Complainant

Respondent

Parties

Christina  Doyle

Board of Management of Our Lady of Hope School

Complainant

Respondent

Anonymised Parties

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Representatives

  Self - represented

Claire Bruton BL, instructed by Mason Hayes & Curran

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00063132-001

28/04/2024

The complainant states that she worked as a cleaner in the respondent school for over 2 years. She states that she enjoyed her work and had been flexible in her working hours to ensure that all the work got completed. The complainant states that when she first started with the respondent, she worked only in the afternoons but when a new cleaner was also hired a year later for the mornings, the complainant also worked mornings so she could assist the other cleaner with alarms and the various duties which needed to be carried out. The complainant asserts that when the other cleaner left, the complainant worked on and off mornings or afternoons still fulfilling her 2 hour working day as set out in her contract.

The complainant states that on the day she was let go, she went into work first in the morning for one hour and then in the afternoon she went in at her normal time for the second hour. The complainant states that she started assembling her cleaning materials and went into the kitchen. She states that the Principal approached her and requested that she attend his office. The complainant states that when she attended at his office, the Principal stated to her that on the previous Friday, she had left a bucket of water with bleach in the hallway which was a serious health and safety risk.  The complainant states that the Principal stated he was giving her two weeks notice and that he wanted her to work those weeks and she would be paid for same.

The complainant states that she refuted the assertion that she left a bucket with bleach in the hallway and requested to see the CCTV footage. The complainant states that the Principal stated that he did not have time at that juncture and that he was the boss and became very agitated. The complainant states that she gave him the keys and became completely overwhelmed and had a serious panic attack and stated that she had to leave immediately.

The complainant states that she was unable to work her two weeks notice as she suffers from anxiety and this incident had completely overwhelmed her and she handed in a sick certificate. The complainant states that later on the day she was dismissed, her daughter and son approached the school and requested a copy of the health and safety policy and video footage with regard to the complainant leaving a bucket of water in the hallway and also requested a copy of the complainant’s contract. They were told by the Deputy Principal that the Principal was very busy and was not in a position to come out and discuss the matter. The complainant states that the school authorities were not a bit helpful and her children left the school with nothing, no video footage, no health and safety policy and no contract.

The complainant states that she feels that she was treated very poorly. She states that she cannot understand why she was unfairly dismissed. She states that in her contract it stipulated that if there were performance issues there was a process to go through, i.e. verbal warning written warning etc but that this did not happen in the her case. The complainant states that she was dismissed without any fair procedure.   

The respondent states that it did not dismiss the complainant and rather she resigned from her employment on 13 November 2023.

The respondent states that the complainant commenced her employment with the school on 8 November 2021 and she was employed as a cleaner. Her rate of pay was €12 an hour for two hours a day/10 hours a week-her normal hours being 2.30pm-4.30pm-during term time.  The respondent states that it is an additional needs school whose pupils have autism or other additional and complex needs.  Since 2022, a new Principal started in the school. It was submitted that the complainant initially worked with the caretaker, who assisted with cleaning. After the caretaker left his employment, from September 2022-June 2023 the complainant’s sister worked as a cleaner in the respondent school. The original caretaker returned in September 2023 and again assisted with cleaning duties.  Prior to September 2023, the complainant worked for one hour in the morning (7am-8am) and afternoon (3pm-4pm). Having regard to the needs of the school, the Principal asked her to work two consecutive hours in the afternoon. Prior to 13 November 2023, the complainant generally performed her role as cleaner well. On occasion, the Principal provided constructive feedback to her including that student toilets were not clean. In September 2023, the Principal spoke to the complainant regarding her duties and asked her to undertake daily tasks such as cleaning bins, washing hand towels daily, cleaning of the staff room and the toilets.

It was submitted that on 13 November 2023 after school, the Principal spoke to the complainant in teaching room 8. He informed her that the previous Friday, 10 November 2023, she had left a bucket of water containing bleach in the hallway of the school. This was extremely concerning having regard to the hazardous nature of the contents and the vulnerable nature of the students in the school. He informed the complainant that this should not happen in the school given the health and safety risk it posed to students. He had reviewed CCTV footage which identified the complainant as the person who had left the bucket in the hallway. The Principal had no intention of disciplining the complainant, rather he wished to bring the incident to her attention. The respondent states that the complainant denied responsibility for the event, responded with expletives and threatened the Principal. It was submitted that this was extremely disturbing and upsetting for the Principal. The respondent states that the complainant threw her keys to the school on the table and due to her threatening behaviour, the Principal left the room.

The respondent states that approximately 7-8 minutes later, and after the Principal had composed himself, he located the complainant in the occupational therapy room and asked her to attend with him at his office. The complainant duly did so. He informed the complainant that he was concerned at the way in which she had spoken and threatened him, along with her leaving the bucket in the hallway. The complainant was calmer in this meeting. The complainant responded and stated “I am out of here, I am done.” The Principal understood this to be a resignation from employment and informed the complainant that was fine and he would ensure she received all outstanding pay and holiday pay accrued to her. Thereafter the Principal assisted the complainant with leaving the premises as it required a fob to do so and the complainant had returned her keys. The respondent states that it is accepted that at least one member of the complainant’s family attended the school on 13 November. The respondent maintains that the Principal was unable to speak to this individual as he was unavailable undertaking duties within the school.

The respondent states that the complainant furnished the school with a medical certificate dated 17 November 2023. The Principal recalls this certificate was furnished after he had contacted the complainant by letter on 25 November 2023, to confirm her resignation from employment and the discharge of her outstanding holiday pay. The respondent states that this medical certificate does not provide any evidence of the reason for any alleged unfitness to work. The complainant contacted the Principal on 17 November 2023, to request a copy of the video footage of the incident of 10 November 2023, and a copy of her contract of employment and staff handbook. The Principal did not respond to this email as he was still fearful of the complainant, having regard to the manner in which she had threatened him in the meeting of 13 November 2023.

The respondent states that it is noted that the complainant has attached a copy of an unsigned contract of employment to her WRC submissions. While the Principal does not dispute this is a valid contract of employment, he is not aware of when, or how, the complainant obtained this contract. He had sought to locate her contract of employment post the complainant’s resignation but could not find it in the school office. Following the letter of 25 November 2023 to the complainant, there was no further contact from her save her submitting a claim of unfair dismissal under the Unfair Dismissals Act 1977, as amended, to the Workplace Relations Commission.

Legal submissions

The respondent states that Dismissal is defined as follows in s. 2 of the Unfair Dismissals Act 1977, as amended: “dismissal”, in relation to an employee, means—

(a) the termination by his employer of the employee's contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

 (b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer, or

(c) the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose;

It was submitted that in his annotation to the Unfair Dismissals Act, Kerr states that “In a normal case, if unequivocal words of resignation are used, the employer is entitled to immediately accept the resignation and act accordingly.” It was submitted that this is equally stated by Ryan where it is stated :- “Where unambiguous words of resignation are used by an employee to an employer, and are so understood by the employer, it is safe to conclude the employee had resigned”.

The respondent asserts that in Millett v Shinkwin [2004] E.L.R. 319, the Labour Court, fully considered the question of what is required for a resignation of an employee. The Labour Court stated the “general rule” as follows: “A resignation is a unilateral act which, if expressed in unambiguous and unconditional terms, brings a contract of employment to an end. The contract cannot be reconstructed by a subsequent unilateral withdrawal of the resignation. Where adequate notice is given, the contract is generally terminated in accordance with its terms and since there is no repudiation the acceptance of the resignation by the employer is not required in order to determine the contract.”

The respondent maintains that the complainant had provided an indication of her resignation at the first meeting on 13 November, by throwing her keys on the table. A few minutes later and in a separate meeting, she later provided a clear and unambiguous resignation from employment by stating “I am out of here, I am done.” It was submitted that the Principal merely expressed concern at the way in which she had spoken to him and threatened him in the earlier meeting and her conduct in leaving a bucket with hazardous material in a hallway which could be accessed by pupils. These words were clear, and the complainant did not seek to recant, or withdraw her resignation at any time. Even if she did attempt to recant her resignation, there is no basis for the respondent to accept any such withdrawal as she brought her employment to an end in the meeting of 13 November. The respondent states that on that basis, as there is no dismissal and rather the complainant resigned from her employment, the claim must fail.

The respondent states that Section 6(1) of the Unfair Dismissals Act 1977, as amended (the “UD Act”), provides as follows: “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 6(4) provides as follows: (4) 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 qualifications 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 which 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 provides as follows: “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 of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.” The respondent states that without prejudice to the foregoing, if the Adjudication Officer finds the complainant’s employment was terminated by the respondent in the second meeting of 13 November, it is submitted this termination of employment was fair by reason of her conduct, in leaving a bucket containing hazardous material in the hallway, where students could easily access and her conduct in threatening the Principal and behaving towards him in an abusive manner in the first meeting of 13 November.

The respondent maintains that the complainant’s continued employment was untenable in circumstances given her conduct, in particular given the vulnerable nature of the students and her abusive and threatening behaviour towards the Principal. In this regard the decision of the Employment Appeals Tribunal in O’Mahony v PJF Insurance is applicable. In this case the Employment Appeals Tribunal found the dismissal of the complainant to be fair in circumstances where the employee had sent electronic messages disparaging of the directors of the respondent company which were personally offensive and which was found by the Tribunal to amount to a breach of trust of such significance that the complainant’s employment in that case in the respondent’s business was found to be untenable. This occurred because of the actions of the complainant herself and the dismissal was found to be fair.

The respondent states that the complainant left a bucket of hazardous material in the hallway of the school. Students could easily have located the bucket and drunk from it or tripped over it. It was a health and safety hazard which was self-evident.  The misconduct was proven, as per the Principal viewing of CCTV footage, and a reasonable employer (in particular given the vulnerable nature of the students of the school) would have terminated the employment of the complainant. In this regard, reliance is placed on the recent decision of the Supreme Court in An Board Banistíochta, Gaelscoil Moshíológ v. the Labour Court and Aodhagán Ó Súird and the Department of Education [2024] IESC 38, where the court (per O’Donnell CJ) held as follows at paragraphs 95-97: Thus, in JVC Europe Limited v. Panisi [2011] IEHC 279 (Unreported, High Court, 27 July, 2011), Charleton J. considered that:- “The issue for the tribunal deciding the matter will be whether the circumstances proven to found the dismissal were such that a reasonable employer would have concluded that there was misconduct and that such misconduct constituted substantial grounds to justify the dismissal”.

The respondent states that in addition reliance is placed on the decision of Perkin v. St George’s Health Care NHS Trust which held that in a suitable case the employer can rely on a breakdown in trust and confidence as a substantial reason justifying the dismissal, in this regard section 6(6) of the Unfair Dismissals Acts 1977, as amended is applicable in circumstances where it also provides catch all other substantial reason justifying the termination of employment. The Perkin decision has been acknowledged and considered in this jurisdiction in Ryan v ESB International Ltd [2013] IEHC 126. It is submitted that the logic of Perkin applied equally in this jurisdiction and to this case: for s.6(6) of the UD Acts to have any meaning, the respondent must be allowed rely on a lack of trust and confidence for a reason to dismiss the complainant. It is submitted that on the facts of the instant case, it was justified in doing so.

The respondent states that the Supreme Court decision of Berber v. Dunnes Stores held very clearly that there was an implied contractual term in every contract of employment of “a mutual obligation that 4 [2005] I.R.L.R. 934. 5 [2009] 20 E.L.R. 61. 8 7 the employee and the employer will not without reasonable and proper cause conduct themselves in a manner likely to destroy or serious damage the relationship of confidence and trust between them.” As the implied term is to maintain trust and confidence is a mutual obligation and is one of the fundamental terms of the contract, it is submitted that a breach is of a serious matter.

The respondent maintains that the employment of the complainant was untenable going forward on the basis of her threatening and abusive behaviour towards the Principal and her conduct in leaving a bucket containing hazardous material in a hallway. In this regard it is submitted that the termination of her employment is lawful within the meaning of the Unfair Dismissals Act 1977, as amended. The respondent states that pursuant to the Acts, it is required that the Adjudication Officer consider the contribution of the complainant to her dismissal pursuant to clause 7(2) therein if any compensation awarded: “(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.”

The respondent submits that in the decision of the Labour Court in Scoil Aine Naofa v Hughes, UDD2330, the Labour Court acknowledged that no compensation can be awarded where the employee contributed 100% to their dismissal. In considering the award of compensation, even where breaches of fair procedures in the manner of the dismissal were found, it held as follows: By far the biggest consideration for the Court, in considering the scale of compensation on the facts of the case, is the extent to which the complainant contributed to his own dismissal. It is not unknown for this Court to determine in cases where procedural flaws render a dismissal as unfair that the circumstances suggest 100% contribution to the dismissal by a complainant and that no award is warranted. This approach was considered by the Court in the instant case. However, the scale of breaches of the complainant’s rights is such that the Court cannot be satisfied that it would be safe to say that the complainant contributed 100% to his dismissal. What can be said is that he worked with vulnerable children, that his behaviour was so bizarre and disturbing that the Board had every reason for serious concern, that he has never offered an acceptable reason for such behaviour and that, as a result, he made a very considerable contribution to his own dismissal. Taking all of the above factors into account, the Court believes that an award of €2000 compensation, which is approximately four weeks’ salary, is appropriate for the unfair dismissal.

The respondent submits that this has application to the instant case wherein the complainant contributed considerably to her dismissal, by reason of her conduct such that any award of compensation should take account of this contribution. The respondent highlights Section 7 of the Acts, which provides for the quantum of redress which can be awarded to an employee under the Acts-the preferred remedy of the complainant. In particular, Section 7(1)(c) provides in relation to financial compensation; “(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.

The respondent states that “financial loss” is defined under section 7(3) the Acts as, “in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal…;” The respondent states that it is well established in law that the duty to mitigate loss requires a proactive approach to be taken, as per the decision in Sheehan and Continental Administration Company Limited UD 858/1999, in which the Tribunal held that: “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.”

The respondent states that a failure to achieve the standard under the Sheehan test will result in any award of compensation being reduced by the failure to mitigate loss. The respondent submits that this is further supported in the decision of Philip Smith v Mark Leddy (UDD1974). In this case, the Labour Court had set out a test for proof of efforts to mitigate one’s loss. The test was that “the Court expects to see that employees who are dismissed spend a significant portion of each normal working day, while they are out of work, engaged actively in the pursuit of alternative employment”.

The respondent submits that in Murphy v Independent News & Media UD841/2013, the EAT noted that the claimant, a journalist, limited her search for alternative work to her area of expertise only and reduced the compensation as a result.  The respondent states that it would appear that the complainant seeks to have the Workplace Relations Commission adjudicate on alleged medical conditions caused by her termination of employment. This is not within the purview of the Workplace Relations Commission in a claim under the Unfair Dismissals Acts. The statute provides no power to award exemplary damages. The High Court in Stephens v Archaeological Development Services Limited held that the parameters within which in an award of compensation can be made must be “strictly within the realm of financial loss and still does not encompass any scope for a claim under any head in the law of torts nor for the awarding of exemplary damages.”

The respondent states that in the decision of Maryland v Citywest Golf and Country Club the claimant invited the Employment Appeals Tribunal to make an award in respect of loss she had suffered and was continuing to suffer due to depression caused by the dismissal. The Employment Appeals Tribunal concluded that the claim for psychological injuries arising in financial loss constituted a claim for personal injuries at common law and was not properly within its jurisdiction.

Dismissal is defined in Section 2 of the Unfair Dismissals Act 1977, as amended: “dismissal”, in relation to an employee, means—

(a) the termination by his employer of the employee's contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

 (b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer, or

(c) the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose;

Section 6(7) of the 1977 Act provides:

"Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the Adjudication Officer or the Labour Court, as the case may be, considers it appropriate to do so -

(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."

In O’Riordan v Great Southern Hotels UD1469/2003, the Employment Appeals Tribunal has provided a set of guiding principles that an Adjudication Officer must follow when determining whether the respondent reasonably concluded that the complainant was guilty of an Act of gross misconduct:

“In cases of gross misconduct, the function of the Tribunal is not to determine the innocence or guilt of the person accused of wrongdoing. The test for the Tribunal in such cases is whether the respondent had a genuine belief based on reasonable grounds arising from a fair investigation that the employee was guilty of the alleged wrongdoing”.

The High Court has further echoed and reinforced this line of reasoning in Governor and Company of the Bank of Ireland v James Reilly [2015] IEHC 241, in which Noonan J remarked:

"Section 6(7) makes clear that the court may have regard to the reasonableness of the employer's conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned."

It is not my role to determine whether the complainant was guilty of the accusation laid against her but instead to determine whether the decision by the respondent to dismiss the complainant was based on a reasonable belief that fair procedures were employed and that the dismissal was proportionate in all the circumstances.

The complainant gave evidence on the events leading up to her dismissal. The complainant’s daughter gave evidence substantiating the complainant’s version of events.

There was no sworn evidence presented by the respondent. In this regard, I note that Counsel for the respondent stated that the Principal was not in attendance at the hearing as he was in fear for his life as the complainant had made a death threat against him.  The within hearing was held by remote means and in those circumstances I find that argument implausible and lacking in credibility.

I found the complainant and her daughter to be polite and respectful to all parties during the hearing.

The complainant refuted the accusation that she left a bucket of hazardous material in the hallway. She states that she vehemently denied same and requested the CCTV footage to be provided by the respondent but this was not forthcoming. The complainant states that the Principal started shouting at her and banging his chest. She states that he gave her two weeks notice and requested that she work out her notice and would be paid for same. The complainant gave testimony stating that she became completely overwhelmed by the threatening behaviour of the Principal and she had a serious panic attack and in order to protect herself she gave him her keys and advised him that she had to leave the school immediately as she was overcome with fear and anxiety. The complainant states that the previous year she was diagnosed with angina and had stents put in and was really worried for her health and well being given the threatening and abusive behaviour of the Principal towards her.  

The complainant stated that she really enjoyed working at the school and got on very well with the pupils and the teachers. She stated that she was very loyal to the school and came in on her days off to accommodate the respondent with regard to various functions/activities that were taking place.

The complainant states that subsequent to her dismissal, her son and daughter attended at the school and requested a copy of her contract, the health and safety policy and CCTV footage of the alleged incident on Friday 10 November 2023 however they were met with disdain and fobbed off by the school authorities.

The complainant further stated that teachers and carers from time to time would be required to mop up after an incident and may have left the bucket out inadvertently.

The complainant’s daughter substantiated the complainant’s version of events and gave testimony with regard to the detrimental effect the treatment by the respondent had on her mother from a health and well being perspective.  

Based on all of the evidence heard in the within matter, I found that the complainant and her daughter gave compelling testimony. I found their evidence to be cogent, consistent and convincing. While Counsel for the respondent stated that the complainant resigned her employment, based on the evidence heard I am satisfied that the complainant was unfairly dismissed from her employment.  I find that there was a complete absence of fair procedures with regard to the complainant’s dismissal.

In relation to the quantum of award in this situation, 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;

I find that the complainant was subjected to egregious treatment by the respondent in the manner of her dismissal. While the complainant’s efforts to find work do not fully satisfy the requirements of the Unfair Dismissal’s Act, I am cognisant from the complainant’s testimony and that of her daughter of the severe impact which the dismissal had on the complainant and her ability to seek alternative employment and mitigate her loss.

I am also mindful that the complainant indicated that she would have difficulty getting alternative employment citing her age as a factor to be taken into account.

Having considered all of the above factors, I order the respondent to pay the complainant €5,000 in compensation for her dismissal. I deem this amount to be just and equitable having regard to all the circumstances of the within claim.

I find that the complainant was unfairly dismissed and I award her compensation in the sum of €5000.

Unfair Dismissal’s Act