Sunday, 13th October 2019

Compensation

Employee dismissed for nonconsensual use of premises awarded €25k

Unfair Dismissal 

A recent Labour Court recommendation where a former employee was awarded €25,000 in compensation for Unfair Dismissal illustrates why employers should make sure to attend any hearings that involve them.

Unfair Dismissal

The case in question concerns a former employee's claim that he was Unfairly Dismissed after he used the Company premises without the permission of his employer.

In accordance with section 20(1) of the Industrial Relations Act, 1969, this particular worker referred his case to the Labour Court in June of 2013. He agreed to be bound by the Recommendation of the Labour Court.

A Labour Court hearing took place in February of this year; however, the Company declined to attend the hearing and did not appoint any representation.

This meant that the evidence submitted was solely that of the Claimant. The Court found it 'regrettable' that the employer declined to attend the hearing in any form and found it disappointing that the Company did not avail of its opportunity to present the version of events leading to this dispute from their perspective.

The former employee accepted that he had used the Company's premises without prior consent. However, he did not accept that his behaviour constituted gross misconduct and, consequently, he contested the gravity of the punishment. The employee argued that his dismissal was disproportionate to his actions and maintained that the dismissal was unfair.

Unfair DismissalBased on the uncontested submissions of the employee (the Claimant) the Court was satisfied that the penalty of dismissal was inconsistent with the actions of the employee and the Court determined that a warning would have been more appropriate in the circumstances.

According to the Court, the dismissal was both procedurally and substantially unfair and so the Court recommended that the Company pay compensation in the amount of €25,000 to their former employee in respect of his Unfair Dismissal. This figure was to be in full and final settlement.

Constructive Dismissal

The difference between Constructive and Unfair Dismissal:

Constructive Dismissal is the term used when an employee terminates his or her employment based on the conduct of the employer. Unfair Dismissal is slightly different in that unfair dismissal cases arise when the employee feels as though he or she has been dismissed by the employer on unfair grounds.

Unlike in an unfair dismissals case where dismissal is deemed to be unfair unless proven otherwise and justified by the employer - in constructive dismissal instances the onus is on the employee to prove that their resignation was based on poor employer conduct. Employees claim constructive dismissal/unfair dismissal under the Unfair Dismissals Acts 1977-2007.

If it is found that the employee has been unfairly dismissed he or she could either be awarded compensation for the loss of earnings suffered by the dismissal or could be placed back in their original role – However, this is not common practice due to the expected tension or strained relationship between employer/employee and due to the amount of time that is likely to have passed between the termination of the employment contract and the resolution of the case.

Typically, an employee needs to have accrued 52 weeks’ continuous service with the employer. However, it is crucial for the employer to bear in mind that 52 weeks’ continuous service is not always an essential element. Employees dismissed for trade union membership or because they are pregnant/exercise their right to parental leave, for instance, do not have to have accrued 12 months’ continuous service prior to claiming unfair/constructive dismissal under the Acts.

Labour Court

If the employer acts unreasonably towards the employee or breaches the contract of employment (or demonstrates that they no longer intend to adhere to the terms and conditions outlined therein) then the employer is at risk of a claim under the Acts.

It is important for employers to be aware of everything that occurs in their workplace as even other employees’ behaviour that goes unchecked by the employer could contribute to a constructive dismissal case.

It is also very important for employers to attend Labour Court hearings if they are scheduled so they can give evidence in support of their decision. Also, the Court can look less favourably upon employers who fail to attend and can award higher levels of compensation to the employee.

Unfair Dismissal

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Employee unfairly dismissed for improper internet use awarded €7,000.

Why is having an internet use/social media policy so important? On 17th December 2013, the Employment Appeals Tribunal in Mullingar heard a claim that an employee had been unfairly dismissed by her employer, a wholesale electrical company that employed approximately 36 employees.

Unfair Dismissal, CompensationThe individual was employed as a Marketing Assistant from 1 November 2010. With the permission of the employer, the employee worked a three day week for the first year as she was completing a graphic design course simultaneously. The employer was happy for the employee to begin working a 5 day week on 1st November 2011.  

 

 The Managing Director claimed that both he and the Office Manager had warned the claimant on a number of occasions about her non-work related internet use. According to the Managing Director, these alleged warnings were of a verbal nature. The Managing Director gave evidence to the Tribunal that, on 16 January 2012, he observed the claimant on a social media site and called her to his office before proceeding to dismiss her from her employment with the Company.

The Managing Director believed that the actions of the claimant amounted to a waste of the Company’s time and resources and her actions constituted gross misconduct.

It became apparent that the Company did not have a formal internet use/social media policy in place while the claimant was employed. It also came to light that the employee did not receive a contract of employment nor did she receive a copy of the Company’s disciplinary procedures.

Unfair Dismissal, Internet Use Policy

 

The claimant stated that she completed all tasks that were assigned to her. She was not using the internet in a secretive way (she gave evidence that her computer monitor was in full view of the office) and she did not believe that she was doing anything wrong when she was online.

The claimant testified that she was not given a job description detailing the tasks that were assigned to her. The former employee explained that, if she was aware of the company’s policy around internet use/social media then she would have abided by it.

The claimant stated that she regularly asked for more assignments to complete during her work hours but was not provided with enough to occupy all of her working time. The employee explained that she was told in December to “wind down” for the Christmas period when she looked for more work from the Managing Director’s son. The claimant admitted to spending time browsing the internet when she had finished with her work assignments but clarified that she spent the majority of her time on the internet carrying out work related activities.

The claimant gave evidence that she never received any warnings prior to her dismissal.

The Employment Appeals Tribunal considered all of the evidence that was submitted by the claimant and the respondent and concluded that the dismissal of the employee was unfair as, according to the Tribunal, there appears not to have been any valid grounds for the termination.

In addition to this the Tribunal found that the dismissal was lacking any procedural fairness because no investigation or disciplinary process took place.

Contracts of Employment

 

The Tribunal also made note of the fact that the claimant was never provided with a any of the following documents throughout the course of her employment:

  • A contract of employment,

  • Payslips,

  • An internet use/social media policy

  • A copy of the Company’s disciplinary procedures

The claimant received pay for one week’s notice.

The Tribunal found that there was no gross misconduct on the part of the claimant and, consequently, the Tribunal found that the employee was Unfairly Dismissed and awarded her €7,000.00 in compensation under the Unfair Dismissals Acts 1977 to 2007.

 

GUIDE TO CONTRACTS OF EMPLOYMENT

 

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Worker dismissed at probationary period meeting awarded €10k

Labour Court, Unfair Dismissal, ProbationOn 17th September 2013 a former employee of a coach hire company referred his case under Section 20 (1) of the Industrial Relations Act, 1969 to the Labour Court and agreed to be bound by the Recommendations of the Court.

 

The case revolved around the alleged Unfair Dismissal of the claimant at his probationary meeting.

 

 

An employee with less than 12 months’ service cannot avail of the protections offered by the Unfair Dismissals Acts, however, as this particular employee did, employees with less than 12 months’ service can refer a claim under the Industrial Relations Act as the amount of service is irrelevant in these instances.

 

The employee claimed that he was made aware that he was being dismissed at the meeting but stated that no issues about his performance were raised at that time. The employee described how he was denied his right to appeal the decision as his employer either claimed to be “unavailable” or simply “failed to respond” to any correspondence relating to an appeal process.

 

A Labour Court hearing was scheduled for, and took place on, January 10th 2014.

 

The employer, who was notified of the hearing, did not attend and did not appoint any representation to attend on his/her behalf.

 

Given his opportunity to speak, the worker claimed that throughout the course of his probation, he was never told of any issues with his performance. He went on to describe how he was not afforded his right to query why he was dismissed and was not given any opportunity to appeal the decision made by his employers to terminate his employment at that time.

 

As there was no representation on the part of the employer the employee’s claims went uncontested.

 

With the evidence presented to it, the Court decided that the process used in deciding to dismiss the claimant fell short of the standards of fairness that a reasonable employer should exhibit.

 

The Court, satisfied with the evidence of the claimant, ruled that he be compensated in the amount of €10,000. This figure was in full and final settlement of all claims arising from this dismissal.

Award, Unfair Dismissal

 

 

The determination in this case should encourage all employers to ensure that they follow Labour Court approved procedures with extreme care when dismissing an employee - even when doing so during a probationary period.

 

Employers should note from this case that all employees, including those who are dismissed during probation, are entitled to be afforded details of the reasons why they are being let go and should also be offered the right to appeal the decision to terminate.

 

As should be the case all employees, even employees on probation, are entitled to natural justice.

 

Probation Performance Assessment Form

 

 

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HSE costs to total €400k on conclusion of Constructive Dismissal case

Constructive Dismissal is the term used when an Employee terminates his or her employment based on the conduct of the Employer. Unlike in an Unfair Dismissals case where the dismissal is deemed to be unfair unless proven otherwise and justified by the Employer - in Constructive Dismissal instances the onus is on the Employee to prove that their resignation was based on poor Employer conduct.

Constructive Dismissal

 

If it is found that the Employee has been Unfairly or Constructively Dismissed then he or she could either be awarded compensation for the loss of earnings suffered as a result of the termination of employment or could be placed back in their original role. Reinstatement is not common practice (particularly in Constructive Dismissal cases) due to the expected tension/ strained relationship between the Employer and the former Employee and due to the amount of time that is likely to have lapsed between the termination of the employment and the resolution of the case. Often the Employee has entered in to a new employment contract elsewhere.

It is important for Employers to be aware of everything that occurs in their workplace as even other Employees’ behaviour that goes unchecked by the Employer could contribute to a Constructive Dismissal case.

Constructive Dismissal scenarios can be extremely costly to employers as was proven in a recent Health Service Executive (HSE) case.

The claimant in this case was the Head of Ambulance Services for the HSE. The claimant, who lives in Derry, inappropriately used a HSE fuel card for private purposes and, while this would likely have seen him disciplined had he remained in employment, the claimant discovered that he had been found guilty at an early stage and, fearing dismissal/a Garda inquiry, he resigned from his position in 2010.

Constructive Dismissal, Employment Appeals Tribunal

The claimant’s employer (the HSE) found that he was guilty without first giving him the opportunity to defend himself which meant that the process was seriously defective. The HSE exposed itself with this fundamental flaw in its process and, after his resignation in March 2010; the former Head of Ambulance Services claimed that he had been Constructively Dismissed.

The Employment Appeals Tribunal found that the claimant, who resigned from his approximately €100,000 per year role out of anxiety after learning that he was found guilty of the fuel card offence, had in fact been Constructively Dismissed. However, the Tribunal did not award any financial compensation because of the nature of the employee’s actions prior to his departure.

The claimant appealed the decision not to compensate and, in December 2013, the Circuit Civil Court awarded €250,000 (minus €50,000 for the misuse of the HSE fuel card) because of the catastrophic affect that the Constructive Dismissal had on the claimant’s career.

On the 22nd January 2014, the Health Service Executive was dealt a further blow when the Circuit Civil Court ordered it to pay the legal costs. The HSE is liable for an estimated €200,000 in legal costs that built up during the course of the Court and Employment Appeals Tribunal Hearings.

Constructive Dismissal

Redundancy Procedures
 

 

 

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Equality Officer Awards €40,000 in Gender Discrimination Case

Equality Officer Awards €40,000 to Anne Delaney in response to complaint made against the Irish Prison Service.

Discrimination, Compensation

Anne Delaney took a case against the Irish Prison Service because she was discriminated against by her employer on the grounds of gender in relation to promotion, training and conditions of employment.

In 2011, Ms. Delaney referred a complaint against her employer under the Employment Equality Acts 1998 to 2008 to the Equality Tribunal. She alleged that the Irish Prison Service discriminated against her on grounds of gender when she applied for numerous posts over several years. Junior or less suitable/less experienced male candidates were appointed to the roles ahead of Ms. Delaney on all occasions.

 

Gender Discrimination, Equality Tribunal

 

After reviewing all of the submitted evidence, the Equality Officer was satisfied that the complainant, Ms. Delaney, had established a link between the incidents that she complained about. The Equality Officer considered the incidents as separate manifestations of the same disposition to discriminate. The Equality Officer criticised the lack of transparency stating that she was unsure of the fairness of the selection procedures that were followed. There were no marking schemes available for review and no records to help her to assess what grounds the hiring decisions were based on. It also became apparent that the same senior personnel were involved in the selection process for all posts.

Gender Discrimination, Compensation

The Equality Officer’s investigation of the complaint concluded that the Irish Prison Service discriminated against Ms. Delaney on gender grounds when she applied for a gym instructor course in 2001, when she applied for an Operational Support Group post in 2009, when she was asked to step down from the post of Acting ACO in August 2010 and again in September 2010 when she applied for an allowance carrying post in the Detail Office.

As a result of her findings the Equality Officer tasked with making the decision on the case ordered that Ms. Delaney be appointed to the position of Acting ACO, and placed on the permanent roster for that position. The Equality Officer backdated this appointment to the 5th of August 2010 and ensured that all consequential employment rights and entitlements, including remuneration and recognition of service, were upheld.

 

Gender Discrimination resized 600The Equality Officer found that Ms. Delaney had been subjected to discrimination on the grounds of her gender on numerous occasions during her career with the Irish Prison Service. The Equality Officer considered a compensatory award of €40,000 to be just and equitable in response to the distress suffered by Ms. Delaney as a result of the discrimination that she suffered. The Equality Officer felt as though €40,000 was a proportionate, effective and dissuasive sum to award. That component of the award was not in the form of remuneration and, consequently, was not subject to the PAYE/PRSI Code.

 

The Equality Officer found that the Irish Prison Service’s selection process for the allowance carrying post in the Detail Office (a post applied for by Ms. Delaney in September 2010) was deficient and non-compliant with Equality Legislation. The Equality Officer ordered that the Irish Prison Service ensure that a fair selection process be adopted in all future selections. She also ordered that the selection panel must be trained in the process and that it must set down the criteria in writing before embarking on the selection process. The Equality Officer also ordered that a marking scheme must be adopted and that the weighting should be given under each element. She also directed that notes must be retained for future reference.

DEC-E2013-155

DECISION NO: DEC-E/2013/155

Anne Delaney Vs Irish Prison Service

FILE NO: EE/2011/292

DATE OF ISSUE: 19th of November, 2013

 

Letu0026#39u003Bs Chat

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Constructive Dismissal leads to €9,000 Award for Former Employee

Constructive Dismissal is the term used when an Employee terminates his or her employment based on the conduct of the Employer. Unlike in an Unfair Dismissals case where the dismissal is deemed to be unfair unless proven otherwise and justified by the Employer - in Constructive Dismissal instances the onus is on the Employee to prove that their resignation was based on poor Employer conduct.

Constructive Dismissal

If it is found that the Employee has been Unfairly or Constructively Dismissed then he or she could either be awarded compensation for the loss of earnings suffered as a result of the termination of employment or could be placed back in their original role. Reinstatement is not common practice (particularly in Constructive Dismissal cases) due to the expected tension/ strained relationship between the Employer and the former Employee and due to the amount of time that is likely to have lapsed between the termination of the employment contract and the resolution of the case. The Employee has often entered in to a new employment contract elsewhere.

It is important for Employers to be aware of everything that occurs in their workplace as even other Employees’ behaviour that goes unchecked by the Employer could contribute to a Constructive Dismissal case. These can be extremely costly.

Here is an example of a case where the Employee (the Claimant) was awarded €9,000 after the Employment Appeals Tribunal found that he had been Constructively Dismissed.

The Claimant in this case started working for the Respondent in 2007. There were no issues until late 2010 when a Technician was promoted to Technical Manager. This immediately created a hostile environment and relationships became strained. The Claimant experienced problematic scenarios in the workplace as a result of the Technical Manager’s temper on numerous occasions.

Constructive Dismissal

The final occurrence led to the termination of employment for the Claimant. On the Claimant’s final day working for the Respondent the Technical Manager, a physically intimidating individual, entered the shop where the Claimant and his colleague were working. The Technical Manager lifted the Claimant up from his chair by his arm and proceeded to shout at him. The Claimant, who was frightened, attempted to avoid confrontation and turned away. The Technical Manager again grabbed the Claimant, this time by his shoulder, and spun him around while demanding that he not complain. The Claimant said that he didn’t complain, he just answered questions. The Claimant was pulled closer and then told to leave by the Technical Manager.

The Claimant did as he was told but the Technical Manager proceeded to follow him, grabbing him by the neck. At this stage the Claimant was in a state of shock and told the Technical Manager that he was simply working his way through college. The Claimant’s shirt was torn, there were marks on his neck and his hand was bruised after the incident.

After the event, the Claimant called a Senior Manager and told him what had happened. The Claimant returned his keys to the shop and arranged to collect his jacket from his colleague. A series of meetings with the shop Manager and other Senior Managers were arranged. The Claimant was offered a transfer to another shop, however, this other shop was located far
from the Claimant’s home and, therefore, was not a suitable alternative – he could not accept this transfer proposal.

 

Employment Appeals Tribunal

 

As a result of the meetings the Claimant was given a written warning, however, as no arrangements were made for him to return to a safe workplace he had no option but to resign.

The Claimant established loss for the Tribunal and it was determined that the Claimant was Constructively Dismissed. The Respondent failed in its responsibility to the Claimant by not responding adequately.

Under the Unfair Dismissals Acts, 1977 to 2007, the Claimant was awarded €9,000 as compensation for being Constructively Dismissed.

 

The appeal was heard at Dublin on 14th October 2013. Case Number: UD669/2012.

 

 

 

 

 

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Employment Appeals Tribunal Awards €8,500 to Former Employee

Unfair Selection for Redundancy Claim succeeds leading the Employment Appeals Tribunal to award €8,500 in compensation. After hearing statements from the former employee (the claimant) and the respondent (a car dealership), the Tribunal was satisfied that a redundancy situation existed, however, the Tribunal concluded that the process was defective and, therefore, determined that the claimant was entitled to a significant award.

 

Employment Legislation

 

The respondent failed to consult the claimant about his redundancy and did not appear to properly consider alternatives before finalising the decision to make the employee redundant – For instance, the employee could have suggested that he work a shorter working week/reduced hours or that he take a reduction in pay. The respondent is obliged to consider these suggestions over a period of consultation, however, the claimant was not afforded this entitlement and was only told the reasons behind the decision to select him for redundancy after asking for these.

 

Redundancy

 

 

The Tribunal found that the claim under the Unfair Dismissals Acts, 1977 to 2007 was justified which is why the claimant walked away with €8,500. This sum was in addition to the redundancy lump sum that he had received when the redundancy first occurred.

 

 

Details of this case can be found on the Workplace Relations Website (Case No. UD450/2012) - http://www.workplacerelations.ie/en/Cases/2013/November/UD450_2012.html

 

This case stresses the importance of following the approved procedures when it comes to redundancy. Not only do you have to prove that a redundancy is required in order to keep the business viable – you must also be able to justify why you made one employee redundant over another.

 

The employer must be able to show that the redundancy process was not flawed. Employers should use a Selection Matrix so he or she cannot be accused of subjectivity (which is what the employee claimed in the above-mentioned case). The employer is obliged to invite the employee to a meeting making them aware that it concerns redundancy. Employers are obliged to give the employee notice of the redundancy and the reasons why the redundancy scenario came about along with why they were selected.

 

 

Redundancy

The employer should have asked the employee in question if they could think of any alternatives to the redundancy and the employer should have allowed for a period of consultation of at least three days before making their final decision. It is also important to allow employees to be accompanied to meetings like this.

 

Redundancy Procedures

 

 

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Average Award in Unfair Dismissal Cases on the Rise

According to the Employment Appeals Tribunal Annual Report 2011 the number of cases annually referred to the Tribunal increased three fold during the Irish economic recession (to a high of 9,458 cases in 2009).

The average number of annual referrals before the recession had plateaued at approximately 3,500.

Statistics for Unfair Dismissals cases:

The average compensation awarded by the Tribunal in Unfair Dismissal cases has risen dramatically in recent years.

For the year ended 31st December 2009 the average compensation in Unfair Dismissals cases was €11,476. In 2010 it was €16,064.05 and in 2011 it was €18,047.85.

This is a trend that employers really need to pay attention to as large sums of money like this can seriously damage a company.

It is crucial to stay up-to-date with employment legislation and to follow appropriate procedures when dealing with employee matters.

 

Employment Appeals Tribunal, EAT, Compensation

 

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Former Employee Awarded €58k for Unfair Dismissal

Unfair Dismissal, Unfairly Dismissed

 

On the basis of a decline in sales within an exhaust business the Finance Director decided that a redundancy was required. There were 4 employees who generated sales for the company. The Finance Director believed the company only required 3 people to perform the sales roles.

The 4 individuals were informed that their positions were at risk and they were given a copy of the selection matrix that was used to determine who would be made redundant. The 4 employees all agreed that the matrix (after a slight amendment suggested by one of the employees concerned) was a fair and equitable way of assessing them. The sales director scored the matrices. The employee who scored the lowest was informed that he was to be made redundant.

The employee who was made redundant contended that the selection process had not been fairly operated. The Finance Director had not raised the issue of the exhaust centre’s declining profitability with him before deciding to make someone redundant. He was not told his sales were down.

The employee who was made redundant was at a disadvantage because the 3 other employees had a closer affinity with one another than with him and therefore he scored lower on team work.

While the employee who was made redundant did not object to the selection matrix – he did, however, feel as though it had not been scored fairly. His extensive product knowledge was not taken into account. Also not taken into account was his City & Guilds qualification.

 

Unfairly dismissed, unfair dismissal, fired

After his redundancy the employee learned that the company had a new operation in Cork. A former employee was recruited to manage the new operation. The claimant was not told about the new operation or asked to apply for any of the jobs there.

The claimant established loss for the Tribunal.

The Tribunal carefully considered all evidence in the case. It was clear that management did not speak to the employee when they determined that his position was not profitable.

When it came to the process of selecting an employee for redundancy, the method chosen put the employee at a distinct disadvantage.

The Tribunal found that the selection process was unfair and therefore the dismissal of the claimant was unfair. The claim under the Unfair Dismissals Acts 1977 to 2007 succeeded and the claimant was awarded the sum of €58,000.00 in addition to any payment he had already received.

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