FULL RECOMMENDATION
PARTIES : G4S SECURE SOLUTIONS (IRE) LIMITED DIVISION :
SUBJECT: 1.Appeal of an Adjudication Officer's Decision No(s)ADJ-00022995 CA-00029298-001 The Adjudication Officer held that the Respondent had demonstrated that there were substantial grounds justifying the dismissal and that the dismissal was not unfair. Background The Appellant was a ‘casual’ Event Steward employed by the Respondent since 2008. A client company operating a stadium to which the Appellant was assigned duties between 2008 and November 2015 advised the Respondent in November 2015 that the Appellant was not to be assigned to that stadium thereafter. The Appellant was not assigned to that stadium thereafter and carried out no work for the Respondent after November 2015. The Law The Act at section 6(1) states 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. The Act at Section 7, in relevant part, makes provision 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: (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— (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, The Hearing of the Court The Respondent did not attend the hearing of the Court but did provide a written submission in advance of the hearing which was made substantially outside the time limits afforded under the Rules of the Court 2020 which are made in accordance with Section 20(5) of the Industrial Relations Act, 1946. The fact and date of dismissal. The submissions of the parties were unclear as regards the date of dismissal of the Appellant. Both parties appear to agree that the Appellant was, in fact, dismissed. At the hearing of the Court the Appellant repeatedly confirmed that he was dismissed on 24thNovember 2015. Ultimately however he contended that he was dismissed by e-mail / letter dated 12thMarch 2019. Notwithstanding his ultimate identification of an e-mail / letter dated 12thMarch 2019 as effecting his dismissal, the Court noted the Appellant’s assertion at the hearing that he did not know he had been dismissed by the Respondent at all until he was so advised by way of the submission made by the Respondent to the Adjudication Officer in 2019. The submission of the Respondent to this Court appears to indicate that the Appellant was dismissed sometime after the 12thMarch 2019. The Court, in the absence of the Respondent, or evidence from either party, concludes, on the balance of probability, that the Appellant was dismissed by the Respondent on some date between 12thMarch 2019 and the date of lodgement of his complaint to the WRC on 25thJune 2019. Offers of work after November 2015 The Respondent in its written submission asserts that work had been repeatedly offered to the Appellant after November 2015 and after 12thMarch 2019 and that all such offers were refused by the Appellant. The Appellant submitted that he had received no communication from the Respondent after 12thMarch 2019 and that he was available at all times after November 2015 to carry out duties in the stadium to which he had been assigned up to November 2015. In the absence of the Respondent or evidence in relation to the matter, the Court is unable to conclude that the Appellant was offered work by the Respondent after November 2015 or after 12thMarch 2019 or that he refused any such offer. Earnings, mitigation and loss The Appellant, at the hearing of the Court, submitted that he had earned between €400 and €500 per annum each year between 2008 and 2015. He submitted that he made no efforts to secure employment in this industry or any other industry since November 2015 or after his dismissal on some date between March 2019 and June 2019. He clarified that the Respondent was the only employer in the Munster area offering work in this industry. Conclusions of the Court. The Court, having concluded, on the balance of probability, that the Appellant was in fact dismissed; has been provided by the Respondent with no evidence of any procedure having been employed to arrive at the decision to dismiss. No evidence has been provided to the Court establishing that the Respondent offered alternative employment to the Appellant after the client company operating the stadium to which the Appellant was assigned between 2008 and 2015 refused to allow him carry out stewarding functions at that stadium. In all of the circumstances, the Court concludes that the Respondent has not established that substantial grounds existed so as to justify the dismissal of the Appellant and consequently the Court concludes that he was unfairly dismissed by the Respondent. The Court believes, having regard in particular to the fact that the Appellant has carried out no work for the Respondent since 2015, that re-instatement or re-engagement is not an appropriate remedy and that an award of compensation is appropriate. Noting that the Appellant made no effort at all to mitigate his loss arising from his dismissal, the Court has decided that an award equivalent to six month's pay is just and equitable in all of the circumstances. On the basis of the submission of the Appellant, the Court calculates that the average weekly rate of pay of the Appellant was €10. The Court therefore orders the Respondent to pay to the Appellant the sum of €260being such compensation in respect of the financial loss suffered by the Appellant attributable to his dismissal which the Court considers, having regard to all the circumstances, to be just and equitable.
The Court decides that the Appellant was unfairly dismissed and that compensation in the amount of €260 should be paid to him by the Respondent. The Court so decides.
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