Complainant

Respondent

Parties

Michael Dodd

St Pauls Garda Medical Aid Society

Representatives

Frank Drumm BL instructed by Collier Law

Elizabeth Murphy BL instructed by O' Donoghues 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-00062340-001

13/03/2024

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

CA-00062340-002

13/03/2024

The Respondent is a registered friendly society which provides mutual aid and health cover to members of An Garda Síochána (“AGS”). It is governed by a committee of members of the society elected by the general membership. It receives funds both from its members and AGS.

The Complainant was recruited into the role of General Manager in August 2022. He commenced employment with the Respondent on the 26th of September 2022 and was dismissed on the 8th of September 2023 without notice.

The Complainant’s counsel made oral submissions on his behalf and the Complainant submitted written submissions.

The Complainant gave evidence under oath.

He has been an accountant since 1989. Before joining the Respondent, he was working as an accountant for AGS for 22 years.  He was appointed to the role after an exhaustive process involving three interviews. Governance had been identified as a key issue the Respondent wanted to improve. The Respondent had traditionally been run by seconded members of AGS and he was the first accountant to take on the role. While he was the senior employee in charge of the day to day operations of the Respondent it was ultimately governed by an elected committee of members.

He started in September 2022. In December they had their Christmas party. The Complainant discovered that after the party a tab had been opened in the hotel bar where many of the attendees were staying. He did not think this was appropriate and closed it.  In January he objected to an open bar at a retirement function but the committee voted to approve it anyway.

He had a performance review in March and nothing adverse was brought up and he was later confirmed in his post when his probation period ended.

He began raising concerns about the level of expenses associated with meetings. There are a number of committees which oversee the work of the Respondent and these were meeting throughout the year. The numbers of meeting were comparatively higher than they had been in recent years. He began advocating meeting in head office and reducing the number of meetings generally. Head office was in Dublin so meetings there would have also reduced the expense costs associated with Dublin members attendance. He was also concerned that expenses were flat rate and unvouched.

The Complainant was also raising his belief that there was a legal requirement to do five year evaluation of assets. This would be an independent evaluation carried out by an independent company. The costs of the evaluation were significant and expected to cost in the region of €30,000. It then became an issue that committee members were asserting the Respondent had a derogation. The Complainant saw no evidence of any derogation and it became an issue in a meeting in August. The Complainant later outlined to the committee by email that they didn’t have a derogation.

On the 6th of September he received a phone call in the middle of the day requesting him to meet the Chairman and a committee member in the Castlenock Hotel at 4pm.

They attended the meeting with letter in their hand. He was told he was terminated and given the letter. He asked for a reason but wasn’t given one. He gave over his laptop and left. He was not paid any notice.

The Respondent’s counsel made oral and written submissions on their behalf. They dispute that the Complainant made any protected disclosure to them. On review of his evidence it is unclear as to what specific and particularised interaction was supposed to have constituted a protected disclosure and how. The Complainant expressed he was raising concerns and unhappiness with certain issues but there is a lack of detail as to what was said, when it was said and to whom it was said. The Respondent has no record of any actual protected disclosure being made.

The Complainant was dismissed summarily they have since offered to pay him in lieu of his notice. He does not come under the protections of the act generally.

Parallel Claims and Time Limit

The Complainant has submitted two different complaints under the Unfair Dismissals Act concerning the same dismissal. They are CA-00062340-001 which concerns a complaint that the dismissal contravened Section 6.2.ba and was made wholly or mainly from him having made a protected disclosure and CA-00062340-002 which concerns a complaint of “normal” unfair dismissal in which the burden was on the Respondent that the dismissal complied with the act.

At the beginning of the first hearing on the 5th of June 2024 the Complainant’s representative elected for CA-00062340-002 arguing that the Complainant had met the minimum service requirement of one year’s continuous service because the date of dismissal as defined by Section 1 of the Unfair Dismissals Act, was at the end of the notice period not given.

The Complainant still pursued and gave evidence on CA-00062340-001, under which they held the burden of proof, but without prejudice to their argument that they had the service requirements for CA-00062340-002.

The Respondent’s position was that this was a summary dismissal. They declined to provide any evidence as to how or why they made that decision. In that context, if the burden is placed on the Respondent to show they had substantial grounds justifying the dismissal of the Complainant as required by Section 6.1 of the act, they would not meet it. As such the date of dismissal is key and needs to be determined from the outset of this decision.

This issue is also relevant in determining whether the complaint was made within the time limit outlined in Section 8.2.a which runs from the date of the relevant dismissal. If it runs from the 8th of September 2023 then the Complainant is out of time and must succeed in making an application for extension under Section 8.2.b.   

Date of Dismissal – The Facts

The Complainant commenced employment with the Respondent on the 26th of September 2022, he was employed under a contract of employment which provided for the following:

8. Termination of Employment

The employment of the Employee can be terminated-

…….

8.2 By the Society on giving the Employee three months written notice in accordance with the requirements of the Minimum Notice and Terms of Employment Act 1973.

….

8.7 The Society reserves the right to pay you your basic salary in lieu of any period of notice, which it or you are required to give.

The Complainant was dismissed on the 8th of September 2023 by way of a letter handed to him that day by the Chairman on the Respondent. It stated:

“Dear Mr Dodd

On today’s date the Board of St Paul’s Medical Aid Society decided to terminate your employment effective immediately.

You must return all property, including intellectual property, of the Society to the Chairman and arrangement will be made to collect any property which is not at the company premises.

You are entitled to be paid in lieu of any outstanding annual leave entitlements which you have not taken.

If you have any outstanding expenses, please provide details to the Chairman for payment.

The Board of the Society would like to thank you for your service to date and wish you the best for the future.”

The Complainant later submitted expenses to the Respondent and was paid his annual leave.

Following Mr Drumm raising the points related to Section 1 discussed below at the first day of hearing at the WRC the Respondent’s wrote to the Complainant’s solicitor stating they would like to pay the Complainant his notice and asking for his bank details. They then sent a cheque which was returned to them.

Date of Dismissal - The Law

The “date of dismissal’ is defined in Section 1 of the Unfair Dismissals Act as meaning:-

‘(a) where prior notice of the termination of the contract of employment is given and it complies with the provisions of that contract and of the Minimum Notice and Terms of Employment Act, 1973, the date on which that notice expires.

(b) Where either prior notice of such termination is not given or the notice given does not comply with the provisions of the contract of employment or the Minimum Notice and Terms of Employment Act, 1973, the date on which such a notice would have expired, if it had been given on the date of such termination and had been expressed to expire on the later of the following dates—

(i) the earliest date that would be in compliance with the provisions of the contract of employment,

(ii) the earliest date that would be in compliance with the provisions of the Minimum Notice and Terms of Employment Act, 1973.

The Respondent has cited the Labour Court case of Action Health Enterprises Ltd v Michael D’Arcy (UD/19/141) which considers this issue. However, that case concerns the interpretation of subsection (a) under the date of dismissal definition outlined in Section 1, rather than subsection (b) which the Complainant seeks to rely on. It is also important to note that that case was decided on very different facts to the above and centres on the Complainant in that case, through their solicitor, approbating a payment in lieu of notice (“PILON”) clause by seeking payment and the Court then determining that they could not seek to reprobate it. No such issue arises in this case as PILON was not paid.

Date of Dismissal – Findings

The Respondent has argued that they have complied with the Complainant’s contract by trying to pay the three months notice in September 2024, roughly a year after they say they dismissed him.

The contract required the Respondent to give the Complainant three months notice of termination. They failed to provide him with this notice. The contract also gave them the option to pay in lieu of notice. However, this option only existed at the point in time when the Complainant was terminated. It could  be argued that they retained the option during the period of notice to pay the remaining notice in lieu however offering a payment after the period of notice expired cannot reasonably be interpreted as payment in lieu of that notice period. As set out in the contract, there was a paid notice period which the Respondent had failed to properly acknowledge or pay the Complainant for. As a matter of contract he was owed three months payment but this was for those three months he was entitled to work or remain on garden leave as an employee and were denied to him by the Respondent failing to adhere to the contract. 

The Respondent failed give the Complainant prior notice of termination and as per subsection b(i) the date of dismissal was on the date when the contractual notice period would have expired, that being three months from the 8th of September 2023, the 9th of December 2023.

CA-00062340-002 – The Dismissal

On the date of dismissal, as defined by this act, the Complainant was employed by the Respondent for in excess of one year and the Complainant is not excluded from the protections of this act by virtue of Section 2(1)a.

 Section 6(1) states that the dismissal of an employee is an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal. The burden is on the Respondent to identify substantial grounds and they have not done so.

The Complainant was unfairly dismissed.

CA-00062340-002 – Redress

Compensation awarded under this act is limited to financial loss arising from the dismissal and is capped at two years’ renumeration. Section 7 of the act is clear on how awards should be determined and the High Court, per Mr. Justice Charleton in Jvc Europe Ltd v Panisi [2011] IEHC 279, has outlined the process in some detail.

The first step of is to determine financial loss.

The Complainant earned €110,000 per annum. He was unemployed for approximately a year and then obtained a role on a lower salary of €70,000. On a plain reading of the figures he has a significant loss arising from the dismissal at the time of the hearing which came to approximately €130,000. There is an ongoing loss which is harder to quantify, not least because of the issues I highlight below related to his failure to mitigate loss, but which I would estimate to be another €120,000.

The act then requires me to consider a series of factors in deciding an actual award that is just and equitable in all the circumstances. These are set out at Section 7(2) and include the following:

(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.

Generally Section 7(2)c has been understood to place an obligation on the dismissed employee to demonstrate that they actively tried to mitigate their loss. Where an employee has failed to do so this usually justifies a substantially reduction in any award from the actual financial loss.

The Complainant’s evidence on the issue was not detailed and was limited to stating he had signed up for recruitment agencies but has not been successful in obtaining alternative employment for roughly a year and then he was appointed to a role which paid €70,000 per year.

With regards to the period of unemployment I am cognisant of the position the Labour Court outlined in Philip Smith v Mark Leddy (UDD1974), “the court expects to see that employees who are dismissed spend a significant portion of each normal working day, while they are out of work, engaged actively in the pursuit of alternative employment”. The Complainant has not established that he undertook any such level of effort to mitigate his loss.

With regards to the ongoing loss, I note he has been a qualified management accountant since 1989 and I understand that the current salary for an NQ accountant is not much lower than the salary he is in receipt of now, with 37 years PQE. I don’t have evidence on why the Complainant is earning at the level he is and whether he has been proactively seeking higher paid work.

With regard to Subsection a of Section 7(2) I conclude that I should recognise that the Respondent caused the Complainant serious financial loss in deciding to dismiss him in contravention of the act.  With regard to Subsection d and e I conclude that I should recognise that the Respondent failed to adhere to any sort of fair procedure or process proscribed by SI or their own policies.

With regard to Sub Sections b and c of Section 7(2) I conclude that I should reduce the award significantly from the stated financial loss arising from the dismissal.

I am of the view that an award of €85,000 is just and equitable in all the circumstances.

CA-00062340-001

As outlined above the Complainant was pursuing overlapping claims and preceded by with CA-00062340-002 over this complaint which is on the basis that the dismissal allegedly contravened Section 6.2.ba and was made wholly or mainly from him having made a protected disclosure. He did not withdraw this complaint and sought to rely on it if I did not find CA-00062340-002 well founded.

As the Complainant succeeded in CA-00062340-002 this complaint cannot succeed as it relates to the same dismissal under the same act. For completeness I would note that the award in CA-00062340-002 was less than two years total renumeration the distinction between the two claims, if both were successful, would be academic.

CA-00062340-002

I find the complaint well founded and direct the Respondent to pay the Complainant €85,000.

CA-00062340-001

I find the complaint not well founded.