UDD267

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00045339 (CA-00056067-001)

BACKGROUND:

The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 17 October 2024 in accordance with Section 8A of the Unfair Dismissals Act 1977 to 2015.

A Labour Court hearing took place on 27 February 2026.

The following is the Decision of the Court.

DECISION:

1. Background

This is an appeal by Amir Sajad Esmaeily of an Adjudication Officer’s Decision made under the Unfair Dismissals Acts 1977 to 2015 in a claim taken against his former employer, Accountancy & Business College (Ireland) Limited t/a Dublin Business School.

The Adjudication Officer held that Amir Sajad Esmaeily’s complaint of unfair dismissal was well-founded and awarded €53,000 in compensation.

Amir Sajad Esmaeily lodged an appeal to the Labour Court on 17 October 2024 in relation to the quantum of the award. The Labour Court conducted a hearing of the appeal on 27 February 2026, at which the parties were given an opportunity to be heard and present to it any evidence relevant to the appeal.

In this Decision the parties are referred to as they were at first instance. Hence, Amir Sajad Esmaeily is referred to as “the Complainant” and Accountancy & Business College (Ireland) Limited t/a Dublin Business School as the “the Respondent”.

2. Summary Position of the Respondent.

The Complainant commenced employment as a lecturer with the Respondent on 21 September 2018. His employment was terminated by the Respondent on 3 February 2023 for beaching company policies. The Respondent accepts that the dismissal of the Complainant was procedurally unfair and concedes that the dismissal was unfair.

The Respondent requests the Labour Court to solely consider the mitigation of loss by the Complainant, which it submits was inadequate. The Complainant failed to mitigate his losses in an adequate manner.

It is well established in law that the duty to mitigate loss requires a pro-active approach to be taken, as per Sheehan and Continental Administration Company Limited UD 858/1999, in which the Tribunal held that:

“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 to be profitably employed in seeking to mitigate his loss.”

A failure to achieve the standard under the Sheehan test will result in any award of compensation being reduced by the failure to mitigate loss.

In Philip Smith v Mark Leddy UDD1974 theLabour Court set out that “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”. This test was relied upon in the decisions of Coad v Eurobase UD1138/2013 in which returning to education was not found to be a reasonable excuse to avoid the obligation to mitigate one’s losses, and in the case of Aisling Ryan v Pharmacy O’Riain Limited ADJ -00029267, in which the WRC found that applications made by the Complainant for 23 positions between 29 June 2020 and August 2021 was not sufficient to meet the test in Smith v. Leddy.

In Murphy v Independent News & Media UD841/2013, the EAT noted that the claimant limited her search for alternative work to her area of expertise only and reduced the compensation as a result. Finally in St Colmcille’s (Kells) Credit Union Limited v Patrick Leneghan UDD1952 the Labour Court reduced the award of a dismissed employee from €25,500 to €12,750 partly due to the fact that the employee had “failed to produce credible evidence to the Court that he has made sufficiently rigorous attempts to mitigate his loss in the period between his dismissal and the date of the within hearing”.

From a review of the information on job applications of the Complainant, it is submitted that the alleged efforts of the Complainant to discharge this duty fall short of the required rigorous standard.

It appears he has made 36 job applications from February 2023 to August 2024. He made no job applications outside of his area of interest - the Artificial Intelligence/data analyst area. He has applied for very few positions outside of academia. There are also several months where he made no job applications whatsoever: in May 2023, September 2023, November 2023, January 2024, March 2024, May 2024 and July 2024. In fact, in 2024 he has evidenced only making 5 job applications.

These efforts fall significantly short of the test in Sheehan whereby the Applicant appears to have only occasionally applied for specific roles, with gaps of days, weeks or even months between applications. This does not evidence a significant portion of each working day being spent by the Complainant on mitigating his losses. He also could have expanded his search to roles beyond his immediate expertise as per the Murphy decision.

The decision of Naude v UCC ADJ-00042625, relied upon by the Complainant, is readily distinguishable from the instant case, as the employer in that case had no issues with the Complainant’s performance or conduct. The Complainant in this case was found guilty of misconduct.

3. Summary position and evidence of the Complainant

The Complainant was a lay litigant and gave evidence under oath.

The Complainant said that he appealed the Adjudication Officer’s decision as the compensation awarded is inadequate and does not reflect the impact and duration of his losses. The Complainant’s annual income when employed by the Respondent consistently exceeded €91,000. The €53,000 award represents only a portion of the total income loss sustained.

The Complainant was out of work for a prolonged period. He made extensive efforts to mitigate his loss. By the time of the WRC hearing date in August 2024, he had applied for more than 65 roles, and applied for a further 51 roles by the date of the Labour Court appeal hearing up in February 2026. He submitted applications for roles in different sectors, both academic and corporate. He applied for lower-level academic positions and has expanded his subject areas. In all, he interviewed for seven or eight positions during 2023 and 2024 and for a further two roles in 2025/6.

 The Complainant said that he suffered significant damage to his career and professional reputation when dismissed by the Respondent on 3 February 2023, as he had difficulty explaining to prospective employers why his employment had ended. After the WRC decision issued, he understood that prospective employers did not wish to employ him, as he had taken a claim against a previous employer.

The Complainant started a part-time lecturing position in September 2023. He subsequently secured a second part-time lecturing position with another institution.  In the two-year period after the dismissal, he earned approximately €52,000 for the two part-time lecturing roles which was far lower than when he worked for the Respondent. His income, if not dismissed, would have been around €185,000.

In total the Complainant submits that he made 114 jobs applications.  The WRC award was materially lower than compensation awarded in comparable cases such as Wim Naude v UCC Cork (ADJ-00042625) and Courtney Carrey v WIX (ADJ00048434), where the individuals made far fewer job applications to demonstrate sufficient efforts to mitigate loss.

The Complainant contends that as the Respondent has conceded that his dismissal was unfair, and based on the evidence presented, a just and equitable award should be made in the made in the range of €150,000.

Under cross examination, the Complainant disputed that his evidence was inconsistent. He accepted that certain documents submitted to the Court as evidence of job search activities were duplicate copies. He disputed the assertion that he did not apply for jobs outside his area of expertise. When asked about the time devoted to his part-time lecturing positions, the Complainant said that both roles required approximately six hours of lectures per week, with additional time spent in preparation.  The terms were of twelve weeks duration.  He accepted that he undertook no lecturing activities once the term ended in May. He said that he applied for between seven and ten jobs during May, June and July. One lecturing position ceased in 2024, as the programme did not run.

4. Deliberations

The Respondent accepts that the company did not follow fair procedures in terminating the Complainant’s employment and that, as a result, the dismissal was not fair.

Accordingly, having regard to the Respondent’s stated position, the Court finds that the complaint of unfair dismissal is well founded.

5. Redress

Section 7(1) of the Act provides that where an employee is unfairly dismissed, the employee is entitled to redress consisting of whichever of the following the Labour Court 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”

The preferred redress stated by the parties is an award of compensation. As neither party expressed a view that reinstatement or re-engagement was a suitable remedy in this case, the Court is of the view that an award of compensation is the most appropriate form of redress.

The Complainant’s remuneration for the purposes of the claim is accepted by the parties to be €91,133 gross per annum.  Therefore, the maximum award payable is €182,266.

In determining the amount of compensation payable under the Act the Court is obliged to consider several different factors. Section 7(2) of the Act sets out as follows: -

“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 Court is obliged to consider the extent to which any financial loss incurred was attributable to an act, omission, or conduct, on the part of the employer or on the part of the employee. The Respondent in this case accepts that the Complainant was unfairly dismissed in contravention of the Act. The Court heard no evidence from the Respondent to justify the reasons for the Complainant’s dismissal, or to support the assertion that the Complainant contributed to that dismissal. No submission was made to demonstrate that the Respondent complied with any procedures or provisions of a code of practice relating to procedures regarding dismissal when it terminated the Complainant’s employment.

The Court is obliged under s.7(2) (c) of the Act to look at steps taken by the Complainant to mitigate his loss when his employment ended. The Respondent asserts that the Complainant did not engage in sufficient efforts to mitigate his loss and his efforts did not meet the relevant test set out in Sheehan v Continental Administration which requires that “A claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work”. The Court notes that in Sheehan the Employment Appeal Tribunal stated that when considering 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?”

The Tribunal further noted 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” and that it is for the Respondent to show that a complainant did not act reasonably in all the circumstances to minimise his loss. The question the Court must consider is whether the Complainant could have done more to offset his loss.

The Court heard evidence of the significant number of job applications submitted by the Complainant. While that evidence was robustly challenged by Counsel for the Respondent - and the Complainant accepted that some documents proffered as evidence were duplicates - the Court finds that the Complainant gave credible evidence about job applications made in 2023 and 2024. In the Court’s view, he reasonably focused his initial job search efforts on his academic areas of expertise. The Court notes that when those efforts were unsuccessful, the Complainants made some efforts in expanding his search to roles outside academia.  Ultimately, he secured two part-time, temporary, lecturing roles, at a lower rate of pay. One role ceased in 2024. The roles allowed him mitigate his loss by €26,000 per annum.

The Complainant outlined the challenges posed in securing employment in his area of expertise as he was unable to adequately explain the reason for leaving the employment of the Respondent in February 2023. While the Adjudication Officer’s decision, dated 14 October 2024, held the dismissal to be unfair, the Complainant contends that reputational damage incurred for litigating against a former employer further impeded his ability to secure employment with prospective employers in his area of expertise. As a result, he said that he branched out into other areas of lecturing.

On the facts as presented in this case, and having regard to all the circumstance, the Court is of the view that the Complainant made reasonable efforts to mitigate his loss after his employment ended.  However, the Court is not fully satisfied that the steps taken were of a sufficient and adequate nature to mitigate fully against all losses incurred. As is well established in case-law, a Complainant who finds himself out of work should employ a reasonable amount of time seeking work and a failure on the part a Complainant to mitigate losses lessens the amount recoverable. In this case, the Complainant provided limited evidence of his efforts to mitigate his losses since 2024. There were several months in which no job applications at all were made.

The purpose of any award of compensation for unfair dismissal is to compensate for financial losses incurred because of the dismissal. In this case, the maximum award payable is two year’s remuneration (€182,266). The Complainant seeks the maximum award adjusted by earnings he made in part-time lecturing positions to offset his losses (€52,000).

A compensation award must be an amount that is ‘just and equitable in all the circumstances”. These words provide the Court with some latitude in considering both mitigating and aggravating factors in the circumstances surrounding the dismissal.  The obligation to mitigate loss is not the sole factor to consider when assessing an award of compensation. 

Weighing all the factor in this case, the Court determines that the appropriate amount of compensation that is just and equitable in this case be €104,000.

6. Decision

The Court finds, for the reasons stated above, that the Complainant was unfairly dismissed. The appeal is well-founded.

The Court requires that the Respondent pay to the Complainant the sum of €104,000 being the amount that the Court considers just and equitable in all of the circumstances.

The decision of the Adjudication Officer is varied accordingly.

The Court so determines.

	Signed on behalf of the Labour Court
	Katie Connolly
AR	______________________
09/03/2026	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Mr Aidan Ralph, Court Secretary.