ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00037483
Lidl Ireland Gmbh
None - self
Scott Jevons Employee Relations Manager
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973
Date of Adjudication Hearing: 26/01/2023
Workplace Relations Commission Adjudication Officer: Michael MacNamee
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 – 2015 and Section 41 of the Workplace Relations Act, 2015, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
I conducted a remote hearing in accordance with the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and Statutory Instrument 359/2020 which designates the Workplace Relations Commission as a body empowered to hold remote hearings.
The Complainant made two claims:
CA-00048814-001 A claim pursuant to Section 8 of the Unfair Dismissals Act 1977 (as amended).
CA-00048814-002 A Claim pursuant to Section 12 of the Minimum Notice and Terms of Employment Act 1973 (as amended)
The matter was heard before me on the 4th of November 2022 and the 26th of January 2023 by way of online hearing.
Summary of Complainant’s Case:
The Complainant represented himself at the Adjudication Hearing and he gave his evidence on affirmation. In addition to his own evidence and submissions, the Complainant called the following witnesses who gave evidence on affirmation:
Mr. Obigraf Daskalov
Ms. Anna Seredyn
The Complainant’s complaint form stated only that was that he was unfairly dismissed by the Respondent when he was suffering from depression. He expanded on this statement at the hearing.
On a previous occasion in March 2020, when the Complainant had been subjected to the Respondent’s disciplinary procedure, the Respondent had sent all relevant notifications to him in hard copy by hand delivery. However, no hard copies of any of the letters relating to the investigation and disciplinary process which led to the dismissal in dispute were sent. All of the correspondence this time was sent by email only. The Complainant said that the use of email in the Respondent’s organisation was unusual and was not the main means of communication with employees.
The Complainant accepted that he did receive all of the email communications from the Respondent but he said that he was very depressed at the time when they were sent and he was disengaged completely to the extent that he did not monitor his email at that time. He made the point that if he had received postal communications in hard copy, he would have looked at these, but none were received. The Complainant said that he was completely unaware of the disciplinary proceedings and this was the reason he did not participate in any of the meetings or engage in any way with the process. The email notification of the outcome of the disciplinary process dated the 27th of August 2021 stated that the Complainant was dismissed from his employment with effect from that date. However, the Complainant remained on the payroll for several months after the date of dismissal indicated in the Dismissal Letter (due to a mistake on the part of the Respondent – see below) and he continued to receive payments from the Respondent. The Complainant assumed that he was receiving sick pay on foot of medical certificates which he had given to his colleague to be delivered by her to the store. He said that it was only when his remuneration ceased that he became aware of any issue with his employment. The Complainant said that at that stage he then – and only then - looked at his emails and this is when he discovered all of the email communications relating to the disciplinary process including the Dismissal Letter. Thereafter in February 2022, the Complainant initiated the present claim.
Mr. Obigraf Daskalov gave evidence on behalf of the Complainant on Day 2 of the hearing. He was employed as a Store Manager by the Respondent for some 15 years. He left the Respondent’s employment in February or March of 2022 - in cross-examination that accepted he did not leave on good terms. He said that in 15 years working for the Respondent, he received about 20 emails in total and that email was not the usual means of communication with employees. He said that the absence procedure usually involved a number of progressive steps starting with a telephone call and going from there to making contact with next of kin and/or asking the missing employee’s colleagues if they were aware of his/her circumstances or whereabouts. He also said that the absence procedure was normally managed directly by the HR department.
The Complainant said that he had, on several occasions, handed medical certificates to Ms. Seredyn who was then employed in the same store as the Complainant in the capacity of Deputy Manager. On each occasion when he gave her the medical certificates they were in a sealed envelope, and she was asked to pass them to the Respondent when she went to work herself. He said that he met her outside her house two or three times and once or twice outside the store in the carpark. The Complainant did not retain copies of the medical certificates. The Complainant’s submission was that he did follow the absence procedure and that he submitted medical certificates (as detailed above) for two months.
Ms. Seredyn gave evidence on Day 2 of the hearing. She was employed by the Respondent as the Deputy Store Manager at the same store as the Complainant. She has since left this employment, but this was after the Complainant’s dismissal. She worked for the Respondent for five years. She confirmed that she did receive sealed envelopes from the Complainant on two or three occasions outside her house and once or twice in the carpark of the store very early in the morning. She recalled the Complainant saying that he would be out sick and that he was taking medication and that he was not feeling well. He did not look well to her. She could not recall the exact dates when these exchanges occurred but she thought it must have been prior to May 2021 as she went out sick from that time herself. She said that she did not open the envelopes but that she understood them to contain medical certificates. When she received the envelopes from the Complainant, she initially told Mr. Dixon the Store Operations Manager that she had received them from the Complainant and that the Complainant had told her that they contained medical certificates. Normally she would have faxed such documents to H.R., but Mr. Dixon instructed her not to send them to HR but to leave them in a locked box called the ‘SOM Box’. She put the envelopes in the SOM Box each time she brought them to the store and on each occasion, she informed Mr. Dixon that she had done so.
By reference to his personnel file as produced by the Respondent, the Complainant identified periods in the past where he had taken sick leave in respect of which he submitted medical certificates. He confirmed that this sick leave was recorded but no medical certificates in respect of these periods were on the file produced by the Respondent. The Complainant’s submission was that the Respondent’s filing system was unreliable and if a document was not on the Respondent’s file that did not prove that it had not been received in the store. He also noted that one of the two medical certificates which were on file related to April 2021, the month before the investigation was commenced.
With regard to his claim under the Minimum Notice Acts, the Complainant denied that he was guilty of gross misconduct as contended for by the Respondent and that the Respondent could not therefore rely on gross misconduct to defeat his claim. The Complainant sought compensation for failure to provide him with notice or pay in lieu thereof pursuant to the Minimum Notice and Terms of Employment Act 1973 (as amended) reflecting his service which, he contended was continuous from 2004 to 2021 when he was dismissed. Even though his service for LIDL Ireland was broken for an eighteen-month period between 2011 and 2013, the Complainant contended that he still worked for LIDL during that time albeit that during that 18 month period he worked in Poland for LIDL Poland and not for LIDL Ireland. He relied on a certificate which he received in 2014 which congratulated him for completing 10 years of service with LIDL.
Summary of Respondent’s Case:
Dismissal was not in dispute.
The Respondent provided a written submission and called one witness, Mr. Darren Devine, the Respondent’s Sales Operations Director who gave evidence on affirmation. He outlined the procedures that were followed by reference to the correspondence which was sent to the Complainant and the notes of the investigation and disciplinary process resulting in the Complainant’s dismissal. An investigation was carried out by the then District Sales Operations Manager, Mr. Paul Dixon and Mr. Devine was responsible for conducting the disciplinary process which followed. Mr. Devine was not involved in the investigation but he took up the investigation report prepared by Mr. Dixon which was then used as the basis for the disciplinary process. Mr. Devine made the decision to dismiss the Complainant for gross misconduct.
The Claimant commenced a period of unauthorised absence from the 19th of May 2021 which was unexplained. Despite several letters from Mr. Paul Dixon (the Respondent’s then Sales Operations Manager) requesting the Complainant to contact the Respondent, there was no response. On the 31st of May 2021, Mr. Dixon, wrote again to the Complainant noting that that no contact had been received, nor had any medical certificates been submitted as required by the Respondent’s absence reporting procedure. The Complainant was given until the 7th of June 2021 to make contact with Mr. Dixon. No response was received. On the 18 June 2021Mr. Dixon, Sales Operations Manager initiated an investigation. A letter was sent to the Complainant seeking for him to attend the investigation by telephone on the 5 July 2021to discuss the following allegations:
“Alleged failure to adhere to the correct absence notification process as per section 9.1 of the Employee Handbook from the 1st April 2021 to [that] date, which resulted in unauthorised absences
Alleged gross misconduct as per section 10.4 of the Employee Handbook, where it is alleged that you failed to engage in the Company's back to work process by allegedly not contacting your Sales Operations Manager by 26th May or 7th June 2021, as requested “
The Claimant did not “attend” this meeting and did not contact the Respondent to cancel or postpone it. By way of further letter dated the 9 July 2021 the meeting was re-scheduled for the 16 July 2021 and the letter stated that if the Complainant did not attend, the matter would proceed in his absence. The Claimant did not attend this meeting nor did he contact the Respondent to cancel or postpone. The meeting proceeded in his absence. On the 23rd of July 2021 – a Report was issued arising from the Investigation process. On the basis of the allegations above, Mr. Dixon reported that the Complainant had a case to answer. The matter was then referred to Mr. Devine to conduct a formal disciplinary hearing.
Mr. Darren Devine, the Respondent’s Sales Operations Director initiated the disciplinary process by letter to the Complainant dated the 11 August 2021 proposing a disciplinary hearing on the 13 August 2021 which again was to take place via telephone. The Claimant failed to “attend” the disciplinary hearing and did not contact the Company. A further letter was sent to the Complainant on the 20 August 2021 re-scheduling the meeting for the 24 August 2021 by way of telephone and the Complainant was informed that the hearing would proceed in his absence if he again failed to attend. The Claimant did not contact the Company and failed to “attend” the re-scheduled disciplinary hearing. The hearing proceeded in his absence and an outcome letter was sent on the 27th of August 2021. This letter advised that the Complainant was guilty of the breaches set out in the Investigation report which breaches constituted gross misconduct. The Complainant was summarily dismissed with effect from the date of the letter, the 27th of August 2021. As the dismissal arose from gross misconduct the Complainant was advised that he was not entitled to minimum notice.
The Respondent’s submission made the following assertion in relation to the letter:
“The letter pointed to the exhaustive efforts that had been made to engage the Claimant in the process, as well as his continued failings at following Company procedures throughout – in fact referring to a “blatant disregard” for Company policies and procedures leading to an irreparable breach in trust and confidence. It expressly offered the right to appeal the decision within seven working days. No appeal was lodged by the Claimant.”
Without prejudice to its contention that the dismissal was fair and proportionate, the Respondent alleged that the Complainant’s losses were not attributable to his dismissal but rather to his unilateral withdrawal of his labour, that he had failed adequately to mitigate his loss until he found alternative employment. Thereafter, having gained such alternative employment in or about December 2022, it was contended that the Complainant had failed to adduce any evidence of losses after that date.
With regard to the Minimum Notice claim, the Respondent adopted the position that the Complainant was dismissed for gross misconduct and was not therefore entitled to Minimum Notice. Without prejudice to this position, it was contended that any statutory entitlement should be based on service commencing in 2013 from which date the Complainant commenced employment with this Respondent. It was contended that the Complainant may have worked for other companies in the Respondent’s group, namely LIDL Poland but this was a separate legal entity and his service with the present Respondent only commenced in 2013. Reference was made to the Complainant’s contract of employment with the present Respondent which the Complainant signed and which states that the commencement of his employment is 2013.
Evidence and Submissions Regarding Written Communications and Delivery of Medical Certificates
Mr. Devine in his evidence, said that he could not recall whether hard copies of the letters relating to the disciplinary process were sent but that he relied on notification from HR that all documents were issued and confirmed as received. In a written submission circulated before Day 2, the Respondent clarified that there was no log of telephone calls or letters issued to the Complainant. During the pandemic the communication procedures were adapted such that where letters were to be sent to employees the letters would be read out to the recipient in the store and the hard copy would then be physically handed to the recipient and also sent to him/her by email.
The Respondent did not accept the Complainant’s contention that he did not read his emails until several months after the dismissal was notified to him in the dismissal letter of the 27th of August 2021 and it was asserted that by his own admission he did receive all communications by email when they were sent and that he chose to ignore them and not to engage at all with the disciplinary process. The Respondent contended that the Complainant was guilty of gross misconduct and that the dismissal in the circumstances was fair and proportionate to the loss by the Respondent employer, of trust and confidence in the Complainant due to his misconduct.
The Respondent did not accept the evidence of the Complainant or that of Ms. Seredyn regarding the delivery of medical certificates to the store or the instruction allegedly given to Ms. Seredyn by the then Store Operations Manager, Mr. Dixon to place these envelopes in the Store Operations Manager’s locked box. Mr. Dixon did not give evidence to rebut the evidence of Ms. Seradyn. Mr. Devine clarified that the normal procedures regarding documents left in the SOM Box. He said that any documents in the box would normally be scanned and stored electronically on the system at which point the hard copies might have been destroyed.
Regarding the medical certificate for April 2021, which was on file, the Respondent made the point that the unfitness was “due to medical condition” and the Respondent was not on notice that the Complainant was suffering from depression.
Findings and Conclusions:
Unfair Dismissal Claim
Statutory Provisions Unfair Dismissal – Burden of Proof – Grounds - Reasonableness
Section 6 subsection (1) of the Unfair Dismissals Acts 1977-2015 provides as follows:
Subject to the provisions of this section, the dismissal of an employee shallbe deemed, for the purposes of this Act, to be an unfair dismissal unless, havingregard to all the circumstances, there were substantial grounds justifying the dismissal.
Subsection (4), where relevant to the present case, provides as follows:
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:
…(b) the conduct of the employee…
Subsection (6) places the onus on the employer to establish that the dismissal was fair (the so-called reversed onus of proof) 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.
Subsection (7) provides where relevant, as follows:
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 …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…
In the present case, dismissal was not in dispute nor was the date of dismissal which was the 27th of August 2021. The dismissal is deemed unfair pursuant to Section 6 (1) unless the Respondent can show “substantial grounds” justifying the dismissal. In this case the Respondent relied on the conduct of the Complainant (Section 6 (4) (b)) in that he was dismissed on the basis of gross misconduct.
Core Issues Raised by the Complainant
Arising from the evidence and submissions over the two-day hearing, two core issues emerged as the basis of the Complainant’s challenge to his dismissal:
The Complainant made the point that on a previous occasion when the Respondent invoked its disciplinary procedures against him, he had received the relevant letters and notifications by way of hard copies which were hand-delivered to his home, and he queried why the same procedure was not followed with regard to the disciplinary process which led to his dismissal. Mr. Devine could not recall whether the letters relating to the disciplinary process were posted or hand-delivered or just emailed.
The Complainant did acknowledge that his email address had not changed during the period (May to August 2021) when the email correspondence was sent to him and he also accepted that the emails were received in his in-box. However he was extremely depressed for a number of months from April 2021, throughout the time period when the investigation and disciplinary letters were sent by email and indeed he remained unwell for a considerable period thereafter such that he did not regain his fitness until January or February of 2022 following treatment from psychiatric services through the H.S.E. On two separate occasions in the course of evidence over the two days of hearing, I observed the Complainant’s demeanour when he said that during this time “I wanted to kill myself” and “I did not want to live anymore” and I was struck by the frankness and candour of these very strong statements, which were not challenged. The Complainant’s evidence therefore was to the effect that due to his total disengagement from life generally due to depression, he was not looking at his emails at all. As a result of these circumstances, the Complainant said that he was totally unaware of and did not engage with the investigation and subsequent disciplinary proceedings. The only aspect of his employment of which he was aware was that he was continuing to receive payments from the Respondent into his bank account which continued for several months after the date of dismissal on the 27th of August 2021. The parties were in agreement that the Complainant continued to be paid far beyond the date of his dismissal on the 27th of August 2021.
In normal circumstances one would fully expect that an employee absent for a lengthy period on sick leave would be anxious to monitor any communications from his employer and it would follow, again in normal circumstances, that it would be most unlikely that email communications would not be read when sent and received. However, the Complainant’s situation was not a normal one insofar as he said that at the time when the emails were sent, he was very depressed, that he was totally disengaged from life altogether and he was not reading any emails. Although he did not present detailed medical evidence describing his condition at this time, the Complainant did produce letters from the H.S.E which confirmed appointments with psychiatric services on specified dates in July 2021, October 2021, November 2021, January 2022, August 2022 and December 2022. I also note that the Complainant received his salary after the dismissal date for several months – albeit that this was due to an error on the part of the Respondent – and that it was only when his salary ceased that he then turned to his emails and discovered that he had been dismissed.
On the balance of probabilities, I accept the evidence of the Complainant that he was severely depressed and disengaged from life during the period when the email communications regarding the disciplinary process were sent. I further accept that even though the emails were sent to his email address, the Complainant did not read them until after his salary ceased which was several months after the date of dismissal on the 27th of August 2021. I further find that hard copies were hand delivered to the Complainant on a previous occasion in March 2020 where he was subjected to a disciplinary process but that on this occasion, in the period May to August 2021, no hard copies were delivered.
The Complainant asserted that he had on several occasions handed medical certificates to Ms. Seredyn who was then employed in the same store as the Complainant in the capacity of Deputy Manager. On each occasion when he gave her the medical certificates they were in a sealed envelope, and she was asked to pass them to the Respondent when she went to work herself. He said that he met her outside her house two or three times and once or twice outside the store in the carpark. The Complainant did not retain copies of the medical certificates. Whilst not accepting this evidence, the Respondent was not in a position directly to controvert it. Mr. Dixon did not give evidence at the hearing.
By reference to his personnel file as produced by the Respondent, the Complainant identified periods in the past where he had taken sick leave in respect of which he submitted medical certificates. He confirmed that this sick leave was recorded but no medical certificates in respect of these periods were on the file produced by the Respondent. The Complainant’s submission was that the Respondent’s filing system was unreliable and as a result the mere fact that a medical certificate was not on file did not constitute reliable evidence that it had not been received.
At my direction the Respondent furnished such medical certificates as were on the Complainant’s personnel file. Only two medical certificates were produced, one which pre-dated the events the subject matter of the present claim and the other which certified the Complainant as being unfit for work from the 8th to the 14th of April 2021. It is thus beyond doubt that at least one medical certificate made its way to the personnel file and was received by the Respondent.
In his initial letter to the Complainant dated the 19th of May 2021, Mr. Dixon stated: “We have had no communication from you either verbal or otherwise in a number of weeks”. In a follow-up letter dated the 31st of May 2021 Mr. Dixon states: “We have had no communication from you either verbal or otherwise in a number of months”. In his investigation report dated the 23rd of July 2021, Mr. Dixon formulates the first “Reason” why a case to answer was found in the following terms:
“Alleged failure to adhere to the correct absence notification process as per section 9.1 of the Employee Handbook from the 1st April 2021 to date”
This formulation might give the indication that no contact whatsoever was made whereas the presence of the certificate on the personnel file indicates that at least one certificate indicating that the Complainant was unfit for work was received. There is no mention of this certificate anywhere in the investigation report - to say nothing of those that, on the Complainant’s case, were left in the SOM Box by Ms. Seradyn. Whilst the Respondent did not admit that the certificates were delivered (via Ms. Seradyn) as alleged by the Complainant, there is no explanation as to why the certificate covering the 8th to the 14th of April 2021 (which was received and is on file) was not mentioned in the report and I find that the failure to mention this certificate undermines the reliability and accuracy of the investigation report and the formulation of the reasons for the case to answer, which appear at its conclusion.
The disciplinary outcome letter dated the 27th of August 2021, states that Mr. Devine considered the investigation report in detail and the disciplinary hearing. As the Complainant did not attend the disciplinary hearing, it follows that the decision to dismiss turned primarily on the investigation report and it is noteworthy that the formulations which formed the basis of the case to answer in that report are replicated in the disciplinary outcome letter of the 27th of August 2021. In his evidence Mr. Devine said that he was “not aware of any background local information”.
The Reasonableness of the Respondent’s Decision to Dismiss
The Respondent’s written submission stated as follows:
“In relation to the sanction imposed by the Respondent, the principles to be applied in cases of gross misconduct have been clearly established over time, and the test as set out in Looney & Co. Ltd v Looney, UD 843/1984is as follows:
“It is not for the Tribunal to seek to establish the guilt or innocence of the claimant, nor is it for the Tribunal to indicate or consider whether we, in the employer’s position, would have acted as he did in his investigation, or concluded as he did or decided as he did, as to do so would substitute our mind and decision for that of the employer. Our responsibility is to consider against the facts what a reasonable employer in the same position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s action and decision be judged.”
It is the Respondent’s position that a “reasonable employer in the same position and circumstances” would have reached the same determination in the circumstances of the within case. As such the company’s decision to dismiss was reasonable and fair in the circumstances, and no unfair dismissal took place.”
The formulation relied on from the decision in Looney & Co. Ltd v Looneyis similar to that enunciated by Lord Denning MR in the U.K. Court of Appeal in British Leyland UK Ltd v Swift  I.R.L.R. 91 who put it as follows:
“The correct test is: Was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably take a different view.”
This test, commonly referred to as the “Band of Reasonableness Test” was endorsed in Ireland in AIB v. Purcell  23 ELR 189 which endorsement was further approved by the High Court in Bank of Ireland v. Reilly  IEHC 241 (at paragraphs 38 and 39) and I adopt it as the correct test to be applied in the present case as the standard by which to assess the Respondent’s decision.
The Respondent was actually aware that the Complainant was certified as sick from the 8th of April 2021 to the 14th of April 2021, and yet an investigation was commenced on the basis that he had not adhered to the absence procedure “from the 1st of April to date” (that date being the 23rd of July 2021). The Investigation did not take account of the medical certificate which was received. Even though the nature and extent of the Complainant’s illness were not disclosed in this certificate, the Respondent was on notice that the Complainant was sick.
The correspondence sent to the Complainant was, as a matter of probability only sent by email and there is no evidence that hard copies of any of the correspondence were sent by any means, whether by hand delivery or by post. Any pandemic related restrictions would not have prevented any of these delivery methods as the national postal service as well as private courier services were available and fully operational thoughout the pandemic. There is no log or record of telephone calls made to or received from the Complainant either in relation to his general health and welfare or as regards the Investigation and Disciplinary Processes notwithstanding that all of the meetings proposed in relation to those processes were to take place by telephone with either the Complainant contacting the Respondent or vice versa.
In circumstances where I have found as a matter of probability that the Complainant was suffering from depression and was not reading his emails and that the Respondent was aware that he was sick, I am not satisfied that sufficient efforts were made to alert the Complainant to the investigation and disciplinary correspondence and I find that the Complainant was unaware of those processes until several months after they had concluded, by which time the 7-day appeal period afforded by the dismissal letter had expired. The fact that the medical certificate received which is on file was not considered or further investigated by the investigator undermines the conclusions reached by that investigator which in turn undermines the disciplinary process where the decision-maker at that level was “not aware of any background local information”. As regards the other certificates which were allegedly delivered to the store on behalf of the Complainant it is unnecessary to make a specific finding on whether these were delivered or not as I am satisfied that the failure by the investigator to consider the certificate which was received undermines the investigation and the disciplinary process upon which it was based.
On the basis of the totality of the foregoing facts as admitted or proven, and applying the band or reasonableness test as outlined above, I conclude that no reasonable employer in the circumstances of this case would have dismissed the Complainant and accordingly I find that the dismissal was unfair.
Redress for Unfair Dismissal
Applicable Statutory Provisions
Section 7 subsection (1) of the Unfair Dismissals Acts provides as follows:
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…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…
Subsection (2) where relevant, provides:
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…
Having canvassed the respective views of the parties at the hearing and bearing in mind that the Complainant has found alternative employment and has no wish to return to the Respondent’s employment, I decide that the most appropriate redress in this case is compensation.
Compensation for Unfair Dismissal in accordance with Section 7 subsection (1) (c) must be measured by reference to actual financial losses “attributable to the dismissal” – that is as distinct from those arising from any other cause. In the present case the Complainant, in his evidence, accepted that he was unfit, due to his depression actively to seek work until approximately January 2022. Accordingly, any losses sustained prior to that time cannot be said to be “attributable to the dismissal” and are therefore unrecoverable by way of compensation for unfair dismissal.
On day 2 of the adjudication hearing in January 2023, the Complainant said that he had secured alternative employment which commenced in December 2022. At the end of the hearing on Day 2 the Complainant was given a date by which he was to submit documentary evidence in relation to this employment, but none was submitted and thus it is impossible to verify the commencement date, the applicable terms of employment or the present rate of remuneration. In such circumstances there is no evidence of any claim for future losses beyond December 2022 and no award is made in respect of any future losses.
Section 7 subsection (2) paragraph (c) requires that in assessing compensation under Section 7 subsection (1) (c), I have regard to the “measures (if any) adopted by the employee or as the case may be, his failure to adopt measures, to mitigate” the alleged financial loss.
Actual losses from January 2022 to November 2022 would be compensable provided genuine efforts have been made to mitigate those losses by way of actively seeking alternative employment. In the present case the Complainant has provided very limited evidence of his efforts to mitigate his loss and I am not entirely satisfied that sufficient efforts were made by the Complainant to secure alternative employment before December 2022. Neither is it altogether clear that the Complainant was in the fullness of his health in 2022 as he does appear to have had psychiatric appointments that year according to the H.S.E. letters which he provided which show that he had three appointments in 2022: for specified dates in January 2022, August 2022 and December 2022. These appointments in 2022 must be considered along with the Complainant’s evidence where he admitted that he was unfit, due to his depression actively to seek work until approximately January 2022 and there must be some doubt as to whether he was in fact fully fit to seek alternative employment as early as the month of January of 2022 or whether his unfitness remained for a longer period.
Taking all of the above into account and doing the best that I can in the light of the available evidence and submissions, I deem the sum of €16,000 to be an appropriate, just and equitable sum of compensation having regard to all of the circumstances and the Respondent is directed to pay this sum to the Complainant.
MINIMUM NOTICE CLAIM
Section 4 of the Minimum Notice and Terms of Employment Acts 1973-2005 (as amended) require that an employer when terminating the contract of an employee must provide the latter with minimum statutory notice, the length of which is dependent on the employee’s length of service.
Section 8 provides as follows:
“Nothing in this Act shall affect the right of any employer or employee to terminate a contract of employment without notice because of misconduct by the other party.”
As regards redress for a contravention Section 4, Section 12 subsection (1) of the Act (where relevant) provides as follows:
“A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of section 4(2) or 5 may, where the adjudication officer finds that that section was contravened by the employer in relation to the employee who presented the complaint, include a direction that the employer concerned pay to the employee compensation for any loss sustained by the employee by reason of the contravention.”
As regards the Minimum Notice claim and the alleged contravention of Section 4, i.e. failing to provide statutory minimum notice, the Respondent asserted its entitlement to terminate the Complainant’s contract without notice because of misconduct as expressly provided for in Section 8.
I have found that the Respondent’s decision to dismiss the Complainant on the basis of gross misconduct was unreasonable and that the Complainant was unfairly dismissed. Accordingly I find that Section 8 is not applicable and that the Respondent cannot rely on gross misconduct as a reason not to provide minimum notice to the Complainant and thus the dismissal without notice is a contravention of Section 4.
The Complainant’s entitlements are based on his service and I accept the Respondent’s submission that the Complainant’s service dates from 2013 as reflected in his signed contract of employment and hence the entitlement would be based on service in excess of five years but less than 10 years which would potentially generate a maximum entitlement of four weeks’ pay by way of compensation.
Redress for Contravention of Minimum Notice Act 1973
The parties were in agreement that the Complainant continued to be paid far beyond the date of his dismissal on the 27th of August 2021. However, the evidence as to how much was paid beyond that date is unclear. The Complainant, in his evidence said that he received what he thought was sick pay throughout the investigation and disciplinary processes from May 2021 to August 2021 and that he continued to receive payments into his account until he eventually discovered that payments to him from the Respondents ended. He was unsure about the date when he became aware that payments had ceased but he thought that this may have been in or around October of 2021.
At the end of the hearing on Day 1, I directed the Respondent to provide further information on this issue which the Respondent did in an email dated the 18th November 2022. On this issue the Respondent had the following to say:
“It would seem through an administrative error the Claimant continued to be paid a Company Car payment of circa €300. In February of 2022 when the Claimant submitted his claim this was noticed and he was made a leaver on our payroll system (March 2022). He was then further paid, incorrectly, a final payment for AL accrued (incorrectly) whilst on sick leave up to March 2022. The termination date remains 27 August 2021 per the dismissal letter of same date. The Claimant in fact was paid by the Company money for which he was not entitled of up to €4,000 – we will look to recover this.”
The foregoing is the extent of the evidence available on the payments made after the dismissal on the 27th of August 2021 and from this I deduce and find as follows:
As a matter of probability, I find that the Complainant continued to receive his full salary for at least a month (and probably more) after August 2021. Although I have found that the failure to provide notice was a contravention of Section 4 of the Acts, Section 12 provides that compensation is to awarded in respect of any loss sustained by the employee by reason of the contravention of the Act and for this reason, even though there was a breach of the Act for failing to provide notice in accordance with the Act, I cannot award compensation arising from that breach as no loss arose by reason of that contravention. Accordingly, I assess compensation at nil.
CA-00048814-001 Unfair Dismissal
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
The Complainant was unfairly dismissed. The Respondent is directed to pay compensation to the Complainant in the sum of €16,000
CA-00048814-002 Minimum Notice
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 4 of the Act was contravened. However, as no loss was sustained by reason of the contravention compensation is assessed at nil.
Workplace Relations Commission Adjudication Officer: Michael MacNamee
Unfair Dismissals Acts 1977 (as amended) – Section 6 (1), Section 6 (4), Section 6 (6) – Section 6 (7) Looney & Co. Ltd v LooneyUD 843/1984 - British Leyland UK Ltd v Swift  I.R.L.R. 91 - AIB v. Purcell  23 ELR 189 - Bank of Ireland v. Reilly  IEHC 241 - Band of Reasonableness - Redress for Unfair Dismissal – Compensation - Unfair Dismissals Act 1977 (as amended) Section 7 (1) (c) – loss attributable to dismissal – Section 7 (2) (c) - mitigation of loss – Minimum Notice and Terms of Employment Act 1973 (as amended) – Section 4, Section 8, Section 12 (1) – No loss sustained by reason of contravention of Section 4 – nil compensation