Complainant

Respondent

Anonymised Parties

An Employee

A Medical Device Organisation

Representatives

Alastair Purdy Alastair Purdy & Co. Solicitors

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-00045279-001

20/07/2021

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

CA-00045284-001

21/07/2021

The complainant submits that he was dismissed unfairly.  The respondent accepts that the complainant was unfairly dismissed.

The respondent requested that the decision be anonymised and that if this was granted they would accept that the dismissal was unfair and that this would dispose of the manner in what they regarded as an efficient manner.  The respondent submitted that the complainant also might want the decision to be anonymised.

The respondent conceded that the complainant was unfairly dismissed and that therefore the only matter to be dealt with was mitigation of loss and that the complainant had not demonstrated efforts to mitigate his loss.

In response to the complainant’s claim for over €50k as a result of redundancies that arose and which the complainant submitted he had an entitlement to, the respondent submitted that the complainant was setting out what he felt and that there were no witnesses or evidence to support this.  The respondent submitted that the complainant has been unfit for work and had provided no evidence of efforts to mitigate his loss and therefore the maximum compensation which he can receive is 4 weeks.

The complainant objected to anonymising the decision at the request of the respondent.  Following consideration of the matter the complainant requested that the decision be anonymised owing to his health issues which he did not want made public.

The complainant submitted that he commenced employment on 21 May 2007 and that he was dismissed on 26 January 2021 following a period of absence.  He submitted that he spent much of his employment with the respondent looking over a microscope, motionless.  In October 2019 the complainant suddenly lost half his sight in his left eye and was diagnosed with retinopathy and was advised by his physicians that it was caused by stress and that the only stress he had was at work.  His eye sight returned and he made efforts to return to work but the respondent resisted his efforts.  The complainant was aware that the respondent lost a customer and that there were redundancies, but the respondent terminated his employment to avoid paying him redundancy.  The complainant submitted that he should have received redundancy as there were redundancies in his area and he would have been entitled to redundancy and secured over €50,000 but that by dismissing him the respondent avoided paying him his monies.

The complainant gave evidence that social welfare have advised that he is unfit for work but that his gp has not said anything about his health.  The complainant submitted that he suffers with his back but that he remains unfit for work as he would have problems sitting for a long time and he does not wish for his old job back.  The complainant submitted that in 2021 he was medically unfit for work but is not medically unfit since 2022.

The respondent made an application for the decision to be anonymised and that if that was granted then they would concede the dismissal was unfair.  The respondent submitted that they were requesting this in the interest of the efficiency of the case.  The complainant objected to this.

All WRC hearings involving the administration of justice (that is all WRC cases save for those for disputes under s.13 Industrial Relations Act 1969), are conducted in public unless the relevant Adjudication Officer decides, of their own motion, or following an application from a party to the proceedings, that due to the existence of ‘special circumstances’, the proceedings should be conducted in private.   

As set out on the WRC website, ‘Special circumstances’ may include the following non-exhaustive list: cases involving a minor; circumstances where a party has a disability or medical condition, which they do not wish to be revealed; cases involving issues of a sensitive nature such as sexual harassment complaints etc.

Following an adjournment and consideration of the respondent’s application I advised the respondent that I did not consider “efficiency of the hearing” as special circumstances.  The complainant made his own application for the decision to be anonymised owing to his medical health reasons and following an adjournment to consider same I advised parties that I did consider the complainant’s health reasons as special circumstances and advised parties that the decision would, therefore, be anonymised. 

I note that the respondent accepts that the dismissal was unfair.  The complainant was employed with the respondent since 21 May 2007 and the respondent unfairly dismissed him on 26 January 2021.  There were redundancies in the area where the complainant worked and I note the upset caused to the complainant that the respondent made the decision to unfairly dismiss him in the circumstances which they did following a serious medical condition.  It would appear that if the complainant had been selected for redundancy then he would have received over €50,000.  The respondent disputes this but provided no witnesses and the complainant evidence is the only evidence I heard.

I do not have jurisdiction to deal with the complainant’s request for a redundancy payment but it is not lost on me the upset and distress that this must have caused the complainant and the manner in which the complainant was treated by the respondent who unfairly dismissed him while absent.      

The complainant’s evidence at times was inconsistent regarding whether he is medically unfit for work.  It would appear that he remains unfit for work, furthermore did not provide evidence of efforts to mitigate his losss and is not currently working. 

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 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,

I have decided that reinstatement or re-engagement of the Complainant is not a practical option in this case and that compensation is the appropriate redress in this case.  The complainant incurred no financial loss as he remains unfit for work and provided no evidence of efforts to mitigate his loss and therefore as unfair dismissal is not in dispute I find the dismissal was unfair and award the complainant the maximum which I can of €2,170 namely 4 weeks compensation.

The complainant submitted that this complaint was withdrawn as it is a duplication of CA-00045279-001.

CA-00045279-001

As unfair dismissal is not in dispute I find the dismissal was unfair and award the complainant the maximum which I can of €2,170, namely 4 weeks compensation.

Unfair dismissal, mitigation of loss