Complainant

Respondent

Parties

David  Quinn

Lisheens House Drop-In Center Company Limited by Guarantee (amended on consent)

Representatives

 JRAP O’Meara LLP

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00055509-001

11/03/2023

The Complaint Form was received by the Workplace Relations Commission on 11 March 2023. This complaint was heard with a linked case of ADJ-00044827.

The Complainant re-presented himself at the hearing and swore an affirmation.

The Respondent’s witness swore an affirmation at the outset the hearing but did not give evidence at the hearing.

At the outset of the hearing the issue was narrowed to mitigation of loss only and the Complainant gave evidence of his effort and was cross examined on this basis only.

Documents were exchanged in advance and shared on screen during the hearing.

The Respondent’s name was amended at the hearing.

It was the Complainant’s evidence that he applied for approximately 15-20 jobs online and locally. Evidence of same was provided. He did obtain employment locally on 26 April 2023 and resigned on 17 May 2023 stating it did not suit him. On 19 June 2023 he commenced work with his current employer. It was his evidence that he was unemployed from the date of termination of his employment on 24 March 2023 until 26 April 2023 and again from 17 May 2023 until 19 June 2023. He gave further evidence that as he did not have the requisite annual leave accrued with his new employer he had two weeks unpaid in July + August 2023.

The Complainant gave evidence that he currently earned €750 gross per week in his new employment and spent approximately €110 per week on travel to and from week.  The Complainant earned €710.22 gross per week with the Respondent.

The Complainant was cross examined on his employment for one day with a fish factory to which he replied it was not a job that suited him. It was his evidence that he got €77 net for one day’s work. He was also questioned about his employment from March to April 2023 and why he chose to leave it. It was put to him that he made a claim that he had to borrow money to “put food on the table and pay his mortgage” and why in those circumstances he chose to leave two employments.

Evidence of the Complainant’s flat pack business was put to him , to which he replied he never made any sales and therefore did not generate any income. He denied having any accounts or supporting documentation.

It was put to the Complainant weather in total he has earned a total income of €11,196.70 which was accepted.

The Respondent accepted that the manner in which the Complainant’s employment was terminated was not optimal. Therefore, sought to focus on the Complainant’s mitigation of loss and he was cross examined accordingly.

In the circumstances where there was no dispute as to the unfairness of the dismissal, I find that the Complainant was unfairly dismissed by the Respondent within the meaning of section 6 of the Unfair Dismissals Act 1977. Accordingly, I find that the complaint is well founded.

Redress is provided for withing Section 7(1) of the Act with the Complainant seeking compensation.

Section 7(2) of the Acts provides: -

“(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 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….”

Section 7(3) of the Act provides that future loss may be taken into account as follows: “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 1973, or in relation to Superannuation”.

It should be noted that travel expenses to and from a place of work do not fall within the definition of remuneration for the propose of the legislation. Consequently, I od

I find that the Complainant’s efforts to mitigate his loss meet the standard set out by the Employment Appeals Tribunal in Sheehan v Continental Administration Co Ltd UD 858/1999 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 find the Complainant was unfairly dismissed.

I find the period of financial loss began on 24 March 2023 to his date of dismissal to the date he commenced employment on 26 April 2023 when he took up employment in a role that could be reasonably considered was within the remit of his skill set.  

Accordingly, it is both just and equitable in all the circumstances to award the Complainant compensation in the sum of €3,906.32.  

Unfair Dismissal – Mitigation of Loss