Complainant

Respondent

Parties

Emma  Doherty

Station House Dental Surgery Station House Dental

Complainant

Respondent

Anonymised Parties

Representatives

Vernon Hegarty SIPTU

 Eoin Morris BL Barry Crushell Crushell & Co Solicitors

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-00061346-001

01/02/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00061346-002

01/02/2024

The claimant was employed as a Dental Nurse/Receptionist and for a short period as a Practise Manager with the respondent company from October 2018 to the 14th.November 2023.She was employed on a fulltime basis on a contract of indefinite duration. It was submitted that the claimant enjoyed a clean disciplinary record up to the incident which later led to her dismissal from the employment. It was submitted that the claimant had been unfairly dismissed by the respondent both procedurally and substantively  and that the respondent had acted unreasonably in dismissing the claimant without regard to their own procedures and in breach of her rights under natural justice.

The respondent denied the allegation of unfair dismissal and submitted that the behaviour of the claimant was such that it was beyond anything that could be tolerated by a reasonable employer and that the only option open to the employer was dismissal for gross misconduct.

Following direct discussions between the parties at the first hearing on the 21st.May 2024, it was accepted by the parties that the claimant was unfairly dismissed and the matter was adjourned to allow for further engagement with a view to settling the case. On the 21st.June 2024, the union sought to have the case relisted as the parties had failed to agree on the matter of loss. Both parties indicated that the only remaining  matters  now requiring determination by the WRC was the subject of mitigation of loss and the complaint under the Minimum Notice and Terms of Employment Act1973.No evidence was heard or presented on the conduct of the parties prior to the dismissal.

Unfair Dismissals Acts 1977-2016      Mitigation of loss

The union presented the following documents regarding mitigation of loss at the hearing on the 21st.May 2024:

A 66 page account of her applications for alternative employment from Jan. 10th. 2024 – 7th.May 2024

On the 23rd.Aug. 2024, the union submitted the following documentation which is available for perusal on the WRC file:

A 13 page record of job applications by the claimant

An updated calculation of loss amounting to €45, 290.10

A calendar record of job interviews undertaken by the claimant in pursuit of her efforts to obtain alternative employment.

The union presented the following submission after the final hearing of the case on the 27th.August 2024

1.       Adjudication Officer, the Respondent having conceded the fact of Unfair Dismissal, we submit the following with regard to the question of ‘Mitigation of loss’ in the matter, as per your direction at hearing on August 27 2024 in Letterkenny.

The Law

1. The relevant sections of the Act provide as follows - 
2. 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 F50[the adjudication officer or the Labour Court], as the case may be, considers appropriate having regard to all the circumstances:

...(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...

(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...

1. The application of the above sections is helpfully summarised in the attached case law, particularly so in Seamus Counihan v Arramara Teoranta (ADJ-00037726), where it states:

As the Employer accepted that the dismissal was unfair; based on the obligation of the Employee to mitigate his loss, the Respondent made out a case that the Employee had not in fact proactively sought to mitigate his loss. The Employer argued that the extensive documentary evidence submitted by the Employee in fact revealed several job opportunities not followed through on and particularly where that opportunity related to a short-term contract or assignment. In fact, the documentary evidence reveals that the Respondent only began to seek alternative employment after many months has passed and this should be noted by the tribunal. The Respondent argued that the test to applied by the tribunal is that set out in Sheehan -v- Continental Administration Co Limited UD 858/1999 where it was stated that:

‘’ A claimant who finds himself out of work should employ a reasonable amount of time each workday in seeking work. It is not enough to inform agencies that you are available for work nor merely to post an application to various company’s 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 Redmond on Dismissal Law 3rd edition at: [24.72]

The common law rule of mitigation of damages applies to compensation for unfair dismissal. Questions of mitigation are questions of fact. The burden of proof lies on the party seeking to allege that another has failed to mitigate loss. 111 Sir John Donaldson explained the duty in AG Bracey Ltd v Iles: 112

‘The law is that it is the duty of a dismissed employee to act reasonably in order to mitigate his loss. It may not be reasonable to take the first job that comes along. It may be much more reasonable, in the interests of the employee and of the employer who has to pay compensation, that he should wait a little time. He must, of course, use the time well and seek a better paid job which will reduce this overall loss and the amount of compensation which the previous employer ultimately has to pay.

The test to be applied is an objective one in determining if the employee acted reasonably.

1. We submit that the above summary states the correct application of the relevant sections. Read together with the Gough and ACCESS IT CLG cases – notwithstanding the varying outcomes in consequence of the distinguishing facts and circumstances in the respective cases – it provides the legal framework within which the broad discretion in Adjudication is exercised, under the Act, on the question of mitigation.

Complainant’s Mitigation of loss

1. The Complainant has submitted comprehensive documentary submissions supporting her efforts to mitigate her loss, these outlining efforts from early January through to the original hearing date (Appendix 8 of the original submission, pp. 203 – 268)
2. The Complainant submitted updated and further documentation to the reconvened hearing outlining her continuing efforts to seek alternative employment and identifying both the positions applied for and the interview invitations received and those attended. This documentation identifies 204 Job Applications made (a very few are repeated applications, some after a subsequent advertisement of a position after an initial application had been made) in the eight month period between January and August 2024, and 32 interviews which these efforts yielded over the same period. (Submissions made on 22/08/2024)
3. The Complainant supported these submissions in direct, sworn evidence at hearing on 27/08/2024, offering to provide a further 1,000+ pages of further supporting documentation should that be required.
4. The Respondent called two witnesses in challenging two of the Complainant’s 204 asserted attempts to mitigate her loss, namely, those where she had advised that she, or her father, had ‘dropped-off’ unsolicited job applications and CVs to the offices of ‘CD’ and ‘CAD  Dental’ in early January 2024, in hope that they would have her details on file when/if they may be recruiting. The witnesses’ evidence was to the effect that they had ‘no recollection’ of having received such documentation. The second witness gave evidence that, along with having no ‘recollection’ he was instructed to advise in evidence that some other person in the business (not the witness), having looked for it, had ’no record’ of having received the Complainant’s submission. In cross-examination, this witness further confirmed that he had no ‘recollection’ of the Complainant’s second follow-up application of June 2024 either (the submission of which is not disputed).
5. The Complainant, under cross-examination, confirmed that the applications of early January were hand-delivered (in one instance) and posted, and that she accepts that they may have been forgotten, or misplaced, or otherwise overlooked by the practice. It is our submission that in the circumstances described, and with levels of possible confusion with regard to;
   1.  who or how such unsolicited applications may be handled or processed in the respective practices,
   2. the names of one business is almost mirrored by a competing practice in the same town – the possibility of being received by the incorrect recipient arises

that the Respondent’s burden of proof in this regard (from Redmond, above), - is not met. The requirement is clearly stated; “Questions of mitigation are questions of fact. The burden of proof lies on the party seeking to allege that another has failed to mitigate loss.”

1. We submit that, in the context of the extraordinary extent of evidence provided by the Complainant of her mitigation of loss it is simply not credible that she would have lied about having made these two early attempts in seeking alternative employment, as is clearly the impression which the Respondent sought to assert, even as the parties were preparing for the first hearing of the matter in May 2024 (see attached supporting documents, p. 6)
2.  We submit that such an allegation is more credibly illustrative of a well-established pattern of conduct on the Respondent’s part, in making unfounded, disparaging remarks concerning the Complainant’s character and integrity, even to the point of doing so, in writing, to prospective future employers while complaining, in the same moment, at her attempts to mitigate her loss through securing such employment. The Complainant has no way of knowing just how many such emaiIs/letters were issued by the Respondent (though at least another contact is alluded to), and to what detrimental effects to her efforts to secure employment.
3. We reiterate our earlier submissions in this regard and submit further specific documents requested at hearing (attached), namely;
   1. A copy of an email from Social Welfare regarding Complainant’s Illness benefits dates as requested by the AO
   2. A letter from my her GP (Moville Health Centre) confirming the unfit for work period
   3. Copies of email communications from A Dental/Dr. McD (1st witness) as requested by the AO
   4. Copy of the email from A.S. B Dental (2nd witness) confirming CV on record as requested by the AO
   5. Copy of the emails of the respondent contacting GP surgery and C Medical Centre on the 20th May 2024
4. In addressing other matters which arose (even in passing) at hearing we submit references contained in our previous submission of documents;
   1. Re: Job Number 25 - CH Dental. This employer contacted the Complainant directly via Indeed and offered an interview, but she was unable to accept as she was in Hospital, She informed the employer of this. The post was filled, therefore she couldn't follow up after recovery. (pp. 241 – 248)
   2. Re: Job Number 22 CF Sligo. This was the position questioned at hearing as to why she didn’t follow up or accept – it was due to surgery and the job been filled in the interim. There was no follow up in April as the position had been filled (pp. 248-251)
   3. Re: Job Number 33 – Questioned on why the Complainant applied for a Job as a Dental Nurse in Dublin (p. 219)
   4. Confidential letter from the Complainant’s GP (of August 2023) presented to Dr. O'C in mediation on October 12, 2023 . The Complainant feels that at hearing it was implied that she had informed staff in M Health centre that she was in dispute with her former employers. (page 62-62 in the Respondent’s submissions to the WRC on the 13th May 2024)

Conclusion

1. We submit that, in remedy of her unfair dismissal, the claimant  be compensated to the maximum amount provided for under the Acts, no reduction of the award being warranted as she has met and exceeded the objective duty to reasonably mitigate any loss in consequence of the acknowledged unfair dismissal so far as was practicable.
2. We further submit that the Respondent failed to comply with its statutory obligations under the Minimum Notice and Terms of Employment Acts, and we seek award for the payment of the applicable notice payment given her years of service.

A further responding submission was received from the claimant’s representative on the 30th.Sept. 2024 – the references to matters unrelated to mitigation of loss are not included in the text below :

Introduction

 1. Adjudication Officer, as the Respondent has exceeded the direction given by you at hearing and taken the opportunity in its submission of 13/09/2024 to reassert as fact certain alleged events that are not related to the question of mitigation, the Complainant feels compelled to correct incorrect representations contained within that document.

 2. We are conscious that your direction had provided that the Respondent had a two-week period from 13/09/2024 (to 27/09/2024) in which to submit any response (on the question of mitigation), and so we avail of that timeline. The Complainant’s Responses to certain assertions in the Respondent’s Submission received on 13/09/2024

 4. I wish to highlight in the Respondent’s ‘Summing up’ Submission (13/09/2024):

 1. Respondent’s business name: They incorrectly refer to the business

  4.1.1: I am wrongly referred to as " E O D"

 5. Table 4.2.1 (Column 2): This is false. I was actively seeking employment during this period.

 6. 4.2.2: I did not state what they claim. I told the AO I was awaiting the results of my appeal, which wasn’t made until 21st December 2023, and this was immediately followed by the Christmas period.

7. 4.2.5: It’s unreasonable to penalize me for applying to the same company on different dates and for different positions.

 8. 4.2.5: While we addressed this in our summing-up, their statement remains false. It was even confirmed during cross-examination that C H contacted me directly

 9. 4.2.6: The statement that I was "wholly unqualified" for jobs I applied for during this period is incorrect, especially since they later claim I made meaningful attempts at jobs within the same industry post-21st May.

 10. 4.2.7: They are once again relying on the witness’s words, "no recollection," due to the absence of any records.

 11. 4.2.7: I never stated that my father may have handed in my CV to this employer. I clearly said I posted this unsolicited CV myself.

12. 4.2.9: This statement is false and doesn’t make sense. I don’t understand their wording about declining an interview in Sligo due to the distance from Galway.

13. 5.1: Although we already addressed this in our summing-up, it is worth reiterating that Dr. McK said "no recollection."

14. 6.1: Evidence has been submitted in our summing-up, including an email from this employer.

 15. 7.2: The M GP Manager stated "no recollection," not "no record" in his email

16. 8.1: I did not say what they claim. I stated that I was waiting for my appeal, which was delayed by the respondents and not decided until 21st December.

 17. 8.2: I applied for 50 jobs during this period, contrary to their claims.

18. 8.2: Their statement is contradictory—they say I didn’t apply for enough jobs, but also claim I was unqualified for the ones I did apply for.

 19. 8.3: I did not say what they are claiming.

 20. 8.3 (First Column): Again, I did not say this.

 21. 8.3 (Column 4): I have provided evidence of jobs I applied for during this period, which was included in my reference.

 22. 8.3 (Column 4): They inaccurately state that it was up to 21st July, but I didn’t start employment with Atlantic Dental Care until 2nd September. I was offered the position on 8th August.

 5. We would be grateful if you would take consideration of the above in so far as you consider the content – and the content previously submitted by the Respondent to which they refer – still relevant to your deliberation

Minimum Notice and Terms of Employment Act 1973

 We submit that, as no objectively established reasonable ground of gross misconduct may be said to apply to the claimant’s dismissal, the Respondent does not enjoy the exemption from liability for Minimum Notice on the termination of her employment. We refer you to the legal basis for this conclusion as set out in ADJ-00024679, where it states:

The Labour Court in DHL Express (Ireland) Ltd. v M. Coughlan UDD1738 stated that established jurisprudence in relation to dismissal law in this jurisdiction takes a very restricted view of what constitutes gross misconduct justifying summary dismissal. This is evidenced, for example, by the determination of the Employment Appeals Tribunal in Lennon v Bredin M160/1978 (reproduced at page 315 of Madden and Kerr Unfair Dismissal Cases and Commentary (IBEC,1996)) wherein the Tribunal states:

 Section 8 of the Minimum Notice and Terms of Employment Act 1973 saves an employer from liability for minimum notice where the dismissal is for misconduct. We have always held that this exemption applies only to cases of very bad behaviour of such a kind that no reasonable employer could be expected to tolerate the continuance of the relationship for a minute longer; we believe the legislature had in mind such things as violent assault or larceny or behaviour in the same sort of serious category. If the legislature had intended to exempt an employer from giving notice in such cases where the behaviour fell short of being able to fairly be called by the dirty word ‘misconduct’ we have always felt that they would have said so by adding such words (after the word misconduct) as negligence, slovenly workmanship, bad timekeeping, etc. They did not do so. (Appendix 9, p. 277) 

Summary

  We further submit that the Respondent failed to comply with its statutory obligations under the Minimum Notice and Terms of Employment Acts, and we seek award for the payment of the applicable notice payment given her years of service.

The respondent furnished the following submission on Losses , Mitigation and Redress  for consideration at the initial hearing on the 21st.May 2024:

6. Losses, Mitigation and Redress

 6.1 Reinstatement or re-engagement of the Complainant is not a practical option in this case.

 6.2 Without prejudice to the position of the Respondent that the termination of the employment of the Complainant was reasonable, the Respondent takes the view that compensation is the appropriate redress in this case, if the Complainant is successful in pursuing their complaint. 1

 6.3 Section 7(2) of the Acts 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— • 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, • the extent (if any) to which the said financial loss attributable to an action, omission or conduct by or on behalf of the employee, • the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid….”.

6.4 Section 7(3) of the Act provides that future loss may be taken into account as follows: “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”.

6.5 An Adjudication Officer is therefore required to consider the financial loss of a complainant and what steps were made to offset that loss.

6.6 It should be noted that the Complainant has not made any reference to her mitigation of loss.

6.7 In the Labour Court case of Cityjet v Gil (UDD215), the Complainant told the Court about the financial losses he incurred because of his dismissal. However, he was not able to produce any evidence to substantiate those losses or demonstrate efforts he adopted to mitigate his losses. Amongst other things, he contended that his inaction to apply for suitable alternative jobs was because of health challenges. As there was no evidence to support his losses, the Court reduced his WRC award from €6,000 to just under €1,800.

 6.8 A more significant compensatory award reduction can be seen in the Labour Court case of McGuire Haulage Limited v O’Farrell (UDD2324). Here, the Labour Court held that subsequent efforts made by an employee to mitigate his losses were inadequate where the efforts were “infrequent and largely informal rather than structured in nature” and limited “to a very restricted geographical area”. As such, the Labour Court reduced the initial WRC award by €50,000 to reflect a more just and equitable amount.

 6.9 In Michal Wrobel -v- Haccius Logistics Limited (ADJ-00035911) the respondent noted that the complainant had been on sick leave for a considerable period between the date of the termination of employment and the hearing of the complaint. Furthermore, the complainant’s attempts to find new employment had been severely hindered by his physical condition and his desire to work as a heavy machine operator. It was noted that within the period that Mr Wrobel was available to work, he had only applied for two positions. The Adjudication Officer noted that it is well established that a complainant must be able to demonstrate that upon their termination, they made every effort to mitigate their loss. He noted section 7(2)(c) of the Unfair Dismissals Act 1977, which states that when determining the amount of compensation to be awarded, one must consider: “the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid….” The Adjudication Officer noted the case of Sheehan v Continental Administration Co Ltd (UD/858/1999) where the Employment Appeals Tribunal had stated that a Complainant who is unemployed is required to spend “a reasonable amount of time each weekday seeking work”. They also commented that merely posting adverts or informing agencies that you are available to work is insufficient. The Adjudication Officer also drew attention to section 6(a) of the Unfair Dismissals (Amendment) 15 Act 1993, which amended section 7 of the principal Act. This section stipulates that: “if an employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding four weeks renumeration in respect of the employment from which he was dismissed calculated aforesaid) as is just and equitable having regard to all of the circumstances.” In this instance, the Adjudication Officer found that the attempts made by the complainant to secure alternative employment were entirely insufficient and demonstrated a failure on behalf of the complainant to mitigate his loses. In light of this, the complainant was only awarded four weeks’ pay, rather than the six weeks claimed.

 6.10 In N Smith & Sons Ltd t/a Ford Smiths of Drogheda v Ragelis (UDD2332), the Complainant alleged he had applied for “seventeen jobs” and had spoken “by telephone with six contacts in an eight-month period.” However, the Labour Court considered the efforts exerted by the employee fell “very far short of the obligation placed by the Act”. While the Court agreed with the WRC that the employee had been unfairly dismissed, it held that no compensation was payable in this instance, thereby varying the €2,000 compensation originally awarded to zero.

 6.11 In Jacinta Doyle v River Island Clothing Co. (Ireland) Ltd (ADJ-00029939), the Adjudication Officer noted the refusal of the Complainant to engage in the appeals process. It was stated that: “In terms of a standard Unfair Dismissals case, this refusal is very detrimental to the complainant. There is extensive case law to support this point”. The Adjudication Officer upheld the complaint under section 8 of the Unfair Dismissals Act,1977. However, only €1000 was awarded to the Complainant due to the fact that “the dismissal was unfair on procedural grounds but with a very significant Complainant counterweight”.

 6.12 In A PM/ Complainant v A Food Producer (ADJ-0002320, despite finding that the Complainant had been unfairly dismissed, the Adjudication Officer noted that the Complainant’s conduct had contributed to the decision to dismiss him. This conduct included the Complainant’s “attitude, his demeanour, his lack of trust in his employer – setting them up with recorded meetings, his repeated argumentative approach at meetings and his repeated references to wanting an offer to leave.” In the opinion of the Adjudication Officer, all of these actions had “undoubtedly contributed to his own downfall”. As a result of this, the Adjudication Officer concluded that the compensation to be awarded to the Complainant should be reduced by 60%.

 6.13 In A Senior Receptionist v A Boutique Hotel (ADJ-00016679), the Adjudication Officer found that the Complainant had been unfairly dismissed. In considering the amount of compensation to be awarded, the Adjudication Officer noted section 7(1)(c) of the Unfair Dismissals Act,1977 which states that when considering the issue of compensation, an Adjudication Officer must consider what is “just and equitable having regard to all the circumstances”. He also noted section 7(2)(f) which states that the complainant’s contribution to the situation must be taken into account. The Adjudication Officer concluded that the actions of the Complainant in this case warranted a reduction of 25% in the amount of compensation to be awarded. It was held that the Complainant had contributed to his own dismissal by acting in an intimidatory manner towards a Ms. XF.

6.14 Similarly, in Motor Mechanic v A Transport Company (ADJ-00021420), the Adjudication Officer concluded that the Complainant had been dismissed as a form of penalisation under the Safety, Health & Welfare at Work Act,2005. However, they acknowledged that the employee had made a significant contribution to the situation. Therefore, the compensation to be awarded was reduced in order to reflect this.

The respondent submitted   the following concluding submission on the  matter of mitigation of loss which was received on the 20th.Sept. 2024

Outline Submission on Facts

 3.1 This matter was heard  on 27 August 2024, having been previously adjourned from 21 May 2024. The Respondent repeats and relies on its written submissions made to the WRC on 13 May 2024. This submission is in respect of the nature of the evidence heard on 27 August 2024 and should be read in tandem with the Respondent’s written submissions. This summing up of the evidence is prepared without the benefit of a verbatim note of the evidence or a transcript.

 3.2 The Respondent conceded at the outset of the hearing that it was not in a position to go into evidence in respect of liability as to the Complainant’s claim of unfair dismissal and, accordingly, conceded liability arising from technical shortcomings in the manner in which she was dismissed. The Respondent indicated that the hearing of the Complainant’s complaint was, however, necessary in circumstances where the bona fides of the Complainant’s purported attempts to mitigate her loss was in issue.

 3.3 The Complainant’s representative opened the hearing by bringing the Complainant through her evidence in chief. The Complainant’s evidence in chief largely consisted of her explanation of how the figures calculated in respect of her claim as of 21 May 2024 and 27 August 2024 was arrived at. The Complainant also gave outline evidence in respect of her claimed attempts to have secured alternative employment, thereby mitigating her loss.

 3.4 Counsel for the Respondent’s cross examination of the Complainant focused on two overall periods in time: the period from her dismissal on 14 November 2023 to 21 May 2024 and then from 21 May 2024 to 27 August 2024.

3.5 The necessary requirements of section 7(2)(c) of the Unfair Dismissals Act, 1977, is that consideration must be given to “the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate…”.

 3.6 Further, section 6(a) of the Unfair Dismissals (Amendment) Act 1993, which amended section 7 of the principal Act, provides that “if an employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding four weeks renumeration in respect of the employment from which he was dismissed calculated aforesaid) as is just and equitable having regard to all of the circumstances.”

 3.7 The Labour Court has set out a test for proof of efforts to mitigate one’s loss. The Court has stated that “the court expects to see that employees who are dismissed spend a significant portion of each normal working day, while they are out of work, engaged actively in the pursuit of alternative employment”. In other words, the Complainant is required to spent “a reasonable amount of time each weekday seeking work”. If this test is not met, then the Labour Court made it very clear that this had to be reflected in the compensation awarded.

 4. Evidence of the claimant

 4.1 Evidence in Chief

 4.1.1 The Complainant in this case  gave evidence in chief as to her calculation of her loss of earnings. She stated that she was available and seeking work from the date of her dismissal to her hearing date in May 2024, save for a period of four weeks, during which she was recovering from a surgical procedure.

4.1.2 The Complainant provided an excel spreadsheet which, in her evidence in chief, she stated was a record of all the attempts she had made in an attempt to secure alternative accommodation. The Complainant also gave evidence in respect of documentation at 7 Appendix 8 of her written submission. More particularly, the Complainant confirmed during her evidence in chief that her calculations at page 203 were correct and that the remainder of the documentation in Appendix 8 related to her attempts to mitigate her losses.

 4.2 Cross Examination

4.2.1 The Respondent sought to establish that the Complainant’s evidence in chief at 2.1 and 2.2, above was not reliable. The cross-examination of the Complainant focused on four temporal periods, given that the Complainant was unavailable to work due to illness from 22 February 2024 until at least 29 March 2024:

Period Reason 14 November 2023 to 7 January 2024 Date of dismissal – date of first record of attempts to mitigate loss

 7 January 2024 to 22 February 2024 Date of first record to the date that the Complainant became unavailable for work due to surgery

 29 March 2024 – 21 May 2024 Date upon which the Complainant stated she was certified fit and able for work and the first hearing date of the within complaint.

 21 May 2024 – Date of new employment The Complainant became aware of the Respondent’s intention to challenge the bona fides of her purported attempts to seek alternative employment on the first hearing date of the within complaint. It will be submitted that once aware, she began to make genuine attempts which resulted in her securing employment.

 4.2.2 The Complainant was asked about the first temporal period during her cross examination. She confirmed that she did not make any attempts to mitigate her loss until she was told in early January by her representative that she will be required to show evidence of her attempt to mitigate her loss. Her motivation for seeking alternative employment was, at that stage, established. In circumstances where the Complainant has accepted in evidence that she made no attempts to mitigate her loss during the first temporal period, it is submitted that this period should be excluded from any reckoning in terms of compensation, as required by section 7 (7)(C) of the Unfair Dismissals Act, 1977 as amended by section 6(a) of the Unfair Dismissals (Amendment) Act 1993.

 4.2.3 The Complainant was brought through the second temporal period by reference to documentation that she had submitted in support of her claim to have made attempts to mitigate her loss. A number of issues were put to her in respect of her evidence.

 4.2.4 In the first instance, she was asked about the nature of the positions that she had applied for and, more particularly, her applications for positions within hotels, as a VRT administrator and as an Information Support Officer. The Complainant stated that she applied for these positions via Indeed and that she was desirous of using her transferrable skills in another industry. It was put to the Complainant that she had applied for other, more appropriate positions in Balbriggan, Co. Dublin, which is a great distance from where she lives, she stated that if successful she would be willing to relocate. The Complainant was asked about the nature of her applications to employers via Indeed and whether they were bona fide. An example of the type of response received is evidenced at page 246 of the Complainant’s ‘Appendix 8’ to her submissions.

 4.2.5 A number of the Complainant’s early applications were to the same employer (Redcastle Hotel). She was asked why she persisted with applications to an employer where she had not been successful in her earlier applications; she stated that they were for different positions. It is accepted that the positions which she appears to have applied for were in respect of similar but different positions. However, a question arises as to the bona fides of those applications in having regard to the fact that the same employer had rejected her application in respect of similar positions, the overall circumstances of the Complainant’s claims and the Respondent’s objections. The Complainant had applied to the prospective employer, as set out at page 245 of the same appendix. She stated “I just want to let you know although I am a qualified Dental Nurse with 10 years’ experience I am not registered with the GDC as I qualified in the republic. I also want to let you know that I have to go for spinal operation tomorrow in Dublin and the consultant has said it will be up to 6 weeks recovery before I can return to work. (Appendix 8 Page 245)/. It was put to the Complainant that her message to her prospective employer was negative as evidenced by the first line in response, “I have seen a message from you from last week, however, I don’t know how to reply to that message” (Appendix 8 Page 246). The Complainant denied that her message was negative and stated that she felt the meaning of the response was that the prospective employer didn’t know how to send a reply, despite having previously communicated with her via the same platform. The Complainant’s evidence is not credible and the nature of her message, evidenced at page 245, it is submitted, is indicative of the standard of effort she was making to secure employment; a point which is reaffirmed by the reaction of the prospective employer to it. Further, the Complainant had stated in her evidence in chief as well as her written submissions that her period of absence due to illness was 4 weeks; in the correspondence evidenced above she stated it was 6 weeks. This internal inconsistency in her account now requires resolution by way of the production of a certificate of illness benefits, post-hearing. Regardless of the period certified, the Respondent respectfully submits that the Complainant’s own internal inconsistency with respect to this particular point is indicative of her overall credibility.

4.2.6 It is submitted that, otherwise, the Complainant’s earliest applications were in respect of positions which she was wholly unqualified for or which were situated in places which were impractical for her to commute to. In the circumstances, it is also submitted that these applications were not bona fide applications and cannot be accepted to represent any real genuine efforts to secure alternative employment.

4.2.7 The Complainant was asked about her attempts to mitigate her losses during the third temporal period. She was asked about her alleged application of 3 April 2024. It is disputed that this application was ever sent and proven through the evidence of Dr McK that it was not received. The Complainant stated that her father may have been the person to deliver this letter. It is noted that the Complainant’s father was not called to give evidence and, as such, there is no evidence that this application was ever sent.

 4.2.8 The Complainant was asked about her alleged application of 6 April 2024 to SD, B. It was put to the Complainant that the practice had not received her application despite her stating that she had caused it to be posted to them. Mr. PB gave evidence on behalf of his employer and the practice that there was no record of any application having been received from the Complainant. In the circumstances, it is submitted that in circumstances where the evidence of the Complainant is not consistent with the evidence of the alleged recipient, that the evidence of the alleged recipient should be preferred on its own merits as well as in the context of the overall evidence.

 4.2.9 The Complainant was asked about her application of 26 April 2024 in respect of a position in Balbriggan County Dublin. The bona fides of that application was put to the Complainant, 11 she stated that she was willing to relocate to Dublin if she was successful. It was put to the Complainant that her evidence was inconsistent with her evidence in respect of declining an interview for a position in Sligo due to its distance from Galway. It is submitted that her response and explanation for that inconsistency was not acceptable.

5. Evidence of Dr .McK

 5.1 Evidence was given by Dr. McK who practices at C Dental. Dr. McK was asked whether he had ever had sight of the application letter dated which the Complainant submitted to the WRC in support of her claim that she had made attempts to mitigate her loss. Dr.McK confirmed that he had not had sight of the letter before. He stated that the first time he had had any contact from the Complainant was subsequent to 21 May 2024, being the first hearing date of this complaint.

Evidence of PB

 6.1 Limited evidence was given on behalf of SD, Buncrana by PB. Mr. PB confirmed that he had worked for his employer and the practice for over 10 years and that he was familiar with the practice’s administrative operations and procedures. He confirmed that there was no record of the practice having received any application from the Complainant, whether by post or by email.

Strength of Evidence

 7.1 The Complainant has submitted two distinct categories of documentation in respect of her claim to have mitigated her losses: (a) email receipts from third party recruitment websites in respect of a broad range of positions; and (b) letters of interest to various medical and dental practices. Category (a) of the documentation submitted is, by its nature, beyond the scrutiny of the Respondent and / or the WRC. As such, it is the Respondent’s submission that limited weight can be placed on that category of documents. With respect to category (b), the Respondent engaged in a close examination of those application submitted to the WRC in support of her claim and, having heard the evidence, a portion of those applications were found not to have been received.

 7.2 It is the Respondent’s submission that the Complainant’s evidence regarding her efforts to mitigate her losses at all times before 21 May 2024 is unreliable and self serving.  The Respondent relies on the viva voce evidence of independent witnesses to illustrate two instances wherein the Complainant’s evidence is demonstrably not credible. By the her own admission under cross examination, it was also revealed that a third letter of interest to another surgery was also not received.

 8. Final Submission on Evidence of Mitigation

 8.1 In respect of the first temporal period, the Complainant has admitted to not having made any efforts until she was advised to do so by her union representative. As such, it is the Respondent's respectful submission that any award due to the Complainant in respect of this period ought to be set aside for failure to mitigate her loss.

 8.2 The Respondent has demonstrated that the applications made during this period were not made bona fides and, as such, the efforts of the Complainant to mitigate her loss, if any, fall well short of the standard of effort required by Philip Smith v Mark Leddy (UDD1974); and Aisling Ryan v Pharmacy O’Riain Limited (ADJ -00029267).

8.3 The Complainant submitted a number of applications she claims to have made during the third temporal period; the Respondent led evidence in respect of two applications that fundamentally contradicted the Complainant’s evidence. Further, the Complainant also admitted under cross examination that a third application to a medical practice was also not received by that practice. As such, the Complainant’s evidence in respect of this period is highly questionable and the Respondent submits that the standard of proof, being the balance of probabilities, has not been  met in respect of those applications.

The Complainant did not produce acknowledgements or posting receipts in respect of the balance of her applications during this period. The periods to which the Respondent refers are set out in the below table:

 Date Submission on Mitigation Dismissal – 7 January 2024 (First Period) Complainant accepts that she made no attempts to mitigate her loss

7 January 2024 – 22 February 2024 (Second Period) Complainant claims that she was available and seeking work during this six-week period, however the Respondent relies on its submission, above, in response

 22 February 2024 – Mid April 2024 (Certificate from Social Welfare Awaited)

Complainant was unavailable for work due to illness

 Mid-April 2024 – 21 May 2024 (Third Period) Complainant has no proven attempts to seek employment during this four-to-five-week period.

21 May 2024 – 21 July 2024 (Fourth Period) Complainant made meaningful attempts to secure employment and succeeded in doing so.

 8.4 The Respondent respectfully submits that the Complainant only began making meaningful attempts to secure alternative employment from the date she became aware that the Respondent was taking issue with the bona fides of her previous attempts. This is borne out by the fact that she quickly secured alternative employment.

8.5In the circumstances, the Respondent respectfully submits that , at its height , any award made to the complainant should be limited to no more than 8 weeks pay , having regard to the meaningful attempts that she made to mitigate her loss during the 8 weeks of that 4th.temporal period.

Minimum Notice and Terms of Employment Act 1973

The respondent submitted as follows :

5. Complaint under CA-00061346-002

5.1 In respect of the complaint seeking adjudication under Section 12 of the Minimum Notice & Terms of Employment Act, 1973, the Complainant briefly contends that she was unfairly dismissed in circumstances where her rights under the Minimum Notice & Terms of Employment Act, 1973, with no notice period or payment in lieu being made.

 5.2 The Unfair Dismissal Act 1977 provides that a dismissal is unfair unless there are substantial grounds justifying the dismissal.

5.3 The Act does not provide a high degree of intrusion into the managerial decision making and the WRC and former EAT have consistently held that the question of whether the employer has demonstrated that there were substantial grounds justifying the dismissal was to be answered by applying the objective standard of the way in which a reasonable employer, in those circumstances and in that line of business, would have behaved.

 5.4 The Respondent is a medical facility and also needs to consider the regulatory and ethical obligations owed to patients and clients. This unique environment creates an additional need for trust and confidence between employer and employee, which was broken by the Complainant.

 5.5 As to whether there were substantial grounds for an employee’s dismissal on the ground of gross misconduct, the applicable legal test is the “band of reasonable responses” test, as comprehensively set out by Mr Justice Noonan in the context of Section 6 of the Unfair Dismissals Act 1977 in the High Court case of The Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241, wherein he stated: “It is thus clear that the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in 12 s. 6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer's conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned - see Royal Bank of Scotland -v- Lindsay UKEAT/0506/09/DM.”

 5.6 The WRC may look at the ‘reasonableness’ test and examine whether the employee conducted themselves so unreasonably that the employer cannot fairly be expected to put up with it any longer, thereby terminating their employment.

 5.7 The 'Bond of Trust' issue is best set out in the leading UK case of Malik and Mahmud v Bank of Credit and Commerce International SA [1997] UKHL 23, which confirmed the existence of the implied term of mutual trust and confidence in all contracts of employment.

5.8 The House of Lords unanimously held that the term of mutual trust and confidence would be implied into the contract as a necessary incident of the employment relation. This was a term implied by law.

Complaint under the Minimum Notice and terms of Employment (Information) Act , 1973

As the parties accepted that the claimant was unfairly dismissed, I uphold the complaint.

Unfair Dismissals Acts 1977 – 2015

I have reviewed the evidence presented at the hearing, the submissions made and the authorities relied upon. The criteria laid down in the Act – Section 7 (1) (c) (i) for ascertaining the amount to be paid in compensation in respect of any financial loss incurred by the claimant and attributable to the dismissal  is “ is just and equitable having regard to all of the circumstances”. The union has requested that the claimant be compensated to the maximum amount provided for under the Acts with no reduction of the award being warranted on the basis that the claimant met and exceeded the objective duty to reasonably mitigate any loss in consequence of the acknowledged dismissal. The union calculated the actual loss and the future loss arising from her new appointment to be€45,290.10.The respondent has questioned the bona fides of the claimant in her endeavours to secure alternative employment and has argued that the claimant only began meaningful attempts to secure alternative employment  when the respondent challenged the authenticity of her attempts to find alternative employment.

I have taken account of the entirety of the submissions from both parties including the documentation furnished by the claimant regarding her contact with respective employers as well as her records of interview opportunities. Additionally I have had regard to the confirmation from the DSP of her unavailability for work from the 28th.Feb.2024 – 3rd.April 2024.I have also taken account of the buoyancy of the labour market in terms of opportunities for alternative employment.  I note that the claimant did not pursue alternative work from the date of dismissal to the 21st.December  as she was awaiting the outcome of her appeal against the dismissal. I also note that the claimant’s documentation for January 2024 is sparse with respect to her efforts to secure alternative work. Determination UD858/1999 Sheehan-v-Continental Administration Co.Ltd- set out the test  to be applied in the calculation of loss :-

“A claimant who finds himself out of work should employ a reasonable amount of time each workday 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”.

Taking all of the foregoing circumstances into account, I find the claimant made reasonable efforts to secure alternative employment from February 2024 onwards and consider compensation of

€39, 284.10 to be just and equitable. I consider this to be consistent with the principles set out by the Labour Court in Determination No. UDD2242.