SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015
C & F AUTOMOTIVE LIMITED IRALCO
- AND -
(REPRESENTED BY JOHN P PRIOR & CO SOLICITORS)
Chairman: Ms Jenkinson
Employer Member: Ms Doyle
Worker Member: Mr McCarthy
1. Appeal Of Adjudication Officer Decision No: ADJ-00004403 CA-00006251-001
2. The Complainant appealed the Decision of the Adjudication Officer to the Labour Court on the 24 November 2017 in accordance with Section 8(A) of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 20th February 2018. The following is the Court's Determination:
This is an appeal by Ms Lina Slomskiené against the decision of an Adjudication Officer under the Unfair Dismissals Act 1977 – 2015 in her claim of unfair dismissal against her former employer, C&F Automotive Limited t/a Iralco. The Adjudication Officer held that the Complainant was unfairly dismissed and awarded her the sum of €8,000.
For ease of reference the parties are given the same designation as they had at first instance. Hence Ms Lina Slomskiené will be referred to as “the Complainant” and C&F Automotive Limited t/a Iralco, will be referred to as “the Respondent”.
The Complainant referred her case to the Workplace Relations Commission on 26thJuly 2016. The Adjudication Officer issued his Decision on 17thNovember 2017. On 24thNovember 2017, the Complainant appealed the Adjudication Officer’s Decision. The appeal came before the Court on 20thFebruary 2018.
The Respondent submitted that the Complainant was dismissed by reason of redundancy. The Adjudication Officer held that the onus of proving that the Complainant was fairly dismissed by virtue of fair selection for redundancy had not been discharged by the Respondent and consequently held that the Complainant was unfairly dismissed. The Appeal before the Court is solely on the basis of the amount of compensation awarded. Based on her assessment of losses she seeks the sum of €25,465.00.
The Complainant commenced employment as a General Operative on 8thSeptember 2014 and was dismissed on 10th June 2016, when her role was made redundant. She was paid €486.36 gross per week.
Position of the Parties
Mr Thomas Harrington, Legal Advisor on behalf of the Respondent, furnished a detailed submission to the Court outlining the Respondent’s position on the reasons for the termination of the Complainant’s employment due to redundancy. He explained that due to a fall-off in business 122 employees (27% of the workforce) were made redundant in the period between September 2013 and June 2016. He referred to the Adjudication Officer’s Decision which found that although genuine redundancies existed in the firm at the time, the Respondent had failed to prove implementation of fair selection procedures in respect of the Complainant. In particular, the Adjudication Officer found that the Complainant could have been offered short term seasonal work. Mr Harrington acknowledged this but indicated that due to an erroneous understanding of the law, it had mistakenly thought that seasonal work was of too short duration to prevent the Complainant’s redundancy. On that basis Mr Harrington informed the Court that the Respondent had decided not to appeal the Adjudication Officer’s Decision.
Mr Harrington addressed the issue of redress and contended that the Complainant has made no real effort to mitigate her loss. He contended that she had a legal duty to mitigate financial loss by taking diligent steps to secure comparable alternative employment. He citedBurke v. Superior Express limited UD 1227/2014where the EAT held that thestandard required is a high one. He also relied upon the EAT Decision inNigel Coad v. Eurobase Limited (UD 1138/2013); Sheehan v Continental AdministrationCoLtd (UD 858/1999) where the EAT held as follows: -
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."
He submitted that from the Complainant’s own evidence the first job application she made following her redundancy was on 31st October 2016 - 4.5 months after her severance from the Respondent. A second unsuccessful job application was made on 16th November 2016 and she eventually secured employment on 30thJanuary 2017 as a part time school cleaner. He said that it was eight months after securing employment that the Complainant made a further job application on 31st August 2017. Mr Harrington contended that there was no evidence of any further
efforts to obtain full time employment and no evidence of any contact with the employment finding services of the state.
He referred to a job advertisement the Respondent placed on the FÁS website within weeks of her redundancy seeking a General Operative on a temporary contract. Mr Harrington submitted that had the Complainant responded to the advertisement she could have been re-engaged within a matter of seven to eight weeks from her severance date of 10th June 2016. Finally, he submitted that fair compensation for the financial loss caused by the Respondent should be measured at €3,120 (8 weeks nett loss).
Ms Mary Paula Guinness, B.L., instructed by John P. Prior & Co. Solicitors, on behalf of the Complainant, contended that the Complainant should not have been made redundant and was unfairly selected for redundancy. She stated that the Complainant was not given any understanding as to the reason she was selected for redundancy, despite seeking such information. Ms Guinness submitted that had proper and fair procedures been followed, the Complainant could have been retrained to do a different role, avail of seasonal work, continue on layoff or avail of the next general operative role.
Ms Guinness said that the Complainant accepted the Adjudication Officer’s Decision that she had been unfairly dismissed, however, she appealed the Decision on the basis of quantum only.
With respect to mitigation of loss, the Complainant furnished a statement to the Court of her efforts to gain employment. Ms Guinness said that as soon as her role was terminated the Complainant prepared a Curriculum Vita and made numerous job applications online and handed her CV into many local businesses enquiring if there is any work available. On 30th January 2017 the Complainant obtained employment as a cleaner in a school, working 18 hours per week at a rate of €12.50 per hour. Her hours increased and she now works 23 hours per week at €13.18 per hour. Consequently taking the maximum award of two years’ salary allowed for under the Acts, Ms Guinness said that the Complainant was seeking the sum of €25,465.00.
Findings of the Court
The Court notes that the appeal before the Court related solely to the quantum of compensation awarded, and the Respondent has not appealed the Adjudication Officer’s finding that the Complainant was unfairly dismissed.
The Court notes that by virtue of her length of service, the Complainant had no entitlement to a statutory redundancy severance payment. On notification of the termination of her employment on 3thJune 2016, she was given one week’s notice in accordance with her statutory entitlement and finished on 10thJune 2016.
In assessing the level of redress, the Court notes that while efforts were made to mitigate her losses, it is not satisfied that she fully discharged that duty.
Therefore, the Court measures the financial loss suffered by the Complainant at €15,000.00. The Complainant is awarded compensation in that amount.
For all the reasons set out herein the Court is satisfied that the Complainant was unfairly dismissed. The Court orders the Respondent to pay the Complainant compensation in the amount of €15,000.00. Accordingly, the Decision of the Adjudication Officer is varied and the appeal is upheld in part.
The Court so Determines.
Signed on behalf of the Labour Court
26 February 2018Deputy Chairman
Enquiries concerning this Determination should be addressed to John Deegan, Court Secretary.