Complainant

Respondent

Parties

Ronald  Corbett

Cluain Training & Enterprise Centre Company Limited

Representatives

Fieldfisher LLP

 Ronan Daly Jermyn LLP

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-00051192-001

14/06/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00051192-002

14/06/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00054985-001

10/02/2023

The Complainant commenced employment with the Respondent on the 16/06/1994 as a manager at its Training Centre. The Complainant was dismissed on the 29/4/2022 on the grounds of serious misconduct. The complaint of unfair dismissal was received by the WRC on the 14/6/2022.

The Complainant was earning €1,256.91 per week at the time of his dismissal. It was submitted at the hearing that the Complainant should have been paid a higher amount due to an uplift in salary in line with the HSE pay scale that governed his rate of pay. Post hearing the Complainant asserted that the correct figure was €1,330.61 which was disputed by the Respondent.  

At the hearing the Respondent conceded that the Complainant’s dismissal was both procedurally and substantively unfair. The matter in dispute concerned the quantum of financial loss arising because of the Complainant’s dismissal.

The Complainant submitted that he was unfairly dismissed by the Respondent based on significant procedural flaws in the dismissal process.  The Complainant set out in his written submission the following facts and legal arguments.

By way of letter dated the 21/5/2019 the Complainant was suspended on full pay pending an investigation into complaints concerning allegations of bullying made by five members of staff against the Complainant. A total of 181 complaints were made.

The Respondent appointed an investigator to investigate the complaints further to terms of reference.

By way of investigation report dated the 25/9/2020 the investigator upheld ten out of a possible forty-five complaints that were made against the Complainant. It is submitted that no reasons were given as to why the remainder of the 181 complaints were not investigated. The Complainant contested the findings of the report on various grounds.

The Complainant was informed that the Board had established a Disciplinary Sub-Committee (“the Committee”) to review the investigator’s findings. By way of letter dated the 29/4/2022 from Mr Feighery on behalf of the Committee the Complainant was dismissed from his employment with the Respondent on grounds of serious misconduct. The letter concluded by stating that the Complainant would be paid 8 weeks’ pay in lieu of notice and he was informed of his right to appeal the decision to be made within 14 days of receipt of the dismissal letter.

By way of letter dated the 17/5/2022 the Complainant appealed the decision setting out his grounds of appeal.

The appeal was heard by an independent appeals chairperson, on the 7/9/2022. It is submitted that the Respondent did not attend the appeal hearing but they did provide submissions. The Complainant’s appeal was allowed by way of appeal decision dated the 18/10/2022.   

It is submitted that the Complainant’s appeal was allowed based on numerous grounds and the following findings and conclusions were made.

·       That the Complainant had not been provided with a clear statement of the charges he was facing.

·       That the decision to suspend the Complainant was “fatally flawed” and “unfair”.

·       That the Respondent had failed to resolve the ambiguity about the role of the Disciplinary Committee and whether it was the Committee or the Board which would make the final decision on the merits and sanction.

• That a finding of bullying was made despite the fact (i) that this charge was never put to the Complainant, and (ii) that the facts did not “remotely justify” such a finding.
• That “no reasonable employer would regard a sanction of dismissal as falling within the range of reasonable sanctions” but rather that there was “no basis for any sanction on these facts”.
• That it was unusual for an appeal chairperson to interfere with a misconduct decision of an employer but that he was compelled to do so given the circumstances.

Pursuant to the appeal findings, the Complainant’s solicitors wrote to the Respondent by way of letter dated 4/11/2022 regarding the lack of any response from the Respondent further to the   decision. The Respondent’s then solicitor informed the Complainant’s solicitors by letter dated 11/11/2022 that the matter had been forwarded to the Respondent’s insurers.

It is submitted on behalf of the Complainant that his dismissal was unfair on the following grounds.

·       That the Complainant’s suspension was unlawful for two principal reasons.

·       That the Appeals Chairperson’s conclusions correctly identified an array of fatal flaws with the Respondent’s decisions to uphold the investigator’s findings of serious misconduct and to dismiss the Complainant as a result.

·       That there were numerous procedural flaws in reaching the decision to dismiss the complainant.

·       The Respondent’s failure to engage with its own appeal process post dismissal.

It is further submitted that the consequences of the appeal decision are that the Respondent is precluded from challenging the appeals chairperson’s findings and report. In the circumstances, it is submitted that the Respondent cannot defend the complaint of unfair dismissal and the matter should simply proceed as an assessment of the appropriate redress.

At the hearing Counsel for the Complainant confirmed that the Complainant was seeking compensation as his preferred redress pursuant to the provisions of the Unfair Dismissals Act 1977 (as amended) (‘the Act’).

Counsel for the Complainant submitted that in assessing quantum I am required to consider the provisions of Sections 7(2)(a)(d)(e) of the Act.  Counsel further submitted that the appeal report highlighted significant procedural flaws with the Respondent’s dismissal procedure. Counsel submitted that from the 18/10/2022 the date of the appeal report the Complainant attempted to find out whether he would be reinstated, and the Respondent’s silence was reprehensible in this regard.

Counsel contended that the Complainant lived in false hope that he would be reinstated to his position and his efforts to mitigate his loss were impacted accordingly. Counsel submitted that it was only in early 2023 when the Complainant realised that he would not be reinstated, he only then began to make efforts to mitigate his losses.

Counsel also submitted in the context of Section 7(2)(a), regarding linking the Complainant’s financial loss to an act, omission or conduct of the employer, that the Complainant’s reputation was smeared as a result of the 181 complaints that were launched against him and overturned on appeal.

Counsel also submitted that the Complainant undertook an internship in psychotherapy between October 2020 and December 2022 while he was on suspension, and further submitted that “he felt he had to progress it when the writing was on the wall”.

Counsel stated that the Complainant commenced a master’s degree specialising in cognitive behavioural therapy in 2016.    

Evidence of the Complainant, Mr Ronald Corbett 

The Complainant stated that he has a master’s degree in psychology from UCD. He stated that he started with the Respondent in 1994 as the Centre Manager and described his role.  The Complainant stated when he was suspended in May 2019 the Centre had 86 service users and 23 staff reported to him.

The Complainant confirmed that he received a letter dated the 21/5/2019 by hand from Mr Gerry Flynn, the Chairman of the Board of Directors and on the 23/5/23 he was asked to hand in his keys and was escorted from the premises. Mr Corbett stated that he was in shock, he didn't understand what was happening and that was the last time he was in the workplace.

The Complainant stated on the date he was suspended he was receiving a gross weekly salary of €1256.91 approximately €65,000 gross per annum. The Complainant stated that his understanding of what he should have received in pay, related to the fact that the HSE brought in uplifts while he was suspended, and he should have received a gross salary of €69,431. He stated that he was paid in line with Grade 7 of the HSE pay scales.

The Complainant stated that there was no contact from the Respondent in February 2022 and that the HSE was the main funder of the Centre and provided 80% of the funding.

The Complainant described the specifics of his role at the time he was suspended. He further stated that he also had a sense of achievement in seeing the service users who had serious mental health issues improving and securing employment.

The Complainant said that he felt the dismissal was not right and he knew he was going to appeal it and had faith in the appeals process. During this time, he said he had a “bit of work on the go” he was lecturing, and he was also working as an intern in a psychotherapy practice.

The Complainant stated he thought he would get his job back, following the appeal report. He stated that he thought he would get a response from the Respondent referring to a letter dated 4/11/2022 sent by his solicitor to the Respondent. The Complainant stated that the letter dated the 11/11/2022 from the Respondent’s then solicitors didn’t make any sense to him, and he felt confused by it. 

The Complainant confirmed that he did not receive any letter from the Respondent regarding his reinstatement. He confirmed that when he received the Respondent’s submission dated 20/4/ 2023, this was the first time he was made aware that he would not be reinstated.

Mitigation of Losses

The Complainant stated that he commenced a part-time lecturing position with a third level institution, in November 2021 while he was suspended, working an average of 2.3 hours per week, earning €63 per hour. He stated that he was approached by a module leader from the third level institution who knew him personally, to do some teaching.  The Complainant confirmed he is 58 years of age.

The Complainant confirmed that he started as an intern with a psychotherapy practice, in October 2020 and finished in December 2022 and is now practicing as an associate psychotherapist since January 2023.

The Complainant stated, regarding other efforts to mitigate his losses, that he had very little time to look for other work, as he was working four days a week, he looked at other jobs advertised within the HSE at Grade 7, however he stated that he couldn't apply for other jobs as he didn't have a reference.

Regarding a reference, the Complainant stated that he knew it would not be favorable as it would state that he was suspended and dismissed. The Complainant stated that he was “trying to duck and dive without getting a reference”, and “he was trying to find a way around it”. The Complainant said that he lives in a small town where people talk and that there was a lot of small talk regarding the circumstances of his dismissal, and that his reputation has been impacted because of it.  He confirmed that he is now trying to build a psychotherapy practice.

In cross examination the Complainant clarified that he didn't receive a policy regarding gross misconduct and confirmed that he wasn’t aware that there was a separate policy for gross misconduct.

It was put to the Complainant that he had provided no evidence of his efforts to seek alternative employment at a similar grade to the role he had, which he refuted and stated that he was working as a psychotherapist.

The Complainant agreed that his lecturing work and his traineeship in psychotherapy, both predate his termination. It was put to the Complainant that he was under a duty to mitigate his losses from April 2022. In this regard the Complainant confirmed that he is working in a third level institution where he hopes to get extra hours and has had a verbal discussion on this.

The Complainant confirmed that the absence of a reference makes it difficult for him to secure alternative employment. He confirmed that he didn’t ask for a reference.  The Complainant confirmed that he didn’t apply to other universities for work as he didn't have the time to do so and confirmed that he is not registered with an employment agency. 

The Complainant stated that he started as an associate psychotherapist in January 2023 with a psychotherapy practice, he has some clients, and he is trying to build up a psychotherapy practice.  He stated that he has offered some services for free to promote his practice. The Complainant confirmed that he has less than 6 hours practice per week.

In cross examination the Complainant refuted a claim put to him by Counsel for the Respondent, that while this complaint was outstanding it was beneficial to him not to expand his business.  The Complainant said that his confidence was shattered for the first year during his suspension and appeal process.

In cross examination the Complainant confirmed that he was paid in line the Grade 7 clerical officer grade, that he was 15 years at the top of the scale and should have received uplifts. He stated that he had received other uplifts prior to his suspension.  

The Complainant confirmed that it is his intention to remain self-employed and to continue lecturing.  

Sum Up

Counsel for the Complainant submitted that the Respondent has contributed to the Complainant’s financial loss which arose from his unfair dismissal, which was been admitted by the Respondent, and from their actions and misconduct. Counsel further submitted that an Adjudication Officer has a broad discretion to award up to 2 years’ salary, which should be awarded in this case given the circumstances. 

Counsel further submitted that the Respondent’s conduct contributed to the Complainant’s financial loss given that there was no effort made by the Respondent to engage with the Complainant further to the appeal report, if the Respondent had responded to the Complainant this would have clarified the situation for the Complainant.

Counsel placed reliance on two cases, A Sales Executive v A Software Company, ADJ-00027573,and the decision of the EAT UD1436/11 Sinead Gough Nee Power v Ulster Bank Ireland Limited.

Counsel further submitted that the Complainant is 58 years of age and that it gets more difficult to secure a job the older an employee is. Given the circumstances of this case, Counsel submitted a significant award at the maximum level of compensation should be made to compensate the Complainant for his financial loss and his future losses. 

Calculation of Remuneration

The Complainant asserted at the hearing that his weekly pay figure of €1,256.91, as set out in the complaint form was incorrect, and that he was entitled to receive a higher figure based on uplifts to the HSE pay scale that governed his rate of pay. In a post hearing submission, the Complainant’s representative confirmed that the correct figure was €1,330.61 based on uplifts to the HSE pay scale which he alleged he should have received while he on suspension. The Respondent disputed that he was entitled to an uplift in his salary as alleged and stated his weekly salary of €1,256.91 which he earned in the week prior to his dismissal on the 29/4/2022 was correct.

In correspondence post hearing, I requested the parties to address the following question and gave both parties an opportunity to exchange submissions.

“Please confirm the Complainant’s average weekly pay at the time of dismissal in accordance with the provisions of the Unfair Dismissals (Calculation of Weekly Remuneration) Regulations 1977 S.I. No. 287 of 1977 and provide any evidence to support your calculations.”

I received two post hearing supplemental submissions from the Complainant’s solicitor dated 5/7/2023 which included multiple appendices with Health Sector Consolidated Salary Scales dated 1/10/2020, 1/10/2021, 2/2/2022 and a further submission dated 25/5/2023.

It is submitted that it was always a term of the Complainant’s contract of employment that his salary would be governed by the HSE pay scales and during the Complainant’s employment his salary increased in line with the relevant HSE pay scales. It is submitted that on the 1/9/2008 the Complainant’s salary increased to €65,586 per annum in accordance with the HSE Grade 7 (Clerical) scale. It is further submitted that from the 1/10/2010 the HSE pay scale was reduced in line with the Financial Emergency Measures in the Public Interest (No 2) Act 2009.

It is submitted that an agreement was reached between the Complainant and the Respondent that the pay reduction would not be implemented in recognition of the Complainant’s seniority and long service. It is further submitted that the HSE scales were restored to their pre-reduction levels and increased thereafter in successive years, however the Complainant’s salary was not increased. The Complainant submits that his salary should have been increased to coincide with subsequent HSE mandated increases which were provided from the 1/10/2020, 1/10/ 2021 and 2/2/2022.

In a subsequent submission the Complainant asserted that Regulation 4 of the Unfair Dismissals (Calculation of Weekly Remuneration) Regulations 1977 S.I. No. 287 of 1977 (the 1977 Regulations) is the relevant provision regarding the calculation of the Complainant’s weekly remuneration. It is submitted that the Complainant is entitled to “have regard to what he should have been paid as opposed to what he was actually paid”.

It is further submitted that the Complainant’s earnings in the week prior to his dismissal included the uplift based on a contractual entitlement. It is also alternatively submitted that this entitlement to an uplift could be construed as a “regular bonus” which did not vary “having regard to the amount of work done and any payment in kind”.  

It is submitted that the Complainant’s weekly remuneration must be based “on what he was supposed to have been paid as opposed to what he was actually paid” and that Regulation 4’s reference to “earnings” supports this view.

It is contended that had the legislature wanted to limit the calculation to what a Complainant had been paid or received, such language would have been used and that if Regulation 4 is to be interpreted by reference to what was received as opposed to what should have been received, it will promote and reward employers that breach the contract of employment. It is submitted this could not have been the intention of the legislature in drafting Regulation 4. 

The Respondent concedes that the Complainant was unfairly dismissed from his employment on the 29/4/2022. The Respondent submits in their written submission the following facts and legal arguments.

The Respondent is a charitable company limited by guarantee. The Respondent is managed by an 8-member Board of Management who are responsible for the strategic direction of the charity. The Respondent is run on a day-to-day basis by the Centre Manager who is responsible for ensuring that the Respondent meets its long and short-term aims and that the day-to-day operations run smoothly, a role held by the Complainant.

The principal activity of the Respondent is to provide training and support to enable people with mental health difficulties, acquired brain injury and people on the autistic spectrum disorder in South Tipperary to improve their quality of life through living working and integration within their community to their full potential.

It is submitted that compensation is the most suitable type of redress having regard to all the circumstances of the case, therefore, regard must be had to Section 7(2) of the Act.

The Respondent refers to Redmond on Dismissal Law and submitsthat it is for the Complainant to prove his or her loss. In this regarding reliance is placed on the EAT decision of Sheehan v Continental Administration Co Ltd UD 858/1999.

It is submitted by the Respondent that the Complainant is an individual with a long history of experience in a managerial capacity and that it is a failure on his part to seek to obtain similar comparable permanent employment after his termination. It is further submitted that if the Complainant has altered his career path following his dismissal, and such change has come at a financial loss to him, it is the Respondent’s position that it should not be left to carry the cost of same. Any differential in salary owing to commencing a new career path should fall to the Complainant to subsume.

The Respondent submits that, after the Complainant left the workplace (first on paid suspension and then after dismissal), workplace relations on the ground have improved significantly. There is ongoing work to foster and promote a more inclusive, harmonious working environment. It is submitted that this is in stark contrast to the toxic atmosphere and the very low staff morale identified by the Respondent Board when it first gained access to the Centre following the Complainant’s suspension.

The Respondent submits that although it has conceded that the dismissal of the Complainant was unfair, the Respondent does not accept all the findings of the appeal chairperson and notably did not implement the findings on receipt of same in October 2022.

Furthermore, it is submitted that the Adjudication Officer must have regard to all the circumstances per Section 7(1) of the Act and in regard to all the circumstances in this case, it is clear and unambiguous that the working relationship between the parties is beyond repair.

At the hearing Counsel for the Respondent conceded that the Complainant’s dismissal was both substantively and procedurally unfair. In this regard Counsel stated that the Respondent refers to Section 7 (2) (d) and Section 14 (1) of the Act. Counsel submitted that an employee handbook was in place and, therefore, a paper trail existed for all stages of the process. Counsel submitted that the handbook contained the disciplinary procedure, which was in place, albeit that there were shortcomings with the procedure.

Counsel submitted that section 7(2)(a) of the Act must be interpreted considering the impact upon the Complainant’s financial loss, therefore Section 7(2)(a) should not be used as a means to punish the Respondent.

Counsel further submitted that it was unreasonable for the Complainant to believe that he should have been reinstated after the appeals report issued and highlighted the fact that the Complainant lodged his complaint with the WRC prior to the issuing of the appeal report. Counsel submitted that the Complainant was working in other forms of employment therefore it is disingenuous to state that the Complainant’s mitigation efforts were stalled due to the Respondent’s silence after the appeal report issued. Counsel further submitted that the Complainant never wrote seeking reinstatement as a remedy and it is noted he does not seek it now.

Counsel referred to Section 7(2) (b) and ( c ) of the Act and submitted that the Complainant’s failure to seek a reference did have an impact upon his efforts to mitigate his loss, and should be  considered in assessing his financial loss.

Evidence of Mr Matt Feighery, Vice Chairman of the Board of Directors

Mr Feighery gave evidence in relation to his involvement with the Board of Directors and stated that he is a member of the Board since 2010. Mr Feighery confirmed that the matter of pay is within the Board of Director’s remit. He stated that the Board operates within a framework for pay which is governed by national pay scales for the HSE. Mr Feighery stated that the Respondent was contacted by the HSE Section 39 Pay Restoration Committee, and the Respondent was advised that employees at the top of their scale were not entitled to a pay increase. Mr Feighery referred to Section 39 agencies which are funded by the HSE.

Sum Up

Counsel for the Respondent submitted that the Complainant’s position was akin to that of a CEO, and that the Complainant had devised the policies and procedures of which he was now critical.

Counsel questioned whether it was reasonable for the Complainant to submit that the first time he knew that he that he would not be reinstated was the day before the hearing. Furthermore, the Complainant should have realised that he would not be reinstated, further to the Respondent’s silence on foot of the appeals report.

Counsel submitted, in the context of considering Section 7(2)(b) of the 1977 Act, that the Complainant predetermined that he wouldn't obtain a favorable reference. Furthermore, the success of obtaining new employment does not hinge entirely on a reference which the Complainant never asked for, nor did he request a statement of employment.

In relation to the Complainant’s efforts to mitigate his loss Counsel submitted that there is no evidence to demonstrate that he has asked for additional lecturing hours or that he sought out other roles. Counsel submitted that the Complainant didn't choose to obtain comparable full-time employment instead he chose a path of self-employment which is not providing him with a significant income which he commenced prior to his dismissal. In terms of future losses, Counsel submitted that the facts of the case do not merit a significant award in terms of future losses which is a very speculative matter.

Calculation of Remuneration

The Respondent disputed that the Complainant was entitled to an uplift in salary as submitted and confirmed that €1256.91 was the correct figure to calculate the Complainant’s weekly remuneration.   

I received a supplemental submission from the Respondent’s solicitor dated 8/6/2023 with appendices addressing the issue that I raised in correspondence with both parties, and in response to the Complainant’s two supplemental submissions. 

The Respondent confirms that Regulation 4 is the correct provision for the purposes of this complaint. It is it is further submitted that the word “earnings” set out in Regulation 4 is undefined in the Regulations however the Respondent submits that the plain rule meaning should be applied, and that “earnings” means money exchanged for the employee’s labour.

The Respondent submits that the Complainant earned €1256.91 in the week prior to his dismissal on the 29/4/2022, a pay slip dated of the 28/4/2022 was furnished. Furthermore, it is submitted that the Complainant did not give sworn oral evidence to support his claim that it was a term of his contract that his salary would be governed by the HSE pay scales rather it was introduced by way of a written submission post hearing.

The Respondent does not accept that the Complainant’s pay was governed by the HSE pay scales in the manner as submitted by the Complainant. It is submitted that the Respondent is a Section 39 agency which means that it is an entity which delivers services to the community which are ancillary to the HSE. Furthermore, Section 39 sector agencies are not directly employed by civil or public service employers but rather the entities directly themselves as private sector employers, such as is the case with the Complainant.

It is submitted that the Respondent’s entire staff (not just the Complainant) had their pay aligned with the HSE salary scales, although it was under no obligation to do so, until the financial crash introduced FEMPI (Financial Measures in the Public Interest (No 2) Act) legislation. Consequently, the HSE introduced new salary scales with effect from the 1/1/2010. These new salary scales resulted in reductions for those who were bound by the scale. At that time the Respondent had aligned its staff’s pay to the 2008 HSE salary scales.

It is submitted that in response to FEMPI and the reduced funding to Section 39 agencies, the Respondent froze all employees’ pay at the 2008 rates (including increments) and did not reduce employees’ pay in line with the HSE reduced salary scales. It is submitted that there was no individual agreement with the Complainant not to reduce his pay in line with the revised HSE salary scales “in recognition of the Complainant’s seniority and long service” as provided in the Complainant’s supplemental submission, and the same pay freeze applied to all the Respondent’s staff. 

It is submitted prior to FEMPI, employees’ salaries would increase from time to time in line with the HSE monthly funding payment increases. Post FEMPI, a pay restoration exercise in respect of Section 39 agencies was commenced by the HSE. The Respondent was contacted by the HSE’s Pay Restoration team in November 2020. Until this point, all existing and new employees with the Respondent continued to be paid the 2008 salary rate. 

It is further submitted that the Complainant has produced consolidated salary scales to support his contention regarding his pay increase. It is submitted that this salary scale and the Section 39 pay restoration process are two separate processes. It is asserted that the consolidated salary scale provided by the Complainant must be read in conjunction with the Department of Health Circular 10/2022 which refers to the application of pay adjustments as provided for in “Building Momentum - A New Public Service Agreement 2021-2022”. It is submitted that Section 39 organisations were not and are not a party to the Public Service Agreements and, therefore, are not covered by the pay restoration provided for in these Agreements, including Building Momentum. 

The Relevant Law

Section 6 of the Act in the relevant part provides;

6.— (1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

Section 6(4)(b) expressly lists the grounds where dismissal of an employee shall not be deemed to be unfair including dismissal wholly or mainly resulting from the conduct of the employee.

Section 6(6) imposes the burden of proof on the employer to show that the dismissal was fair.

Section 6(7) provides for an Adjudication Officer to have regard :-

 “(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and (b) to 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 section 14 (1) of this Act (to provide written reasons when requested) or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7 (2) of this Act.” 

Section 7 outlines the provision for a remedy in the circumstances of a successful claim for unfair dismissal. 

Section 7 (1) provides in the relevant part;

(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, 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, ……

(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.

(3) In this section—

“financial loss”, in relation to the dismissal of an employee, includes 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.

Counsel for the Respondent conceded that the Complainant’s dismissal was both substantively and procedurally unfair and the only matter to be determined was redress. Counsel for the Complainant confirmed that the only issue to be determined was redress, and the Complainant’s preferred option was compensation.

Section 6(6) imposes the burden of proof on the employer to show that the dismissal was fair. I note the Complainant’s submission and evidence that there were significant procedural shortcomings in relation to the dismissal procedure and that the findings of serious misconduct were contested. I note that the Respondent has conceded that the dismissal was both substantively and procedurally unfair. I am satisfied that the Respondent is unable to shift the burden of proof in this case. Accordingly, I find that the Complaint’s dismissal was both substantively and procedurally unfair.

Redress

Based on the evidence presented at the hearing I note that the working relationship between the parties has irretrievably broken down. After considering the matter, I am satisfied that the appropriate form of redress, having regard to all the circumstances, is that of compensation. The Act provides that an Adjudication Officer can order compensation for financial loss (which is defined as including any actual loss and any estimated future loss) attributable to the dismissal, as “is just and equitable” having regard to all the circumstances, of up to a maximum of 104 weeks remuneration.

Calculation of Remuneration

The Complainant asserted at the hearing that his weekly pay figure of €1,256.91 as set out in the complaint form was incorrect and that he was entitled to receive €1,330.61 which figure was based on uplifts to the HSE pay scale that governed his rate of pay.  The Respondent disputed that he was entitled to an uplift in his salary as alleged and stated his weekly salary of €1,256.91 was correct.

Both parties provided a payslip dated 28/4/2022 which noted pay as €1,256.91 which I accept as evidence of remuneration for the last week of employment prior to the Complainant’s dismissal on the 29/4/2022. 

I sought submissions from the parties to clarify my jurisdiction regarding the jurisdictional ceiling in respect of compensation and to determine the correct figure for the purposes of calculation of the Complainant’s financial loss, pursuant to Section 7(1) ( c ) and per Regulation 3(a) of the Unfair Dismissals (Calculation of Weekly Remuneration) Regulations 1977 S.I. No. 287 of 1977 Regulations (‘the Regulations’).

I received post hearing supplemental submissions from both parties addressing the point I raised in correspondence (referred to above) regarding the application of the Unfair Dismissals (Calculation of Weekly Remuneration) Regulations 1977 S.I. No. 287 of 1977 (the 1977 Regulations) on the assessment of the Complainant’s weekly remuneration.

Both parties agreed that Regulation 4 is the correct provision to calculate the Complainant’s weekly remuneration. 

Regulation 4 provides as follows:

“In the case of an employee who is wholly remunerated in respect of the relevant employment at an hourly time rate or by a fixed wage or salary, and in the case of any other employee whose remuneration in respect of the relevant employment does not vary by reference to the amount of work done by him, his weekly remuneration in respect of the relevant employment shall be his earnings in respect of that employment (including any regular bonus or allowance which does not vary having regard to the amount of work done and any payment in kind) in the latest week before the date of the relevant dismissal in which he worked for the number of hours that was normal for the employment together with, if he was normally required to work overtime in the relevant employment, his average weekly overtime earnings in the relevant employment as determined in accordance with Regulation 5 of these Regulations. “

I accept that Regulation 4 is the correct provision because the Complainant’s remuneration did not vary as he was paid a fixed salary.

The parties disagree regarding the interpretation of Regulation 4 specifically the word “earnings” as set out above. The Complainant submits that the word “earnings” implies that the calculation is based on what the Complainant was entitled to be paid, that it is pay that was earned as opposed to the pay that was paid or received.

I note that the word “earnings” is not defined in the Regulations. I note that the Oxford dictionary defines “earnings” as “the money that you earn for the work that you do”.  It is my view that given the construction of the sentence “his weekly remuneration in respect of the relevant employment shall be his earnings in respect of that employment” that it denotes a reference to the terms and conditions of / contract of employment. Therefore, it appears to me that the word “earnings” could be interpreted in this particular case, to include what the Complainant was entitled to earn as opposed to what he was paid or received.

Even if I accept the Complainant’s submission that Regulation 4 refers to what the Complainant should have earned, the onus rests with the Complainant to provide evidence which demonstrates that he has contractual entitlement to the alleged uplifts in salary. 

I accept the Complainant’s evidence that he was not provided with a contract of employment. I note that the Complainant stated in his oral testimony what his understanding was regarding his entitlement to uplifts while he was suspended, that he should have received a gross salary of €69,431. In cross examination he stated that he had received other uplifts before. I note that no evidence was put before me at the hearing to support the Complainant’s assertion of receiving other uplifts or the basis for same. Even if I accept the Complainant’s evidence that he had received uplifts to his pay scale in the past it is my view that this would not ground a legal entitlement to further uplifts as alleged.

I note that the Health Sector Consolidated Salary Scales dated 1/10/2020, provided by the Complainant, states that “These scales must be read in conjunction with the Department of Health Circular 7/20/20”. I accept the Respondent’s submission regarding the application of Department of Health Circular 10/2022 which refers to the application of pay adjustments as provided for in “Building Momentum - A New Public Service Agreement 2021-2022”. I note the Respondent’s submission that Section 39 organisations were not and are not a party to the Public Service Agreements and, therefore, are not covered by the pay restoration provided for in these Agreements, including Building Momentum.  The Complainant did not provide any evidence to demonstrate that the Respondent were party to the Public Service Agreements as referred to. 

It is my view from examining the Health Sector Consolidated Salary Scales dated 1/10/2020 and other scales as provided, that all the scales are required to be read in conjunction with various Department of Health Circulars such as 7/20/2020, 14/2021 and 10/2022.  No evidence was put before me by the Complainant to establish that the various Circulars applied to his role or to the Respondent Centre.

I am satisfied after considering the totality of the evidence adduced at the hearing and all submissions received from the parties that the Complainant has not established, beyond a mere assertion, that he has an entitlement to an uplift in his salary as alleged. Therefore, applying Regulation 4, I find that the correct figure for the purposes of calculation of the Complainant’s weekly remuneration is €1,256.91, the amount he earned in his last week of employment as evidenced in his payslip provided at the hearing dated 28/04//2022.  

Calculation of Financial Loss

The maximum jurisdiction under Section 7(1)(c)(i) refers to two years’ remuneration, and it refers to all of the elements of an employee’s compensation package, not simply salary/wages. Based on the weekly remuneration figure of €1,256.91, the maximum amount of compensation that I can award in this case is €130,718.64 equivalent to two years’ salary.

Calculation of Award

For the purposes of calculating the award, I must have regard to Section 7 (2) (a) (b) (c) (d) (e) and (f) of the Act as outlined above. Specifically, I must consider the conduct of the Respondent as well as the Complainant in relation to the dismissal, the conduct of the Respondent as well as the Complainant in relation to their contribution to the Complainant’s financial loss and have regard to the efforts made by the Complainant to mitigate his financial loss.

Firstly, in considering the conduct of the Respondent in relation to the dismissal I note that the Respondent conceded that the Complainant’s dismissal was both substantively and procedurally unfair. At the hearing Counsel for the Respondent conceded that the Respondent has not met the tests under Section 7 (2) (d) and (e). In view of the significance of dismissing an employee with over 27 years’ service, the Respondent’s dismissal procedure does not stand up to examination, as evidenced by the Respondent’s admission in this regard. Accordingly, I shall be taking this into account in my assessment of the Complainant’s financial loss.

In this regard I note that the Complainant was left on paid suspension for nearly 2 years prior to his dismissal, an excessively long time in my view. The Complainant was dismissed by the Respondent’s Disciplinary Sub-Committee on the 29/4/2022 who upheld an investigator’s findings of serious misconduct. 

However, these findings were subsequently set aside on appeal, by an appeals chairperson, who upheld the Complainant’s appeal by way of decision dated 18/10/2022. The appeals chairperson identified significant procedural flaws at numerous stages of the disciplinary process and made various conclusions and findings including the failure of the Respondent to reach a fair and measured conclusion on the merits of the case. 

It is undisputed that the Respondent failed to take any steps further to the appeal decision. I accept the Complainant’s evidence that the only response received by him regarding the outcome of the appeal, was a letter dated 11/11/2022 from the Respondent’s then solicitors which informed the Complainant’s solicitor that the matter had been forwarded to their insurers. The Respondent confirmed for the first time in their submission dated 20/4/2023 that the Complainant would not be reinstated. 

I accept the Complainant’s evidence when he stated that he knew his dismissal was not right and that he had faith in the appeals process. It is my view that the Respondent’s refusal to accept the outcome of the appeal or engage with the decision in any way shows a distinct lack of regard for the Complainant’s right of appeal as provided under the Respondent’s disciplinary procedures.  It also serves to undermine the certainty required by employees who rely upon an appeals process in good faith, as the Complainant did in this case.

S.I. No. 146/2000 - Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order 2000, provides that an internal appeal mechanism should be available to an employee as part of an employer’s disciplinary procedures and also provides for referral “to a third party, either internal or external, in accordance with any locally agreed arrangements.” An employee’s right to an appeal as provided for under the Code of Practice, in my view involves an implicit acknowledgement by an employer to accept the outcome on appeal, whether the employer agrees with it or not. 

The Complainant submits that because of the Respondent’s silence regarding Mr. Brady’s decision the Complainant lived in false hope that he would be reinstated which impacted his efforts to mitigate his financial loss. I consider that it was reasonable for the Complainant to believe that he would be reinstated after the appeal decision for a limited period thereafter. I accept that the Complainant was left in limbo because of the Respondent’s silence further to the appeal.

However, as time passed, and the Respondent failed to engage with the Complainant I do not consider that it was reasonable for the Complainant to believe that he would be reinstated during the entire period leading up to the hearing date, as submitted. Accordingly, I do not accept the Complainant’s assertion that his efforts to mitigate his loss were impacted for the entire period.

In this regard I note that the Complainant lodged his complaint form with the WRC in June 2022 seeking both reinstatement and compensation. I also note that the Complainant’s solicitors wrote to the Respondent’s solicitor by way of letter dated 4/11/2022 requesting a response from the Respondent further to the appeal, however they do not expressly seek reinstatement as a remedy for their client.

Mitigation of Losses

I note the Complainant’s evidence that he commenced employment as a lecturer in November 2021 on a part time basis and started his own practice as a self-employed psychotherapist in January 2023 further to an internship commenced in October 2020.

The Complainant stated that he works as an associate psychotherapist earning €60 per hour and has approx. 5 hours of work per week. An income and expenditure table was exhibited at the hearing setting out the Complainant’s income less expenditure items from May 2022 to March 2023. The Complainant’s combined income less expenditure is €8,502 for this period. I am estimating that the Complainant would earn €640.50 equivalent to three weeks of the combined income less expenditure figure for March 2023 to give a total figure of €9,142.50 for the Complainant’s income up to the hearing date. I note that payslips from a third level institution were exhibited at the hearing, and I accept the Complainant’s figures regarding his income as a psychotherapist as exhibited.

The Complainant’s yearly salary of €65,359.32 minus €9,142.50 equals €56,261.82, the amount the Complainant has incurred in actual loss from date of his dismissal to the hearing date.

I must consider whether the Respondent contributed to the Complainant’s financial loss as alleged and consider whether the Complainant’s efforts to mitigate his financial loss are sufficient in line with Section 7(c) of the Act and established caselaw.

I am mindful of the decision of the Employment Appeals Tribunal (EAT) in Sheehan v Continental Administration Co. Ltd. UD 858/1999 where the Tribunal set out the extent of the onus upon a Complainant to make efforts to mitigate their loss in the following terms;

“a claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work….The time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather [is] to be profitably employed in seeking to mitigate his loss”. 

Counsel for the Complainant submitted that the Respondent has contributed substantially to the Complainant’s financial loss which arose from his unfair dismissal, and given the circumstances of this case, two years’ salary should be awarded. The Respondent submits that if the Complainant has altered his career path following his dismissal, and such change has come at a financial loss to him, that the Respondent should not be left to carry the cost of same.

I note the Complainant’s evidence regarding other efforts to mitigate his loss, he stated that he had very little time to look for other work as he was working four days a week, that he looked at other jobs in the HSE at Grade 7, but he couldn't apply for other jobs as he didn't have a reference. I note that the Complainant didn’t seek a reference, nor did he apply to any employment agencies. 

The Complainant relied heavily upon the lack of a favourable reference to explain why he did not seek to secure alternative employment at his grade. In this regard reliance was placed by Counsel on the WRC decision of A Sales Executive v A Software Company, ADJ-00027573, who stated that the decision was directly on point with the facts of this case regarding the barriers faced by the Complainant having to “duck and dive” to find alternative employment without the benefit of a reference.

I do not accept that the facts of this case are sufficiently on point to place reliance on the above decision. It is clear from the comments of the Adjudication Officer, that the Complainant in that case had made extensive efforts to find alternative employment, but only found another role when he removed his employment history with the Respondent from his job applications.    

I accept the Complainant’s evidence regarding the impact of the dismissal on him that his confidence was shattered as a result, particularly during his first year while suspended. I can appreciate the impact upon an employee, in particular a longstanding employee with 27 years’ service, given the nature of the dismissal and the protracted length of time taken to affect the dismissal.  

I acknowledge that due to the nature of the Complainant’s dismissal he could have encountered significant challenges in securing an alternative position. However, it appears to me that the Complainant adopted a predetermined view that he would not obtain alternative employment at his grade due to the lack of a favorable reference without first exploring the market to ascertain whether this was the case.

I note that he did find employment as a lecturer while suspended thus highlighting the possibility of obtaining alternative employment without a reference. I note the Complainant’s evidence regarding his efforts to obtain further hours as a lecturer, he stated he had some discussions on this however no evidence was adduced of applying for further hours or for other full time lecturing positions. 

It was submitted that when the Complainant realised in early 2023 that he would not be reinstated that he then began to make efforts to mitigate his losses however no evidence was put forward to support this assertion.  The Complainant stated that he had “toduck and dive” to find alternative employment without the benefit of a reference, however no evidence was put forward to support this assertion. The Complainant started practice as a psychotherapist in January 2023 which in my view was a continuation of a career path which he started in October 2020 as an intern in psychotherapy.

I note that the Complainant had embarked on a new career path prior to his dismissal combining an internship in psychotherapy with lecturing.  The Complainant stated in evidence that he will remain in self-employment combined with lecturing as his future career path. It appears to me that the Complainant to some degree chose to confine himself to a new career path combing self-employment with lecturing which has resulted in a significant shortfall in income when compared with his pervious salary. Accordingly, and based on the absence of evidence regarding any effort by the Complainant to explore the market for alternative positions after January 2023, I do not consider it reasonable that the Respondent should be held fully accountable for all the Complainant’s financial loss.  

Notwithstanding my conclusions regarding the adequacy of the Complainant’s efforts to mitigate his losses, I am mindful that in considering compensation, regard must be had to all of the subsections of Section 7. In this case the Respondent is found not to have met the tests set out in subsections (d) and (e) and the Complainant made no contribution to the decision to dismiss him under (f). Considering the circumstances of this case, I find that the balance of unfairness and failure to comply with the terms of Section 7 as a whole lie squarely with the Respondent.

The assessment of future losses is a speculative matter particularly regarding the potential earnings from self-employment. In this regard, I am taking into consideration that the Complainant’s new career path to a certain degree is matter of choice for which the Respondent cannot be held wholly accountable by way of compensation.

In light of the foregoing, I find that the Complainant is entitled to compensation for actual, ongoing and future losses in the sum of €60,000 which I consider just and equitable in the circumstances of this case. 

I find that the Complainant was unfairly dismissed by the Respondent within the meaning of Section 6 of the Unfair Dismissals Acts for the reasons set out above. Accordingly, I find that the complaint is well founded. I determine that at an award of compensation to include actual, on-going and future loss to be the appropriate award in the circumstances of this case. I require the Respondent to pay the Complainant €60,000 in compensation.

Calculation of weekly remuneration, interpretation of Regulation 4 of the 1977 Regulations, financial loss, mitigation of losses.