In Access IT CLG/Access IT v Andrea Galgey[1], the “Respondent” appealed the redress ordered by the Workplace Relations Commission (“WRC”) to the Labour Court (“Court”).

The Respondent accepted that the “Complainant” had been unfairly dismissed, but argued that reinstatement was not an appropriate remedy in the circumstances of the case.[2]

Facts: The Labour Court was not required to assess the fairness or otherwise of the Complainant’s dismissal, but only to consider whether or not reinstatement was the appropriate redress in this case.

The Respondent put forward the following main arguments in support of its position that reinstatement ought not to have been ordered:

  1. The Complainant’s “combative and insubordinate” behaviour had resulted in a difficult working environment and the Respondent owed a duty of care to its existing employees.
  2. The business had moved on since the Complainant’s dismissal and her reinstatement would require the Respondent to make an existing staff member redundant as there was no longer a need for an additional IT tutor.
  3. The Respondent’s financial difficulties meant that reinstatement would impose a significant financial burden on it.

The Complainant argued that the work environment was toxic before she commenced employment and that there was no proof that she had contributed to the situation. There had been no investigations or complaints against her during the course of her employment. The Complainant further argued that she ought not to be held responsible for the Respondent’s financial difficulties. She informed the WRC that it was her understanding that funding was available to enable the Respondent to keep her in employment. The Complainant made it clear that there was no breakdown of trust between the parties, particularly not from her side. She also argued that reinstatement would have a significant impact on her contributory State pension and her future entitlements.

Decision: The Court referred to the Adjudicator’s decision as having been

“unequivocal about the egregious behaviour of the Respondent in purporting to make the Complainant redundant while, in fact, dismissing her without any allegation ever having been put to her regarding her alleged shortcomings.”

The Court was critical of the Respondent’s attempt to justify its “refusal to restore the employee’s livelihood” by referring to its own financial hardship. The Court made it clear that it had “considerable sympathy” for the Complainant’s position that reinstatement was the appropriate remedy and referred to her “willingness to re-integrate without holding any grudges.”

However, notwithstanding the above, the Court found that the “huge level of hostility on the part of the Respondent to the Complainant’s return” could not be ignored because the Court was required to consider whether or not it would be in the interests of either party, particularly the Complainant, for the employment relationship to be re-established. The Court found that the fact that both parties had witnesses lined up to “attribute blame to the opposing party” for the issues that had existed suggested “a level of mutual distrust and hostility that is not likely to be helped by re-instatement.” The Court was satisfied that it would not be in the Complainant’s interests for her to return to work for the Respondent despite her clear preference for reinstatement. The Court noted that compensation would be less financially advantageous to the Complainant, but found that compensation was the appropriate form of redress. In so finding, the Court noted that its decision in this regard was “not without some misgivings.”

In calculating the amount of compensation, the Court noted that the maximum award that the Court could make was €19,410.96, less the purported redundancy payment to her of €1,666.08, amounting to €17,744.88. The Court was satisfied that the Complainant had made a “reasonable effort” to mitigate her loss, but found that her attempts fell below the requirements set out in Sheehan v. Continental Administration Co. Ltd.[3] (in which case it was found that an employee who finds himself out of work should employ a reasonable amount of time each weekday in looking for alternative work). The Court was only prepared to take into consideration jobs in respect of which the Complainant had documentary evidence of her enquiries and/or applications.

The Court awarded the Complainant €15,000.00 in compensation over and above the €1,666.08 paid to her in respect of her purported redundancy.

Takeaway for Employers: While compensation continues to be the form of redress that is most frequently ordered in unfair dismissal cases, there has been a recent increase in the number of cases in which reinstatement has been ordered. Employers need to be live to the very real possibility that reinstatement may be ordered as an alternative to compensation in appropriate cases. Reinstatement can present real challenges to employers and existing employees where relations are fraught, and it also carries with it significant financial implications for the employer.

The common thread that runs through the caselaw in this area is that the Court must consider the interests of both the employer and the employee in deciding whether or not reinstatement is the most appropriate form of redress. This case is interesting in that the Court varied the redress ordered by the WRC on the basis of its assessment that it was not in the Complainant’s best interests, notwithstanding the Complainant’s clear preference for same and the fact that reinstatement was clearly in the Complainant’s best interests from a financial perspective (which was accepted by the Court).

Footnotes

[1] UDD2242.

[2] The parties are referred to in the same way in which they were referred to in the WRC.

[3] UD858/1999.

Authors – Jenny Wakely and Anne O’Connell

8th August 2022

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