Complainant

Respondent

Parties

Andrew  Morris

The Real Bread Wholesale Ltd (amended at the hearing)

Representatives

  Self-representative

 Patrick Ryan

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-00062644-001

05/04/2024

The Complainant, a baker, gave his evidence on Affirmation. It was his evidence he worked 35 hours per week for an hourly rate of €16.50 per hour. It was the Complainant’s case that he was unfairly dismissed from his employment on 10 November 2023.

Mr Patrick Ryan appeared on behalf of the Respondent, and he gave his evidence on Affirmation. A short submission was received in advance of the hearing and shared with the Complainant. The name of the Respondent was corrected at the outset of the hearing.

It was the Complainant's evidence that he was going through a hard time in October 2023 with his mental health. And he felt he was put under additional pressure at work. He denied ever receiving a warning, verbal or otherwise, from the Respondent.

It was the Complainant's evidence that on the day his employment was terminated by the Respondent, he told Mr Ryan that he had been prescribed medication by his doctor. And that he was able to provide a report setting out the mediation had he asked for it. The Complainant's evidence showed that Mister Ryan never followed up on the doctor's note, stating, “I would have gotten it for him”. It was the Complainant’s evidence that he was “sacked over the phone” by Mr Ryan.

It was his evidence that he felt Mr Ryan was picking on him. It was his evidence that he told Mr Ryan he couldn't attend work at 7:30 AM and requested that the start time be changed to 8:00 AM.

The Complainant stated that Mr Ryan had no respect for him. It was his evidence that there were issues in relation to Mr Ryan standing over him while he worked and putting additional pressure on him in the hope that he would leave.

The Complainant was cross-examined on additional work and pressure being put on him. It was also put to the complainant that all bakers started at 7:30 AM. There was no agreement that he could begin work at 8:00 AM.

Upon inquiry, the Complainant was asked if he was given a contract and a handbook. It was his evidence that he did not sign one.

When asked about his length of service, he stated that he commenced employment in July 2022 and had worked there for 17 months in total. The Respondent did not dispute this.

Mitigation of Loss

At the outset of his evidence, the Complainant was asked about his efforts to mitigate his loss. He said he had not worked since his employment with the Respondent was terminated. He was currently engaged with the Department of Social Protection. He applied for positions in bakeries but could not give any further details or dates, except for an interview in November 2023, but he did not receive any feedback. It was his evidence that he was applying for general operative positions.

It was the Respondent’s evidence that from September to November 2023. There were repeated instances of absence from work as well as lateness by the Complainant. References were made to text messages between the parties, although no actual texts were produced. By way of example, out of the 17 days the Complainant worked in October 2023, he was late on 13 of those dates. Between 3 - 10 November 2023, the Complainant failed to attend work on two occasions without any communication as to the reason for his absence.

There was no cross examination of the Respondent by the Complainant.

There was no dispute that the Respondent terminated the Complainant’s employment within the meaning of Section 1 of the Unfair Dismissals Act 1977.

The next question to address is whether the Respondent unfairly dismissed the Complainant.

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.

There was simply no procedure was followed nor were fair procedures applied.

Accepting evidence presented by the Complainant, I find he was unfairly dismissed by the Respondent on 10 November 2023.

Section 7 of the Unfair Dismissals Act 1977 (as amended) sets out the jurisdiction for 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 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, 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.”

Section 7 (2) of the Act sets out guidance on the determination of the amount of compensation payable.

“(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.”

Finally, Section 7 (3) defines financial loss as “financial loss as “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”.

The EAT in Sheehan v Continental Administration Co Ltd ID858/1999 required a claimant “who finds himself out of work should employ a reasonable amount of time each weekday in seeking work…The time that a claimant finds on his hands is not his own, unless he chooses it to be but rather [is] to be profitable employed in seeking to mitigate his loss.

The Labour Court in Access IT CLG/ Access IT v Galgey UDD2242 refers to the “very high burden” on a claimant set by Sheehan v Continental Administration Co Ltd ID858/1999 and “has the potential to cut significantly the levels of compensation that the Court can award, having regard to s.7 of the Act, in cases where compensation is determined to be the appropriate remedy and an unfairly dismissed employee has not made sufficient effort to mitigate their loss.”

The Complainant provided very vague details of his efforts to find work since his dismissal. No documentary evidence was proffered as to his financial loss or efforts to mitigate his loss from the date of his dismissal to the date of the hearing.

In the circumstances. where there is no evidence presented of financial loss, I am limited by Section 7(1) (c) (ii) to awarding the Complainant a maximum of four weeks remuneration in the sum of €2,310.

Unfair Dismissal