FULL RECOMMENDATION
PARTIES : ACCENTURE GLOBAL SOLUTIONS LIMITED DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No(s). ADJ-00014858 CA-00019373-001. The Complainant was employed by the Respondent from July 2016 until 4 May 2018. It is common case between the parties that her role was relocated to a different country. The Complainant was on sick leave from January 2018. The Complainant lodged a complaint under the Act with the Workplace Relations Commission, ‘WRC’, on the basis that that she was not chosen for other roles within the Respondent company for which she was qualified and that she was made redundant some weeks before other employees whose roles were also redundant, thus preventing her from applying for roles that became available in that time. She argued that these circumstances arose because the Respondent was unwilling to provide equipment that would have enabled her to return to work from sick leave and that had been recommended by her medical practitioner. The Respondent denied that the Complainant had been treated unfairly contrary to her rights under the Act, noted that her role was redundant, that she had been invited to apply for other roles within the company and that they had paid her statutory redundancy, despite the fact that her service with the company did not entitle her to any such payment. The AO decided that the complaint was not well founded. The Complainant appealed this decision to this Court. Mitigation/Loss. At the outset, the Court established that the Complainant was seeking a remedy of compensation. It was further established that the Complainant had been in receipt of Illness Benefit or Disability Benefit since she ceased employment with the Respondent. Accordingly, the Complainant was deemed by the Department of Social Protection to be unable to work in this period. In such a situation, the Court noted that s.7 (1)(c)(ii) of the Act was applicable and that, if the Court was to determine that there had been an unfair dismissal and that compensation was payable, the Court would be confined to determining that compensation of four weeks’ pay was the maximum award that could be made. The relevant section of the Act reads 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 (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. Liability of an employer. In situations where a former employee is unable to work, their former employer cannot be held, in accordance with the Act, to be liable for any financial losses that result, notwithstanding the fact that the Complainant indicated her unhappiness with the application of this principle in the instant case. Furthermore, it is not for the Court to second guess the ability of a party before the Court to take up employment, in circumstances where such a determination has been made by the relevant Government Department. Respondent concession. In light of this clarification, the Respondent indicated that they would be willing to concede to the complaint of an unfair dismissal and to pay compensation of four weeks’ pay to the Complainant. Amount. It was agreed by the parties that the weekly pay to be used for the purpose of the Court’s calculation is €631.46. Therefore, the compensation payable for the unfair dismissal is €2525.84 and the Court determines that this amount should be paid by the Respondent to the Complainant. Determination. The Decision of the Adjudication Officer is overturned.
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