Complainant

Respondent

Parties

Cormac  Smith

Mmd Construction (Cork) Limited

Representatives

William Maher BL instructed by  Malcomson Law

Des Ryan, BL instructed by  RDJ LLP

Act

Complaint Reference No.

Date of Receipt

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

CA-00056578-001

08/05/2023

On 8 May 2023, the Complainant, through his Solicitor submitted a claim of unfair dismissal against the Respondent, Construction Company.

The Employment as Contracts Manager spanned 14 June 2001 to 18 November 2022. The Complainant also held a dual role as a Director at the business.

Both Parties prepared and submitted comprehensive submissions in the case.

Both Parties acknowledged that the Parties were also engaged in concurrent Higher Courts Parallel Proceedings during April 2024 and both parties committed to navigating the claim for statutory unfair dismissal, particular to the WRC.

This was achieved.

The Complainant applied for accommodation of a Stenographer at Hearing. The Respondents views were canvassed and considered. I confirmed that a Stenographer was permitted, once paid by the complainant side as applicants and copies to be shared with the Respondent Representatives and the WRC.

I have maintained my own notes of the case, and those notes inform this decision.

The Respondent is a family run Construction Business.

The Respondent furnished a rebuttal to the claim for statutory unfair dismissal in the outline submission received prehearing.

The Respondent representatives referred to the ongoing Parallels proceedings at the Higher Courts during the month of April 2024 and sought the space to navigate both distinct proceedings.

The Respondent was troubled by the vacuum in a submitted table of loss and mitigation in respect of the claim for unfair dismissal. The Respondent put forward the premise on the papers, that in the event that a remedy was to be awarded, then it should reflect a composite reduction to reflect the complainant’s own conduct.

At the commencement of hearing, the Respondent requested some time to work with the Complainants delegation.

I agreed to this and facilitated some space for the parties to engage, separate to the hearing space.

Time passed and I continued to seek updates from the parties.

At midafternoon, the Parties returned to the hearing room and confirmed that the status of the first claim for statutory unfair dismissal was conceded by the Respondent and they did not propose to lead evidence now in defence of the claim. The written submissions remained before the WRC.

This position was clearly accepted by the Complainant.

It remained for me to seek evidence on the remedy sought and I am grateful to the parties for their attention to this request and for the subsequent documentation received.

I understand that this claim is  running in tandem with an already mentioned Parallel Proceedings at the Higher Courts and I wished the Parties well in that regard.

The Respondent acknowledged the withdrawal of CA-00056578-002.  

Response to the Complainants evidence on remedy sought.

The Respondent accepted the Complainant evidence and did not avail of cross examination. The Respondent did not comment on the table of loss or mitigation and accepted the annual earnings and period of unemployment relied on by the Complainant.

The Respondent did not lead evidence on the remedy sought.

The Complainant was employed as a Contracts Manager with responsibility for new business acquisition and company profile development through his Industry connections.

The contract of employment for job title Company Director was signed by both parties on 4 October 2017, post-dating the commencement in the role of contracts manager.

The Complainant was part of an extended family, many of whom were both directly and indirectly associated with the operation of the respondent business.

The written submissions catalogued a steady demise in the employment relationship which culminated in the complainant’s dismissal, which cited gross misconduct in November 2022.

The Complainant found new work on 16 January 2023, and he sought the remedy of compensation in respect of his dismissal.

The Complainants representatives submitted that the dismissal was wholly unfair and procedurally unsound.

As the day progressed and the parties actively engaged in settlement discussions, the Respondent Representatives confirmed that they were conceding the dismissal as being unfair.

The Complainant side then placed Mr Smith into evidence on his quest for the remedy of compensation alone, at my request.

The Complainant confirmed acceptance of the Respondent declaration of unfair dismissal.

 He withdrew a second employment law claim CA-00056578-002 at this juncture. That matter is deemed closed.

Evidence of the Complainant under Oath:

The Complainant confirmed that he earned an annual salary of €105.277 per annum. He submitted that following his dismissal that he had 8 weeks, 58 days without work. He contended that his financial loss stood at €16, 196.40 and sought that award as a remedy in the face of the now conceded unfair dismissal by the Respondent.

He confirmed that he had engaged his best endeavours to find new work and was available for new work immediately following his dismissal .

This amounts to uncontested evidence as the Respondent accepted this evidence without question.

The Complainant clarified that he had simply overlooked the opportunity to cover his period of unemployment by applying for Job Seekers benefit. I explained the significance of the question in my seeking to establish mitigation. i.e was he available for work ?

The Complainant representatives supplemented this evidence by submission of pay slips and a welcome table of loss. These were shared with the Respondent but did not prompt feedback.

When I received carriage of both of the complaints which originated in this case, I was expected to complete a decision in both complaints.

I prepared for that task by reading both prepared submissions in advance of my plan to take evidence in the case .

Both parties submitted detailed submissions in support of their respective responses to the claims. I acknowledge the high level of preparation completed by both parties.

At the commencement of the hearing, the parties sought to engage to scope out any potential to resolve the claims.

As the Parties are aware, time allocated to hearings is very precious, but both parties had been frank that they were seeking to navigate a respectful pathway through the narrow jurisdiction of the claims before the WRC and those extant at the Higher Courts.

I respected the Parties analysis and allowed time as requested and facilitated some private space away from the hearing room. I asked the parties to keep me abreast of any developments .

Sometime later, both Parties appeared and provided the update of progress having been made.

I welcomed that progress and commended the Parties on their work.

1 The Respondent conceded that the dismissal of 18 November 2022 was unfair, and they did not propose to lead  evidence in that aspect of the claim.

2 This was accepted by the Complainant.

3 Both Parties accepted my invitation to lead evidence  on the remedy sought, that of compensation.

4 CA-00056578-002 was withdrawn by the complainant and accepted as closed by the Respondent.

The claim for statutory unfair dismissal has been conceded by the Respondent. It falls to me now to explore a suitable remedy in the matter.

Having read both submissions and having considered the complainants evidence on his preferred remedy. I canvassed the Respondent whether they had any comment to make on the remedy sought? State (Irish Pharmaceutical Union) v EAT 1987, ILRM 36

The complainants preferred   remedy is his  financial loss relied on in evidence , which was not   contested by the Respondent.

Having considered the Parties stated positions and my own clarifications received, I have found that the concession of unfair dismissal was an important declaration to place closure on what must have been an extremely  challenging situation and where family lines must be extremely strained.

My jurisdiction on remedy is provided in section 7 of the Act.

I consider it necessary to  express a very strong preference for the only viable remedy open to me, that is to move forward on a remedy of compensation. There is simply no merit in either of the step back remedial measures of re-instatement or re-engagement. Those doors are firmly closed .

Redress for unfair dismissal.

7.— (1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following F50[the adjudication officer or the Labour Court], as the case may be, considers appropriate having regard to all the circumstances:

(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,

I am satisfied that the Complainant incurred the financial loss of €16, 196.00. I am satisfied that he attempted to mitigate that loss.

 I find it just and equitable that he should be awarded that full loss based on the unique circumstances of this case and in the spirit of moving forward, following a period of clearly  apparent workplace conflict, now over.

I wish both parties well for their respective futures.

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

The claim for unfair dismissal has been conceded by the Respondent and accepted by the Complainant.

The Complainant was unfairly dismissed.

I award the Complainant €16, 196 for his financial loss arising from the circumstances of the dismissal, in respect for his endeavours to mitigate that loss and in the recognition of the need for closure in his workplace related conflict.

Claim for Unfair Dismissal