SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015
KEELINGS LOGISTICS SOLUTIONS UC
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
MR MAREK KORZENIEWSKI
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)
Chairman: Ms O'Donnell
Employer Member: Mr Marie
Worker Member: Ms Tanham
1. Appeal Of Adjudication Officer Decision No:ADJ-00015838 CA-00020569-001 CA-00020571-001.
2. The Employer appealed the Decision of the Adjudication Officerto the Labour Court on 23 May 2019 in accordance with Section 8(A) of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 16 January 2020. The following is the Determination of the Court:-
This is an appeal by Keeling’s Logistics Solutions (hereafter the Respondent) against an Adjudication Officer’s Decision ADJ-00015838 given under the Unfair Dismissals Acts, 1977 to 2015 (the Acts) in a claim by Marek Koreniewski (hereafter the Complainant) that he was unfairly dismissed by his former employer. The Adjudication Officer upheld the complaint of unfair dismissal and ordered the Respondent the pay the Complainant redress in the amount of €10,000.
Shortly after the commencement of the hearing the Court took a short adjournment. Following that adjournment, the Respondent informed the Court that they were no longer contesting the fact that dismissal was unfair and that the only issue before the Court was redress in respect of the unfair dismissal.
Section 7 of the Act states
- 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 undersection 17of 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.
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) ofsection 14of 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 heard both parties in relation to the three forms of redress set out above. The Court has decided that reinstatement or re-engagement of the Complainant is not a practical option in this case. The Court instead takes the view that compensation is the appropriate redress.
The Complainant was claiming losses of €16,000 relating in the main to the difference in salary between his job with the Respondent and his current job. The Complainant confirmed to the Court that he had not looked for a job as a general operative which was the role he had held with the Respondent. He had taken up work as a kitchen porter which he accepted was a lower paying job as he had an interest in developing his skills in that area.
The Respondent submitted that they could not be held liable for losses arising from his decision to change from general operative work to an area where the salary levels were lower because he wanted to develop a different skill set.
Having assessed all of the information before it the Court considers that the Complainant has suffered financial loss as a result of the dismissal. The Court considers it just and equitable in all the circumstances of this case to award the Complainant compensation in the sum of €4,900. The Court so determines.
The Court determines that the Complaint is well founded. The Court orders the Respondent to pay the Complainant compensation in the sum of €4,900. The decision of the Adjudication Officer is varied accordingly.
The Court so determines.
Signed on behalf of the Labour Court
03 February 2020Deputy Chairman
Enquiries concerning this Determination should be addressed to Richard Kennedy, Court Secretary.