Complainant

Respondent

Parties

Sandra O'Halloran

Chadwicks Group Limited

Representatives

SIPTU

IBEC

Act

Complaint Reference No.

Date of Receipt

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

CA-00046424-001

28/09/2021

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

CA-00046424-002

28/09/2021

The complainant had been dismissed from her employment for gross misconduct.

At the commencement of the hearing the respondent conceded it that the termination was unfair, and that the adjudicator was being asked to determine the level of compensation only.

The complainant was dismissed from her employment for gross misconduct following a thorough disciplinary process in which fair procedure and natural justice were applied. Also, she received all monies due to her on termination of employment and there are no notice payments outstanding.

At the commencement of the hearing the respondent conceded it that the termination was unfair, and that the adjudicator was being asked to determine the level of compensation.

The respondent submitted that while employed with the respondent the complainant had sought reduced hours and applied for subsequent jobs on the basis of fewer hours than she worked with the respondent by her own choice.

The respondent submitted that the complainant had made insufficient efforts to look for employment in the aftermath of the dismissal and was not available to work full time.

The complainant started working for the respondent in October 2016 complains that she was unfairly dismissed.

The complainant made an extensive submission which in the circumstances of the respondent accepting that the dismissal was unfair is unnecessary to report.

The complainant gave evidence on oath in relation to her efforts at mitigation of loss.

She said that she began applying for jobs online the week following her dismissal and did succeed in gaining employment, although some of these involved fewer hours (at her request) than her work with the respondent.

Under cross examination she said that she had applied for about twenty jobs but had no documentary evidence that she had done so.

She also confirmed that in relation to the second job she had asked for fewer hours than she had been offered and was not available to work full time for family reasons.

Her losses attributable to the dismissal were stated to be €18,246.00.

I am obliged to consider the complainant’s efforts to mitigate her loss by seeking alternative employment as the respondent has conceded that the dismissal was unfair.

Section 7 (2) (c) of the Act makes it clear that in determining the amount of any compensation consideration must be given to ‘the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid’….

In Sheehan v Continental Administration Co Ltd UD 858/1999 the Employment Appeals Tribunal considered the efforts to mitigate in pursuant to Section 2(1) of the Unfair Dismissals Act 1977. In the judgement it was held: -

“A Complainant 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 Complainant 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.”

It is clear from her sworn evidence that the complainant did not fully meet the requirements set out in Sheehan above.

She was not able to provide evidence of her efforts to gain employment and some of her losses were attributable to her own choice to work fewer hours. Nonetheless her evidence that she had made some efforts was credible.

I have taken both of these factors into account in making my award and I have also considered the circumstances leading up to the termination of her employment, and while making due allowance for inadequacies in relation to mitigating her loss, the justice of her case requires a substantial award of compensation.

Regarding the complaint under the Minimum Notice Act this is well-founded on the basis of a finding that her dismissal was unfair, and on the basis of just under four years and five months’ service she is entitled to two weeks’ pay.

I find in respect of Complaint CA-00046424-001 under the Unfair Dismissals Act, 1977-2015 that the complainant was unfairly dismissed, and I award her €12,000.00 for her losses attributable to the dismissal.

Complaint CA-00046424-001 is well founded and I award the complainant two weeks’ salary at €560 per week; that being the rate she was paid on the termination of her employment.

Unfair Dismissal, Mitigation of loss.