SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015
(REPRESENTED BY PENINSULA BUSINESS SERVICES)
- AND -
JUAN RAMON SANCHEZ GIL
(REPRESENTED BY BAJWA SOLICITORS)
|Employer Member:||Mr Marie|
|Worker Member:||Mr Hall|
1.An appeal of Adjudication Officer Decision no. CA-00003256-001 ADJ-00002402
2.The Employee appealed the Decision of the Adjudication Officerto the Labour Court on 14 December 2016 in accordance with Section 8(A) of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 7 January 2020. The following is the Determination of the Court:-
This is a joint appeal against the Decision of an Adjudication Officer under the Unfair Dismissals Act 1977 – 2015 (the Acts) in a claim made by Mr Juan Ramon Sanchez Gil against his former employer City Jet where he alleged that he was unfairly dismissed. By decision dated 4th November 2016, the Adjudication Officer held that the complaint was well founded and awarded €6,000 in compensation.
For ease of reference the parties are given the same designation as they had at first instance. Hence Mr Juan Ramon Sanchez Gil will be referred to as “the Complainant” and City Jet will be referred to as “the Respondent”.
The Complainant referred his case to the Workplace Relations Commission on 18th March 2016. A hearing before the Court on 7thJune 2017, was adjourned due to the absence of a crucial witness. Further Court hearings scheduled for 17th December 2019 and 15thOctober 2020 were postponed for various reasons.
The Respondent is an Irish regional airline with headquarters in Swords, County Dublin. The Complainant was employed by the Respondent as a member of Cabin Crew, from 25th January 2005 until he was dismissed on 29th January 2016. Due to an incident on 13th January 2016, the Complainant’s employment was terminated on 29th January 2016. The Complainant alleged that theRespondent’s decision to dismiss him was substantively unfair and was in breach of Section 7 of the Acts.
High Court Order
Ms Lisa Weatherstone, Peninsula Business Service (Ireland) Limited, on behalf of the Respondent, by letter dated 17th December 2020, copied to Bajwa Solicitors, informed the Court that the Respondent was the subject of a High Court Order made by Mr Justice Quinn on 11th August 2020 (High Court Order Number : 2020/125 COS).
She said that this Order set out a scheme of arrangement in the context of its examinership, which would apply to the Complainant, as an unsecured contingent creditor. She also informed the Court that the Respondent did not dispute that the Complainant was dismissed from his employment on 29th January 2016 and therefore, it had made an offer to him in full and final settlement of his appeal under the Acts.
Ms Weatherstone stated that should the Complainant not accept the offer, then the Respondent would not be defending its appeal before the Court. This offer was rejected by the Complainant.
At the hearing before the Court, Ms Weatherstone confirmed that the Respondent would not be defending the claim under the Acts.
The Complainant’s Appeal
In his submission to the Court, Mr Shehzad Bajwa, Bajwa Solicitors, on behalf of the Complainant, stated that the Complainant was seeking compensation for his dismissal, which he contended was unfair within the meaning of the Acts.
Conclusions of the Court
As the Respondent has accepted that the dismissal of the Complainant was unfair, then the only issue before the Court is the appropriate quantum of compensation.
Section 7(1)(c) of the Acts:-
(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,
Section 7(2)(c) provides that in examining the financial loss, the Court must have regard to the measures adopted by the employee to mitigate his loss. The legislation does not allow the Court to award compensation in an amount that goes beyond the financial loss attributable to the dismissal.
Therefore, as an award of compensation for unfair dismissal is to make reparation for financial loss actually incurred in consequence of a dismissal, the Court sought specific details on the losses incurred and the efforts made to mitigate those losses.
This information was sought by the Court in June 2017. Prior to the hearing on 7th January 2021, information was provided to the Court on the financial losses incurred by the Complainant since his dismissal, however, no details were provided to substantiate those losses and no details were given on the Complainant’s efforts to mitigate the losses. In his claim form to the WRC under the Acts, the Complainant stated that he was paid €1,942.33 per month.
Therefore, in all the circumstances of this case and owing to the failure of the Complainant to provide facts to the Court on his efforts to mitigate his loss, the Court awards him compensation under the Acts in the amount of €1,792.92 i.e. four weeks’ pay.
It is the determination of the Court that the Decision of the Adjudication Officer is set aside and substituted with this Determination.
|Signed on behalf of the Labour Court|
|14 January 2021||Deputy Chairman|
Enquiries concerning this Determination should be addressed to Heather Murray, Court Secretary.