Complainant

Respondent

Parties

Aidan  Mc Quaid

McCaffrey Engineering

Representatives

  Self-represented

 Ryan McManus BL instructed by Paul Boyce & Company 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-00059391-001

13/10/2023

The complainant worked with the respondent as a general operative from August 2022 until his dismissal on 30 September 2023.

The respondent conceded at the hearing that the complainant’s dismissal was unfair.  The matter of redress was addressed by the parties.

The submissions on behalf of the respondent and evidence tendered was that the complainant, by his conduct, had contributed to his dismissal. 

The complainant gave sworn evidence.

The complainant confirmed he was seeking compensation for unfair dismissal.  He found alternative full-time employment 4 weeks after he was dismissed by the respondent and remains in that employment.   The complainant’s remuneration in the alternative employment is more than what he was paid in the respondent’s employment. 

Under cross-examination the complainant said the reference to bullying in the last message from the owner of the business, which informed the complainant of the termination of his employment, was totally unfounded. 

The complainant was asked about incidents in April 2023 and on dates in August 2023; the complainant was not aware of any issue until the text message dismissing him.  The complainant disputed that he responded inappropriately to an accident involving a work colleague in August 2023.  The complainant accepted that it was not reasonable to throw a bag of screws to a work colleague; however, he had been throwing them to the work colleague to catch and they had bounced off his chest.  This was an accident for which he immediately apologised.  The complainant did not accept that he shouted or acted in an aggressive manner towards a colleague in the workplace the day before he was dismissed.  The complainant had never been aware of any issue regarding aggression on his part on any of the work sites.   The complainant did not consider himself to have been rude or aggressive when working at sites and the only time he raised his voice was to be heard over machinery.  The complainant fully refuted the allegations against him.

In response to my questions, the complainant said he had never been made aware of any issues concerning his behaviour at work and the first time he was made aware of any issue was on the Saturday night when he was dismissed by text message.

The unfair dismissal claim was conceded at the hearing and the respondent’s representative confirmed the matter for adjudication concerned appropriate redress. 

It was submitted that the complainant had indicated to the respondent prior to his dismissal that he intended giving notice of resignation the following week as he had a job arranged.   It was further submitted that the complainant had contributed significantly to his dismissal.

A post-hearing submission enclosed copy of the Labour Court’s determination in The Revenue Commissioners v Colm Keane [UDD2125], which it was submitted aligned with this case in that the complainant had 100% contributed to his dismissal.

Summary of Mr Ciaran McCaffrey’s sworn evidence

The witness is the owner of the respondent business.  There were 3 employees at the time the complainant worked with the respondent.  There are currently 2 employees employed.

The owner of the business was unable to work in the business for a period in 2023 due to an injury and this had a significant impact on the level of work the business could undertake.  

An employee made a number of allegations against the complainant of bullying and harassment, which included name calling and inappropriate comments.  The allegations commenced before the owner’s injury and continued.   The owner did not initially witness the alleged conduct himself and he didn’t raise it with anyone else.  On his return to work, the owner did witness the accident that occurred on site on 28 August 2023.  The complainant laughed at the employee who had fallen and did not assist him.  The owner was not at all happy about this but did not say anything at the time as he was only back working a few days a week and could not afford to lose employees.  The owner was afraid that if he brought it up with the complainant that the complainant would leave. 

The day before the complainant was dismissed, there was a further incident on site during which the complainant raised his voice and used inappropriate language.   None of the employees were speaking to each other after this.  The owner had no choice, he had to either let the complainant go or risk losing his other 2 employees.  The complainant was a very good worker but very difficult to work with.  The complainant fully contributed to his dismissal and the owner had no alternative but to let him go.  The owner acknowledged he had gone about it the wrong way, but it had been a very difficult year and there had been no alternative in the end.  

The unfair dismissal claim referred to the Commission concerned the termination of the complainant’s employment on 13 October 2023.

At the outset of the hearing on 28 May 2024, the respondent conceded that the complainant’s dismissal was unfair.  For adjudication was the matter of appropriate redress for the unfair dismissal.

The Relevant Law

Section 7 of the Unfair Dismissals Act 1977 (the “1977 Act”) entitles an employee who is unfairly dismissed employee to redress under the Act.  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 1977 Act 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.

Redress

I am satisfied that compensation is the appropriate remedy in this case.  The respondent business is a small operation in terms of the numbers employed.  The complainant took up new employment after his dismissal and remains in that employment.  Furthermore, both parties addressed the matter of compensation in their submissions and evidence.

Compensation

The complainant has incurred financial loss attributable to his unfair dismissal.  He commenced alternative employment 4 weeks after his dismissal. 

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

It was submitted that the complainant, by his conduct, contributed fully to his dismissal.  The respondent relied on the Labour Court’s determination in The Revenue Commissioners v Colm Keane [UDD2125] in which nil compensation was awarded for an unfair dismissal due to a failure to mitigate financial loss and the extent to which the conduct of the complainant in that case contributed to his dismissal. 

I am satisfied that the complainant in this case, by entering new employment 4 weeks after his dismissal, made reasonable efforts to mitigate his loss.

I am further satisfied that a material difference between this case and the case relied upon by the respondent is that the complainant fully disputes the allegations made against him.  Allegations of bullying and harassment, and matters outlined in evidence, were not put to the complainant during his employment.  The first reference to bullying was in the text message letting him go.  Any conduct related issues on the part of the complainant were unproven and the complainant was not afforded basic fair procedures in and around any allegations against him.  This is in contrast to The Revenue Commissioners v Colm Keane where the employee admitted the fundamental facts of the misconduct in question when put to him in employment.

For completeness, the evidence tendered did not support the submission that the complainant had informed the respondent before dismissal, that the complainant intended giving notice as he had another job lined up.  In any event, I do not consider this to be relevant having regard to the respondent’s evidence in relation to the grounds for the complainant’s dismissal. 

I acknowledge the difficulties experienced by the respondent business in 2023 however this does not detract from the complainant’s rights in employment.   

I consider compensation of €2,550.00 to be just and equitable having regard to all the circumstances, which is based on the complainant’s financial loss of 4 weeks’ gross pay attributable to the dismissal.

I find that the complainant was unfairly dismissed and direct compensation of €2,550.00, payable by the respondent to the complainant, which I consider just and equitable having regard to all the circumstances.

Unfair dismissal – Redress – Compensation – Contribution of conduct to dismissal