Complainant

Respondent

Parties

Nicholas  Collins

Swissport Ireland Ltd

Complainant

Respondent

Anonymised Parties

Representatives

Claire McGuigan, Smyth & Son Solicitors

 Kelly Porter, Senior HR Business Partner

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-00063963-001

07/06/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00063963-002

07/06/2024

The Complainant commenced employment with the Respondent on 19/10/2004.  He was appointed to various roles and at the date of his dismissal he was the Cargo Compliance Manager for the Dublin operation.  He was paid €2,221.50 per fortnight.  The Complainant was dismissed on 08/12/2023 as a result of issues which arose from a revalidation inspection of the Respondent by the Irish Aviation Authority (IAA).  The Complainant believes that he was unfairly dismissed and submitted his complaint to the Workplace Relations Commission on 07/06/2024.  The Complainant also submitted a complaint that when his role changed firstly in 2018 and when he promoted again he was not provided with a new contract or any details or information about his role.

The Respondent was represented at the hearing but no witnesses, or submissions were advanced on behalf of the Respondent.

The Complainant gave evidence on oath.  He outlined that he commenced employment with the Respondent on 19/10/2004.  In 2018 he was promoted and he was later promoted to the role of Cargo Compliance Manager for the Dublin operations.  The Complainant did not receive any contract of employment in relation to this role and he was not provided with any details of the terms and conditions relevant to this role.  The Complainant is seeking adjudication by the WRC under Section 7 of the Terms of Employment (Information) Act, 1994.

The Complainant also gave evidence on oath in relation to his complaint of unfair dismissal.  At the time of his dismissal he was the Cargo Compliance Manager for the Dublin operation.  The Complainant  in his evidence outlined that, in this role,  he was responsible for compliance with the safety and exporting requirements in relation to cargo which would be sent on planes from the Respondent’s warehouse.

When the General Manager resigned the Complainant was asked to apply for the role of Cargo Security Manager.  This appointment required IAA approval and it was a regulatory requirement to have this post in place and filled.

The Complainant outlined that on 03/10/2023 the Respondent had an IAA revalidation inspection.  This would be deemed to be a “full inspection” and would be carried out by an authorised inspector from the IAA.  This inspection was a regulatory requirement and the Respondent had to undergo this inspection every five years.

The Complainant noted that the inspection went well and at the end of the inspection the inspector requested to view the written confirmation of the security clearance checks undertaken for each employee.  The Complainant requested this information for the inspector and when this was received there were issues with the security checks on about eight of the employees.  The inspector informed the Respondent that in view of this failure in compliance he would be unable to revalidate the Respondent’s business.  The Complainant stated that the Respondent’s validation was due to expire on 05/10/2023.

The Complainant outlined that he attended a number of meetings with Senior Management.  It was agreed by Senior Management that the Respondent would cease to send any cargo at 23.55 on 04/10/2023 as their validation expired at midnight.  This decision was to be communicated to the Operational Team.  In response to a question from the Adjudication Officer the Complainant confirmed that he had no role in communicating this decision to anyone.

The Respondent made contact with a Senior Aviation Security Inspector from the IAA and she agreed to attend and do a revalidation inspection on 06/10/2023. The Senior Aviation Security Inspector agreed to make this exception on the understanding that the Respondent now had all the regulatory requirements in order. This inspector was attending meetings in Brussels and she had agreed to complete this inspection on her arrival at the airport on the evening of 06/10/2023.

The Complainant gave evidence that the Senior Aviation Security Inspector conducted the validation inspection on 06/10/2023 and everything was in order, including the security checks for the 8 employees which was a failure component of the initial inspection. The Senior Aviation Security Inspector was satisfied with the various items and she then conducted a warehouse walkabout.  During that walkabout she raised a query in relation to the status of some cargo and she was informed this was deemed unsecured until the Respondent was revalidated and able to resume business.    The Senior Aviation Security Inspector also asked for access to the European Database and this confirmed that the Respondent was now revalidated and able to move cargo again.

The Senior Aviation Security Inspector asked about what cargo was sent out and a Senior Manager informed her that the operations has ceased pending revalidation.

The following Monday (09/10/2023) the Complainant received an email from the first IAA Inspector who made contact on behalf of the Senior Aviation Security Inspector.  The nature of this email was a query requesting information about cargo that was sent while the Respondent was in an unvalidated state.  The Complainant sent this email to his Senior Managers.  The Complainant gave evidence that he went to the office and asked for the “Cargo Security Acceptance” for the previous Friday (06/10/2024).  He was provided with a bundle of forms which indicated that the Respondent had sent a significant amount of cargo during the period when they were unvalidated.  The Complainant was surprised to discover that cargo had been dispatched during the period of deregulation.  The Complainant escalated this information to a Senior Manager who told the Complainant not to send any response to the IAA and that the Respondent would reply in due course.  The Complainant understands that this information was subsequently provided to the IAA.

The Complainant gave evidence that he was asked to attend meetings on 11th, 18th and 19th October 2023 with a Quality, Health and Safety person to discuss why the Respondent had failed the revalidation inspection. The Complainant outlined that he was asked to these meetings “to have a chat” about the matter.  At these meetings the Complainant went through the entire process and he was under the impression that he was assisting the Respondent in a fact-finding exercise in order to understand the reasons for the failed validation.  At the second meeting the Complainant was told that they had some additional information but he was not told what this was.  The Complainant had no knowledge of how the cargo was scheduled and sent on the outbound flights.   The Complainant looked at the logs for the shipments received and as he had viewed these he was told that he should have known that the goods left the building.  There were a total of seven flights involved in the shipment of cargo at this time.  The Complainant opened a sample of the log at the hearing and explained that this contained reference numbers for the particular cargo, the scanning reference number, the time the scanning was completed and the sign off by the employee who completed the scanning.  There is no reference on those logs to any flight numbers or any record of  the cargo having been booked onto a flight.  The Complainant gave evidence that that process is undertaken by the clerical staff and he has no role or responsibility in relation to this part of the procedure.

The Complainant explained that he was never given any information in relation to the purpose of those three meetings or provided with any details in relation to what information they had obtained.  The Complainant explained that if he was told that he was under investigation he would have sought legal advice as it is a criminal offence to provide incorrect information to an Aviation Inspector.  The Complainant stated that at all times he provided  information to the Aviation Inspector based on what he was told.  The Complainant gave evidence that the first occasion he knew that cargo had been dispatched on the flights while the Respondent was unregulated was when he received the flight manifest on Monday 09/10/2023.

The Complainant was invited to a disciplinary meeting on 04/12/2023 and he did not bring any representation as he was confident that he did not have any case to answer.  He was not provided with any documentation in advance of this meeting.  The meeting was chaired by a Transformation Director for Ireland and the UK.  The Complainant was told that there was a breakdown in communication between the Senior Management and the Cargo Operations Team.  The Complainant was told that he should have been aware that the shipments had left the warehouse.  It was the position of the disciplinary chair that the Complainant had “acted wrongly and knowingly and misled the Senior Aviation Inspector”.  The outcome of this meeting was that the Complainant was dismissed for reasons of gross misconduct.

The Complainant outlined that he availed of his right to appeal and this was heard by the Director of Fleet for Ireland and the UK.  The Complainant submitted six points of appeal.  The appeal upheld one of those points but noted that it had no bearing on the outcome of the investigation.  The point upheld was that the Complainant was not informed that he was under investigation.

It is the Complainant’s position that the Respondent’s processes were fundamentally flawed.  He was never informed that he was under investigation, not provided with any details of what was being investigated and not provided or given sight of any documentation or information gathered during the course of the investigation.  The Complainant understood that this was an investigation into what happened and he was not aware that he was the subject of the investigation.  The Complainant was not provided with a copy of any outcome or  Investigation Report which gave rise to the disciplinary hearing.

The Complainant confirmed at the hearing that he was never advised that he could be subjected to disciplinary action or that his job was at risk.

The Complainant gave evidence that the disciplinary hearing did not provide him with any documentation or provide him with an opportunity to cross examine any person who provided information to the investigation.  To date the Complainant has no knowledge of who or what information was provided.

The Complainant stated that when he told the Aviation Inspector that no cargo had moved this was an honest held belief and made on the understanding that the decision was properly communicated to the relevant personnel.  He was never told that there was a breakdown in the planned communication.  The Complainant also confirmed that would be impossible to know from the scanning logs that cargo had shipped during the unregulated period.

The Complainant gave evidence in relation to his attempts to mitigate his loss.  He was not working from the date of his dismissal, 08/12/2023 until the first week of March 2024.  He applied for some jobs, registered as being available for work and liaised with the Intreo Office in relation to upskilling opportunities in order to enhance his prospects.  He obtained a permanent role in March 2024 and continues in that role.

The Complainant was cross examined by the Respondent’s representatives.  It was put to the Complainant that the note of the investigation stated: “we are here to investigate…” and this implies that the Complainant was aware that an investigation was being undertaken.   The Complainant explained that he was aware that the Respondent was investigating what happened with a view to understanding what went wrong.  However, that note does not confirm that he was actually under investigation and he was never told that he was.

The Complainant was asked if he would ever cross check the scanning logs with the airway bills. The Complainant stated that he would not and he understood that the Senior Management instruction that no cargo was to leave after 23.55 on 05/10/2023 was in place.  The Complainant explained that when he was checking the scanning logs it was his responsibility to see that these were properly completed.

The Complainant was asked what was missing from the folders in relation to employee security clearance.  The Complainant stated that he does not have access to these folders and these are provided by HR at the inspection.  In the aviation business there is a requirement to have clearance which spans a period of five years and this was not done for those employees who were reviewed at the inspection.  The complainant explained that there was an attempt to short circuit the process in order to speed the clearance process and that the full five years was not submitted.  There was also missing information in relation to some employee’s employment history in the previous five years.

It was put to the Complainant that the vetting process involved the submission of the request by the authorised signatory in the Airport Authority to the Garda and then the certificates were sent back to the ID Central and then passed to the Respondent.  The Complainant stated that during the course of the inspection it became clear to the Inspector that the background checks were not fully completed and this was an issue linked with the Respondent not being revalidated.

It was submitted on behalf of the Complainant that the Complainants’ loss of earnings from the date of dismissal to the commencement of other employment was €13,776.88 gross and the continuing loss due to the differential between his previous pay and current pay is €10,730.00 and his total loss of earnings is €24,469.88 gross.

Two representatives from the Respondent attended the hearing.  None of these representatives had any involvement in the investigation or disciplinary process and had no knowledge other that what was contained in the letter of dismissal to the Complainant.  Therefore, there was no evidence available to the hearing on behalf of the Respondent. Mrs Kelly Porter explained that she is newly appointed and moved from the UK and was not familiar with the WRC procedures. 

The Respondent’s representatives informed the hearing that the employees who conducted the investigation were no longer working for the Respondent and were not willing to attend the hearing. 

The hearing was also informed that he disciplinary decision maker and the person who heard the appeal are still employed by the Respondent but there was no explanation for their non attendance at the hearing.

CA-00063963-002:

This is a complaint seeking adjudication by the WRC under Section 7 of the Terms of Employment (Information) Act, 1994.  It is the Complainant’s position that he was never provided with a copy of the terms and conditions associated with his role and he was never provided with a contract of employment in relation to his role.

The Terms of Employment (Information) Act, 1994 states:

5.—(1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6, the employer shall notify the Complainant in writing of the nature and date of the change as soon as may be thereafter, but not later than—

(a) 1 month after the change takes effect”.

At the hearing the Respondent’s representative’s confirmed that they did not have a copy of any contract or other documentation provided to the Complainant.  The representative confirmed that the Respondent concedes this claim.

The Terms of Employment (information) Act, 1994 implements an EU directive and applies to all persons working under a contract of employment or apprenticeship (whether on a fulltime or part time basis).  It includes persons working through an employment agency where the party remunerating is responsible for the provision of the said statement of terms.  The Act also provides that an employer must notify the employee of any changes in the particulars already detailed in the statement of terms.

Neither party provided any evidence of a document which was signed and dated by the Respondent.  As there is an onus on the Respondent to provide a signed and dated copy and to retain such a document for at least a year after the employment ends, I find that there was a contravention of the Act during the relevant period.  In circumstances where I consider the complaint to be well founded, I may require a statement to be provided.  In addition, I am entitled to direct a payment of compensation up to the value of four weeks remuneration such that is just and equitable in all the circumstances.  Given the circumstances of this case there is no longer a requirement to provide the terms.  I am guided by the Labour Court in Morehampton Foods Ltd v Gibbons TED 18/2017, where the Court confirmed that a failure to comply with s.2 of the Act “constitutes a single contravention of the Act” and that it was not the case that every omission from a statement mandated by s.3 constituted a stand-alone infringement to which the statutory limit on compensation should be separately applied.  Having considered the evidence in this case I believe that the full compensatory limit under section 7(2) should be applied. 

I therefore order that the Respondent pay the Complainant the sum of €4,443.60 representing four week’s remuneration which I consider to be a just and equitable sum having regard to all the circumstances in this case.  I also direct that this sum is paid within four weeks of the date of this decision.

CA-00063963-001:

This is a complaint seeking adjudication by the WRC under Section 8 of the Unfair Dismissals Act, 1977.

Since the fact of the dismissal itself is not contested, it is the fairness of the dismissal that must be justified. In this case, the burden of proof lies with the Respondent to demonstrate that the dismissal of the Complainant was fair.

However:

·       No submission was made by the Respondent.

·       No witnesses were called.

·       No evidence was provided by or on behalf of the Respondent.

In the absence of any such effort from the Respondent to justify or explain the reasons behind the dismissal, the logical legal conclusion is that the Respondent has failed to meet the burden of proof. Consequently, this leads to the conclusion that the dismissal is deemed unfair.

Implications for the Respondent:

·       The Respondent is liable for remedies associated with unfair dismissal, which could include compensation, reinstatement, or re-engagement of the Complainant,

·       The failure to provide a defence or justification for the dismissal of the Complainant is a significant procedural flaw, further solidifying the unfair dismissal finding.

Notwithstanding the above, despite what has already been stated it is incumbent on me  to review the dismissal of the Complainant in accordance with the provisions of the unfair dismissal legislation.

The Law:

Section 6(1) of the Unfair Dismissals Act 1977, as amended (the “UD Act”) provides that “the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”

Section 6(4) of the UD Act states:

“Without prejudice to the generality of subsection (1) of this section the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a)   the capability, competence or qualification of the employee for performing work of the kind which he was employed by the employer to do,

(b)   the conduct of the employee,

(c)    the redundancy of the employee, and

(d)   the employee being unable to work or continue to work in the position he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.”

Section 6(6) of the UD Act states:

“In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more grounds specified in subsection (4) of this section or that there were other substantial grounds for justifying the dismissal.”

Section 6(7) of the UD Act states:

“Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had [….]

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14 (1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7 (2) of this Act.”

Section 14(1) of the UD Act refers to such dismissal procedure as was furnished to the employee upon entering the contract of employment.

Section 7(2) of the UD Act provides that an Adjudication Officer may consider “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”.

The combined effect of the above provisions is to place the statutory burden of proof on the Respondent to show that: the reason for the dismissal was substantial and/or within the parameters of Section 6(4); and that it acted reasonably and in accordance with its disciplinary procedure or relevant code of practice.

Band of Reasonableness:

It is well-established that it is not the function of an Adjudication Officer to re-investigate disciplinary complaints or to substitute their view for that of a Respondent employer. Rather the focus is whether the decisions arrived at are reasonable, based on the information available.

The Labour Court summarised this rationale in Clancourt Management Ltd T/A Clancourt Management v. Mr Jason Cahill, UDD2234, 27 May 2022:

“In cases under the Unfair Dismissals Act where misconduct is stated as the basis for dismissal the test for this Court is that which was set by Lord Denning in the British case of British Leyland UK Ltd v. Swift (1981) IRLR 91, to determine if the dismissal falls into a ‘band of reasonableness’, a test which was confirmed in this jurisdiction in Foley v. Post Office (2000) ICR1283. Lord Denning stated that ‘If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might have dismissed him, then the dismissal was fair.’ He went on to describe ‘a band of reasonableness’, within which one employer might reasonably take one view; another reasonably take another view but ‘If it was quite reasonable to dismiss him, then the dismissal must be upheld as fair; even though some other employers may not have dismissed him’. Therefore, the test for the Court in cases where misconduct is stated to be the basis for dismissal is to ask does the decision to dismiss fall into this band of reasonableness? […] It is not the function of the Court to re-investigate disciplinary complaints. In looking at the outcomes of the investigations, the Court needs to consider if the decisions arrived at are rational, based on the information available to the investigators.”

Notably, as held in the same case, “a failure to adhere to proper procedures renders a dismissal outside a band of reasonableness”. 

Fair Procedure:

The key purpose of a disciplinary procedure is to afford an employer the opportunity to set out the concerns it may have about the conduct or poor performance of an employee and at the same time, afford the employee the opportunity to answer the allegations and make representations as to why he/she should not be disciplined or dismissed.

This is enshrined in S.I. No. 146/2000 - Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000.

Findings:

It is not disputed that the Complainant was dismissed on 08/12/2023.  This followed an investigation by the Respondent into the circumstances which resulted in the Respondent failing the revalidation inspection by the IAA on 03/10/2023.

It is clear from the Complainant’s evidence that the Respondent put in place a measure to ensure that no cargo was dispatched during the period of deregulation on 06/10/2023.  While the Complainant was present when Senior Management made the decision to suspend the movement of cargo when it was not authorised to do so, it was not the Complainant’s responsibility to ensure absolute compliance with this.  The only issue is that the information provided by the Complainant to the Senior Aviation Inspector was wrong.  The Respondent’s proposition that this was a deliberate act is to challenge the integrity of the Complainant who had provided almost 20 years of unblemished conduct and who had been encouraged by Senior Managers to apply for and accept the role of Cargo Compliance Manager.

Fair Procedures:

I also note that there are many  shortcomings of concern regarding the application of fair procedures afforded to the Complainant. These shortcomings are in breach of S.I. No. 146/2000 - Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000 (referred to above and in relevant part noted below):

“6.  The procedures for dealing with such issues reflecting the varying circumstances of enterprises/organisations, must comply with the general principles of natural justice and fair procedures which include:

·       That employee grievances are fairly examined and processed;

·       That details of any allegations or complaints are put to the employee concerned;

·       That the employee concerned is given the opportunity to respond fully to any such allegations or complaints;

·       That the employee concerned is given the opportunity to avail of the right to be represented during the procedure;

·       That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant appropriate evidence, factors or circumstances.

·       These principles may require that the allegations or complaints be set out in writing, that the source of the allegations or complaint be given or that the employee concerned be allowed to confront or question witnesses.

·       As a general rule, an attempt should be made to resolve grievance and disciplinary issues between the employee concerned and his or her immediate manager or supervisor.  This could be done on an informal or private basis.

·       The consequences of a departure from the rules and employment requirements of the enterprise/organisation should be clearly set out in procedures, particularly in respect of breaches of discipline which if proved would warrant suspension or dismissal”.

The Respondent did not provide any information to the Complainant in relation to its disciplinary policy or confirm if such a policy was in place.

The Respondent failed to inform the Complainant that he was under investigation and advise him of the scope and potential consequences of this.

The Respondent failed to provide the complaint with details of the information they had gathered during the course of the investigation or any statements or minutes of meetings from any witnesses interviewed as part of the investigation.  Significantly, the Respondent’s note of the meeting of 18/10/2023 states “As you are aware we are working through a process of fact finding to complete this investigation and we have had to complete several statements with individuals.  We have some contradictions in some statements with regards to your statement and statements of 2 others”.   

No details or copies of these statements  were provided to the Complainant or submitted to the hearing.  At that meeting the Complainant again confirmed that the first time he became aware that cargo had left the warehouse was on the Monday morning (06/10/2023) when he received a copy of the Flight Manifest.  The information he provided to the IAA inspector was based on what he knew at that time and it was not a deliberate act to provide wrong information.    

The Respondent failed to provide the Complainant with the outcome or report of the investigation process.

The Respondent failed to put to the Complainant the full details of the charge against him, in accordance with S.I. 146/2000 as outlined above.

There was no evidence to suggest to the Complainant that he could lose his job as a result of the Respondent’s investigation and that this could result in a disciplinary process.

There was no consideration of any mitigating circumstances during the disciplinary such as the Complainant’s unblemished record and his obliging disposition during the 19 plus years and particularly his cooperation with the inspections and investigation.

There was no evidence of any consideration given to any alternatives to dismissal.

In the circumstances, I find that the Respondent failed to afford the Complainant fair procedure and that this failure rendered the dismissal outside the band of reasonableness and therefore unfair.

Conclusion:

The Respondent did not afford the Complainant anything approaching fair procedures.  The Respondent failed in its duty to afford the Complainant with his natural rights at the investigation and disciplinary stages.

There was no evidence provided to or adduced at the hearing that the Complainant in any way contributed to his dismissal.

In conclusion I find that the Complainant’s dismissal was unfair and therefore the complaint is well founded.

Redress:

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

7. Redress for unfair dismissal

(1) Where an employee is dismissed, and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances:

…. (c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances, or

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances, and the reference in the foregoing paragraphs to an employer shall be construed, in a case where the ownership of the business of the employer changes after the dismissal, as references to the person who, by virtue of the change, becomes entitled to such ownership.

 (2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid,

(d) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,

(e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, and

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.

(2A) In calculating financial loss for the purposes of subsection (1), payments to the employee—

(a) under the Social Welfare (Consolidation) Act 2005 in respect of any period following the dismissal concerned, or

(b) under the Income Tax Acts arising by reason of the dismissal,shall be disregarded.

…. (3) In this section—

“financial loss”, in relation to the dismissal of an employee, includes any actual loss and any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts 1967 to [2014], or in relation to superannuation;

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

The Complainant submitted that he is seeking compensation for unfair dismissal. It is incumbent upon the Complainant to give plausible evidence on mitigation of loss. While he made some efforts to mitigate his loss, I am not satisfied that he approached this with the resolve that is set out in the case of the Employment Appeals Tribunal v Continental Administration Co Ltd (UD858/199) where it stated: 

“a claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work.  It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work.  The time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss.” 

I accept that his security clearance was aviation specific and made it difficult in seeking employment in the security sector, but I do not accept that it is a barrier to a Complainant seeking to mitigate his loss in other areas of employment.

The Complainant submitted that his gross pay from the Respondent was €1,110.90 per week.  In reviewing the documentation, I have taken in account the provisions of S.I. No. 287/1977 (Unfair Dismissals (Calculation of Weekly Remuneration) Regulations, 1977 and the relevant provisions of the Unfair Dismissals Act. 

Moreover, I note that the Complainant started a new job in March 2024 which is twelve weeks after his dismissal. The Complainant earns approximately €341.23 less per week in this job.

The Complainant submits that he made attempts to mitigate his loss and he secured employment on 04/03/2024.  This was a period of 12 weeks and three days from the date of dismissal.  I estimate the loss for this period of time as €13,700.00

The Complainant submitted documentary evidence of payslips showing the earnings from his current employer.  This confirms that he is receiving €341.23 less than he was previously earning which constitutes a further ongoing loss of €10,703.

Section 7(3) of the Act allows me to consider “…any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts 1967 to 2014, or in relation to superannuation.” 

Evidence was given in this case that the Complainant had 19.15 years unbroken service with the Respondent. I find that the Complainant will have a prospective loss of rights with regards to any future redundancy situation that may arise.   I would put a value on this prospective loss at €23,581.

Having regard to all the circumstances in this case, I find that the appropriate compensatory sum to be €40,000.  This quantum reflects the Complainant’s efforts to mitigate his loss.

In the circumstances, I order the Respondent to pay the Complainant compensation in the amount of €40,000 and I order the Respondent to pay this amount within four weeks of the date of this decision.

CA-00063963-001:

I find that the Complainant was unfairly dismissed, and I direct the Respondent to pay the Complainant compensation of €40,000. as a just and equitable amount having regard to all the circumstances of this case. I also order that this sum is paid within four weeks of the date of this decision.

CA-00063963-002:

I find that this complaint is well founded.  I therefore order that the Respondent pay the Complainant the sum of €4,443.60 representing four week’s remuneration which I consider to be a just and equitable sum having regard to all the circumstances in this case.  I also order that this sum is paid within four weeks of the date of this decision.

Terms and conditions of employment.  Unfair dismissal.  Fair procedures.  Redress.