FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES: THE BLACK DOG COMMUNICATIONS LTD (REPRESENTED BY MS. MARY PAULA GUINNESS, B.L., INSTRUCTED BY WENDY DOYLE SOLICITORS) - AND - LORRAINE WALSH (REPRESENTED BY MS. BEIBHINN MURPHY, B.L., INSTRUCTED BY SINEAD IVORY SOLICITORS) DIVISION:
SUBJECT: 1.Appeal Of Adjudication Officer Decision No ADJ-00028973, CA-00038409-001 DETERMINATION: Ms. Walsh, ‘the Complainant’, worked for The Black Dog Communications Limited, ‘the Respondent’ from 2006 to the ending of her employment in May 2000. She earned €4088 per month. The Complainant lodged a complaint under the Unfair Dismissals Act, 1977, ‘the Act’. An Adjudication Officer, ‘AO’, upheld the complaint and decided that compensation of €25,000 was warranted. Both parties appealed the Decision. The Complainant in a communication with her appeal form clarified that her appeal was in respect of quantum only. While the submission received by the Court on behalf of the Respondent set out grounds of appeal in respect of the Decision in its entirety, at the outset of the Court hearing, the Respondent’s representative clarified that the Respondent now accepted that the dismissal was unfair, and that the Respondent’s appeal would also be confined to the issue of quantum. Matter raised at the commencement of the hearing. The Respondent’s representative drew the attention of the Court to what she understood to be a significant amount of documentation in the possession of the Complainant’s representative regarding the financial losses being claimed by the Complainant, but which had not been shared with her, the Respondent or the Court. For her part, the Complainant’s representative stated that the Complainant was fearful that the other party would create difficulties for the Complainant in her existing employment and with job agencies if she was to share the documents concerned, a statement which was denied on behalf of the Respondent. She noted also that the Complainant could deal with the matter in evidence and that there was no obligation to provide documentation. The Court drew the attention of the Complainant’s representative to the provisions of s.7(2) of the Act and noted that the Court was obliged to consider financial losses arising from the dismissal and attempts at mitigation of such losses, so that if there was information and/or documentation that could assist in that regard, it would be in the interests of the Complainant that it would be provided. If it was not provided and, as a consequence, the Court was unable to ascertain losses with the necessary level of certainty, the Court would have to consider if the application of s.7(1),(b),(ii) was the appropriate provision under which to make an award. The Complainant instructed her representative to provide the information required and it was shared with the Respondent and the Court. Following an adjournment, the Respondent’s representative confirmed that she was happy to proceed and to deal with the relevant issues in cross examination of the Complainant. Witness evidence Ms. Lorraine Walsh. Ms. Walsh is the Complainant. The witness stated that she had been dismissed in May 2020. She said that she secured part time employment in September 2020. The witness said that she opened a Linkedin account after her dismissal in which she indicated that she was ‘open’ for available work. This alerted potential employers who could then contact her. She had to exclude reference to her employment with the Respondent. The witness noted that she had been on lay-off since November 2019 and had begun a course in Employment Law in the Law Society in February 2020. She completed the course in July 2020. She said that it was not easy to secure employment in the midst of the pandemic. This was not helped by her reluctance to reveal her previous employment with the Respondent who, right up to and including the hearing before the AO, had accused her falsely of wrongdoing. This closed off opportunities within the niche sector in which she had worked, had caused her stress and anxiety and had cost her lost confidence in seeking work. The witness said that she managed to get a part time role in September 2020 that enabled her to build up her experience again to the point where in 2022 she felt ready to again apply for full time roles. She accepted that she would need to look at lower-level jobs because she knew from her experience what employers looked at. She had never wanted to work part time. The witness said that in her current role, she had earned €17,600 p.a. from September2020 for 15.6 hours per week. In September 2022, her hours had increased to 21 per week and she earned €23,690 p.a. She said that she earned €50,000 p.a. previously, when employed by the Respondent. In cross examination, the witness said that she said that she contacted many job agencies. When it was put to her that this was not documented, the witness said that she had had many telephone conversations. It was put to the witness that, contrary to her evidence, when her details were entered into Linkedin, she was shown as a director of the Respondent company. She replied that she did not have access to that particular account. It was put to the Complainant that she made no job applications in May to September 2020, to which she replied by noting the existence then of the worst part of the pandemic. It was put to the witness that, from September 2020 to September 2022, it had suited her to work part time, that she only started applying for full time employment in October 2022 and that it had been her choice not to seek full time employment in that period. When the witness referred to numerous calls regarding possible employment, the Respondent’s representative noted that the Court can only rely on documentation. It was put to the witness that she had applied for 2 jobs in October 2022,7 in November 2022, 1 in December 2022, 13 in January 2023, 15 in February 2023, 1 in March 2023, 2 in April 2023, following which there was a flurry of applications after she was notified of the Court hearing date. The Complainant stated that this was absolutely incorrect and that she had suffered multiple rejections. It was put to her in response that the documents showed only two rejections and that she had chosen to work part time as it suited her. The witness replied that she had not chosen any of this, that there had been a pandemic and that she was lucky to have secured employment in that period. It was put to the witness that the pandemic was long over, that she could have looked for alternative types of work at a time of full employment, to which the witness reiterated earlier responses, including the fact that the pandemic restricted opportunities. In response to questions from the Court. The witness said that she had received in the region of €6,000 in holiday pay and pay in lieu of notice plus €17,112 redundancy pay when she was dismissed. The witness said that she was with 5 agencies after May 2020 and was lucky to be successful in her first job application. The witness did not qualify for PUP in lockdown as she was on lay off since the previous November. The witness clarified that she had her own Linkedin entry, which was separate from the one used while she worked for the Respondent. The one referred to in cross examination did not include her picture. The witness noted the point made in questions from the Court that her earnings from her part time role were broadly ‘pro rata’ to what what she would have earned had she remained working full time in her previous role with the Respondent. The applicable law Unfair Dismissals Act Redress for unfair dismissal. 7.—(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances: (a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or (b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or (c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations undersection 17of this Act) as is just and equitable having regard to all the circumstances, or (ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances, and the references in the foregoing paragraphs to an employer shall be construed, in a case where the ownership of the business of the employer changes after the dismissal, as references to the person who, by virtue of the change, becomes entitled to such ownership.] (1A) In relation to a case falling within section 6(2)(ba) the reference in subsection (1)(c)(i) to 104 weeks has effect as if it were a reference to 260 weeks. (2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to— (a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer, (b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee, (c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid, Deliberation. The only issue for the Court to consider is the question of remedy. The Respondent is no longer seeking to argue that the dismissal is fair. When a dismissal is determined to be unfair, there are various remedies available to the Court. On the facts of the instant case, the Court believes that compensation is the appropriate remedy. No argument was put to the Court that dismissal was, in any way, attributable to the actions of the Complainant. With regard to losses and mitigation of same, the Complainant is to be commended for securing any form of employment at the height of the Covid pandemic and, while it took some months, her decision to make known her wish to secure employment soon after her dismissal bore fruit in September 2020. However, while she argues that the pandemic continued to restrict her opportunities to secure full time employment, the Court is of the view that while that may have validity for 2020 and at least some of 2021, it is not true of 2022 and the Court has to take account of that fact. The Court notes some level of job seeking from October 2022 onwards, with significantly increased levels in recent months but still, arguably, not at the level set out as a requirement inSheehan v. Continental Administration Co Ltd UD858/1999,in which it was noted that; ‘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’. The Court can consider future loss. In the instant case, the Complainant is well qualified and articulate and now, with a clear statement that her dismissal was unfair, ought to be able to pursue a career that is commensurate with her ability and skills without any excessive delay, given the current economic situation. Taking all factors into account, the Court does not consider that an award to compensate for the full extent of all losses to date and, potentially, into the future would be appropriate. Having considered the matter at length, the Court considers the appropriate compensation should be set at €35,000 and directs that this amount be paid to her by the Respondent. For the sake of clarity, this amount is in addition to the money paid to her already, as outlined above. Determination. The Decision of the Adjudication Officer is varied.
NOTE Enquiries concerning this Determination should be addressed to Aidan Ralph, Court Secretary. |
