Complainant

Respondent

Parties

Artur  Allushi

Gcd Facades Limited

Representatives

Mr. Peter Murphy, McInnes Dunne Murphy LLP

Mr. Conor McCrave, Setanta Solicitors

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-00063257-001

05/04/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00063257-002

05/04/2024

The Complainant commenced employment on 6th May 2019. The Complainant was a permanent, full-time member of staff, in receipt of an average weekly wage of €674.68. At all relevant times the Complainant’s role was described as that of “fitter”. While it was accepted that the Respondent dismissed the Complainant, the date of dismissal was in dispute between the parties.

On 5th April 2024, the Complainant referred the present set of complaints to the Commission. Herein, he alleged that the Respondent had unfairly dismissed him and failed to discharge his statutory notice payment. By response, the Respondent accepted that the Complainant was unfairly dismissed within the meaning of the impleaded legislation, and that the present matter would relate to the issue of losses only.

A hearing in relation to this matter was convened for, and finalised on, 15th November 2024. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced by either party in the course of the hearing. This matter was heard in parallel to those bearing file references ADJ-00050975 and ADJ-00051574, and this decision should be read in conjunction with the same.

Both parties issued submissions in support of their positions in advance of the hearing. In circumstances whereby the only matter to be decided related to the issue of losses, only the Complainant gave evidence. Said evidence was given under oath and was opened to cross examination by the opposing side.

No issues as to my jurisdiction to hear the complaints were raised at any stage of the proceedings.

In evidence, the Complainant stated that he was informed that he was to be placed on paid suspension on 7th December 2023. Thereafter, on 20th December the Complainant was paid for accrued but untaken annual leave. As matters transpired, this was the last payment issued to the Complainant. By subsequent text message, the Respondent informed the Complainant that some matters were being finalised and that he should receive confirmation of his dismissal thereafter.  While the Complainant received confirmation of his dismissal in January 2024, he submitted that the actual date of his dismissal was 20th December, the date on which he ceased to be paid.

Regarding mitigation of loss, the Complainant submitted that he secured alternative employment on 14th March 2024, some three months following his dismissal. In this regard, the Complainant submitted that he was dismissed just prior to the Christmas break and this caused a delay in his securing alternative employment. While the Complainant accepted that the labour market is strong in respect to his skills, he submitted that he could only commence a job once the same became available. In answer to a question posed in cross-examination, the Complainant accepted that he did not examine any roles outside of his area of expertise.

By submission, the Respondent stated that the Complainant’s date of dismissal occurred in January 2024, and that his losses should run from that date. In this regard, they accepted that the Complainant was placed on paid suspension on 7th December 2023. They further accepted that the Complainant’s salary was suspended on 20th December 2023 and that he was paid his accrued annual leave on that date. Notwithstanding the foregoing, the Respondent submitted that the Complainant’s date of termination was 24th January 2024, the date on which the same was confirmed by correspondence.  In this regard the Respondent referred to correspondence issued by the Complainant following his dismissal and the complaint form itself, both of which listed the latter date of the date of dismissal.

Regarding the Complainant’s losses, the Respondent submitted that the Complainant had failed to mitigate the same, particularly in circumstances whereby his skill set was in high demand.

Regarding the present case, the Respondent has accepted that the dismissal of the Complainant was unfair for the purposes of the impleaded Acts. In such circumstances the only matter discussed during the hearing was the Complainant’s losses and his efforts to mitigate the same.

The first point of contention in relation to the same related to the Complainant’s date of dismissal, and the date from which his losses would begin to accrue. In this regard, the Complainant submitted that the same was the 20th December 2023, this being the date on which the Respondent stopped paying the Complainant. In the alternative, the Respondent submitted that the actual date of dismissal was 24th January 2024, the date on which the Complainant’s dismissal was confirmed by way of correspondence.

In this regard, it is noted that the Complainant not only ceased to be paid from 20th December 2023, but that he received all outstanding annual leave accrued on this date. Such payment for accrued but untaken annual leave only occurs when an employee is being terminated, and certainly this indicates that the Respondent gave some instruction that the Complainant was to be dismissed from this date. In addition to the same, the Complainant opened revenue documentation indicating that the Complainant had been removed as an employee with Revenue in early January 2024, again supporting his contention that he had been dismissed in advance of correspondence confirming the same. Finally, it is noted that the contemporaneous messages between the parties indicate that the Respondent had confirmed his intention to dismiss the Complainant, with confirmation of the same to follow. Having regard to the accumulation of foregoing points, I find that the Complainant was dismissed on 20th December 2023, and that his losses begin to accrue from that date.

Regarding the Complainant’s mitigation of losses, it is apparent that he found alternative employment approximately three months later. In this regard, I accept his evidence that he was dismissed just prior to the Christmas break, and that it would be unreasonable to expect him to find work during this period. While I further accept that the job market is favourable for persons of the Complainant’s skill set, the fact remains that applying for a new role, interviewing for the same and awaiting a prospective commencement date will always take a period of time, even for the most dedicated of applicants. In such circumstances I find that a three-month period of unemployment is not unreasonable in these circumstances, and that the Complainant has mitigated his losses as mandated by the Act.

CA-00063257-001 Complaint under the Unfair Dismissals Acts

I find that the Complainant was unfairly dismissed by the Respondent.

In relation to redress, Section 7(1) empowers me to order re-instatement, re-engagement or a payment of compensation to be made to a successful Complainant under the Act. Given that neither party wished for the employment relation to recommence, compensation is the most appropriate redress in this circumstance.

Having regard to the totality of evidence present by the parties, I award the Complainant the sum of €8,096.16, or the equivalent of 12 weeks’ salary, in compensation.  

CA-00063257-002 Complaint under the Minimum Notice and Terms of Employment Act

In circumstances whereby the Complainant was dismissed without notice, I find that the complaint is well-founded.

In circumstances whereby the Complainant was employed for greater than two, but fewer than five, years, I find that he is entitled to be statutory notice payment of two weeks. In such circumstances I award him the sum of €1,349.36 in compensation.

Losses, Mitigation, Alternative Employment, Date of Dismissal