UDD2148

1.Appeal of Adjudication Officer's Decision No.ADJ-00026842 CA-00034035-003

In line with the normal practice of the Court, the parties are referred to in this Determination as they were at first instance. Hence, Jean Gillespie is referred to as the Complainant and Top Cap are referred to as the Respondent.

Background

The Complainant was employed as an Office Manager with the Respondent from the 1st November 2016 until her dismissal on the 4^thDecember 2019. The parties knew each other prior to the commencement of the employment relationship. The Complainant initially worked from home and then moved into an office space that the Respondent rented. The office space was about 5km from the Complainant’s home. The Complainant submits that there were issues with the new premises which impacted on an underlying condition that she had. This contributed to her being absent from work. The Respondent submits that in and around the start of 2019 the Complainant’s attitude towards work changed, in that she would leave the office during working hours without notifying anyone and leave her phones and emails unanswered. There were a number of issues following on from this and in August 2019 she was given a verbal warning. It is the Respondent’s submission that there were further issues in September 2019. On the 18^thNovember 2019 the Complainant messaged the Respondent five minutes before she was due into work saying she was sick and not coming to work. On the 26^thNovember 2019 the Complainant submitted an email advising that the conditions in the office were having a negative impact on her health and looking to revert back to working from home. The Respondent replied advising that she was not an employee of the Respondent. The Complainant remained on certified sick leave up to the 4^thDecember 2019.

At the Court hearing of this case, the Representative for the Respondent, advised the Court that the Respondent conceded and accepted that the dismissal of the Complainant in this case was unfair and that, consequently, the only issues before the Court were the appropriate redress to apply as per Section 7 of the Unfair Dismissals Act 1977, as amended and the contribution if any of the Complainant to her dismissal.






Respondent’s Arguments as to Redress


Regarding redress, the Court was informed that the Respondent’s preferred remedy in the circumstances of this case was that of compensation.

The Representative of the Respondent stated that notwithstanding the imperfect procedural manner in which the dismissal had been conducted, which was conceded, there were substantial grounds justifying the dismissal and the Complainant had contributed fully to her dismissal. The dismissal had arisen as a result of the Complainant’s conduct and the very grave concerns which the Respondent held in relation to the manner in which she was carrying out her duties at that time.
Mr Niall Byrne a Director of the Respondent in his evidence to the Court stated that he had issued the letter stating that “under no circumstances are you an employee of Top Cap” in anger. He had received an email from the Complainant on the 26^thNovember where she was complaining about the conditions of the office stating that they were contributing to her ill health and looking to work from home. This was the last straw for the Respondent a number of serious issues had surfaced in the Complainant’s absent arising from her failing to keep on top of her work. It was his evidence that when she went out sick, she did not contact him other than to send a text message to say she would not be in and that for eight days he heard nothing from her. The Complainant’s role in the organisation was pivotal, she was the point of contact for the customers and managed the diaries including the online diaries where jobs were logged. The Complainant was employed as the Office Manager as such she would have been aware of the need to let him know where things stood in the office if she was going to be absent. At the time the Complainant sent the text message to say she would be absent she was aware that the other worker in the office was going to be absent and that it was going to create severe difficulties for the Respondent yet she did not even put a call in to Mr Byrne It was Mr Byrne’s evidence that the type of issues that surfaced during her absence from the office were set out in his response to her email of 26^thNovember including jobs not being correctly recorded or recorded at all in the online work diary, customers not getting replies, payments not collected, all things that could impact on the viability of the company. It was his submission that the Complainant was aware at the time that the Respondent was in financial difficulty and facing possible bankruptcy. The Complainant had been put on formal notice of same on the 1^stSeptember 2019. It was Mr Byrne’s evidence that even though he had responded in that manner he did not think that the Complainant would not come back to the office at the end of her sick leave period. They Respondent never replaced the Complainant as they had to close the company shortly after her employment ended for a period to catch up with the work that had been booked in. In cross examination it was put to the witness that the Complainant was not the office manager. The witness stated that she was and that it was stated in the draft contract she had prepared for herself. It was put to Mr Byrne that he was aware that the Complainant had an underlying condition. It was his evidence that he was not aware of it that the majority of the medical certificates submitted by the Complainant stated viral illness or backpain or leg pain and only the last certificate stated she was absent due to a specific condition. It was his evidence that that would not have prevented her from ringing him and letting him know the workflow and the up to-date position of the diaries. In response to a question from the Court Mr O’ Byrne stated that in his view things had deteriorated since March 2019 but other than addressing a specific incident with her in August 2019 he had never addressed her absences with her.


Complainant’s Arguments as to Redress

The representative for the Complainant submitted that the Complainant’s preferred remedy in the circumstances was compensation and that they were seeking losses of €25,950 as set out in their submission. It was submitted that the Respondent’s conduct in dismissing the Complainant had been in breach of all of her fair procedural rights. The Court was requested to consider the reasonableness of the Respondent’s conduct in this regard, which it was submitted could not have been more unreasonable. The Complainant in her evidence stated it was simply not true to say the place was in a mess when she was there. When she was absent it was for medical reasons, she supplied medical certificates and there was another member of staff available to cover. It was the Complainant’s evidence that her recollection of the conversation in August 2019 was that they both agreed that there were things they wee not happy about in respect of the running of the company. Operationally she did not feel the company was being run right. She did recall some mention of her being hostile to a co-worker. The Complainant could not recall if she had ever raised the issues regarding the conditions in the office with the Respondent prior to her email of 26^thNovember 2019. In terms of mitigating her loss as required by the Act, it was the Complainant’s evidence that she did not find alternative employment until December 2020 apart from two or three days casual work, she had done. The new job she commenced in December 2020 pays €110 per week less than her old job. In response to a question from the Court the Complainant submitted that in the period of time since she ceased employment to December 2020 when she commenced her new employment that she had applied for a total of 4 or 5 jobs. The Complainant confirmed that she had not submitted payslips or any supporting document in terms of her efforts to look for employment or in respect of her current employment.


The Law


Section 7 of the Unfair Dismissals Act 1977, as amended, sets out the provisions dealing with redress as follows:

• 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:
  
  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
  
  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
  
  (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.
  
  (1A) In relation to a case falling within section 6(2) 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,

  (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.
  
  (2A) In calculating financial loss for the purposes of subsection (1), payments to the employee—
  
  (a)under the Social Welfare Acts, 1981 to 1993, in respect of any period following the dismissal concerned, or
  
  (b) under the Income Tax Acts arising by reason of the dismissal,
  shall be disregarded.
  

	Signed on behalf of the Labour Court
	Louise O'Donnell
CC	______________________
19 July, 2021.	Deputy Chairman