Complainant

Respondent

Parties

John  O'Brien

Thermo Fisher Scientific Cork Ltd

Representatives

Jeff Hitchmough BL instructed by  Deirdre Kennedy David J O'Meara & Sons, Solicitors

Mark Curran BL instructed by Niall Devitt Mason Hayes & Curran LLP

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-00062095-001

08/03/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00062095-002 WITHDRAWN

08/03/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00062095-004 WITHDRAWN

08/03/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00062095-005 WITHDRAWN

08/03/2024

The Complainant worked as a mechanical fitter with the Respondent pharmaceutical company from 26 June 2015 until the date of his dismissal on 20 August 2023 for gross misconduct, The Complainant earned an average  €3,349 weekly, which included regular overtime. The fact of dismissal is not in dispute, but the Complainant submits that while  he accepts that the incident in question was misconduct, he argues it was not gross misconduct to the extent that it justified dismissal.

The Respondent submits that after a full and fair investigation and disciplinary process, it found that  the Complainant had deliberately damaged company property and the  decision to dismiss  was within the band of reasonable responses and proportionate to the conduct of the Complainant.

It was common case that the procedures employed  in the investigation and disciplinary process were fair and the issue for me to decide was whether the dismissal was a proportionate response by the employer.

The Respondent conducted a full and fair investigatory process into a serious complaint regarding damage to company property on 10 August 2023. The Complainant admitted that he was aware that there was waste oil in an open  container that was placed in  an apprentice’s  tool bag. Hi actions  resulted in considerable damage to company property, the tools, and the bag,  in an act that appeared deliberate. The subsequent  letter sent on 11 September 2023 to the Complainant  outlined that damage to company property constituted gross misconduct, which could result in disciplinary sanctions, including dismissal.

The Complainant was represented by his trade union shop steward and official at a disciplinary hearing where he admitted  causing damage to company property but argued that it was in  reaction to a prank i.e., the hiding of his DECT phone (short wave communication device). The Respondent considered that his reaction was extreme and unwarranted. The Respondent noted that the Complainant had already received a written warning for inappropriate behaviour on 31 May 2023, which had currency of six months. The incident of 10 August was three months into that period.

The Respondent submits that the decision to dismiss was within  the band of reasonable response and was proportionate to the conduct of the Complainant. The Complainant  admitted losing his temper in work and the Respondent submits that he did so in a serious manner which resulted in a financial loss to the Respondent . In addition, the Complainant  had an active warning on his file at the date of dismissal. The Respondent exhibited  correspondence to show  that the mitigating factors, as they applied to the Complainant, were considered at both disciplinary and appeal hearing albeit they were not deemed sufficient to reduce the sanction from a dismissal.

Summary of the Evidence of Mr Shane Buckley, HR Lead:

The witness described the premium put on health and safety at the site, as well as the need for a clinical level of cleanliness as demanded by the various auditors who inspect the processes and products.

He described the circumstances that led to a written warning for the Complainant in May 2023. The Complainant was charged with not wearing his safety  goggles when transiting between  units at the plant and he had also ignored instructions by a supervisor. These actions by the Complainant were considered serious transgressions that were clearly classed as inappropriate behaviours  but mitigating circumstances saw that the sanction merited a stage 2 written warning.

The witness was asked about the monetary loss to the Respondent as a result of the oil damage to the tools and engineering room. He estimated that the tools cost approximately €700 to replace, the tool case, and the bag was €200. The apprentice spent a considerable amount of time cleaning  tools,  and he had no figures for the deep cleaning of the engineering room by contract cleaners but estimated that it was a substantial extra.

The witness described the deliberate damage to company property as being gross misconduct. In cross-examination, the witness accepted that considerable overtime had been worked by the Complainant prior to the August incident, but records show it was within the legal norms. He also stated that overtime was strictly voluntary, and no complaints were ever made by the Trade Unions to the HR department resulting from excessive overtime rates. The witness admitted that the Respondent was aware of a certain amount of horseplay amongst engineering staff on site,  which the Respondent does not condone and is taking active steps to address such behaviour.

Summary of the evidence of Ciaran Coughlan, Disciplinary Officer:

The witness had 24 years’ experience working on site in a senior management role where he managed capital spending. He was approached by the HR Lead to conduct a disciplinary hearing as a result of an investigation report by a senior manager, Mr Donal Healy, who found that the Complainant had damaged company property by his own admission. The witness said the Complainant was fully represented at the disciplinary hearing and admitted that he “ had lost the head” after he discovered that his phone had been hidden by an apprentice, Mr X. The Complainant said he reached for the first thing that he saw, which was a translucent container of waste oil and put it in his (Mr X’s) bag  resulting in serious oil damage to the  tools, the tool bag which, and  in addition,  contaminated  the surrounding area.

The witness said that the Complainant contended that he was under a lot of pressure due  to familial and financial pressures which led to him working excessive overtime. This resulted in  him feeling fraught at the time of the incident and contributed to his  loss of temper for which he apologised. The witness said he it was a tough decision to make but that he had considered all the mitigating circumstances, in addition to the fact that the Complainant was already on a written warning but could come to no other conclusion but find that the there was an intention to damage property. He had considered lesser options but believed they were not appropriate in this case.

The witness accepted in cross-examination that no sanction  was given to  Mr X, the apprentice, for what might be considered horseplay but believes that he may have been called in by his supervisor to account for events. He did not describe the DECT phone as part of PPE but said that it was needed for workers when they were operating alone. The witness accepted that, in his written letter, setting out the reasons for his decision, he did not refer to provocation as a mitigating factor.

Summary of the Evidence of Ms Edel Collins, Site General Manager.

The witness had 21 years’ experience on site and was Site General Manager for 3 years. She considered all the mitigating factors as set out by the Complainant’s appeal letter to her, including the stress and personal issues that the Complainant submitted as contributory factors. She made further inquiry including the interview of further witnesses. The Complainant had stated that the task on the day that he was engaged in as a high-pressure assignment, but the witness concluded after hearing further witness evidence that there was nothing exceptional about the replacement of a pump on the day in question. The witness re-iterated the high standard of health and safety demanded on site. Furthermore, she said that  said it would have been potentially a profoundly serious situation if contaminated tools were used in the maintenance of pharmaceutical product  equipment. Having reviewed all the circumstances, she found that dismissal was an appropriate sanction and that no lesser sanction could be appropriately applied. The witness accepted that the  fact that the there was an active disciplinary sanction in place was a  factor in the making of her decision to reject the appeal.

Legal Argument:

The Respondent submits that arising from the foregoing, the investigation and disciplinary process in respect of the Claimant was managed in accordance with fair procedures and natural justice and was compliant with the Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, S.I. No. 146/2000 .

The Respondent relies upon  Section 6(7) of the Unfair Dismissals Act 1977 (as amended) which  provides that:

“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”

The Respondent submits that the foregoing section should be read in conjunction with the test for the reasonableness of a dismissal as set out in British Leyland v Swift [1981] IRLR 91  by Lord Denning MR at pg. 93: “The correct test is: Was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But it a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered in all these cases there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably take a different view.” The Respondent submits that this was further iterated in Pacelli v Irish Distillers Limited [2004] 15 ELR 25  where the Court cited Bunyan v. UDT (Ireland) Ltd [1982] ILRM 404 at p. 413 with approval and stated: “The decision to dismiss has been taken and our function is to test such decision against what we consider the reasonable employer would have done and/or concluded”.

The Complainant  submits that in the following circumstances, the decision to dismiss was disproportionate:

1.       1. He  acted spontaneously and without the intention to damage the property in question,

2.       2. The value of the property damaged was relatively low,

3.       3. The Complainant had eight years' service with the Respondent company

4.       4. He apologised continually and  suggested alternative sanctions.

5.        

6.       The Complainant  underwent counselling to address any underlying issues he had and made the Respondent aware of his personal circumstances and the effect that dismissal would have on him.

The Complainant argues that  the sanction of dismissal was entirely disproportionate given the facts of the case, that “the punishment did not fit the crime.”  In addition, he submits  that the Respondent placed too much emphasis on its perceived gravity of the conduct and failed to place any or any adequate emphasis on the gravity of dismissal on the claimant given his personal circumstances, thus rendering its decision to dismiss disproportionate. The Complainant further contends  that the lack of proportionality in the Respondent's decision is exacerbated by its failure to consider alternative sanctions to dismissal.

Summary of the evidence of the Complainant.

The Complainant said he had eight years of service with the Respondent, which remained unblemished until  May 2023, when he received a stage two written warning under the Respondent’s disciplinary policy for insubordination. This arose when he failed to wear safety goggles while moving between buildings, despite being instructed to do so by a colleague. The warning was set to remain active for six months. The Complainant accepted he did not appeal the warning and was therefore bound by it.

On 10 August 2023, the Complainant  working alongside his colleague, was instructed to repair a pump. They took the pump to a  bench to strip and clean it, with several apprentices observing. The Complainant , who felt under time pressure, cleaned the pump, and left to refit it. Upon returning to the workshop, he realised his DECT phone was missing, which he considered to be an important safety tool. After searching, the Complainant  asked his colleague  to call the phone, eventually finding it hidden in a container. The apprentice, Mr X,  admitted to hiding the phone as a prank. The Complainant said he was tired from working excessive hours and was also stressed with family issues. He lost the head  and he reached for the first thing he could find, which was the container of waste oil and impulsively threw it at Mr X’s tool bag without realising its contents. The Complainant said he did not intend to cause damage to property or tools.

After lunch, he said he  became aware of the spill and apologised to Mr X, acknowledging it was workplace banter and holding no ill will. On 15 August 2023, Mr X sought approval for a replacement tool bag. The Complainant sent an email to all colleagues in his Department containing an apology for his behaviour. He subsequently took  part in an anger management course which he believed had an incredibly positive effect on him. The Complainant said he admitted to his actions all the way through the investigation and disciplinary procedures. He explained to the Respondent that  it was a moment of frustration and acknowledged the seriousness of his actions.

After his dismissal, the Complainant formed a company where he was the main shareholder and hired his services out to a contractor from 1 November 2023 until cessation of that contract on 1 November 2024. Documentation was provided to the hearing showing a loss of €93,049.32 from the date of dismissal to the date of the hearing. This documentation reflected a 39-hour week at €40 an hour over the relevant period. The Complainant was unemployed from 1 November 2024. The Complainant said though his company was employed as a sub-contractor and he being the sole employee, he had also submitted applications for direct employment at three companies but was unsuccessful at various stages of the recruitment process.

In cross-examination, the Complainant acknowledged  that the previous stage 2 warning was for inappropriate behaviour  and that he was bound by the decision when he did not appeal it. It was put to the Complainant that what he stated in sworn evidence was a contradiction of what he had told Mr Coughlan at the disciplinary meeting regarding his actions on 10 August. Counsel for the Respondent pointed out that in sworn evidence the Complainant said he “threw” the container of waste oil whereas in his statement to Mr Coughlan at the disciplinary meeting of 13 September he stated that “…I picked up another container close by and put it in the bag.” The Complainant accepted that it seemed like a contradiction but that it was a lack of articulation on his behalf. On the issue of mitigation of loss Counsel for the Respondent put it to him that the figures quantifying his loss as  submitted to the WRC at various stages, were contradictory and questionable. Counsel showed that the original figures for loss were estimated at €235,811, this was reduced to €163,661 some months later and at the hearing revised figures were submitted which showed €93,049. It was put to him that the figures inflated and could not be seen as credible. The Complainant professed ignorance with regard to proper accounting for mitigation of loss and believed that the latest figure was properly calculated by his legal team to show the correct figure as at the time of the hearing.

Legal Argument:

The Complainant  cited a number of cases in support of his claim:

  Bank of Ireland v O'Reilly [2015] IEHC 241 to show that an employer must show that a dismissal was procedurally and substantively unfair.

Bunyan v United Dominions Trust [1982] ILRM 404

The fairness or unfairness of the dismissal is to be judged at the objective standard of what would the reasonable employer in those circumstances and in that line have business have done.

 JVC Europe v Panisi [2011] where  it was stated: "The issue for the tribunal deciding the matter will be whether the circumstances proven to found the dismissal were such that a reasonable employer would have concluded that there was misconduct and that such misconduct constituted substantial grounds justifying the dismissal."

Lennon v Bredin 160/1978  which  the Complainant states can be cited as the objective test for gross misconduct when the EAT stated  "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. "

DHL Express (Ireland) Limited v Michael Coughlan [2017] UDD1738 where the Labour Court and the EAT found that the dismissal was disproportionate, citing that the failure to safeguard company property did not meet the threshold for misconduct as held in Lennon. The Complainant also contends that It was also held the sanction of dismissal was entirely disproportionate and unwarranted, and that the employer had failed to consider alternatives to dismissal, including options such as contributing to the costs of repairs.

 Abdullah v Tesco Ireland Plc UD/1034/2014,  Frizelle v New Ross Credit Union Ltd [1997] IEHC 137, Lorraine Fitzpatrick v Dunnes Stores [2014] (UD1202/2013),  Preston y Dunnes Stores [2013] 11 JIEC 0407 and David O'Connor v Servier (Ireland) Services Limited [2017] 28 ELR 325 were further cited on the question of proportionality.

 The Complainant submits  that his  conduct ought not to be objectively categorised as gross misconduct. He did not  intend to damage any company property or property belonging to another. He did not deliberately cause damage to either the tools or to the tool bag. He acted spontaneously and without calculation and without knowledge of what was within the container and in the belief that it would not spill. He submits that he  did this against the background of significant stress in his personal life and stress at work. He argues that it falls  short of what was considered gross misconduct as envisioned in Lennon and DHL Express. The Complaint asserts that he apologised to both Mr X and his colleagues after the incident and offered to pay for the damage. Notwithstanding this, the Complainant argues the  Respondent  elected to avail of the ultimate sanction of dismissal without taking into consideration lesser sanctions such as suspension or having the claimant pay for the damage.

The Complainant submits the Respondent placed excessive weight on the perceived gravity of his actions while failing to consider the profound consequences of dismissal on him, thereby rendering the decision disproportionate. Additionally, the Respondent did not sufficiently explore alternative sanctions to dismissal.

It was agreed by both parties that the question for me to decide as whether the decision to dismiss was proportionate having regard to all the circumstances. Section 6(7) of the Unfair Dismissals Act 1977 (as amended)  provides that:

“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”

The High Court has commented on this provision  in Governor and Company of the Bank of Ireland v James Reilly [2015] IEHC 241, in which Noonan J remarked:

"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."

Flood J in the High Court case of further stated Frizelle v New Ross Credit Union Ltd [1997] IEHC 137 in The decision to dismiss should be “…a decision proportionate  to the gravity of the complaint,  and of the gravity and effect of the effect of the dismissal on the employee.”

In Express (Ireland) Limited DHL v Michael Coughlan UDD1738 , the Labour Court referred to established jurisprudence on the question of gross misconduct justifying summary dismissal and stated as follows:

“The 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.’

Counsel for the Respondent  made the arguable case that the legislation adjudicated upon in Lennon v Bredin referred to the Minimum Notice and Terms of Employment Act 1973 and was not a test of what constituted gross misconduct under the Unfair Dismissals Act 1977 (as amended) . I disagree. The application of the 1973 Act is linked to any act of  gross misconduct leading to summary dismissal, therefore it  has to be  intrinsically linked to a usable definition of gross misconduct when considering the fairness or otherwise of a decision to dismiss under the Unfair Dismissals Act, as utilised by the Labour Court in Lennon v Bredin.

When assessing the seriousness of the Complainant’s behaviour, I believe it is essential to consider the underlying culture within the engineering room. In his testimony, Mr Buckley, the HR Lead, acknowledged that instances of horseplay had occurred and were known to the company, although such behaviour was not condoned. He stated that the company was actively taking steps to eliminate such conduct.

I note that the Complainant’s reactive behaviour was prompted by a prank in which his DECT phone—an important safety communication device—was hidden by Mr X. Furthermore, the act of hiding the DECT phone went unpunished, which suggests a tolerance for certain behaviours and an inconsistent approach to health and safety. In Mr Coughlan’s dismissal letter, he listed the mitigating factors he had considered, but notably excluded what can be described as the provocation that led to the Complainant’s actions. I consider this to be a significant omission.

When evaluating aberrant workplace behaviour, it is crucial to recognise that aggression rarely occurs in isolation; it is often a response to an action or event directed at the individual. I am satisfied that had Mr Coughlan seriously considered the underlying workplace culture and the prank, which was designed to provoke a negative reaction from the Complainant, he would have acknowledged it as a significant mitigating factor. I am further satisfied that any reasonable employer, having given meaningful consideration to such circumstances, would have regarded the behaviour as serious but would likely have imposed a sanction less severe than dismissal. Indeed, in a previous incident in May 2023, the Respondent initially charged the Complainant with gross misconduct, but after considering mitigating circumstances, the penalty was reduced to the relatively minor sanction of a Level 2 warning.

Ms Collins, the Plant Manager, and the individual who heard the appeal, rightly emphasised the importance of plant safety and the exacting standards of meticulousness required of employees in a highly regulated and critical industry. However, I am satisfied that her decision to reject the appeal was, in no small part, influenced by the previous health and safety incident involving the Complainant. In her decision, she referred to it as follows: “You have an active disciplinary action from May 2023 on your file, also for a gross misconduct case, which the disciplinary hearing manager reviewed as part of his deliberations.”

Having reviewed the Level 2 warning issued to the Complainant, I note that it contains no mention of gross misconduct. While the incident may have initially been perceived as such, it was determined not to be gross misconduct after a proper investigation. Furthermore, I believe it was incumbent upon Ms Collins, as it was upon Mr Coughlan, to examine the workplace culture, where a tolerance for horseplay—without sufficient corrective action—contributed to the serious incident involving the Complainant.

The act of pouring or throwing waste oil, which damaged Mr X’s company-supplied tools, was undoubtedly an unacceptable response. While it caused significant financial cost to replace the tools, I am not persuaded that the Complainant’s actions constituted potential serious criminal behaviour, as outlined in Lennon v Bredin.

In conclusion, and for the reasons outlined above, I do not believe the Respondent gave sufficient consideration to the latent culture of horseplay that existed in the Complainant’s workplace or to the relative gravity of his actions within this context—despite their clear unacceptability. I therefore find that the decision to dismiss was not “… within the range of reasonable responses of a reasonable employer to the conduct concerned,” as referenced by the High Court in O’Reilly v Bank of Ireland. I find that the Complainant was unfairly dismissed.

Redress:Redress for unfair dismissal is provided for under Section 7 where it provides:-  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. (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...

The Respondent cited  Wrobel v Haccius Logistics Ltd ADJ-00035911 (2022) , where the Adjudicator determined that it “is well established that a Claimant must make every effort to mitigate loss in the event of a termination.”  This accords with Section 7(2)(c) of the Unfair Dismissals Act 1977 which makes it clear that in determining the amount of any compensation 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 the loss aforesaid”.

 No argument was made to me regarding reinstatement or reengagement, which I believe would be unrealistic forms of redress, having considered the full circumstances of this case. The Respondent submits the  test for a complainant  to mitigate their loss is set out in the decision of the Labour Court in Smith v Leddy UDD1974 (2019). In this case, the Labour Court determined 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” and stated that if this test is not met, then this had to be reflected in the compensation awarded to the Complainant .

The Respondent further cited  Sheehan v Continental Administration Co Ltd UD 858/1999  within which the Employment Appeals Tribunal considered an employee’s efforts to mitigate and held: “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.” Accordingly, the Respondent contends  that the Adjudicator should have regard to the failure of the Complainant to mitigate his loss to the required standard as such  the Complainant should only be awarded the minimum payment.

In cross examination Counsel put it to the Complainant that he had submitted varying sums to the WRC which inflated his actual loss. The Complainant put this down to his lack of accountancy skills, but I  agree with the Respondent that  he had submitted documentation in a very opaque manner prior to the hearing. Documentation was submitted by the Complainant at the second day of the hearing, with accompanying receipts. The documentation purported to show that his  actual  loss was €93,049. The Complainant was unemployed at the date of the hearing and  gave no clear indication of his plans for future earnings. However, in further cross examination it was established that his estimation over the previous twelve months  was on his own lifestyle choice of working only a 39-hour week at €40 per hour, after applying for three jobs only in the intervening period. I consider the efforts of the Complainant to mitigate his loss, to be feeble. It was established that a significant amount of overtime was  worked by the Complainant at the Respondent company, but this was not factored in separately in the Complainant’s comparative figures. Given the unsatisfactory nature of the submission of figures by the Complainant, I find that  €30,000  over the base figure at the Respondent can be reasonably  attributed to overtime, therefore I find an actual loss to be €63,000.

Having full regard to all the circumstances in this case, I find that the Complainant contributed significantly to his dismissal. He was on a written warning for unacceptable behaviour and his actions on the day of 10 August 2023 , though warranting a sanction less than dismissal, was a major factor in his dismissal. Having full regard to all the circumstances, I estimate the contribution to dismissal  to be 50% therefore I award the Complainant the sum of €31,500, which I find to be  just and equitable having regard to all the circumstances of this case.

CA-00062095-001: For the reasons outlined above, I find that the Complainant was unfairly dismissed, and I direct  the Respondent to  pay the Complainant the sum of €31500 in compensation.

Unfair Dismissal, Gross Misconduct, Proportionality.