Duty on dismissed employee
A recent decision of the WRC has highlighted the strict obligation on Complainants to mitigate financial loss following the end of their employment, even where the reasons for termination are in dispute.
For example, where an individuals’ employment ends, by way of alleged unfair or constructive dismissal and they have submitted a Complaint to the WRC, they should not wait until the outcome of hearing to seek new employment.
Standard of Effort
At the hearing of the matter, the Complainant will be required to submit evidence of their endeavours to seek alternative employment. There is a legal duty on the Complainant to mitigate their loss and to take efficient steps to secure a similar role.
The Complainant cannot simply rely on the fact that they have applied for a handful of similar jobs, case law dictates that there must be a significant effort made to secure new employment. What amounts to a significant effort will vary depending on the sector in which the Complainant is employed and the Adjudicator will consider the level of difficulty involved in securing a similar role. There is even a suggestion that the amount of time normally worked per week- for example 35 hours should be devoted by the dismissed employee to seek new employment. It is a high standard of proof to be met by employee who shall be sending dozens if not hundreds application for work, attending interviews etc.
In A Waiter v A Café (ADJ00019396), the Complainants employment was terminated due to his alleged breach of company policies as well as previous disciplinary issues. While the WRC found in favour of the Complainant in a determination of unfair dismissal, the Adjudicator was not convinced that his efforts to mitigate loss had reached the required level. This failure to mitigate sufficiently was taken into account in a reduction of damages awarded. This employee was awarded €3,200 compensation for employer breach of own disciplinary procedure. We do not know the details but it is possibly equivalent of two months wages. Therefore the Adjudicator was not impressed by the Complainant efforts to secure new employment.