Complainant

Respondent

Parties

Annie  Baltz

GVE Vets (Ireland) No. 2 Limited

Representatives

Hugh O’Flaherty BL instructed by   Dundon Callanan LLP

 Mary Paula Guiness BL instructed by Eversheds Sutherland LLP

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-00063440-001

13/05/2024

The complainant submitted that she was unfairly dismissed.  The respondent conceded that the dismissal was unfair and that the matter of redress was to be in the main, the matter to be decided by the Adjudication Officer.

Preliminary Issue

In response to the respondent’s request for the respondent’s name to be changed, the complainant had no objection.

Substantive Issue:

The complainant was dismissed 13/03/2024, an appeal was not conducted until 09/05/2024 and her new employment commenced 01/07/2024.  Her earnings prior to dismissal was €103,000 and she secured employment with a salary of €70,000 from 01/07/2024 secured a car allowance of €400  and her salary increased to €71.050 with a company car that she pays BIK on and a bonus of €278.  The complainant submitted that her losses amounted to approximately €57,907 comprising of losses from her employment ceasing €30,042; losses with her new position until September €4,700; and losses to date following a pay increase €23,165.  

It was submitted that the complainant did not seek reinstatement or reengagement owing to the manner in which she was treated by the respondent.  The complainant was entitled to compensation that was just and equitable having regard to all the circumstances including future financial loss.  The complainant had agreed to an adjournment demonstrating goodwill at the first hearing and the respondent had used that time to level unfounded accusations against the complainant’s conduct which was aggravating and should be weighed in determining compensation.

Case law cited with regards to redress included Brady v Minister for social Protection [2016] IEHC553

The Complainant’s evidence was that she graduated as a Vet 12 years ago and her salary with the respondent was €103,000 and she also had the benefit of flexibility necessary with her childcare responsibilities.  She had to take time off work owing to the behaviour of the respondent during her employment including allegations made against her.  The respondent’s allegations continued when she returned and she was dismissed on 13/03/2024 which she appealed. 

She made efforts to apply for other jobs which was difficult because of her experiences with the respondent and also because of her childcare responsibilities and because it was difficult to get the flexibility that she had with the respondent.  The complainant would also have had to take a significant salary cut, made efforts to secure a remote role and applied for positions before the appeal of the dismissal as she was not expecting her appeal to be successful and it was not successful.  She secured a position on 01/07/2024 earning €70,000, a car allowance for a period of time of €400 and then her salary increased to €71,050 with a car and she pays BIK on that.  There was also a bonus of €238 and she would not expect to get a bonus this year.  She had applied within her current role for a promotion but was unsuccessful and would expect that she would be limited with roles owing to her childcare commitments for 12 years.

Under cross examination she said that the flexibility she secured with the respondent was not agreed upon being hired but had been agreed during her employment verbally.  This flexibility allowed her to do a drop off at 08:30 am and pick up at 15:30. She applied for positions relevant to her cv but there is no flexibility with locum vet position as locums do not have security of employment.  She applied for a job in the UK because she was desperate to secure employment, she was trying to find a role that would also suit her personal circumstances of childcare and the respondent is a very large organization limiting vacancies in the industry for her.  It was not possible for her to work part-time owing to the drop in salary that would arise and that if her employment had not been terminated she would have continued to have the flexibility within her job.

Preliminary Issue:

The respondent submitted that the name of the respondent should be amended to GVE Vets (Ireland) No. 2 Limited instead of CVS (Ireland) Veterinary Services No. 2 Limited .

Substantive Issue:

It was submitted that Complainant has repeatedly failed to declare her true remuneration package including failures to disclose her monthly car allowance and incorrect pay slips.  It was further submitted that six out of the nine roles that the complainant applied for she failed to have the relevant qualifications or experience and that the majority are non-clinical roles.  The respondent outlined that the complainant had failed to apply for positions for which she was suitably qualified for including Clinical Locum or Clinical Fixed term roles of which there are many roles available.  It was submitted that she choose job seekers allowance and that two roles applied for were the same roles.  The respondent outlined that the complainant had no qualification for one of the roles she applied for.  The complainant should be experienced enough to take up many positions including working in small animal clinical roles and she did not actively seek those such roles.  There is a significant shortage of vets in Ireland arising from increased pet ownership and low vet numbers and the complainant can make whatever choice she want regarding flexibility, there is government policy providing for flexibility and that she is required to mitigate her loss.

The evidence of Mr Cahill was that he is a vet surgeon since 1989 and is CEO and there is a demand for vets across Europe and particularly in Ireland and UK.  He would expect an experienced Vet such as the complainant to get €85,000 pa and that his organization employs vets all the time.  He said he was very surprised to hear of the flexibility the complainant said she had in her role with the respondent and was not aware of anyone else having that flexibility.  Locum vets are in demand and the average tenure is 4.2 years as they do not stay and he was very surprised that she had to apply for job seekers.

Under cross examination he said the complainant should have sought a role with a higher salary and that he was not aware of the flexibility that she had when working with him.  The complainant applied for jobs that she was unqualified for and could have got a job quicker and he never heard of a vet on the dole.  When hiring vets there is normally only one interview and it can be difficult to get reference checks as corporate vets will only give start and end dates and do not provide references.  It would have been his expectation that she would have had a job within a week and that interviews can be completed within 48 hours.  There are many reasons why the average tenure of a vet is only 4.2 years including that the role does not meet the expectations from what they learned in college and what the practical role actually is and the lack of flexibility within the role.

Preliminary Issue:

The respondent requested that the respondent’s name be amended and the complainant agreed to same and taking note that parties were not prejudiced I agree to amendment of name from CVS (Ireland) Veterinary Services No. 2 Limited to GVE Vets (Ireland) No. 2 Limited.

Substantive Issue:

The Respondent conceded that that it had unfairly terminated the Complainant’s employment by virtue of its failure to apply fair procedures. The hearing, therefore, focused principally on the Complainant’s losses arising from her unfair dismissal and her efforts to mitigate those losses in the period after her dismissal.

6.—(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

It was not in dispute that the complainant had commenced employment on 19/04/2022, her employment was terminated by the respondent unfairly on 13/03/2024 and her complaint was received by the WRC on 13/05/2024.  It was furthermore, not in dispute that the complainant’s salary was €103,000 when her employment was unfairly terminated and her evidence was that she also had the benefit of flexibility within the role that allowed her to manage her childcare responsibilities.  I note the complainant’s evidence of efforts to secure alternative employment which appeared to be focused on roles that allowed her flexibility as well as meeting her salary expectations and that part-time work would not have given her that financial expectation.  She  secured an offer of employment and commenced employment on 01/07/2024 and there were approximately 9 roles she applied for and it would appear that meeting flexibility needs and financial needs was a priority and therefore restricted the roles she could apply for as well as the size of the respondent’s reach as a large organization. 

Redress for unfair dismissal.

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.

 (1A) In relation to a case falling within section 6(2)(ba) the reference in subsection (1)(c)(i) to 104 weeks has effect as if it were a reference to 260 weeks.]

(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.

(2A) In calculating financial loss for the purposes of subsection (1), payments to the employee—

(a) under the Social Welfare Acts, 1981 to 1993, in respect of any period following the dismissal concerned, or

(b) under the Income Tax Acts arising by reason of the dismissal,

shall be disregarded.

(2B) Where—

(a) the dismissal of an employee results wholly or mainly from the employee having made a protected disclosure, and

(b) the investigation of the relevant wrongdoing concerned was not the sole or main motivation for making the disclosure,

the amount of compensation that is just and equitable may be up to 25 per cent less than the amount that it would otherwise be.]

(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.

The complainant submitted she made efforts to mitigate her loss and the respondent disputed that.  Mr Cahill in his evidence frequently expressed his unhappiness with the complainant, and had to be reminded that dismissal had been conceded.  What was noteworthy, however, from his evidence was that there is a demand for vets in Ireland and that retention of vets is difficult for a number of reasons including the lack of flexibility in the role.  It was difficult at times to understand, therefore, why Mr Cahill appeared to be expressing ‘indignation that the complainant had not secured a role quicker and earning more money within an industry that he himself outlined struggles to retain vets owing to lack of flexibility.   That aside, while I clearly understand the complainant’s prudence in taking on a role, she provided limited evidence of her efforts to seek out positions that may have led to the flexibility that she required.

Sheehan v Continental Administration Co Ltd. 858/1999 sets out in much detail the necessity for those seeking to mitigate their loss to:

“follow-up with the recruitment agencies on at least a weekly basis”.

Referring to the English decision Jerome v Supervents Ltd., unreported, 12 November 1980, per Lawton J it sets out that :

“The issue is not a question of what the Claimant could have done , but rather what he could reasonably have been expected to do”.

Sheehan (1999) also outlined the complainant in that case failed to “adequately employ a sufficient amount of time during each weekday to explore options” even where in that case the complainant signed up to 14 recruitment agencies and made direct applications for 12 positions.  In this instant complaint the complainant applied for approximately 9 positions including the one position that she was successful for.  While noting that it is a small industry and the respondent is a larger player within that industry, it would have been expected that with her high level of qualifications there were many more positions that she could have applied for but did not. 

While the complainant clearly incurred significant losses as a result of the respondent dismissing her unfairly, and which was a dismissal monumentally unfair I do not find that she met obligations that were “reasonable, adequate and sufficient” as set out in Sheehan (1999) whereby:

“A claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work…The time that a Claimant finds on his hands is not his own, unless he chooses it to be, but rather time to be profitably employed in seeking to mitigate his loss”.

In Brady v Minister for Social Protection [2016] IEHC 553 it was set out that the Act

“does not envisage the deciding body being required to always, or perhaps ever, engage in a calculation or mathematical formula by which it determines the extent of the financial loss exclusively by reference to the weekly remuneration of an employee. Compensation is payable in respect of “any financial loss” as is “just and equitable having regard to all the circumstances”.

UDD2329Aztec Entertainment Ltd vBernard Robinson highlighted that awards of compensation should be “just and equitable in all the circumstances” and therefore, provide

“the Court some latitude in considering both mitigating and aggravating factors in the circumstances surrounding the dismissal.

While I note that there was some conflict between the parties regarding the minutia of the losses, I prefer the complainant’s evidence on the specifics.  Taking into consideration what is “just and equitable in all the circumstances” including the behaviour of the respondent in all matters; and the complainant’s efforts I find that the dismissal was significantly unfair and award the complainant compensation of Є58,000 which I reduce by approximately 25% owing to the failures of the complainant to mitigate her losses sufficiently and therefore the compensation that the respondent should pay is Є43,500.

I find that the dismissal was significantly unfair and award the complainant compensation of Є58,000 which I reduce by approximately 25% owing to the failures of the complainant to mitigate her losses sufficiently and therefore the compensation that the respondent should pay is Є43,500.

Efforts to mitigate loss, unfair dismissal, evidence,