Complainant

Respondent

Parties

Jeroen  Proos

Human + Kind Limited

Complainant

Respondent

Anonymised Parties

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Representatives

Cian Cotter B.L.,  instructed by  Fitzgerald Legal & Advisory LLP

Non-attendance

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-00054928-001

08/02/2023

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 respondent did not attend for the hearing of this matter.  The WRC was informed a number of days before the hearing that the respondent was in liquidation.  The liquidator subsequently informed the WRC that they would not be attending the hearing of this matter but relied upon documentation submitted prior to the hearing.  No witnesses attended the hearing for the respondent to attest the veracity or otherwise of the documentation.  The documentation submitted therefore remained untested.

The complainant attended the hearing and gave his evidence under oath.

The liquidator did not attend the hearing of this matter.  No witnesses attended the hearing to support the respondent’s version of events.  The respondent made certain allegations in writing regarding the complainant’s performance, however they were unable to be tested.

The complainant submitted that he co-founded the respondent Company in March 2013 and that he is a former director and is a minority shareholder and that he was an employee of the respondent from its incorporation up until his unfair dismissal on the 14 November 2022. At all material times, he was employed as an Executive.

The complainant submitted that he commenced employment on a salary of €75,000 (gross) per annum. In August 2019, his salary was increased to €96,000 and in January 2021, it increased again €126,000 (€10,500 per month). The complainant submitted that thereafter he was paid the sum of €10,500 gross monthly in arrears until such time as his salary was unlawfully reduced by the respondent. The complainant submitted that at all material times he was entitled to be paid the sum of €10,500 gross per month.

The complainant submitted that he was notified by way of emails dated the 15 and 16 November 2021 that his employment was being terminated. Pursuant to his amended employment contract he was entitled to a 12 month notice period in the event of termination of his employment. The complainant’s employment terminated on the 14 November 2022.

The complainant submitted that by email dated the 15 November 2021, the CEO wrote to him under the heading “termination of employment” stating, inter alia “I’d like to go ahead and give notice so we can start working down the notice period and we will either re-negotiate your employment terms by the end of the notice period or your employment will terminate”.  The complainant submitted that he received another letter of notification of the termination of his employment dated for the following day.

The complainant submitted that the termination of his employment was grossly unfair within the meaning of the Unfair Dismissals Act 1977, not least based upon the fact that there was no process whatsoever and is submitted that this amounts to a summary dismissal. Prior to the above correspondence, the complainant was not warned by the respondent that he was at risk of being dismissed from his employment.

The complainant submitted that while the CEO made reference to a slowdown in business, the respondent did not conduct a redundancy process and the complainant’s role was not made redundant. He was not paid statutory redundancy and his employment was terminated on the 14 November 2022 in accordance with his contractual notice period of twelve months. During the notice period, there was no discussions whatsoever between the parties in relation to a new employment contract.

The complainant noted that he was not afforded a basic and fundamental right of fair procedures and due process. There was no process whatsoever. It is also noted that he was not afforded the right to appeal the decision to terminate his employment.  The complainant submitted that the respondent terminated his employment and therefore it bares the onus to prove the dismissal was fair.

The complainant submitted that, without prejudice to the contention that the onus is on the respondent to prove that the dismissal was fair, it is noteworthy that in their own submissions, the respondent unequivocally states that the complainant’ performance was poor and that he did not fulfil commitments. The complainant submitted that he was never subject to any investigation or disciplinary proceedings at any time during his employment.

The complainant concluded a contract of employment with the respondent, and this originally provided a 24 month notice but was subsequently reduced to 12 months.

As regards mitigation of loss the complainant submitted that he sought alternative employment and although he received some income from self-employment his income was nowhere near that which he was entitled to under his contract.

The complainant submitted that his dismissal was wholly unfair as a matter of law. A dismissal is assumed to be unfair unless there are substantial grounds justifying the dismissal - section 6(1) of the Unfair Dismissals Acts 1977 to 2015

“(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.”

The complainant noted that section 6 (4) provides that certain reasons are deemed not to be unfair pursuant to the Act specifically as follows:

“(4) Without prejudice to the generality of sub-section (1) of the 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 and mainly from one or more of the following;

a. The capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do.

b. The conduct of the employee.

c. The redundancy of the employee.

d. The employee being unable to work and continue to work in the position which he held without contravention of a duty or restriction imposed by or under any statute or instrument made under statute.”

The complainant submitted that the decision to dismiss cannot be deemed fair in circumstances where the dismissal was not grounded upon one of the categories set out within Section 6 of the Act. No allegation of misconduct was put to the complainant prior to the decision to unfairly dismiss him.

The complainant submitted that the High Court has held that the right to terminate the Contract of Employment summarily arises where the ground for dismissal must be such to amount to the repudiation of a contract on the part of the employee as per Power v Binchy (1929) 64 ILTR at 35.

The complainant noted that the High Court has held that misconduct can be recognised as one of the grounds for summary dismissal as considered in the High Court case of Glover v BLN Limited (1973) IR 388. In the case of A General Operative v A Beef Processor (ADJ 00007571) the Workplace Relations Commission considered conduct which may warrant dismissal on the basis of a gross misconduct including a refusal to obey lawful and reasonable orders of the employer. In that case, the employee had left his workstation without permission and the employer had afforded the employee fair procedures in its investigation and disciplinary process. The Workplace Relations Commission held that it is not for the Adjudicator to establish if the complainant was guilty of an act of gross misconduct or not. It was held:

“Rather it is for me to consider all the facts and to determine if there are substantial grounds to justify the dismissal and see what a reasonable employer would do in the same position given the same set of circumstances. It is also my role to determine if fair procedures were applied to the dismissal and the disciplinary process.”

In the above-mentioned case, the Workplace Relations Commission found that the dismissal of the employee for acts of insubordination was reasonable.

The complainant noted that in determining whether a reasonable employer would have dismissed the employee, the High Court held in the case of Bank of Ireland v O’Reilly [2015] IEHC 241 that:

 “…the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in section 6(4) which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal.

Section 6(7) makes clear that the court may have regard to the reasonableness of the employer’s conduct in relation to the dismissal. That is however not to say that the court or the other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned.

I respectfully agree with the views expressed by Judge Linnane in Allied Irish Banks v Purcell [2012] 23 ELR 189, where she commented (at p.4): “Reference is made to the decision of the Court of Appeal in British Leyland UK Ltd v Swift [1981] IRLR 91 and the following statement of

Lord Denning MR at page 93: ‘The correct test is: was it reasonable for the employer to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably takes a different view.’

It is clear that it is not for the EAT or this court to ask whether it would dismiss in the circumstances or substitute its view for the employers’ view but to ask was it reasonably open to the respondent to make the decision it made rather than necessarily the one that the Eat or the court would have taken.”

The complainant noted that in determining whether the dismissal was fair, the EAT held in Hennessy v Read & Write Shop Ltd (UD 192/1978) the relevant test to apply is reasonableness to:

(a) the nature and extent of the enquiry carried out by the respondent prior to the decision to dismiss the claimant; and

(b) the conclusion arrived at by the respondent, that on the basis of the information resulting from such enquiry, the claimant should be dismissed.

The complainant suggested that in determining claims of gross misconduct, the EAT set out the appropriate test in O’Riordan v Great Southern Hotels (UD 1469/2003) as follows:

“In cases of gross misconduct the function of the Tribunal is not to determine the innocence or guilt of the person accused of wrong doing. The test for the Tribunal in such cases is whether the respondent had a genuine belief based on reasonable grounds arising from a fair investigation that the employee was guilty of the alleged wrongdoing.”

The complainant noted further that in the case of Mullane v Honeywell (UD 111/2008) the EAT held in determining proportionality that:

“The Tribunal must decide whether the conclusion that the offending act had been perpetrated by the claimant was reasonable on the balance of probabilities and that dismissal was a proportionate response.”

As to the question of what the principles of natural justice require, generally, in workplace investigations, the complainant submitted that this was addressed by the Supreme Court in the case of Connolly v McConnell [1983] I.R. 172, where the Supreme Court held as follows:

“When a person holds a full-time pensionable office from which he may be removed, and thus be deprived of his means of livelihood and of his pension rights, the domestic tribunal or body having the power to remove him are exercising quasi-judicial functions. Therefore, they may not remove him without first according to him natural justice. He must be given the reasons for his proposed dismissal and an adequate opportunity of making his defence to the allegations made against him–audi alteram partem. The members of the Tribunal must be impartial and not be judges in their own cause–nemo iudex in causa sua. They must ensure that the proceedings are conducted fairly.”

In the case at hand, the complainant was not afforded natural justice or fair procedures in respect of any ground which may have supported the decision to dismiss. He was not notified of the grounds supporting the case to dismiss him nor was he given clear reasons for his proposed dismissal. The complainant was not afforded an adequate opportunity to make any defence or argument in support of his continued employment.  No process was adopted by the respondent. The complainant was afforded no due process.

The complainant noted that in so far as there was any allegation of wrongdoing, the High Court has determined that the principles of natural justice and fair procedures require that an employee be informed of the allegations against him and be afforded the opportunity to answer those allegations. As Barron J held in Flanagan v University College Dublin [1988] IR 724:

“The principles of natural justice involved relate to the requirement that the person involved should be made aware of the complaint against them and should have an opportunity both to prepare and to present their defence.”

The complainant noted that the judgment of the High Court in Mooney v An Post [1998] 4 IR 288 sets out what is required of employers when conducting investigations into misconduct:

“Certainly, the employee is entitled to the benefit of fair procedures but what these demand will depend upon the terms of his employment and the circumstances. Certainly, the minimum he is entitled to is to be informed of the charge against him and to be given an opportunity to answer it and to make submissions.”

The importance of fair procedures, generally, being applied and an employer adhering to the contractual entitlements of an employee in a process involving a serious sanction, including dismissal, has been recognised by the High Court As noted by Laffoy J in Giblin –v- Irish Life & Permanent PLC [2010] IEHC 36:

“First, in conducting a process to determine whether the plaintiff should have a serious sanction, including the most serious sanction available, namely, dismissal, imposed on him, the defendant must act in accordance with the terms of the Plaintiff’s contract of employment, including the implied term that the Plaintiff, as employee, is entitled to the benefit of fair procedures (Glover v BLN [1973] IR 388). However, it is well recognised that what fair procedures demand depends on the terms of the plaintiff’s employment and the circumstances surrounding his purported dismissal.

It is not to be inferred from this decision that I consider that it is not appropriate for executives of the defendant who are involved in the human resources aspects of the defendant’s management to conduct the type of investigation which was conducted in relation to the plaintiff. Nor is it to be inferred that I am of the view that the person or persons who conduct the “thorough investigation” to be conducted under para. (iv) of the Disciplinary Procedures in all cases should not be the decision maker as to whether the conduct of the employee being investigated warrants a serious sanction such as dismissal. A one stage inquisitorial process may be appropriate in many cases.”

In the case of Joyce v Colaiste Iognáid [2015] IEHC 809, Barret J equated natural justice with “the opportunity to respond” to allegations, at paragraph 84 of the judgment, in accordance with the fundamental principle of natural justice, audi alterum partem.

In the case at hand the allegations made against the complainant constituted findings of fact(s) adverse to him, prior to any investigatory process. The complainant was afforded no reasonable opportunity to prepare and present his defence. What limited defence he did prepare and set out in correspondence was simply ignored by the respondent.

The complainant submitted that the respondent has failed to establish any basis to justify or support the decision to dismiss. If such a basis existed, which is not admitted, then the respondent failed to afford the complainant with any due process or fair procedures in terms of his dismissal, rendering the dismissal inherently unfair. As a result, the complainant herein was unfairly dismissed from his employment.

Oral evidence:

The complainant stated that he co-founded the company in 2013 and was the general manager with responsibility for sales and marketing.  He noted that the company produces natural skin care products for international markets. The complainant noted that there was a longer notice period in his contract then as usual, but this was inserted by agreement at the outset and subsequently amended.

The complainant stated that he got a phone call in early November from the CEO and sought to renegotiate his contract. He noted that the respondent claimed that he did not provide the employment services outlined in his contract but disputed that. He noted that the CEO accessed the details from his employment contract eventually.

The complainant stated that the employment relationship was challenging. He stated that redundancy was never discussed and that no process was followed. He stated that he was never offered a right of appeal regarding his termination. He noted that his company phone and laptop were not returned.

The complainant noted that in 2021 the Board of the Company decided to pay him less, as a result of water damage to a shipping container that resulted in a €300,000 product loss.

As regards his mitigation of loss, the complainant outlined his efforts to get alternative employment. He noted that he engaged with several recruitment agencies and made several zoom calls. He noted he was willing to relocate and stated that he had interviews with several large multinational companies. He noted that he applied for several jobs with another multinational recruitment agency, but it was ultimately not successful. He noted that he reached out to his network of contacts seeking employment but was not successful there either.

The complainant noted that he set up his own company and was contacted to provide some services to various companies on the sales side of things.  He gave details of the amounts that he made over the months preceding the hearing.  He noted that he is still seeking something permanent.  That complainant outlined have his job search was almost full time and included looking on an international basis.  He stated that he thought that his age was a big problem in finding alternative employment.

Section 6(1) of the Unfair Dismissals Act, 1977 states that:

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.

Although the respondent indicated in written submissions that there may have been grounds justifying dismissal, as no appearance was made on the part of the respondent or possible witnesses, this suggestion remains untested.  The complainant submission, supported by his oral testimony, is that he was dismissed without reason and without having the benefit of any procedures nor a right of appeal.  This testimony, although tested somewhat by the adjudicator, was not challenged.  Therefore, I find that the dismissal in this case, in accordance with section 6(1) of the Act, is deemed to be an unfair dismissal.

Section 7(1) of the Act states 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 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 under section 17 of 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.

The complainant submitted that his salary amounted to €126,000 per annum (€2,423.08 per week.) He noted however that he was paid lesser amounts than that during his notice period.  The shortfall in respect of his salary is the subject of a different adjudication decision.  However, he submitted a contract of employment and provided oral testimony supported by payslips documentation to substantiate the amount of his annual salary.

The complainant gave evidence of his efforts to secure alternative employment after his dismissal.  However, I note that he had negotiated a longer notice period than most, some 12 months, which is longer than the statutory period to which he is entitled, namely 4 weeks (for employment less than ten years - Section 4(2) of the Minimum Notice and Terms of Employment Act 1973, as amended). The respondent did not outline any efforts that he made during the prolonged period of his notice but indicated that he waited until his dismissal took effect before he began to engage in efforts to find alternative employment. 

He noted that he registered with a recruitment agency and made several zoom calls.  He indicated that he had an interview with an international cosmetics company and then registered with another recruitment company where he applied for several jobs but was ultimately unsuccessful.   He noted that he reached out to his network and mentioned two names in that regard.  He noted that he set up as a sole trader and provided a small number of days of services to clients.  He noted that he had brought in approximately €7,500 during February and March and had secured some temporary work for the coming months at a salary of €4,400 per month.  He noted that his age is a big problem in looking for work and noted that he could sense it.

Given the prolonged nature of the complainant’s notice period, I consider that the is an onus on him to seek to mitigate his prospective losses during this, unprecedentedly long, notice period.  In the circumstances, I consider that his prospective losses can reasonably be capped at 12 months.  As his salary amounted to €126,000, I consider that this amounts to 100% of his possible losses attributable to the dismissal.

The complainant provided documentary evidence of engaging with 5 recruitment agencies during November and December of 2022 and outlined a limited number of conversations he had concerning his job search.  He set up his own company and began trading during 2023 and was able to earn €25,000 during the first half of the year.  In the circumstances I am satisfied that the complainant has made reasonable efforts to mitigate his loss following his dismissal and accordingly, I consider that an award of €101,000 is just and equitable having regard to all the circumstances.

Having regard to all the written and oral submission made in relation to this complaint, my decision is that the complainant was unfairly dismissed.  His financial loss has been considered and an award of €101,000 is deemed just and equitable in all the circumstances.

Unfair dismissal – no appearance by respondent – unfair dismissal established – compensation of the financial loss attributable to the dismissal – limited by long period of notice