Stunned.
I was absolutely flummoxed.
I couldn’t believe my luck.
It was the morning of an EAT hearing and I was there early to speak to my client. My client was the employer and the claim against him was brought by a former employee for constructive dismissal.
Constructive dismissal is a difficult case to win. But on this occasion I was worried because the circumstances which led to the employee walking out and quitting the job did not reflect well on my client.
Far from it.
In fact, I was convinced the employee would receive a great degree of sympathy from the EAT, and would probably win his case.
I had explained this to the client, and suggested settling the case would be a good course of action to embark upon, if we got the chance.
I had told him to bring the cheque book, too, and he was ready to settle it.
We had a figure in mind, and it was correctly based on the financial loss incurred by the employee since leaving the job. He had managed to find a new job but he still had 6 months’ or so of unemployment, and if he was successful this was what he would win, at the very least.
In calculating his financial loss, to which he would be entitled, you disregard any social welfare he would have received during the time out of work.
So, if the lad was on €600 per week and he was out of work for 6 months (26 weeks) his financial loss would be approximately €15,600. (See financial loss calculation in unfair dismissal cases)
Our settlement offer figure was based on this calculation.
I approached the other side and approached the legal professional representing the employee. After introducing myself and exchanging pleasantries I asked him what his client’s loss was, knowing full well what it was, and what his client would take.
I was amazed at the reply, and struggled to keep a straight face. He estimated the loss at around €10,000.
I asked him how he calculated that figure.
He replied that his client had received approximately €5,200 from the Department of Social Protection, and he subtracted this figure from €15,600 and arrived at the €10,000 figure.
I said I would speak to my client, and see could he stretch to this.
Naturally my client was delighted because we had just saved approximately €5,000, and settled the case in about 5 minutes flat. It was a stroke of good luck for my client, because he was ready to pay €15,000.
Unfortunately for the employee his representative made a costly mistake in calculating his financial loss. I can only presume that the representative did not do much employment law in his daily work.
Some months later I was involved in another case-this time at the WRC (Workplace Relations Commission)-and acting for the employer again. On the other side were the employee and her solicitor.
The employee had a number of complaints against my client, her former employer.
I instructed counsel in this case and we were fully prepared to fight the case and each and every claim in the complaint. However, we also had a preliminary argument before the hearing commenced at all.
This was that the complaint was made outside the 6 months’ time limit provided, and therefore the WRC adjudicator simply did not have jurisdiction to hear the case.
When the Adjudicator walked in to deal with the case he said he had a few questions to ask of the complainant and her solicitor.
He immediately honed in on the time limit question and decided, without any submission from our side, that he simply did not have jurisdiction to hear the claim as it was out of time.
That was it. It was over, and the case was thrown out in a matter of a minute.
Conclusion
You have a number of choices when it comes to bringing a claim to the Workplace Relations Commission (WRC).
You can run the case yourself, or you can get a HR person to represent you.
Or you can get a solicitor, or a solicitor who does quite a bit of employment law.