Complainant

Respondent

Parties

Pavla  Handlirova

Robinson Cleaning Services (Irl) Ltd

Representatives

Sarah-Jane Hillery BL instructed by Blake Horrigan Solicitors

 Peninsula

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-00044810-002

22/06/2021

At the hearing on 11 October 2022, the complainant’s representative advised that the complaint was of unfair dismissal pursuant to the Unfair Dismissal Act 1977 (the “1977 Act”).  The complaint form lodged with the Workplace Relations Commission did not have the complaint marked as one pursuant to the 1977 Act.

I considered the submissions of both parties on the matter of the complaint before me for adjudication and the legislative provision under which the complaint was referred.  I noted that the general complaint details included by the complainant with the complaint form referred to a complaint of unfair dismissal.   I further noted that written submissions received from both parties prior to the hearing referred to the 1977 Act. 

In circumstances where the complaint form is a non-statutory form, the submissions of the parties referred to the 1977 Act and the general nature of the complaint remained the same, I was satisfied that the justice of the case required amendment of the complaint form to include the complaint under the unfair dismissals legislation.  I adjourned the hearing to ensure that the respondent had a full and fair opportunity to address the complaint and dispute.

The hearing was reconvened remotely on 6 December 2022 for ease of attendance of witnesses.

The complainant’s representative confirmed at the outset of the hearing on 6 December 2022 that the complainant was not pursuing a dispute referred and that the unfair dismissal complaint was the single complaint for adjudication.

The respondent submitted that the termination of the complainant’s employment in March 2021 was by reason of capability.  A number of investigation and disciplinary meetings preceded the complainant submitting a medical certificate of unfitness for work in July 2020.  The complainant remained unfit for work until the termination of her employment in March 2021.  The respondent’s position was that whilst the disciplinary matters were the catalyst for the complainant going on sick leave, the decision to dismiss was taken on grounds of capability.  The respondent disputed the unfair dismissal claim on this basis.

The complainant commenced employment in or around August 2006.  The complainant received a formal warning in respect of a disciplinary matter in June 2020.  She was certified unfit for work prior to a further disciplinary meeting scheduled to take place on 16 July 2020.  Whilst she was initially certified unfit for 11 days, she remained unfit and submitted medical certificates on an ongoing basis.  The complainant attended an occupational health assessment in September 2020 and a review in February 2021.

By correspondence dated 12 March 2021, the complainant was advised that her employment was being terminated on grounds of capability with immediate effect and of a right of appeal.  There were reasons in the termination letter that were never put to the complainant and the letter issued 3 days after an email from the complainant saying she wasn’t ready to speak with anyone from the respondent.  By email of 22 March 2021, the complainant communicated to the respondent that she wished to appeal the dismissal decision.  The respondent subsequently advised the complainant’s solicitor that the complainant had forfeited her right of appeal as she had not adhered to the appeals process in terms of the timeframe for appeal and had not provided written reasons for her appeal.  The complainant’s solicitors requested the respondent reconsider its decision on admitting the appeal, but this was not forthcoming.

It was submitted on behalf of the complainant that the complainant’s dismissal by reason of capability was unfair as the respondent had breached principles of fair procedures and natural justice.  The complainant was not aware that her dismissal on grounds of capability was being considered, there was no engagement with the complainant on the findings of the occupational health assessment or review, the respondent did not hear the complainant on the proposed dismissal or allow her to pursue her appeal against its decision. The complainant sought compensation in respect of unfair dismissal, and it was submitted that the complainant’s unavailability for work from the date of dismissal until 3 August 2020 was directly attributable to the actions of the respondent.

Summary of the complainant’s evidence

The complainant outlined her employment history with the respondent and how from September 2019, following withdrawal of a redundancy offer and a role variation, she was under a lot of pressure at work. The complainant gave her explanation of the issues the subject of the disciplinary meeting on 4 June 2020.  She found the disciplinary outcome of a final written warning very stressful, and she was very anxious about doing something wrong.    The complainant described how she was feeling when she was certified unit for work in July 2020 and in her dealings with the respondent at this time.  She did not reply to the respondent’s request to complete a stress questionnaire.  The occupational health advice to her in September 2020 was to focus on how to get better.  She found it difficult to deal with contact from the respondent in the period September 2020 to January 2021.

It was not flagged to her by occupational health or the respondent in February 2021 that there was an issue in relation to her ability to return to work or a question regarding her capability.  She sent the email on 9 March 2021 asking the respondent not to contact her as she wanted to focus on getting herself better so that she could deal with matters at work.

In relation to the termination letter dated 12 March 2021, the complainant collected this from her post-box on 17 March 2021.  She had no idea that submitting a further medical certificate could result in her dismissal.  She sent the email of 22 March 2021 about appealing after speaking with her solicitor. She didn’t know what to put in the email for appeal reasons so she said reasons would follow. 

The complainant outlined her situation after the termination of her employment.  She was well enough to start looking for employment from July 2021 and outlined her efforts in this regard.  She took up employment from 1 April 2022. 

Under cross-examination, the complainant said that she was managing approximately 60 or 70 staff in September 2019.  She maintained that she still had the same staff numbers in June 2020 although she accepted that were some staff members who were not working.  The complainant was asked about the matters the subject of the disciplinary meeting in June 2020 and the disciplinary meeting scheduled to take place in July 2020.  The complainant confirmed that she was aware that the second disciplinary meeting could lead to dismissal.   The complainant acknowledged how the respondent could have thought that she didn’t want to be contacted for 12 weeks on account of the complainant’s email of 9 March 2021 but did not accept that this was an issue for the respondent as she hoped to get to a position where she was able to deal with the disciplinary issues.  She was working on herself to get better before she could speak with the respondent and deal with the disciplinary matter.

In response to questions relating to the complainant’s receipt of the termination letter, the complainant said that she irregularly checked her post.  She thought she was in time for appealing the decision to dismiss when she emailed the respondent on 22 March 2021 and did not ask for an extension of time.  She didn’t include reasons in her email and, on her solicitor’s advice, said in the email that reasons would follow.  She was aware that she had to give reasons for an appeal. 

The complainant was asked about the evidence provided of her efforts to mitigate her loss after the termination of her employment.  The complainant said that she did not apply for other operations manager roles as she had lost her confidence.  She said that following an initial trial period, she remained in the employment she took up in April 2022.

In re-examination, the complainant said the reason she was unavailable to look for jobs until 3 August 2021 was because her unfitness for work continued until that date. 

The respondent terminated the complainant’s employment on 12 March 2021 on grounds of capability.

The complainant was certified as unable to attend work from 13 July to 24 July 2020. 

At the time, the complainant was on a final written warning and had been requested, following an investigation, to attend a disciplinary meeting on 16 July 2020 regarding allegations of gross misconduct.  

The complainant’s medical certificates referred to the complainant as suffering from work-related stress and unable to attend work.  In the circumstances, the respondent agreed to a request from the complainant’s solicitor to postpone the disciplinary meeting scheduled to take place on 16 July 2020. 

The complainant’s certified unfitness for work continued after 24 July 2020.  The respondent sent the complainant a questionnaire to complete and scheduled telephone welfare meetings with the complainant however it received no response.  The respondent referred the complainant for occupational health assessment in relation to her continuing unfitness for work and an assessment took place on 21 September 2020.  The occupational health report on foot of the assessment advised the complainant was not fit for work and was not fit to attend disciplinary meetings.  The respondent respected the outcome of the occupational health assessment and let the matter rest for a two-month period.  Thereafter, it made efforts to arrange welfare meetings however the complainant said she was not in the right place to do a welfare call.

The respondent arranged an occupational health review for 8 February 2021.  The report on foot of the review outlined that the complainant remained unfit for work and unfit for any disciplinary hearing.  It referenced advising the complainant that engagement between both parties was the only solution in addressing outstanding work-related issues and outlined that the presence of an external mediatory third party may help facilitate engagement with the pending disciplinary.

The complainant’s engagement with the respondent throughout the period of her unfitness for work was via occupational health.

The respondent wrote to the complainant on 22 February 2021 advising that it was exploring options for a mediator as recommended by the occupational health review. 

On 9 March 2021, the complainant submitted a further medical certificate for a 12-week period and advised that she wanted no further contact from the respondent.

On 12 March 2021, the respondent wrote to the complainant confirming termination of her employment on grounds of capability.  The respondent advised the complainant of her right to appeal the decision.  The complainant emailed the respondent on 22 March 2021 appealing the decision to dismiss.  The respondent did not accept the complainant’s appeal as it was received out of time and the complainant had not adhered to the appeal process.

The respondent submitted that it dismissed the complainant on grounds of capability following a thorough process but that the complainant ultimately refused to engage with any suggested means of resolution and requested the respondent cease contacting her.  The respondent submitted that it had substantial reason to dismiss the complainant having regard to all the circumstances and that it acted reasonably in doing so.

Summary of Ms Kirsty Wilson’s evidence

Ms Wilson was the complainant’s line manager and Senior Operations Manager with the respondent.  She outlined what the complainant’s role as Operations Manager involved and confirmed that the complainant had no disciplinary sanctions on file in May 2020 when she conducted an investigation meeting with the complainant in relation to three particular issues.   She was aware that there followed a final written warning to the complainant. 

She was involved in a subsequent investigation meeting with the complainant on 30 June 2020 in respect of other issues, the outcome of which was for the issues to be addressed pursuant to the disciplinary procedure.  An invitation to a disciplinary hearing issued to the complainant but the hearing did not ultimately take place as the complainant submitted a sick cert to Ms Wilson who sent it on to HR. 

Ms Wilson tried to contact the complainant but to no avail.  Ms Wilson sent a letter dated 27 July 2020 to the complainant asking her to complete a stress questionnaire.  She did not receive a response from the complainant.  As Ms Wilson couldn’t get in touch with the complainant, she tried to arrange a welfare meeting with her.  Ms Wilson confirmed that it was company policy to do welfare meeting calls with people out sick and that she had emailed the complainant in November 2020 and January 2021 to request welfare meeting calls and to also take a telephone call from Occupational Health.  The complainant responded that she wasn’t in the right place for a welfare meeting call and that she would try to take the call from occupational health. 

Ms Wilson confirmed that she received an email from the complainant on 9 March 2021 attaching a medical cert for a 12-week period.  The email stated that she had received the letter from HR and asked not to be contacted as she needed time and was not ready to speak with anyone from the company until further notice.  

Ms Wilson was not involved in the decision to dismiss the complainant.

Under cross-examination, Ms Wilson did not accept the complainant was under extra pressure in June 2020.  She said that there was less workload and fewer clients to manage.  She accepted that the investigation and disciplinary process would have been quite stressful for the complainant.  When asked about the issues the subject of the second investigation and proposed disciplinary meeting, the witness said that the complainant had received training and that she felt she had supported the complainant in the relevant work areas.  Ms Wilson confirmed she had received a copy of the occupational health review report dated 8 February 2022 and from her point of view she did not consider there to be an issue of discipline or incapacity arising from the report.  She further confirmed that there was no question for her of incapability or discipline on receipt of the complainant’s email of 9 March 2021 advising that she was not ready to talk to anyone from the respondent until further notice.   This would have been a matter for HR. 

In response to my questions, the witness confirmed that the respondent’s absence policy deals with the requirement to have welfare calls with employees on sick leave.  She also advised that she passed the complainant’s email of 9 March 2021 to HR and placed it on the complainant’s personnel file.

Summary of Ms Pamela Feeney’s evidence

Ms Feeney was Group HR Manager with the respondent at the time, with responsibility for everything within the HR remit, including investigations and disciplinaries.  She referenced the respondent employee handbook on long-term absence and the triggers, of which stress is one, for automatic referral to occupational health.  She outlined generally how absence management was critical in terms of being appraised of staff welfare and role requirements. 

Ms Feeney outlined her involvement in staff occupational health referrals.  Before referral, she compiled background information and questions so that she knows the best way to manage a return to work.  Ms Feeney confirmed that she drafted the specific additional questions in respect of the complainant for the occupational health assessor to address in her report.  Ms Feeney confirmed that she had received and reviewed the September 2020 occupational health report in respect of the complainant.

On foot of the February 2021 occupational health review report and the suggestion that an independent 3rd party may be of assistance, Ms Feeney made enquiries about availing of assistance from a third party with a view to moving forward with work processes.  Ms Feeney wrote to the complainant on 22 February 2021 further to the occupational health review and advised that she was exploring mediation options.  Ms Feeney was given the complainant’s email response of 9 March 2021 by Ms Wilson.

Ms Feeney wrote the letter to the complainant dated 12 March 2021 notifying of the decision to terminate the complainant’s employment and, whilst other members of management were appraised of the situation, it was her decision to dismiss on grounds of capability.  She explained how, having received a medical certificate of unfitness for work for 12 weeks, she was then reviewing the complainant’s return to work in the short to medium term as per the respondent’s absence management policy and that such a return was not imminent.  She would ordinarily review capability and long-term absence at the 9-month mark and that in the case of the complainant there was no return to work in sight.  Ms Feeney believed the complainant was not engaging and was not prepared to engage.  Ms Feeney considered the most important part of the letter dated 12 March 2021 to be the part referring to engagement with the right of appeal; that the appeal must be made in writing within 5 days of receipt and provide reasons for the appeal.  The complainant was referred to her staff handbook for details and the letter enclosed a copy of the appeal process from the handbook. 

Regarding the appeals process, the respondent’s Operations Director had been nominated, and had agreed, to hear any appeal.  He had the ability to override her decision to dismiss.  Her letter dated 12 March 2021 was sent by recorded delivery, which confirmed delivery on 16 March 2021. 

Although the complainant emailed a HR colleague of Ms Feeney’s on 22 March 2021 saying she wished to appeal the dismissal decision, it was significant to note that the complainant said that reasons would follow but that no reasons or grounds of appeal were ever received from the complainant.    Ms Feeney confirmed that she did not accept the complainant’s appeal of 22 March 2021.    She had been given the undated letter from the complainant’s solicitor regarding its representation of the complainant in an appeal against the decision to dismiss.  Ms Feeney responded to this correspondence advising that as the complainant had not adhered to the appeals process, she had forfeited her right of appeal.  She maintained this position in subsequent correspondence to the complainant’s solicitor.  Ms Feeney outlined how, if she had received written reasons for the appeal within the prescribed timeframe, she would have considered an appeal but there were never any written reasons received for the appeal.  The complainant had received the termination letter on 16 March 2021 and did not do anything for seven days.

Under cross-examination, Ms Feeney confirmed that she had instructed the referral of the complainant to occupational health.  Ms Feeney believed that the trigger for the complainant’s unfitness for work was the pending disciplinary process.   She did not accept that the complainant was suffering stress from her job, her work had decreased because of the decrease in business and her hours of work were reduced in consequence.  Ms Feeney confirmed that she explored mediation options after the February 2021 occupational health review.  She could not recall how she progressed this.   She read the second occupational health review report more positively in terms of the complainant’s recovery.  The disciplinary issue wasn’t going away and she felt that it was becoming untenable that the disciplinary issue wasn’t being resolved.   She starts looking at capability from the 6-month mark considering all component parts, including the pattern of absence, engagement with welfare calls and occupational health.  She was looking at this in respect of the complainant’s absence.  Ms Feeney agreed that it was common courtesy to tell the complainant that the issue of dismissal was on the table but that the complainant had said not to contact her. 

In response to questions on the right of appeal, Ms Feeney said that it was a compliance issue; that the respondent had a policy and procedure for appeal and that if she had received written reasons there would have been scope to exercise her discretion and accept an appeal.  Ms Feeney confirmed that the termination of the complainant’s employment was by reason of her long-term absence and capability.  In response to a question on the reasons detailed in the termination letter and these reasons not having been put to the complainant previously, Ms Feeney said that the right of appeal offered the opportunity for engagement with the complainant.

In re-examination, Ms Feeney said that if something had come across her table warranting an appeal, she would have allowed an appeal however she had not received anything from the complainant or the complainant’s solicitor to warrant her exercising her discretion.

I asked about the recorded delivery and Ms Feeney said there was normally a signature upon receipt.

It was accepted that the respondent terminated the complainant’s employment by way of correspondence dated 12 March 2021 and provided the complainant with 6 weeks’ pay in lieu of notice. 

The respondent defended this case on the basis that the complainant was dismissed by reason of capability, namely ill-health which prevented her from returning to work.

Section 6 of the Unfair Dismissals Acts 1977 – 2015 (the “Acts”) puts the onus on an employer to show that the dismissal was not unfair.  Under s.6(4)(a) of the Acts, a dismissal is deemed not to be unfair if it results wholly or mainly from an employee’s capability to perform work of the kind which s/he was employed to do. 

Both parties referred to the decision of the High Court in Bolger v Showerings (Ireland) Ltd [1990] ELR 184 which concerned a dismissal based on capability arising from ill-health. In that case, Lardner J. held for such a dismissal to be fair the onus is on an employer to show:-

(i)                  that the ill-health was the reason for dismissal;

(ii)                that this was a substantial reason;

(iii)               that the employee received fair notice that the question of dismissal for incapacity was being considered; and

(iv)               that the employee was afforded an opportunity to be heard. 

It is appropriate to apply the principles set out above to the facts of this case.

It was common case that the complainant was absent from work on medical grounds from 13 July 2020 and that on 9 March 2021 she provided a medical certificate which advised she would be unable to attend work for a further 12-week period.  The complainant’s absence from work was clearly an issue for the respondent and I am satisfied that the medical certificate it received from the complainant in March 2021 was a compelling factor in the respondent’s decision to dismiss.  The respondent wrote to the complainant further to the occupational health report advising that it was looking into mediation options and requesting the complainant be open to this intervention.  The complainant’s response was a request not to be contacted due to her health and that she was not ready to talk to anyone from the respondent on her own or with the assistance of a third party until further notice.  I have carefully considered the evidence and the termination letter dated 12 March 2021.  I am satisfied that the complainant’s ill-health, which gave rise to continuous absence from July 2020, certification for a further 12-week period of absence in March 2021 and an inability to engage directly with the respondent, was the reason for the termination of her employment.  Whilst I consider unfortunate the choice of wording of the reasons provided in the termination letter of March 2021, I find, on balance, that they relate to the complainant’s ill-health and that her ill-health was a substantial reason for the dismissal. 

The crux of this case for me relates to the principles set out at (iii) and (iv) above.  

I cannot find that the complainant was given notice that the question of her dismissal for incapability was being considered or that she was afforded the opportunity to be heard on this issue for the following reasons.  I do not accept that the respondent can rely on a handbook or an email from the complainant requesting the respondent not contact her in discharge of these requirements.  The respondent wrote to the complainant on 22 February 2021 advising that it was exploring options for a mediator, reassuring the complainant of its support and advising that it would be in contact in the next few days to advise of what it could in place.   The next communication from the respondent to the complainant is the letter dated 12 March 2021 terminating the complainant’ employment on grounds of incapability.  In my opinion, the respondent’s move from one position to another without notifying or affording the complainant the opportunity to be heard is fatal to the respondent’s defence of this case.  I have carefully reviewed the occupational health reports and can find nothing in them to indicate that the complainant was on notice that her capability was an issue for the respondent or that the question of dismissal was being considered.  The respondent confirmed in evidence that it took on board the recommendations of occupational health and there was documentary evidence before me of the respondent looking into mediation or support options for the complainant.  The respondent’s explanation for why these supports were never offered to the complainant was by reference to the email from the complainant asking the respondent not to contact her.  It is of note that it was just three days after the date of this email from the complainant that the respondent issued the termination letter.  The HR Manager’s evidence was that she was looking at the complainant’s capability at the 6-month mark however I am satisfied that the complainant was not aware of this.  The complainant’s email appears to have triggered the decision to dismiss but I cannot find that the complainant’s email justified the respondent not notifying the complainant that her dismissal was being considered or giving her the opportunity to be heard. 

The respondent’s evidence placed emphasis on the complainant having been afforded an opportunity to appeal its decision and that this would have facilitated engagement by the complainant on the issue. I address the appeal offer further below but, to the respondent’s position, I cannot accept that this would satisfy the principle enunciated by Lardner J. that the employee be afforded an opportunity to be heard which, when properly applied, gives an employee whose employment is at risk of termination on grounds of capability the right to be heard in defence.  Such a fundamental right cannot be conditional upon an employee exercising a right of appeal.

The above findings relate to the employer’s conduct in the context of the principles set out in Bolger v Showerings (Ireland) Ltd.  In determining this case, I have considered it appropriate, pursuant to s.6(7) of the Acts, to have regard to the reasonableness or otherwise of other aspects of the respondent’s conduct in relation to the dismissal.

I have considered the respondent’s evidence that on receipt of the complainant’s medical certificate in March 2021, a return to work by the complainant in the short to medium term was reviewed in line with the respondent’s absence management policy.  It was further stated that capability and long-term absence would ordinarily be reviewed at the 9-month mark and that in the case of the complainant there was no return to work in sight.  There was an issue between the parties as to whether the complainant received the employee handbook, but I am not concerned with that issue here.I have carefully reviewed the employee handbook in the context of the evidence given and I can find no reference to review at the 9-month mark or as to what constitutes short to medium term for the purpose of the absence policy and a return to work.  The complainant had been absent 7 months at the date of the termination letter.  The respondent’s justification for its approach to dealing with the certification for a further 12-weeks is not evident from the absence policy before me nor was the complainant’s absence reviewed in line with the HR Manager’s evidence as to when she ordinarily reviews capability and long-term absence.  The occupational health review report in February 2021 did not provide a return-to-work date in the short to medium term and the HR manager’s evidence was that she interpreted the review report as more positive in terms of the complainant’s recovery.  Having regard to the foregoing, I am not satisfied that the respondent’s conduct upon receipt of the complainant’s medical certificate in March 2021 was reasonable. 

I have also considered how the respondent dealt with the complainant’s request to appeal the dismissal decision.  The respondent’s termination letter of 12 March 2021 advised the complainant of a right of appeal, in writing, within 5 days of receipt of the letter.  It referred to the staff handbook and enclosed copy of the appeals procedure.   The complainant’s evidence was that she received the letter on 17 March 2021 when she checked her post-box and that she emailed HR on 22 March 2021 to advise that she wished to appeal.  The respondent in its correspondence to the complainant’s solicitors on the matter of an appeal and in its evidence at the hearing asserted that as the complainant had not adhered to the appeals process by appealing within the timeframe and providing written reasons for appeal, she had forfeited her right of appeal.  The respondent referred to the recorded delivery of the termination letter on 16 March 2021.  There was no evidence before me that the complainant received the termination letter on 16 March 2021. It was accepted that the complainant had emailed HR on 22 March 2021 advising that she wished to appeal.  I am satisfied that the notification to HR on 22 March 2021 was within the timeframe outlined in the termination letter, namely that it was within 5 days of the complainant’s receipt of the letter.  There was emphasis by the respondent at the hearing that it had never received from the complainant reasons for her appeal and evidence from the HR manager to the effect that if something had come across her table warranting an appeal that she would have allowed it.  Given that the communications from the HR manager to the complainant’s solicitor in April 2021 maintained that the complainant had forfeited her right of appeal, I do not consider it unreasonable for the complainant not to have lodged reasons with the respondent for an appeal.  It is my view that the respondent acted unreasonably in not allowing the complainant to engage with the appeals process and particularly so where it was the respondent’s evidence that the appeal was an opportunity for engagement with the complainant.  I also consider the HR manager’s involvement in deciding not to accept the complainant’s appeal to have been unwise.  The HR manager in her evidence referred to having discretion to accept the appeal.  The HR manager took the decision to dismiss and a separate person within the respondent organisation had been nominated to hear the appeal.  In my view, it would have been more appropriate for that person to determine acceptance or otherwise of the complainant’s appeal. 

By reason of the foregoing and the respondent’s failure to discharge the onus on it in this case, I find that the complainant was unfairly dismissed.  

I consider compensation to be the appropriate form of redress given the current employment status of the complainant and having regard to the submissions of the parties on redress.

The parties differed on the complainant’s weekly remuneration at the hearing, and I received further submissions from the parties on this post-hearing.

There was evidence before me that the complainant’s hours of work were reduced in June 2020 from 35 hours to 28 hours until further notice due to a COVID-19 related downturn in business.  The complainant’s submission on financial loss was based on weekly gross pay of €609.13 which was in respect of a 35-hour week.  I note that the respondent’s payment in lieu of notice was also calculated by reference to a 35-hour week. 

I find that the complainant’s normal weekly remuneration was €657.08.  This figure represents her earnings, including car allowance, in respect of her normal hours of work prior to a reduction in hours of work from June 2020. 

The complainant’s dismissal was said to be with immediate effect on 12 March 2021.  She received 6 weeks’ pay in lieu of notice.  The complainant secured employment on 1 April 2022 earning more than what she had with the respondent.

It was submitted on behalf of the complainant that the complainant’s unavailability for work from the date of her dismissal until 1 August 2021 was directly attributable to the actions or conduct of the respondent. I am not satisfied that this has been substantiated. It was the complainant’s evidence was that she was unable to look for employment until the beginning of August 2021 due to the health difficulties she had experienced whilst in employment with the respondent continuing until then.  The occupational health reports and medical certificates do not attribute the complainant’s unfitness for work to the actions or conduct of the respondent. 

Discounting a 6-week period in respect of which the complainant received pay in lieu of notice and the period up until the beginning of August 2021 when the complainant was unfit for work, I find that the complainant has incurred financial loss attributable to the dismissal in respect of the period from 1 August 2021 to 1 April 2022 when she obtained employment.  I assess the complainant’s financial loss in respect of this period at €22,997.80.

The respondent challenged the complainant’s efforts to mitigate her loss.  The complainant said that she spent time every day online looking for work, sent emails, asked friends and registered with social welfare and job search sites.  I was provided with documentary evidence of 3 job applications during this period and the complainant’s employment plan with the Department of Social Protection.  I am not satisfied that the complainant has met the mitigation of loss standard set out by the Employment Appeals Tribunal in Sheehan v Continental Administration Co Ltd (UD858/1999) that 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 to be profitably employed in seeking to mitigate his loss." 

I determine compensation in the sum of €17,250.00 to be just and equitable having regard to all the circumstances.

Unfair dismissal – Capability – Procedures – Financial loss