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WRC Limited Award For Unfair Dismissal Due to Employee’s Decision Not to Properly Mitigate Loss

In the recent decision of Martin Gillen v. Derek Daly Construction Ltd ADJ-00029984 the Complainant was held to have been unfairly dismissed as the Respondent failed to follow any procedures in respect of his dismissal, which involved a serious instance of gross misconduct by the Complainant. As the Complainant limited the amount he worked, after his dismissal, so he qualified for social welfare, the Adjudicator deemed that any award is limited to the amount as if he had no financial loss i.e. 4 weeks remuneration.

Facts: The Complainant was employed by the Respondent from March 2019 to when he was dismissed on 24 August 2020. On 21 August the Complainant made a remark to an apprentice “giving him grief of a personal nature.” In retaliation, the apprentice pushed the Complainant who then fell down, got up, and hit the apprentice in the face allegedly breaking his nose. The Respondent submits that he called to the Complainant’s house twice over the following weekend to get an incident form but was told that the Complainant was not there and not to return. The Respondent was informed by the Citizens Information Service that an employee can be dismissed for gross misconduct, for which the Complainant’s act of assault qualified. The Respondent paid notice pay as he was related to the Complainant and he “didn’t want any bad feeling”.

The Respondent alleged that there had been bullying of the apprentice by the Complainant in advance of the above incident. In addition, there had been disputes regarding the Complainant’s pay, where he wished to be paid more despite refusing to do blockwork which the Respondent submitted he was employed to do. The Complainant alleged that he was hired as a labourer, not solely to do blockwork. The Respondent was of the view that he had already gave notice of his dismissal of the Complainant two weeks prior to 21 August incident for refusing to do the blockwork.

The Complainant said that he fractured his finger in June and that was the basis for not being able to do blockwork. He alleged that the Respondent told him that if he did not continue to do blockwork that he would dismiss him, but that he was not dismissed at that stage and received nothing in writing.

On 23 August, after the incident with the apprentice, the Complainant submits that he was told that there was no work for him on the site. The following day, the Respondent dismissed him. There were no warnings, investigations, or meetings. Both the Complainant and the apprentice were dismissed but the apprentice was later taken back.

Decision: The Adjudicator held that on the balance of probabilities and the absence of paperwork from the Respondent, the notice of dismissal regarding the Complainant’s refusal to resume doing blockwork was in fact a warning and not actual notice of his dismissal. She found that the only actual notice of dismissal was in respect of the altercation with the apprentice.

The Adjudicator said that even if proper notice had been given to the Complainant at the time of the dispute regarding blockwork, no proper procedures were followed then or at the time of the incident with the apprentice – there were no written terms of employment, grievance or disciplinary procedure in place.

It was found that the Complainant was unfairly dismissed, even though the Adjudicator declared his conduct in regard to the incident on 21 August was gross misconduct. This fact only served to put the contribution to the decision to dismiss him at sixty six percent, in light of the fact that the apprentice was also involved in the build up to the altercation.

The Complainant sought alternative employment with one contractor. He chose to only work one day to preserve his social welfare benefits until this contractor could offer him work. The Adjudicator decided that as the Complainant made this “choice” that it was not for the Respondent to pay for such a decision on the part of the Complainant. Therefore, she limited the award to 4 weeks remuneration being €2,928.80, as if he had no financial loss whatsoever. The Adjudicator then applied the 66% reduction for the Complainant’s contribution towards his dismissal, awarding him €966.50 which is then subject to taxation.

Takeaway for the Employers: Employers should remember that regardless of an employee having committed clear gross misconduct, fair procedures must still be followed by the employer before dismissing the employee. However, an interesting point in this case is that the Adjudicator limited the potential award to 4 weeks, the same as if there was no financial loss, solely due to the employee’s admission that he only did as much work to ensure that he was still able to collect social welfare. It is important to ensure that adequate enquiries are made in relation to a Complainant’s efforts to mitigate his financial loss. Both the Complainant and Respondent were unrepresented in this case. I doubt that the Complainant would have found himself in such a situation if he was represented. 

Link  – https://www.workplacerelations.ie/en/cases/2022/february/adj-00029984.html

Authors – Anne O’Connell and Hannah Smullen

22 February 2022

Anne O’Connell Solicitors

19-22 Lower Baggot Street, Dublin 2


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