Complainant

Respondent

Parties

Matt  Corrigan

SES Water Management

Representatives

John Spencer, John M. Spencer Solicitors LLP

Daniel O'Gorman, O'Gorman 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-00068059-001

12/12/2024

The Complainant commenced his employment with the Respondent on 15 March 2021. His employment was terminated on 12 September 2024 with the cessation date of 12 October 2024. The Complainant was paid €1,250 gross per week.

On 12 December 2024, the Complainant referred his complaint to the Director General of the WRC alleging that he was unfairly dismissed.

The Respondent did not dispute that the dismissal was unfair.

Mr O’Gorman, on behalf of the Respondent informed the hearing that the Respondent was not contesting the complaint. The Respondent conceded that the dismissal was unfair.

Regarding the loss suffered by the Complainant, it was submitted that a proposition was made by the Complainant that individual components should be looked at individually. The Respondent’s position was that any financial loss needed to be taken in totality, one cannot cherry pick items from the Complainant’s new employment contract that are less beneficial and ignore those that are more beneficial. It was submitted that the Respondent cannot be held liable for an improvement in the Complainant’s conditions, which entailed tax charged by the government on a benefit in kind.

It was further submitted that even if the pension contributions were higher with the Respondent, which was denied, the Complainant still has a pension in his new employment. The Complainant was aware that he would have 6 months’ probation.

Summary of direct evidence and cross-examination of Mr Mike Lyons, CEO

Mr Lyons said that the pension contributions are the same across the board in the organisation and are 5% by employer and 5% by an employee.

Mr Lyons said that the Respondent provides vans and company cars to the employees. The Complainant requested a company car so he could use it to transport his family. However, he was not provided with one by the Respondent.

In cross-examination, Mr Lyons reaffirmed his position that pension contributions were at 5% by the Respondent and 5% by the employee.

The Complainant submitted that he was unfairly dismissed on 12 September 2024 with the cessation date of 12 October 2024.

Regarding the loss suffered by the Complainant, it was submitted that the Complainant was on 6 months’ probation in the new employment, during which no pension contributions were made for him. It was submitted that the Complainant mitigated his losses well and suffered only 2 weeks loss. However, he suffered 6 months of no pension contributions during probation and a future loss as a result of the difference in pension contributions and the BIK.

The Complainant claimed that his losses were as follows:

Loss of earnings: 2 weeks x €1,250 = €2,500

Pension losses were calculated as €541 x 7 months = €3,787 (this was subsequently revised in the post-hearing submission)

Future pension losses (subsequently revised in the post-hearing submission)

The Complainant’s new employer matched 5% of his €70,000 salary which is the equivalent to €291 per months which entails a reduction of what was paid by the Respondent at €541 per month. The loss was calculated as €250 per month. The Complainant sought an award of 17 months (24 month less 7 months above x 4250 = €4,250.

Benefit in Kind (BIK)

The Complainant had a commercial company van with the Respondent during the course of his employment for business use. He was therefore not subject to BIK tax for this vehicle. The Complainant is now required to pay BIK monthly in relation to his company car with the new employer. BIK is currently €328 monthly. A deduction to this figure is calculated at 17% set aside for personal use. Therefore, BIK tax is reduced to €272 per month in relation to the business use. The Complainant calculated his loss as €272 x 24 months= €6,528.

Summary of direct evidence and cross-examination of the Complainant

The Complainant gave evidence of his efforts to mitigate his loss. He said that immediately after the dismissal he looked for new employment; he reached out to agencies and to different companies. It took a few weeks to set up interviews. He commenced new employment on 29 October 2024.

The Complainant said that while his current salary exceeds the salary paid by the Respondent, his pension contributions changed. The arrangements in the Respondent’s organisation were that the Respondent paid 10% and the Complainant paid another 10%. Currently, the Complainant’s employer makes 5% contribution, and the Complainant makes another 5%.

The Complainant further submitted that with the Respondent he had a commercial van. With the new employer he has a car which he could use for personal use, but it entailed €328 BIK per month.

In cross-examination, the Complainant confirmed his current salary which is higher than what he earned with the Respondent. He confirmed that he now has a company car, while with the Respondent he had a commercial van. The Complainant confirmed that he benefitted in the sense that he could now use his car to drive kids to school etc. But he said that he had no choice in the selection of vehicle.

The Complainant further stated that his salary increased but with that came increased responsibility.

It was put to the Complainant that he was incorrect regarding pension contributions and that the Respondent made 5% contribution, not 10% as alleged.

It was put to the Complainant that he was looking for a car when he worked for the Respondent, so it was clearly his preference. It was further put to the Complainant that BIK applies because he had a private use of the car and, therefore, it was an improvement in his terms and conditions. The Complainant replied that whether he drove the car or not he still was subject to BIK. The Complainant confirmed that from time to time, at the weekends, he used the car for personal use.

Post hearing submission

On 4 July 2025, a letter was received (and copied to the Respondent) from the Complainant’s solicitor informing the WRC that the Complainant has reviewed his pension documentation and could confirm that the pension arrangement between the Complainant and the Respondent was in fact that the Respondent matched the Complainant’s contribution of 5% of his €65,000 salary and not 10% as previously claimed in his evidence. Therefore, the pension losses accrued would be 5% of his €65,000.00 salary with the Respondent equating to €270.83 per month. €270.83 x 7 = €1,895.81. The seven months is calculated in circumstances where the Complainant obtained new employment who made similar repayments to the Complainant once he completed his 6-month probationary period as and from May 2025.  In circumstances where the new employment and the former arrangement are similar, the Complainant was no longer making a claim for future pension losses.

As the Respondent has not contested the complaint of unfair dismissal the only issued to be decided is the redress to be awarded. The Complainant had selected compensation as his preferred form of redress.

Section 7 of the Act provides:

7.— (1) 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 or the Labour Court, as the case may be, 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, 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,

and the references in the foregoing paragraphs to an employer shall be construed, in a case where the ownership of the business of the employer changes after the dismissal, as references to the person who, by virtue of the change, becomes entitled to such ownership.

(3) In this section—

“financial loss”, in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation;

“remuneration” includes allowances in the nature of pay and benefits in lieu of or in addition to pay.

Taking all the evidence into consideration and the breakdown of the relationship between the parties; it is clear the remedies of reinstatement or reengagement are not appropriate forms of redress, and that an award of compensation is the most appropriate remedy.

Section 7(2) sets out what should be considered in determining the amount of compensation payable:

(2) 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.

The Complainant’s employment ceased on 12 October 2024. The Complainant gave evidence that immediately after the dismissal was communicated to him, he commenced his search for new employment. Regrettably, no documentary evidence of his efforts was furnished. The Complainant commenced new employment on 29 October 2024. The Complainant’s salary in the new employment was higher than with the Respondent.

The Complainant claimed that he suffered a loss of earnings of €2,500 in the two weeks between the dismissal and the commencement of the new employment.

The Complainant also asserted that his loss in the context of the pension contribution totalled €1,895.81. This was calculated on the basis of the Respondent’s monthly contribution of €270.83.

In his correspondence of 4 July 2025, the Complainant’s representative confirmed that the Complainant was not seeking an award for future pension losses.

The Complainant further claimed that the Respondent should compensate him for an alleged financial loss he incurred due to a benefit in kind (BIK). A BIK is a non-cash benefit of monetary value that an employer provides for an employee. Under tax regulations, if an employee’s total income, including benefits, exceeds a specified threshold in a given year, the employee is liable to pay tax on those benefits. This is a matter governed by taxation laws and is beyond the Respondent’s control. The Complainant voluntarily accepted a company car as part of his remuneration package with his new employer. Accordingly, I see no basis for the Respondent to be held liable for any tax implication in that regard.

I acknowledge that the Complainant experienced a financial loss during the two-week period between the termination of his previous employment and the commencement of his new role. However, it is important to note that the Complainant’s current salary is significantly higher than what he earned with the Respondent. While the Complainant has calculated a shortfall in pension contributions during the six-month probationary period (amounting to €1,624.98), this assessment appears to overlook the fact that, overall, he is now in a more favourable financial position in his new employment and, therefore, he suffered no financial loss.

I find that the Complainant was unfairly dismissed. I direct the Respondent to pay the Complainant €5,000 (4 weeks’ pay) in compensation for the unfair dismissal.

Unfair dismissal -