Complainant

Respondent

Parties

Agatha  Booth

Henry Management & Maintenance Services Limited.

Representatives

John F. Kelleher Solicitors

 No Appearance

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-00059869-001

08/11/2023

The Complainant attended with her Solicitor. Documentation was submitted in evidence at the hearing. It is her complaint that she was unfairly dismissed without fair procedures.

There was no appearance by or on behalf of the Respondent. The hearing proceeded without the Respondent where I was satisfied that it was on notice of the hearing from the correspondence from the Respondent on file.

The Complainant eared €384 per week working 24 hours as a Receptionist with the Respondent.

It was the Complainant’s evidence that she was unfairly dismissed on 14 August 2023 by her employer, the Respondent.

It was her evidence that on 2 August 2023 she raised a formal grievance about her working conditions including a reduction in her working hours and rate of pay. The Complainant further sought an independent third party be engaged to investigation her grievance. No response was received from the Respondent.

On 14 August 2023, she was provided with a letter by a staff member. When the Complainant opened the letter she , it stated her employment was terminated with immediate effect. The letter was signed by Mr. Henry.

By letter dated 23 August 2023, the Complainant Solicitor wrote on her behalf demanding reinstatement where  fair procedures were not applied. Again no response was received from the Respondent. The Complaint being submitted to the Workplace Relations Commission on 8 November 2023. It was not until after the Complaint was referred to the WRC did the Respondent respond via its Solicitors.

Evidence was presented at the hearing by the Complainant.

After waiting a reasonable period of time, there was no appearance by or on behalf of the Respondent.

It is noted that there was correspondence from Mr. Sean Henry of the Respondent on 8 May 2024 advising the Respondent would not be attending the hearing. He added without supporting evidence that the Respondent was insolvent.

The Unfair Dismissal Act 1977 places a clear burden of proof on the employer to establish that the dismissal of an employee from their employment must be justified.

“6.—(1) Subject to the provisions of this section, 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 5 of the Unfair Dismissals (Amendment) Act 1993 provides, inter alia,

“… in determining if a dismissal is an unfair dismissal, regard may be had … to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal.

McMahon J. in Khan v Health Service Executive 2009 E.L.R. 178, summarised the meaning and value of fair procedures as being:

“… at the very foundation of all legal systems and all decision makers must observe them whether we like it or not. Fair procedures are necessary for the common good … What does [sic] fair procedures mean? At the very minimum it means that the person at whom a charge is levelled has proper notice of the charge; that he has proper opportunity to take legal advice and to prepare for hearing; that no one is to be a judge in their own cause; (nemo judex in causa sua) that both parties are given a full opportunity to be heard (audi alteram partem) and that the judge is free from bias. Moreover, it is clichéd law that not only must these principles be adhered to, but they must be seen to be adhered to. Justice must be seen to be done. Perception is significant.”

The principles of natural justice require the disciplinary investigation process together with the decision to impose a sanction, dismissal in this case, and an appeal to be carried out independently of each other and objectively. An employee has the right to a fair and impartial determination of the issues being investigated as provided for in the Code of Practice on Disciplinary Procedures (S.I. No. 117 of 1996) as well as case law.

Put simply no procedure was followed nor were fair procedures applied whatsoever.

Accepting evidence presented by the Complainant, I find she was unfairly dismissed by the Respondent on 18 August 2023.

Section 7 of the Unfair Dismissal Act sets out the redress for unfair dismissal:

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 rights commissioner, the Tribunal or the Circuit Court, as the case may be, considers appropriate having regard to all the circumstances:

(c) payment by the employer to the employee of such compensation (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) in respect of any financial loss incurred by him and attributable to the dismissal 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, and

(d) the extent (if any) of the compliance or failure to comply by the employer or employee with any procedure of the kind referred to in section 14 (3) of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister.”

“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;”

I am conscious of a requirement on the Complainant to mitigate her loss. In particular the EAT decision in Sheehan v Continental Administration Co Ltd UD858/1999, to “employ a reasonable amount of time each weekday in seeking work.” It was the Complainant’s evidence that at 63 years of age she has sought work but also sought to access to her pension which was a benefit of her employment. However, the Respondent has ignored her requests to access this pension which has left her at a loss. This does not in itself dissolve the Complainant of her obligation to mitigate her loss. Having regard to all the circumstances I am awarding the Complainant the sum of €4,000 where she has been found to be unfairly dismissed from her employment with the Respondent.

Unfair dismissal – No appearance