In Brief: Case Law Special (January 2019)Posted in : Supplementary Articles ROI on 4 February 2019
This month’s 'In Brief ' is a common law catch up. It can be hard to keep up-to-date with case law developments – it’s all too easy to miss an important decision that has major implications for employers and employees. For this very reason we decided to compile a list of some of the most interesting employment cases that have been decided in the last few months.
If you want to know more about any of the cases, each has a link to a more detailed case review on the Irish Employment Law Hub, where you will also find a further link to the full judgment online.
The decisions highlighted in this email cover a wide range of employment issues, including unfair dismissal; investigations; disciplinary and grievance procedures; procedural fairness; fitness to work; equal pay; age discrimination; secondments and constructive dismissal.
In this case the Labour Court dismissed a claim of unfair dismissal as the complainant did not have sufficient continuous service to entitle him to bring a claim, however, the respondent was ordered to pay €200 as it failed to furnish him with a written statement of particulars upon commencement.
Key Takeaway – Complainants should ensure they have at least 12 months’ continuous service to bring a claim for unfair dismissal. Respondent employers should furnish employees with a written statement of terms without delay in order to avoid falling foul of the time limits set out in the Employment (Miscellaneous Provisions) Act 2018, due to commence on the 1st March 2019. Under the Act an employer must furnish an employee with 5 core terms within 5 days of commencement. If an employee has been employed for 1 month and an employer fails to furnish the statement of core terms within this timeframe, an employee may then bring a claim to the WRC. Failure to provide the information within one month can also give rise to a criminal offence! The remaining terms of employment are to be furnished within 2 months.
This case concerned an incident with an airline passenger. The complainant, a member of the check-in staff, argued the respondent company had failed to adequately investigate the incident and was of the opinion it had failed in its duty of care towards her. The Court had to consider whether the complaint was well-founded and whether the investigation and grievance procedures had been followed adequately.
Key Takeaway – Having a robust grievance procedure is extremely important as it affords employers the opportunity to resolve employment disputes early, in an attempt to avert the breakdown of relationships and, ultimately, legal proceedings. Employers should carry out thorough investigations and obtain all the relevant evidence.
This case concerns a remuneration issue which arose between nine drivers who were represented by the respondent union, SIPTU. The Union argued that there was a significant pay gap between the nine drivers. The Court sought to align any discrepancies and held that the drivers on the red circled rate should be stabilised to ensure no further pay drift.
Key Takeaway – Where a pay gap exists owing to percentage-based pay increases, if appropriate, employers should consider stabilising the gap.
In this case the complainant argued there had been a breach of fair procedure in the application of the company disciplinary and dismissal procedures, with specific reference to an incident relating to his beard.
Key Takeaway – Another case highlighting the need for robust grievance procedures and the need to conduct investigations in a timely manner.
In this case the complainant was dismissed for breach of company policies and on the basis that the bond of trust and confidence had broken down after she had left the store with a bottle of wine in her bag which she had not paid for. She was awarded €4,000 as the decision to dismiss her was tainted with procedural unfairness.
Key Takeaway – This case highlights the importance of natural justice and fair procedures. If the complainant has allegedly breached company policies, s/he should have prior access to the relevant documents. A copy should be furnished to him/her in advance of the disciplinary investigation. It is also crucial that the individuals conducting the investigation, disciplinary hearing and any subsequent appeal have comprehensive knowledge of the relevant policy provisions.
The complainant was employed as an advanced paramedic in the National Ambulance Service in 2013. A disciplinary process was undertaken following two incidents which resulted in his dismissal. The Court had to determine whether the procedures used were done so in a fair and balanced fashion. The Court said it was essential to adopt a transparent and fair process within which clear criteria to establish the clinical competence of the claimant could be assessed in order to determine his suitability to return to the role.
Key Takeaway – In this case the Labour Court, once again, stresses the need for transparent and fair disciplinary processes.
In this case the complainant argued that he ought to have been paid a higher rate of pay for the period in which he carried out the duties of a retired colleague. He said he was expected to and did take over the duties and responsibilities. Management within the council disputed his claim, stating that the claimant was never requested to carry out the workload or take on the responsibilities arising from the vacancy.
Key Takeaway – If the employer’s workforce has declined for certain reasons, in this case owing to the government embargo on recruitment and promotion which resulted in over 400 unfilled vacancies, they should be clear with existing staff members what is expected of them in terms of workload. This may require variations to contracts and job specifications. Communication is key in order to avoid ambiguity.
In this case the complainant submitted she suffered discrimination on grounds of age when she was removed from her position within the catering department and placed in an 'internal resource pool’ alleging this was for discriminatory reasons. The respondent informed the Court that the complainant’s employment terms and conditions had not varied in any way nor had her grade changed.
Key Takeaway – This case serves as a useful reminder of the burden of proof in discrimination cases. The complainant must first prove the primary facts upon which s/he relies in advancing a claim of discrimination. If the primary facts are proved, or are admitted, the Court must be satisfied that they are of sufficient significance to raise a presumption of unlawful discrimination. If the first two limbs of this test are satisfied by the complainant the respondent must then prove, as a matter of probability, that the complainant was not subjected to unlawful discrimination.
This case involved the Irish subsidiary of video game giant Electronic Arts. The underlying and main issue in this case was the manner by which the defendant sought to terminate the plaintiff’s employment. The High Court had to determine whether his right to a proper investigatory, disciplinary and appeal process was compromised and whether the plaintiff’s reputation would be irreparably damaged if the purported no-fault termination had been interpreted by prospective employers as equivalent to a disciplinary measure for misconduct.
Key Takeaway – This case considers terminations on a "no-fault basis,” reputational damage that stems from a dismissal, and the need for robust disciplinary procedures. Employers should firmly outline who within their organisation has the authority to terminate an employee’s contract of employment, as in this case the individual who purportedly did so was an employee of the American parent company and not that of the Irish subsidiary.
The complainant went on a fixed term secondment to the Health Service Executive. Upon expiry of the term she sought to formally transfer to HSE claiming she had lost confidence in her original employer owing to the conduct of the Board. The Court held her voluntary transfer did not amount to constructive dismissal as she failed to furnish a letter of resignation and did not communicate her reasons for seeking a transfer, namely the conduct alleged. Notably, the Court highlighted her voluntary transfer was ‘seamless’ and that the terms and conditions on which she was employed (including salary and benefits) had not changed.
Key Takeaway – The complainant failed to tell her employer the reasons for which she sought to transfer, namely, the alleged conduct of the respondent’s board and/or management team towards her. Thus, to strengthen a claim for constructive dismissal you must show you acted reasonably before quitting your job. This involves telling your employer that you have an issue or problem, providing evidence where possible; offering them the chance to rectify the situation; and exhausting any internal procedures. Thereafter you can resign, bring a case for constructive dismissal, and claim that you acted reasonably by virtue of taking all the steps outlined.
The information in this article is provided as part of Legal-Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article.