Complainant

Respondent

Parties

Michal  Wrobel

Haccius Logistics Limited

Representatives

Crushell & Co Solicitors

MP Guinness B.L. Instructed by CC Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00047090-001

10/11/2021

The complainant lodged a complaint of unfair dismissal. He had been employed from July 4th, 2016, until October 8th, 2021, and he resigned from the employment with effect from November 1st, 2022

The complainant had been on sick leave from June 20, 2020, suffering from back pain. He had a history of difficulty regarding the allocation of machines and equipment specifically it in the period between 2017 and 2020.

He also claimed that he was working excessive hours; on occasion between 55 and 63 hours per week.

On October 8th, 2021, he resigned.

The respondent outlined the history of the complainant’s employment in its written submission and specifically difficulties that arose in 2020 related to damage to the machine and the transfer of the complainant to other work.

A grievance had been submitted and in July he had been deemed on fit to return to work. Despite his sick leave absence, he was invited to a grievance meeting on July 26th and this took place in due course. The result was that disciplinary action was not pursued against the complainant’s co-worker.

In the meantime, he was confirmed as being set to return to work by his consultant, but his general practitioner insisted on a number of occasions that he was not and in the event he resigned.

The respondent concedes that the dismissal was unfair and submits that the only issue requiring to be dealt with is compensation.

In that regard it states that the complaint should only be entitled to four weeks compensation.

The complainant sought six weeks compensation for the termination having regard to all of the circumstances of his dismissal.

It is rather unusual that an employer will concede that the dismissal has been unfair, and, in this case, it is partly explained by the respondent’s belief that it is not exposed to a very significant finding in respect of compensation attributable to the termination.

In fact, for the duration of the record of a period between the termination of the employment of the hearing the complainant had been on sick leave for a considerable period. Further his search for employment was adversely affected by his physical condition and his preference for work as a heavy machine operator.

In respect of the period for which he was available for work he gave evidence on oath that he had applied for only two positions, although he had been checking possible opportunities online and also regularly checking with friends as to the availability of work.

The two positions he applied for were one as a general operative and the other as a machine operator. He did not apply for any other positions.

It is well established that a complainant must make every effort to mitigate loss in the event of a termination.

Section 7 (2) (c) of the Act makes it clear that in determining the amount of any compensation consideration must be given 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’….

In Sheehan v Continental Administration Co Ltd UD 858/1999. the Employment Appeals Tribunal considered the efforts to mitigate in pursuant to Section 2(1) of the Unfair Dismissals Act 1977. In the judgement it was held: -

“A Complainant 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 Complainant 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.”

Section 6 (a) of Unfair Dismissals (Amendment) Act 1993 (amending Section 7 of the principal Act) provides as follows.

  ‘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.

In the circumstances, the complainant’s evidence as to the effort he made to seek employment confirms that it was entirely inadequate and represents a failure to mitigate loss as required by the statute and the above authority.

Discussions between the parties to resolve the matter amicably were not successful, surprisingly so as the difference between them was insignificant.

Accordingly, having regard specifically to his failure to mitigate his loss to the required standard I will award him the minimum four weeks’ payment only.

Complaint CA-00047090-001 is upheld and the complainant’s constructive dismissal was unfair.

For the reasons set out above he is entitled to four week’s remuneration in compensation.

Unfair dismissal, Mitigation