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WRC Orders Re-Engagement Rather than Re-Instatement for Unfair Dismissal Due to Employee’s Failure to Mitigate his Loss & Delay in Lodging His Claim

In the recent decision of John Tyrell v Toga Freight Services Ltd, ADJ-00029338, Adjudicator Breffni O’Neill determined that the remedy of instatement was not appropriate in circumstances where the Complainant had delayed five months from the date of dismissal to lodge his complaint with the WRC and also due to his inadequate attempts to mitigate his loss since his dismissal. Therefore, the Complainant was awarded re-engagement as an alternative remedy.

Facts: The Complainant was employed as a Warehouse Operative with the Respondent since 26th April 2018 and had previously been engaged as an agency worker from 1st July 2016, before being employed directly by the Respondent.

The Complainant’s contract stipulated his hours of employment as 7am to 5pm. Due to business requirements, the Respondent needed to implement a new rostering arrangement. The new arrangement required a two-team warehouse operation in which one team finished at 4pm and the other was rostered to ‘work to finish’. The Respondent relied on a contractual clause which stated “the employee accepts that should business requirements necessitate attendance and work performance outside of standard attendance, such requirements will be fulfilled”.

It was highlighted at the hearing that this new rostering arrangement was implemented further to discussion with all of the staff involved and that all of the employees, with the exception of the Complainant, agreed to this change.

The Complainant submitted that the Respondent did not have a right to change his contractual hours without his agreement, similarly, pointing to a contractual clause which stated “The terms of this contract herein may only change by mutual agreement between the parties or by operation/application of the laws of the Republic of Ireland/ European Union.” He did not agree to the change of hours by the Respondent.

On this basis the Complainant left work on a number of occasions at 5pm as per his contractual hours, despite being warned that this would lead to disciplinary action. The Complainant was issued with a final written warning following a disciplinary process. Following this process, the Respondent issued a staff notice clarifying what ‘work to finish’ meant. Despite this clarification the Complainant once again left his ‘work to finish’ roster early. The Respondent once again initiated the disciplinary process against the Complainant which resulted in the dismissal of the Complainant.

Decision: The Adjudicator noted the Respondent’s assertion that there was an entitlement to change the Complainant’s working hours because of the abovementioned clause, however, he concluded that any reasonable interpretation of this contractual provision would understand from reading that the Respondent could require an employee to work overtime on occasion if necessary and therefore could not be used as a basis to permanently change the Complainant’s stipulated working time from his contractual hours. The Adjudicator further noted that both contractual clauses relied on in the hearing were at odds with each other and that the Complainant cannot be bound by what other employees agreed.

The Adjudicator therefore concluded that the Respondent acted unreasonably, and that the Complainant was therefore unfairly dismissed. When determining what redress would be appropriate in the circumstances the Adjudicator concluded that due to the Complainant’s feeble attempts to mitigate his loss and the five month wait before lodging his complaint with the WRC, re-instatement without any loss of pay from the date of termination would not be appropriate in the circumstances. It was determined that the Complainant should be re-engaged by the Respondent on his contractual hours from the date of the decision.

Takeaway for the Employers: Employers should ensure that when issuing contracts of employment to employees that careful consideration is given to the drafting of clauses. The juxtaposing clauses in the above case meant that the employer limited their ability to alter employee hours despite a genuine business need to do so and are therefore bound to the contractual hours initially given to the employee despite business needs changing in the interim.

Link  –  https://www.workplacerelations.ie/en/cases/2021/july/adj-00029338.html

Authors – Eva Lindsay and Anne O’Connell

28th July 2021

Anne O’Connell Solicitors

19-22 Lower Baggot Street, Dublin 2


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