UDD1960

At the commencement of the hearing the Respondent informed the Court that they were no longer contesting the fact that dismissal was unfair and that the only issue before the Court was redress. The Respondent indicated to the Court that they had made an offer but that this had not been acceptable to the Complainant. The Complainant confirmed that the only issue before the Court was redress.

Remedy

Section 7 of the Act states

• 7.—(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances:
  (a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or
  (b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or
  (c) (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 undersection 17of 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, and the references in the foregoing paragraphs to an employer shall be construed, in a case where the ownership of the business of the employer changes after the dismissal, as references to the person who, by virtue of the change, becomes entitled to such ownership.

The Court has decided that reinstatement or re-engagement of the Complainant is not a practical option in this case. The Court instead takes the view that compensation is the appropriate redress in this case.

Loss

The Complainant’s representative informed the Court that the Complainant was unemployed from the 24^thNovember 2017 (the expiry date of his notice period) until the 4^thJune 2018. It was accepted by both parties that the loss for that period of time was €16,670. The Complainant then took up employment where he was received a higher rate of pay. That employment lasted from the 5^thJune 2018 until the 30^thof August 2019. The Complainant accepted that he was paid a higher rate for that job and that no loss accrued during that period.

It is the Complainant’s submission that he wished to claim for the losses that arose for the period 31^stAugust 2019 to date. It was his submission that relying on the decision inO’Kelly v WYG Engineering (Ireland) Ltd[2013] 24 E. L. R. 279 that a claimant’s loss does not automatically stop if further employment is secured and therefore, he is entitled to claim same. It was his submission that his losses for that period to the date of the hearing were 2,500.

The Complainant also submitted that he wished to claim for loss of VHI payments and pension payments. The Complainant was not in a position to submit to the court a calculation of the actual loss being claimed under theses headings and therefore the Court was not in a position to consider same.

In relation to mitigation of loss the Complainant provided the Court with printouts of on-line applications that he had made. He confirmed that all his efforts to secure employment were done on-line.

The Respondent submitted to the Court that it could not be held liable for any loss of earnings after the 4^thJune 2018 when the Complainant took up a higher paid job which he worked in for a period of 14 months. In theO’Kellycase referenced above the Court held that that the loss would stop if the complainant secured employment that was permanent. The Court went on to define permanent as the complainant having accrued one year’s continuous service in the job. In this case the Complainant had in excess of one year’s service in the new job and therefore the Respondent submits that those loses cannot be said to flow from the original dismissal.

In relation to the mitigation submitted by the Complainant it was the Respondent’s submission that in the main what had been provided were extracts from on line applications that appeared to have been issued on a sporadic basis and that very few responses had ben received.

Discussion

The issue of whether losses that accrue after the termination of further employment should be taken into account was considered in a decision of the English Employment Appeals Tribunal inCourtaulds Northern Spinning Ltd v Moosa[1984] I.R.L.R. 43 which held:

“..it is clear that the new employment has endured long enough to be protected by the unfair dismissal legislation the Industrial Tribunal should treat the loss flowing from the original dismissal as coming to an end at the start of the new employment.”

InSusan O’ Kelly and WYG Engineering Limited[2013] 24 E.L.R.279 when considering theCourtauldsdecision the Tribunal held “it seems to the Tribunal that this is a useful guide when considering the permanence of further employment”. Applying those principles to the facts of the case before this Court, the Court finds the Complainant secured permanent employment at a higher rate of pay on the 5^thJune 2018 and that any losses flowing from the cessation of that employment on the 30^thAugust 2019 cannot be said to flow from the original dismissal.

Having assessed all of the information before it the Court considers that the Complainant has suffered financial loss as a result of the dismissal. The Court considers it just and equitable in all the circumstances of this case to award the Complainant compensation in the sum of €15,000. The Court so determines.

Determination

The Court determines that the Complaint is well founded. The Court orders the Respondent to pay the Complainant compensation in the sum of €15,000. The decision of the Adjudication Officer is set aside.

The Court so determines.

Signed on behalf of the Labour Court



Louise O'Donnell
DC______________________
21 October 2019Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to David Campbell, Court Secretary.