerns and secure ongoing attendance at work.

However, even if the Complainant’s account is correct (which is denied) it must be noted that there were immediate attempts to resolve the matter and advise the Complainant that his role remained open and that the role was not terminated. The Complainant however refused to engage with this information and refused to return to work. The Respondent had demonstrated that it was willing to and available to address any issues that the Complainant had and so the Complainant was obliged to engage with the Respondent prior to considering himself dismissed in circumstances that he (incorrectly) believed that Mr. C had wanted to dismiss him and was immediately advised that this belief was incorrect and that his role was open and that the Respondent was anxious to facilitate his return to work.

The Respondent submits that the Complainant has failed to discharge the burden of proof that:

a)       The Respondent’s conduct was so unreasonable that he could not reasonably be expected to continue in employment and was therefore justified in terminating his employment, and

b)      The Complainant brought his complaints to the Respondent’s attention and that the Complainant exhausted all reasonable requirements in seeking to have his complaints addressed prior to resigning as a last resort.

The Respondent relied upon the following cases in support of its position, namely: Harkin-v- Guinness Store House UD 469/2015; Berber -v- Dunnes Stores [2009] E.L.R. 61; Joyce -v- Brothers of Charity Services [2009] E.L.R. 328; Harold -v- St. Michael’s House [2008] E.L.R. 1.

The Law

Section 1 of the Unfair Dismissals provides the following definition of “dismissal”:

“dismissal”, in relation to an employee, means—

“(a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

(b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer.”

The key material facts in this case, including the fact of dismissal, were very much in dispute between the parties. Accordingly, it is a matter for the Complainant to establish that he has been dismissed by the Respondent. 

It was not in dispute between the parties that the Complainant was an excellent employee and that there had not been any issues in relation to the standard of his performance during his period of employment. It was common case that the Complainant was absent from work on sick leave for two weeks and returned to work on 4 February, 2019. It was also common case that the Complainant had claimed that this absence was due to work related stress and that he had raised concerns with management in relation to his hours of work and rest breaks. Having regard to the evidence adduced, I am satisfied that the Complainant and his Manager, Mr. A, and the General Manager, Ms. B, discussed these issues in an amicable manner at a meeting on 4 February, 2019 and that a mutually acceptable resolution was agreed between the parties to resolve these issues.

One of the key areas of conflict in evidence in this case relates to matters that transpired during the course of a meeting that took place later that morning on 4 February, 2019 between the Complainant and the Managing Director, Mr. C. The Complainant, on the one hand, claims that Mr. C was very aggressive and abusive towards him during this meeting and proceeded to berate him for having been absent from work on sick leave during the busy January period. The Complainant contends that the meeting concluded when Mr. C stated to him in an abrupt manner “give me the keys of your car, you’re done, you’re finished”. The Respondent, on the other hand, disputes the veracity of the Complainant’s account of his conversation with Mr. C during this meeting. The Respondent disputes that the Complainant was dismissed at this meeting and contends that Mr. C had a meeting with the Complainant to “try and get him to focus on the job”. The Respondent contends that the Complainant became agitated at this meeting and informed Mr. C that he was “giving up” his job. The Respondent contends that the Complainant put the keys of his company car on the table and walked out of the office thereby resigning his position.

The question that I must decide is whether, on the balance of probability, the Respondent’s Managing Director, Mr. A, used the words in question, and if so, whether the words amounted to a dismissal. Having regard to the totality of the evidence adduced, I am satisfied that the discussions between Mr. C and the Complainant at this meeting escalated into an acrimonious exchange with the result that the Complainant left the meeting in a somewhat distressed state. I have found the Complainant’s evidence on this matter to be more compelling and I find, on the balance of probabilities, that Mr. C did request the Complainant to return the keys of his car and that he did utter words of such a nature which indicated to the Complainant that he was being dismissed from his employment. In coming to conclusion, I have taken cognisance of the evidence adduced by Mr. A who stated that he had a brief conversation with the Complainant immediately after he left the meeting with Mr. C and that the Complainant informed him that he had been fired. While I accept that Mr. A was not a witness to the discussions between the Complainant and Mr. C at this meeting, I am satisfied that his evidence corroborates the Complainant’s contention that he left the meeting with Mr. C clearly believing that his employment had been terminated by way of dismissal.

As a general rule in cases where an employer has given an oral notice of dismissal to an employee, if it is expressed in unambiguous and unconditional terms, it results in the termination of the contract of employment. However, I note that there is a significant body of authority for the proposition that there are exceptions to this rule and that an employer may withdraw a notice of dismissal where “special circumstances” exist relating to the context in which the notice of dismissal was given.

In this regard, I have taken cognisance of the case of Martin v. Yeomen Aggregates Ltd [1983] IRLR 49 where it was held by the UK Employment Appeals Tribunal that: “ … It has obviously been contemplated in this Appeal Tribunal and has been contemplated for years that in the heat of the moment words which clear enough standing alone would indicate a dismissal can lose that effect if one looks at the surrounding circumstances. Of course, it must be a question of degree. Of course, you may get a situation in which the change of mind is so late that it is impossible to recover from the dismissory words expressed in the first place.”

It was held by the UK Court of Appeal in the case of Willoughby -v- CF Capital Plc [2011] IRLR 985 at paragraph 27 that: “the 'special circumstances' exception to which I have referred is one that finds its expression and application in several reported authorities. They are cases in which either the employee has given an oral notice of resignation or (less commonly) in which the employer has given an oral notice of dismissal. The words of the notice so given may, on the face of it, be clear and unambiguous and may take effect according to their apparent terms. Indeed, the general rule is that they will do so. The authorities recognise, however, an exception to that general rule: namely, that the circumstances in which the notice is purportedly given are sufficiently special that it will or may not take such effect. For example, the words of notice may be the outcome of an acrimonious exchange between employer and employee and may be uttered in the heat of the moment such that there may be a real question as to whether they were really intended to mean what they appeared to say. In such circumstances it will or may be appropriate for the recipient of such a notice to take time before accepting it in order to ascertain whether the notice was in fact intended to terminate the employment”.

It was held at paragraph 37 that: “It is rather in the nature of a cautionary reminder to the recipient of the notice that, before accepting or otherwise acting upon it, the circumstances in which it is given may require him first to satisfy himself that the giver of the notice did in fact really intend what he had apparently said by it. In other words, he must be satisfied that the giver really did intend to give a notice of resignation or dismissal, as the case may be”.

It was held atparagraph 38 that: “In my judgment, the true nature of the exception is rather that it is one in which the giver of the notice is afforded the opportunity to satisfy the recipient that he never intended to give it in the first place – that, in effect, his mind was not in tune with his words”.

While I note that these cases are not binding in this jurisdiction, they are persuasive authorities on the law applicable to cases such as this. It is clear from the relevant authorities that the special circumstances in which a notice of dismissal can be revoked include situations where the words indicating the dismissal have been uttered in the heat of the moment. Therefore, in order to establish if the special circumstances exception can be invoked in the circumstances of the instant case, it must be established that Mr. C had used the words in question in the heat of the moment and that he did not intend to dismiss the Complainant in the first instance and that all reasonable efforts were made to inform the him of this fact within a reasonable timeframe following the meeting on 4 February, 2019.

In considering this issue, I note that there was also a conflict in the evidence as to whether the Respondent took any measures after the meeting on 4 February, 2019 to try and resolve the situation and to assure the Complainant that his job was still available. The Respondent adduced evidence that both Mr. A and Mr. C contacted the Complainant within a short period of time after this meeting to inform him that he had not been dismissed. The Complainant accepts that he was contacted by both Mr. A and Mr. C in the aftermath of the meeting but disputes that either person informed him that they wished to resolve the matter or that his position was still available. The Complainant contends that it would not have been tenable for him to return to work in any event in light of the treatment to which he had been subjected by Mr. C during the aforementioned meeting.

Having regard to the totality of the evidence adduced, I have found the Complainant’s evidence on this matter to be more compelling and I find that the Respondent did not make all reasonable attempts to satisfy the Complainant that Mr. C wished to withdraw the words used during the meeting on 4 February, 2019 and that he did not intend these words to result in his dismissal. I take the view that it is highly significant that it was the Managing Director of the Respondent company who uttered the words on the date in question which indicated to the Complainant that he was being dismissed from his employment. I accept the Complainant’s contention that the bond of mutual trust in his working relationship with the Respondent had been broken as a result of the manner in which he had been spoken to by Mr. C on the 4 February, 2019. Moreover, I am satisfied that it was not unreasonable for the Complainant to conclude in the circumstances that it wasn’t possible for him to return to work in the absence of an explanation from Mr. C to reassure him that it had not been his intention to dismiss him at the meeting in question.

In the circumstances, and given the high standing of his position within the company, I am satisfied that it was incumbent on Mr. C to take decisive and swift action following the events that transpired on this date to reassure the Complainant that there had been a misunderstanding and that it hadn’t been his intention to terminate his contract of employment arising from the events that unfolded at the meeting. I have taken cognisance of the evidence of Mr. C that he informed Mr. A, Manager, after the Complainant had left the premises that he could ask the Complainant to return to the job “if he wanted him back”. I am satisfied that it was not appropriate for Mr. C to abdicate responsibility to Mr. A to provide the required reassurances to the Complainant having regard to all the circumstances of this case. I have found Mr. C’s evidence on this matter to be wholly unconvincing and I do not accept that he had any real intention or desire to try and reassure the Complainant that his position was still available to him after the events that transpired at the meeting on 4 February, 2019.  

I note that Mr. C adduced evidence that he contacted the Complainant by telephone from France “within a day or two” of the meeting and asked him to give him a call when he got back to Ireland. The Complainant vehemently disputes that this telephone call occurred within the timeframe stated by Mr. C and contends that it took place six days after he had been dismissed. I prefer the Complainant’s evidence on this matter, and I have found it significant that Mr. C did not indicate when adducing his evidence on this matter that he attempted to provide any reassurance to the Complainant that his position was still available during the course of this telephone conversation. Having regard to the foregoing, I find that the Respondent has not established that Mr. C did not intend to dismiss the Complainant on 4 February, 2019 and therefore it cannot invoke the special circumstances exception in this case.

Accordingly, I find that the Complainant was dismissed from his employment by the Respondent on 4 February, 2019 and that the dismissal was unfair within the meaning of Section 6 of the Act. Accordingly, I find that the complaint is well founded.

I find that the Complainant was unfairly dismissed by the Respondent within the meaning of Section 6 of the Unfair Dismissals Acts. Accordingly, I find that the complaint is well founded.

In accordance with the provisions of Section 7(1) of the Act I am obliged, having listened to the views of the parties as to preferred redress in the event of a finding of unfair dismissal, to determine which of the three forms of redress open to it is most appropriate having regard to the circumstances of this case. In the circumstances, I have decided that reinstatement or re-engagement of the Complainant is not a practical option in this case. Instead, I take the view that compensation is the appropriate redress in this case.

Section 7(2) of the Acts provides: -

“(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….”

Section 7(3) of the Act provides that future loss may be taken into account as follows: “financial loss, in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts 1967 to 1973, or in relation to Superannuation”.

Having regard to the above provisions of Section 7 of the Act, I am satisfied that financial loss can consist of a) actual loss i.e. loss of net income between the date of the dismissal and the hearing or decision, b) estimated future loss of income and c) pension losses. Such loss can be explicitly claimed or inferred from the evidence heard.

I have also taken into account, as I am required to do by Section 7(2)(c) of the Act, the extent to which the Complainant has taken measures to mitigate his loss. Having considered the evidence adduced on this point, I note that the Complainant was earning an annual salary of €53,000.00 in respect of his employment with the Respondent. The Complainant adduced evidence that he obtained alternative permanent employment on 8 April, 2019 and is earning an annual salary of €30,000.00 in his new job. I have received submissions from the parties in relation to the Complainant’s loss arising from his dismissal and his efforts to mitigate those losses, all of which I have taken into account in deciding the quantum of the award of compensation.

Having regard to the foregoing, I deem that an award of €25,000.00 to be the appropriate award in the circumstances of this case. This award takes into account the Complainant’s actual financial loss to date and the loss which I deem attributable to future loss of earnings arising from his dismissal. 

Unfair Dismissals Acts, 1977 to 2015 – Section 1 – Dismissal – Resignation - Complaint well founded – Compensation awarded