Complainant

Respondent

Parties

Courtney Carey

WIX Online Platforms Limited

Representatives

Cillian McGovern BL instructed by Crushell & Co Solicitors

Rosemary Mallon BL instructed by Mason Hayes & Curran LLP

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-00059663-001

27/10/2023

The Complainant submits that she was dismissed from her role having voiced her concerns about the conflict in Palestine.  On 27 October 2023, the Complainant submitted a complaint to the Workplace Relations Commission seeking adjudication under section 8 of the Unfair Dismissals Act 1977, as amended (the Act).

The Respondent is not disputing that the Complainant’s dismissal was procedurally unfair.  The Respondent asserts, therefore, that there is no need for any evidence or discussion on the facts of the dismissal.  As there is an acceptance that the dismissal was unfair, for the purposes of the Unfair Dismissals Act 1977, as amended (the Act), it is submitted that the only relevant question is the appropriate award of compensation.

Compensation 

Section 7(1)(c) of the Act makes it clear that the maximum compensation that can be awarded is 104 weeks remuneration. 

It is submitted that the compensation that can be awarded is only in relation to financial loss. It is clear from section7(1)(c) of the Act that financial loss is the limit of the jurisdiction of the WRC to award compensation.  There is no provision for an award of compensation under the Act for alleged upset or stress. It is not a just and equitable test; it is a financial (actual) loss test. 

Mr Justice McMenamin in Stephens v Archaeological Development Services Ltd [2010] IEHC 540 held that the parameters of an award of compensation is made “strictly within the realm of financial loss and still do not encompass any scope for a claim under any heading in the law of torts, nor for the awarding of punitive or exemplary damages”.

Similarly, in the case Maryland v Citywest Golf and Country Club UD 1438/2004, the Employment Appeals Tribunal was asked to make an award in respect of the loss that the Complainant said she had suffered and was continuing to suffer due to depression resulting from her dismissal. The Tribunal determined that a claim for psychological injuries resulting in financial loss was in fact a claim for personal injuries at common law and was not properly within its jurisdiction. 

Legal fees are not a matter of consideration in these cases. The Respondent fundamentally disputes the Complainant’s interpretation of “relevant redress” under the Workplace Relations Act and its alleged application to this case and the tests to be applied. The Complainant is seeking for a just and equitable test to be applied. This is simply incorrect. This is a claim under the Act, and it is clear from the provisions of the statute that the test is one of financial loss. An award of compensation based on anything other than financial loss is outside the jurisdiction of WRC in a case of unfair dismissal. 

Net figures 

It is submitted that financial loss must be calculated on the basis of the net figures that the Complainant received as opposed to the gross figures. This was confirmed in many cases including Healy v Cormeen Construction Ltd UD 98/1978 and Murtagh v O’Connor Breen Ltd UD 186/1978.  

It is accepted that the Complainant’s base gross remuneration per annum was €40,000. The Complainant states in her submissions that she commenced employment with An Post on 20 May 2024 on a salary of €532.65 per week. This equates to an annual gross salary of €27,697.80. It is within the Complainant’s knowledge what her past and current net rates of pay were/are, and these figures are relevant for any calculation of compensation. 

The Complainant’s efforts to mitigate her loss

The Complainant’s submissions state “The Complainant made a number of formal and informal attempts to find alternative employment. The Complainant registered with a number of recruitment agencies and made a number of applications for alternative roles, to mitigate their loss.” 

The Complainant has failed to provide any proper evidence of the attempts that she made to obtain alternative work such as job applications etc. In this regard a list of jobs she allegedly applied for, with no dates of when these applications were made, nor proof of applications is not probative, and she has failed to provide the most basic of documentation in relation to her current employment such as her contract of employment with An Post. The Respondent is therefore unaware of what possibilities there are for overtime and promotion etc. These are some of the matters relevant to the issue of compensation.  It is for the Complainant to prove her attempts to mitigate her loss and indeed to provide documentary proof of those attempts.

At the hearing, the Respondent exhibited a list of roles for which the Complainant could have applied. 

In Sheehan v Continental Administration Co Ltd UD858/1999, 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 to be profitably employed in seeking to mitigate his loss.”

In A Kitchen Porter v. A Takeaway ADJ-00016112, noting the EAT decision in Sheehan, the Adjudication Officer pointed out that there is legal duty on employees to mitigate financial loss by taking diligent steps to secure comparable alternative employment. 

The Respondent relies on the Labour Court's decision in The Blue Door v Karl Fitzgerald UDD2126, in which the Court held that "a dismissed employee should devote part of every single normal working day to finding alternative employment in order to mitigate their losses." 

It is submitted that to date the Complainant has failed to provide proper documentary evidence that she properly and appropriately attempted to mitigate her alleged loss. 

In the case of St Colmcille’s (Kells) Credit Union Limited v Patrick Leneghan UDD1952 the Labour Court on appeal reduced the award of an unfairly dismissed employee from €25,500 to €12,750 partly due to the fact that the employee had “failed to produce credible evidence to the Court that he has made sufficiently rigorous attempts to mitigate his loss in the period between his dismissal and the date of the within hearing”. 

Similarly, in Synergy Security Solutions v Paul Dusa UDD1911, the Labour Court held in considering the issue of actual loss and mitigation of loss in an unfair dismissal claim: 

“The Court finds the evidence tendered by the Complainant to the effect that he has been unable to find alternative work in the period since 11 April 2017 to date to be lacking in credibility and cogency. The Complainant is well educated and experienced. He holds a Private Security Authority licence and has a bachelor’s degree in international business. He has good language and communication skills. The Court is aware from its own knowledge that there are many current vacancies in the jobs market, in the security industry and elsewhere, that offer remuneration in or around the level that the Complainant was in receipt of while he was in the Respondent’s employment. In short, the Court is not satisfied that the Complainant has made reasonable efforts to mitigate his loss. For that reason, the Court marks the Compensation payable to the Complainant at nil”.

In any consideration of what the Complainant’s actual loss may be, it is submitted that consideration must be given the fact that the Complainant was paid her notice which was 20 working days. The Complainant was paid in lieu of notice. Her employment ended on 23 October 2023, and she was then paid in effect 4 weeks’ notice. It is submitted that any calculation in relation to loss therefore only commences from 23 November 2024. 

Future loss of earnings 

It appears that the Complainant obtained alternative work in May 2024 at a lesser rate of pay. It will be for the evidence of the Complainant to deal with matters such:

·        Promotional opportunities in the current position

·        Overtime opportunities in the current position

·        Obtaining alternative work at a better rate of pay. 

Conclusion 

It is accepted that the Complainant was unfairly dismissed. Compensation is the appropriate remedy. Compensation should be calculated based solely on the financial loss incurred by the Complainant.

The Complainant commenced employment with the Respondent on 4 January 2019 as a Customer Care Team Lead on an annual salary of €40,000.  The Complainant’s employment was terminated on 23 October 2023.  The Complainant contends that she was dismissed from her role as a result of her voicing her concerns about the conflict in Palestine.

The Complainant made a number of formal and informal attempts to find alternative employment. The Complainant registered with a number of recruitment agencies and made a number of applications for alternative roles, to mitigate her loss.  The Complainant commenced employment with An Post as a Clerk in their EXO office on 20 May 2024 on a salary of €532.65 per week.

The Complainant submits that the total loss of earnings between the termination date of her employment with the Respondent and the commencement of her alternative employment with An Post was €25,000. However, the Complainant’s current salary is significantly lower than her previous salary with the Respondent. The Complainant contends, therefore, that her loss is ongoing.

The Complainant further contends that the very public nature of her dismissal and the subsequent comments made by the leadership of the Respondent organisation had a very negative effect on her efforts to mitigate her losses and on her future career prospects.

The Complainant relies on the Labour Court determination in Waterford Health Park Pharmacy Ltd T/A Stratus Healthcare and Aoife Foley UDD2412 wherein the Court “had particular regard to the wording of section 7(1)(c)(i) whereby the Oireachtas provided that it may make an award of compensation not exceeding 104 weeks’ remuneration to an employee who has been unfairly dismissed the amount of which the Court deems to be “just and equitable having regard to all the circumstances”. A key fact in this case, and one which has been conceded by the Respondent, is that there was not a scintilla of procedural fairness in the manner in which the Complainant was dismissed from her employment.

The second element of section 7 that the Court also notes is that the meaning it attributes to financial loss is framed as ‘including’ actual loss, estimated prospective loss etc. In short, the statute does not purport to set out an exhaustive definition of “financial loss”.”

Direct evidence of the Ms Courtney Carey, the Complainant

The Complainant asserted that when she was dismissed by the Respondent, she started to look for alternative employment.  She tried to apply for as many jobs as possible.  She spoke with individuals with whom she had made a connection via LinkedIn, and she applied directly to positions advertised on organisations’ websites. She contends that the publicity surrounding her dismissal from the Respondent company affected her chance of gaining employment.

Cross-examination of the Complainant by Ms Mallon BL on behalf of the Respondent

The Complainant confirmed that she had applied for 60 jobs since November 2023.  Ms Mallon noted that, based on her submission the Complainant had applied for 2 – 2.5 jobs per week when she was seeking employment.  Ms Mallon asked her if she felt that this was sufficient as it was not even an application per day.  The Complainant replied that she was looking for a team leader role, not a role in customer care.  Ms Mallon suggested that it was not the Complainant’s job to pick and choose.

The Complainant confirmed that she commenced employment with An Post on 20 May 2024 and that she knew about three weeks beforehand that she had got the job.  The Complainant said that she was not sure what her chances of promotion were but felt that she could apply for promotion after a year or more of employment.

The Complainant said that she was not aware if overtime was available and that nobody appeared to do overtime.  She wasn’t sure if it would be available to her anyway because she is on a temporary contract.  The Complainant confirmed that she had not made any enquires about the possibility of working overtime.

The Complainant confirmed that she had not submitted a copy of her contract with An Post nor had she supplied a copy of a payslip.

Re-examination by Mr McGovern BL on behalf of the Complainant

The Complainant said that following her dismissal, she felt that she had been blacklisted by the tech sector due to multiple posts on social media.  She said that she had great conversations and interviews with recruiters which did not lead to offers of employment.

Further cross-examination by Ms Mallon

Ms Mallon suggested that the Complainant had received political support at the time of her dismissal.  Ms Mallon also referred to many positive comments the Complainant received on X and suggested that her reputation had not been damaged.  The Complainant disagreed.

Relevant legislation

Section 6 of the Unfair Dismissals Act 1977, as amended (the Act) provides:

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.

In a complaint under the Act, the burden of proof rests with the Respondent; it is for the Respondent to show that the dismissal of the Complainant was not unfair.  At the adjudication hearing on 19 June 2024, the Respondent did not dispute that the Complainant’s dismissal was procedurally unfair.  I find, therefore, that the Complainant was unfairly dismissed.

Redress

The only matter for me to decide, therefore, is the matter of redress.  Redress for unfair dismissal is provided for in section 7 of the Act:

7.— (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 17of 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,

and the references in the foregoing paragraphs to an employer shall be construed, in a case where the ownership of the business of the employer changes after the dismissal, as references to the person who, by virtue of the change, becomes entitled to such ownership.

Having considered the circumstances of this complainant, I am of the view that compensation is the appropriate form of redress.  I must now determine the appropriate level of compensation payable to the Complainant by the Respondent.  In determining the level of compensation payable to the Complainant, I am guided by section 7(2) of the Act which provides:

(2) 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.

(2A) In calculating financial loss for the purposes of subsection (1), payments to the employee—

(a) under the Social Welfare Acts, 1981 to 1993, in respect of any period following the dismissal concerned, or

(b) under the Income Tax Acts arising by reason of the dismissal, shall be disregarded.

(2B) …

 (3) In this section—

“financial loss”, in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation; “remuneration” includes allowances in the nature of pay and benefits in lieu of or in addition to pay.

As is clear from section 7 (1)(c)(i) of the Act, compensation is for “any financial loss attributable to the dismissal”.  Financial loss is defined as including, actual loss, estimated prospective loss of income and loss or diminution of the rights of the employee under the Redundancy Payments Acts.  The Complainant has obtained alternative employment but only on a temporary contract whereas she held a permanent full-time post with the Respondent.

The Complainant earned an annual salary of €40,000 with the Respondent which equates to €769.23 per week (€40,000 ÷ 52).  According to her submission, the Complainant is currently earning a weekly salary of €532.65 which equates to an annual salary of €27,697.80 (€532.65 * 52).  I was not provided with net figures by the Complainant.

I note that the Complainant was dismissed on 23 October 2023 and that she was paid 4 weeks’ notice by the Respondent which meant that she did not suffer any financial loss until 23 November 2023.  In evidence, the Complainant confirmed that, following her dismissal, she was unemployed until she commenced her current job on 20 May 2024, a period of 180 days or 26 weeks.  Therefore, during her period of unemployment, the Complainant suffered a loss of income of €20,000 (€769.23 * 26).  Furthermore, she continues to suffer a weekly loss of €236.58 gross – the difference between her weekly salary with the Respondent (€769.23­) and her weekly salary in her current employment (€532.65).  

Under the provisions of the Act, a Complainant who is found to have been unfairly dismissed may receive compensation equating to 104 weeks of their financial loss.  I have calculated the Complainant’s loss in the 26 weeks following the termination of her employment with the Respondent at €20,000.  I have also calculated that in her alternative employment, the Complainant incurs a weekly loss of €236.58 gross.  If she were to continue in this employment for the remainder of the cognisable 104 weeks, she would incur a loss of €18,453.30.

I note the Respondent’s submission in relation to taxation of the redress under the Act.  All the figures provided at the hearing were gross amounts.  Any tax liability arising from the sum awarded is a matter outside the remit of the WRC.

Mitigation of Loss

It is well settled that there is a duty on an individual who is dismissed from their job to make significant efforts to mitigate their loss. I am of the view that the Complainant did not do this.  The Complainant has submitted a list of positions for which she allegedly applied.  However, the documentation submitted is very sparse and does not enable me to investigate the substance of her assertions.  For instance, the Complainant did not provide any information on the dates of the job applications nor was there any documentation provided which linked her directly to the applications.  Even if this information had been provided, the number of jobs for which she applied is not sufficient given that she was out of work for six months following her dismissal and she would be expected, in accordance with the findings of the EAT in Sheehan v Continental Administration Co Ltd UD858/1999, to “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”.

I note the Complainant’s reliance on the determination of the Labour Court in Waterford Health Park Pharmacy Ltd T/A Stratus Healthcare and Aoife Foley UDD2412, wherein the Court determined that “a key fact in this case, and one which has been conceded by the Respondent, is that there was not a scintilla of procedural fairness in the manner in which the Complainant was dismissed from her employment.” I am of the view, however, that this determination does not entirely absolve the Complainant from the requirement to make serious efforts to mitigate the financial loss arising from her dismissal.

I declare this complaint to be well founded. Having regard to all the circumstances of this case, I consider it just and equitable to award compensation to the Complainant for her loss arising from her unfair dismissal.   Accordingly, I direct the Respondent to pay to the Complainant compensation in the amount of €35,000.

Uncontested claim of unfair dismissal – decision solely on redress