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Performance Related Dismissal Deemed Unfair – Only Four Weeks’ Pay Awarded

The WRC decision in the case of Margaret Walsh v Bective Stud Ltd – ADJ00032464 which issued in May represents the latest in a number of recent WRC decisions where the employee won an unfair dismissal claim only to find their award limited to four weeks’ pay due to lack of evidence of the employee’s efforts to mitigate her loss.

Facts:

The Complainant commenced employment with the Respondent on 10th June 2019. The owners of the Respondent business recruited the Complainant to ease pressure on them concerning day to day accounting and administration.

According to the Complainant, she was an experienced bookkeeper who had the necessary skills and experience to do the job. She stated that every business is different, however, that the owners in this business failed to make the necessary time to clearly set out their expectations and to spend the right amount of time directing her about her various tasks. She argued that her job was impossible based on poor communication, ad hoc interaction, no planning, and a serious underestimation of the time required to induct a new employee.

According to the Complainant, while she was initially required to work three days a week, it was understood at interview that it would eventually reduce to one day a week. However, the Complainant claimed that soon the owners started blaming her for their failings and eventually her work was restricted and reduced to one day a month and then she was let go.

According to the Respondent, they had an expectation that the Complainant would be self-reliant and would organise them. They said they had acted in good faith on what the employee had detailed in her CV. However, they said the reality was she required far more direction than they could provide or was reasonable. They claimed they could have terminated the contract during the first 12 months but they wanted the employee to succeed and gave her every opportunity to do so. They argued that it eventually became clear that the Complainant would not be able to fulfil the role without ongoing direction.

Decision:

The Adjudication Officer noted that the employee had been informally spoken to about her work performance and she was given an opportunity to improve. However, he also remarked on the fact that the Respondent did not at any time put the Complainant on a formal improvement programme, detailing support and then formally reviewing progress at set times. 

He determined that the employer did not follow a formal process where it could be shown that the principles of fair procedures set down in SI 146/2000 (which is a statutory code on grievance and disciplinary procedures) had been complied with.

He commented that the employer was reasonable in so far as they held back from terminating the contract for months and genuinely wished for the employee to improve and meet the job requirements. However, he determined that the employee was never on notice of the seriousness of the situation and how she was falling short of what was expected.

The Adjudicator found in favour of the Complainant and her unfair dismissal claim was successful. However, despite this she was only awarded €640 (i.e. four weeks’ pay). This was because she had not provided any evidence of mitigation of loss (i.e. attempts by her to obtain new work), which she is obliged to do under the Unfair Dismissals Act.

Takeaway for Employers and Employees:

Employers should see this case as a reminder of the importance of following a robust process that comprises all of the necessary elements of due process and fair procedures prior to taking a decision to dismiss an employee on the grounds of performance, regardless of how many informal conversations they may have had with the employee. While the award was minimal in this case it could have been higher had the employee been able to produce acceptable evidence of her efforts to meet her obligation to mitigate her loss.

Employees should see this case as a reminder that in an unfair dismissal claim they need to show proof that they made every reasonable effort to get another job and mitigate their loss between the date of the dismissal and the WRC hearing date. In the absence of being able to prove this, there is every chance that even if they win their case, they will only receive a minimal award.

Link  – https://www.workplacerelations.ie/en/cases/2022/may/adj-00032464.html

Authors – Laura Killelea and Anne O’Connell  

Date: 31st May 2022

Anne O’Connell Solicitors

19-22 Lower Baggot Street, Dublin 2

www.aocsolicitors.ie

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