Complainant

Respondent

Parties

Bartlomiej  Wilczynski

Irish Yogurts Limited

Representatives

 Appeared In Person  

Eileen Hayes ,Hallissey & Partners Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00042977-001

10/03/2021

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

CA-00042977-002

10/03/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997(withdrawn at hearing)

CA-00042977-003

10/03/2021

This matter was heard by way of Remote Hearing pursuant to Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and SI 359/2020, which designates the WRC as a body empowered to hold remote hearings.

The Complainant presented his case with the assistance of a Polish Interpreter via word-by-word translation.

On March 10, 2021, the Complainant, a General Operative at the Respondent company submitted claims for unfair dismissal and minimum notice to the WRC. At that time, he was represented by a Citizen Support Group, who withdrew from the case before the hearing. The Complainant confirmed that he was comfortable to present his case by himself. He did not have witnesses.

The Respondent was represented by Ms Eileen Hayes, Solicitor. The Respondent denied the claims and presented a written submission. The Respondent had three witnesses available to the hearing.

Prior to hearing, the Respondent, indicated that they wished to address the Adjudicator on a unitary basis. I explained that this was not permitted. The Respondent sought to offer a witness to give evidence, who then refrained from the process.

The Complainant responded in saying that he would see to see any of the Respondents witnesses.

The case proceeded.  

The Respondent operates a Yoghurt Manufacturing Company, home to 213 staff with an allocation of 30-40 staff to the Packing area on a Monday to Friday basis. Saturday working was voluntary.

It was the Respondent case that the complainant had not been unfairly dismissed but dismissed as a result of gross misconduct.

CA-00042977-001 Unfair Dismissal

The Respondent Representative outlined that there was a global reluctance to work Saturdays within the plant.

The Respondent paid minimum wage with an overtime premium payable for Saturday. Staff were allocated on an informal basis to that shift.

The business activity levels were raised during the covid 19 pandemic.

At the beginning of November 2020, the Business was faced with an unanticipated threat to production, when the Production Manager went to the floor to ascertain the forthcoming Saturday workforce, when he was “frozen out “by the workers who avoided eye contact. This was out of character.

Both the Production Manager and the Proprietor, Mr A deciphered a sense of coercion in the “silent “response. There was a blanket refusal to work that Saturday and prior confirmed names withdrew.

Both Mr A and Mr B decided that the Complainant was the central, person in this threat to production.

They proceeded to meet with staff. The Complainant was dismissed for gross misconduct, where minimum notice did not arise.

The respondent did offer an appeal, but the Complainant did not avail of the appeal.

Evidence of Mr A, Production Manager

Mr A had been Production Manager since 2006 at the Business. The task of populating the workforce on Saturdays was ongoing through a casual and voluntary system, with a “handful of refusals”. He recalled that the objective was to get as many as possible, with the lion’s share of that work being undertaken by workers with families.

He recalled the first Wednesday, November 2020, as the first time that he saw change. All of a sudden, he heard “a wall of refusals “from the staff in respect of Saturday work in packaging. He thought this strange. He recalled a number of staff called out “give us more money “The Complainant had refused to work that Saturday.

Two days later, he had secured two names of staff prepared to work on that Saturday. By then the Yoghurt had been constituted and packaging was needed. He was left in an unusual situation.

He understood that the complainant directed a no show for Saturday as nobody was prepared to turn up.

He repeated his efforts to secure volunteers and suspected a pay issue had arisen.

The Business did not have a storage facility for storing bulk yoghurt. A large volume of waste was imminent. There could have been waste but that did not occur.

Mr A formed the opinion that the C complainant was involved at the helm of this change. Unnamed staff had told him that the Complainant had told him not to come to work.

The issue was rectified when other workers zoned in from other units and agreed to work.

Mr A acknowledged that the Complainant was a good worker without a Disciplinary history.

Mr A observed that within a month of that episode, “things were normal again “

He confirmed that there were usually 10 staff rostered on a Saturday. The core shift hosted 30 workers on a Monday to Friday basis.

During cross examination,

The Complainant asked Mr A where were his witnesses to what the complainant had denied? Mr A denied having witnesses but confirmed that there had been an investigation.

Mr A confirmed providing the staff handbook to the complainant which comprised the disciplinary procedure. He confirmed that representation and interpretation was offered.

In response to clarifications, Mr A confirmed that both he and the Proprietors conducted the Investigation, which had not concluded in an Investigation report.

He had been requested by the Proprietors to bring the complainant to the office during 6 th November. This lasted 20 mins.

He confirmed that overtime was paid as €12 per hour. He did not name the Witness X alluded to in his evidence. He confirmed that he was the usual organiser of Saturday working at the Business.

Evidence of Mr B, Managing Director

Mr B recalled the 4-5 November conversation with Mr A where only 2 volunteers had stepped forward to cover Saturday shift. He had thought that strange. Together, they said they would try again to ascertain expressions of interest.

He was taken aback and troubled by the silent response from the staff. They would not talk to them. He was cognisant of staff welfare, but it had to be balanced against customer service and preservation of jobs.

He said that he took time and reflected on what “was really going on “

Mr B submitted that he worked closely with staff and prided himself on knowing them. He observed staff demeanour and saw them looking in the sole direction of the complainant in this case.

Mr B told the hearing that he met with the Complainant in the company of his wife, who was co-Director, the Complainant, and an interpreter on November 6. He asked the complainant if he had instructed staff in packaging around the Saturdays? The Complainant denied knowledge.

Mr B determined that further investigation was necessary. Within one week, Mr A had reported that Person X, while afraid for his safety had been told by the complainant not to come to work over the weekend. Mr B applauded his instinct in the matter, which had led him to the complainant.

He returned to the Investigative process on November 18, where based on the concrete evidence from Person X the disciplinary procedure was activated against the complainant.

Mr B was satisfied that the complainant was aware of the Disciplinary process from the staff handbook.

The Company had no tolerance when service to customers had been threatened by the Complainant and this resulted in the instant dismissal of the Complainant.

Mr B acknowledged that the business was sorry to lose the complainant, but he believed he was obliged to follow the disciplinary procedure. He had considered lesser sanctions, but none were appropriate.

Mr B confirmed that an appeal was offered but not activated.

He also affirmed that Saturdays were restored to normal after the Complainants departure.

During cross examination, Mr B refused denying the Complainant documents related to his appeal. Mr B said that the letter of dismissal of 4 December was a comprehensive response from the company. The complainant put it to the respondent that he had not received the letter.

He denied withholding information from the complainant.

In response to asking Mr B what was the reason for his dismissal? Mr B replied that the reason for dismissal had been shared already.

During clarifications,

Mr B confirmed that the Respondent had not been faced with a pay claim. The business was not unionised.

He had not taken a statement from Person X.

 I asked Mr B if he had considered the impact of Dismissal on the Complainant? He responded by saying that an opportunity to re-instate may have followed in the event of an apology. However, the action taken by the complainant with regard to the Saturdays constituted gross misconduct and “he had to go, nothing short “

He confirmed that he had taken 48 hrs to reach his decision to dismiss and there was a clearly available pathway of appeal to the financial controller.

He confirmed that he had considered the complainant capacity to interact with the multilingual staff languages of Polish, Irish, English, Indian and Czech.

When asked what weighting he had placed in Person X word over the Complainants word He told the hearing that Person X had 16/17 years’ service at the business and was credible.

He was not prepared to name the person.

The Respondent side confirmed that they were not placing Mr Bs wife and fellow proprietor into evidence. Ms C was present on screen throughout the hearing.

In conclusion, the Respondent Representative contended that this was a situation where a finding of gross misconduct resulted in a fair dismissal. The Complainant had signed for the staff handbook.

He had not exercised his right of appeal within an extended time frame. He had not objected to the presence of the Interpreter during the course of the investigation.

Ms Hayes pointed towards the clear upset amongst the workforce was at the forefront of the respondent’s mind and dismissal was the only sanction available.

She expressed a dissatisfaction with the complainant’s evidence on loss and mitigation and emphasised that the complainant had failed to honour his duty to mitigate.

She highlighted that the Respondent had outlined at hearing that if he had apologised, the business was prepared to take him back.

CA-00042977-002 Minimum Notice

The Respondent rejected the claim for minimum notice. The complainant was dismissed due to gross misconduct where minimum notice did not arise.

The Complainant worked as a General Operative from 23 October 2017 to the date of his dismissal on 18 November 2020. He told the hearing he was paid €9.25 per hour, which differed from the €10.10 listed on his complaint form. He submitted that he worked a 40-hour week. He submitted that he had found new work on 5 March 2021.

CA-00042977-001

Claim for Unfair Dismissal:

The Complaint form detailed that the complainant was called from the factory hall to the Managing director’s office on 6 November 2020. He was met with an assembled Mr A, Mr B, Ms C (proprietor)and a colleague from the storeroom acting as an interpreter.

He wrote that he was faced with a statement of guilt of persuading employees to not to turn up to work that Saturday and that he was agitating for a pay rise. He denied this charge, which was challenged by Mr B who indicated that once he had proof, the complainant would face dismissal.

He returned to the office on November 18 and was informed that he had agitated to strike. He sought proof and requested the opportunity to confront any accusers. He mounted a defence, but it was not possible without proof. He said that he received a disciplinary notice and was dismissed on the spot “because my employer thought that I was agitating for employee rights “

The Complainant, in representing his own case at hearing, outlined that he had been unfairly dismissed. He told the hearing that he was informed by the Respondent “what I did” which was untrue. He denied exerting pressure on the workers to refuse Saturday work.

He said that he had worked every single Saturday at the business. He admitted that Saturday work was an irritant for staff, but he denied influencing them against the business.  He said he had not been in trouble previously at the business .

Evidence of the Complainant:

He had stated that he was unaware of the reasons for his dismissal. He asked an open question, “Who confirmed what I did? “

The Complainant was invited to tell his story in chronological order.

The Complainant habitually worked Saturdays in Packaging at his own workstation. He was unaware of problems with Saturday working.

He had personal problems which kept him from volunteering for that Saturday.

He confirmed that he had since found new work on better pay.

The Complainant said that the Interpreter had been chosen by the company. He denied organising a strike.

He was informed by the Respondent that he had organised a strike.

He said that he asked for evidence. The Respondent told him that he had a problem. He did not wish to let the matter rest.

During cross examination, the complainant was initially vague when the Respondent Representative asked him if he was in Packaging when staff were asked to cover Saturdays?

The Complainant then said that he was there when Mr A and Mr B “asked again “

He said that nobody wanted to come to work that day.

He confirmed that he had attended interviews with the management with an Interpreter.

He denied knowledge of the Appeals Mechanism. He confirmed that he had his staff handbook in the English language.

The Complainant confirmed that he had refused work on November 7 as he worked a different machine, He confirmed mentioning this to Mr A.

The Complainant said that he could not defend his position on November 18 as he was shocked. He denied refusing to sign the record of the disciplinary procedure form.

The Complainant confirmed that he had applied for jobs but had not sent a CV . He said he was available for work from date of dismissal. He explained that he had experienced personal difficulties.

The Complainant clarified that the investigation undertaken was verbal. He was unable to point to receiving the letter dated 4 December (dismissal letter) He was unaware of the disciplinary procedure. He confirmed that he was resident at his house during December 2020-March 2021, taking holidays 17 December to 6 January.

He confirmed that he was not a union member. He re-affirmed that the allocation of staff for Saturdays was casual.

The Complainant explained that he went on holiday 17 December to 6 January. He attributed the 4-month delay before submitting his case to WRC to his need to seek advice from an advisory body.

At the conclusion of the Complainant evidence, Mr A sought an opportunity to address the complainant’s recollection of telling him that his absence at work on Nov 7 was attributed to “a machine “Mr A clarified that Saturday work involved two machines, both of which the complainant was deemed competent in. Mr A denied hearing the complainant give a reason for not working on Saturday. He recalled him saying that “he felt entitled to refuse one Saturday “

In conclusion, the complainant summarised that he could not possibly defend himself as he was not aware who was behind accusing him of organising a strike.

The complainant contended that he had tried to engage but his explanations were rejected.

He was not going to apologise for something that he did not do.

He concluded that he did not have the chance to appeal.

The Complainant agreed to submit PRSI documents governing records post his dismissal. These were received on 19 April, 2022and copied to the respondent.

He had made an earlier statement that he had received job seekers allowance from 18 November 2020 to 10 March 2021 on April 10.

CA-00042977-002 Minimum Notice

The Complainant sought payment of minimum notice on dismissal.

CA-00042977-001 Unfair Dismissal Claim

The case before me is a claim for unfair dismissal arising out of the circumstances of a series of events at the Respondent Business during the first two weeks of November 2020. The Respondent has rejected the claim and has centred their case on a defence lodged in accordance with Section 6(4)(b) of the Unfair Dismissals Act.

In reaching my decision, I have had regard for both parties written and oral submissions, both parties evidence adduced, and the supplementary detail submitted by the complainant on his PRSI records from date of dismissal

As a first step I will set out the law in the case of Unfair Dismissal in Section 6 of the Unfair Dismissals Act 1977

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.

I have drawn on S6(2) for information purposes on the protection offered by the Act to Trade Union membership and activity. It is not applicable in this case as the complainant was clear that he was not a Union member. The Respondent was equally clear that the business was not unionised or covered by a collective agreement on Saturday working.

It was common case that Saturday was managed on a voluntary overtime basis for 12 euro per hour.

(2) 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, to be an unfair dismissal if it results wholly or mainly from one or more of the following:

(a) the employee’s membership, or proposal that he or another person become a member, of, or his engaging in activities on behalf of, a trade union or excepted body under the Trade Union Acts, 1941 and 1971, where the times at which he engages in such activities are outside his hours of work or are times during his hours of work in which he is permitted pursuant to the contract of employment between him and his employer so to engage,

The Respondent, on whom the burden of proof rests in this case has relied on Section 6(4) (b) of the Act in defence of the dismissal.

 Section 6 (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:

(……….

(b) the conduct of the employee,

Section 6(7) of the Act permits me to consider the reasonableness of the decision to dismiss

(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.]

The question I have to ask myself is whether there were substantial grounds justifying the dismissal and whether the decision to dismiss constituted unreasonable conduct on behalf of the employer.?

The decision to dismiss has been made, it is not my role to unravel that decision, but to apply the higher test of whether the substantial grounds and reasonableness were identifiable. Was it reasonably open to the Respondent to make the decision they did?

British Leyland UK ltd v Swift [1981] IRLR 91, applied in Ireland in Bank of Ireland v Reilly [2015] IEHC 241

On a careful examination of the contract of employment, I found that the complainant was described as a temporary employee from 23 October 2017 to the date of his dismissal on 18 November 2020. I did not observe the application of the provisions of the Protection of Employees (Fixed Term Work) Act 2003 to this contract. One sole contract of employment was exhibited.

 I think it timely that the Respondent should give regard to this important observation.

I have also had regard for the success story attached to the evolution of the Respondent Business from 1994 to the present day. I fully accept the Respondent clearly visible and articulated desire to protect the integrity of their Business.

However, a Summary dismissal as that which has been presented here is a very serious event in any employment relationship. In this case it ended a three-year employment relationship which had not been marked by controversy until the first week of November 2020

The Complainant has submitted that the impact of this decision has caused him professional and personal difficulties and he was unwilling to let the matter lie. The Respondent has contended that the Business returned to status quo Saturday working in the wake of his departure and found reassurance in that observation.

As an important backdrop to this case, I considered the facts in Glover v BLN [1973] IR 388 at the Supreme Court, where the complainant in that case was dismissed without being told the nature of the complaint and an opportunity to adequately respond. Walsh J held that that it is was an implied term in an employment contract that an accusation of misconduct should be accompanied by an inquiry that must be conducted fairly

“It is sufficient to say that Public Policy and the dictates of Constitutional Justice require that statutes, regulations or agreements setting up the machinery for taking decisions which may affect rights or impose liabilities should be construed as for providing for a fair process “

This places a very high strict onus on the conductor of a disciplinary process leading to dismiss to provide that fair process.

The very useful book on the Rule of Law outlines that:

The rules of natural justice have traditionally been held to demand, first, that the mind of the decision maker should not be tainted by bias or personal interest (he must not be a judge in his own cause) and secondly that anyone who is liable to have an adverse decision made against him should have a right to be heard, audi alteram partem, hear the other party

                                                                                                                            Tom Bingham, the Rule of Law

Taken together, these provide a veritable road map on the application of fair procedures in this case.

I note that the Complainants representative vacated the case some two weeks before the hearing. The Complainant stated that he was comfortable to represent his own case with Interpretation.

The Respondent approached the case in an unusual fashion, where they referred to the presence of the Person X in the case who appears to have considered giving evidence on a partisan basis  in the wings of the hearing , but appears to have decided against it and left the room  .I note that the Respondent attributed a certain unease in Person x, but I could not validate that in the absence of evidence , which could in turn be tested .

 In addition, Mr Bs wife, Ms. C, a fellow Proprietor decided not to give evidence in the case. I have not had the benefit of meeting Person X.

I have considered the Respondent Disciplinary Procedure as exhibited in the staff handbook. I found an expansive list of 24 occurrences recognisable as

“Dismissal due to gross misconduct “

where you will be afforded an opportunity to put your case to the owners and you shall be entitled to be accompanied to any such meeting by a colleague “

Mr B confirmed that the Complainant was dismissed due to a contravention of

“Any behaviour /action which endangers the operations of the company “

I noted that the Disciplinary procedure form cited “gross insubordination and an instant dismissal offence “The letter of dismissal issued some 3 weeks after the dismissal and in response to the complainant’s letter of November 26, stated “gross misconduct “

The contract reflects a 5-step remedial action in case of breach of contract or misconduct

I have considered the Respondent evidence and understand that the company was faced with a real and present danger to product viability in the first week of November 2020, when the usual formation of Saturday work altered abruptly and was replaced with silence from the workforce.

 I accept that evidence from Mr A and Mr B. I accept that they anticipated an attempt to sabotage the product through absence. However, they both confirmed that no harm came to the company and the matter was resolved by their intervention prior to the weekend in question.

I understand that such a threat to a family run business would prompt an immediate inquiry. However, it is the manner in which that inquiry was conducted that runs to the root of the case.

Mr B, in his evidence relied on his “on the ground knowledge of the work force” to allow him to have “a gut instinct “that the complainant was behind a strategic plan to secure a pay raise for Saturday work.

The kernel of this case for the respondent, and Mr A, in particular rests on the

 “intelligence “passed from the unnamed “person x “that the complainant was the ringleader of this approach to “stand back from Saturday cover “

However, he/she who asserts must prove. I can place no weighting on a witness, who does not appear at hearing and was not named in advance as a participant.

I was very taken aback by the manner in which the Respondent approached the workplace Investigation. Put simply, it was completely void of “equality of arms “I accept the Complainant evidence that he was told he did wrong and in the absence of an admission from him, he was dismissed. He was not met by witness statements on his conduct.

He did not receive a printed allegation, witness statements. an opportunity to bring a colleague of his choice, outside of a company-imposed interpreter who originated in the company storeroom as a fellow employee. I found that last practice particularly distasteful given the care and dedication offered to the complainant by the WRC appointed interpreter and how important it is for a raconteur to be comfortable in an interpretative situation. Of further note, he was not given an opportunity to confront his accuser and test the evidence referred to.

The Respondent did not compile an investigative report and addressed the investigation outcome on an oral basis, which culminated in the Disciplinary procedure form, which the complainant told the hearing he did not refuse to sign. I believe him in that regard.

For me Mr B took on an abundance of roles in this process.

The Respondent said, and I heard that evidence, that by then their views were strengthened by confirmations from workers that the complainant was behind the unrest. For me, these were subjective whispers, and it is incredible that they could be elevated to evidence of such depth as to result in a dismissal.

The Company procedures allowed for Investigation within the Disciplinary Procedure. I have found that the Respondent did not adhere to their own procedures in that regard. The Respondent relied on a contention that gross misconduct automatically triggered a dismissal. However, I have not established that gross misconduct was safely proved.

I noted that the complainant was not supplied with letters of invitation to meetings to discuss this situation. There were no minutes of these meetings.

I have given Mr Bs evidence some thought on how he attributed a higher weighting to person x unwritten account as opposed to the complainants account of the Saturday working.  I must conclude that this was most unfair and procedurally flawed. The Complainant did not know the identity of Person x.

I appreciate that this weighting did influence him as he honestly considered the safety of the business, but I must find that he lacked impartiality in this aspect of the case. He was just too close to the threat of sabotage and must, in my opinion be recognised as “a judge in his own cause”.

 I can appreciate that he had built the business and was acting in what he considered its best interest by seeking to “flush out “a perceived saboteur, however, in so doing he departed from the best practice model of inquiry underpinned by constitutional justice.

An accused has a right to know their accuser and the case made against them.

In Re Haughey (1971) I.R.217 – it was stated that Article 40 s 3 of the Constitution is a guarantee to the citizen of basic fairness of procedures.

in proceedings before any tribunal where a party to proceedings is at risk of having his or her good name, or his person or property or any of his personal rights jeopardised, any procedures which restrict or prevent the party concerned from vindicating those rights must be outlawed.

I have also considered the guidance available in the case law of

 Hennessy v Read & Write Shop Ltd UD 192/1978,

Regarding the decision taken to dismiss, regarding conduct. The EAT set down a defined test.

1. the nature and extent of the enquiry carried out by the respondent prior to the decision to dismiss the claimant, and

2. the conclusion arrived at by the respondent that, on the basis of the information resulting from such enquiry, the claimant should be dismissed.”

3 the reasonableness of that conclusion

In the instant case, I found a defined shortcoming in the inquiry conducted prior to the decision to dismiss. I have also found the conclusion to be unreasonable, albeit made in what Mr B professed to be in the best interests of his business.

I have also drawn from Frizelle v New Ross Credit Union Ltd [1997] IEHC 137 where Flood J. pointed to certain tenets

1. The complaint must be a bona fide complaint unrelated to any other agenda of the complainant.

2. Where the complainant is a person or body of intermediate authority, it should state the complaint, factually, clearly, and fairly without any innuendo or hidden inference or conclusion.

3. The employee should be interviewed and his or her version noted and furnished to a deciding authority contemporaneously with the complaint and again without comment.

4. The decision of the deciding authority should be based on the balance of probabilities flowing from the factual evidence and in the light of the explanation offered.

5. The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.

When I apply the decision in Frizelle, to the facts of this case, I find that the Respondent fell significantly short of that test by the time the complainant was dismissed on November 18. The decision taken to dismiss was disproportionate to the gravity of the complaint.

It is clear to me that the Respondent jumped the gun in moving to dismiss the Complainant, who had denied the allegations and was not provided with fair procedures or natural justice to any standard.

It is my opinion that this rush to justice by the Respondent over a two-week period, when no actual but anticipated; harm was caused to the company served to single out the complainant as an example to other staff. He was made an example of.

I must conclude that the complainant was unfairly dismissed.

However, the complainant did not convince me on his failure to take up the offer of appeal. I accept that he wrote to the Respondent on November 26, 8 days post dismissal where the Complainant confirmed receiving the disciplinary note on 18 November. He sought proof of alleged misconduct.

He also chased annual leave.

The letter concluded that he would take action in accordance with employment legislation if he did not obtain a response by 7th December.

I could not quite follow the Complainants stated approach to the appeal offered.

I appreciate that the decision to dismiss had been made prior to the appeal being offered. It may not have disturbed the outcome. The Respondent said they would have accepted an apology as an impetus to re-instate the complainant, but this was not made known.

I found the complainant very vague on the topic of his whereabouts post dismissal. He said that he had not received the letter of dismissal dated December 4. He did not act to his own deadline of 7 December as it was four-month s later by the time the case came before the WRC and only when the complainant said he had relaunched into new work., which was better paid.

I have found that the complainant did not avail of his pro-offered appeal and in so doing acted to his detriment. I found he was not available to the Respondent during that period immediately after the employment ended.

I accept that the Respondent did send the 4th of December 2020 letter to the complainant’s home address, and it was remiss of the complainant not to respond to this letter.

I did not find his evidence on mitigation credible, and his statement of DSP earnings did not dovetail with the period of time he claimed to be without work.

As I have found that the Complainant was unfairly dismissed, I would urge the Respondent to reflect on the investigative process adopted in this case and to address and include a best practice model in the staff handbook.

 I must now move to considering redress in accordance with the Act. The Complainant has sought compensation in the event that he won his case.

Section 7(2)

. Redress for unfair dismissal

(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:

(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.]

I have identified that the Complainant made a low-grade attempt at finding new work to mitigate his loss in the immediate aftermath of dismissal.

CA-00042977-002 Claim for Minimum Notice

4. Minimum period of notice

(1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—

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

(b) if the employee has been in the continuous service of his employer for two years or more, but less than five years, two weeks,

The Complainant is entitled to received two weeks’ notice. I find his claim is well founded.

CA-00042977-001 Unfair Dismissal Claim

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.

I have found that the complainant was unfairly dismissed. I have expressed some reservations of his efforts at mitigation of loss. I order the Respondent to pay the Complainant €3,636.00 in respect of his unfair dismissal. This amounts to the equivalent of 9 weeks salary.

CA-00042977-002 Minimum Notice

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 12 of the Minimum Notice and Terms of Employment Act, 1973 requires that I make a decision with regard to Section 4 of that Act.

I have found the claim well founded and I order the Respondent to pay the Complainant €808.00 for his sustained loss.

Claim for Unfair Dismissal and Minimum Notice