ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00019913
Parties:
| Complainant | Respondent |
Anonymised Parties | Employee | A Hospital |
Representatives |
| Aisling McDevitt IBEC |
Complaint(s):
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-00025371-001 | 25/01/2019 |
Date of Adjudication Hearing: 30/04/19 and17/01/20 and08/02/2022
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 8 (1)(a) of the Unfair Dismissals Act of 1977 (as substituted) and where a claim for redress under the Unfair Dismissals legislation is being made, the claim is referred to the Director General of the Workplace Relations Commission who in turn refers any such claim to an Adjudication Officer, so appointed, for the purpose of having the said claim heard in the manner prescribed in Section 41 of the Workplace Relations Act, 2015. In particular, the said Adjudication Officer is obliged to make all relevant inquiries into the complaint. The Adjudication Officer will additionally and where appropriate hear all relevant oral evidence of the parties and their witnesses and will take into account any and all documentary or other evidence which may be tendered in the course of the hearing.
In circumstances where the fact of dismissal is not in issue, the evidential burden of truth rests with the Respondent. Per Section 6(6)of the 1977 Act, in determining for the purposes of the Acts whether or not a dismissal of an employee was an unfair dismissal or not it shall be for the employer to show that the dismissal resulted wholly or mainly from one or other of the specified grounds (as outlined in the Act – conduct, redundancy etc.), or that there were other substantial reasons justifying the dismissal.
An Adjudication Officer must, in determining if a dismissal is unfair, have regard to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal (per Section 7).
In this particular instance, and in circumstances where the Complainant herein has referred a complaint of having been unfairly dismissed form his place of employment wherein he had worked for in excess of one year and where the Workplace Relations Complaint Form (dated the 25th of January 2019) issued within six months of his dismissal, I am satisfied that I (an Adjudication Officer so appointed) have jurisdiction to hear the within matter.
Where an employee has been dismissed and the dismissal is found to be unfair the employee shall be entitled to redress pursuant to Section 7 of the 1977 Act. Such redress might include re-instatement, re-engagement or compensation for any financial loss attributable to the dismissal where compensation for such loss does not exceed 104 weeks remuneration. The acts, omissions and conduct of both parties will be taken into account when considering the extent of the financial loss and there is an onus on a Complainant to adopt measures to mitigate the financial/ remunerative loss (which includes actual loss as well as estimated prospective loss).
Background:
The Complainant issued a complaint of having been Unfairly Dismissed by way of Workplace Relations Complaint Form dated the 25th of January 2019 |
Summary of Complainant’s Case:
The Complainant was initially represented though his representation came off record by way of written notification dated the 2nd of February 2022. I was provided with a submission. The Complainant says the termination of his employment on the 8th of November 2017 was Unfair. I did not hear the Complainant’s evidence. |
Summary of Respondent’s Case:
The Respondent was represented, and a detailed submission was provided. The Respondent refutes allegations of Unfair Dismissal in circumstances where the Complainant had been absent through ill health for nearly two years without engaging with the Employer’s back to work and/or Occupational review schemes. |
Findings and Conclusions:
The Respondent went into evidence as the burden was on the Respondent to establish the reasonableness of the decision to terminate. I heard two Respondent witnesses. On the second day of hearing (January 17th 2020) the Complainant opted not to go into evidence until certain parties were served with a subpoena to attend. The hearing was adjourned to allow the Complainant representative to make the appropriate applications in this regard. I note that no such formal application was ever made and in fact no further steps were taken to re-list this matter. After a delay of almost two years, and on the initiative of the WRC, this matter was re-listed for hearing on the 8th of February 2022. It is noted that on the 2nd of February 2022 the Complainant’s representative indicated by letter that he was coming off record following a consultation he had had with his own client. On foot of this letter, I am satisfied that the Complainant knew that this matter was listed for today’s date. I am also satisfied that the Webex meeting Host made every effort to contact the Complainant by telephone to ensure his attendance at the meeting. The Complainant had not provided the WRC with an email address. The Complainant did not return or pick up any of the calls made to him and I have drawn the conclusion that the Complainant no longer wished to pursue his complaint. |
Decision:
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA-00025371-001 - The Complainant herein was not Unfairly Dismissed and his claim under the UD Acts fails. |
Dated: 24th February, 2022
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words:
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