UDD2412

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00032527 (CA-00043162-001).

BACKGROUND:

The Employer appealed the Decision of the Adjudication Officerto the Labour Court on 20 July 2023 in accordance with Section 8A of the Unfair Dismissals Act 1977 to 2015.  A Labour Court hearing took place on 21 March 2024.

The following is the Determination of the Court:-

DECISION:

Background to the Appeal

This is an appeal on behalf of Waterford Health Park Pharmacy Limited T/A Stratus Pharmacy (‘the Respondent’) from a decision of an Adjudication Officer (ADJ-00032527, dated 27 June 2023) under the Unfair Dismissals Act 1977 (‘the Act’). The Adjudication Officer found that Ms Aoife Foley (‘the Complainant’) had been unfairly dismissed by the Respondent and awarded her compensation of €14,000.00. Notice of Appeal was received in the Court on 20 July 2023.  The Court heard the appeal in Waterford on 21 March 2024.

Appeal Limited to Quantum

Counsel for the Respondent informed the Court that his client accepted that the Complainant had been unfairly dismissed from its employment with effect from 18 March 2021 and that the only matter it wished to appeal was the quantum of compensation awarded by the Adjudication Officer at first instance.

Submissions

The Complainant was paid €12.00 per hour by the Respondent. She initially worked 43.5 hours per week. However, the Respondent moved to reduce her hours from mid-February 2021 onwards. The Complainant queried the proposed reduction in her hours and this appears to have precipitated her dismissal.

The Complainant’s submission is that she was without work for some eleven weeks after her dismissal. She then secured employment on a fixed-term basis at a rate of pay of €15.65 per hour. As there appeared to be no prospect of her employment with the employer in question being made permanent, the Complainant successfully sought and secured employment elsewhere at a rate of €15.47 per hour.

Counsel for the Respondent submits that ‘financial loss’ for the purposes of s.7 of the Act falls to be considered under three headings: actual loss, future loss and loss of rights under protective legislation and superannuation. He submits that the Complainant’s actual loss in this case is €5,742.00 and that she cannot have any future loss in circumstances where she secured employment at a higher rate than that she had been paid by the Respondent.

Finally, Counsel refers the Court to the case of Bunyan v United Dominion Trust (Ireland) Limited [1982] ILRM 404 for guidance in relation to the calculation of loss under the third heading i.e. loss of statutory rights, and submits that the Court should not have regard to this head in circumstances where the Complainant had not accrued sufficiently long service with the Respondent to bring her within scope of the Redundancy Payments Act 1967.

The Law

Section 7 of the Act provides:

“7. Redress for unfair dismissal

(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.

(1A) In relation to a case falling within section 6(2)(ba) the reference in subsection (1)(c)(i) to 104 weeks has effect as if it were a reference to 260 weeks.

(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.

(2B) Where —

(a) the dismissal of an employee results wholly or mainly from the employee having made a protected disclosure, and

(b) the investigation of the relevant wrongdoing concerned was not the sole or main motivation for making the disclosure,

the amount of compensation that is just and equitable may be up to 25 per cent less than the amount that it would otherwise be.

(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;

“remuneration” includes allowances in the nature of pay and benefits in lieu of or in addition to pay.

Discussion and Decision

The Court has 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”.

Having regard to the foregoing and to the Complainant’s submissions, the Court finds that the appropriate level of compensation payable to the Complainant in this case is €14,000.00. The decision of the Adjudication Officer is therefore upheld and the appeal fails.

The Court so determines.

	Signed on behalf of the Labour Court
	Alan Haugh
TH	______________________
29 April 2024	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Therese Hickey, Court Secretary.