UD/24/29 | DECISION NO. UDD2444 |
SECTION 44, WORKPLACE RELATIONS ACT 2015
UNFAIR DISMISSAL ACTS 1977 TO 2015
PARTIES:
(REPRESENTED BY ALASTAIR PURDY & CO SOLICITORS)
AND
DAINIS JIRGINS
(REPRESENTED BY DOVE INFORM BUREAU)
DIVISION:
Chairman: | Ms Connolly |
Employer Member: | Ms Doyle |
Worker Member: | Mr Bell |
SUBJECT:
Appeal of Adjudication Officer Decision No's: ADJ-00019843 (CA-00026300-001).
BACKGROUND:
The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 26 February 2024 in accordance with Section 8A of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 31 October 2024.
The following is the Decision of the Court:-
DECISION:
This is an appeal by Dainis Jirgens (“the Complainant”) against an Adjudication Officer’s Decision given under the Unfair Dismissals Acts 1977 to 2015 (the Acts) in a claim that he was unfairly dismissed by his former employer C&D Foods Limited (“the Respondent”).
The Adjudication Officer held that the complaint of unfair dismissal was well-founded and awarded compensation of €9,411.48.
This case is linked to EDA2455 and TED2427 and TED2428 and PWD2462.
The Complainant was assisted by a Court appointed Interpreter.
The following is the Determination of the Court.
Submissions
The Complainant commenced employment with the Respondent company on 30 January 2017. His employment was terminated on 29 January 2019 for “failing to adhere to company rules on chewing gum and the factory floor and failing to be trained on a new SOP”.
The Complainant submits that the termination of his employment was both substantively and procedurally unfair. At the outset of the hearing, the Respondent conceded that the Complainant was unfairly dismissed under the Act.
In circumstances where the Respondent has conceded that the Complainant was unfairly dismissed and no submission was made to defend the complaint in relation to either the substantive or procedural fairness of the dismissal, the Court finds that the complaint of unfair dismissal to be well founded.
Both parties agreed that the matter on appeal before the Court related solely to the appropriate redress to be awarded to the Complainant. In that regard, both parties expressed a preference for an award of compensation.
Having regard to the circumstances of this case it is clear to the Court that the remediesof reinstatement or reengagement are not appropriate forms of redress, and that an award of compensation is the most appropriate remedy.
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.
Determination
The Court finds, for the reasons stated above, that the Complainant was unfairly dismissed. The appeal is well-founded.
The Court requires that the Respondent pay to the Complainant the sum of €5,000 being the amount that the Court considers just and equitable in all of the circumstances.
The decision of the Adjudication Officer is varied accordingly. The Court so determines.
Signed on behalf of the Labour Court | |
Katie Connolly | |
TH | ______________________ |
28th November 2024 | Deputy Chairman |
NOTE
Enquiries concerning this Decision should be addressed to Therese Hickey, Court Secretary.