Complainant

Respondent

Parties

Sarah  Hynes

French Furze Autos Limited t/a VT Autos Limited

Representatives

Denise Kelleher -  Denise Kelleher & Associates

 Non-Attendance

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00061968-001

04/03/2024

The Complainant was employed in an administrative capacity with the Respondent from 16 December 2020 until her date of dismissal on 13 October 2023. She was paid €723 gross; €600 net for a 39-hour week. The Complainant claims she was dismissed by the Respondent without reason.  

The Complainant gave evidence under affirmation. She described how she was in a long-term relationship with the principal of the company, Mr A,  and helped out with the administration of the business before she was formally employed from 13 October 2023 as an Office Administrator in the management  side of the business. However, her relationship with Mr A broke down and she received no payment from 13 October 2023, which coincided with the period of the break-up. Approximately three weeks before her dismissal, the Respondent reduced her wages from €723 to €175 per week. She gave evidence of trying  to contact the Respondent about this development,  but she said she was not successful.  She was given no reason for her dismissal nor were dismissal procedures of any kind adopted by the Respondent. The Complainant gave evidence that she believes someone else is now carrying out her role and that the business is in a healthy position.

On mitigation of loss, the Complainant gave evidence that her work  was previously structured around childcare and her home life, and she found it difficult to find work. She gave evidence that she registered for ‘Jobs.ie’ and ‘Indeed.ie’. She has enrolled for a course as a trainee health care assistant where she receives enhanced Social Protection payments. She gave evidence of attending an interview for a hotel position but was not acceptable. The Complainant also gave evidence that she lost the value of her annual car insurance and mobile phone availability, as well as her salary, upon termination of employment.

The Respondent did not attend to give evidence.

In the uncontested evidence of the Complainant the fact of the dismissal was not in dispute therefore I must decide whether the Respondent acted reasonably when carrying out the dismissal. The requirement of an employer to act reasonably is alluded to in section 6(7) of the Unfair Dismissals Act 1977, as amended (“the Act”) where it provides:

"Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so -

(a)    to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and (b) to 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 section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act 1993) of section 7(2) of this Act."

It was the uncontested evidence of the Complainant that she was dismissed without reason nor were proper procedures employed by the Respondent. This principle of reasonableness mandates that employers not only provide substantial justification for dismissal but also adhere to fair procedures before termination. In Frizelle v New Ross Credit Union Ltd [1997] IEHC 137, the court delineated essential premises for justifying termination such as  transparent communication, fair interviews with the employee, decisions grounded in evidence, and proportionality in dismissal. Flood J. emphasized that principles of natural justice must be unequivocally upheld in cases of unfair dismissal. In  this case, the evidence shows  there was a total disregard for any type of fair procedure nor was any reason given for the dismissal. Based on these undisputed facts I am satisfied that Complainant was unfairly dismissed.

REDRESS

Section 7 of the 1977 Act, in its relevant parts, provides:

(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,

and the reference 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.

 (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 (Consolidation) Act 2005 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.

…. (3) In this section—

“financial loss”, in relation to the dismissal of an employee, includes any actual loss and 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 [2014], or in relation to superannuation;

The decision of Coad v Eurobase (UD1138/2013), outlines the duty to mitigate loss under the Act where the Tribunal noted:

“In calculating the level of compensation, the Tribunal took into consideration the efforts of the claimant to mitigate his losses and finds that these efforts do not meet the standard as set out by the Tribunal is Sheehan v Continental Administration Co. Ltd. (UD858/1999) that 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.”

I understand fully the constraints that the familial situation had on the Complainant in attempting to mitigate her loss. However, she did make some attempt though it was feeble when considered against the yardstick established in Coad.  Having regard to all the circumstances in this case as revealed in the uncontested evidence of the Complainant , I direct the Respondent to pay the Complainant the compensatory sum of €19000 , the approximate equivalence of six months wages, which I believe is just and equitable in all the circumstances.

CA-00061968-001: For the reasons outlined above, I find that the Complainant was unfairly dismissed, and I direct the Respondent to pay her the compensatory sum of €19,000.

Unfair Dismissals Act 1977, Reasonableness.