AOC Solicitors COVID-19 Hub - Read More

AOC
- News

AOC
- News

Unfair dismissal award reduced by 70% due to Complainant’s own conduct

In the recent decision of Adjudication Officer Emile Daly, the Complainant’s award of €50,000 was reduced by a staggering 70% due to the Complainant’s own contribution to the dismissal.

Facts

The Complainant had worked for the Respondent since 1988 as an employee but also as part owner of the hotel until the business went into receivership. In September 2014, the hotel business was taken over by the Respondent and the Complainant was retained as an employee by the new management. His role did not change but he was no longer part-owner.

The Complainant was put on administrative leave on 23rd February 2017 and was eventually dismissed from his position on 27th July 2017 following an acrimonious breakdown in relationship with his employer. The Complainant was subject to an investigation due to the deterioration in his work performance which related to him drinking alcohol during work hours and other matters of mismanagement. The Complainant went to the High Court seeking injunctive relief  to prevent any reliance by the Respondent on an investigation report into the Complainant’s conduct. The Respondent gave undertakings to the High Court and the Respondent was prevented from thereafter relying on the contents of the report.

The Respondent submitted that “.. its hands were tied. It could not act expressly upon the investigator’s findings because to do so would be in breach of the undertakings to the High Court” however, in light of the findings of the report the Respondent felt it would have been untenable to permit the Complainant to take up his post again. The Respondent terminated the Complainant’s contract giving no reason other than exercising a right under a contract to do so.

The Complainant contested the evidence of the Respondent, the use of the investigation report and the evidence of the report and its findings being included in the hearing. The Complainant gave evidence that he does not have an alcohol problem nor did he drink during working hours. The Complainant submitted that it was clear that the Respondent had relied on the contents of the report in making their decision to terminate his employment. The Complainant’s total losses were €49,740 and he also claimed for loss into future salary to the value of 2 years remuneration.

Decision

The Adjudicator found that on its face the Respondent’s decision to dismiss was unreasoned. It followed an undertaking given to the High Court in May 2017, however, the Respondent admitted in the hearing that the findings were relied on to dismiss the Complainant. The Respondent was not permitted to act without any fair procedures and the Adjudicator was satisfied that this was a decision based on conduct.

The Adjudicator was satisfied that the Complainant significantly contributed to his own dismissal and found that it was more probable that the Complainant did drink alcohol while on duty. Working in a bar environment is well known for its occupational hazards and this necessitates the imposition of strict rules to prevent injury both to the establishment and the employees.

The Adjudicator assessed the Complainants loss at approximately €50,000 but found that 70% contribution to his dismissal was fair. The Complainant was awarded €15,000 and no award was made in respect of future losses.

Link

19th December 2018

 Anne O’Connell Solicitors

Fitzwilliam Hall

Fitzwilliam Place

Dublin 2

www.aocsolicitors.ie

Related Articles