UDD1952

This is an appeal on behalf of St Colmcille’s (Kells) Credit Union Limited (‘the Respondent’) from a decision of an Adjudication Officer (ADJ-000131116, dated 24 April 2019) under the Unfair Dismissals Act 1977 (‘the Act’). The Adjudication Officer decided that Mr Patrick Leneghan (‘the Complainant’) had been unfairly dismissed from his employment with the Respondent and awarded him compensation of €25,500.00. The Respondent’s Notice of Appeal was received by the Court on 13 May 2019. The Court heard the appeal in Westport on 12 September 2019.

The Complainant’s Employment

It is common case that the Complainant has accrued considerable experience over some twenty-five years of working in the financial services sector. He was engaged by the Respondent on 5 July 2017 as Head of Lending and Business Development pursuant to a one-year fixed-term contract. His performance in the role over the course of his initial contract was to the Respondent’s satisfaction such that his contract was renewed for a further term of one year with effect from 6 July 2018. However, the Complainant’s employment was terminated on 30 January 2018 due to alleged underperformance.

Issues before the Court

The Respondent conceded from the outset of the appeal that it had not followed fair procedures in effecting the Complainant’s dismissal. The appeal, therefore, is confined to quantum. There are two aspects to the Respondent’s submission to the Court: (i) the Complainant’s contribution to his own dismissal; and (ii) the adequacy of the Complainant’s efforts to mitigate his loss.

Contribution by Complainant to his Own Dismissal

Ms Margaret Smith, CEO of the Respondent gave evidence and was cross-examined in relation to her concerns about the Complainant’s performance of his duties during the period of his second fixed-term contract. Ms Smith told the Court that she and the Respondent’s Board had been satisfied with the Complainant’s performance during his first fixed-term contract. In that period, he had grown the Respondent’s loan book by 55%.

Examples of the concerns about the Complainant’s performance from about July 2017 onwards included: a query raised by the Central Bank about a loan for €100,000.00 approved by the Complainant but the application file for which did not include sufficient detail; an excessively large car loan approved by the Complainant to a member whose only source of income was social welfare; another loan of €4,000.00 given to a Member on social welfare and with seven dependents, in breach of internal guidelines; and an unguaranteed car loan given to a nineteen-year old member who was not in full-time unemployment.

According to Ms Smith, difficulties also arose when she attempted to ascertain information from the Complainant that was required to deal with queries raised by the Respondent’s external auditor and/or by the Central Bank. The Complainant presented Key Performance Indicators and other projections in relation to business development to Ms Smith that she required to prepare a report for the Board (and ultimately) the Central Bank that simply did not add up with the result that Ms Smith found herself effectively completing an important part of the Complainant’s job.

Mitigation of Loss

It is common case that the Complainant’s salary while in the Respondent’s employment was €60,000.00 per annum. He was not in receipt of any additional bonus or benefits. The Complainant gave evidence of his efforts to mitigate his loss following his dismissal. He told the Court that had registered with a number of named agencies and had applied for some two-hundred-and-fifty jobs in financial service and sales. However, he had been invited to interview on only five or six occasions. The Complainant did not submit any copies of job applications or letters of reply from potential employers in support of his evidence.

Discussion and Decision

None of Ms Smith’s evidence about the Complainant’s underperformance between July 2017 and his eventual dismissal in January 2018 was traduced in her cross-examination by Mr O’Dwyer, Solicitor for the Complainant. It follows that the Court has to regard Ms Smith’s evidence as uncontested and accepted by the Complainant.

The Complainant’s evidence of his efforts to mitigate his loss, unsupported as it was by any documentation, was less than satisfactory.

On the basis of the foregoing and having regard to the Respondent’s unqualified admission about its failure to follow fair procedures, the Court affirms the Adjudication Officer’s decision that the Complainant was unfairly dismissed by the Respondent. However, the Court finds that the Complainant contributed in no small measure to his own dismissal and that, furthermore, he has failed to produce credible evidence to the Court that he has made sufficiently rigorous attempts to mitigate his loss in the period between his dismissal and the date of the within hearing. Accordingly, the Court determines that the appropriate compensation payable to the Complainant is €12,750.00. As this is compensation for loss of remuneration arising from the complainant’s unfair dismissal it is subject to taxation in the normal way.

The Court so determines.

Signed on behalf of the Labour Court



Alan Haugh
CR______________________
26 September, 2019Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.