Complainant

Respondent

Parties

Conor  Gilligan

Derrin Group Management Limited

Representatives

Mr Peter O’Brien, BL instructed by Ed Kelly Holmes Solicitors

Ms Una Clifford, BL instructed by John Carroll Crowley Millar LLP

Act

Complaint Reference No.

Date of Receipt

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

CA-00070690-001

09/04/2025

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

CA-00070690-002

09/04/2025

The Complainant was dismissed on 8th November 2024 for alleged gross misconduct.  It is the Complainant’s case that his dismissal was substantively and procedurally unfair.   He seeks compensation for his dismissal.  The Complainant also seeks wages for 6 months’ notice he claims was due to him on termination of his employment.  It is the Respondent’s case the Complainant was not unfairly dismissed, and without prejudice to the foregoing, that he contributed to his dismissal and failed to sufficiently mitigate his loss.

Oral testimony of the Complainant (under oath)

The Complainant commenced employment with the Respondent on 11th July 2022 as CEO.  He worked in the construction business for 36 years.  Before being asked to join the Respondent company, he was employed in a senior position with a named company.  The Complainant outlined that he was not a shareholder or investor in the Respondent company but was engaged in the capacity of an employee pursuant to a written contract of employment (opened to the hearing).  The contract of employment provided for a 6 month notice period in the event of termination of employment, and a restrictive covenant.  The Complainant outlined that the employee handbook included a disciplinary procedure, which provided for the process to be followed in the event of termination of employment. 

The Complainant outlined that the primary business of the Respondent was the construction of residential properties.   He outlined the turnover of the Respondent in the years prior to his dismissal.  All contracts the Respondent was engaged in were profitable, but there were concerns regarding cash flow.

The Complainant outlined that the Respondent was initially 50% owned by Teamport Ltd, the Directors of which were O. Kilkenny, D. Kilkenny, and B. Kilkenny, and a “Mr AB” who also held 50% ownership of the Respondent company.  Soon after the Complainant’s appointment he discovered irregularities with respect to the conduct of Mr AB in relation to the Respondent business which is now the subject of ongoing High Court proceedings.  This led to Teamport Ltd becoming the primary shareholder of the Respondent company.  Teamport Ltd advanced loans to the sum of 15 million to the Respondent company. 

There was periodic cashflow issues from 2022 until 2024.  Mid 2024 the Complainant began investigating these cashflow issues as they had now become a considerable concern.  He discovered that sums of 1 million and 2.3 million euros had been advanced to Teamport Ltd, though it was not a preferential creditor.  Subcontractors were not being paid or preferred for payment, which resulted in them downing tools which caused delays in the completion of projects, which then led to a reduction in the profitability of these projects.  Further inquiries led to the discovery that Teamport Ltd was not set up as a creditor, and payments were being made to the personal account of Mr O. Kilkenny. Further, the CFO was being instructed by O. Kilkenny to invest in other non-construction related projects.  The Complainant outlined that all of this was of great concern to him as he had an obligation to the Respondent company as the CEO and legal obligations as a director of the Respondent company.  He verbally instructed the CFO to cease this practice of investing in non-construction related projects and making payments to O. Kilkenny and directed that preference was to be given to construction related creditors.  It was agreed at a Board Meeting on 11th September 2024 that payments to construction related creditors would be prioritised over all other expenditure. 

An email dated 16th September 2024 was opened to the hearing.  In this email Mr O. Kilkenny complained to the Complainant that other creditors were being preferred over payments to him.  The Complainant responded by email (opened to the hearing) outlining that he had a legal obligation to prioritise payments to suppliers.  The Complainant was then told by Mr O. Kilkenny to attend a meeting on 10th October 2024.  At this meeting the Complainant was told by Mr O. Kilkenny that the money was his and he would do with it what he wished. 

In tandem with the concerns regarding payments to Mr O. Kilkenny was a further concern regarding the delayed or non-payment of VAT arising from house sales to the amount of 2.6 million euro, and a legacy amount owing to Revenue of 3.6 million euro.  The Complainant raised this as a matter of significant concern at two Board meetings.  He sought professional advice from a named organisation to confirm his concerns and how best to approach the problem.  Mr O. Kilkenny said the VAT matter was not of immediate  concern and that it would be sorted out at some stage in the future.  The Complainant sought to arrange a director’s meeting on 14th October 2024 to discuss the issue, but Mr. O Kilkenny refused to allow the meeting to take place.  The Complainant wrote to the CFO to formally record his concerns regarding the VAT and the creditor preferment issues.  As a result of this, a notice was circulated from Teamport Ltd requesting that the directors of the Respondent company convene an EGM calling for the removal of the Complainant.  A notice of EGM dated 18th October 2024 was opened to the hearing.  Contained therein were three charges levelled against the Complainant including: (i) financial mismanagement of a named site on which houses were being built, (ii) increasing the budgeted projected costs of a named creche by 100%, deliberately and consistently misleading the Board as to the commencement of those works and the provision of misleading information to the Board and the resulting delay causing significant losses, and (iii) admission of bumping up the figure for works connected with AB which caused the intentional misleading of the Company’s legal team and exposing the company to unnecessary legal costs.

The Complainant outlined that this was the first time he had ever learned of these allegations.  There was no investigation into these matters and no opportunity afforded to him to respond to the alleged charges.  The Complainant recused himself from the EGM which took place on 8th November 2024 as he was not a shareholder and therefore could not vote.  Later the same day, the Complainant received an email confirming the resolution passed at the EGM approved of his summary dismissal on the grounds he committed acts of gross misconduct.   He was also advised in this email that he was not entitled to notice or payment in lieu of same.  The Complainant took the opportunity at the WRC hearing to address for the first time the three alleged charges against him, setting out his responses to same and highlighting what he considered to be the absurd and completely unfounded nature of these allegations.

The Complainant earned €2,224.78 net per week at the time of his dismissal (€200,000 gross per annum).  The Complainant outlined his efforts to secure alternative employment.  He told the hearing that he found employment almost one year later, and that his salary in this new employment was €1,509.28 net per week (€160,000 gross per annum) inclusive of a mileage allowance.  He has loss of job security as he is on a probation period in this role.  His notice period in his new employment is a lesser period of 3 months.  He took the hearing through his actual and prospective loss as set out in the written supplementary submission provided to the WRC.  The Complainant outlined the efforts he expended in trying to secure alternative employment.  He is 57 years of age, and he found it very difficult to secure employment at the level he had been working at.

In cross-examination the Complainant was asked about his appointment to the Board, and the duties of a CEO.  He was questioned on his responsibility for overseeing the work of the CFO and the COO, both of whom he acknowledged reported into him.  He was questioned on his relationship with these persons, how long he knew them, and his ‘hands off management style’ with respect to his direct reports.  He was also questioned on his directorship of a subsidiary company and the fact that the CFO and COO were also co-directors of this subsidiary.  The Complainant denied his management of his direct reports was of a casual nature.  The Complainant confirmed his main concerns with the Respondent business was cashflow and he confirmed he reported certain matters to the Gardaí.  The Complainant accepted that as far as financials were concerned, he had responsibility to the Board as the CFO was not a Board member.  The Complainant rejected the suggestion that the figure regarding the works to be completed in relation to AB were inflated given the work was underground and many unforeseen issues arise with underground work, and that it was normal to increase projected figures to provide for such unforeseen eventualities that may arise with such works.  He added that in any event it was not him who had inflated the figure.  It was put to the Complainant that, in adopting a hands-off approach to managing those that reported to him, he had contributed to his own dismissal.

It was put to the Complainant that he failed to sufficiently mitigate his loss.  He delayed in looking for work after his dismissal in November 2024 and his efforts to mitigate his losses, namely 17 applications (3 of which were seeking Board appointments), was not sufficient.  The Complainant was questioned on any other monies he earned during the months he was out of work.  The Complainant responded that he was not in receipt of any other earnings during this time.  The Complainant outlined that he received a provisional job offer in January 2025, but that this then fell through several months later.  The Complainant confirmed he did not limit his applications to CEO roles and that his current role is one of Managing Director for part of a business, reporting to the CEO.   It was put to the Complainant that mileage expenses could not factor in net loss which was accepted by the Complainant.  The Complainant outlined why he had included them and that he was in receipt of a mileage allowance in his new role.

Closing Submission

In closing, Mr O’Brien outlined the regrettable approach of the owners of the Respondent company in relation to both the manner of the Complainant’s dismissal and in not attending the WRC hearing into his complaints.  The Complainant raised legitimate concerns in his capacity as CEO and the response of the majority shareholders of the Respondent company was to summarily dismiss him, denying him his right to notice.  No charges were put to him and there was no investigation or disciplinary hearing.  The WRC hearing heard no evidence in relation to how the Complainant contributed to his dismissal, and accordingly any suggestion of same must be disregarded.   The Complainant gave detailed evidence in relation to his actual and prospective loss and his diligent efforts to mitigate his losses.  It is clear his dismissal was unfair; that there was no adherence to the disciplinary procedure; and that he did nothing to contribute to his dismissal.

Oral testimony of Mr Trevor Byrne, CFO (under oath)

The witness commenced employment with the Respondent in July 2022 as Chief Financial Officer.  In 2023 a named location was purchased to be fit out as a creche.  The witness outlined that the Complainant had ownership for this project.  The purchase price, the projected cost to complete the project, and the turnout costs were outlined to the hearing.  It was submitted that the turn out cost was considerably greater than the initial projected cost. 

The witness outlined that houses were also being built by the Respondent at a named location in 2023.  He outlined to the hearing the differential in the projected and actual profit from this project.  The site was closed in August 2024 as sub-contractors were not being paid.   

In cross-examination, the witness was asked if it was his understanding that the Complainant had been dismissed because of the matters he had outlined in his evidence.  The witness responded that he did not know why the Complainant had been dismissed.  The witness accepted that the budget for the creche fit out was a named amount and that this amount had been projected by a person other than the Complainant.   The witness accepted that when the Complainant became involved in this project that he substantially increased the projected fit out cost, and that this pre-works increase was known to the witness and had been shared with all the directors of the Respondent.  The witness accepted that the completed costs were only 3.5% greater than the revised projected costs provided by the Complainant, and he accepted that there was no significant change to the costs actually incurred in completing the project from that projected by the Complainant.  The witness outlined that he was making no criticism of the Complainant and that it was normal for costs to increase, and he accepted that there was nothing unusual about an increase in costs during such a project.

The witness accepted that the main factor in not achieving the projected profits from the house building project was due to the closure of the site, and that this had arisen because company money was being directed to Mr O. Kilkenny rather than to payments owing to subcontractors.  The witness accepted that the Complainant had written to the witness outlining his concerns that company money was being paid to Mr O. Kilkenny when it should have been used to pay sub-contractors.  The witness accepted that a direction had been given at a board meeting in September 2024 to the effect that payment to construction related creditors was to be preferred over all other expenditure.

The witness confirmed that he was familiar with the disciplinary procedure and the provisions therein as he had prepared same.  The witness accepted that any employee of the company who is accused of misconduct is entitled to the benefit of that procedure. 

In re-direct the witness confirmed that delays in making VAT payments to Revenue are not unusual.  

Oral Testimony of Mr Pat McCarthy, COO (under oath)

The witness outlined that he was employed in the capacity of Chief Operations Officer.  The witness outlined that he was asked to value particular works connected with AB which he valued at €150,000.  He submitted that it is general practice to inflate this figure and the amount settled at was €250,000.  He provided that figure to the Complainant.

In cross-examination, it was put to the witness that one of the 3 alleged acts of gross misconduct which had been levied at the Complainant and which had formed the basis of his dismissal, was that the Complainant had inflated the value of the works by €100,000.  It was put to the witness that the inflation of the figure by €100,000 was neither a surprise or unusual and therefore no basis to criticise the Complainant.  The witness agreed that it formed no basis for a criticism of the Complainant.

The witness was asked if, as a director of the company, he was given the opportunity to vote on the Complainant’s dismissal.  The witness responded: “no”, and that “all the Directors were against the dismissal”.  It was put to the witness that it was the Kilkenny’s that had decided to dismiss the Complainant, to which the witness responded: “yes”.

Closing Submission

In closing, Ms Clifford outlined that the Complainant’s was dismissal was not unfair.  If the Adjudication Officer finds that his dismissal was unfair, it was the Complainant’s mismanagement and casual approach to the management of his direct reports that led to his dismissal.  Therefore, there is no question but that he contributed to his dismissal.  He was aware of cashflow issues in the years preceding 2024 and did little about it.  Regard also must be had to the minimal efforts deployed by him to mitigate his losses. He is obliged to engage in efforts to secure employment every week he finds himself out of work.  He did not do that. His salary is the only financial element that should be considered in assessing any loss.

Relevant Law

The Unfair Dismissal Acts, 1977-2015 (“the Acts”)

The Acts define “dismissal” in relation to an employee as including the termination by the employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee.

Section 6(1) of the Acts provides:

“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”.

Section 6(4) of the Acts provides:

“Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following: (b) the conduct of the employee . . . .”

Section 6(6) of the Acts provides:

“In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.”

Section 6(7) of the Acts provides:

“Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so—

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

(b) to 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 section 14 (1) of this Act or with the provisions of any code of practice referred to in paragraph (d) of section 7 (2) of this Act” (emphasis added).

Section 7(1) of the Acts provides:

“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 . . . . ”

Section 7(2) of the Acts provides:

“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” (emphasis added).

Section 7(3) of the Acts provides “within 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”.  The Labour Court noted in Waterford Health Park Pharmacy Ltd T/a Stratus Healthcare v. Foley (UDD2412) that the meaning the Acts give “. . . to financial loss is framed as ‘including’ actual loss, estimated prospective loss etc. In short, the statute does not purport to set out an exhaustive definition of “financial loss””. Remuneration includes allowances in the nature of pay and benefits in lieu of or in addition to pay.

S.I. No. 287/1977 – Unfair Dismissal (Calculation of Weekly remuneration) Regulations, 1977 prescribe the method of calculating weekly remuneration for the purpose of redress in the form of compensation under the Acts.  Regulation 4 of the said Regulation provides:

“In the case of an employee who is wholly remunerated in respect of the relevant employment at . . .  salary . . . his weekly remuneration in respect of the relevant employment shall be his earnings in respect of that employment (including any regular . . . allowance which does not vary having regard to the amount of work done and any payment in kind) in the latest week before the date of the relevant dismissal in which he worked for the number of hours that was normal for the employment  . . . .”

Regulation 13 of the said Regulations provides:

“For the purposes of regulations 4 and 7 of these Regulations, account shall not be taken of any sums paid to an employee by way of recoupment of expenses incurred by him in the discharge of the duties of his employment”.

Fair Procedures

The right to fair procedures derives from an individual’s constitutional rights (Buttimer v. Oak Fuel Supermarket Limited [2023] IEHC 126 Dignam J. at [78]). 

In Khan v. Health Service Executive [2008] IEHC 234 Laffoy J. asks at [26]:

“What does fair procedures mean? At the very minimum it means that the person at whom a charge is levelled has proper notice of the charge; that he has proper opportunity to take legal advice and to prepare for hearing; that no one is to be a judge in their own cause; (nemo judex in causa sua) that both parties are given a full opportunity to be heard (audi alteram partem) and that the judge is free from bias . . . . ”

In White v. Cadbury (Ireland) Ltd (UD 44/79) the Employment Appeal Tribunal held: 

“The denial to the appellant of the opportunity to make or present his counter arguments prior to . . . [the] decision to dismiss him was, in our opinion, a breach of his fundamental right to be confronted with the evidence against him and to make counter-arguments, explanations, pleas etc as may be relevant. We are accordingly of the opinion that the denial of this fundamental right to the appellant had the inevitable result of rendering this dismissal an unfair dismissal . . . .”

Mitigating Loss

In Sheehan v. Continental Administration Company Limited (UD858/1999) the Employment Appeals Tribunal held:

“The Claimant is obligated to seek and secure such measures that will minimise the losses potentially sustainable. In other words the Claimant must reasonably avoid the consequences of the Respondent’s wrongful act of dismissal. Thus, the Tribunal by virtue of section 7 (2) (c) is required 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 costs aforesaid...”  In considering the element of mitigation under section 7 (2) (c) it is necessary to establish:

1. What steps (if any) the Claimant took to lessen the losses sustained;

2. Were the steps so taken, reasonable, adequate and sufficient; and

3. Ought the Claimant to have taken other steps, not necessarily obvious steps, which a reasonably careful and reasonably prudent employee, would have taken?

In assessing the loss the Tribunal is conscious of the fact that the Claimant cannot recover for losses that could have been reduced or off-set by a course of action which the Claimant ought reasonably to have undertaken . . .   the issue is not a question of what the Claimant could have done, but rather what he could reasonably have been expected to do . . . . ”

The Labour Court noted in Q-park Ireland Limited v. Fitzpatrick (UDD2135) that it is a well-established principle that a dismissed employee’s time is not their own and they are required to apply part of every normal working day to securing alternative employment. 

Payment of Wages Act, 1991 (“the 1991 Act”)

Section 1(1) of the 1991 Act defines “wages” as

“. . . any sums payable to the employee by the employer in connection with his employment, including—

(a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise, and

(b) any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice:

Provided however that the following payments shall not be regarded as wages for the purposes of this definition: (i) any payment in respect of expenses incurred by the employee in carrying out his employment . . . .” (emphasis added).

Section 5(1) of the 1991 Act provides:

“An employer shall not make a deduction from the wages of an employee . . . ”

Section 5(6) of the 1991 Act provides:

“Where— (a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or (b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee, then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion”.

Section 6(1) of the 1991 Act provides:

“A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015, in relation to a complaint of a contravention of section 4C or 5 as respects a deduction made by an employer from the wages or tips or gratuities of an employee or the receipt from an employee by an employer of a payment, that the complaint is, in whole or in part, well founded as respects the deduction or payment shall include a direction to the employer to pay to the employee compensation of such amount (if any) as he considers reasonable in the circumstances not exceeding— (a) the net amount of the wages, or tip or gratuity as the case may be] (after the making of any lawful deduction therefrom) that— (i) in case the complaint related to a deduction, would have been paid to the employee in respect of the week immediately preceding the date of the deduction if the deduction had not been made, or (ii) in case the complaint related to a payment, were paid to the employee in respect of the week immediately preceding the date of payment, or (b) if the amount of the deduction or payment is greater than the amount referred to in paragraph (a), twice the former amount” (emphasis added).

In Marek Balans v. Tesco Ireland Limited [2020] IEHC 55, the High Court outlined that when considering a complaint under the 1991 Act, it must first be established the wages which were properly payable before considering whether a deduction had been made. 

Findings

CA-00070690-001

The fact of dismissal is not in dispute and accordingly the burden of proof rests on the Respondent in this case to show there were substantial grounds justifying the Complainant’s dismissal.  I find, on the evidence presented to the hearing, the Respondent has not discharged that burden.  I am not satisfied any evidence was presented to the hearing which establishes any ground/s, let alone substantial ground/s, to justify the dismissal of the Complainant in this case.  Accordingly, I find the dismissal of the Complainant was substantively unfair.

In accordance with s 6(7) of the Acts, I may have regard to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and the extent (if any) of the compliance or failure to comply by the Respondent in relation to the dismissal of the Complainant with a disciplinary procedure or with the provisions of Statutory Instrument No. 146 of 2000 of the Industrial Relations Act, 1990 (Code of Practice on Disciplinary Procedures).  It is well established that although the requirements of fair procedures will depend on the specific circumstances of each case, where a decision could adversely impact a person’s good name or livelihood, a broad range of procedural protections are engaged.  In this case, the Complainant was not put on notice of the three charges against him.  He was not afforded any opportunity to defend himself or to make any submissions in relation to those charges.  His constitutional right to fair procedure was completely disregarded.  Accordingly, I also find the dismissal of the Complainant was procedurally unfair.

I am satisfied that compensation is the most appropriate form of redress in this case.  Compensation is based on an employee’s remuneration and financial loss.  Where financial loss is incurred because of the dismissal, the employee is entitled to be compensated for that loss (actual and estimated prospective loss), as is just and equitable having regard to all the circumstances but not exceeding an amount of 104 weeks remuneration in respect of the employment from which he was dismissed.

The Complainant was earning €2,224.78 net per week at the time of his dismissal.  He secured new employment on 20th October 2025.  The Complainant contends that his actual loss spanned 49 weeks and 3 days from the time of his dismissal to the date he found new employment which he submits amounts to an actual loss of earnings of €125,038.12 (inclusive of average weekly mileage expenses claimed of €304.82).  With respect to prospective loss, the Complainant told the hearing that his net weekly salary is now €1,509.28 (inclusive of a mileage allowance) which represents an asserted net weekly loss in future earnings of €1,020.32.  Mr O’Brien submitted that the Complainant will continue to endure a net annual loss in earnings of €53,056.66 (€1,020.32 x 52) and that this loss is likely to persist until normal retirement age of 66.  Given the Complainant is 57 years of age and has a further 8.5 years of employment until normal retirement age, the total anticipated future net loss asserted is calculated to be €450,981.44 (€53,056.66 x 8.5).  It was further submitted that the Complainant is entitled to be compensated for the loss of job security (given he is on probation in the new role); a reduced contractual notice period (3 months in the new role compared to 6 months in his previous role), and loss of rights under the Redundancy Payments Acts.  It was submitted that in applying the statutory cap of 104 weeks gross salary, the Complainant is entitled to actual and prospective loss of €431,700.88.  The Respondent disputed aspects of the asserted losses such as the inclusion of mileage expenses and efforts to mitigate loss.

Section 7(2) of the Acts provides that in determining the amount of compensation payable I must have regard to the matters outlined at (a) to (f) of that section.

I already found the Respondent failed to discharge the burden on it to show there were substantial grounds justifying the dismissal of the Complainant and that the Respondent failed to adhere to fair procedures and/or the Disciplinary Procedure and/or SI 146.  Regarding the Complainant, I make the following findings with respect to his conduct prior to and after his dismissal. 

Ms Clifford submitted that the Complainant contributed to his own dismissal.  I am satisfied, based on the evidence presented to the hearing, that the Complainant’s conduct was beyond reproach, and accordingly, I find the Complainant did not contribute to his dismissal.

I am also obliged to have regard to the efforts (if any) to mitigate loss in determining the amount of compensation payable to the Complainant arising from his unfair dismissal.  Ms Clifford submitted that the Complainant did not sufficiently mitigate his loss arising from his dismissal.  This is refuted by the Complainant.  A list of job applications made by the Complainant (and responses to same) was opened to the hearing.

As submitted by Ms Clifford and as noted in Q-park Ireland Limited, it is a well-established principle that a dismissed employee’s time is not their own and they are required to apply part of every normal working day to securing alternative employment.  I note the Complainant was dismissed on 8th November 2024.  One month later he registered with a recruitment agency.  His first interview for a CEO role was on 16th January 2025.  He had a second interview for that position on 27th February 2025.  I accept the Complainant’s evidence that there was a real prospect of his appointment to this position, but for reasons outlined to the hearing, this appointment did not materialise through no fault of the Complainant, confirmation of which issued to the Complainant in March 2025 (I note the prospective employer thanked the Complainant “for the significant time and effort [he] invested throughout the interview process”).  For the remainder of that month, the Complainant applied and/or interviewed for three senior roles and registered with Public Jobs. In the month of April to June inclusive he registered with additional agencies/platforms and applied for four to six senior roles each month without success. There is no evidence of job applications in July or August. Efforts expended in September resulted in employment in October 2025.

As per Sheehan the duty to mitigate loss is limited to taking all reasonable steps to minimise loss.  What is reasonable is a question of fact and it is determined on a case-by-case basis.  I accept the Complainant’s submission that his one‑month delay in seeking new employment was due to the shock and upheaval caused by his unexpected dismissal.  I am satisfied from a review of the documents opened by the Complainant to the hearing that the Complainant did not restrict his applications to CEO level, though all the positions applied for were senior positions which I find is reasonable in the circumstances.  The Complainant was employed in the position of CEO before his dismissal and was employed as a CEO prior to his employment with the Respondent.  By their very nature, CEO/senior leadership positions are not as plentiful as other roles.  I am also influenced by the findings of the Adjudication Officer in Rooney v. Twitter International Unlimited Company (ADJ-00044246), with respect to the dismissal of a senior employee and efforts to mitigate loss:  “[he is] not obliged to take [or indeed, in my view, apply for] any job at any salary but rather to seek suitable alternative employment attracting an income as close as he could get to the overall compensation package he had enjoyed prior to the dismissal”.  Having regard to all the above, I am satisfied in the circumstances that the Complainant made reasonable, adequate, and sufficient efforts to mitigate his loss after his employment ended. 

Financial loss is the determining factor in the amount of the award of compensation that may be made.  An award must be an amount that is just and equitable in all the circumstances.  On the evidence as presented, and having regard to all the circumstances, I am satisfied the Complainant should be compensated in full for his actual loss.  However, I do not accept the Complainant’s actual loss expanded a period of 49 weeks and 3 days as submitted by the Complainant, because as will be seen below, I am satisfied that an amount of 6 months net wages is properly payable to the Complainant (€57,844.56) for the contractual notice period provided for in his contract of employment.  As the compensation awarded below under the Payment of Wages Act, 1991 is for wages properly payable for the 6-month period commencing from 9th November 2024 until 9th May 2025, I calculate the Complainant’s actual loss spanned a period of 23 weeks.  Further, I am not satisfied that expenses paid for mileage should be included in the calculation of net weekly remuneration.  Accordingly, I calculate the actual loss to be €51,169.94 (€2,224.78 net weekly pay x 23 weeks).

Estimating compensation that is just and equitable for prospective loss, is by its nature, speculative.   The Complainant is on a lower salary than that enjoyed in the position he was dismissed from, and I accept that he is experiencing and will continue to experience future loss of earnings for some time.  The current asserted annual net loss is €53,056.66 (€1,020.32 x 52).  I have disregarded the inclusion of average mileage expenses claimed in the job he was dismissed from, and I have had regard to the taxable mileage allowance paid in addition to salary in his new role.  Accordingly, I calculate the weekly net prospective loss to be €715.50 (€2,224.78 - €1,509.28).  The Complainant contends that this annual ongoing loss should be compensated for until his retirement.  I do not accept that proposition.  Allowing for the Complainant’s age and professional seniority, likelihood of pay increases, likelihood of promotion and/or other opportunities to mitigate future loss prior to retirement (in this regard I note the oral evidence of the Complainant in cross-examination that he has set up other companies although not trading presently), including the obligation on the Complainant to mitigate prospective loss, I award €74,412 for prospective loss (being 2 years estimated prospective loss of €715.50 x 52 weeks = €37,206 x 2 years = €74,412) which I regard as being just and equitable in all the circumstances.

In summary, on the evidence as presented, and having regard to all the circumstances, I direct the Respondent to pay to the Complainant the amount of €125,581.94 as compensation for his unfair dismissal (this amount is comprised of the following: actual net loss of €51,169.94 plus estimated prospective net loss of €74,412). 

CA-00070690-002

It was common case the Complainant’s contract of employment provided for 6-months’ notice.  Provision was made at clause 9 of the contract of employment for dismissal without notice or payment in lieu thereof if the Complainant is “guilty” of inter alia “grave misconduct” or “wilful neglect” of his duties. The Complainant was advised on 8th November 2024 that he was being summarily dismissed for acts of gross misconduct and therefore he would not be paid in lieu of notice on termination of his employment.  The Respondent Disciplinary Procedure provides as follows: all disciplinary matters will be fairly examined and processed; the allegation’s will be put to the employee, and they will be given the opportunity to respond fully; the employee may be represented; and the employee has the right to a fair and impartial determination of the issues concerned.  The right to appeal any sanction is also provided for within the said procedure.   

I am satisfied that no regard was had by the Respondent to the company Disciplinary Procedure in this case, and without adherence to the requirements of due process as outlined in that procedure, the Respondent could not reasonably have been satisfied of the Complainant’s “guilt” so as to disentitle the Complainant to notice or payment in lieu of notice.  Accordingly, I am satisfied that payment in lieu of 6-months’ notice, being an amount equivalent to €57,844.28 (€2,224.78 x 26 weeks) in net wages was properly payable to the Complainant on the termination of his employment on 8th November 2024, and the failure to pay wages of the amount of €57,844.28 on this date constitutes an unlawful deduction within the meaning of s 5(6) of the 1991 Act.  Accordingly, I find this complaint under the Payment of Wages Act, 1991 to be well-founded and I direct the Respondent to pay to the Complainant compensation of €57,844.28.

CA-00070690-001

I decide the Complainant was unfairly dismissed and the Respondent shall pay to the Complainant compensation of €125,581.94.

CA-00070690-002

I decide this complaint under the Payment of Wages Act, 1991 is well-founded and I direct the Respondent to pay to the Complainant compensation of €57,844.28.

Dismissal substantively and procedurally unfair.  Unlawful deduction of wages.