FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : CRIBBIN FAMILY BUTCHERS T/A THE BUTCHERS BLOCK - AND - MR PÁDRAIG SHORTT (REPRESENTED BY CORK OPERATIVES BUTCHERS / IWU) DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision no. ADJ-00025490, CA-00032163-001 The Appellant commenced employment with the Respondent on 6thSeptember 2018 and his employment was terminated with effect from 5thSeptember 2019. Preliminary issue The Respondent submitted that the Appellant had not been employed for a continuous period of twelve months on the date of his dismissal and consequently did not have the service necessary to enjoy the protection of the Act. The Appellant contended that he was employed by the Respondent for a continuous period of twelve months and consequently did enjoy the protection of the Act. The Court gave the Respondent an opportunity to clarify how the Court could conclude that an employment commencing on 6thSeptember 2018 and terminating on 5thSeptember 2019 was not of the duration necessary to afford the Appellant locus standi under the Act having regard to section 2(1)(a) which provides as follows: 2(1) Except in so far as any provision of this Act otherwise provides this Act shall not apply in relation to any of the following persons: (a)an employee (other than a person referred to in section 4 of this Act) who is dismissed, who, at the date of his dismissal, had less than one year’s continuous service with the employer who dismissed him, The Respondent was not in a position to support his contention that the Appellant did not have twelve months continuous at the date of his dismissal.The Court concludes that, by operation of the law, his employment having commenced on 6thSeptember 2018 and terminated on 5thSeptember 2019, the Appellant had sufficient continuous service with the Respondent as to mean that the exclusion set out in Section 2(1)(a) of the Act has no application in the within appeal. Summary position of the Respondent The Respondent submitted that the Appellant had worked satisfactorily for the first three months of his employment but that thereafter he had lacked a lot of what the Respondent needed from staff. The Respondent submitted that the Appellant had been repeatedly spoken to by Mr S.N., a shareholder who was responsible for monitoring the shop where the Appellant worked and for assisting there when required. He had been repeatedly advised that the Respondent had concerns as regards his performance at work. In early August 2019 another shareholder, Mr P.N., attended at the shop where the Appellant was working and he was disgusted with the Appellant’s attitude and performance. The three shareholders subsequently met and decided that the Appellant’s employment would be terminated by Mr S.N. on his return from leave. On 30thAugust 2019 Mr S.N. met the Appellant and advised him that his employment was to be terminated and gave him notice of one week which expired on 5thSeptember 2019 which was the last day he attended for work. The Respondent confirmed to the Court that the Appellant had been provided with a contract of employment and a handbook on commencement of his employment as was the case with all employees. That handbook contains a detailed disciplinary procedure which includes, for example, a progressive structure of warnings. The Respondent submitted that this procedure was not applied to the Appellant and he was never given a warning under the terms of the written disciplinary procedure. The Respondent’s practice was to have an informal discussion whenever an issue arose with staff as opposed to applying the disciplinary procedure in place in the employment. The Respondent submitted that it was of the understanding that the Appellant had less than twelve months continuous service on the date of his dismissal and that this would have been an understanding shared by the three shareholders when they made the decision to dismiss. The Appellant had been placed on probation for a period of six months on recruitment and the Respondent did not exercise the option contained in the contract of employment of extending that probation Mr S.N gave evidence on behalf of the Respondent. He confirmed that he was responsible for monitoring the shop where the Appellant worked and for helping out when required. He confirmed that he had spoken to the Appellant on a number of occasions to advise him that his performance was not satisfactory. He did advise the Appellant on a number of occasions that he could lose his employment if his performance did not improve. On those occasions there would be a temporary improvement, but he would fall back again. He said his practice was to engage informally with employees in a “softly softly” manner. Summary position of the Appellant The Appellant submitted that he had never received a complaint from the Respondent as regards the quality of his work and can only speculate as regards the reason for his dismissal. He did have a disagreement with the manager of the shop where he was employed on an occasion that the manager was taking holidays and advised the Appellant that he would have to act as manager in his absence. The Appellant had refused to take up that position in the absence of any recognition in terms of pay. The Respondent dismissed him with effect from 5thSeptember 2019 and gave him no reason for his dismissal. The Respondent gave him no opportunity to address any concerns and followed no procedure in relation to the dismissal. Prior to his dismissal the worker earned €517 per week. He succeeded in securing part time employment within two weeks of his dismissal. He received €375 per week for three days work each week. He did not actively seek full time employment following his securing part time employment. His part time employment came to an end on 14thMarch 2020 upon the outbreak of Covid-19. He did not actively seek replacement employment from that point onwards until October 2020 when he secured full time employment. He receives more wages per week in that employment than he received when employed by the Respondent. Relevant law The Act at Section 1, in relevant part, defines dismissal as follows: “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, Section 6(1) of the Act makes provision as follows: 6. (1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.Section 7 of the Act, in relevant part, provide 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 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,…. (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, ….. (f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal. Discussion and conclusions The Court has noted carefully the background to the dismissal of the Appellant. There is no submission from the Respondent that any procedure was conducted wherein the Appellant was afforded the opportunity to address any allegation against him which might lead to his dismissal or to respond to any case made against him. The decision to dismiss the Appellant was taken unilaterally by the three shareholders of the business without engagement with the Appellant at all. The Court takes into account the provisions of S.I. No. 146/2000 - Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) which emphasises the importance of ensuring that an employee is aware of any disciplinary procedure which is initiated in respect of him or her and to know any case being made against him or her and to have a fair opportunity to respond to any such case. The extensive jurisprudence of this Court and the Employment Appeals Tribunal is to the effect that an employer contemplating disciplinary sanction against an employee is obliged to ensure the observance of fair procedure and natural justice before making a decision in relation to the matter. In the within matter, despite the existence of a detailed disciplinary procedure which had been made known to the Appellant at the commencement of his employment, no procedure at all was followed and the decision to dismiss was taken without engagement with the employee. In addition, the Appellant was given no right to appeal his dismissal. It may or may not be significant that the Respondent was of the understanding that, at the date of his dismissal, the Appellant did not enjoy the protection of the Act. The Court has concluded that, in the absence of the operation of a fair procedure or any procedure at all in dismissing the Appellant, the Respondent has failed to discharge the burden resting upon it to establish that the dismissal was fair and that the dismissal was unfair as a result. The Court has concluded that, having regard to circumstances of the matter, the appropriate redress is compensation. In determining the amount of compensation which is just and equitable in all of the circumstances, the Court takes into account the measures adopted or not adopted by the Appellant to mitigate his loss. The Appellant submitted to the Court at the hearing that he secured part-time employment two weeks after his dismissal. He submitted that from that point onwards his losses amounted to €142 per week until the loss of his replacement employment as a result of the global pandemic on 14thMarch 2020. The Court notes that the Appellant made no active effort to mitigate his losses further once he gained part-time employment two weeks after his dismissal. The subsequent loss of his part time employment arose from the effects on his new employment of the Covid-19 pandemic rather than his dismissal from the employment of the Respondent. In those circumstances, the Court takes account of the losses incurred in the two weeks following his dismissal, the level of loss suffered while he was engaged in part-time employment and a continuation of that level of loss following the loss of his part-time employment. However, the Court also applies a reduction in compensation to reflect the failure of the Appellant to actively seek to mitigate his losses at all after he secured part-time employment including after that employment came to an end. Decision The Court decides that the Appellant was unfairly dismissed, and that compensation is the appropriate remedy. Having regard to the Appellant’s failure to make adequate active efforts to mitigate his loss, the amount of compensation which the Court determines is just and equitable in the circumstances is €4,000. The decision of the Adjudication Officer is set aside. The Court so decides.
NOTE Enquiries concerning this Determination should be addressed to Heather Murray, Court Secretary. |
