Complainant

Respondent

Parties

Bruna Bianca  Crespo Mello

Erin School Of English Unlimited.

Representatives

  Self -represented

Mr. Aengus O’Maoláin instructed by Crushell & Co Solicitors

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-00066375-001

30/09/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00066375-002

30/09/2024

The complainant has submitted a complaint that she was unfairly dismissed on 02 September 2024.

She commenced employment on 12 June 2023 as an IT Support worker in the respondent’s language school.

The complainant earned a salary of €1,971 per month.

She submitted her complaint to the WRC on 30 September 2024.

The complainant withdrew complaint numbered CA-00066375-002, the Complaint under the Payment of Wages Act,1991.

CA-00066375-002.  Complaint under the Payment of Wages Act,1991.

The complainant withdrew this complaint.

CA-00066375-001Complaint under Section 8 of the Unfair Dismissals Act, 1977.

Evidence of complainant given under affirmation.

The complainant submits that she was unfairly dismissed on the 2/9/2024, on the basis of an alleged redundancy. It was not a genuine redundancy.

She worked as an IT Support engineer in the respondent company from June 12, 2023, to September 2, 2024. The respondent informed her that she was being dismissed due to “company downsizing.” Her job, that of working with systems, staff and students, continues to exist and is being undertaken by a colleague who was employed in 2024 and replaced her.

She has lost 5 months’ salary.

Mitigation of loss.

She secured alternative employment on 3/2/2025 on a salary of €4,231 per month, net €3,395.

The complainant submitted written evidence of her attempts to mitigate her loss.

Cross examination of complainant

She stated that she had applied for more than 200 positions between the date of her  dismissal and her acceptance of alternative employment.

She submitted documentary evidence of applications for positions.

She is not sure of the exact dates on which she applied for the 11 positions on Monster.ie website

She submitted 10 applications on 6/1/2025

She clarified that though applications for jobs state IT level jobs in her submission in October, this doesn’t mean that the applications were for the same company.

Concerning an application for a Dutch customer support agent, she confirmed that she did not speak German or Dutch. Nor does she speak Flemish – a requirement of another position for which she had applied.

The complainant could not be certain about the number of applications which she had submitted in December 2024 and January 2025 as her current employer was in touch with her at that time about taking up her new position which she commenced on the 3/2/2025.

The respondent concedes that the process leading to the redundancy of the complainant was procedurally unfair. The respondent has since availed of independent legal advice to ensure best practices are adopted for any future redundancy processes.

The respondent wishes to focus on loss.

Concerning the complainant’s obligation to mitigate her loss the respondent stated that that the complainant did not apply for any jobs in September. She applied for few jobs in December 2024 and in January 2025. The respondent cited the authorities recommending a lower amount of compensation when efforts to mitigate were insufficient as in the current case.

The award should reflect the fact that her applications were at the lower end.

I find that the complaint was summarily dismissed contrary to the provisions of the Act of 1977, without any fair process and that there was no genuine redundancy.

I find that her complaint is well founded.

Redress.

The complainant has secured alternative employment and has identified compensation as her preferred form of redress.

Loss.

Her loss is €9855.

Section 7 (2)(c) of the Act requires the adjudicator to 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 loss aforesaid”.

The respondent argues that her efforts to mitigate her loss are at the lower end and that any award should reflect this.  The respondent cites Cityjet v Gil (UDD215). However, in that case the complainant failed to produce any evidence or to demonstrate the efforts which he had adopted to mitigate his losses, due to health challenges. The Court reduced his WRC award from €6,000 to just under €1,800.

The respondent points to McGuire Haulage Limited v O’Farrell (UDD2324). There the Labour Court held that

“subsequent efforts made by an employee to mitigate his losses were inadequate where the efforts were infrequent and largely informal rather than structured in nature” and limited “to a very restricted geographical area” 

In N Smith & Sons Ltd t/a Ford Smiths of Drogheda v Ragelis (UDD2332), the complainant’s efforts extended to applying for “seventeen jobs” and “six contacts by telephone in an eight-month period.” The Labour Court considered that the efforts exerted by the employee fell “very far short of the obligation placed by the Act”.

The court held that no compensation was payable in this instance, thereby varying the €2,000 compensation originally awarded to zero.

I find the complaint’s efforts to mitigate her loss in the instant case are way beyond the dilatory efforts of those complainants in the cases cited by the respondent, and advanced as grounds to reduce her compensation. I find that the complainant was very industrious in attempting to secure alternative employment. The complainant did submit evidence of applications in January and some few in December. Her reduced efforts in December and January 2025 are explained by the fact that she was in discussions with her new employer about the imminent appointment, on 3/2/2025.

No evidence was presented to suggest that her behaviour, as opposed to the employer’s behaviour, contributed in any way to her dismissal and is therefore irrelevant to any calculation of compensation.

I find that’s the respondent should pay the complainant the sum of €8500, being an amount which I consider to be just and equitable having regard to all the circumstances.

CA-00066375-001. Complaint under Section 8 of the Unfair Dismissals Act, 1977.

I find this complaint to be well founded. I direct the respondent to pay the sum of €8500 to the complainant, being an amount which I consider to be just and equitable having regard to all the circumstances.

CA-00066375-002.  Complaint under the Payment of Wages Act,1991.

The complainant withdrew this complaint.

Loss.