Complainant

Respondent

Parties

Linda  O'Shea Farren

Contemporary Music Centre CLG

Representatives

McInnes Dunne Murphy LLP (1st hearing date)

Self-represented (2nd hearing date)

Stephen O’Sullivan BL instructed by BC Law

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-00054477-001

12/01/2023

The complainant joined the respondent organisation in February 2017.  She was summarily dismissed from the role of Projects, Programmes & Events Manager on 28 September 2022.

A formal investigation of allegations against the complainant, carried out by a third party on behalf of the respondent, concluded in September 2022 that the complainant did not have a case to answer.  The complainant was dismissed by the respondent on the same day she was informed of the outcome of the formal investigation.

The respondent conceded the complainant’s dismissal was unfair at the outset of the first hearing date before the Commission on 20 June 2023.

The material issue for adjudication was redress for the complainant’s unfair dismissal. 

The complainant gave sworn evidence.

She was summarily dismissed on 28 September 2022 shortly after receiving a report on foot of a formal investigation into complaints against her, which was carried out by a third party on behalf of the respondent.  The report completely exonerated the complainant.

The respondent did nothing to mitigate the damage of a dismissal in this manner or to spare the complainant’s reputation; there was no agreed statement and no notice given to the complainant of the dismissal.  The respondent refused to engage with the complainant regarding her dismissal.  The respondent did not display any duty of care towards the complainant in its dismissal of her in an inhumane and unmanaged manner. 

It is unfair to say that there can be no future relationship between the complainant and respondent when the respondent has made no effort to manage the relationship; it ignored all grievance and management procedures.  The respondent acted to remove the complainant from the equation. 

The dismissal and consequential damage to the complainant in a tightknit arts community was devastating, incontrovertible and cannot be understated.  The only way to restore the complainant’s reputation within the community is reinstatement with the respondent. 

The summary nature of the dismissal severely damaged the complainant’s professional reputation and future earning capacity.  No efforts were made by the respondent to mitigate that damage.

The factors advanced by the respondent at the hearing as reasons it could not work with the complainant were embarrassing and/or astonishing and were certainly not grounds for terminating the complainant’s employment or to counter reinstatement.  Very few of the issues raised by the respondent had previously been put to the complainant.

The complainant is disappointed with the respondent’s conduct, but there was no question of her competence or performance.  The complainant did not in any way contribute to her dismissal.  The complainant can compartmentalise her disappointment and the dismissal, and there is no reason why she cannot carry out her role with the respondent in the future.

The complainant made every effort to mitigate her loss after her dismissal.  She continues to be involved with three organisations in a voluntary capacity. 

Under cross-examination, the complainant did not accept that she had insisted on a review of the communications aspect of her role in 2021.  The respondent’s director said she would provide a written review of the complainant’s progress in that part of her role in the autumn of 2021.  The complainant followed up on this when it was not provided.  The complainant addressed the timeline from being provided with a draft contract in respect of the new role, the complainant’s acceptance of the contract and her taking up of the new role in December 2021.  In relation to her request to take up part-time, fixed-term additional employment with another organisation in January 2022, the complainant queried the Board’s refusal of her request.  The complainant had questions about the Board’s refusal but did not appeal the Board’s decision.  Four months after the Board’s decision, it referred the complainant’s queries to a third party to deal with.  When the third party’s report issued to the complainant in October 2022, it did not find in her favour, and she appealed the decision therein.   The report contained no analysis and no reasons for its conclusion.  If reinstated, the matter is under appeal and the complainant would like the Board’s response.  The complainant would like her questions in relation to requests to take up additional employment and conflicts of interest addressed by the respondent.   She does not want such issues left unresolved.  Where such issues have a bearing on a person’s role, they need to be pursued. 

The complainant did not accept that she was persistent and unreasonable in seeking to have passages included in the September 2022 third party report that issued on foot of a formal investigation.   The complainant requested the third party include passages in its report to mitigate against damage to her good name as the evidence of witnesses had been damaging.  The complainant had already been dismissed at that stage and was seeking to mitigate damage to her reputation.

When asked about the complaint made against another manager after her dismissal, the complainant said there needed to be a resolution to that complaint and she would have thought the respondent would have pursued the complaint.   

The complainant would like answers to her appeal of the Board member’s decision of July 2022 on her complaint against the respondent’s director in relation to an incident in May 2022.  The decision raised fundamental issues the complainant would like resolved.  The complainant was not insisting that the director should get a warning in relation to the May 2022 incident but was simply pointing out that the respondent’s employee handbook provides for same in circumstances of misconduct.  

The complainant was asked about her assertions that the director was guilty of gross misconduct in relation to other matters and why she had made these assertions after the respondent had conceded the complainant’s unfair dismissal.  The complainant did not have complaints lined up to initiate but she made the assertions in the context of the case before the WRC where she was defending herself against the respondent’s submission that she had contributed to her dismissal and against allegations that had never previously been put to her.  The complainant hoped to be reinstated and that a few minor questions could be answered by the respondent.

In response to questions regarding the complainant’s mitigation of loss, the complainant outlined how she had been approached to provide some ad hoc advice following her dismissal and what her voluntary work entailed.  Matters with the respondent since July 2022 have been extraordinarily stressful for the complainant but she has been at all times since her dismissal fit and available for work.  The complainant addressed the jobs she had applied for from November 2022 to July 2023.  In the period after her dismissal, the complainant was preparing her CV, engaged in social media, meeting with people and following enquiries.   There were much fewer suitable opportunities advertised in the summer months.  The complainant had considered all of the jobs detailed by the respondent in its submission as suitable jobs for the complainant and had applied for some of them.

The respondent is a registered charity, funded by the Arts Council of Ireland and the Arts Council of Northern Ireland, involved in the development and promotion of contemporary music in Ireland.  The complainant was employed with the respondent from February 2017 until September 2022.  The complainant’s role was Communications and Projects Manager until December 2021 when the communications aspect of the role was assigned to a newly created part-time role, and the complainant’s role became that of Projects Programmes & Events Manager. 

The complainant was summarily dismissed by the respondent on 28 September 2022. 

The respondent raised four particular factors, of which account should be taken in assessing the complainant’s contribution to dismissal and what is just and equitable compensation.  It was submitted that these factors were indicative of a confrontational and unreasonable approach on the part of the complainant to workplace matters, the fraction and tension between the complainant and respondent, the effects on the respondent’s director and other staff, and the risk to staff retention.

In terms of reinstatement as an appropriate form of redress, there is no position for the complainant in the organisation and the evidence of the respondent’s witnesses illustrate why reinstatement is not appropriate and untenable for the respondent.  The Workplace Relations Commission must be satisfied in making an order for reinstatement that it will work for the parties.  The complainant’s persistent pursuit of issues and appeals with the respondent during and after her employment terminated have had the effect of maintaining disharmony between the parties.

Regarding compensation, the onus is on the complainant to show she mitigated her loss.

The respondent had not been asked to provide a reference for the complainant and had not damaged the complainant’s reputation beyond dismissing the complainant.

Ms Paula McHugh, chairperson of the respondent’s Board since 2021, gave sworn evidence.  She outlined the Board’s review of how best to move forward following the termination of the complainant’s employment.  Tasks previously undertaken by the complainant were divided between a support role and a part-time role, projects were varied or ceased, and there was also a shift in how tasks were managed with the director now having more direction and control over projects.  At the time of the complainant’s dismissal, the witness was aware of the outcome of an investigation conducted by a third party, at the respondent’s request, into allegations of misconduct against the complainant, but she had not seen a copy of the report.  The complainant was not provided with written reasons for her dismissal, but she was verbally told that it was because of the huge amount of time the organisation was having to spend on dealing with repeated communications from the complainant.  This was the consensus reached by the respondent’s Board.  The witness addressed the complainant’s request for a performance review of the communications part of her former role as Communications and Projects Manager, the request to take up additional employment, the complainant’s appeal of a decision relating to the Board’s refusal, and the complainant’s request to insert additional information in the report that issued on foot of an external investigation.

The witness was aware the respondent’s director was experiencing stress, which the witness attributed to the director’s frustration in dealing with the complainant.  The witness was aware of the director’s position that she was finding it very difficult to do her job.

The witness could see no evidence of damage to the complainant’s reputation.  The termination of the complainant’s employment was unfortunate, but these things happen.  There was no intention to damage the complainant’s reputation and the Board was very careful about how it communicated the fact of termination after the event to ensure there was no damage to the complainant’s reputation.  There is work available in the Arts community and this can be seen from the websites and social media of organisations involved with promoting the Arts.  The complainant had not asked the witness for a reference.

Under cross-examination, the witness said that the Board had every confidence in the respondent’s director and felt that she was dealing with staff management issues and handling the situation well and in a professional manner.   The witness said the decision to dismiss was not made arising from the outcome of the external investigation into complaints against the complainant but was driven by a combination of factors that came together and made it virtually impossible for the respondent’s staff to carry out the work they were employed to do.  The respondent had outsourced the complainant’s appeal of its decision refusing the request to take up additional employment and the investigation of complaints against the complainant as it was keen to ensure they were dealt with correctly and in a fair and professional manner.   The witness accepted that the respondent had obligations in the management of its staff, and that the respondent had chosen not to comply with its procedures or to deal with staff issues by way of alternative dispute resolution mechanisms.   The feeling at that stage was that every move made by the respondent vis-à-vis the complainant required more hard work.    It felt that the only way it could act at that stage was to dismiss the complainant.  Relationships had broken down to such an extent that there was no notice of termination given to the complainant and no opportunity provided for goodbyes.  There was no hope in mending the overall relationship between the parties.  Reinstatement would mean a return to a cycle whereby the respondent would be unable to do the work they exist to do.

Ms Evonne Ferguson, director of the respondent organisation, gave sworn evidence.  This witness is not on the respondent’s Board of Directors.  She was the complainant’s manager at the material time.

The complainant’s role in employment with the respondent changed in December 2021 with the communications and marketing function transferring to a newly created part-time role.    Negotiations in relation to the change of the complainant’s role took approximately 9 months, from March to December 2021.  The complainant demanded a job evaluation of the role she had previously carried out.  The witness did this evaluation because it seemed important to the complainant.  The witness had never experienced such resistance in negotiations over job and title changes as she did with the complainant.   The witness found 2021 particularly challenging.  She found the push-back and discussion with the complainant in relation to decisions difficult.  The witness went to the Board and advised that she would step down from her role as she was finding her relationship with the complainant very difficult.

It was the Board’s decision to refuse the complainant’s request to take up additional employment.  The witness did not see the report of the external HR company on the complainant’s grievance in respect of the Board’s decision. 

Subsequent to the complainant’s dismissal, the complainant made a complaint against another employee in the respondent organisation.

Under cross-examination, the witness said that it was not about the complainant’s performance but the complainant’s response to directives which the witness felt was insubordination.  The witness chose not to implement any of the procedures in the Employee Handbook to address this as she didn’t consider it suitable in an organisation consisting of seven employees.  The witness had attempted to raise numerous issues with the complainant over the years in an informal manner, but they were not well-received by the complainant.   The witness did not consider mediation.  The witness reports to the Board and went to the Board with the difficulties she was experiencing with the complainant as she felt she needed professional help.  The witness told the Board she couldn’t work with the complainant any longer.   The witness accepted that she gave an ultimatum to the Board that either the complainant or the witness would have to go.  It was the Board’s decision to dismiss the complainant.  

Communications between the witness and complainant had completely broken down at the time of the complainant’s dismissal.  There was a working relationship but in terms of negotiating difficult issues, there was a break-down. 

The complainant referred a claim of unfair dismissal to the Workplace Relations Commission on 12 January 2023.  The claim concerned the termination of the complainant’s employment on 28 September 2022.

A hearing was scheduled for 20 June 2023. 

The complainant submitted finalised preliminary written submissions on 5 June 2023, which addressed the background to the termination of her employment, including events of note in employment in 2021 and 2022 and the grounds for referral of her claim to the Commission.  The preliminary submissions challenged the lawfulness of the decision to dismiss the complainant, both on substantive and procedural grounds, and reinstatement was sought.

At the time of submission of the complainant’s preliminary written submission, the complainant had not been directly provided with, in writing, the respondent’s reasons for terminating her employment.  This is notwithstanding the complainant requesting the respondent on 30 November 2022 to provide a statement in writing of the reason for her dismissal. 

The respondent furnished its written submission to the complainant and the Commission after close of business on 14 June 2023.  In response, the complainant furnished a summary written submission to the Commission and the respondent after close of business on 19 June 2023.

At the outset of the hearing on 20 June 2023, the respondent conceded that the complainant’s dismissal by it was unfair.  For adjudication was the matter of appropriate redress for the unfair dismissal.

The respondent tendered evidence on 20 June 2023 and the complainant’s representative tested that evidence.  I then adjourned the hearing to ensure that the complainant had a proper and fair opportunity to consider the change in the nature of the case, and to address matters raised in the respondent’s recently received written submissions and in evidence at the hearing.  I requested that any further written submissions be made in a timely manner in advance of the rescheduled hearing date so as to afford the parties a proper opportunity to consider and respond, if necessary.

A rescheduled hearing was arranged for 26 September 2023.

The complainant lodged a further written submission with the Commission on 5 September 2023, which was furnished by the Commission to the respondent the following day.

At the hearing on 26 September 2023, I received a second written submission from the respondent, and from the complainant a written submission in reply to the respondent’s second written submission. 

The hearing proceeded on 26 September 2023 with oral submissions from both parties and the complainant’s sworn evidence.

I have fully reviewed all of the written submissions provided to me in this case in the course of my inquiry and carefully considered the oral submissions and evidence of the parties.  It is not appropriate or necessary that I reiterate verbatim the submissions and evidence of the parties in this decision; the submissions and evidence were comprehensive and their relevancy, in particular the initial written submissions, took a different course on foot of the respondent’s concession at the first hearing that the complainant had been unfairly dismissed.   I have recorded in this decision the material evidence, by reference to the relevant statutory provisions, applicable legal principles and my findings of fact.

The Relevant Law

Section 7 of the Unfair Dismissals Acts 1977-2015, (the “Acts”) entitles an employee who is unfairly dismissed to redress under the Acts.  It provides, in relevant part, as follows:-

“(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 [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,

…”

Section 7(2) of the Acts sets out matters that regard shall be had to in determining the amount of compensation payable.  It provides 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.”

Financial loss is defined in section 7(3) of the 1977 Act and includes any actual loss and any estimated prospective loss of income attributable to the dismissal.

Appropriate redress

The redress sought by the complainant is reinstatement.  This was the form of redress sought by the complainant on referral of her unfair dismissal claim to the Commission, and it became a material issue between the parties after the respondent conceded the complainant’s dismissal was unfair.

The respondent maintained that reinstatement and re-engagement were not appropriate.  It referred in this regard to relations between the complainant and existing employees not being good; the size of the respondent organisation; its restructuring after the complainant’s dismissal such that the complainant’s position no longer exists and its opposition to this form of redress.

Both parties made detailed submissions in respect of redress and referenced a number of cases which I have considered in coming to my decision.

I have very carefully considered the positions of the parties on redress returning the complainant to the workplace and have analysed the relevant evidence in this regard. 

The reasons for the complainant’s dismissal can be elicited in part from emails of 26 September 2022 between members of the respondent Board, and from the evidence and submissions before me.  I accept that the earliest the complainant had any sense of what the reasons were was in April 2023, upon receipt of documentation in response to a data subject access request.  The emails from September 2022 illustrate an opposition to the complainant’s continued employment and a lack of regard on the part of the respondent for the complainant’s employment rights and the implications of a summary dismissal.  In such circumstances, I do not find compelling the submission that because the respondent is opposed to reinstatement or re-engagement, it should not be granted.   I am also not persuaded by the submission that the respondent has restructured since the complainant’s dismissal; the restructuring was facilitated by the unfair dismissal of the complainant. 

The complainant cited the High Court judgements in O’Suird v Bord Banistíochta, Gaelscoil Moshíológ [2023] IEHC 484 and Bank of Ireland v Reilly [2015] IEHC 241 in support of her submission that reinstatement is the only remedy that would provide adequate redress and do justice between the parties.

I acknowledge that the complainant experienced an injustice in terms of how the respondent arrived at its decision to dismiss her and the manner in which she was dismissed on 28 September 2022.   The complainant is entitled to redress for her unfair dismissal; however, I am not satisfied that reinstatement or re-engagement are appropriate in this case for the following reasons. 

The effect of reinstatement would be to restore the complainant to the role of Projects, Programmes & Events Manager from 28 September 2022, on the terms and conditions the complainant held in that role before her dismissal.  An order of re-engagement could provide for similar effect or provide for re-engagement of the complainant in an alternative position that would be reasonably suitable for her.  

The respondent is a relatively small, publicly funded organisation. The complainant held one of three managerial positions in the seven-employee organisation at the time of her dismissal.  At the time of the hearing, I do not consider there to have been any significant change to the organisational structure; and the same individuals held the other two managerial positions. 

The evidence before me was of fractures in the relationship between the complainant and the respondent’s director during 2022, and of mutual complaints between another manager and the complainant.       The complainant’s evidence of increasing negativity towards her during 2022 and the effect of the dismissal on her wellbeing, health and reputation was compelling.  The tension and personal fall-out between the parties was very clear to me from the evidence and submissions.  These points concern mutual respect between relevant individuals and the practicalities of the parties working together in the future, rather than mutual trust and confidence. 

There are multiple grievances and issues, aside from the unfair dismissal, outstanding between the parties.  While the complainant said that she would be able, in a return to the respondent’s workplace, to move on from the fact of her unfair dismissal, issues raised by the complainant concerning the respondent, its Board members and employees, including appeals and a formal complaint, are relevant in a reinstatement context.  I cannot envisage harmonious working relations between either the parties, or between the complainant and the relevant employees in the respondent organisation, in the foreseeable future.  The complainant in her evidence indicated how outstanding issues between the parties could be resolved.   I cannot see how the persons involved could work together again without considerable effort, commitment, and most likely external assistance to try and resolve issues and restore relations.  The work, stress and financial cost involved cannot be overlooked and there are no guarantees regarding the outcome.  The complainant made the point that she was well able to carry out her job while undergoing the formal investigation in 2022 and that this would be the case in relation to the outstanding issues and matters for resolution.  However, an employment relationship is not just about getting the job done, it is also about mutual respect, trust and confidence.  I also acknowledge the complainant’s evidence that the July to September 2022 investigation process, carried out by a third party at the respondent’s request, was an enormously stressful experience for the complainant that took its toll.   

I have observed and carefully considered the general demeanour of the parties towards each other, and the consequences of reinstatement as outlined by the complainant, both of which I am unable to reconcile with the complainant’s desire to be reinstated.  The respondent’s total opposition to this and the attitude of the parties towards each other bolster my view that reinstatement is neither in the interests of the complainant or appropriate.

The testimonials submitted by the complainant confirm the complainant’s reputation and high standing in the music community.  The workplace investigation from July to September 2022 was carried out by a specialist employment law and HR consultancy company.   Its report clearing the complainant of any wrongdoing should have brought finality to the issues and been sufficient to mitigate any damage done to the complainant’s reputation within the respondent organisation.

The complainant did not seek re-engagement with the respondent in an alternative position and this was not addressed by the respondent.  Accordingly, and given the size of the respondent organisation, this form of redress is not appropriate.

Compensation

The complainant was unfairly dismissed and has incurred financial loss attributable to her unfair dismissal.

For the reasons outlined above, I consider compensation to be the appropriate form of redress having regard to all the circumstances.

In determining the amount of compensation, I have had regard to section 7(2) of the 1977 Act.

The respondent submitted that the complainant by her conduct contributed to her dismissal and referred to a number of factors in this regard which should be taken into account in determining the amount of compensation payable.  The respondent conceded that not all the factors raised by it had been fully particularised in writing or communicated to the complainant at the time of her dismissal. 

I agree with the complainant’s representative’s description of the factors raised by the respondent as low-level issues.  In my opinion, to classify them as conduct-related is a stretch for the purposes of section 7(2)(f) of the 1977 Act and, having carefully considered the factors raised, I am satisfied that they relate more to employee relations.  Any conduct aspects were either unproven insofar as the complainant was alleged to have caused stress to other employees, or related to work ethic and the complainant’s approach to work.  If such matters were a problem for the respondent, they should have been addressed with the complainant in the workplace and, if the respondent’s manager or Board did not feel equipped to do so, then professional assistance could have been engaged to facilitate discussions and resolve any differences between the parties.  The complainant was unaware of the factors or conduct complained of by the respondent until shortly before the first hearing date at the Workplace Relations Commission.  Furthermore the said factors, unbeknownst to the complainant, were relied upon as the basis for her dismissal, which was unfair. 

I do not accept that the factors relied upon by the respondent amount to conduct on the part of the complainant which contributed to her dismissal.   I also do not find that the complainant contributed to her financial loss and do not accept the respondent’s submission that an award of compensation should be impacted accordingly.  

I have had regard to the respondent’s breach of its statutory duty under section 14(4) of the 1977 Act.  The complainant requested on 30 November 2022 a statement in writing of the reasons for her dismissal.  A communication from the chairperson of the respondent’s Board in January 2023, some four months after the complainant’s dismissal, stated that the considerations that led to the complainant’s dismissal were made clear to her at the time of her dismissal.  The complainant received in April 2023, on foot of a data subject access request, an email from the chairperson of the Board to other Board members of 26 September 2022 giving reasons as to why the complainant’s dismissal was necessary.  I am satisfied that these reasons were not provided to the complainant at the time she was summarily dismissed or on foot of her request to the chairperson for a statement in writing of the reasons for her dismissal.  The complainant only became aware of these reasons after making a data subject access request and the respondent providing documentation on foot of same in April 2023.

The respondent failed to comply with its statutory duty to furnish particulars within 14 days of the request, or indeed to directly inform the complainant of the reasons for her dismissal, and I consider such omission to have contributed to the complainant’s financial loss and to have impacted on her efforts to mitigate her loss. 

There was absolutely no dismissal procedure followed by the respondent in respect of the complainant’s dismissal.  The respondent ignored the dismissal procedure outlined in its own employee handbook and the complainant was denied the benefit of the fair procedures outlined in SI 146 of 2000.  A summary dismissal is a particularly blunt way of terminating the employment relationship.  It typically features in cases of gross misconduct, and indeed the respondent’s employee handbook provides for summary dismissal in such circumstances.   To be absolutely clear, this was not a case in which summary dismissal, or otherwise, was justified.  

The respondent maintained that the complainant failed to mitigate her loss and referred to relevant extracts from Redmond on Dismissal Law regarding the question of mitigation.   The respondent submitted that the complainant had a considerable range of skills and options open to her, including outside of the music and arts sectors.  

The complainant had not been successful in obtaining alternative employment at the time of the second hearing day in September 2023.  In relation to the complainant’s efforts to mitigate her loss, I find that the complainant has made reasonable efforts to mitigate same.   The complainant is highly qualified and experienced.  She decided to take a particular course in her career after ceasing practice in 2010, and in 2017 took up a position with the respondent in the contemporary music sector, an area she remains passionate about.  I do not consider it unreasonable for the complainant not to have sought out employment in the legal sector following her dismissal from the respondent in 2022.  This was a sector the complainant worked in at a particular stage of her career.  I further note the list of potentially suitable jobs for the complainant, advertised in the period after the complainant’s dismissal and compiled by the respondent, were mostly in the arts or music sectors.   In any event, I note and accept the complainant’s evidence of her attempts to find alternative employment in areas outside of the arts, including her applications for State Board jobs and her enquiries about returning to work in the area of immigration.  I further accept the complainant’s evidence that she was hampered in her efforts to find employment by not having a reference, and the fact of her summary dismissal without reason.  Given the way in which the complainant’s employment with the respondent was terminated, the very least the respondent could have done was to provide the complainant with a reference and I attach no weight to the evidence and submissions that the complainant did not request a reference from the respondent.  

I consider compensation in the sum of €55,000.00 for financial loss attributable to the complainant’s unfair dismissal to be just and equitable having regard to all the circumstances, including the factors outlined above.  This figure is based on the complainant’s salary with the respondent of €44,000.00 per annum, her actual financial loss and estimated prospective loss of income.  I do not accept the submission that the complainant is virtually unemployable, however I have had regard to the list of jobs compiled as suitable for the complainant, and in particular the tenure and remuneration attaching, and the fact that the terms offered are generally less favourable than those that were enjoyed by the complainant with the respondent.

Conclusion

Having carefully considered the submissions of the parties and the evidence before me concerning the matter of redress, I am not satisfied that reinstatement or re-engagement of the complainant is appropriate.

It is my view that compensation is the appropriate form of redress and is the remedy that will do justice between the parties.

I determine €55,000.00 compensation in respect of the complainant’s loss to be just and equitable having regard to all the circumstances.

The complainant was unfairly dismissed and is entitled to redress of compensation from the respondent of €55,000.00.

Unfair dismissal conceded – Redress – Reinstatement - Compensation