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News from the EAT and Tribunal determinations in brief
In April, we were informed by the Employment Appeals Tribunal office that there is currently a 48 week wait time for hearings in Dublin. In some areas outside of Dublin, the waiting time is even longer and closer to one year.
In claiming an unfair dismissal, an employee is under a duty to mitigate their loss. This means that an employee should seek to secure an equivalent job as soon as possible after the alleged dismissal. The delay in hearing dates combined with the difficulty of securing suitable alternative positions now means that employers are more likely to be exposed to the maximum penalty of two years’ remuneration. This can be very expensive for an employer where the claimant was employed at a senior executive level, as was illustrated in the recent EAT decision of Mulligan v J2 Global (Ireland) Limited UD 1369/2008 where the EAT awarded the former manager of a multinational software company €175,000 in compensation for what the Tribunal deemed to be a contrived redundancy situation.
Derek Gibbons (claimant) v Essilor Ireland Sales Limited (respondent) [UD 447/2008 MN406/2008]
The claimant had been employed by the respondent and as part of his employment he was required to drive 600-700 miles a week throughout the country. The claimant had a car accident and as a result was on long term sick leave from work. It was the respondent's case that a consultant occupational specialist had seen the claimant and declared him fit for work. Despite this, the claimant had not returned to work.
The respondent hired a private investigator who had observed the claimant driving the respondent's van despite claiming that he was unable to drive. The respondent had felt that they had no option but to dismiss Mr Gibbons as trust had broken down. The claimant contended that his GP had certified him as unfit to work and had felt that the consultant occupational specialist had been dismissive of him. The claimant had felt that the company had ambushed him regarding the investigation into his movements and that his privacy had been invaded.
The EAT found in favour of the claimant, citing that the claimant had adhered to the wishes of the respondent by submitting medical certificates and attending the company doctor. The respondent had not followed fair procedures in dismissing the claimant and the Tribunal awarded the claimant €15,000 under the Unfair Dismissals Acts, 1977 to 2007.
Kamil Drelichowski (claimant) v Heatons (respondent) [UD919/2009]
The claimant had been employed as a retail associate with the respondent and had subsequently been promoted to the position of morning pack supervisor. Owing to the downturn he had been informed that he had been selected for redundancy. The decision to make him redundant was not related to his work performance. Rather, the position of morning pack supervisor was to be made redundant in all Heatons branches. The claimant maintained that he would have preferred to have been offered his previously held position rather than being made redundant.
The EAT outlined that the respondent was entitled to re-organise and re-structure its business but had not taken into account the particular circumstances of the position holders. The EAT believed that the decision was made centrally and applied locally without any attempt to look at what re-structuring options might be open to management. The Tribunal noted that in the respondent’s own contracts of employment, the respondent should have taken such facts as skills and suitability as well as length of service into consideration. The EAT outlined that such a review at each individual workplace was clearly not undertaken. The EAT stated that an employer has to demonstrate that selection for redundancy is done reasonably, and that the respondent had failed to demonstrate reasonableness and fairness in all the circumstances.
Although the claimant sought re-instatement, the Tribunal deemed compensation the more appropriate remedy. The claimant was awarded €10,000 under the Unfair Dismissals Acts, 1977 to 2007.
Patrick Mole (claimant) v Pierse Contracting Limited (respondent) [UD637/2008]
The claimant had been employed as a blocklayer with the respondent. He had been informed that he had been selected for redundancy. The claimant contended that he had been unhappy with the selection criteria and that he should not have been made redundant before the shop stewards who had less service than him. The respondent contended that redundancies were required and the company operated a system of "last in first out" with the exceptions of shop stewards.
The EAT held that the claimant was unfairly selected for redundancy. There was nothing in the claimant's terms and conditions of employment that seniority would not apply in respect of shop stewards who would escape redundancy. The claimant was awarded €22,500 under the Unfair Dismissals Acts, 1977 to 2007.