Not Mitigating Loss – Unfair Dismissal Claim

Sometimes a person can win an unfair dismissal case, but be unhappy with the outcome.

What can a former employee do if they win their case at the Workplace Relations Commission, but they are not happy with the quantum of compensation awarded by the Workplace Relations Commission Adjudicator Officer ?.

In cases of this nature there is a duty on the employee/former employee to mitigate their loss.

What is mitigating loss ?

After an employee’s employment contract has been terminated by the employer, he/she has a duty to mitigate their financial loss, which means to go out actively seeking employment to get work to lessen the financial burden. This is a positive duty which requires the person to make earnest efforts to seek employment to reduce the financial burden.

What can happen is, an employee goes about looking for new work after being dismissed, believes they done everything he/she thinks they can do, but still cannot get a job, and it can happen that it is concluded at Workplace Relations Commission that they didn’t sufficiently mitigate their loss, and therefore their award in the form of compensation is consequently reduced.

Appeal to the Labour Court

If the person wishes to appeal the decision of the Adjudication Officer at the Workplace Relations Commission, they must appeal within a short time frame.

The complainant must make an appeal to the Labour Court of the decision of the Adjudication Officer regarding the quantum of compensation awarded in the Workplace Relations Commission.

In the Labour Court the complainant must outline detail of their losses and future loss. They must outline all of their efforts in seeking employment. Are they currently in a training programme ? for example. What are the specific efforts made seeking employment ? will be assessed.

Redress

There are 3 types of redress available to a person in dismissal legal actions, from re-engagement, to re-instatement, to financial redress.

Regarding what financial redress a person can obtain who successfully wins their dismissal case, S. 7 (1)(c) of the principal act, as amended, gives us guidance on this matter.

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.

How is the Monetary Award Determined by the Adjudication Officer?

This is set out in S.7(2) of the principal act, as amended, which states:

(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.

) 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. 

The intention behind the rational for financial award in unfair/construction dismissal actions to give reparation for the actual losses sustained by the person for having been dismissed.

Disclaimer for the Mitigating Loss Article – Unfair Dismissal Actions

Please be advised that the above-mentioned material is intended as an overview and as a broad out-line of the topic discussed. It should not be considered as complete and comprehensive legal advice, nor act as an appropriate substitute. Legal advice should be sought from a solicitor prior to relying on anything in this article.

Due care has been taken in the publication of this article and we do not accept legal liability as a result of reliance on any material covered in the above article.