Complainant

Respondent

Parties

Dylan  O'Riordan

Andras Kelemen Weescape

Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00038670-001

11/07/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00038670-004

11/07/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00038670-005

11/07/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00038670-006

11/07/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00038670-007

11/07/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00038670-008

11/07/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00038670-009

11/07/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00038670-010

11/07/2020

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

CA-00038670-011

11/07/2020

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings.

An affirmation was administrated to the parties who gave evidence at the hearing in accordance with the Workplace Relations (Miscellaneous Provisions) Act 2021.

The Complainant was employed as a Marketing Manager with the Respondent from 01 December 2018 to 12 April 2020. He earned €392.40 gross for a 36-hour week. The Complainant’s Complaint Form was received by the Workplace Relations Commission on 11 July 2020.

CA-00038670-001 – Organisation of Working Time Act 1997

The Complainant gave evidence that his usual days of work were Friday – Sunday but did not receive additional monies for Sunday work. He stated he was paid a set sum of €392.40 per week from 1 August 2019. He stated he worked 7 days per week to maintain the website and booking system and was put in charge of special projects and bookings.

CA-00038670-004 – Payment of Wages Act 1991

The Complainant states he is due the following sums of money:-

·       1 weeks salary of €392.40  for his last week of work from 9 March – 16 March 2020.

·       4 week notice of €1,569.60

·       5 weeks annual leave entitlement of €1,962.00

Email correspondence was referred to between the Complainant and Respondent wherein he sought to recover these monies between March and July 2020.

CA-00038670-005 - Organisation of Working Time Act 1997

It was the Complainant’s evidence that he took 2 holidays during his employment; the first in May 2019 from Monday – Thursday but was contacted by the Respondent as these were issues with the games and the second in January 2020 for a week but was again contacted by his employer.

The Complainant referenced his contract which stated he was entitled to 21 days annual leave days per calendar year. A letter from the Respondent’s solicitor was presented dated 28 April 2020 which stated in relation 2019; “Neither of you took the full 21 days in 2019 and therefore you have forfeited your right to those holidays. By law you would not be entitled to compensation for these dates as the contract does not allow you to carry unused holidays over to the next year.”

In relation to 2020 the letter noted:-

“I understand that you each took holidays from the 2nd of January until the 9th of January 2020 and therefore, you are not owed holiday pay for this year.”

CA-00038670-006 - Organisation of Working Time Act 1997

The Complainant states he was informed of his entitlement for public holidays nor did he receive anything for working public holidays. The Complainant gave evidence that he did worked on the following public holidays:

·       18 March 2019 – 1-5pm

·       22 April 2019 – 1.45pm – 5pm

·       3 June 20219 – 6.15pm – 7.45pm

CA-00038670-007 - Payment of Wages Act 1991

The Complainant gave evidence that his contract of employment provided for four weeks’ notice.In an email of 16 March 2020 from the Respondent,  he stated:

“It’s so hard to write this letter, but i have to officially confirm that your contract with Weescape will end on the 12th of April (in four weeks).”

The Complainant continued to seek a response from the Respondent when the monies were not paid on 12 April 2020.

By letter dated 28 April 2020, the Respondent’s solicitor wrote to the Complainant and stated in response to his claim for notice pay:-

“You were advised that your employment was to be terminated in March of this year and due to the Covid 19 crisis, our client was forced to close the business on the 15th of March last. You are aware that in the weeks prior to the closure, the amount of booking was significantly reduced and therefore, there were no funds to pay you.

The State payment of €350.00 is available to those who have lost their jobs as a result of Covid 19 and you were eligible to claim this payment from the date that our client stopped paying you. I understand that you have claimed this payment and you cannot claim both your wages and the state payment. “

The Complainant sent numerous other emails seeking payment of the contracted four weeks’ notice but was unsuccessful in seeking payment from the Respondent. His total claim for four weeks unpaid notice amounts to the sum of  €1,569.60.

CA-00038670-008 - Organisation of Working Time Act 1997

The Complainant gave evidence that he did not receive any or any adequate breaks while working with the Respondent. He stated there was no scheduled breaks. He gave evidence that the games were 1.5 hours which did not allow for breaks. He would often eat at the desk

Upon enquiry he stated that there was no lock in system for breaks; only upon arrival and departure.

CA-00038670-009 - Organisation of Working Time Act 1997

The Complainant’s evidence was the he gave the weekly hours to the Respondent who in turn gave them to his Accountant for payroll. He gave evidence to that the Respondent never raised an issue with the hours or time sheets. He stated that he would work 2pm – 10pm Monday- Thursday on admin and answering calls. On Friday – Sunday he would go into the premises to run the games.

Time sheets were presented at the hearing.

CA-00038670-010 – Terms of Employment (Information) Act 1994

The Complainant gave evidence that received a contract of employment until November 2018 and a second contract in October 2019. At the time he took issue with a number of the clauses of the October 2019 contract. Further evidence was given the period of negotiation he entered into on the period in August 2019 to October 2019 with the Respondent via his solicitor on the terms of the contract. The Complainant states that even in October 2019 the contract did not fully reflect his role with the Respondent, but he felt having any contract was better than none.

CA-00038670-011 – Unfair Dismissal Act 1977

On 16 March 2020,  the Respondent emailed the Complainant confirming that his contract would end of 12 April 2020 “(in four weeks)”. He continued to, “ It is a sad moment but due to the deep impact caused by the Coronavirus to our business, I have no other choice. I prefer to make this decision before it was too late.” He ended that emailed by thanking him for his great work with the business.

On 28 April 2020 the Respondent’s previous solicitor wrote to the Complainant referring to the contract of employment. The solicitor stated in relation to the termination:-

“You were advised that your employment was to be terminated in March of this year and due to the Covid 19 crisis, our client was forced to close the business on the 15th of March last. You are aware that in the weeks prior to the closure, the amount of booking was significantly reduced and therefore, there were no funds to pay you.

The State payment of €350.00 is available to those who have lost their jobs as a result of Covid 19 and you were eligible to claim this payment from the date that our client stopped paying you. I understand that you have claimed this payment and you cannot claim both your wages and the state payment.”

The Complainant sent numerous emails and messages to the Respondent in the hope of resolving matters before submitting his complaints to the WRC.

CA-00038670-001 – Organisation of Working Time Act 1997

The Respondent did not put forward any submissions in response to the claim for Sunday compensation.

CA-00038670-004 – Payment of Wages Act 1991

Upon enquiry, the Respondent accepted that he did not pay the one week wages between the termination and closing of business.

CA-00038670-005 – Payment of Wages Act 1991 Time Act

The Respondent did not offer any evidence on the claim for annual leave.

CA-00038670-006 - Organisation of Working Time Act 1997

The Respondent did not offer any evidence on the claim for public holidays.

CA-00038670-007 - Payment of Wages Act 1991

The Respondent did not contradict or challenge the evidence of the Complainant in relation to the notice period. The Respondent in his own evidence did refer to his email of 16 March 2020 which expressly states that his employment would end on “12th April (in four weeks)” Therefore, I find the complaint well founded.

CA-00038670-008 - Organisation of Working Time Act 1997

No evidence was offered by the Respondent in relation to this claim.

CA-00038670-009 - Organisation of Working Time Act 1997

Upon cross examination the Respondent’s solicitor raised the question of the time commitment required by the Complainant in his final year of Applied Psychology in UCC. The Complainant accepted that he undertook 2-3 assignments and exams over a 3-month period, was on campus 4 days a week but did miss lectures because of work. The Complainant accepted he “was working within business hours.”

The Respondent’s representative put it to the Complainant that he could not have worked 36 hours and studying full time in final year.

CA-00038670-010 – Terms of Employment (Information) Act 1994

The issue of the 2019 contract was raised by the Respondent’s solicitor when he asked why the Complainant took 3 months to return to the contract and noted he was unhappy with the contract. The Complainant gave evidence that the delay was with the Respondent and his solicitor. The Complainant was asked why he did not walk away , to which he relied; “I was a student with a  part time job. They were hard to come by. I loved the industry.”

CA-00038670-011 – Unfair Dismissal Act 1977

It was submitted on behalf of the Respondent that the Complainant gave his notice of termination of employment on 21 February 2020. This was denied by the Complainant whose evidence was to he was unhappy with aspects of the business and he had intended to leave to the Respondent after he completed his degree in June 2020. The Respondent took up this point later in the hearing again and pointed to the time after the Complainant’s exams/graduation in May 2020 and his intention to leave the business. The Complainant denied this by stating; “ No I did not hand in my notice”.

The Respondent raised issues about the sharing of passwords and the failure of the Complainant to give him a full list of the passwords and instructions on the various systems. Upon enquiry he stated; “why should I ask about passwords” from the Complainant. He was asked whether he made any effort to go through the systems? The Respondent stated that there was an upgrade of systems in Summer 2019 and stated to the  Complainant that he gave him over the phone, emails etc.  He stated that he was “a bit far from the business” in relation to the day to day operations of the business.

It was submitted that the Complainant said the Respondent was no worthy of being CEO following an impromptu conversation in  December 2019. It was further submitted that the Complainant was effectively running the business.

The Respondent submitted that the Complainant wrote his own reference. The Complainant was an educated man, with the Respondent not having the benefit of third level education. Therefore, the Complainant was in an advantageous position over the Respondent in his dealings.

It is important to note that for all the legislation which the Complainant seeks to rely on there is a statutory limitation in terms of time. In general, the legislation provides for a time limit of 6 month to initiate a claim. In relation to the Payment of Wages Act 1991, Section 6 (4) provides:-

“(4) A rights commissioner shall not entertain a complaint under this section unless it is presented to him within the period of 6 months beginning on the date of the contravention to which the complaint relates or (in a case where the rights commissioner is satisfied that exceptional circumstances prevented the presentation of the complaint within the period aforesaid) such further period not exceeding 6 months as the rights commissioner considers reasonable”

Similarly, Section 27 (4) of the Organisation of Working Time Act 1994 provides:-

“(4) A rights commissioner shall not entertain a complaint under this section if it is presented to the commissioner after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

Consequently, I am limited as to how far I can look back at the claims where,  aside from the Unfair Dismissal claim, the remaining claims relate to events in 2019 up to the date of Complaint Form was submitted to the WRC on 11 July 2020 with his date of termination of employment being 12 April 2020.

CA-00038670-001 – Organisation of Working Time Act 1997

The contract of employment dated October 2019 furnished to the Complainant does not address Sunday pay. In the absence of a specific clause address Sunday compensation in addition to the failure of the Respondent to give evidence on this claim at the hearing , I find the complaint is well founded.

However, I must also have consideration for the time limit imposed by Section 27 (4) of the Act while the Complaint Form was submitted to the WRC on 11 July 2020 with his date of termination of employment being 12 April 2020. 

CA-00038670-004 – Payment of Wages Act 1991

There are a number of claims duplicated under this head of claim. Therefore, I only propose to deal with the claim relating to the non payment of the weeks wages. The fact that that one weeks wages was accepted in the Respondent’s solicitor letter of April 2020. Therefore, I find this complaint well founded.

CA-00038670-005 - Organisation of Working Time Act 1997

Section 19 of the Act sets out an employee’s annual leave entitlement:-

19.—(1) Subject to the First Schedule  (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—

(a) 4 working weeks in a leave year in which he or he works at least 1,365 hours (unless it is a leave year in which he or he changes employment),

(b) one-third of a working week for each month in the leave year in which he or he works at least 117 hours, or

(c) 8 per cent. of the hours he or he works in a leave year (but subject to a maximum of 4 working weeks):”

The contract of employment at Clause 23 states:-

“Upon termination of employment, the Employer will compensate the Employee for any accrued but unused annual leave.”

The letter of 28 April 2020 to the Complainant is simply incorrect in its interpretation of the law. The 1994 Act is clear that there is an onus on the employer to ensure an employee is facilitated with their full annual leave entitlement. The evidence in this case is the Respondent did not fulfil his duty in this regard. It is accepted that the Complainant took annual leave in January 2020. What the letter does confirm is the Complainant has annual leave which was not taken. Referring to Clause 23 of the contract which is in line with Section 23 of the Act in that upon termination  of employment:-

“23.—(1) Where—

(a) an employee ceases to be employed, and

(b) the whole or any portion of the annual leave in respect of the current leave year or, in case the cesser of employment occurs during the first half of that year, in respect of that year, the previous leave year or both those years, remains to be granted to the employee, the employee shall, as compensation for the loss of that annual leave, be paid by his or his employer an amount equal to the pay, calculated at the normal weekly rate or, as the case may be, at a rate proportionate to the normal weekly rate, that he or he would have received had he or he been granted that annual leave.”

There is no provision for time in lieu in the contract nor was any record presented. However, I do find the annual leave complaint well founded.

CA-00038670-006 - Organisation of Working Time Act 1997

Section 27 (4) of the Organisation of Working Time Act 1997 provides:-

“(4) A rights commissioner shall not entertain a complaint under this section if it is presented to the commissioner after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

The complaint form was submitted on 11 July 2020. The public holidays identified related back to 2019. Applying Section 27 (4) of the 1997 I do have jurisdiction to decide on these claims as they are out of time. Consequently, the claims are not well founded.

CA-00038670-007 - Payment of Wages Act 1991

Upon review of the contract of employment signed by the parties on 28 October 2019 at Clause 12 it is noted that there is a clear notice period of 2 weeks. Therefore, the Complainant’s claim that he is entitled to 4 weeks’ notice is not accepted. It appears he was referring to previous contracts of employment.

Again, upon inquiry the Complainant gave evidence that there was no payslips available from the Respondent. This was not rebutted by the Respondent at the hearing.

Numerous emails were presented by the Complainant as evidence of his requests to the Respondent for the payment of his notice period including the Respondent’s own email of 16 March 2020 wherein he accepts and refers to in his own evidence the notice period.

Consequently, I find the claim is well founded.

CA-00038670-008 - Organisation of Working Time Act 1997

Section 12 of the Act sets out the requirements for daily rest periods:-

“12.—(1) An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her a break of at least 15 minutes.

(2) An employer shall not require an employee to work for a period of more than 6 hours without allowing him or her a break of at least 30 minutes; such a break may include the break referred to in subsection (1).

(3) The Minister may by regulations provide, as respects a specified class or classes of employee, that the minimum duration of the break to be allowed to such an employee under subsection (2) shall be more than 30 minutes (but not more than 1 hour).

(4) A break allowed to an employee at the end of the working day shall not be regarded as satisfying the requirement contained in subsection (1) or (2).”

Where the burden of proof rests with the Respondent and no evidence offered by the Respondent on the break times, I accept the evidence of the Complainant. Therefore, I find the complaint well founded.

CA-00038670-010 - Organisation of Working Time Act 1997

“13.—(1) In this section “daily rest period” means a rest period referred to in section 11 .

(2) Subject to subsection (3), an employee shall, in each period of 7 days, be granted a rest period of at least 24 consecutive hours; subject to subsections (4) and (6), the time at which that rest period commences shall be such that that period is immediately preceded by a daily rest period.”

Section 11 defines a rest period as :-

“11.—An employee shall be entitled to a rest period of not less than 11 consecutive hours in each period of 24 hours during which he or he works for his or his employer.”

Having considered the evidence of both parties and in particular the Complainant’s acceptance that he worked 36 hours, I find the complaint is not well founded.

CA-00038670-010 – Terms of Employment (Information) Act 1994

CA-00038670-011 – Unfair Dismissal Act 1977

The Respondent’s representative alleged the Complainant handed in his notice on 21 February 2020 however, this was not put to the Respondent in his own evidence. No supporting documentation was presented by the Respondent. Therefore, I prefer the evidence of the Complainant.  

The Respondent sought to rely on the Complainant’s unwillingness to share his knowledge of the systems and withholding passwords. However, by the Respondent’s own admission he was not involved in the day to day running of the business and most importantly, he was of the view that why should he have to ask about the passwords. It is of further note that the Complainant gave evidence that he shared a document on the system which contained the relevant passwords on 14 February 2020. This can only be viewed as an unwillingness on the part of the business owner to get involved in his own business. The Complainant cannot be penalised for the Respondent’s decision.

It is accepted that the Complainant received an email from the Respondent on 16 March 2020 terminating his employment which was followed by a letter from his solicitor, dated 28 April 2020. This was not disputed by the Respondent.

In the circumstances, where the Respondent terminated the Complainant’s employment by email dated 16 March 2020, I find that the Complainant was dismissed from his employment by the Respondent. The Respondent’s actions are entirely void of fair procedures and would go as far as to say he took advantage of the Covid19 pandemic to terminate his employment. It is accepted that it was a time of great uncertainty but on the 16 March 2020 however, emergency legislation and social welfare payments were put in place to assist employers in retaining employees in their jobs during the pandemic.

Section 29 of Emergency Measures in the Public Interest (Covid-19) Act 2020 was temporarily reduced the scope of the operation of the Redundancy Payments Act 1967 by the addition of Section 12A to the Redundancy Payments Act as follows:-

‘Section 12A. (1) Section 12 shall not have effect during the emergency period in respect of an employee who has been laid off or kept on short-time due to the effects of measures required to be taken by his or his employer in order to comply with, or as a consequence of, Government policy to prevent, limit, minimise or slow the spread of infection of Covid-19.’

This legislation came into effect on 13 March 2020 , 3 days prior to the Respondent’s email wherein he decided to terminate the Complainant’s employment. This was accepted in evidence at the hearing. The Respondent also gave evidence that he assisted the Complainant in claiming the Pandemic Unemployment Payment (PUP) which demonstrates his awareness of the state financial supports that were in place. Furthermore, the Respondent was in receipt of some sort of advice re the payment the letter from his solicitor to the Complainant on 28 April 2020 advises the Complainant the PUP is “available to those who have lost their jobs as a result of Covid 19 and you were eligible to claim this payment from the date that our client stopped paying you.”  Regardless of the advice provided to the Respondent, the obligation to treat employees fairly within the remit of the law rests entirely clearly with the employer. This responsibility cannot be outsourced. It was further noted that the Respondent in his own evidence that the business was “up and running again since return to opening” after the initial lockdown. Upon enquiry, the Respondent stated that the business first reopened in “June 2020”.

Where an employee is found to have been dismissed from his employment these is an obligation on the employer to comply with the principles of natural justice to ensure that dismissal is procedurally fair and secondly that the reason for dismissal is fair as prescribed by Section 6 of the Unfair Dismissals Acts 1977- 2015: -

“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.”

Noonan J. in Bank of Ireland –v- O’Reilly [2015] 26 E.L.R. 229 held: “…the onus is on the employer to establish that these were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s.6(4), which includes the conduct of the employee or that these were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer’s conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to where the dismissal was reasonable for that of the employer. The question rather is where the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned …. “.

In conclusion, I find that these is no reasonable or justifiable reason for dismissing the Complainant nor were any of the principles of natural justice followed. This is wholly unacceptable, and I find that complaint is well founded.

CA-00038670-001 – Organisation of Working Time Act 1997

I find the complaint is well founded and award the Complainant the sum of €200 in compensation for the breach of the 1997 Act for 8 Sundays worked between 12 January – 13 March 2020 which takes into consideration the time limit imposed by the Act.

CA-00038670-004 – Payment of Wages Act 1991

I find this complaint is well founded and award the Complainant the sum of €342.40 in compensation for the breach of the 1991 Act which equates to 1 week’s wages.

CA-00038670-005 - Organisation of Working Time Act 1997

I find the complaint is well founded and award the Complainant the sum of €2,092.80 in compensation for the breach of the 1997 Act. This amount equals the 21 days annual leave due to him for 2019 upon the date of termination of his employment considering the 10 days annual leave he took in January 2020.

CA-00038670-006 - Organisation of Working Time Act 1997

I find this complaint is not well founded.

CA-00038670-007 - Payment of Wages Act 1991

I find this complaint is well founded and award the Complainant the sum of €784.80 in compensation for the breach of the 1991 Act which equates to 2 week’s wages.

CA-00038670-008 - Organisation of Working Time Act 1997

I find this complaint is well founded. I award the Complainant the sum of €100 in compensation for the breach of the 1997 Act which covers the period of contravention from 11 January 2020 – 16 March 2020. 

CA-00038670-009 - Organisation of Working Time Act 1997

I find the complaint is not well founded.

CA-00038670-010 – Terms of Employment (Information) Act 1994

Section 7 (2) of the Act allows for:

“ (2) A recommendation of a rights commissioner under subsection (1) shall do one or more of the following:

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) (i) confirm all or any of the particulars contained or referred to in any statement furnished by the employer under section 3 , 4 , 5  or 6 , or

(ii) alter or add to any such statement for the purpose of correcting any inaccuracy or omission in the statement and the statement as so altered or added to shall be deemed to have been given to the employee by the employer,

(c) require the employer to give or cause to be given to the employee concerned a written statement containing such particulars as may be specified by the commissioner,

(d) order the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 4 weeks remuneration in respect of the employee's employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act, 1977 ,”

Having heard the Complainant, I find the complaint is well founded and award him compensation in sum of €392.40 equating to one week’s wages for breach of the 1994 Act.

CA-00038670-011 – Unfair Dismissal Act 1977

The jurisdiction of redress is set out in Section 7 of the Unfair Dismissals Act:-

“(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 rights commissioner, the Tribunal or the Circuit 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 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) payment by the employer to the employee of such compensation (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) in respect of any financial loss incurred by him and attributable to the dismissal 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, and

(d) the extent (if any) of the compliance or failure to comply by the employer or employee with any procedure of the kind referred to in section 14 (3) of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister.”

The Complainant has sought compensation in his Complaint Form. He outlined details of his efforts to seek alternative employment after he finished his college course in “May or June 2020”.

In such circumstances, where the Complainant did not look for alternative employment until May or June 2020 , he was not available for work until this time. Consequently, Section 6 (c) (ii)of the Unfair Dismissals (Amendment) Act, 1993 applies where he did not incur financial loss as he did not make himself available for work:-

“(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,”

On the basis of his unavailability for work from March to May or June 2020, I am awarding the Complainant compensation for his financial loss in the amount of four weeks wages in the sum of €1,569.60.

Unfair dismissal – hours of work- holidays – contract of employment– covid19 – termination of employment – availability for work