FULL RECOMMENDATION
PARTIES : ACCESS IT CLG / ACCESS IT DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer's Decision No(s)ADJ-00019429 CA-00025347-001 With effect from 27 September 2018, the employment relationship was terminated. The Complainant lodged a complaint under the Unfair Dismissals Act, ‘the Act’ with the Workplace Relations Commission, ‘WRC’. Her complaint was upheld by an Adjudication Officer, ‘AO’, who decided that she should be reinstated. The Respondent appealed to this Court. In doing so, they accepted that the dismissal was unfair but appealed the remedy of re-instatement. Summary of Respondent arguments. The complainant was combative and insubordinate and was a key factor in the creation of a disharmonious and dysfunctional workplace for her colleagues to whom the Respondent has a duty of care. The Respondent is a small organisation and former colleagues of the Complainant are prepared to testify to the negative impact of the Complainant’s behaviour. In the 3 years and 9 months since the Complainant left the Respondent, the business has moved on and there is no business need for an additional I.T. tutor, so that a direct consequence of re-instatement would be the redundancy of an existing staff member. In addition, the Complainant has failed to mitigate her loss. It is implausible and incredible that she should have struggled to find work in a buoyant market. She confined herself to seeking work in a limited sector but could have easily obtained work at similar pay in other sectors. Any substantial award of compensation would cause severe financial difficulties for the Respondent and for the users of its services, many of whom are vulnerable. The Court is referred to Coad v Eurobase UD1138/2013, in which the EAT expanded on the requirements of s. 7(2)(c) of the Act and referred to Sheehan v. Continental Administration Co. Ltd, UD858/1999 in which case it was observed that a claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. In irish Sea contractors Limited v Ronan Farrell UDD205, the claimant had not demonstrated reasonable efforts to mitigate his loss and was awarded just 10 weeks loss of earnings. It is well established by the Court that re-instatement is only appropriate in very limited circumstances. In Bus Eireann v Kennett Folman UDD2152, the Court held that the breakdown of trust and confidence between the claimant and his former employer, made a return to work unviable. Likewise, in Forum Connemara Co v Lucy Walsh, UDD2173, the Court expressed the view that reinstatement should be awarded only when the bond of trust and confidence remains sufficiently intact. The Court is referred also, for the purposes of illustrating a distinction, to the case of Bank of Ireland v James O’ Reilly, (2015) IEHC241. Summary of Complainant arguments. Note; The summary below relates only to the elements of the Complainant’s submission that refer to the issue of remedy. The Respondent has provided no proof that the Complainant contributed to a toxic environment. There were no investigations or complaints made against the Complainant while she worked for the Respondent. A number of former colleagues can testify that the environment was toxic before the Complainant commenced to work there. The Complainant’s dismissal was disproportionate and unreasonable and re-instatement is the fair redress, as per Bank of Ireland v O’ Reilly, to which the Respondent refers. The complainant has not secured employment in Waterford because of the damage to her reputation and has to look to Dublin for a similar role. The Complainant has attempted to mitigate her loss and provides the Court with print outs of electronic applications. Further, in 2019, the Complainant secured 2 months’ work, a further 6 weeks’ work in October 2021 and has been self employed since March 2022. In addition she made some hundreds of informal enquiries. She also pursued part time study to update her skills. The onus is on the Respondent to prove that the Complainant did not apply for employment, see the UK case of Cooper Contracting Ltd. v Lindsey. Reinstatement will cost less to the Respondent than compensation. The funder, Pobal, had recommended that one pert-time post be redundant but the Respondent altered the role to avoid that, so funding was available to keep the Complainant in employment. The Complainant cannot be held responsible for the Respondent’s apparent difficult finances. It is not the case that trust between the parties has broken down. The Respondent does not want the Complainant to return to work because of guilt over their handling of the dismissal. There was no breakdown of trust on the side of the Complainant. The Complainant was a home-maker and will be using the Total Contributions Approach to qualify for a contributory state pension. She is now in a position that she will not have enough PRSI contributions to qualify. Re-instatement will have a huge effect on her future rights. The applicable law. Unfair Dismissals Act 1977-2015 Redress for unfair dismissal. 7.—(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 followingthe adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances: (a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or (b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or (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 undersection 17of 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 references 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.] 1A) In relation to a case falling within section 6(2)(ba) the reference in subsection (1)(c)(i) to 104 weeks has effect as if it were a reference to 260 weeks. (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, F50[(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) ofsection 14of 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. (2B) Where— (a) the dismissal of an employee results wholly or mainly from the employee having made a protected disclosure, and (b) the investigation of the relevant wrongdoing concerned was not the sole or main motivation for making the disclosure, the amount of compensation that is just and equitable may be up to 25 per cent less than the amount that it would otherwise be. (3) In this section— “financial loss”, in relation to the dismissal of an employee, includes 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 1973, or in relation to superannuation; “remuneration” includes allowances in the nature of pay and benefits in lieu of or in addition to pay. Deliberation. As the Respondent does not dispute the finding that the dismissal was unfair, it is not necessary for the Court to re-visit in any detail the considerations that gave rise to this Decision by the Adjudication Officer, ‘AO’, except to note that in the absence of a single document to substantiate any of the claims made by the Respondent regarding the Complainant, including claims made before this Court, it is necessary to put on record that the Court has been given no reason to conclude that the Complainant contributed to her own dismissal. The AO in his finding was unequivocal about the egregious behaviour of the Respondent in purporting to make the Complainant redundant while, in fact, dismissing her without any allegation ever having been put to her regarding her alleged shortcomings. As this behaviour by the Respondent deprived the Complainant of her livelihood, the AO concluded that the appropriate remedy is re-instatement. The Court listened to the parties very closely in the course of this appeal. Without going into the details, or attempting to determine the rights and wrongs, it is evident that there is considerable hostility and resistance on the part of the Respondent to any potential return of the Complainant to the employment. On the other hand, it was clearly not lost on the Respondent that a requirement to reinstate the Complainant would have substantial implications for them as arrears of salary would be owed. As a consequence, the Court found itself considering arguments from the Respondent that, despite accepting the dismissal was unfair, amounted to a rear-guard action designed to prevent the return of an employee who, they accepted, had been dismissed unfairly. On top of that, the Respondent pleaded financial hardship. In circumstances where an employer accepts that an employee was dismissed unfairly, it is remarkable that they should use their financial situation as an argument to justify a refusal to restore that employee’s livelihood. For all of the above reasons, the Court has considerable sympathy with the proposition that the appropriate remedy is to re-instate the Complainant, who assured the Court of her willingness to re-integrate without holding any grudges. However, whatever the rights and wrongs of the situation, it is an unavoidable fact that there is a huge level of hostility on the part of the Respondent to the Complainant’s return. While that cannot be the only factor for the Court to consider, it cannot be ignored either and has to be factored into the Court’s consideration. The Court has to consider if it can be said to be in the interests of either party for the employment relationship to be re-established. The very fact that both parties lined up witnesses to attribute blame to the opposing party for the circumstances in the employment suggests a level of mutual distrust and hostility that is not likely to be helped by re-instatement. Given that the Complainant is accepted to be the aggrieved party, the Court has to give particular consideration as to whether it would be in her interests for her to return to work for the Respondent. Apart from financial considerations, it is, frankly, difficult to see how it would. The Court was very mindful that the Respondent’s strong arguments against re-instatement would, if accepted, have a considerable impact on the financial value of the remedy for the unfair dismissal and the options available to the Court as alternatives provided for in the Act are set wide apart in terms of financial consequences for the Complainant, given the circumstances of the case. However, there is nothing that the Court can do about that. The requirement regarding mitigation, as expounded in the Sheehan case referred to above, sets a very high bar and has the potential to cut significantly the levels of compensation that the Court can award, having regard to s.7 of the Act, in cases where compensation is determined to be the appropriate remedy and an unfairly dismissed employee has not made sufficient effort to mitigate their loss. Taking all of the above factors into account, in addition to the effluxion of time since the dismissal, the Court, on balance and not without some misgivings, concludes that re-instatement as a remedy would not be in the best interests of either party and, specifically and particularly, would not be in the best interests of the Complainant. Accordingly, the Court concludes that compensation is the appropriate remedy. The Complainant’s salary was €9705.48 p.a. Therefore, the maximum award that the Court could make is €19,410.96, minus a payment of €1666.08 given to her for her purported ‘redundancy’. The maximum total, therefore, is €17744.88. The Complainant provided the Court with printed screen shots of correspondence regarding a reasonably significant number of jobs about which she made enquiries and/or for which she applied. She told the Court that she applied for hundreds of positions but, in the absence of any documentary evidence of same being produced to the Court to substantiate this statement, the Court has no option but to disregard it and to proceed to make its decision based on the documentary evidence given to it. While this supports a claim of reasonable effort on the part of the Complainant, it falls short of the requirements enunciated in the Sheehan case, as set out above. Weighing all of these factors, the Court determines that the Respondent should pay a sum of €15,000 to the Complainant for her unfair dismissal. To avoid any confusion, this is in addition to the amount of €1666.08 paid to her already. Determination The Decision of the Adjudication Officer is varied.
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