Complainant

Respondent

Parties

Michael  Reilly

Cullenbridge Services Limited Hollyfort Services

Representatives

Allan Crann B.L. instructed by Michael Kelly HOWELL & CO SOLICITORS

Nial Brehony Solicitor,  Ormonde Solicitiors

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-00051162-001

14/06/2022

The Complainant made a single claim:

CA-00051162-001  A claim pursuant to Section 8 of the Unfair Dismissals Act 1977 (as amended).  

Dismissal was not in dispute. The Respondent carries on the business of construction and facility support services The Complainant was employed by the Respondent as a plumber from the 27th of August 2018 until he was dismissed, purportedly on grounds of gross misconduct, on the 22nd of December 2021.

The Complainant was represented by Mr. Allan Crann B.L. instructed by Michael Kelly Solicitor of Howell & Company Solicitors. A detailed written submission was delivered on behalf of the Complainant. The Complainant gave evidence on affirmation.

Prior to his dismissal the Complainant had issues with his terms of employment which he sought to discuss with the Respondent these issues were unresolved from the Complainant’s point of view moving into the month of December 2021. The issues were discussed with the Complainant’s supervisor Mr. B.D. (“BD” of “Mr. D”). The submission delivered on behalf of the Complainant contained the following detailed narrative account of the meeting of the 22nd of December 2021 and its aftermath (the Complainant is described as “the Employee”):

The Employee returned from annual leave on 20th December 2021. He was on call that day and at 6.30pm he was contacted by a customer about an update regarding repairing a leaking cylinder which was regarded as a ‘priority job’. The Complainant informed the customer that as he was not aware of the issue, he could not provide such an update but that he would contact his line manager, Mr. D to get this information. The customer was happy to contact Mr. D directly. Mr. D subsequently contacted the Complainant and instructed him to attend at the customer’s location and repair the cylinder. The Complainant noted that the cylinder should have been repaired as soon as possible and queried why this had not been done. Mr. D began berating the Employee about his alleged ‘bad attitude’. The Employee subsequently clarified with Mr. D that he was proud of his work and as a result he was frustrated as such ‘priority jobs’ would be left unattended all day.

On 21st  December 2021, Mr. D attended on site to speak with the Employee and to tell him that if he had any problems at work the Employee could bring these to Mr. D. Mr. Dowling was informed by the Employee of the issues regarding his pay rise and pension. Mr. D then gave the Employee €50 in cash, a €150 rewards card and a framed certificate of recognition for outstanding service dated the 16th of December 2021 and given on the 21st of December 2021.

Early the following morning Mr. D contacted the Employee again asking him to go into the head office for a meeting at 9.30am. The Employee immediately assumed this meeting was about the issues he had raised in relation to his pay rise and pension.

The Employee attended at the head office at 9.30 and was met in meeting with Mr. Dormer and Mr. D. Mr. Dormer directly asked the Employee “you are leaving, are you?”. The Employee replied no and that he never said he was leaving. Mr. Dormer then informed the Employee that the Employer was dismissing him for purported gross misconduct based on allegedly verbally abusing a member of staff, namely Ms. C.

The Employee was shocked and appalled at the accusation and strenuously denied same. Mr. Dormer immediately asked that the Employee return his phone, keys of his van and had a taxi waiting outside to remove him from the premises.

The Employee informed Mr. Dormer that he would return the keys of the van once he had removed his own tools (approximate value of €4,000) from the van. The Employer’s disciplinary policy and procedures provides for a 24-hour window in which an Employee can return company property

In an account of the dismissal of the Employee given by Mr. D, Mr. D states that:

“Martin then said “you’re not happy Mick and we can’t continue like this, can we” Michael responded by shrugging his shoulders and laughing while saying “no”. At this point Martin was taken back obviously annoyed at the blatant disrespect and lies that were being told in such a short space of time and said “Right, in that case we can’t continue employment with you like this”. Michael immediately sat up in his chair and said “no bother” & then grinned and said “you haven’t followed the right process”.

However, it is apparent that in either scenario, the Employee was summarily dismissed without having (a) notice of the disciplinary proceedings (b) an opportunity to give his version of events and (c) an opportunity to know the nature of the accusation of gross misconduct being levelled at him.

It is therefore submitted that the Employer unfairly dismissed the Employee in circumstances where it had failed to follow its own procedure or any adequate procedure at all.

The Complainant relied on Regulation 4(6) of the Code of Practice on Disciplinary Procedures (S.I. No. 117 of 1996) and on the case of Giblin v Irish Life & Permanent PLC [2010] IEHC 36 

The Respondent was represented by Mr. Nial Brehony Solicitor instructed by Sean Ormonde & Co. Solicitors. The Respondent provided a detailed written submission and called one witness, Mr. Martin Dormer, the Respondent’s Managing Director who gave evidence on affirmation.

The Respondent detailed the background of events preceding a meeting on the 22nd of December 2021. The Complainant came under the supervision of Mr. BD (referred to in this decisions as “BD” or “Mr. D”. The Complainant expressed dissatisfaction with his employment to BD who in turn reported these issues to Mr. Dormer the Managing Director of the Respondent. BD reported that the Complainant appeared extremely dissatisfied with the appointment of BD as his manager and displayed continuous negative reactions towards BD, as a result. BD further reported that the Complainant was dissatisfied in his role within the Company and the Complainant’s aim was to find an alternative role in the new year. The Complainant informed BD that he was “out of here” and that he was doing interviews and described the Company as “a joke” and “a scam”. The Respondent also became aware that the Complainant was saying negative things to Clients about the Company. An incident where the Complainant was allegedly aggressive towards a member of staff was also reported to Mr. Dormer. The Respondent’s requires photographs to be uploaded of work done in order to protect the Company against potential claims for improper installation and to maintain a record of the work they do as the photographs are date and time stamped and show the installation in question. Issues arose with the Complainant uploading blurry photographs that were unrecognisable for the context in which they were required. The Complainant had sent a text to BD stating his camera was “crap”.

Mr. Dormer resolved to try to open a dialogue with the Claimant to ascertain what could be done to  improve the working relationship.

On the 21st of December 2021 some staff received awards for their loyalty during the Covid period. The Complainant was the recipient of one of these awards.

The Respondent scheduled a meeting with the Claimant to take place on the 22nd of December 2021. The purpose of the meeting from Mr. Dormer’s point of view was to provide the Claimant with a new work phone due to the difficulties he was allegedly experiencing with his previous one and also to informally discuss and resolve the issues that had arisen. There was no agenda provided for the meeting. BD was present at this meeting with Mr. Dormer

The Respondent’s submissions provided the following narrative account of the meeting on the 22nd of December 2021 and its aftermath (where the Complainant is referred to as “the Claimant” and Mr. Martin Dormer the Respondent’s MD as “MD”: 

MD sensed the Claimant’s blatant hostility and in an attempt to diffuse the situation MD invited the Claimant to disclose and discuss any workplace frustrations that he was experiencing. Unfortunately, this request was also shut down by the Claimant who stated that he had no issues in his role. In an attempt to persuade the Claimant to open up to him, MD stated that the Claimant must be unhappy if he was seeking to look for alternative employment. Again, this was denied and shut down by the Claimant in a hostile manner.

MD became frustrated by the contradictory information now coming from the Claimant. The Respondent’s main concern was to address the Claimant’s concerns and facilitate an open discussion with the aim of resolving matters. The Respondent felt that the Claimant was not being entirely honest and was not engaging with the meeting in a proactive and constructive manner; instead, he met the meeting with hostility and aggression.

MD asked the Claimant how the employment relationship could work in this manner particularly in circumstances where he would not even hand over the company mobile phone. MD clearly had not brought a new phone to the meeting with the intention of sacking the Claimant. He was merely referring to the breakdown in communication and lack of cooperation from the Claimant, which made it difficult to resolve matters. The Respondent believes that the Claimant took this as a dismissal to which the Claimant smirked at MD and stated that he had not adhered to proper procedures.

MD, unhappy and unnerved with the turn of events of the meeting, requested that the Claimant hand over his company phone so it could be exchanged for his new one. The Claimant refused this request and stated that the phone held his personal information. The Respondent submits that the Company handbook states that work phones are not permitted to be used for personal use unless it is approved in advance by the Company. MD reminded the Claimant of same, but the Claimant did not return the phone, which is company property. The Claimant went to leave the meeting. MD directed him not to leave the meeting, but the Claimant left anyway.

The meeting was ended by MD and the Claimant stormed out of the building towards the work van with an apparent intention of taking it. MD called upon other employees to secure the van. Again, the Claimant was informed by MD that he did not have permission to take the van from the premises. The Claimant prevented other staff members from accessing the van while insulting them.

The Claimant was offered and refused a taxi as alternative transport. The Claimant insisted he was not returning the keys until he was paid redundancy and a number of weeks’ wages. When the Claimant was told this was not a redundancy he stated that he would see the Respondent in court.

Due to the threatening, insulting and aggressive behaviour of the Claimant towards MD and the other employees present, MD had no alternative but to all the Gardai. MD felt and believed that the Claimant posed a serious threat at this point and was concerned for the safety and welfare of both himself and his staff and Company property. This did not deter the Claimant and he continued to act in this irrational, hostile manner.

The Respondent submits that the Claimant then left without returning the van keys. The Claimant left and returned to the premises on four occasions over the following hours and created further disruptions. A number of other members of staff tried to assist in resolving the Claimant’s concerns as did the Gardai. This continued over a period of about five hours. On one of these occasions a third party drove the Claimant to the premises in a black Audi. The Claimant continued to antagonise and abuse other staff members. The Claimant eventually opened the van by activating the remote unlock and another member of staff acted quickly and opened the van door. The Claimant attempted to relock it upon seeing this. The Claimant removed personal items from the van with the permission of the Respondent, and he again left the premises without returning the key.

The Gardai again attended and called the Claimant to request that he return to the premises to return the van keys. This was done via speaker in the presence of MD, who heard the Claimant deny to the Gardai that he had the keys. The Claimant refused to return to the company premises as requested as he claimed to have a doctor’s appointment to attend. The Company had no prior notice or knowledge of such an appointment despite the Claimant’s statements to the Gardai. On the instructions of the Gardai, Hollyfort staff removed any remaining personal items from the van after the van was opened.

The Claimant again returned to the premises later that day to collect the remainder of the personal items that had been in the van. Only at this juncture did the Claimant return the keys to the van. This collection was facilitated by the Respondent, who were now acting under the instructions of the Gardai. The Respondent was astounded that matters escalated to this point.

Arising from the Claimant’s behaviour and after considering what had unfolded, the Respondent saw no alternative but to terminate the Claimant’s employment with immediate effect. This was done in circumstances that clearly constituted gross misconduct in a situation in which the safety of staff members, the Claimant and the general public was put at risk in addition to the blatant refusal to obey reasonable management instructions and to remove company property in breach of the inspection and security policies of the Respondent company.

As to the justification for the dismissal the Respondent’s submission offered the following:

It is clear that aggressive behaviour towards his fellow employees and management and the attempt to withhold company property can constitute misconduct justifying dismissal. The behaviour of the Claimant was of such a serious nature, that the Respondent was caused to call the Gardai and which the Respondent formed the reasonable view warranted the Complainant’s dismissal.

In Bunyan v United Dominions Trust[1982] ILRM 404, the EAT said at p. 413: “…the fairness or unfairness of dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circumstances in that line of business, would have behaved. The tribunal therefore does not decide the question whether or not, on the evidence before it, the employee should be dismissed. The decision to dismiss has been taken, and our function is to test such decision against what we consider the reasonable employer would have done and/or concluded.”

It is submitted that, having regard to the serious behaviour of the Claimant, the Respondent’s decision to dismiss him was within the range of responses which a reasonable employer in the Respondent’s circumstances would have taken. The sanction of dismissal was proportionate to the gravity of the behaviour constituting misconduct. The dismissal was therefore substantively fair.

The Respondents further alleged without prejudice to the contention that the dismissal was not unfair, that the Complainant had failed to mitigate his loss as follows:

The Claimant has also failed to set out reasonable efforts to mitigate his loss and in particular it is submitted that it is frankly absurd that the Claimant was unable to secure alternative employment for a period of almost three months. In reply to the Respondent’s notice for particulars of loss, the Claimant has submitted just two

applications that he sent during this time. In the current buoyant and competitive construction market, it is extremely difficult for the Respondent and other employers to attract and retain staff. The Respondent tolerated the Claimant’s poor performance and conduct for a time because of this and because of the Claimant’s technically good work. Such was his conduct on this occasions that they could not further countenance the risk he posed to the Company and their staff. It is simply inconceivable that he would be out of work for more than a couple of weeks.

Section 7(2) (c) of the Unfair Dismissals Acts places an onus on a Claimant to take measures to mitigate his/her loss. The Act states that regard shall be had to what measures were taken. The Respondent in this regard refers to the standard set by the Employment Appeals Tribunal (the EAT) 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”. In this case, the Claimant has failed to demonstrate any real effort and certainly nothing which would meet the above standard and as such, the Claimant should not benefit from his own default particularly given the reason for his dismissal. This decision was relied on by the EAT in Nigel Coad -with- Eurobase Limited (UD1138/2013). The Respondent also refers to the decision of the Labour Court in Irish Sea Contractors Limited -with- Ronan Farrell UDD205 in which the Claimant also failed to demonstrate reasonable efforts to mitigate his loss.

Unfair Dismissal

Statutory Provisions

Section (6) subsection (1) of the Unfair Dismissals Acts 1977-2015 provides as follows:

Subject to the provisions of this section, the dismissal of an employee shallbe deemed, for the purposes of this Act, to be an unfair dismissal unless, havingregard to all the circumstances, there were substantial grounds justifying the dismissal.

Subsection (4) where relevant to the present case provides as follows:

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, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

…(b) the conduct of the employee…

Subsection (6) places the onus on the employer to establish that the dismissal was fair (the so-called reversed onus of proof) as follows:

In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.

Subsection (7) provides where relevant, as follows:

Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer …considers it appropriate to do so—

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal…

In the present case, dismissal was not in dispute nor was the date of dismissal which was the 22nd of December 2021. The dismissal is deemed unfair pursuant to Section 6 (1) unless the Respondent can show “substantial grounds” justifying the dismissal. In this case the Respondent relied on the conduct of the Complainant (Section 6 (4) (b)) in that he was dismissed on the basis of alleged gross misconduct.

There was a conflict of evidence regarding the meeting on the 22nd of December 2021. Other events which took place prior to this date.

The Complainant had what he perceived to be unresolved grievances in relation to his pay, pension, on-call duties and what he perceived to be the poor standard of work done by the Respondent. He had raised these issues with the Respondent, but they remained unresolved from his point of view. He discussed his general dissatisfaction with his supervisor BD in the days immediately prior to the meeting on the 22nd of December 2022. The Complainant was unsure as to the purpose of the meeting but he expected that his grievances would be discussed and he was taken aback at the attitude adopted by Mr. Dormer very early on in the meeting in response to which the Complainant adopted a defensive attitude.

Mr. Dormer was himself very taken aback by the attitude adopted by the Complainant which he perceived to be evasive, defensive, uncooperative and bordering on defiant.  He was concerned that the Complainant was not being honest in his responses to Mr. Dormer’s enquiries. He became very frustrated. However he denied that he dismissed the Complainant during the meeting. The Respondent’s representative offered the view that the dismissal as a matter of fact must have taken place after the meeting and that it arose from and was caused by the behaviour of the Complainant from the time that he walked out of the meeting. 

The Complainant was equally adamant that he was dismissed during the meeting and that this was the reason why he left the meeting and why he was anxious to collect from his work vehicle, any items of personal property which were in the vehicle, including his tools of trade.

It was common case that the meeting was a disaster and it ended abruptly when the Complainant walked out of the meeting. A row then ensued where an impasse was reached. The Respondent took the view that the Complainant was too angry and upset to be able to drive safely in a work vehicle and he was prevented from doing so. For his part the Complainant was attempting to remove his personal property (including tools of trade) from his work vehicle and when he was prevented from doing so, he refused to allow the Respondent access to the vehicle. The conflict was highly charged and volatile and it escalated throughout the day. The Gardai became involved and eventually the situation was peaceably diffused.

In the dismissal letter dated the 16th of January 2022, which was signed by Mr. Dormer, the latter states as  follows:

‘I indicated that the employment relationship could not continue in this manner and you shrugged your shoulders, smirked and told me that I had not followed the right process’

The only other person present in the meeting was Mr. D. A statement submitted to the Respondent by Mr. D was included as an appendix to the Respondent’s submission. In the absence of a minute or note of the meeting, this is the only available written record of what transpired. Mr. D himself did not give evidence.

The following extract from the Mr. D’s statement was put to Mr. Dormer in cross-examination:

‘Martin [Mr. Dormer] then said “you’re not happy Mick and we can’t continue like this, can we” Michael responded by shrugging his shoulders and laughing while saying “no”. At this point Martin was taken back obviously annoyed at the blatant disrespect and lies that were being told in such a short space of time and said “Right, in that case we can’t continue employment with you like this”. Michael immediately sat up in his chair and said “no bother” & then grinned and said “you haven’t followed the right process”’.

Apart from the above passage, a further passage appears at the end of this statement as follows:

‘Later that day after talking with Martin following the meeting, Martin apologised for “putting me on the spot like that” (to quote), about jumping to fire Michael and told me that this was unexpected & had only happened after Michael had lied twice to Martin regarding his phone being broken, and the fact that he had told us that he did not in fact say that he had other options and could leave anytime he wanted to, not to mention that he refused to show the phone to which he had reported damage’

[Emphasis added]

Mr. Dormer was hoping for and expecting a full and frank exchange of views with the end point being to clear the air and resolve all issues. However, this did not happen, and Mr. Dormer said that he became frustrated by the Complainant’s attitude. The Complainant denied that there were any issues with his company and when asked to give it to Mr. Dormer he refused because, he said according to Mr. Dormer, there was personal content on the mobile phone.  Mr. Dormer said in his evidence that the Complainant’s demeanour changed and that he (Mr. Dormer) was “not prepared for this type of meeting”. He said that the meeting “then went from bad to worse”. He said to the Complainant: “I believe you’re looking for other work” and the Complainant said “No”. I find that at this point Mr. Dormer made the statement to the Complainant that (as per the dismissal letter) “the employment relationship could not continue in this manner”.  The meeting was never intended to be a disciplinary meeting but I find that when this statement was made it then took on the character of a disciplinary meeting insofar as its outcome led to a decision to dismiss which was communicated in that meeting rather than at a subsequent formal disciplinary meeting.  I find on the balance of probability that the Complainant was given the impression during the meeting that his employment was being terminated there and then even though the word dismissal was not actually used. When Mr. Dormer said that the employment could not continue he did not seek to clarify that this was an opinion or a concern rather than a statement of conclusion on his part either immediately following making the statement in the meeting or as the Complainant was walking out. Instead, he requested the return of the company mobile and the keys of the van.

It follows that no procedures of any sort were applied during the meeting in that no specific charges were put and no responses to any such charges were sought. The Complainant was not fore warned in advance of the meeting that his dismissal was being contemplated nor was he informed that he could be accompanied to the meeting. I find that there were, at that stage - in the meeting, no grounds for  summary dismissal. Given the finding which I make that the dismissal occurred during rather than after the meeting, it follows that anything which happened immediately after that decision was announced cannot be used retrospectively to justify the dismissal which I find occurred before those events. It follows that the Complainant’s behaviour after the meeting cannot be used as a ground to justify the dismissal which had already taken place, nor can any such behaviour be cited as the basis of conduct on the part of the Complainant which may have contributed to the dismissal. The only conduct on the part of the Complainant which could be so considered is his attitude in the meeting up to the point where Mr. Dormer effectively dismissed him. Such behaviour could not by any reasonable standards have justified summary dismissal but could have been cited (possibly amongst other issues) as the basis of disciplinary charges which could then have been put formally to the Complainant at a subsequent disciplinary meeting in compliance with the disciplinary policy and the rules of fair procedures. This additional step was not taken by the Respondent on the 22nd of December  2021 nor in the time which intervened between that date and the 16th of January 2022 when the dismissal was confirmed.

My analysis of the meeting is that Mr. Dormer lost his composure as well as his patience at the meeting and this led to his utterance to the effect that the employment relationship could not continue which utterance in turn led to the Complainant’s strong response and subsequent behaviour.

It follows that the Complainant was unfairly dismissed in the course of the meeting and I do not accept that the dismissal effected during the meeting was or was capable of being justified by the subsequent conduct of the Complainant after the meeting. The fact that an appeal was offered does not affect the unfairness of the initial dismissal and in any event the Complainant did initiate an appeal. As it transpired however, no hearing or other dispute resolution process ever took place which is unfortunate since such a process, if properly, professionally and objectively managed, might have afforded the parties an opportunity to resolve their issues without the necessity to litigate them as they did, in a two-day adversarial hearing.   

For the reasons stated above, I find that the Complainant was unfairly dismissed.

Contributory conduct on the part of the Complainant

It was contended by the Respondent that even if the dismissal were adjudged unfair, any compensation awarded to the Complainant should be reduced to reflect conduct on his part which contributed to his dismissal with the meaning of Section 7 subsection (2) (f) of the Acts. In the light of the finding that the Complainant was effectively dismissed in the course of the meeting on the 22nd of December 2021 and that this dismissal took place without regard to procedures of any sort, there is no reasonable basis for a finding of contributory conduct on the part of the Complainant occurring prior to his dismissal. The alleged misconduct of the Complainant (which the Complainant denied) cannot be taken into account as the same (if it occurred in the manner alleged or at all) cannot be taken into account in assessing the basis of the dismissal or the Complainant’s possible contribution to that dismissal. Accordingly no deduction will be made to reflect contributory conduct.

Redress for Unfair Dismissal

Applicable Statutory Provisions

Section 7 subsection (1) of the Unfair Dismissals Acts provides as follows: 

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…

The parties were agreed at the conclusion of hearing that compensation would be the preferred remedy. The Complainant found alternative employment following the dismissal. Based on the agreement of the parties and on the fact that alternative employment has been secured, I deem compensation to be the most appropriate remedy.

The parties agreed at the hearing that the Complainant’s losses (assuming no deductions) came to a total sum of €8,550 gross.

Subsection (2) where relevant, 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 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…

This section requires me when assessing compensation for unfair dismissal to examine whether the loss sustained was attributable to any act or omission on the part of either party. In the present case both parties blamed the other.  The Complainant alleged that he could not seek alternative employment because his tools of trade were retained by the Respondent such that he did not get them back until the end of January 2022. The Respondent contended that the Complainant had not made sufficient and sufficiently timely efforts to secure alternative employment. As it transpired, and fortunately for both parties, the Complainant secured alternative employment within a reasonable time of his dismissal and started another employment on the 14th of March 2022. In all of the circumstances I do not consider it reasonable to make any deduction from the compensation to be awarded to the Complainant for failure to mitigate his losses.

Accordingly on the basis of the figure agreed in respect of loss attributable to the dismissal,  I deem a sum of €8,550 to represent just and equitable compensation for unfair dismissal and the Respondent is directed to pay the said sum to the Complainant. 

CA-00051162-001 The Complainant was unfairly dismissed. The Respondent is directed to pay to the Complainant the sum of €8,550 by way of compensation for unfair dismissal.

Unfair Dismissal – Gross Misconduct – Unfair Dismissals Acts 1977 – 2015: Sections 6 (1), 6 (2), 6 (4), 8– Summary Dismissal - Bunyan v United Dominions Trust[1982] ILRM 404 - Code of Practice on Disciplinary Procedures (S.I. No. 117 of 1996) Regulation 4(6) – Giblin v Irish Life & Permanent PLC [2010] IEHC 36 - Contributory Conduct – Unfair Dismissals Acts 1977 – 2015: Section 7 (2) (f) – Compensation - Failure to mitigate – Unfair Dismissals Acts 1977 – 2015 Section 7 (1), 7 (2) (a)-(c) - Sheehan v Continental Administration Co Ltd(UD 858/1999) - Nigel Coad -with- Eurobase Limited (UD1138/2013) - Irish Sea Contractors Limited -with- Ronan FarrellUDD205