Complainant

Respondent

Parties

Martin Connolly

Dundalk Town FC Limited

Representatives

Aaron Shearer BL instructed by Ahern & McDonnell LLP solicitors

Cillian McGovern BL instructed by McGroddy Brennan solicitors

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 8 of the Unfair Dismissals Act 1977

CA-00065547-001

22/08/2024

The complainant referred a claim of unfair dismissal to the Workplace Relations Commission in respect of the termination of his employment as Chief Operations Officer with the respondent on 22 May 2024.

Summary of complainant’s case

The complainant was informed by the respondent’s chairman on 26 February 2024 that he was to be removed from his duties at the club.  The complainant received no written or verbal warning and there were no investigations or hearings.  The complainant was paid from 26 February 2024 until 22 May 2024.

The complainant obtained a new job in September 2024, with an annual salary of €42,975.00 along with the benefit of health insurance.  The complainant made reasonable efforts to find work after his unfair dismissal.  The case for financial loss attributable to the dismissal is of four months’ loss of salary and an ongoing loss based on his current financial package in employment.   The public nature of the complainant’s dismissal and reputational damage should be taken into account in relation to the complainant’s mitigation efforts. 

Summary of complainant’s oral evidence

The complainant was appointed by the respondent as chief operating officer in January 2022.  His duties included the day-to-day running of the football club, match operations, merchandising and running the first team alongside the technical director. 

The complainant understood the term of his employment with the respondent to be on an indefinite basis until someone decided not to employ him.  The contract of employment provided for a notice period of 3 months.  

The complainant’s salary with the respondent was €50,000 per annum.  He did not benefit from the bonus payment structure in either 2022 or 2023.  The complainant was provided with a company vehicle and private health insurance.   The complainant did not avail of an education expense allowance during his employment.  The complainant was reimbursed expenses incurred by him in carrying out his role.

The complainant was not the subject of any disciplinary during his tenure with the respondent.

A new owner took over at the respondent in December 2023. The relationship between the new owner and the complainant was of a short-term nature.  On 26 February 2024, the owner followed the complainant into his office and told the complainant that he was being let go.  The owner told the complainant to do what he had to do and then to leave.   The complainant asked the owner whether he had looked at his contract of employment. Other than a text message from the owner the following day asking the complainant to process payroll, the complainant had no further communication with the owner.  The 3-month notice period was not discussed with the complainant by the owner or anyone else on behalf of the respondent.  The complainant received no correspondence regarding the termination of his employment.  The complainant was not told that he would be paid up until 22 May 2024.  There were no communications between the parties in the February to May 2024 period.  It was not suggested to the complainant that he was being made redundant.  The complainant understood that his employment was over when his pay ceased in May 2024. 

After final payment, the complainant signed on for social welfare payment.  The complainant initially looked for similar work but found it difficult.  A friend contacted him about a role in a pharmaceutical company.  At that stage, the complainant really wanted to get back to work. The complainant did an interview and commenced employment on 23 September 2024 on a salary of €42,975 per annum.  The complainant has a significant commute to his current job working 12-hour shifts in a factory.  The complainant remains on the look-out for work in the sports sector.  The complainant received social welfare only from 22 May 2024 until 23 September 2024.

Under cross-examination, the complainant advised that he did not ask what the owner meant in the exchange of 26 February 2024.  The complainant did not go back to the club between February and May 2024.  The complainant had asked the owner on 27 February 2024 whether he was to be included in the payroll run.  There was no discussion with the complainant about payment for three months.  The complainant did not follow-up with the respondent when pay ceased in May 2024; he contacted his solicitor and social welfare.  The complainant confirmed that he was let go in February 2024 and that payment stopped in May 2024.  It was not explained to him why he was being let go and he did not know where he stood.  In relation to the period from May to September 2024, the complainant applied for 7-10 jobs and did 2/3 interviews.  The complainant was asked about the documentary evidence in respect of jobs applied from March 2024 to June 2024, and the evidence that between May and September 2024 he had applied for 2 jobs and made multiple applications through a recruitment platform.

In re-examination, the complainant outlined his career before joining the respondent and how he had been looking for a managerial role after his employment with the respondent terminated.  The complainant advised that there are companies with managerial roles local to where he lives.  He did not confine his search to the local area.

The respondent did not tender oral evidence or furnish relevant documentary evidence or written submissions.

Closing oral submissions

If the complainant was unfairly dismissed, there are issues with the complainant’s efforts to mitigate his loss.  The complainant was paid for 3 months up until 22 May 2024.  The complainant was in receipt of legal advice from February 2024 and the evidence is of 2 job applications in a 120-day period.  The complainant did not approach the matter of getting another job in a committed manner.  The complainant’s financial loss ceased when he took up a new job in September 2024.  There was no evidence of efforts to get a better paid job, and the respondent relied on ADJ-00048434 in support of its submissions in this regard.  There was no evidence of reputational damage.

It was not expressly conceded that the termination of the complainant’s employment was unfair, however I am satisfied that the termination of employment on 22 May 2024 was an unfair dismissal for the following reasons.

The complainant was employed as Chief Operating Officer at the respondent football club.  He attended work on 26 February 2024 and was informed, without any forewarning, by the chairman of the respondent club that he was being go.  The complainant left the office that day and had no further contact from the respondent about the termination of his employment or the reason for same.  No information was provided about a notice period nor was the complainant informed that he would be paid up until 22 May 2024.  

The complainant’s contract of employment provided for continuation of his employment until termination in accordance with the terms of the contract.  Notice for the purpose of the contract was detailed as three months. Clause 12 of the contract concerned termination of employment and provided for summary dismissal in prescribed circumstances, and for mutually agreed early exit and termination.  On the evidence before me, clause 12 was not invoked by the respondent in terminating the complainant’s employment. 

In my adjudication of this claim, the respondent has not established substantial grounds for the termination of the complainant’s employment.  There was no conduct on the complainant’s part, or any other issue put before me that warranted termination of the complainant’s employment in the manner it occurred.

Redress

The form of redress sought by the complainant and addressed by the parties at the hearing was that of compensation.  Having regard to all the circumstances and given the complainant’s current employment situation, I consider redress of compensation for the unfair dismissal to be appropriate.

Section 7(1)(c) of the Unfair Dismissals Act 1977, as amended, (“the 1977 Act”) provides as follows in relation to compensation:-

 “(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) of the 1977 Act sets out matters that regard shall be had to in determining the amount of compensation payable.  It provides as follows:-

“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) of section 14 of 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.”

Financial loss is defined in section 7(3) of the 1977 Act as including actual loss, estimated prospective loss of income and loss or diminution of the rights of the employee under the Redundancy Payments Acts.  

The complainant incurred financial loss attributable to the unfair dismissal.  The complainant was paid by the respondent up until 22 May 2024, which appears to represent the 3-month notice period under the contract of employment.  The complainant commenced alternative employment on 23 September 2024 on a two-year fixed-term contract with a six-month probationary period, and on a lesser salary than what he had with the respondent.   Based on the complainant’s current employment situation, his financial loss is comprised of actual loss and prospective loss of income.

It was submitted on behalf of the respondent that the complainant had failed to mitigate his loss.  The complainant’s oral evidence was of having applied for 7-10 jobs in the period from May to September 2024.  There was documentary evidence of job applications made by the complainant in the period from March to June 2024.  I accept the complainant’s evidence as to the difficulty he encountered in trying to obtain work in the sports sector, and in other sectors at a managerial level.  However, the evidence before me does not support the complainant having made reasonable efforts to mitigate financial loss in the June to August 2024 period.  The complainant was offered his current employment in or around 28 August 2024 with a start date of 23 September 2024. 

For completeness, I have considered the decision in ADJ-00048434 but do not find it supportive of the submission that the complainant’s financial loss ceased on obtaining alternative employment where ongoing efforts to secure better paid employment were not demonstrated.  

I consider compensation in the sum of €16,667.00 for financial loss attributable to the complainant’s unfair dismissal to be just and equitable having regard to all the circumstances. 

I find that the complainant was unfairly dismissed by the respondent and determine redress of compensation in the sum of €16,667.00, payable by the respondent to the complainant, for the unfair dismissal.

Unfair Dismissal – Compensation – Mitigation of loss