UDD2438

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00045289 (CA-00053208-014)

BACKGROUND:

The Employer appealed the Decision of the Adjudication Officer to the Labour Court on 6 December 2023 in accordance with Section 8A of the Unfair Dismissals Act 1977 to 2015.

A Labour Court hearing took place on 8 October 2024.

The following is the Decision of the Court:-

DECISION:

Background to the Appeal

This is an appeal by Mr Harry O’Donovan (‘the Respondent’) from a decision of an Adjudication Officer (ADJ-00045289/CA-00053208-014, dated 27 October 2023) under the Unfair Dismissals Act 1977 (‘the Act’). The Adjudication Officer had found that Mr Dylan Brennan (‘the Complainant’) had been unfairly dismissed by the Respondent and awarded compensation of €11,817.00 under the Act. The Respondent’s Notice of Appeal was received in the Court on 6 December 2023. The Court heard the appeal in Cork on 8 October 2024. The Complainant and Respondent attended as litigants-in-person. No other witnesses were called.

The Facts

The Respondent operates a cleaning business and trades under the title ‘Kingdom Cleaners’. The Complainant was employed by the Respondent between January 2017 and 27 September 2022 as a preventative maintenance cleaner. His rate of pay was €455.00 gross per week. The Complainant last attended for work during the first week of January 2021. The Complainant was laid off due to the Covid Pandemic after that. He subsequently developed a medical condition that required surgery, followed by a period of recuperation. The Complainant, therefore, availed himself of illness benefit from 4 July 2022 until 27 September 2022.

The Complainant was contacted by the Respondent on 17 August 2022 to ascertain if he intended to return to work. The Complainant informed the Respondent by reply that he had just had a medical procedure but that it was his intention to return to work when his medical certificate expired on 27 September 2022. On that date, the Complainant attempted to contact the Respondent both by text and by telephone to arrange to return to work on 28 September 2022 but received no reply. In or about this time, the Complainant learned that the Respondent had hired another employee who appeared to be doing the work that the Complainant had previously done. The Complainant concluded from the foregoing that his employment with the Respondent had been terminated.

The Respondent denied that he had terminated the Complainant’s employment with the on 27 September 2022 or at all. He told the Court that the Complainant was still ‘on the books’ as an employee. Notwithstanding those assertions, the Respondent offered no explanation for his failure to return the Complainant’s telephone call and text messages of 27 September 2022 and his failure to make any contact at all with the Complainant since that date.

Evidence of Mitigation and Loss

The Complainant produced no documentary evidence in relation to mitigation. He listed a number of courses he had undertaken in the period between 28 September 2022 and the date of the within appeal. These included welding courses, a Safe Pass course, a forklift driving course and a thermal insulation course. The Complainant told the Court that he had applied for a job with the local authority but hadn’t secured any employment since his dismissal by the Respondent.

Discussion and Decision

The Court is satisfied that the Respondent blanked the Complainant as and from 27 September 2022 even though he had been put on notice by the Complainant that it was his intention to return to work no later than 28 September 2022 following the expiry of his period of certified medical leave. The Court is further satisfied that the Respondent’s conduct in this regard amounts to a repudiation of the Complainant’s contract of employment meaning that the Complainant was dismissed with effect from 27 September 2022.

Having regard to the evidence before it, the Court measures the level of compensation payable under the Act to the Complainant by the Respondent at €2,275.00, being the equivalent of five weeks’ gross pay. This, in the Court’s view, is just and equitable in the light of the Complainant’s minimalist efforts to mitigate his loss. The decision of the Adjudication Officer is varied accordingly.

The Court so decides.

	Signed on behalf of the Labour Court
	Alan Haugh
TH	______________________
15 October 2024	Deputy Chairman

NOTE

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