Complainant

Respondent

Anonymised Parties

A Worker

A Company

Representatives

Terrisue Cosgrove The HR Head

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-00069351-001

18/02/2025

The Complainant began his employment as an Inventory Assistant on 17 December 2022. The Respondent stated that he was dismissed on 23 August 2024 because he actively solicited colleagues for cash transactions creating an ongoing compliance risk in a regulated environment.

The Respondent accepted that the dismissal was procedurally unfair because the entire disciplinary process, namely the investigation meeting with the Complainant and the disciplinary outcome meeting occurred over the course of one day.

CA-00069351-001:

Section 7 of the Unfair Dismissals Act, in relevant part, states that:

(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, 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,

(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 financial loss referred to in that subsection was attributable to an act, 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,

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.

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.

Findings:

Given that the Respondent conceded that the dismissal was unfair, I find that the Complainant was unfairly dismissed.

I must now examine the appropriate form of redress in accordance with section 7 (1) of the Act set out above. I note the Complainant’s preference for compensation as a remedy and find that this is appropriate in this instance given that he has found employment elsewhere.

In calculating the level of compensation to award, I have regard to the decision of the Adjudication Officer in ADJ 32667, where she stated, inter alia, that: 

“in considering compensation, regard must be had to all of the subsection of Section 7-and the tests are not confined to the efforts of the former employee-or the Complainant in this case. In circumstances where the Respondent is found not to have met the tests set out in subsections (c) and (d) …. and the Complainant made no contribution to the decision to dismiss her under (a) (b) or (f) It would be wholly unjustified to penalise the Complainant solely for a conclusion that she did not make a sufficient effort of mitigate her losses where the balance of unfairness and failure to comply with the terms of Section 7 as a whole lie squarely with the Respondent.” 

When applying the provisions of section 7(2)(a) to this case, I am of the view that the Respondent acted far too hastily in finding that the Complainant was guilty of gross misconduct. Having regard to section 7(2) (b) and (f), I find that, notwithstanding its unfairness, the Complainant contributed substantially to his dismissal via his misconduct. Furthermore, in relation to section 7(2)(d) and (e) of the Act, I find that the Complainant was not afforded “a fair examination, and impartial determination of the issues” in respect of the disciplinary process, as set out in SI 146 of 2000 Code of Practice on Grievance and Disciplinary Procedures, because of the procedural unfairness in relation to his dismissal. Considering section 7(2)(c), it is worth noting that the Complainant found alternative employment very quickly.

Considering all of the foregoing points, I make an award of €2,000 in respect of the unfair dismissal