Complainant

Respondent

Anonymised Parties

Director of Development

A Third Level College

Representatives

MP Guiness BL instructed by  Whitney Moore Law Firm

Arthur Cox

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00030730-001

09/09/2019

The complainant was employed by the respondent as a Director of Development on the 17th of September 2001. He was paid €12,138.33 gross and €8,430.13 net per month. He was given notice on 1st of February 2019 that his employment was being terminated on the 15th of March 2019. He is claiming that he was unfairly dismissed, and he is seeking reinstatement.

The respondent stated that they entered into an agreement with the complainant in March 2017, that he would retire on the 14th of February 2018 when you reach the age of 66.   As part of that agreement a number of matters were agreed between the parties including an agreement that the complainant would be paid an ex gratia termination payment of €140,000, which was subject to approval by the Departments of Education and Skills. The necessary Departmental approval was not forthcoming and this aspect of the agreement, which was contingent on such approval, could not be honoured. The respondent did not terminate the complainant’s employment as contemplated by the agreement on the 14th of February 2018. He was retained on the payroll without requiring him to undertake any work on behalf of the respondent for a period of 13 months. During this period, he was paid his full salary of €157, 798. His employment was terminated with statutory notice on the 15th of March 2019. 

Legal submission

It was submitted that the respondent is not seeking to justify the dismissal for any of the reasons outlined in section 6 of the Unfair Dismissals Act. It was submitted that technically it was an unfair dismissal and the only matter for consideration is the appropriate remedy. It was submitted that reinstatement, as sought by the complainant, is not appropriate and compensation is the appropriate remedy. However, the complainant has failed to mitigate his lost since his dismissal. It was submitted that the complainant has a statutory duty to mitigate his loss under section 7(2) of the UD Act. The complainant has failed to supply details of his attempts to mitigate his loss I was referred to the case of Coad vs Eurobase Ltd UD1138/2013, where the it was found that the complainant failed to adequately mitigate his loss and had not met the standards set out in Sheehan vs Continental Administration Co. Ltd UD858/1999 which stated:

“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 his loss."

It was submitted that the complainant suffered no loss as he was retired from his employment and was paid a tax-free lump sum of €96,595 and he has been paid an annual pension of €28,000 from the respondent’s pension scheme. In addition, he is receiving the state pension scheme. It was submitted that the complainant did not challenge the termination of his employment at the time or appeal the decision and he has publicly accepted on his professional profile that he retired from the respondent’s employment in March 2017. It was further stated that reinstatement is not an appropriate remedy because the complainant’s role has not been replaced and respondent has no intention of filling the position.

I was referred to the decision of the Governor and Company of the Bank of Ireland vs Reilly [2015] IEHC 241, the High Court observed: ‘At the end of the day, the court has to grant the remedy which will do justice between the parties.’ It was submitted that ‘justice’ in these circumstances must be adjudicated on against the backdrop of the agreement reached in 2017, which both parties entered i freely and the complainant had the benefit of professional advice.

In conclusion, it was submitted that the complainant has not demonstrated that he has suffered any loss attributable to the termination of his employment and he has failed to demonstrate any meaningful attempts to mitigate his loss. in the circumstances pertaining to this case the appropriate remedy could only be compensation and where no loss can be attributable to the dismissal the maximum award of compensation that should be considered is 4 weeks renumeration.

The complainant said he was employed by the respondent as Director of Development in 2005 on a series of fixed term contracts. in October 2015 he took a claim to the WRC under the Protection of Employees (Fixed Term) Act and he was successful in securing a contract of indefinite duration. On the 20th of May 2016, the respondent wrote to the complainant confirming he was being issued with a contract of indefinite duration. The letter stated “Furthermore please note that your continued employment by the university is contingent on the ongoing availability of work of the type in which you are currently engaged. Should the university’s requirements for this work decline or cease in full, for whatever reason, the university reserves the right to assign you to alternative work in line with your skills and experience and its organisational requirements. Should such reassignment opportunities mot exist the university may have to terminate your employment in the future.”

The complainant said that the main reason he took his action was to secure the right to work until he was 70 years of age in line with the new public service rules which issued around that time for those who joined the Public Service between certain years.

He submitted that he intended to continue to work until the age of 70. In September 2016 the HR director spoke with a complainant and raised the prospect of an agreed exit package. An agreement was entered into between the complainant and the respondent in February 2017, which had a number of provisions, including the complainant giving up his right to work up to the age of 70, the payment of €140,000 on the termination of his employment and an application by the university for added years to his pension. He said it was always represented to him that they consent of the Department was merely a rubber stamp.   He went on garden leave on full pay in March 2017 as provided for in the agreement. However, the consent of the department was ultimately not forthcoming.

In January 2018, the complainant said he received a call from the HR manager explaining that they had not reached agreement with the Department and that he was now free to look for alternative employment and they would continue to pay him at this time. The complainant said he was unhappy with this and he told her that he had a contract of indefinite duration and he expected it to be honoured. On the 1st of February 2019, the complainant said that he got a letter from HR manager stating his employment was being terminated. He got his statutory notice entitlements of 6 weeks and his employment came to an end on the 15th of March 2019.

The complainant said that he is seeking reinstatement because he has at the loss of 3 years pension contributions on his pension and an entitlement to purchase added years for pension purposes. He accepted that all the elements of their agreement were honoured accept the ex-gratia payment element. 

Legal Submission

It was submitted that the complaints role and responsibilities were being carried out by another employee at the time his employment was terminated. Therefore, he was unfairly dismissed. He acted to his detriment by relying on representations made up by the respondent and going on gardening leave. There was an onus on the respondent to consider reassignment in line with his skills and experience as provided for in his contract of indefinite duration. It was submitted that the complainant’s role existed at the time his employment was terminated and that he was unfairly dismissed. He is seeking reinstatement to the position or an equivalent position in line with his experience and skills as the effect of terminating his employment had a considerable impact on his pension and in order to get effective redress, compensation is not an appropriate it is only by reinstatement that the pension loss can be rectified.

The only matter I must consider is the appropriate redress under Section 7.

S.7(1) of the UD Act provides:

“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 under section 17 of 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,”

The only matter I have been asked to consider is the appropriate redress as a respondent conceded that the complainant was unfairly dismissed. The complainant is seeking reinstatement and respondent stated that compensation is the appropriate remedy as the position the complainant occupied no longer exists.

Having considered the matter, I am satisfied that compensation is the appropriate redress. 

In relation to compensation the respondent submitted that the complainant has failed to mitigate his loss and that in any event he has suffered no financial loss as a result of the dismissal. The complainant submitted that he has been seeking work 

 I am satisfied that the complainant has been seeking work, but it is much more difficult for a person of his age to secure a job than a younger person. I am satisfied therefore that he has mitigated his loss. in considering the amount of compensation to award, I note that they complainant intended to work until he was 70 and because of his dismissal he has suffered a diminution in his in current pension rate and he did not buy extra years for his pension as he had intended.  

I note at the time of the dismissal the complainant had 2-years and 11 months to work before reaching his 70th birthday the date on which he intended to retire. I have calculated his financial loss for this period and taken into consideration his pension payments and lump sum. Having given these matters due consideration, I find an award of compensation of €85,000 is just and equitable in the circumstances.

I order the respondent to pay the complainant compensation in the amount of €85,000 pursuant to Section 7(1)(c)(i) of the Act.

Unfair Dismissal Act, Reinstatement, Compensation, Mitigation of loss