Author: Terry Gorry

Creche Worker’s Week Cut from 5 Days to 3-Wins €10,000 for Constructive Dismissal

A crèche worker (child minder), whose working week was cut from 5 days to 3 due to the financial pressure on the employer, wins €10,000 for constructive dismissal.

Creche worker since 2006-employer wanted to introduce 10% pay cut-claimant refused to sign letter consenting to wage cut-claimant’s working week cut to 3 days-40% reduction in pay-her contract stated “normal working week will be 5 days”-claimant certified unfit to work by her doctor-eventually resigned-did not invoke grievance procedure-Tribunal to look at whether there was a “significant breach of the employment contract”-Tribunal finds that “employee was singled out following refusal to sign letter”-that employer then unilaterally altered the terms and conditions of the employment contract-reduced working week from 5 days to 3-reduced wages by 40%-Tribunal found that the claimant was constructively dismissed.

Decision published: 19th June, 2013

Read the full decision here.

Unfair Selection of Warehouse Operative for Redundancy-Awarded Compensation of €8,000

A warehouse operative working in Waterford for kitchen seller is awarded €8,000 for ‘completely deficient procedures’ in implementing redundancy.

Respondent company sells kitchens throughout the country-claimant a warehouse operative in Waterford branch-poor sales in Waterford branch-claimant’s position selected for redundancy-company invited applications for voluntary redundancy or career break-claimant offered position in Limerick-declined for ‘family reasons’-claimant signed RP50 and accepted redundancy cheque-advised of right to appeal-General Manager claimed company policy re redundancy was adhered to-no need to compile a redundancy matrix as warehouse was closing fully-another employee retained to complete an order-no evidence of financial figures for Waterford branch-claimant received verbal warning for an error he made-claimant claimed that warehouse did not close immediately-employees still working there-he could have been trained for alternative positions-Tribunal accepted that company was suffering losses-however, procedures for dismissal were ‘completely deficient’-awarded €8,000 compensation under Unfair Dismissals Acts, 1977 to 2007-redundancy sum already paid to be offset against the €8,000.

Date of decision: 29th May, 2013

Read full decision here

Abrekbabra Supervisor Awarded €9,500 For Unfair Dismissal-‘Forgot to Pay’ for Food

An Abrekebabra supervisor, accused of consuming food on the premises without any record of the food having been purchased, wins €9,500 for unfair dismissal.

Supervisor since 2006-given a number of verbal warnings-CCTV footage showing him consuming food-no record of payment-supervisor claimed he ‘forgot to pay’-attempted to pay next day-breach of trust-one month’s notice and dismissed-no letter to claimant confirming dismissal-supervisor denied receiving verbal warnings-agreed received written warning-direct conflict of evidence between parties-‘lack of proper procedures’ in effecting dismissal-no formal invitation to dismissal meeting-no investigation-no letter to claimant confirming dismissal-no opportunity to appeal-did not receive full notice entitlement-unfairly dismissed.

 

For claimant: Himself

For respondent: company director

Decision published: 28th May, 2013

Read full decision here

Mechanic Fails in Constructive Dismissal Claim-Burden of Proof ‘Very High’

A mechanic who left work because of ‘work related stress’ fails in his case for constructive dismissal; EAT says the ‘burden of proof very high’.

Constructive dismissal cases are difficult to win because the burden of proof is on the employee to prove that she had no other option but to resign due to the unreasonableness of the employer.

The January, 2013 decision of the Employment Appeals Tribunal in the case of Daniel O’Gorman v Glen Tyre Company Limited illustrates this.

In this case Mr. O’Gorman was a mechanic who had gone on sick leave in May, 2010 and did not return to work. He resigned from his position in September, 2010.

Mr. O’Gorman brought a case for constructive dismissal.

Decision of EAT

The Employment Appeals Tribunal in its decision referred to the burden of proof on the employee as being a ‘very high one’. It held that the employee must prove that his resignation was not voluntary.

The EAT must look at the contract and decide whether there has been a significant breach of the employment contract going to the root of the contract.

If there has not been a breach by the employer the EAT will then look at the conduct of the employer and employee and decide on the ‘reasonableness’ of the decision of the employee to resign.

The claim by the claimant for constructive dismissal fell under three headings:

  1. The excessive workload placed on him
  2. Exclusion in the workplace, for example at lunch breaks
  3. Being bullied and harassed in the workplace.

Mr. O’Gorman suffered from Asperger Syndrome.

Mr. O’Gorman left work in May, 2010 and did not return due to stress, according to his parents and GP who stated it was work related. However, the employer stated that he did not know this until he received the 2nd medical certificate.

The EAT held that it is crucial in a constructive dismissal case that the employee fully informs the employer of the complaints being made against him and gives the employer the opportunity to resolve the problems.

Interestingly, the EAT in this held that the parents of the claimant had a duty to let the employer know of the issues.

The EAT found no significant breach of contract going to the root of the contract which would have prevented the employee from carrying out his duties as per the contract.

The EAT then examined the conduct of both parties and found that the decision of the employee to resign was not a reasonable one.

The claimant’s claim failed.

For claimant: Cathy McGrady BL instructed by Sharon Devine, Brian D O’Brien & Co. Solicitors, Swords, Co. Dublin

For respondent: Patrick Reidy, Reidy Stafford Solicitors, Newbridge, Co. Kildare

Decision published: Jan. 2013

Read the full decision here.

Security Officer Denied Taking Money from Shopping Centre Pay Stations-Wins €46,800 for Unfair Dismissal

A security officer in a shopping centre, who denies misappropriating money from shopping centre pay stations, wins his case for unfair dismissal and is awarded €46,800.

Claimant was security officer employed by property management company-manager carried out investigation into alleged misappropriation of funds-manager satisfied that findings merited referral onwards for possible disciplinary action-referred case to company director-claimant categorically denied taking money-respondent in liquidation and failed to appear-Tribunal not satisfied claimant misappropriated money-respondent did not prove dismissal was fair-uncontested evidence of claimant-unfair dismissal claim succeeds-awarded €46,800 and four weeks’ pay under Minimum Notice and Terms of Employment Acts.

For claimant: Elaine Morgan BL instructed by David Burke & Co solicitors

For respondent: Derek Dunne BL instructed by McCullagh Higgins & Co. Solicitors on 9th July 2012

(No appearance by or on behalf of respondent on 15th November, 2012)

Decision published: 12th April, 2013

Read Full Decision Here

Unfair Selection for Redundancy Claim Fails-€10,000 Ex Gratia Payment Offer Rejected

The claimant, an administrative training and development co-ordinator, fails in her claim for unfair dismissal as a result of her redundancy.

Employer, large multi-national engineering company-claimant responsible for administrative training and development co-ordinator role lending support to apprentice electricians employed by the company-organised internal executive courses in leadership management and skills enhancement-downturn in construction industry-large number of redundancies-claimant made redundant-company then advertised for 2 corporate human resource positions-company claimed claimant did not have necessary experience or requirements-paid her statutory redundancy and one month’s notice-also offered €10,000 ex-gratia payment-claimant declined to accept-claimant got massive shock at meeting advising she was to be made redundant-became emotional and did not speak at meeting-not allowed to retrain or accept another role-needed time to think about €10,000 offer-required to sign a waiver form-EAT had enormous sympathy for claimant-excellent worker-however, genuine company restructuring-genuine redundancy-no unfair selection for redundancy-respectful response by company to cross examination during EAT hearing-claimant traumatised by redundancy-may have affected her decision to accept ex gratia payment-claim under unfair dismissals acts fails-received her statutory redundancy entitlement-received her notice of termination-minimum notice and terms of employment acts claim fails also.

For claimant: Elaine Power BL, instructed by McMahon English solicitors

For respondent: Brian Gageby BL, instructed by William Fry solicitors

Decision published: 12th April, 2013

Read Full EAT decision here

FAS Community Employment Employee Wins Unfair Dismissal Case and is Reinstated

A FAS community employment scheme worker wins her unfair dismissal case where her fixed term contract was not renewed.

Employee with Council as part of FAS Community Employment Scheme-fixed term contracts-2 fixed term contracts-scheme ended-11 people had their contract renewed-claimant’s contract not renewed-dismissed on recommendation of line manager-EAT finds unfair dismissal-two further years’ work available-not offered to claimant-no reason given-claimant did not seek reason on dismissal-Tribunal directs reinstatement for the remaining two years.

For Claimant: In person

For Respondent: In person

Date of Decision: 10th April, 2013

Read Full Decision Here

Employer Loses Appeal against Rights Commissioner Award of €8,000 Wages Due to Employee

An employer loses his appeal against the decision of a Rights Commissioner to award €8,000 compensation to an employee in respect of wages under the company sick pay scheme due to the appeal being outside the 6 weeks allowed.

Rights Commissioner decision 5th June, 2010-employer lodged appeal dated 22nd July, 2010-only received by the Employment Appeals Tribunal on 4th August, 2011-Payment of Wages Act 1991-appeals to be initiated within 6 weeks of decision-appeal not lodged in time-Tribunal has no discretion to hear case-Rights Commissioner decision affirmed-€8,000 awarded to employee in respect of wages due under company sick pay scheme.

For Employer: Terry Cummins, IBEC

For Employee: Brendan Byrne, UNITE

Date of decision: 10th April, 2013

Read Full Decision Here

Secondary School Secretary Awarded €9,850 for Unfair Dismissal

A secondary school secretary is awarded €9,850 for unfair dismissal due to the employer’s “highly questionable” investigation into allegations.

Secondary school employer-claimant was full time secretary-number of versions of employment contract-claimant’s role to record and lodge school income-school’s power supply disconnected due to unpaid bills-unpaid newspaper-Principal became concerned about unpaid bills and stale cheques-issued warning to secretary-claimant granted leave of absence by Chairperson of Board of Management-claimant went to Australia-audit uncovered “unexplained and unaccountable absence of money” from school accounts-Principal wrote to secretary about “considerable discrepancies to accounts”-secretary invited to attend meeting-suspended secretary on full pay-secretary’s mother phoned principal-meeting attended by secretary, principal, accountant & others-disciplinary procedures invoked against secretary-another meeting requested-claimant denied stealing money from school-claimant had no access to office records to challenge allegations-EAT found unfair dismissal-accepted that there was discrepancies in school monies-audit found shortfall of €12,000 in school monies-legitimate questions to be asked-school not entitled to single out secretary-other people had access to the monies-accounting measures adopted by all members of staff ‘very slack’-was dismissal ‘reasonable’?-quality and extent of school’s investigation ‘highly questionable’-secretary had some responsibility-respondent failed to engage with process-enquiry flawed however-decision to dismiss not reasonable given it was based on flawed enquiry-€9,850 awarded to claimant for unfair dismissal.

For Claimant: Vernon Hegarty, SIPTU

For Respondent: Anne Hickey, Solicitor, Wine Street, Sligo

Date of Decision: 9th April, 2013

Read full decision here

Child Care Worker Dismissed for “Gross Misconduct” Awarded €19,000 for Unfair Dismissal

A child care worker who was dismissed for gross misconduct was awarded €19,000 because of “lack of proportionality” and “procedural unfairness”.

Child care worker in creche-dismissed for “gross misconduct”-failed to observe incident involving bullying-2 older boys-sock in mouth-father wanted investigation-claimant might have been on a break-did not see incident-dismissed with immediate effect-boy’s father put pressure on manager-claimant was on a break for 15 minutes-creche procedures not followed-child put at risk unnecessarily-manager did not inform claimant that meeting was disciplinary-dismissed for bringing crèche into disrepute-claimant not advised of right to appeal-manager over-ruled company disciplinary policy-child’s life had been in danger-claimant shocked to hear what happened-did not realize her job was in jeopardy-had not worked since dismissal-dismissal procedurally unfair-lacked proportionality-awarded €19,000 for unfair dismissal.

Date of decision: 21st November, 2012

For claimant: Eugene Hill BL instructed by Mercy Law Resource Centre

For Respondent: Donna Reilly BL instructed by Vivienne Matthews BL Das Group

Read full decision here