Unfair dismissal awards in Ireland can vary widely, depending on the particular facts of the case.
I recently saw a case where an employee was successful in his unfair dismissal claim but was awarded nothing-that is, a nil award. In that case the adjudicator agreed with the employer that the employee was virtually blackmailing the employer with his unreasonable demands.
So, while the dismissal was carried out in a procedurally unfair way and it was, on a strict interpretation, an unfair dismissal the employee was held to contribute to such a degree to his own dismissal that a nil award was made.
You can read the full decision in the case of A Diver v A Limited Company here The adjudicator, Niamh O’Carroll Kelly found,
I find that the complainant was dismissed because of his refusal to go to the job in Dublin. Furthermore I find that the dismissal had nothing to do with the alleged health and safety concerns. The respondent’s procedures were significantly flawed. To the extent, I can only find that the complainant was unfairly dismissed. However, I find that he contributed 100% to his own demise when he refused to attend at the job in Dublin unless he was paid a rate of pay which amounted to 45% more than his contractual rate. The respondent’s interpretation of that behaviour as amounting to blackmail was a fair assessment of the situation.
WRC adjudicator, Niamh O’Carroll Kelly
The complaint succeeds however for the reasons set out above I am making a nil award.
This is quite unusual and I have not encountered a case like this before. However, the degree to which the employee contributed to his/her own dismissal will always be taken into account and any award will reflect that.
At the other end of the spectrum I have seen a case where the employee was awarded the maximum awardy-2 years’ salary-for unfair dismissal. This also would have been an exceptional case and the award was made on account of the egregious conduct of the employer in the way the employee was treated.
One or both of these cases may have been appealed but the fundamental point remains that the potential payout can range from nil to the maximum 2 years’ salary.
Redress for unfair dismissal-section 7 Unfair Dismissals Act 1977
Redress for unfair dismissal in Ireland is set out in section 7 of the Unfair Dismissals Act 1977 as follows:
Redress for unfair dismissal.
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 F49 [ 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
F50 [ ( 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 under section 17 of 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. ]
F51 [ (1A) 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, F52 [ … ]
F50 [ ( 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) of section 14 of 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. ]
F53 [ (2A) In calculating financial loss for the purposes of subsection (1), payments to the employee —
( a ) under the Social Welfare Acts, 1981 to 1993, in respect of any period following the dismissal concerned, or
( b ) under the Income Tax Acts arising by reason of the dismissal,
shall be disregarded. ]
F54 [ (2B) Where —
(a) the dismissal of an employee results wholly or mainly from the employee having made a protected disclosure, and
(b) the investigation of the relevant wrongdoing concerned was not the sole or main motivation for making the disclosure,
the amount of compensation that is just and equitable may be up to 25 per cent less than the amount that it would otherwise be. ]
(3) In this section—
“ financial loss”, in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation;
“ remuneration” includes allowances in the nature of pay and benefits in lieu of or in addition to pay.
You will see that there are three potential awards for unfair dismissal:
- Re-instatement
- Re-engagement
- Compensation for financial loss
You will note, too, that financial loss is defined as “any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation”.
You will also see that the employee has a duty to mitigate his loss and should he fail to do so this can be taken into account by the adjudicator in making any award, along with any actions by the employee which may have contributed to his dismissal in the first place.
Bringing an unfair dismissal claim
An employee would be well advised to consider carefully bringing an unfair dismissal claim by weighing up the potential award if the claim is successful. If the employee, for example, is successful in obtaining new employment quickly after termination then any award could be small and it may not be cost effective to bring the claim.
On the other hand the employee may be driven by a sense of injustice and may not be overly concerned about the quantum of any award. He/she may be satisfied to prove a point-that is, that he/she was unfairly dismissed and is entitled to a ‘clean record’.