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Recent EAT Decisions

DATE: 22.06.2011




O'Carroll V Sovereign Security Limited (UD1131/2009)
Subject: Retirement Age/ Fixed Term contract

The claimant commenced employment as a security officer four months before he attained the age of 61. He signed a contract of employment which had no mandatory retirement age. The respondent stated that the company originally had a retirement age of 65 which had been increased to 66 but that they had no retirement policy.

The claimant, with the knowledge of the respondent, secured the necessary licence to continue to work as a security guard beyond the age of 65. Around that time his hours of work were being reduced and, in resisting this move, the claimant applied to the Labour Relations Commission. In early 2008 he sustained injury during the course of his employment and required medical treatment. The respondent claimed that it was unaware of the claimant’s age until this time. The respondent purported to force the claimant’s retirement due to what was argued to be a mandatory retirement age of 66. Following an admission of some shortcomings in its procedure, the respondent offered the claimant an 11 month fixed-term contract with reduced hours and reduced pay conditional on him withdrawing his complaint to the Labour Relations Commission. The claimant resigned and claimed constructive dismissal.

The Tribunal stated that in a claim of constructive dismissal under Section 1 of the Unfair Dismissals Acts 1977 - 2007, a very high burden of proof lies with the claimant. The legal test to be applied is “an and or test”. In order to establish whether the termination was a reasonable one, the Tribunal must firstly look at the contract of employment to establish a significant breach going to the root of the contract. If the Tribunal is not satisfied that there has been a significant breach of contract, it can examine the conduct of both parties; and look at the circumstances surrounding the termination.

The Tribunal held that the compulsory imposition of a fixed-term contract on the claimant after six years’ continuous employment had the effect of seriously diminishing the claimant’s legal rights and was a significant breach going to the root of the contract. The Tribunal found in favour of the claimant and awarded him the sum of €25,000.00 under the Unfair Dismissals Acts, 1977 to 2007.

O’Callaghan v College Freight Ltd t/a Target Express Ireland (UD1200/2009)
Subject: Serious Misconduct

The claimant in this case was dismissed on foot of a failure to follow a recommended safety procedure. The claimant commenced work in February 2005 and there were no difficulties until 22 October 2008, when the claimant left the keys in the delivery truck while making a delivery and the truck was stolen. The claimant had received training in November 2007 in relation to the company’s operational procedures, where vehicle security was highlighted as of paramount importance. The company decided to dismiss the claimant based on the seriousness of leaving the keys in the vehicle. The vehicle was later recovered but goods worth €3,000 had been stolen. The claimant appealed the decision to dismiss him through an internal appeals procedure, but it was upheld.

The Tribunal held that the seriousness of the misconduct must be measured in the context of the employee’s act and not just in the context of its consequences for the employer. The reasons for an act must be considered and put into the context of the employment and the employee’s responsibility. The Tribunal took note of the fact that the claimant had never received any prior warnings with regard to misconduct.

The Tribunal emphasised its role as assessing whether or not the decision to dismiss was within the band of responses which a reasonable employer might be expected to take having regard to the particular circumstances. The Tribunal concluded that a reasonable employer would not have dismissed the claimant for such an act of misconduct, serious though it was, in light of the claimant’s unblemished record. The penalty of dismissal was found to be disproportionate to the misconduct, and considering the claimant’s own contribution to his dismissal, compensation of €26,500 was awarded to the claimant.

Subject: Waiver of Right to Bring Claim

Prior to the termination of the claimant’s employment, he signed a waiver/declaration barring him from bringing any claims (with the exception of personal injury claims) upon accepting his redundancy package. The claimant argued that he signed up to the terms of the agreement out of fear that he would lose his job without securing some or all of those payments. He claimed that he was threatened a number of times that his ex-gratia payment would be taken away in the event he did not agree to the termination package. The claimant also argued that he was not given adequate notice of the content of the declaration; that he was not advised to seek appropriate independent advice; and that he was placed under duress to sign the declaration at a time of personal emotional vulnerability.

The respondent company contended that the claimant was kept appraised of the process up to his cessation and had received appropriate advice prior to accepting the contents of the letter. The Tribunal heard evidence that the claimant was a member of SIPTU and it was from it, as well as from company sources, that he obtained his information and advices.

The Tribunal was satisfied that the claimant’s union was well placed to give appropriate advice to him in relation to the redundancy. There was no evidence that the respondent put any pressure on the claimant to sign the agreement even though he may have found the whole process traumatic. For these reasons, the Tribunal held that it had no jurisdiction to hear the matter.


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