FULL RECOMMENDATION
PARTIES : ST JOHN OF GOD HOSPITAL LIMITED DIVISION :
SUBJECT: 1.Appeal Of Adjudication Officer Decision No ADJ-00028651. The Adjudication Officer decided that the Appellant’s complaint was well founded and awarded her the sum of €15,000 in compensation. Background: The Appellant was employed by the Respondent since 2018. The Appellant contends that she was dismissed without notice between 27thFebruary 2020 and 2ndMarch 2020. She submits that she was employed on an hourly rate of €22.17 prior to her dismissal. The Respondent contends that the Appellant was not dismissed as alleged and contends that the Appellant left the premises on 27thFebruary 2020 and has not returned since. The Respondent contends that the Appellant remains a ‘live’ relief employee with the Respondent. The fact of dismissal is in dispute. Summary position and evidence of the Appellant: The Appellant submits that in January 2020 she sought permission from her manager for her daughter to undertake work experience in the Respondent’s premises in the context of her undergoing a course to become a qualified medical secretary. Permission was granted by her manager Ms O’Sullivan. Her daughter completed a Garda vetting form as required and gave this to Ms O’Sullivan who handed this to the Respondent’s Human Resource Manager, Mr Doherty. The Appellant’s daughter commenced her work experience on 17thFebruary 2020 and on 24thFebruary the Appellant received a phone call from Mr Doherty wherein he told the Appellant that her daughter had to leave the premises immediately as she had not been Garda vetted. The Appellant’s daughter left the premises. On the evening of 27thFebruary 2020 the Appellant was invited to a work related book launch in the city centre which she intended to attend along with her daughter. The Appellant’s daughter attended the Respondent’s premises on that afternoon to wait in an office for the Appellant. Mr Doherty phoned the Appellant and demanded that her daughter be taken off the premises. He then asked the Appellant to attend a meeting in his office where he advised her that her daughter should not be on the premises. The Appellant left the premises and was phoned shortly afterwards by a colleague, Mr Kelly, who advised her that she should not attend the following day. Mr Doherty followed his earlier call up with phone call to advise the Appellant that she should not attend for work on the following Monday or Tuesday. Subsequently the Appellant was contacted by Ms O’Sullivan to inform her that she would not be required for work with the Respondent any longer. The Appellant has not been contacted by the Respondent since with an offer of work. She maintains that, on the facts, she was undoubtedly dismissed by the Respondent. The Appellant gave evidence to the Court in accord with her written submission with regard to the events leading to what she contends was her dismissal. She said that she received a phone call from Ms O’Sullivan on Monday 2ndMarch 2020 to tell her that she was no longer needed for any hours. She said that she earned €42,000 in 2019 and was paid €22.17 per hour at the date of her dismissal. She said that made every effort to secure replacement employment following her dismissal and applied for at least 10 jobs. She said that she secured employment with anther employer in October 2020 for 15 hours per week at a rate of €15.50 per hour. Summary position and evidence of the Respondent: The Respondent submitted that the Appellant was employed on an ‘as and when’contract of employment and was not entitled to be provided with hours of work if the employer did not require her to ‘cover’. It is common practice that when staff are not required for ‘cover’ they are contacted by the Respondent by way of e-mail, call or text to so advise them. The Appellant was not employed for 37 hours per week as alleged by her and in the period between 30thSeptember 2019 to 24thFebruary 2020 she worked an average of 26.7 hours per week including 10 weeks when she did work 37 hours per week. The Appellant had brought her daughter onto the premises of the Respondent on 24thFebruary 2020 without authorisation or Garda clearance and was asked to remove her daughter. The Appellant again brought her daughter onto the premises on 27thFebruary 2020 and was told that her daughter could not be there. She was asked to attend the HR Office on that occasion where she was informed that her daughter could not be in the hospital. The Appellant left the premises at 3.50pm that day without informing her manager. At no point was she informed that she could not return to work and she remains a ‘live’ employee of the Respondent. No disciplinary action was initiated against the Appellant in respect of events involving her daughter. On 6thMarch 2020 the Respondent received a solicitor’s letter written on behalf of the Appellant stating that the Appellant had been dismissed. The Respondent replied to that letter asserting that the Appellant had not been dismissed from her employment. On 27thApril the Respondent received further correspondence from the Appellant’s solicitor seeking compensation arising from the dismissal of the Appellant. The Respondent replied to that letter again asserting that the Appellant had not been dismissed but that she had walked out of her employment without authorisation. The Respondent refuted the contention that the Appellant had been dismissed and contended that she had simply been told in the normal way that she would not be required for two shifts that she had been rostered to ‘cover’ in the week following the events involving her daughter. The Respondent clarified that the Appellant had not been contacted with an offer of work in the period since early March 2020 and submitted that limited work had been available because of the global health emergency and that another employee had been allocated all of the work which was required in that interim period. Ms O’Sullivan gave evidence in accord with the Respondent’s written submission in relation to the events leading up to the date of purported dismissal of the Appellant. She said that there had been no intention to dismiss the Appellant and that she had not advised the Appellant by phone on 2ndMarch 2020 or at any other date that she would not be required for any hours in the future. Ms O’Sullivan agreed with counsel for the Appellant that it did look like the Appellant had been dismissed but that no communication from her to the Appellant meant that she had been dismissed. The Law: The Act at Section 6(1) makes provision as follows: 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. The Act at Section 7 in relevant part addresses the issue of redress as follows: 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 following the 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 (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 under section 17 of 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. (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— (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,
The Respondent disputes that a dismissal took place in early March 2020 or at all. Insofar as the Respondent has entered no submission or evidence contending that there were substantial grounds justifying a dismissal of the Appellant, it can be understood that this complaint will turn on the question of whether a dismissal occurred at all. In the event that the Court concludes that a dismissal has taken place then, in the absence of any substantial grounds for such a dismissal, it can be taken, by operation of the law at Section 6(1), that such dismissal was unfair. The Appellant and the witness for the Respondent directly contradict each other in evidence as to whether the manager, Ms O’Sullivan, contacted the Appellant by phone to say that she would no longer be required for any hours. The Appellant did however state in evidence that no direct assertion that she had been dismissed had been made to her by Ms O’Sullivan or any other person on behalf of the Respondent. It is noted by the Court that the Respondent did assert to the Appellant’s solicitor in correspondence on a number of dates in March and April 2020 that the Appellant had not been dismissed and it is noted also that the Respondent has submitted to the Court that, at the date of the hearing of the Court, over two years after the alleged date of dismissal, that the Appellant remained a ‘live’ employee of the Respondent. The Court understands that, as contended for by the Respondent, the global pandemic had an impact on the operations of the Respondent. The Court notes however that across the period of the pandemic, work of the nature which had been carried out by the Appellant was required by the Respondent. The Court also notes that the Appellant, who according to the submission or the Respondent remained an employee throughout, was not contacted at all in that period by the Respondent with an offer of work or at all. Instead, all available work of the type carried out by the Appellant was, according to the Respondent, provided to another employee. The Court, having considered the factual matrix of the matter before it, must conclude that the Respondent could have afforded work to the Appellant in the period since March 2020 but chose not to do so. It is common case that the Appellant worked an average of 26.7 hours per week in the period from 30thSeptember 2019 to 24thFebruary 2020 and that she has not worked one hour since early March 2020. In all of the circumstances, the Court concludes that, notwithstanding the contradiction as between witness evidence as to whether she was ever actually informed that she would not be required for any work into the future, it is reasonable, on the facts, to conclude that the Appellant was in fact dismissed by the Respondent in early March 2020. This conclusion is drawn from the fact that, since that period she had been offered no work at all by the Respondent in circumstances where, prior to the events involving her daughter, she was regularly and consistently offered substantial amounts of work and that, subsequently, such work was afforded to another employee to the exclusion of the Appellant for a period of over two years. The Court further concludes that, the Respondent not having contended that there were any substantial reasons justifying dismissal, the dismissal of the Appellant was unfair. The Court notes that the parties are agreed that the annual earnings of the Appellant prior to what the Court has determined to be the date of her dismissal was €42,000. Against that background the Court accepts the evidence of the Appellant that she is at a loss of €55,000 as a result of her dismissal. Having regard to the submission of the Appellant, the Court concludes that the that the appropriate form of redress in the within complaint is compensation. The Act at section 7 requires the Court, when measuring the amount of compensation which is just and equitable having regard to all of the circumstances, to have regard to the measures adopted by the Appellant to mitigate her loss. The law has been clarified in many decisions both of this Court and the EAT to the effect that a claimant must make a real effort to mitigate his or her loss. The EAT inSheehan v Continental Administration Co Ltd (UD 858/1999)held as follows: - "a claimant 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 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." The Appellant is required to establish that she made every effort to mitigate her loss arising from her dismissal. The Court was provided with no documentary evidence of applications made or other efforts to secure alternative employment in the period following her dismissal. She told the Court in evidence that she had made informal or formal application with up to ten employers and that she had secured employment in October 2020 for 15 hours per week at a lesser rate of pay than had been enjoyed by her in the Respondent’s employment. She made no submission that she had made any continuing efforts to mitigate her ongoing losses after October 2020. The Court, having accepted that the financial loss suffered by the Appellant is in the amount of €55,000, has concluded that she has failed to meet the standard of effort required to mitigate that loss and has decided to reflect that failure in the amount of compensation to be awarded. The Court considers that a reduction of 55% is just and equitable. The Court therefore concludes that the level of compensation which is just and equitable in all of the circumstances is €25,000. Decision The Court, for the reasons outlined above, decides that the Appellant was unfairly dismissed, that the appropriate form of redress is compensation and that, having regard to her failure to make adequate efforts to mitigate her loss, the amount of compensation which is just and equitable in all of the circumstances is €25,000. The decision of the Adjudication Officer is varied accordingly. The Court so decides.
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