Complainant

Respondent

Parties

Amir  Sajad Esmaeily

Accountancy & Business College (Ireland) Limited t/a Dublin Business School

Representatives

Cillian McGovern B.L. instructed by  Crushell & Co Solicitors

Claire Bruton B.L. instructed by Hayes 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-00056067-001

13/04/2023

The complainant was dismissed by the respondent on 3 February 2023. This followed a disciplinary process which found him guilty of gross misconduct. The complainant says the dismissal was an inappropriate sanction.

The respondent submits the complainant commenced employment with them on 21 September 2018 and entered a permanent contract, effective from 14 February 2022. His gross salary was €50,000.

The respondent initiated a disciplinary process as they considered the complainant accessed his Dublin Business School (DBS) system whilst visiting what they say was a “prohibited” country. This was despite being told not to do so before he left Ireland. Both verbally and by email he was told that this was prohibited. Between 25 January and 3 February 2023 the College moved through a disciplinary process with the complainant which resulted in his dismissal on the basis that his unauthorised access to his College emails whilst abroad amounted to a serious breach of College policy.

At the hearing on 14 May 2024 the respondent conceded that the dismissal was unfair.

The complainant submits that the complainant’s actions did not amount to gross misconduct, the respondent failed to consider any other sanction and the respondent failed to offer the complainant.

The complainant submits that the dismissal had a devastating effect on him. He really cares about his students and he would never have put the college, his students or his colleagues in harm’s way.

The complainant referred a claim of unfair dismissal to the Workplace Relations Commission on 13 April 2023.  The claim concerned the termination of the complainant’s employment on 3 February 2023.

At the outset of the hearing on 14 May 2024 the respondent conceded that the complainant’s dismissal was unfair and the only matter for adjudication was the matter of appropriate redress for the unfair dismissal.

Section 7 of the Unfair Dismissals Acts 1977-2015, (the “Acts”) entitles an employee who is unfairly dismissed to redress under the Acts.  It provides, in relevant part, as follows:-

“(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, …”

On the initial complaint form the complainant indicated he considered re-instatement, re-engagement and financial compensation all to be appropriate remedies. Their subsequent submissions were only made in relation to financial compensation. Given the length of time since the dismissal (eighteen months from the dismissal to the date of the hearing) and the fractured relationship between the respondent and the complainant I do not intend to consider re-instatement or re-engagement as appropriate remedies in this case.

Therefore, I am looking at financial compensation. Section 7(2) of the Acts states:

 “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.”

In this case I am first looking at the efforts of the complainant to find employment following his dismissal, to mitigate his financial loss. The complainant submitted evidence of a number of jobs he applied for. He claims that word of mouth of his dismissal had an effect on his applications in a small community that he had worked in and this effected his reputation and career prospects.

He also, submitted that his efforts were affected by the death of an uncle, who he went to visit in the trip that was the subject of his dismissal. Furthermore, his wife had a miscarriage around the time of his dismissal. Also the effects of the dismissal had a big effect on him and hindered his efforts to look for work.

The respondent submits that from the evidence it appears the complainant has made 35 job applications between February 2023 and the date of the hearing (20 August 2024). Furthermore, the complainant has shown no evidence that he applied for work outside of his field. They say this does not amount to a pro-active approach which is required and he has not made efforts everyday to find work; as set out in Sheehan v Continental Administration Company Limited, UD858/1999.

The complainant gave evidence that he had some short-lived casual employment in the middle of 2023 with total earnings of €906. He also had part-time work from September 2023 to May 2024 for which he earned €18,165. Also, he had set up a company but as he had no money he did not have the investment available to get any work.

An issue arose in relation to the complainant’s remuneration. It is undisputed that his contractual salary was €50,000. The complainant submitted that every year he earned more money supervising students, and this gave him an average annual salary of €91,000. The respondent said this work was not guaranteed. I am satisfied that the nature of the supervision work should be considered as remuneration within the meaning of the Unfair Dismissals Act.

Apart from a short spell of casual work Mr Esmaeily did not work until September 2023, when he worked until May 2024 (nine months, at a salary equivalent to €24,220).

His efforts to find work do not satisfy the requirements of the Unfair Dismissals Act. However, I take cognisance of the personal events in his life and the effect of his dismissal on the complainant. As the respondent has conceded their actions amount to an unfair dismissal I accept the complainant was entitled to a sense of injustice about the disciplinary process to which he was subjected.

I have taken all of these factors into account and the complainant’s difficulties in finding permanent employment in the future. 

I determine that compensation in the sum of €53,000.00 for financial loss attributable to the complainant’s unfair dismissal to be just and equitable having regard to all the circumstances, including the factors outlined above.  This figure is based on the complainant’s salary with the respondent of €91,000.00 per annum, his actual financial loss and estimated prospective loss of income. 

The complainant was unfairly dismissed and is entitled to redress of compensation from the respondent of €53,000.00.

Unfair dismissal conceded