Complainant

Respondent

Parties

Seamus Counihan

Arramara Teoranta

Representatives

Barry Crushell Crushell & Co Solicitors

Shane MacSweeney MacSweeney & Company

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-00049084-001

09/03/2022

The respondent employer accepted that the employee had been unfairly dismissed and did not exercise their right to call any witnesses about the events or reasons for the dismissal.

A preliminary matter arose concerning the burden of proof on the Complainant to show that he had not contributed through his conduct to the dismissal; although, it was unfair. The Respondent argued that the presumption of unfairness once the Respondent accepted that the decision was unfair ended. The quantum of loss to be awarded must be considered having regard to section 7(2) of the Act. The burden of proof was now on the employee to show that his conduct did not contribute to the loss and in that regard, he could be cross examined by the Respondent without the Respondent presenting evidence to the tribunal about the employee’s conduct.

The Respondent contended that section 7(2) of the Act allowed him to cross examine the Complainant about his conduct, without calling evidence in the first place to support that contention, as that was a factor that on the evidence could reduce the amount of financial loss to be awarded. Section 7(2) states:

(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 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.

This position was objected to by the Complainant who stated that if the conduct of the Complainant was allowed to be put to the employee under the head of mitigation of loss; although, no evidence whatsoever of wrongdoing had been proffered to the tribunal and in fact the Respondent had accepted that the dismissal was in fact Unfair, that would amount to an ambush.

The Respondent argued that once the employer had accepted that the decision was Unfair, the burden of proof now shifted to the Complainant to quantify financial loss and it was quite proper that the employee’s conduct as a contributing factor to the dismissal could be put to the Complainant under mitigation of loss; although, no evidence had been put to the tribunal in this regard.

The Complainant argued that this would in effect negate the presumption of unfairness in the Act and put the employee into an invidious position.

The Adjudicator adjourned to consider both sides arguments and to determine if the presumption of unfairness or not continued where the employer accepted that the decision to dismiss was unfair.

The Respondent was offered the opportunity to call witnesses to give oral evidence concerning the conduct of the employee and how such conduct contributed to the decision to dismiss. The Respondent declined to exercise that right.   In the absence of presenting any evidence to the tribunal, the Respondent asserted that they had the right to put to the Complainant in cross examination that the conduct of the employee had in fact contributed to the dismissal and arising from that assertion and cross examination of the Complainant, that regard should be had to that conduct when calculating loss.

The dismissal was unfair, and the dismissal is deemed to be unfair unless proven to the contrary.

The Respondent accepted that the dismissal was unfair.

As the Employer accepted that the dismissal was unfair; based on the obligation of the Employee to mitigate his loss, the Respondent made out a case that the Employee had not in fact proactively sought to mitigate his loss. The Employer argued that the extensive documentary evidence submitted by the Employee in fact revealed several job opportunities not followed through on and particularly where that opportunity related to a short-term contract or assignment. In fact, the documentary evidence reveals that the Respondent only began to seek alternative employment after many months has passed and this should be noted by the tribunal. The Respondent argued that the test to applied by the tribunal is that set out in Sheehan -v- Continental Administration Co Limited UD 858/1999 where it was stated that:

‘’ A claimant who finds himself out of work should employ a reasonable amount of time each workday in seeking work. It is not enough to inform agencies that you are available for work nor merely to post an application to various company’s 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’’

In Redmond on Dismissal Law 3rd edition at:

[24.72]

The common law rule of mitigation of damages applies to compensation for unfair dismissal. Questions of mitigation are questions of fact. The burden of proof lies on the party seeking to allege that another has failed to mitigate loss. 111 Sir John Donaldson explained the duty in AG Bracey Ltd v Iles: 112

‘The law is that it is the duty of a dismissed employee to act reasonably in order to mitigate his loss. It may not be reasonable to take the first job that comes along. It may be much more reasonable, in the interests of the employee and of the employer who has to pay compensation, that he should wait a little time. He must, of course, use the time well and seek a better paid job which will reduce this overall loss and the amount of compensation which the previous employer ultimately has to pay.

The test to be applied is an objective one in determining if the employee acted reasonably.

In this case the Complainant is a qualified accountant, and it is argued by the Respondent that based on the market demand for such roles; the Complainant failed to mitigate his loss. The Complainant stated that his path to becoming a qualified accountant was difficult and was not the normal route and meant that his skill set, and experiences were not typical. There were also geographical considerations and the requirement to factor in accommodation costs.

He was dismissed on the 20th of September 2021.

The Complainant seeks compensation. At the hearing the parties agreed that actual loss is about €49,000. It is not appropriate to consider reinstatement or re-engagement allowing for the circumstances of this case. The Complainant stated that his total compensation is about €70,000. Allowing for the buoyant employment market for accountants and having regard to evidence of the Complainant, I determine that 6 months loss is reasonable in this case and award €35,000.

I determine that the Complainant was unfairly dismissed and award him €35,000 as a just and equitable award having regard to all the circumstances of this case. In a buoyant employment market and based on the evidence submitted and challenged; opportunities did exist where the employee with his qualifications and experience could have mitigated his loss more than he did. I determine that 6 months is a reasonable period to obtain new employment based on his skill set and experience. It for this reason that I award €35,000.

Mitigation of loss