Complainant

Respondent

Parties

George  Breban

K.C.K TV & Electrical Company Limited

Representatives

Niamh Walsh Martin A Harvey & Co.

Donncha Kiely BL instructed by Catherine O'Brien O'Brien & Company Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00043144-001

19/03/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00043144-002 WITHDRAWN

19/03/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00043144-003

19/03/2021

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

CA-00043144-004

19/03/2021

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

CA-00043144-005 WITHDRAWN

19/03/2021

The Complainant commenced work with the Respondent as a delivery driver and appliance installer on 23 April 2019. His pay was €592 gross: €500 net for a 40-hour week. The Complainant submits that he was unfairly and summarily dismissed without any proper procedures by the Respondent on 4 December 2020, despite him producing medical evidence to say he was exempt from wearing a mask.  He further submits that he was not provided with a statement in writing outlining the terms of his employment by the Respondent and is entitled to compensation in respect of same. The Complainant further submits that he was not provided with any statutory notice or payment in lieu of notice.  

The Respondent contends that it had no alternative but to terminate the Complainant’s employment due to his continual refusal to wear a facemask in contravention of Government regulations. The Respondent asserts that it always behaved reasonably. The Respondent argues that the Complainant received his full wages from 12 November 2020, when he placed his keys on the counter and walked out of work, until the date of dismissal on 4 December 2020. The Respondent submits that, In the circumstances, the relevant notice period being one week, has been satisfied and no claim for notice arises. The Respondent accepts that it did not provide a statement of the terms of employment to the Complainant.  

The Respondent submitted extensive online material which purported to show the activities and beliefs of the Complainant regarding Covid-19 restrictions. The Complainant objected to the relevance of such material to the proceedings. I deemed that the only material from the bundle that would be considered, as to its relevancy, would be that which could be attested as directly relating to the Complainant’s employment with the Respondent.    

Summary of the evidence of the Shop Manager – (hereinafter “Ms. A.”)

The witness gave evidence on affirmation. She was an employee for over thirty years and was a manager at the material time of the dismissal.  It was a family-owned electrical retail business, but the owners had retired from the day-to-day operation of the shop. The business had a wide customer base in West Cork and prided itself on the personal service that was considered to be superior to the bigger retailers. The Respondent would deliver and install electrical appliances to rural areas and help customers with instructions on how to use the appliances, be it a television or a washing machine. Quite a few of the customers were elderly and vulnerable.  The Complainant commenced employment in April 2019 and was considered a very committed and diligent employee.

When Covid restrictions were applied in August 2020 the Complainant wore a visor and raised no medical issues at the time. When masks were introduced, a number of customers had complained about the fact that the Complainant was not wearing a mask whilst delivering and installing appliances at their houses. Some people declared that they would not do business with the Respondent in future.

The witness became aware of issues in November 2020 and on 12 November asked the Complainant to come to the office. She told him that she was under great pressure because of his refusal to wear a mask. She said the Complainant said it caused him great distress. She explained to him that he had to wear the mask only when in the shop and when interacting with customers when delivering goods. He refused to do so. Her understanding was that after he left the office, he put his van keys on the counter and told a work colleague that he believed he had been temporarily laid off.

The witness received a medical certificate from the Complainant dated 17 November where the Complainant’s G.P. stated “This is to certify that the above named suffers from severe anxiety on wearing a face mask”. The witness said she did not accept what was written on the certificate because she believed he was against the Covid restrictions from the beginning and that this was a political stance he was taking at the workplace.

The witness gave evidence that she was a ‘friend’ of the Complainant on his ‘Facebook’ page. She attested to a posting on social media by the Complainant of his experiences when delivering to a customer of the Respondent, accompanied by a photograph, which was exhibited in which the Complainant commented as follows:

“So today I encountered level 6 of the covid “go mad or go home”.

Having delivered an appliance AFTER I uploaded the appliance onto the hand truck and dragged it all the way to the backyard, this client wants me to spray Domestos BLEACH on my hands and dip my shoes into the blue container that contained some liquid solutions (battery acid possibly).

So if you guys feel as paranoid as the person I met today, its time to see a psychiatrist.

P.S. Client paid with CASH that was handled without gloves and has not feel the need to sanitize hands with bleach or other sanitizer afterwards.

P.S. If you are still in doubt people love controlling and being controlled, read this again.

The witness replied on 3 Nov 2020 as follows:

“George, please remove your latest post. That’s work related and will come back on us. Also we cannot take pictures of where we deliver to and putting them up on social media. That’s not acceptable.

The Complainant replied as follows:

“ XXXX (witness), if my position towards Covid scenario can affect KCK, I’m 100% by the idea that I should be temporarily laid off as I find it impossible to cope with all the measures brought up by the Government, employees and most lately customers.

My Facebook account is my own and is not ever to be censored.”

The witness said that she told him that she had to leave him go in a phone call on 4 December 2020. He was aware of the consequences of continuing to refuse to wear a mask from the meeting of 12 November. She also had a duty of care to other employees, amongst whom was a diabetic and a pregnant employee.

Cross-Examination:

The witness accepted that the Respondent had no formal sick pay policy nor data protection policy. She accepted that she had discussed the Complainant’s medical certificate with other employees because she felt she needed to investigate whether staff noticed symptoms and because they were also affected by the Complainant’s position.  When asked if the Complainant’s political views influenced her decision to dismiss the Complainant, she answered that it went towards her disbelief of his medical condition. She accepted that she was unaware of the formal procedures needed to carry out a disciplinary procedure because she never had to do it in the past.  She agreed that the Complainant was not offered an opportunity of representation by a trade union representative nor colleague. She denied that the Complainant had requested an appeal.  

Summary of the Evidence of a work colleague (hereinafter “Ms. B”).

The witness gave evidence on affirmation. She said the Complainant wore a face visor without any complaint and she did not witness any distress or anxiety from him in the workplace. She was pregnant at the time and also suffered from panic attacks, so she is well aware of the symptoms of severe anxiety. She encountered a lot of negative comments from customers about the Complainant’s refusal to wear a face mask. From August 2020 onwards, and the imposition of the restrictions, the Complainant was open in his views to work colleagues of his disdain for the Government and the Garda Siochana’s attempt to restrict people during the pandemic. She witnessed the Complainant putting the van keys on the counter and stating that he was temporarily laid off.

Respondent’s Legal Arguments:

CA-00043144-001: Unfair Dismissal

The Complainant claims he was dismissed from his employment on or about 4 December 2020 due to the Respondent’s failure to accommodate his “severe anxiety” in wearing a face covering. The Respondent submits that this is the sole basis of the claim for unfair dismissal and is lacking in candour in that the true reason for his refusal to wear a face covering was not a professed “anxiety” but rather his “anti-vax/conspiracy theories”. The Complainant did not reveal his true reasons at any stage during his interactions with the Respondent.

The Complainant’s employment ended due to his refusal to wear a face covering in circumstances where his duties involved him calling to the homes of customers - many elderly and infirm - to deliver and install televisions and other electrical appliances and show them how to operate this equipment. In the beginning he wore a visor as required. He expressed no opposition to wearing a visor and raised no health issues whatsoever.

The Respondent submits  that the procedures adopted by the Respondent in and around the end of the Complainant’s employment were fair, reasonable and proportionate (see: Dunne .v. Harrington UD/166/1979) in circumstances where he initially wore a face visor, then began posting his objections to Covid and face coverings on social media platforms, ignored repeated warnings to wear face masks, without mention of health issues and only on 17 November 2020 produced a letter from a GP which provided no medical basis for his absence from work.

 The Respondent submits that the Complainant’s continued employment with the Respondent was untenable in that he was incapable of competently performing his duties, in view of his conduct towards customers and his fellow employees and the reputational damage done by him to a small, long standing community business.

The Respondent asserts that it was legally obliged to require the wearing of face covering to protect its employees and customers on the basis of S.I. No. 511/2020 – Health Act 1947 (Section 31A – Temporary Restrictions) (Covid-19) (Face Coverings in Certain Premises and Businesses) (Amendment) (No. 2) Regulations 2020which extended the requirement to wear face coverings in certain premises and businesses from 9 November 2020 to 9 June 2021 (see: Section 2 thereof).

 The Respondent submits that the Complainant must prove his losses as referred to in Dismissal Law in Ireland, Redmond, 2nd Ed., paragraph 23.28. In calculating compensation, the WRC must have regard to S. 6 (b) of the Unfair Dismissals Act 1993 (as amended) which states regard shall be had to “the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid”. Redmond notes that a “claimant who finds himself out of work should employ a reasonable amount of time each weekday in 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 losses.” It is submitted that the Complainant has failed to mitigate his losses and it is inconceivable that he would not have been able to secure employment in the present economic circumstances.

 The Respondent further submits that regard must be had for the Complainant’s failure and/or purported inability to wear a face covering and the consequent impact of same on his ability to secure alternative employment and mitigate his losses. No grievance procedure was invoked and/or properly invoked by the Complainant. There were substantial grounds justifying his dismissal and fair procedures were followed by the Respondent in the face of the Complainant’s repeated failure to wear a face covering for unsubstantiated reasons.  The Respondent submits that regard must be had to weekly PUP of €350 received by the Complainant during all times relevant to the complainants.

CA-00043144-003: Minimum Notice.

The Respondent submits that the Complainant received his full wages from 12 November 2022, when he placed his keys on the counter and walked out of work, until 4 December 2022. In the circumstances, the relevant notice period, being one week, has been satisfied and no claim for notice arises.

CA-00043144-003: Terms of Employment

The Respondent accepts that it did not provide written terms of employment to the Complainant in breach of the Terms of Employment (Information) Act 1994.

Summary of the Testimony of the Complainant:

The Complainant gave evidence on affirmation. He started work on 23 April 2019 and was never given a contract of employment. He said he felt harassed by the continuing insistence by the Respondent on the wearing of a face mask. He believed that it was the intention of the Respondent to get rid of him in order to make way for a position for a son of a friend of management.

At the start of restrictions in August 2020 he advised that he would not be in a position to wear a mask.  He said he was never asked for a medical certificate and no alternative for other duties was offered to him at the meeting of 12 November. He suggested a position of tidying up and cleaning the store as reasonable accommodation to Ms. A but this was rejected. He was offered no appeal by Ms A after he was dismissed on the phone on 4 December 2020. He was shocked to hear this because he thought he was being put on temporary layoff.

The Complainant exhibited a number of documents to show job applications in what he said were attempts to mitigate his loss. He also described how he had taken up a legal course in employment law and in health and safety legislation.

Cross Examination:

The Complainant accepted that he was given a visor originally but wore it on his head and did not bring it down fully over his face. He accepts that he was requested to bring it down fully over his face.  He did not expressly give medical reasons for his refusal to wear the mask because he was protective of his personal medical data. He agreed that he posted the Facebook post as referred to in Ms A’s evidence. He agreed that he advised people on social media on their rights under Covid-19 restrictions but said that it was only on the basis of legal advice. He accepted that there was no written agreement on temporary layoff in the email from Ms A of 18 November.

On mitigation of loss, he acknowledged that there were ample van delivery jobs during Covid-19 restrictions. but said that he had applied to one prominent firm but got no reply. He agreed that he had no contemporaneous documents or copies of applications of the jobs he had applied for. He said that he was a qualified automation technician and had good experience in the hospitality industry. He said he had applied for one position as a chef. He said it was an impediment being based in West Cork but acknowledged that he did have a car. He stated that he went on the Pandemic Unemployment Payment (PUP) in December after he was dismissed but could not remember whether he declared himself laid off or dismissed to the Department of Social Protection.

Legal Argument:

The Complainant cites Section 6(1) of the Unfair Dismissals Act 1977-2015 which provides:

“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 6(7) of the Unfair Dismissals Act 1977-2015 provides

“Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so—

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

(b) to 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 section 14 (1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7 (2) of this Act.”

The Complainant asserts that It is well established in case law before the relevant Employment law fora that in order for an employer to demonstrate that a dismissal was fair, both substantial grounds to justify the dismissal and adherence to fair procedures must be shown.

The Complainant cites the Labour Court case of Beechside Company Ltd t/a Park Hotel Kenmare and A Worker LCR211798 wherein the Labour Court stated:

“The Court has consistently held the view that it is imperative that an employer in a dismissal case must not only show that there were substantial grounds justifying the dismissal but also that fair and proper procedures were followed before the dismissal takes place. This requirement of procedural fairness is rooted in the common law concept of natural justice.”

The Complainant argues that It is clear from the facts of this case that neither substantial grounds justifying the dismissal existed, nor were fair procedures implemented, and as such the dismissal was unfair and the Complainant is entitled to redress in line with Section 7 of the Unfair Dismissals Acts 1977-2015.

The Complainant asserts that he was summarily dismissed, by telephone, without any adherence whatsoever to natural justice and fair procedures. The Respondent failed to initiate any form of investigation or disciplinary process and simply terminated the Complainant’s employment without notice and without any regard for his rights.

Furthermore, the Complainant asserts that in not conducting any type of investigation or disciplinary process, the Respondent also denied the Complainant the right to appeal the decision. In this regard, the Complainant submits that the following comments of the Adjudication Officer in the case of the An Employee v An Employee ADJ0000381, 12 April 2017 should be considered:

“An appeal is not just an afterthought or a procedure that must be completed as a matter of course. t is a very important part of the disciplinary process and the greater the sanction that has been imposed the greater its importance. An appeal allows a dismissed employee the last chance to make their case, highlight any mitigating factors and seek protection for faulty procedures or disproportionality of sanction.”

The Complainant submits that, furthermore, no regard whatsoever was had for the medical certification put forward by the Complainant justifying his position, nor were any attempts made to have the Complainant’s medical issues verified by a company doctor, as would be expected if any such issues arose.

The Complainant asserts that the Respondent failed to take any steps whatsoever to comply with SI 146/2000 Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order 2000 or indeed any internal Disciplinary Policy, best practice or the Complainant’s constitutional rights.

Mitigation of Losses

The Complainant has taken steps to mitigate his losses by looking for alternative employment. This search has been hindered substantially by the Covid-19 pandemic. The Complainant submits that the exhibited emails demonstrate the efforts made to obtain work by the Complainant. and significant attempts have been made by the Complainant to upskill and retrain.

The Complainant seeks compensation of loss of earnings in circumstances where he was unfairly dismissed. The Complainant’s gross loss of earnings are €592.32 x 75 which totals €44,424.00 gross to date or €500.00 x 75 weeks which totals €37,500.00 net to date.

CA-00043144-003: - Minimum Notice and Terms of Employment Act 1973

Without prejudice to the contention that the Complainant was unfairly dismissed, The Complainant submits that he was not provided with any notice or with any payment in lieu of notice in accordance with his statutory rights under the Minimum Notice and Terms of Employment Act 1973.

CA-00043144-004: - Terms of Employment (Information) Act 1994

The Complainant submits that he was not provided with a statement in writing outlining the terms of his employment by the Respondent and is entitled to compensation in respect of same.

CA-00043144-001: - UNFAIR DISMISSAL COMPLAINT:

Applicable Law:

Section 6 of the Unfair Dismissals Act 1977, as amended, (the Act) states, in relevant part, 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… (4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do, (b) the conduct of the employee, (c) the redundancy of the employee, and (d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

Regarding the investigatory and disciplinary process, employers must act reasonably and apply fair procedures in taking a decision to dismiss an employee. Section 6(7) of the Act provides:

“(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so—

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

(b) to 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 section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act 1993) of section 7(2) of this Act.”

 SI 146/2000 Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order 2000, provides that:

“The essential elements of any procedure for dealing with grievance and disciplinary issues are that they be rational and fair, that the basis for disciplinary action is clear, that the range of penalties that can be imposed is well-defined and that an internal appeal mechanism is available.”

In determining whether the dismissal of the Complainant was unfair, the Respondent must show that the procedures adopted by the Respondent which resulted in the decision to dismiss were fair and that the conduct was that of a reasonable employer.

I am satisfied from the evidence, that the Complainant had expressed an ideological opposition to the wearing of face masks in the workplace. This was apparent in the very plausible evidence of Ms. B when she described how the Complainant gave his view to work colleagues that he considered the wearing of such masks as an afront to human rights. This ideological position was evidenced further in the social media posting by the Complainant, exhibited by the Respondent, which reflected upon his interactions with a customer. The opinion expressed  can reasonably be described as  uncomplimentary of the  customer, as well of those who were  generally following Government guidelines.

The Complainant is certainly entitled to his beliefs, but I am satisfied that his position on mask wearing within the workplace, and his refusal to do so, coupled with an unacceptable posting of a workplace interaction with a customer, entitled the Respondent to challenge the Complainant, as was done so, and warn him also of further implications of his continuing refusal to wear a mask.

 I was not satisfied with the Complainant’s position that he felt he was not obliged to share his personal medical data with the Respondent at the outset of restrictions, particularly regarding his aversion to wearing a mask. The Complainant cites section 6(7) of the Unfair Dismissals Act where an employer must act reasonably in relation to the dismissal. However, there is also a common principle in law that there is a reciprocal obligation on someone who cites the unreasonableness of the other side, to show that they themselves acted reasonably. I am satisfied that the withholding of medical information by the Complainant, whereby the Respondent might have had an opportunity to reasonably accommodate him without risk to customers and fellow employees during an unprecedented serious pandemic, was an implausible position. Furthermore, I note also that the medical certificate was produced late in the day, after events had quickly escalated.  

Notwithstanding the foregoing, there is a strict obligation on an employer to adopt fair procedures in relation to any dismissal. This is more than established in the area of employment law. The Respondent witnesses gave credible evidence of it being a well-respected small business in West Cork where the personal touch mattered when it came to customers. However, Ms. A stated that there were no grievance or disciplinary procedures of which she was aware. Furthermore, no regard was given to the Code of Practice on procedures as outlined in S.I. 146 of 2000 . The Complainant was denied a proper investigation or disciplinary procedure where he could fairly put his case. He was also denied any representation or appeal of the decision. The plain fact of the matter is that he was dismissed by Ms. A on the phone on 4 December 2020 without an attempt to implement fair procedures.  

The Complainant opened the  Labour Court case of Beechside Company Ltd t/a Park Hotel Kenmare and A Worker LCR211798 wherein the Labour Court succinctly stated:

“The Court has consistently held the view that it is imperative that an employer in a dismissal case must not only show that there were substantial grounds justifying the dismissal but also that fair and proper procedures were followed before the dismissal takes place. This requirement of procedural fairness is rooted in the common law concept of natural justice.”

After hearing all the evidence and submissions in this case I conclude that the Respondent did not adopt reasonable and fair procedures when dismissing the Complainant therefore I find that the Complainant was unfairly dismissed.

Redress:

Section 7 of the Act, in its relevant parts, provides:

(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:

…. (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,

and the reference 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.

 (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) of section 14 of 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 (Consolidation) Act 2005 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.

…. (3) In this section—

“financial loss”, in relation to the dismissal of an employee, includes any actual loss and any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts 1967 to [2014], or in relation to superannuation;

“remuneration” includes allowances pay and benefits in lieu of or in addition to pay.

The Complainant submitted that he is seeking compensation for unfair dismissal. It is incumbent upon the Complainant to give plausible evidence on mitigation of loss. In the decision of Coad v Eurobase (UD1138/2013)the Tribunal noted:

 “In calculating the level of compensation the Tribunal took into consideration the efforts of the claimant to mitigate his losses and finds that these efforts do not meet the standard as set out by the Tribunal is Sheehan v Continental Administration Co. Ltd. (UD858/1999) that a 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.”

The position in Coad clearly sets out the obligation of complainants to mitigate their loss. The Complainant in this instant case exhibited documentation and copies of emails to show what he claimed were reasonable efforts to mitigate his loss. However, upon further scrutiny during cross-examination by the Respondent, as well as inquiry by myself, I find that there was no contemporaneous proof of documentation by the Complainant of any meaningful job application. Some documentation could be described as data access requests to employers approximately a year after alleged applications seeking proof of the purported  application, with no requisite  response from the employer. Other applications in 2022 seemed to suggest an interest in jobs that were outside the practical ambit of the Complainant, which was a considerable period after the dismissal, with a strong inference  that only cursory attempts were made.

The Complainant stated that he signed on for the PUP payment immediately after being dismissed and has taken up a number of courses. He submitted also that the pandemic was a major factor in him not getting work. He admitted in cross-examination that there was a demand for delivery drivers, his occupation with the Respondent, but that he applied to one company only, offering no supporting contemporaneous documentation of such application. He gave evidence also that he was experienced in the hospitality sector but claimed to have applied for one position, a chef, and was unsuccessful. Having taken the foregoing into account, I find that the efforts of the Complainant were not in any way up to the standard as demanded by section 7(2)(C) of the Act.

Having heard all the evidence on the issue of mitigation of loss, I am satisfied that the Complainant has made no meaningful attempts to do so, therefore I find that he had negligible loss under the circumstances and, furthermore, I conclude that he significantly contributed to his own dismissal. However, I find that compensation is justified under section 7(1)(c)(ii).  I order the Respondent to  pay the Complainant the compensatory sum of €2000, the equivalent of four weeks net salary, which I find is just and equitable having regard to all the circumstances, particularly the complete absence of procedures by the Respondent in conducting the dismissal.   

CA-00043144-003: - Minimum Notice and Terms of Employment Act 1973.

The Complainant submits that he was not provided with any notice nor with any payment in lieu of notice in accordance with his statutory rights under the Minimum Notice and Terms of Employment Act 1973.

Section 4 of the minimum notice sets out the relevant minimum statutory notice:

(a) if the employee has been in the continuous service of his employer for less than two years, one week…

The redress provision at section 12 of the Act states:

 (1) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of section 4(2) or 5 may, where the adjudication officer finds that that section was contravened by the employer in relation to the employee who presented the complaint, include a direction that the employer concerned pay to the employee compensation for any loss sustained by the employee by reason of the contravention.

(2) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a dispute as to the entitlements of an employee under section 6 may include such directions as the adjudication officer considers appropriate.

As I have I found that the Complainant was unfairly dismissed and was not provided with the notice period of one week to which he was entitled to under Section 4 of the Minimum Notice and Terms of Employment Act 1973,  I direct that the Respondent pay the Complainant the sum of €500, the equivalent of the loss of one week’s net pay, for contravening the Act.   

CA-00043144-004:-  Terms of Employment (Information) Act 1994.

The relevant law is found at section 3 of the Terms of Employment (Information) Act, 1994, as amended, where the pertinent sections provide as follows:

 (1) An employer shall, not later than 2 months after the commencement of an employee's employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee's employment, that …

(c) the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places,

(d) the title of the job or nature of the work for which the employee is employed,

(e) the date of commencement of the employee's contract of employment,

(fa) a reference to any registered employment agreement or employment regulation order which applies to the employee and confirmation of where the employee may obtain a copy of such agreement or order…

… (1A) Without prejudice to subsection (1), an employer shall, not later than 5 days after the commencement of an employee's employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee's employment, that is to say:

(a) the full names of the employer and the employee;

(b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act 2014);

(c) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires;

(d) the rate or method of calculation of the employee's remuneration and the pay reference period for the purposes of the National Minimum Wage Act 2000;

(e) the number of hours which the employer reasonably expects the employee to work—

(i) per normal working day, and

(ii) per normal working week…

Redress in the Act is described as follows at Section 7(2):

 A decision of an adjudication officer under section 41of the Workplace Relations Act 2015 in relation to a complaint of a contravention of sections 3 , 4 , 5 , 6 or 6C  shall do one or more of the following, namely —

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

(b) either —

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

(d) in relation to a complaint of a contravention under change section 3 , 4 , 5 , or 6 , and without prejudice to any order made under paragraph (e)  order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of 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.

 (e) in relation to a complaint of a contravention under section 6C , and without prejudice to any order made under paragraph (d) , order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks ’ remuneration in respect of the employee ’ s employment calculated in accordance with regulations under section 17of the Unfair Dismissals Act 1977. 

 The Complainant submitted that he never received a statement of his terms and conditions from the Respondent during the period he was employed. The Respondent accepted that no written terms were given to the Complainant. It should be emphasised that compensation, if any, must be within the bounds of what is fair and equitable having regard to all the circumstances. No evidence was submitted that the non-receipt of terms of employment created any hardship for the Complainant nor did he give evidence that he sought such terms during his employment. I therefore find that the complaint is well founded but that compensation should be at the lesser end of the scale. I order the Respondent to pay the Complainant the sum of €500, equivalent to one week’s wage

CA-00043144-001: - Unfair Dismissal Complaint:

For the Reasons outlined above I find that the Complainant was unfairly dismissed. Having heard all the evidence on the issue of mitigation of loss, I am satisfied that the Complainant has made no meaningful attempts to do so, therefore I find that he had negligible loss under the circumstances and, furthermore, I conclude that he significantly contributed to his own dismissal. However, I find that compensation is justified under section 7(1)(c)(ii) of the Act.  I order the Respondent to pay the Complainant the compensatory sum of €2000, the equivalent of four weeks net salary, which I find is just and equitable having regard to all the circumstances, particularly the complete absence of procedures by the Respondent in conducting the dismissal.   

CA-00043144-003: - Minimum Notice and Terms of Employment Act 1973.  

As I have found that the Complainant was unfairly dismissed and was not provided with the notice period of one week to which he was entitled to under Section 4 of the Minimum Notice and Terms of Employment Act 1973, I direct that the Respondent pay the Complainant the sum of €500, the equivalent of the loss of one week’s net pay, for contravening the Act. 

CA-00043144-004: - Terms of Employment (Information) Act 1994.

For the reasons outlined above, I find that the complaint is well founded but that compensation should be at the lesser end of the scale. I order the Respondent to pay the Complainant the sum of €500, equivalent to one week’s pay.

Unfair Dismissals Act 1977, Covid-19, Mask Wearing, Mitigation of Loss, Procedural Fairness, Terms of Employment (Information) Act 1994, Minimum Notice and Terms of Employment Act 1973.