SECTION 9 (1), UNFAIR DISMISSAL ACTS, 1977 TO 2015
DUFFY MEATS LTD T/A KERRY FOODS
(REPRESENTED BY MR FERGAL T FITZGERALD - DOYLE BL INSTRUCTED BY MS PAULINE O'HARE SOLICITOR, IBEC)
- AND -
(REPRESENTED BY MS GER MALONE, SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)
Chairman: Ms Jenkinson
Employer Member: Mr Marie
Worker Member: Ms Tanham
1. Appeal of Adjudication Officer's Recommendation No r-160061-ud-15/RG
2. The Worker and the Employer appealed the recommendation of the Adjudication Officer to the Labour Court in accordance with Section 9(1) of the Unfair Dismissals Acts 1977 to 2015 on 16 June 2016 and 20 June 2016 respectively. A Labour Court hearing took place on 25 October 2016. The following is the Determination of the Court:
This is an appeal by both Ms. Aisling Ryan and Duffy Meats Ltd against the Decision of an Adjudication Officer r-160061-ud-15/RG under the Unfair Dismissals Acts 1977 to 2015. In this Determination the parties are referred to as they were at first instance, hence Ms Ryan is referred to as ‘the Complainant’ and Duffy Meats Limited t/a Kerry Foods is referred to as ‘the Respondent’.
The Adjudication Officer found that the Respondent had unfairly dismissed the Complainant and ordered that compensation in the amount of €40,000 be paid to the Complainant.
The Complainant appealed the Adjudication Officer’s Decision to this Court on 16thJuly 2016 on the basis that the remedy of compensation was not the appropriate remedy in the circumstances and instead sought redress in the form of re-instatement. The Respondent appealed the Decision to the Court on 20thJuly 2016 on the grounds that the quantum of the compensation ordered was excessive.
The appeal came before the Court on 25thOctober 2016.
Dismissal is not in dispute in this case. The Complainant commenced her employment as a General Operative at the Respondent’s meat processing plant at Shillelagh, Co. Wicklow on 1stJune 1999. With effect from 2ndJune 2015 the Complainant was dismissed for gross misconduct with no notice entitlements. At the time of the termination of her employment, the Complainant was paid €547.00 gross per week for a 40-hour week.
On 20thMay 2015 the Complainant was suspended on full pay pending investigation in to allegations described by the Respondent in a letter dated 22ndMay 2015 as, inappropriate behaviour towards colleagues. Subsequently, the Complainant along with her trade union representative, were invited to a disciplinary meeting which was held on 2ndJune 2015 and she was dismissed. The Respondent’s written minute of the meeting records that the Complainant was advised that the investigation had been completed and that a decision had been taken to terminate her employment with immediate effect. The Respondent stated that it was not going to go through the details of the issue, mainly for her protection, given the seriousness of the issue. The Complainant was provided with no further explanation or detail as to the reasons for the termination of her employment. A letter dated 2ndJune 2015 confirming the termination of the employment was issued to the Complainant and she was advised to contact the Respondent’s Legal Department if she felt that her dismissal was unfair. Both the Complainant and her SIPTU official entered in to written correspondence with the Respondent’s Legal representative seeking details as to the reasons for the termination and enquiring about an internal appeal. No further details were provided in response and no internal appeal was made available to the Complainant. A complaint of unfair dismissal was subsequently referred to the Workplace Relations Commission on 22ndSeptember 2015.
At the Court hearing of this case, Counsel for the Respondent, Mr. Fergal T. Fitzgerald-Doyle, B.L. advised the Court that the Respondent conceded and accepted that the dismissal of the Complainant in this case was unfair and that, consequently, the only issue before the Court was the appropriate redress to apply as per Section 7 of the Unfair Dismissals Act 1977, as amended.
Respondent’s Arguments as to Redress
Regarding redress, Counsel informed the Court that the Respondent’s preferred remedy in the circumstances of this case was that of compensation.
Counsel sought to rely on the decision of the Supreme Court inState (Irish Pharmaceutical Union) v Employment Appeals Tribunal  ILRM 36in seeking, notwithstanding the Court’s discretion as per Section 7, that the Respondent be afforded an opportunity of making its case to the Court as to the appropriate form of redress to apply in this case and specifically as to why neither of the job-back remedies should apply in the circumstances of this case.
Counsel, in an extensive submission to the Court, informed the Court that the Respondent was opposed, in the strongest of terms, to either re-instatement or re-engagement as the Respondent was strongly of the view that the employment relationship and trust and confidence between it and the Complainant had irretrievably broken down. It was submitted that where one party is so strongly opposed to re-instatement or re-engagement that the Court should respect this in exercising its discretion.
Counsel stated that notwithstanding the imperfect procedural manner in which the dismissal had been conducted, which was conceded, there were substantial grounds justifying the dismissal and the Complainant had contributed fully to her dismissal. The dismissal had arisen as a result of the Complainant’s conduct and the very grave concerns which the Respondent held in relation to her wellbeing such that her continued employment with the Respondent represented, in the Respondent’s view, a matter of serious health and safety risk for both the Complainant and other employees in the context of a food processing environment featuring heavy and potentially dangerous machinery and equipment.
Counsel stated that it was the Respondent’s case that the Complainant was well aware of the background leading up to her dismissal and her conduct and wellbeing issues. The very sensitive, private and personal nature of the issues relating to the Complainant’s wellbeing and her conduct were such that the Respondent, in conducting the disciplinary process, sought to maintain confidentiality to an extent which, while perhaps misplaced, was nonetheless done with the very best of intentions for the Complainant’s own protection and safety.
Counsel accepted, on behalf of the Respondent, that the Complainant was entitled to redress. But it was submitted that in the circumstances of this case the entitlement to redress can be satisfied by way of the Court ordering compensation.
Complainant’s Arguments as to Redress
Ms. Ger Malone, SIPTU representing the Complainant submitted that the Complainant’s preferred remedy in the circumstances was that of re-instatement. It was submitted that the Respondent’s conduct in dismissing the Complainant had been in breach of all of her fair procedural rights. The Court was requested to consider the reasonableness of the Respondent’s conduct in this regard, which it was submitted could not have been more unreasonable.
Ms. Malone stated that the Complainant wishes to return to employment with the Respondent. She sees no inhibitors to her returning to the employment. It is the Complainant’s belief that the relationship has not broken down irretrievably and trust has not been breached.
The Court was informed that the Complainant has applied for a large number of jobs and has not even managed to secure an interview. It was put to the Court that as a result of the Respondent’s conduct the Complainant was now unemployable. She is unable to tell any prospective employer the reasons for the termination of her employment with the Respondent as she is unaware of the reasons. The Complainant lives in a rural area and will not be able to secure comparable employment in her local area in the future. This may necessitate her having to relocate.
Relying on the judgment of Noonan J. in the case ofThe Governor and Company of the Bank of Ireland v Mr. James Reilly  IEHC 241Ms. Malone stated that it was the Complainant’s case that, in the light of the Respondent’s treatment of her, re-instatement was the only remedy which will do justice between the parties.
Section 7 of the Unfair Dismissals Act 1977, as amended, sets out the provisions dealing with redress as follows:
- 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:
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
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
(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 undersection 17of 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.
(1A) In relation to a case falling within section 6(2) the reference in subsection (1)(c)(i) to 104 weeks has effect as if it were a reference to 260 weeks.
(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) ofsection 14of 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 Acts, 1981 to 1993, 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.
The Court had the benefit of substantial written submissions in this case and copies of authorities upon which the parties sought to rely.
In circumstances where it was conceded that the termination of the Complainant’s employment by the Respondent amounted to an unfair dismissal the Court gave the parties a full opportunity to address it on the matter of redress. In this regard the Court heard extensive verbal and written submissions from the professional representatives.
The Court’s role in this case, as per Section 7, is to consider, having heard the parties, which form of redress is appropriate having regard to all of the circumstances. In considering the appropriate form of redress in this case the Court has taken full account of all of the material provided to it, both the written submissions and the verbal presentations and interactions at the hearing.
Accordingly, the Court has decided that compensation is the appropriate form of redress having regard to all of the circumstances of this case and measures the compensation at €45,000.00, this reflects the fact that the Complainant did not receive her statutory entitlement to notice.
In measuring the appropriate level of compensation the Court has taken account of all of the circumstances including the submissions made by the representatives at the hearing regarding preferred redress.
The Decision of the Adjudication Officer is varied accordingly.
The Court so determines.
Signed on behalf of the Labour Court
7 November 2016______________________
Enquiries concerning this Determination should be addressed to Michael Neville, Court Secretary.