ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00055466
Parties:
| Complainant | Respondent |
Parties | Selen Korkutan | Triglen Holdings Limited Russell Court Hotel |
Representatives | Self-Represented | Rory Treanor BL, instructed by Gerry McGreevy Solicitors |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00067594-001 | 22/11/2024 |
Date of Adjudication Hearing: 18/03/2025
Workplace Relations Commission Adjudication Officer: Dónal Moore
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015and Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The hearing was held remotely in line with the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020.
Following the judgement in Tomasz Zalewski v Adjudication Officer, WRC & Ors [2019]the parties were advised that hearings before the Workplace Relations Commission are held in public and, in most cases, decisions are not anonymised. The parties were also advised that Adjudication Officers hear evidence on oath or affirmation and all participants who gave evidence were sworn in. Both parties were offered the opportunity to cross-examine the evidence and where I deemed it necessary, I made my own inquiries to better understand the facts of the case and in fulfilment of my duties under statute.
In line with the Zalewski v Ireland decision, the Hearing was held in public, and parties were informed of their ability to avail of cross examination. The matter was heard in public, and no submissions were made to the contrary. Both parties gave detailed submissions of their case and were ablet to offer evidence based on the same.
I have taken the time to carefully review all submissions and evidence, both written and oral. I have noted the respective positions of the parties. I am not required to provide a line-for-line rebuttal of the evidence and submissions, and I am guided by the reasoning in Faulkner v The Minister for Industry and Commerce [1997] E.L.R. 107 in this, where it was held:
“…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one. Only broad reasons need be given…”.
The Hearing was attended by the Complainant and a companion in a support capacity. The Respondent was represented by Rory Treanor, BL and in attendance were Respondent management.
Background:
The Complainant was employed by the Respondent in a hospitality role and was dismissed from that employment. The Respondent accepts that there were errors in their processes and is not disputing the claim of unfair dismissal and put forward that the matter was one of quantum. |
Summary of Complainant’s Case:
The Complainant is a hospitality worker under the Turkish Association agreement. They required stable employment for a stamp 4 visa. They have submitted a considerable amount of documentation to the commission including their attempts to mitigate their losses. Having found employment with the Respondent they suffered a series of incidents that they have outlined. These incidents included workplace bullying and communication issues which while reported they were not investigated and, instead, found themself reprimanded; and in their stamp 4 status they felt unable to challenge this. They were subjected to a sexual harassment incident with an inadequate management response in October 2023, by a supervisor. They complained and received a verbal apology, but overall, the matter was not dealt with to their satisfaction. They consulted a Solicitor and following this a mediation was arranged where they received an apology which they felt was not genuine and no further actions to protect them or others was put in place. A further incident occurred regarding “checklist duties” where they were unfairly reprimanded. Despite attempts to acquire the records of this they were refused. They then faced an unfounded accusation of misconduct, unfair suspension, and dismissal in the period of 14 October – 4 November 2024. They submitted a written response and requested a meeting to discuss the accusation. At the subsequent meeting they were informed of further complaints against them that were unsubstantiated. They were suspended and could not get clarification on the issue. On the 24th of October at a further meeting, they were told to leave the premises and on the 4th of November received notice of termination of employment letter via email. The Complainant was dismissed on the 10th of November and the Complainant briefly found a new role from the 16th of December to the 1st of January at a lower rate and lesser hours (8 hrs pw at €13 ph.). They faced a further period of unemployment until the 27th of January where they found steadier employment. The Complainant puts their losses during the period of working in the period to January 1st ats €708. This effectively left them in an unemployed state of 5 weeks until the 16th of December in a role that was significantly less than what they had been earning. This period of unemployment is valued at €500 pw gross to a total of €2,500. They were again unemployed until finding their current role on the 27th of January, a total of 5 weeks valued at €2,500. The Complainant does not seek to be reengaged, nor reinstatement given the mental and emotional strain they have suffered and requests fair compensation instead and a positive reference and changes to company policies. |
Summary of Respondent’s Case:
The Respondent submitted a short document on the matter and concedes that the Complainant was dismissed in a manner that lacked procedural fairness. To establish the appropriate rate of compensation, if any, it is for the Complainant to establish what, if any, efforts have been made by the Complainant to mitigate their losses. The Respondent relies upon s.7(1) Unfair Dismissals Act, 1977,Coad v. Eurobase (UD1138/2013), Philip Smith v. Mark Leddy (UDD1974) |
Findings and Conclusions:
The Complainant has a clear case for unfair dismissal and the burden of proof for a fair dismissal lies on the Respondent, who has conceded the unfair dismissal claim in full. It is clear from the uncontested submissions of the Complainant that the Respondent has failed to manage the dismissal fairly. The Complainant was dismissed on the 6th of November and struggled to find similar work of a steady nature and had been paid a salary of €500 euro gross per week. The Complainant lays out their salaried and non-salaried losses in detail including loss for Unpaid Suspension Period (October 29 – November 2, 2024): €437.00, their salary losses and other claims in terms of interest, damages, demand for an apology and reference, policy changes and additional penalties for breaches of law and a punitive award. For the sake of all clarity, the complaint was made under Section 8 of the Unfair Dismissal Acts 1977. The Act sets out at section 7 that an award for losses may be made that is attributable to the dismissal. In common terms this is the difference in salary lost between the dismissal and taking up new employment, It may include diminished earnings and other factors that are proven such as bonuses and allowances in pay. The Complainant was dismissed on the 10th of November by letter dated the 4th of November and briefly found a new role from the 16th of December to the 1st of January at a lower rate and lesser hours (8 hrs pw at €13 ph.). They faced a further period of unemployment until the 27th of January where they found steadier employment. The Complainant puts their losses during the period of working in the period to January 1st as €708. This effectively leaves her in an unemployed state of 5 weeks until the 16th of December in a role that was significantly less than what they had been earning. This period of unemployment is valued at €500 pw (gross) for 5 weeks to a total of €2,500. They were again unemployed until finding their current role on the 27th of January, a total of 5 weeks valued at €2,500. This makes a combined total of salaried losses at €5,708.00 gross The Act does not afford an Adjudicator the powers to direct the Respondent to make policy changes, offer apologies, direct the content of references, nor award damages for other losses and interest. Significantly, in this case and the submissions made, the Act does not give an Adjudicator powers to make additional awards for Breach of Contract and Employment Law, Breach of Turkish Agreement and Immigration Pact, nor for personal injury. Such awards may have been available under other employment acts that may have been referred or in civil actions in other legal fora, but they are not covered under the 1977 Act, as referred. The Complainant has set out that they should be given an award for the impact on their future career progression but has not offered any evidence to demonstrate this and the Adjudicator has no solid evidence that this is the case. Remedies The Complainant has set out a description of losses and has not sought re-engagement or re-instatement. However, an Adjudicator is required to consider these as a remedy. S7(1)(a) provides that reinstatement shall be in the position which the employee held immediately before dismissal on the terms on which they were employed before and deemed to have commenced on the day of the dismissal. Reinstatement is entirely within the discretion of the Adjudicator, having regard to all the circumstances. In all the circumstances of this case, where there is an absolute breakdown in trust between the parties and where the Complainant is already successfully employed in another role; I do not find reinstatement nor re-engagement a suitable remedy. Compensation Given that that the dismissal is accepted as unfair and that reinstatement is not appropriate, I must move to compensation for losses. 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, an Adjudicator must have regard to the measures adopted by the employee to mitigate his loss. The legislation does not allow an Adjudicator to award compensation in an amount that goes beyond the financial loss attributable to the dismissal. Considering all the circumstances of this case I am awarding the Complainant compensation under the Acts in the amount of at €6,500.00 gross as is just and equitable in all the circumstances. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act. 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.
For the reasons set above I find that the Complaint is well founded and direct the Respondent to pay the Complainant €6,500.00, gross, as is just and equitable in all the circumstances. |
Dated: 18th June 2025.
Workplace Relations Commission Adjudication Officer: Donal Moore
Key Words:
Redress outside the Act, Unfair Dismissal, Quantum, |