FULL RECOMMENDATION
UD/22/138
ADJ- 00021604 - CA-00028402-001 | DETERMINATION NO. UDD2329 |
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015
PARTIES:AZTEC ENTERTAINMENT LTD
(REPRESENTED BY THOMAS FREEMAN B.L.
INSTRUCTED BY OSBORNES SOLICITORS)
- AND -
BERNARD ROBINSON
DIVISION:
| Chairman: | Ms Connolly | | Employer Member: | Ms Doyle | | Worker Member: | Mr Bell |
SUBJECT:
1.Appeal of Adjudication Officer Decision No(s)ADJ- 00021604 - CA-00028402-001
BACKGROUND:
2.The Employer appealed the Decision of the Adjudication Officerto the Labour Court on 18 March 2022 in accordance with Section 8A of the Unfair Dismissals Act 1977 to 2015. Labour Court hearings took place on 4 January 2023 and 27 June 2023. The following is the Determination of the Court:-
DETERMINATION:
This is an appeal by Aztec Entertainment Limited ( “the Respondent”) against an Adjudication Officer’s Decision (ADJ-00021604, CA-00028402-001, dated 5 February 2020) given under the Unfair Dismissals Acts 1977 to 2015 (the Acts) in a claim that Bernard Robinson (“the Complainant”) was unfairly dismissed by the Respondent, his former employer.
The Adjudication Officer held that the complaint of unfair dismissal was well-founded and awarded compensation of €35,000.
An appeal of that decision was determined by a differently constituted Division of this Court (UDD2144, dated9 June 2021), which found that the Court did not have jurisdiction to hear the appeal on the grounds that it was outside the 42-day provided for by section 44(3) of the Workplace Relations Act 2015.
This decision was appealed to the High Court. By Order of the High Court dated16 May 2022,Meenan Joverturned Determination UDD2144andgranted the Respondent time to appeal the Adjudication Officer’s Decision (ADJ-00021604, CA-00028402-001). The matter wasremitted back to this Court for rehearing.
The hearing held on the 4 January 2023 was adjourned to allow for submissions on the import of the High Court Order and whether it precluded the Labour Court from addressing the issue of jurisdiction. At the hearing on 27 June 2023 the Court gave the parties an opportunity to be heard and present to it any evidence relevant to the appeal. Witness testimony was not proffered by either party, and the hearing was conducted on the basis of written and oral submissions.
The following is the Determination of the Court.
Preliminary Matter
The Appellants submitted that the effect of the order “granting the Appellant time to appeal the said decision” was to determine that the appeal of the decision of the Workplace Relations Commission was made in time.
The Respondent made no submission in relation to the effect of the Order.
The Court is satisfied that the wording in the Order of the High Court “granting the Appellant time to appeal said decision”has the effect of restricting the Labour Court to addressing the substantive matter.
Substantive Matter
The Complainant commenced employment as a manager at the Appellant’s company on 19 February 2018. His employment was terminated just over one year later on 19 March 2019.
The Complainant submitted that he was provided with no explanation or reason for his dismissal. The meeting at which his employment was terminated was held in a public seating area in view of customers, and he was required to exit the building immediately. He received no notice prior to the meeting. He did not know the purpose of the meeting. He was not made aware of any allegations against him. There was no investigation or right of reply. He was not offered the right of representation. When he enquired into the reason for his dismissal he was told that there was no obligation to give a reason for the dismissal, and that he was not entitled to have the reason for his dismissal in writing. He was not allowed a right of appeal. No procedures as set down in the employee handbook were followed by the Respondent.
The Respondent did not take issue with any aspect of the Complainant’s submission as it relates to the termination of his employment. It acknowledges that it ought to have dealt with the Complainant in a more appropriate manner. The Respondent does not dispute that the Complainant was unfairly dismissed under the Act. The Respondent’s appeal to the Labour Court is concerned solely with the quantum of the award of compensation made by the Adjudication Officer, which it submits was unreasonable, excessive, and not justified by the facts.
Where the fact of dismissal is not in dispute, it is for the Respondent to identify the reason for the dismissal and justify it by showing it was a fair and proportionate response in all of the circumstances.
In this case, the Respondent set out no grounds for terminating the Complainant’s employment. No submission was made that the Respondent’s actions were a fair or proportionate response or that the Complainant contributed in any way to his dismissal. Having regard to the above, the Court finds that the Complainant was unfairly dismissed from his employment on 19 March 2019, without any explanation as to the reasons for the termination of his employment, or without any recourse to fair procedures.
Accordingly, the Court finds that the Complainant was unfairly dismissed.
Redress The Court enquired of the parties what their preferred remedy was under the Act in the event that it determined the appeal were to succeed. The Respondent stated that the company was no longer trading and both parties expressed a preference for an award of compensation. Having regard to the particular circumstances of this case it is clear to the Court that the remediesof reinstatement or reengagement are not appropriate forms of redress, and that an award of compensation is the most appropriate remedy. Section 7(1)(c) of the Act sets out the limit in respect of any award of compensation as follows: - (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,”
The purpose of any award of compensation for unfair dismissal is to compensate for financial losses actually incurred as a result of the dismissal. There is no provision for including an amount intended as a punitive award. The limit of 104 weeks’ remuneration is a limit on the total amount of compensation that can be awarded, rather than in respect of the time for which loss can be claimed.
Financial loss
Section 7(3) of the Act defines financial loss as follows: - “In this section— “financial loss”, in relation to the dismissal of an employee, includes any actual loss and any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts 1967 to [2014], or in relation to superannuation;
“remuneration” includes allowances in the nature of pay and benefits in lieu of or in addition to pay.”
In this case, the Complainant’s salary was €40,000 per annum when his full-time position as a manager with the Respondent was terminated on 19 March 2019. He secured alternative employment as a Club and Community Rugby Officer with a sporting organisation some six months after his dismissal, on 2 September 2019. He worked 30 hours per week in that new role and his rate of pay was €11.50 per hour.
The Complainant submits that he suffered financial losses totalling €67,450 as a result of the termination of his employment with the Respondent. This sum comprising a loss of €28,552 for 2019, a loss of 32,948.80 for 2020, and a loss of €5,948.96 for the period up to March 2021. The Complainant said that his losses were confined up to March 2021. Payslips and Revenue statements were submitted by the Complainant to the Court for this period.
The figures provided by the Complainant for financial loss were not challenged by the Respondent.
Determining compensation payable
In determining the amount of compensation payable under the Act the Court is obliged to consider a number of different factors. Section 7(2) of the Act sets out as follows:- - “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.”
The Court is obliged to consider the extent to which any financial loss incurred was attributable to an act, omission, or conduct, on the part of the employer or on the part of the employee. In this case it is accepted by the Respondent that the Complainant was unfairly dismissed in contravention of the Act. No submission was made by the Respondent to justify the reasons for the Complainant’s dismissal. No submission was put forward that the Complainant in any way contributed to that dismissal. No submission was made to demonstrate that the Respondent complied with any procedures or provisions of a code of practice relating to procedures regarding dismissal when it terminated the Complainant’s employment.
The Court is satisfied that the Complainant was unfairly dismissed and, having regard to the above, the Court is further satisfied that the Complainant did not contribute in any way to his dismissal.
In determining the amount of compensation payable, the Court is also obliged under s.7(2)(c) of the Act to look at the steps taken by the Complainant to minimise his financial losses after the termination of his employment.
In this case, the Complainant submitted that he started an extensive job search immediately on termination of his employment on 19 March 2019. He set up profiles and notifications on five different websites and conducted searches online on a daily basis. He submitted his first job application on 25 March 2019 and applied for all available suitable positions thereafter. He formally applied for 27 positions unsuccessfully and informally applied for other jobs through social networks.
The Complainant said that he found it hard to get a job, and that having to explain the circumstances around his departure from his former role with the Respondent severely affected his job prospects. The Complainant further submitted that the formal job application processes took considerable time and effort to complete professionally and properly, as in today’s employment environment it is no longer a simple case of“firing off a load of CV’s.” The applications required considerable preparation work, including cover letters, job competency submissions, and presentations, as well as extensive research of the companies or organisations involved and how he would fulfil the needs of the advertised roles.
The Complainant accepted the first job offer that he received, after receiving an informal offer from a sporting organisation on 13 June 2019. Following the recruitment process for that role he commenced employment on 2 September 2019 as a Club and Community Officer working 30 hours a week. His rate of pay was €11.50 per hour, and he remained in that role until August 2021. The Complainant acknowledged that the job was a lower paid position. He rejected assertions that accepting a role with fewer weekly hours was“a lifestyle”choice. He submitted that it suited his skills and experience and provided him with an opportunity to rebuild his career and ensure that future interview questions would not focus on his former role with the Respondent. He said that he had received advice that he would need to stay in a position for a period of one year in order to successfully re-establish himself in the workforce.
Mr Freeman BL, on behalf of the Respondent, submitted that the appeal to this Court was concerned solely with the quantum of any award of compensation, as the award made by the Adjudication Officer at first instance of €35,000 was unreasonable, excessive, and not justified by the facts. The Complainant’s efforts to mitigate his loss did not meet the relevant test as set out inUD858/1999 Sheehan v Continental Administrationwhere the Employment Appeals Tribunal stated:
- “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 time to be profitably employed in seeking to mitigate his loss”.
Mr Freeman BL submitted that the Complainant was out of work for approximately six months, and that he took limited action to remedy that situation. He could have found employment earlier if he so wished, but chose not to do so, and so failed to mitigate his loss. An analysis of the records submitted by the Complainant shows that he applied for 30 or so positions over a period of 23 working weeks, and that a number of those positions did not appear to be commensurate with his skills, training, and experience. Of the jobs applied for most were done through a single website,Indeed.com. No applications were recorded for the eight-week period after he received a part-time job offer in June, although he did not start that role until September 2019.
The Employment Appeals Tribunal stated inUD858/1999 Sheehan v Continental Administrationthat in considering the element of mitigation under section 7 (2) (c) it is necessary to establish:
- 1.What steps (if any) the Claimant took to lessen the losses sustained;
2.Were the steps so taken, reasonable, adequate, and sufficient; and
3.Ought the Claimant to have taken other steps, not necessarily obvious steps, which a reasonably careful and reasonably prudent employee, would have taken?
The Tribunal noted inSheehanthat a more pro-active approach must be adopted nowadays and that a Complainant is obliged to constructively employ his time in seeking to minimise his losses. In this regard, it noted that “the issue is not a question of what the Claimant could have done, but rather what he could reasonably have been expected to do”. Furthermore, it is for the Respondent to show that the Claimant did not act reasonably in all the circumstances to minimise his loss.On the facts as presented in this case, and having regard to all of the circumstance, the Court is of the view that the Complainant made reasonable, adequate, and sufficient efforts to mitigate his loss until he secured alternative employment on 2 September 2019. He submitted his first job application within a week of his dismissal. He made daily online searches for employment opportunities. He received an informal job offer from his new employer in June 2019. He applied for and was interviewed for a role with another organisation in July 2019. In August 2019, he volunteered at two summer camps run by his new employer to gain experience before officially commencing employment on 2 September 2019.
In this case, the Court determines the financial loss of earnings suffered by the Complainant in the 24-week period from the date of his dismissal to the commencement of his new position to be approximately €17,500.
The Complainant gave no details of attempts to mitigate his loss once he secured alternative employment in September 2019.He said that he accepted the first job offered to him, albeit one on a significantly reduced salary.In the view of the Court, the Complainant gave a cogent and reasonable explanation for taking the lower paid role in September 2019, which he said gave him an opportunity to rebuild his career and reputation, and which provided him with a stepping-stone to further and better paid employment which he successfully secured at a later date.
It is clear that the Complainant suffered a significant ongoing loss after he secured a new job, albeit that he did not seek to mitigate this ongoing loss. His weekly earnings dropped from €729 to €345 per week. While the Complainant gave cogent reasons for taking a lower paid position working 30 hours per week, his decision not to make any further efforts to mitigate his ongoing losses having secured a lower paid position is a relevant factor to be considered by the Court in considering an award of compensation.
An award of compensationmust be in an amount that is ‘just and equitable in all the circumstances”. These words provide the Court with some latitude in considering both mitigating and aggravating factors in the circumstances surrounding the dismissal. Weighing all of these factors and having regard to all of the circumstances of this case, the Court determines that the appropriate amount of compensation for the Complainant’s ongoing losses to be €20,000 as just and equitable.
On the facts as presented, and having regard to all of the circumstances, the Court determines that the total amount of compensation for actual and ongoing loss that is just and equitable in this case is €37,500.
Determination
The Court finds, for the reasons stated above, that the Complainant was unfairly dismissed. The appeal is well-founded.
The Court requires that the Respondent pay to the Complainant the sum of €37,500 being the amount that the Court considers just and equitable in all of the circumstances.
The decision of the Adjudication Officer is varied accordingly. The Court so determines.
 | Signed on behalf of the Labour Court | | | | Katie Connolly | | DC | ______________________ | | 31 July 2023 | Deputy Chairman |
NOTE
Enquiries concerning this Determination should be addressed to David Campbell, Court Secretary. |
