UDD205

Shortly after the commencement of the hearing the Court took a short adjournment. Following that adjournment, 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 Representative for the Complainant confirmed to the Court that they were no longer pursuing the claim of a protected disclosure and that the only issue before the Court was redress in respect of the unfair dismissal.

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.
  In relation to a case falling within section 6(2)(ba) the reference in subsection (1)(c)(i) to 104 weeks has effect as if it were a reference to 260 weeks

  (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 was 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, F52 [ … ]

  (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) ofsection 14of 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.

Loss

It was agreed by the parties that in terms of the Court determining the Complainant’s annual salary that the pay figures on the P45 and the pay slip dated 12^thOctober 2018 could be relied on. These documents reflected an average annual salary of €37,440. The Complainant’s representative informed the Court that the Complainant had after the date of dismissal received additional income from the Respondent and had to date earned approximately €10,000. The Complainant in his evidence in relation to mitigating his loss informed the Court that he had made a few phone calls but that during the period in question there was not much work going in diving . He submitted three emails for the period June, July, and September 2019 to support his contention that he was actively seeking work. He informed the Court that apart from looking for work in the diving industry he had looked for work doing farm relief but was unsuccessful in his efforts.

It is the Respondent’s submission that there is plenty of work in the diving industry and someone with the skill set of the Complainant should have no difficulty in getting work. They themselves had struggled to get divers during the period in question.

It is the Respondent’s submission that the Complainant was an employee whose terms and conditions of employment including remuneration are clearly set out. The Complainant failed to attend for work in relation to a particular job as he felt he was not being adequately remunerated. The failure of the Complainant to turn up for work as rostered meant the Respondent had to hire in divers from abroad at very short notice incurring a substantial cost. It is the Respondent’s submission that the Complainant by his actions was one hundred percent responsible for the dismissal.

The Complainant submitted that the Respondent had not followed any procedure in coming to the decision to dismiss and therefore the Complainant was entitled to be compensated for the loss of earnings that arose following his dismissal.

Discussion

Having assessed all of the information before it the Court considers that the Complainant has suffered financial loss as a result of the dismissal. However, the Court finds that the Complainant by his actions contributed substantially to his dismissal and has not demonstrated that he actively sought to mitigate his loss. The Court considers it just and equitable in all the circumstances of this case to award the Complainant compensation in the sum of €7,488 which equates to ten weeks average salary. 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 €7,488. The decision of the Adjudication Officer is varied accordingly.

The Court so determines.

Signed on behalf of the Labour Court



Louise O'Donnell
MK______________________
28 January 2020Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Mary Kehoe, Court Secretary.