UDD2328

1.Appeal of Adjudication Officer Decision No(s) ADJ-00028829

BACKGROUND:

2.This is a double appeal. The Employer appealed the Decision of the Adjudication Officer to the Labour Court on 23rd January 2023 in accordance with Section 8(A) of the Unfair Dismissals Act 1977 to 2015. The Worker appealed the Decision of the Adjudication Officerto the Labour Court on 3rd February 2023. A Labour Court hearing took place on 12 July 2023. The following is the Determination of the Court:

DETERMINATION:

Background

The Complainant worked for the Respondent between 2006 and May 2020 when her employment ended. Both parties have appealed the decision of the Adjudication officer. The Complainant submitted that her appeal was solely related to quantum. The Adjudication Officer upheld her complaint and awarded compensation of €25,000.

Ms Guinness BL at the commencement of the hearing informed the Court that the Respondent was not disputing the fact that the dismissal was unfair. However, it would be their submission that the Complainant had failed to mitigate her loss as required by the Act.

The Court proceeded to hear the parties on the issues of loss and mitigation of loss.

Summary of Complainant submission and evidence.

Ms Murphy BL informed the Court that the Complaint would give evidence in respect of her loss and her efforts to mitigate her loss. In her evidence to the Court the Complainant stated that she initially started as media accounts manager with the Respondent in 2006 and that in and around 2010 she was made a director of the company which saw her role expand. The Respondent provided billing solutions to its clients, and she was the face of the company for their UK clients. The Complainants salary at the time of her dismissal was €49,056 gross per annum and she worked 39.5 hours per week.

The Complainant confirmed to the Court that she had received a statutory redundancy payment of €16,776. It was her evidence that in June 2020, she started reaching out to contacts in the industry to let them know she was looking for work, but as it was during the pandemic companies were not recruiting. Ms Murphy BL opened to the Court a number of emails the Complainant had issued in June 2020 looking for work. It was the Complainant’s evidence that she had also placed calls to a number of places, as recruitment in the industry is often done that way. It was also her evidence that she had sent more emails in June and July 2020 than she provided to the Court, but she couldn’t locate them.

The Complainant stated that around August 2020 she decided to go back to full time education and the course commenced beginning of October 2020 and ended September 2021. The Complainant confirmed that during that period of time she was not available for work and was not looking for work. In November / December 2021 following the completion of her course the Complainant signed up for job alerts and did a number of telephone and online interviews but was unsuccessful in obtaining employment.

From March 2022 to end of May 2022 she worked in Art Education doing 20 hours a week and earning €200 a week. She was then approached by two companies both offering her work on a part time basis. She opted to work for her current employer. She started work with them in July 2022. Her hours are currently 25 per week, but she expects her hours to increase to full time as the business grows. Her current salary for 25 hours a week is €40,000 with the potential for a small bonus of between €1,000 and €1,500.

Ms Guinness BL in cross examination asked the Complainant if she had any documentary evidence to support her oral evidence other than what she had already supplied. The Complainant indicated that she had submitted what she had. Under cross examination the Complainant accepted that she was not available for work from 1^stSeptember 2020 to 1^stOctober 2021. She also confirmed that she had not registered with a recruitment agency and that pro rata she was earning more in her current employment than she had with the Respondent. The Complainant confirmed that she had not continued looking for work once she started in her current job even though she was working less hours.

Ms Murphy BL on behalf of the Complainant submitted that the Complainant had sought to enhance her skills in an effort to mitigate her loss and had taken whatever work she could get as evidenced by the 12 weeks in Art Education where she only received minimum wage. Given the amount of time the Complaint was unable to obtain work it is their submission that she should be awarded a significant amount of compensation.

Summary of Respondent submission.

The Respondent accepts that the dismissal was procedurally unfair. The Respondent’s representative wrote on a number of occasions seeking details of the Complainant’s loss and details of her efforts to mitigate same. Unfortunately, no details were provided until the day before the hearing and the details provided were minimal. The Complainant has stated that she reached out to contacts and made phone calls but has not provided any supporting documentation. Ms Guinness BL on behalf of the Respondent opened a number of cases to the court includingSheehan v Continental Administration Co Ltd.UD 858/1999 where the tribunal held that “A claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work” Ms Guinness submitted that reduction of at least 55% should apply to any compensation that may fall due to the Complainant arising from any loss she incurred.

The applicable law

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 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.

  (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,

  ( 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) of section 14 of 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.
  
  

Discussion

Both parties addressed the Court on the three forms of redress available under the Act. Both parties indicated that they believed in the circumstances of this case that compensation was the appropriate form of redress. The Court having considered the submissions from the parties on this issue determines that compensation is the appropriate form of redress as the relationship between the parties has clearly broken down.

Having regard to the provisions of the Act, as set out above, and applying these to the instant case, the Court notes that the Complainant was unavailable for work for a period of 12 months and that she ceased looking for work when she took up her current employment in July 2022. The Complainant ceased work with the Respondent on 20^thMay 2020 and took up her current employment in July 2022 a period of 25 months, twelve of which the complainant was not available for work, leaving a period of 13 months where the Complaint only had twelve weeks employment at minimum wage. The Court in determining the level of compensation took into account, the Complainant’s salary at time of dismissal, which was €49,056, all the facts set out above, the relevant case law and that fact that the Complainant received statutory redundancy as set out above. The Court determined that the Respondent should pay the Complainant compensation of €30,000. This figure is on top of the statutory redundancy already received.

Determination

The Court determines that the Respondent should pay the Complainant compensation of €30,000.

The Decision of the Adjudication Officer is varied accordingly.

	Signed on behalf of the Labour Court
	Louise O'Donnell
SOC	______________________
28 JULY 2023	Deputy Chairman