Complainant

Respondent

Parties

Andre  Santos

Seafield Golf And Spa Hotel

Representatives

Mark Finan B.L., Instructed by  Kevin O'Gorman & Co. Solicitors

Fiona Egan Peninsula Group Limited

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-00046549-001

06/10/2021

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant and three witnesses for the respondent gave their evidence under affirmation.  The hearings took place with the assistance of an interpreter provided by the WRC.

Preliminary issue:

The respondent submitted that it is imperative to recognise the absence of jurisdiction to investigate any claim regarding discrimination of any kind and the Unfair Dismissals Act 1977 is not the correct forum for doing so.

Substantive issues:

The respondent submitted that the complainant started work in October 2017 and was provided with a copy of his contract of employment and the employee handbook. The complainant was summarily dismissed on 31 May 2021 for gross misconduct.

The respondent submitted that the first incident of note occurred on 28 April 2021 involving the complainant.  Investigative meetings regarding that incident took place on 4 and 5 May 2021.  Prior to this incident there were no previous complaints regarding the complainant.  On 22 May 2021 a further incident occurred which led to a separate investigation on foot of a physical assault sustained by another employee. It was alleged that the complainant had fought with him which resulted in the other employee suffering the loss of one of his teeth. The complainant was invited to an investigative meeting on 24 May where he was given a copy of the disciplinary procedure and the opportunity to be accompanied by a fellow employee.

The respondent submitted that the result of the investigative meeting was given to the complainant, and he was informed that the matter would proceed to a disciplinary hearing on 28 May 2021. The complainant was then invited to attend a meeting on 31 May where the respondent confirmed the complainant’s termination for gross misconduct effective immediately.  He was given five days to appeal the matter.

The respondent submitted that 10 days later the complainant lodged an appeal but was informed that it was out of time and was informed that although this would be disappointing news the respondent needed to “adhere to the same procedures for all staff except for in the most exceptional circumstances”.

On 25 July the respondent wrote to the other party to the first incident requesting him not to repeat his use of inappropriate language in conferring team members in future.

The respondent submitted that the dismissal of an employee shall be deemed for the purposes of the Act not to be an unfair dismissal if it results wholly or mainly from the conduct of the employee. The respondent submitted that the dismissal resulted wholly from the conduct of the complainant in the two incidents that it considered.

Witness testimony:

The first witness for the respondent is the deputy general manager and was also the investigation officer for the complaints received. In evidence he stated that he wrote to both parties regarding the first incident on 30 April.  He stated that an outline of the complaint was sent to all witnesses and that the complainant was sent this on 27 May 2021. He noted that he met with the complainant regarding the first incident who admitted the allegations, namely that he threatened death upon another team member. The witness noted that the team was probably 50% non-Irish. He stated that in relation to the second incident, that of 22 May, the complainant had head butted the other party.

The witness noted that the evidence of the complainant's brother-in-law was not included, although he was present in the room. He noted that although he corroborated the complainant's version of events, but that CCTV showed that he wasn't in the room at the actual time of the incident.

Under cross examination it was noted that he was the investigation officer, a fact-finding role and he was asked whether he tested those facts. He was asked whether he put any alternative account to the witnesses and indicated that he did not. When asked whether any of the accounts were tested, He conceded that none of them were tested.

He noted that all information was given to the complainant prior to the disciplinary hearing but after the investigation had concluded.  He confirmed that a statement was never provided containing the allegations to the complainant in advance of the hearing.  He noted that in the meeting he outlined the allegations to the complainant. He noted that he didn't test the facts related to the first incident as the complainant admitted saying he’d kill him.

It was put to the witness that verbal disagreement took place regularly, but he replied but this is the first he'd heard of this but conceded that this can often happen on a building site. He noted that there was often a bit of banter and noted that “on occasion, lads will lock horns on a building site”.

The witness was asked whether any statement had been made by the complainant to him and he replied “no, not to him”. He was not aware that the complainant was alleging that he was assaulted and was not aware that the complainant had volunteered to give a statement to the guards.

The witness noted that he recalled investigating the complainant and asked him to tell him in his own words what happened. He said he looked at the photograph, which was submitted in evidence, with a mark on the complainant's forehead, but noted that this was not consistent with what presented to him on the day.

It was put to this witness that the fact-finding study undertook was limited to what the complainant said to him but that the witnesses’ allegations were never put to the complainant. It was also put to him that he decided to test some of the evidence but not all and that he was selective in what he decided to test. The witness confirmed that the statement was received on 22 May prior to his meeting the complainant and that evidence and statements were only given to the complainant following the conclusion of the investigation.

The witness confirmed that his letter of 27 May 2021 made the decision regarding the allegations and that it was him making the conclusion.  He noted that the complainant fully understood what gross misconduct was because he read his contract employment.

It was put to the witness that there was a different procedure adopted with the other party to the incidents and this was confirmed by the witness.

Under redirection the witness confirmed issuing a letter of 30 April and a letter of 22 May and noted that no other allegations were raised regarding other assaults or instances.  He confirmed his findings were outlined simply as a case for that complainant to answer.

The second witness for the respondent was the general manager who confirmed that there was an alleged assault on the other party who was holding tissues to his face which was covered in blood.  He stated that complainant had headbutted him and he requested that the guards were called. He noted that he spoke to the complainant and that there was a small mark on the complainant's forehead and that the complainant asked for medical assistance. He noted that the image on the picture submitted was not what he observed on the day. He noted that he suspended both the complainant and the other party on full pay to facilitate an investigation. He noted that the other party was due to go on scheduled leave.

Under cross examination the witness confirmed that the other party was bleeding profusely and that a tooth subsequently found by a colleague and based on what was presented to him he did not offer to call an ambulance for the complainant as there was only “a little mark on his forehead”.

He noted that the complainant appeared to be ‘compos mentis' and was lucid in his interactions. He noted that the other party was never suspended but was on leave.

When this was put to him that the photograph submitted is not consistent with what he recounted he said he was standing over what he said earlier, and the photo doesn't represent the complainant as he presented himself.  He stated that the complainant was not bleeding from the mark on his head because if he had been bleeding, he would have called an ambulance.

The witness confirmed that once the decision was reached, he reviewed the file in its entirety and was satisfied with what he saw.

The third witness for the respondent was the senior duty manager. He noted that he had experience in carrying out disciplinary procedures and that this was his third such procedure. He noted that the purpose of the meeting he undertook with the complainant was to assess all the evidence and witness statements in accordance with the grievance procedure. He noted that he met with the complainant on 28 May and that he did not have any mark on him and that any mark was barely even noticeable and did not accord with what was in the photographs submitted.

In relation to the disciplinary meeting, he confirmed that he looked at lesser sanctions but, on the basis of the evidence before him, and he did not come upon the decision lightly, the sanction of dismissal was the only option. He noted that he had a duty of care to his employees and that an incident like this could not be tolerated. He met with the complainant to relay his decision and to outline the timetable within which to submit an appeal. 

The witness noted that the appeal arrived in and was addressed the incorrect person and was outside the allotted time frame. He concluded by noting that the procedure was dealt with as it should have been.

Under cross examination, he noted that the previous investigations he had conducted were not as serious.  He confirmed that in these less serious cases he had interviewed witnesses. He noted that in relation to the 28 April incident, two people were involved, and one threatened to kill another and admitted it. He confirmed that he didn't ask other witnesses if it was said in a more jovial manner or light-hearted manner. In response to the question as to what training he had in carrying out investigations he noted that he had no training, simply that he had life training.

He noted that some of the witness statements were made after the complainant had been interviewed, and anything raised in those statements was not put to the complainant. He noted that the complainant's brother-in-law stated that he couldn't speak against his brother-in-law. He confirmed that he did not put any evidence to the complainant, and it was put to him that he was only seeking new information, and that he had already made-up his mind regarding the witness statements.

It was put to the witness that the complainant never had the opportunity to interrogate any of the information against him and that given this, the process was fundamentally flawed.  It was also put to him that he never put to the complainant that what he said was not credible or not believable. It was noted that he made his decision before the meeting of 31 May.

The witness noted that he doesn't accept that the investigation was a sham, however it was put to him that complainant never had a chance to challenge any of the witness statements. He noted that he was happy with the procedures.  The complainant’s representative noted that although the complainant was given five days to appeal, he only received the minutes of the meeting on 3 June at approximately 11:30 PM.

Under redirection the witness noted that the notes were given to the complainant on the day before the investigation meeting.

Preliminary matter

The complainant noted that the respondent raised objections to its reference to discrimination in Unfair Dismissals proceedings.  In response it referred to sections 6(1) and (2) of the 1977 Act, which relate to the consideration of discrimination within the Act.  The complainant submitted that in light of these sections the Adjudicator enjoys full jurisdiction to determine all issues raised in this complaint. This includes the presence of any racial/ethnic tinge in the decision.

It further submitted that the respondent must prove that the complainant’s conduct was the whole or main cause of dismissal and not his race/ethnicity; and, if his conduct was that main cause, it constituted substantial grounds justifying dismissal.

Substantial matters

The complainant submitted that the right to fair procedures is a fundamental requirement of any disciplinary process and relied upon the basic elements of procedural fairness outlined in Re Haughey [1971] I.R. 217 as follows:

i.                     The right to be furnished with a copy of the evidence to be laid against the person subject to disciplinary action;

ii.                   ii. The right to cross-examine or, at the very least, in some way interrogate the account laid against the person subject to disciplinary action;

iii.                 iii. The right to give rebutting evidence; and,

iv.                 iv. The right of the person subject to disciplinary action to address the decisionmaker in their own defence

The complainant submitted that it appears that the respondent accepts the necessity of these basic requirements, as the formal procedure to investigate complaints of harassment states that “…[i]n the interests of natural justice, the alleged harasser will be made aware of the nature of the complaint, his or her right to representation, and will be given every opportunity to rebut the detailed allegation made” as per page 17 of the employee handbook.

The complainant submitted that these requirements are all the more acute in the circumstances of this complaint, wherein allegations of assault and battery were laid against him. It is submitted that the provision of fair procedures should be born in mind when assessing “all the circumstances” of this complaint (section 6(1) of the 1977 Act) and “the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal” (section 6(7) of the 1977 Act).

The complainant submitted that there were significant failures by the respondent in the provision of fair procedures when overseeing this disciplinary process – a detailed account of the evidence against him was compiled by the respondent but was never provided to him.  The complainant submitted that the original invitation letters indicate that these accounts were gathered after he had already been interviewed, and so he was never in a position to rely on corroborating evidence and interrogate contradicting evidence.  The complainant submitted that a similar approach was taken to the investigation of the alleged events on 22nd May 2021.

The complainant submitted that significant reliance is placed by the respondent in written submissions upon the failure of the complainant to exercise a right of appeal within the relevant timeframe. The complainant noted that an appeal cannot remedy an unfair hearing and that he was being asked to consider an appeal in circumstances where he had still not been provided with the evidence laid against him. It is submitted that this is a fundamental flaw which taints the entire process.

It was submitted that the process overseen by the respondent which led to his dismissal was manifestly unfair and in breach of the basic requirements set out in Re: Haughey  - At no stage was the complainant provided with the copy of the evidence laid against him - At no stage was he afforded a chance to interrogate the evidence which was relied upon by the Respondent to make the decision dismissing him from his employment - At no stage was he allowed to highlight the rebutting or corroborative evidence contained in the written accounts and rely on same as a basis for not dismissing him. While he was allowed to address the decision-maker in his own defence, this right operated against a backdrop where none of the evidence had been provided which might have substantiated the defence he wished to raise.

The complainant submitted that against all this background, the dismissal was unfair and in violation of the Unfair Dismissals Act 1977. It was submitted that this was a decision-making process which lacked reasonableness and fair procedures, as required by section 6(7) of the 1977 Act.  The complainant referred to Meenan, Employment Law (1st Ed. (Updated), Dublin, Round Hall) wherein it addresses the need for reasonableness and fair procedures at para. 20-99 in the following terms: “An employer must be reasonable in regard to all the circumstances, and thus the constitutional right to fair procedures must be applied. In other words, the employee is entitled to be aware of all the evidence against him or her and to respond to any allegations. Recently, there have been a number of cases where application has been made to the courts to prevent a dismissal where there has been an alleged breach of fair procedures. There is usually an interlocutory application made to the High Court requesting reinstatement of the employee plaintiff with payment to the employee of his or her remuneration pending a full hearing of the case before the court. It should be noted that such applications must be considered with extreme caution; they are still rare and may not be successful.”

The complainant submitted that this is not interlocutory in nature and comes before the Workplace Relations Commission for a full determination of the facts. It is submitted that no factual narrative is identifiable from the documents (or will be identifiable from the oral evidence) which provides a reasonable basis for this lack of fair procedures or for the decision to dismiss him. The complainant has still not received any reason why he was treated differently to his former colleague, whose infractions were dealt with by written warning on 25th July 2021 without the need for formal discipline, let alone outright dismissal.

Witness testimony:

The complainant gave evidence that he was fired on 21 May.  He noted that he started work in 2018, building swimming pools in Dublin and then was hired to do maintenance in the respondent’s hotel. He noted the team comprised four people initially but that the composition changed as further renovation work was undertaken. He noted that he was working there for two and a half years before the other party to the first incident joined. He noted that this person had a different way of speaking to him, in a very rude fashion. He noted that there were often fractious discussions and he raised it with his boss and then it was OK for a few days before returning to being on the receiving end of rude treatment.

The complainant noted that during May there were problems in the hotel, and they were under a lot of pressure.  He noted that staff were being paid less money, they didn't get overtime which led to discord and arguments. He noted that there was an emphasis on the threat to kill his co-worker but noted that it is similar to the use of language that the Irish used regularly. He acknowledged that he said, “I’ll kill you but not today” on a regular basis and that everybody used the expression “I'll kill you”.

The complainant recounted the details of the altercation that took place on the second occasion he said that one of the painters was on the top of the ladder screaming at him that he was not the boss when he told him how to approach a task. He jumped down the ladder and hit the complainant on the forehead. He told his boss that he was assaulted. He did not know whether the matter was investigated by the hotel but that he sought to speak with the guards and was told no he couldn't. He knows that no one asked him what his side of events were and that he wasn't shown statements.

The complainant stated that he went to the gardai station to give a statement and though he had wanted to wait for the patrol car, but he was not allowed to do so. He confirmed that no documentation was provided to him. He noted that reference was made to an assault not an alleged assault.

He confirmed that the alternative version of events was not ever put to him and that the findings were passed to the disciplinary hearing. 

He noted that the first allegation was true, he did say something along the lines of ‘I’m going to kill you’ but that the second allegation revolved around an unfair investigation of one version only.  He said that his allegation of assault was never investigated. He noted that all of this was not easy and was a very stressful time.  The complainant noted that the findings were upheld, and he was dismissed.

The complainant stated that he was not surprised with the outcome after he was put out of the hotel and not allowed to talk to the gardai. He said he was aware of the procedure for appeal but that it was a very short time frame, and when he made the appeal, it was one day late.   The complainant noted that the process was never fair from the beginning.  He initially had no intention of working with that crew again and no intention of appealing, but he changed his mind because he needed to defend himself.

In relation to the mitigation of his loss of earnings, the complainant stated that he applied for social welfare immediately but had to wait a while due to being fired for misconduct. He noted that he was sending emails to employers, but no work was available at the time as it was during the Covid pandemic, and no one was being taken on. He was sending on one or two emails per week in and around May onwards and only then got employment in September 2022.

Under cross examination it was put to the complainant that the industry reopened in June 21 but that he only got a job in September 2022. He said that he was trying to get a job. The complainant was asked had he ever raised a grievance regarding overtime and replied “no”. He noted there was no bad blood between the two but that the other party spoke to him like a dog. He said that after a few weeks he responded in a similar fashion. He stated that he didn't say “I'm going to kill you” but that he did say something similar. 

The complainant stated that he worked with the respondent for three years without any problems, but that after a new colleague started, he kept talking and screaming at him in a bad way and treated him like a dog.

He also stated that when he tried to put his issues before the investigation, he was stopped and told that the investigator was only looking for ‘new information’.

The complainant noted that he went to his GP for medical assistance and was given antibiotics for an infection.  He confirmed that he didn’t require stitches.  It was put to him that no ambulance was called for anyone.

When it was put to him that he didn’t exhaust each stage of the appeals process, the complainant noted that he decided initially not to appeal in a moment of tension but decided upon reflection with the family to appeal to clear his name.

When asked was he being prosecuted by the guards, the complainant replied yes.  On redirect, the complainant noted that he felt that the approach towards him was down to his nationality.

Preliminary matter – discrimination in the Unfair Dismissals Act

What constitutes unfair dismissal is outlined in Section 6 of the Act as follows:

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.

(2) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal if it results wholly or mainly from one or more of the following:

(a) the employee’s membership, or proposal that he or another person become a member, of, or his engaging in activities on behalf of, a trade union or excepted body under the Trade Union Acts, 1941 and 1971, where the times at which he engages in such activities are outside his hours of work or are times during his hours of work in which he is permitted pursuant to the contract of employment between him and his employer so to engage,

(aa) without prejudice to paragraph (a), the employee—

(i) being a member of a trade union which made a request referred to in section 2(1) of the Industrial Relations (Amendment) Act 2001,

(ii) being in the employment of the employer concerned in the grade, group or category to which the trade dispute, referred to in that section, relates, and

(iii) having provided evidence or other information or assistance to any person, for the purposes of the examination of that request by the Labour Court or in respect of an investigation made by it under that Act pursuant to that request,

(b) the religious or political opinions of the employee,

(ba) the employee having made a protected disclosure,

(c) civil proceedings whether actual, threatened or proposed against the employer to which the employee is or will be a party or in which the employee was or is likely to be a witness,

(d) criminal proceedings against the employer, whether actual, threatened or proposed, in relation to which the employee has made, proposed or threatened to make a complaint or statement to the prosecuting authority or to any other authority connected with or involved in the prosecution of the proceedings or in which the employee was or is likely to be a witness,

(dd) the exercise or proposed exercise by the employee of the right to parental leave, force majeure leave under and in accordance with the Parental Leave Act, 1998, or carer’s leave under and in accordance with the Carer’s Leave Act, 2001,

(e) the race, colour or sexual orientation of the employee,

(ee) the age of the employee,

(eee) the employee’s membership of the travelling community,

(f) the employee’s pregnancy, attendance at ante-natal classes, giving birth or breastfeeding or any matters connected therewith,

g) the exercise or proposed exercise by the employee of the right under the Maternity Protection Act 1994 to any form of protective leave or natal care absence, within the meaning of Part IV of that Act, or to time off from work to attend ante-natal classes in accordance with section 15A (inserted by section 8 of the Maternity Protection (Amendment) Act 2004), or to time off from work or a reduction of working hours for breastfeeding in accordance with section 15B (inserted by section 9 of the Maternity Protection (Amendment) Act 2004), of the first-mentioned Act,]

(h) the exercise or contemplated exercise by an adoptive parent of the parent’s right under the Adoptive Leave Acts 1995 and 2005 to adoptive leave or additional adoptive leave or a period of time off to attend certain pre-adoption classes or meetings,

(i) the exercise or proposed exercise by the employee of the right under the Paternity Leave and Benefit Act 2016 to paternity leave or transferred paternity leave within the meaning of that Act

(j) the exercise or proposed exercise by the employee of the right under the Parent’s Leave and Benefit Act 2019 to parent’s leave or transferred parent’s leave within the meaning of that Act.

The complainant submitted that he was not fairly treated and that part of the reason for this treatment related to race. The respondent submitted the Unfair Dismissals Act is not the appropriate place to pursue a race complaint.  In response the complainant cited section 6(1) and (2) of the 1977 act noting the inclusion of the race ground.

Having regard to the foregoing, I can confirm that the Section 6(2) of the Unfair Dismissals Act contains a reference to the race of an employee.

Substantive issues:

The complainant submitted that in relation to its investigation of the second incident, there were two cross complaints made and that his complaint was never investigated and suggested that this was unfair to him.

However, having regard to the submissions of both parties it became apparent that there was an altercation between two staff members and that both staff members were not treated in a similar fashion.  In relation to the first complaint, although matters were investigated on 4/5 May 2021, the action against the complaint predated any action taken against the other party by almost six weeks.  Although this may have been precipitated by the second incident it is worthy to note that no it took a further six weeks for the respondent to issue a letter to one of the other staff members not to use ‘inappropriate’ language when dealing with a staff member.  Taken in isolation, this demonstrates a difference in treatment between two staff members. 

When considering the second incident and the emotive nature of matters and of the severity of the sanction, dismissal, it is incumbent upon a reasonable employer to have procedures in place, preferably in writing, to deal with disciplinary matters in an even-handed manner.  At the very least these procedures should cover the basic elements of procedural fairness outlined in Re Haughey cited by the complainant – the right to a copy of the evidence laid against him, the right to interrogate or cross examine the account laid against him, the right to rebuttal evidence and the right to address the decision maker in their own defence.

The complainant was immediately removed from the premises and a complaint against him was investigated resulting in his dismissal. The cross complaint against the other party was not similarly investigated. I note that there was a previous incident involving the same to employees and that this investigation resulted in the other party being told to refrain from using racist or incendiary language in the workplace.

The respondent submitted that they could not accept the complainants appeal as it was submitted outside of the five-day time frame for the appeal and that they “needed to adhere to the same procedures for all staff except in the most exceptional circumstances”.  However, I note that an account of the proceedings was not given to the complainant for a number of days, yet his appeal was not accepted because it was outside the timeframe by a day.

I note that from the date of the second incident the respondent dealt with both the first and second incidents within four days for the complainant but took almost three further months to communicate the result to the other party.

At the same time the respondents admitted that it took almost three months to investigate a complaint against the other party which resulted in the issuing of a letter requesting him not to repeat his use of inappropriate language when conferring with team members in future.

I note that complainant admitted that he told the other party that he would kill him in response to him using racist language, however he also noted that he used the phrase I'll kill you regularly, like most Irish people.  As to the issue of most Irish people using the phrase “I’ll kill you” regularly, this was not challenged, but the respondent used this as a contributing factor in the complainant’s dismissal while simply admonishing an Irish employee in writing for using inappropriate language.

The wide disparity in investigation times for the complaints and the lack of any investigation whatsoever in relation to the cross complaint, not being given a copy of the complaint against him, not being allowed to cross examine or test the account against him, not being allowed to rebut the evidence against him or to address the decision maker in his own defence leads me to conclude that there has been an unfairness of treatment in relation to the complainant.

Furthermore, where the appeal was received outside of the five-day time frame - four of those days being weekend days, i.e. one working day late, does not indicate that all staff are afforded the same procedures.  The complainant received his dismissal on Monday 31 May.  He received a written account of the decision meeting on Thursday 3 June and submitted a letter stating he was exercising his right of appeal on Thursday 10 June (when the intervening days included a Bank Holiday Weekend).  He was then notified that the respondent would not accept his appeal as it “needed to adhere to the same procedures for all staff except in the most exceptional circumstances”.  I consider that the late furnishing of the notes of the disciplinary meeting amounts to ‘exceptional circumstances’ and furthermore I consider that the sanction of dismissal in the absence of written procedures amounts to ‘exceptional circumstances’. I also consider that the respondent did not adhere to the same procedures for all staff.

Having regard to the foregoing I find that the complainant was unfairly dismissed.

Although the respondent related an account that conveyed a difference in treatment between an Irish employee and a non-national employee, I am not convinced that this treatment differed on a race basis.  The evidence given in support of both parties to this complaint indicated that the respondent had no coherent policy in place for dealing with disciplinary matters and that the investigation was carried out in an ad hoc fashion.  I am not satisfied that the evidence points to anything other than the haphazard nature of the respondent’s procedures.

Notwithstanding the foregoing, I find that the complainant has not made out a case linking the unfair dismissal to the race ground outlined in section 6(2)(e).

As regards loss of earnings, the complainant stated that he made some efforts to find another position but that during times of Covid, it was difficult.  For their part the respondent noted that construction re-opened as early as June 2021 and that the complainant’s skillset would have been sought by construction operations during this time.  The complainant stated that he sent off about two applications per week.

The complainant’s loss of wages amounts to €450 per week for 64 weeks.  However, as the complainant only made limited attempts to find work during the period, I find that only 40% of the loss is attributable to the respondent and that compensation in the amount of €11,520 is just and equitable having regard to all the circumstances.

Having regard to all the written and oral evidence presented in relation to this matter, my decision is that the complainant was unfairly dismissed and that an award of €11,520 compensation is just and equitable having regard to all of the circumstances of the dismissal.

Unfair Dismissal established – award of compensation – limited loss attributable to the respondent