Complainant

Respondent

Parties

Paul  McCann

Medimec Limited

Complainant

Respondent

Anonymised Parties

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Representatives

Katherine McVeigh, B.L instructed by   Hamilton Turner Solicitors

Peter Dunlea, Peninsula Services

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-00060596-001

19/12/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00060596-002

19/12/2023

The respondent made no submissions on the case in advance of the hearing.  Shortly before the hearing the respondent sought a postponement submitting documentation to the WRC.  The postponement was not granted due to the limited nature of the documentation submitted.

The respondent was represented at the hearing and the representative sought an adjournment of the case.  No additional documentation was provided, and no submissions were made as to the substantive case.  In the circumstances the adjournment was not granted and the case proceeded.

The complainant gave his evidence under affirmation, and he was cross examined by the respondent’s representative.

The complainant submitted that he was handed a letter on 30 June 2023 terminating his employment. He sought clarification of the position, but none was forthcoming. It was submitted that there was a difficulty on the employee in mitigating his losses as he was not provided with copies of his certifications which would have enabled him to seek alternative employment in the field.

The complainant was seeking compensation in respect of current and prospective losses.

Complainant evidence:

The complainant stated that he worked with the respondent from 5 October 2020 as a medical gas installer. He stated that he was a qualified plumber since 2010 and that he had to undergo a period of training to receive a ‘competent person’ certificate in respect of his job as a medical gas installer.  He stated that he was given no prior notice of his termination and was given a letter letting him go on 30 June 2023.

The complainant stated that he sought copies of his qualifications from his employer, but they were not forthcoming.  He sought to obtain copies of his qualifications through his union, but this was also unsuccessful.  The qualification expired in November 2023.  The complainant stated that he registered with the Department of Social Protection and undertook a number of courses with them.  He was due to undertake some GID courses with them in respect of Domestic gas installation but that these were cancelled.  In January, after another DSP funded course was cancelled, he paid for a course out of his own pocket.  The complainant gave evidence of having sought two jobs in April and May 2024, neither of which he got. The complainant stated that he is currently finishing off a ‘Start your own Business’ course.

The complainant submitted his payslip indicating that his basic pay amounted to €53,376.96 per annum.

Cross examination:

The respondent representative put it to the complainant that he did not seek to mitigate his loss.  In response the complainant noted that he applied for two positions and that he sought his qualification certificates form the respondent but that they were not forthcoming despite a number of attempts to obtain them.

An oral submission was made by the respondent’s representative indicating that the complainant was merely laid off.

CA-00060596-001 Unfair Dismissal

The complainant submitted that he was unfairly dismissed and provided a letter indicating that his employment was terminated due to “a downturn in incoming works and projects”.  No written or oral evidence was submitted by the respondent to support this statement.  The complainant in his evidence stated that no other staff were made redundant and that to his knowledge, there was no downturn in the industry at that time.

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

Section 6(4) of the Act, states as follows:

(4) 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:

(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, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

Having regard to the uncontroverted evidence presented by the complainant, I am not satisfied that the dismissal of the complainant resulted from a redundancy.  Section 6(1) deems a dismissal of an employee to amount to an unfair dismissal unless there are substantial grounds justifying the dismissal.  I am not satisfied that any substantial grounds justifying the dismissal have been put forward.  Accordingly, I find that the complainant was unfairly dismissed.

As regards loss of earnings, the complainant gave evidence of his efforts to retrieve copies of his certifications from the respondent.  He stated that he was not provided with the copies of his certification that would allow him to seek to work in the area he was recently trained in.  These expired in November.  I am satisfied that the complainant attempted to mitigate his losses somewhat by seeking these qualifications up until the end of November 2023.  Thereafter he sought to undergo retraining but through no fault of his own, successive training courses were cancelled.  In January, following cancellation of another retraining course via public methods, the complainant paid for his retraining himself.  However, during this entire period he did not apply of any alternative positions.  Accordingly, I find that the complainant tried to mitigate his losses to a certain extent until the end of January.  In that regard, I find that his loss of earnings amounts to 7 months pay, i.e.€4448.08 x 7 = 31,136.56.  However, I am reducing the award by 60% due to the lack of effort on the part of the complainant – he did not apply for any positions doing anything during the entire period, even though he was a qualified plumber during a period of full employment for that sector.

Upon completion of that retraining course and bearing in mind that the complainant was a qualified plumber, he only applied for two positions during the following 10 months.  On the basis of his lack of attempts to seek alternative employment, apart from two applications that he made during the entire period, I am not making any further award to the complainant

In the recent case of C&D Foods Ltd and Dainis Jirgins (UD/24/29), the Labour Court considered a similar set of circumstances and notes as follows:

“The Complainant was in receipt of weekly salary of €542.97 when his full-time position terminated on 29 January 2019.  The purpose of any award of compensation for unfair dismissal is to compensate for financial losses actually incurred as a result of the dismissal. The limit of 104 weeks’ remuneration is a limit on the total amount of compensation that can be awarded, rather than in respect of the time for which loss can be claimed. 

In determining the amount of compensation payable under the Act the Court has regard to s.7(2) of the Act which sets out as follows: -

“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,

(d) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,

(e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, and

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.”

In determining the amount of compensation payable, the Court is obliged under s.7(2)(c) of the Act to look at the steps taken by the Complainant to minimise his financial losses after the termination of his employment. The Complainant gave evidence of his efforts to mitigate his financial loss.  He said that he actively looked for jobs and attended several interviews, however, it was difficult to find a job during Covid. He did not apply for factory jobs, as they were not actively recruiting during the Covid pandemic. He did not wish to do nightwork. He undertook language classes for six to nine hours a week to improve his English and increase his chances of finding a suitable job. Since 19 October 2020 he secured a part-time role with a community employment scheme. He is not actively seeking another role as he is happy with that job for the moment. 

When cross examined, the Complainant could not say when or how many jobs he had applied for or recall the names of companies where he attended for interview. He accepted that he began looking for another job prior to his dismissal, as he was not happy working night shifts.

There is an overall duty on a Complainant to mitigate losses by taking diligent steps to secure comparable suitable employment.  The Court found the Complainant’s testimony about his efforts to secure employment following the termination of his employment to be vague and lacking in detail. The Complainant gave no details of attempts to mitigate his loss having secured a part-time position with a community employment scheme in October 2020. 

In the Court’s view the Complainant’s efforts to mitigate his loss did not meet the relevant test as set out in UD858/1999 Sheehan v Continental Administration where the Employment Appeals Tribunal stated:

“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 time to be profitably employed in seeking to mitigate his loss”.

On the facts as presented, and having regard to all of the circumstances, the Court determines that the appropriate amount of compensation for the Complainant’s loss that is just and equitable in this case is €5,000”

The complainant only applied for two positions during the 18-month period since his employment was terminated.  Having regard to all the evidence presented in relation to this case, I am satisfied that an appropriate amount of compensation for the complainant’s loss that is just and equitable in the case is €12,454.62

CA-00060596-002 Redundancy Payment

As the termination for the employment has been deemed to be an Unfair Dismissal, the issue of a redundancy payment does not arise.

CA-060596-001 Unfair Dismissal

Having regard to all the written and oral evidence presented in relation to this complaint, my decision is that the complainant was unfairly dismissed. I make an award of redress in favour of the complainant in the amount of €12,454.62

CA-060596-002 Redundancy Payment

As the termination for the employment has been deemed to be an Unfair Dismissal, my decision is that the issue of a redundancy payment does not arise, and I disallow the complainant’s appeal.

Unfair dismissal – redundancy situation not established – complainant unfair dismissed – award in favour of the complainant – Redundancy payment – payment does not arise due to unfair dismissal.