Terry Gorry

Obsessions With Workplace Unfairness and Injustice-the Frustrations for Advisor and Employee

One of the saddest, most frustrating situations I encounter on a frequent basis has to do with obsession. I regularly meet employees who have what appears to be an obsession with a perceived injustice in the workplace.

The sense of grievance, the sense of being wronged and the injustice felt as a consequence can be all consuming and prevent the employee from getting over the issue, putting it in context, putting it behind them and moving on.

I must tell them that life is not fair sometimes, that the goalposts move, the rules change, and there are no guarantees.

But I simply cannot get through to them. They simply won’t accept this and cannot get over it.

And I accept that now, I accept that in many cases this obsession is bordering on mental illness and health.

I am certain that there is a medical term for what I am trying to describe.

This medical term might have a fancy name, might sound very serious but the fundamental fact is this: the obsession with a relatively minor matter in the overall context of a life or a career is unhealthy and exceedingly difficult to deal with.

Difficult for the employee and difficult for me as an employment law advisor trying to help with an employment problem.

I have little knowledge of psychiatric conditions or the best treatments for the various illnesses that overbear a person’s mind from time to time.

But I do know that a relentless, all consuming preoccupation with a ‘wrong’ that the employee has suffered is unhealthy and harmful.

So, what type of things am I referring to?

Let me give you a couple of examples.

An employee who is dismissed is understandably shocked taken aback.

Losing your job can have tremendously serious consequences such as loss of income, inability to pay a mortgage, inability to provide for one’s family, loss of status, loss of self esteem, and so forth. This is a significant life event that can leave long term psychological and emotional scarring.

I recognise and understand this.

This is not what I am talking about.

What I am referring to is the employee who has been correctly subjected to a disciplinary procedure and has received some sanction but simply cannot accept it. He becomes obsessive about the verbal or written warning placed on his file, but which almost certainly disappear off after 6 months and will not rest until it is removed and he gets an apology.

Or the girl who goes for a promotion in her workplace but is unsuccessful and a colleague and rival is appointed to the position instead. The colleague may have a perfectly valid claim to the position but my client cannot see this. She can only see the long hard hours she has put into her career and education, the late nights and overtime, the extra courses and qualifications.

And she simply cannot accept that on the day of the interview the colleague may have just done a better interview or clicked with the particular make up of the interview panel on that particular day.

I could give you countless examples of what most of us would see as relatively minor setbacks, and nothing more.

And yet the employee is looking to go to the WRC, to the Labour Court, to the Civil Courts, to Europe if necessary, to right the wrong.

Sometimes you just must accept that life isn’t fair, ‘stuff’ happens, and how you respond to setbacks and inequalities is entirely a choice you can make.

Conclusion

This is not a trivial matter and is one I encounter on a weekly basis. If you have a loved one who appears to suffer from this problem you need to know it is not unique.

Teacher Refused Judicial Review in High Court Seeking to Stop Disciplinary Case Against Her

Are you a teacher?

A recent decision of the High Court may be of interest to you as it involved a teacher commencing High Court legal proceedings as a consequence of being asked to attend a disciplinary hearing.

Background

The allegation against the teacher concerned her conduct towards school staff including the school Principal. The procedures for the suspension and dismissal of teachers provide for the Principal to deal with the issue at Stage 1.

The teacher complained that as the allegation against her concerned her conduct towards the Principal the Principal should not be involved in the procedure. The Board of Management did not agree but eventually it was decided that the Principal would step aside and an independent person would be asked to deal with the stage 1 procedure.

So, the teacher went to the High Court seeking to prevent the disciplinary procedure from going ahead on two broad grounds:

The Principal was biased and had prejudged the issue
The teacher also argued that the procedures did not apply to her as they required the concurrence of the Minister for Finance

The Board of Management’s position was that they were merely applying the well-established, negotiated procedures which were agreed between teachers, unions, the Patrons and management bodies, and the Department of Education.

The Board also took the view that this was a matter with which the High Court should not involve itself as it was a minor matter which, at worst, would result in a verbal warning which would disappear of the teacher’s record after 6 months.

The Board also argued that section 24 of the Education Act, 1998 allows the Department of Education to determine the terms and conditions of employment of teachers and a board of management can suspend and dismiss teacher in accordance with the procedures agreed between the Minister of Education, the boards of management, the patron bodies, and the trade unions.

24.—(1) Subject to this section, a board may appoint such and so many persons as teachers and other staff of a school as the board from time to time thinks necessary for the performance of its powers and functions under this Act.

(2) The numbers and qualifications of teachers and other staff of a school, who are to be paid from monies provided by the Oireachtas, shall be subject to the approval of the Minister, with the concurrence of the Minister for Finance.

(3) A board shall appoint teachers and other staff, who are to be paid from monies provided by the Oireachtas, and may suspend or dismiss such teachers and staff, in accordance with procedures agreed from time to time between the Minister, the patron, recognised school management organisations and any recognised trade union and staff association representing teachers or other staff as appropriate.

(4) Pending the agreement of procedures provided for in subsection (3), the procedures applied in the appointment, suspension and dismissal of teachers or other staff immediately before the commencement of this section shall, after such commencement, continue to be applied.

(5) The terms and conditions of employment of teachers and other staff of a school appointed by a board and who are to be paid from monies provided by the Oireachtas shall be determined by the Minister, with the concurrence of the Minister for Finance.

(6) Where all or part of the remuneration and superannuation of teachers and other staff of a school is paid or is to be paid from monies provided by the Oireachtas, such remuneration or superannuation shall be determined from time to time by the Minister, with the concurrence of the Minister for Finance.

(7) Where, at the commencement of this section the employer of the teachers or other staff in a post-primary school is a person or body of persons other than the board of the school, then subsections (1), (3) and (5) shall apply as if the person who or the body which, at such commencement and from time to time thereafter, is such employer, is substituted for the board as therein referred to.

(8) Except in the case of an agreement as provided for in subsection (3), nothing in this Act shall have the effect of altering, after the commencement of this Act, the terms and conditions of teachers and other staff of a school under which they were employed before such commencement.

(9) This section shall not apply to teachers or other staff of a school which is established or maintained by a vocational education committee.

High Court

The Judge in the High Court held that any perception or allegation of bias or absence of fair procedures was adequately dealt with by the appointment of an independent person to investigate.

He also held that the procedures agreed between unions and boards of management formed part of the teacher’s contract of employment and were applicable and in force until they were changed by the Department of Education or were held to be invalid in legal proceedings.

Judge Binchy also noted that a verbal warning was a minor penalty and, provided there was no problem with her conduct, would be gone off her record after 6 months.

In conclusion the High Court held that the matter was of such a minor nature that the procedures adopted by the Board of Management were not amenable to judicial review and he refused the application.

Important Lessons from High Court Fixed Term Contract Case

A recent High Court case involving a teacher and a school board of management in an employment dispute is worth looking at. The case is The Board of Management of Malahide Community School v Conaty [2019] IEHC 486 and you can read the full decision of the High Court here.

The High Court decided that the fixed term contract that the school gave to Ms Conaty was void because it had the effect of depriving her or protections she had already acquired under statute, particularly the Unfair Dismissals Act 1977.

The focus of this piece, however, is not Ms Conaty’s case per se but what wider lessons we can learn from the decision.

Protection for employee waiving her employment rights

Section 2(2) (b) of the Unfair Dismissals Act 1977 is described in the act as an exclusion. The High Court has decided that it is, in fact, a waiver.
Section 2(2) (b) states,

(b) dismissal where the employment was under a contract of employment for a fixed term or for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment) and the dismissal consisted only of the expiry of the term without its being renewed under the said contract or the cesser of the purpose and the contract is in writing, was signed by or on behalf of the employer and by the employee and provides that this Act shall not apply to a dismissal consisting only of the expiry or cesser aforesaid.

The Judge in this case held that if the employee is to sign a contract containing this waiver their consent needs to be given at the commencement of the employment and the consent must be informed.

The Court referred to section 13 of the Unfair Dismissals Act 1977 which states

13.—A provision in an agreement (whether a contract of employment or not and whether made before or after the commencement of this Act) shall be void in so far as it purports to exclude or limit the application of, or is inconsistent with, any provision of this Act.

The High Court recognised that Freedom of contract is severely restricted by section 13 of the Act. Any provision in an agreement which purports to exclude or limit the application of, or is inconsistent with, any provision of the Act is void.

But how is this restriction on an employee ever contracting out of their rights allowed in, for example, settlement agreements?

The High Court recognised that However, there is case law which suggests that—at least in the context of settlement agreements—an employee may be entitled to waive their rights on the basis of informed consent.

Therefore, if an employee is to enter into an agreement, whether a contract of employment or settlement agreement, his/her informed consent must be obtained in advance, not retrospectively. This is an important lesson for employers to take from this case and it has wider application to employment settlement agreements.

Fixed term contract

For a contract to be classified as a ‘fixed term contract’ as envisaged by section 2(2)(b) the term of the contract must be fixed-that is, the termination date must be ascertainable at the outset.

And not reliant on variables or contingencies such as teaching hours continuing to be available and/or demand for the subjects continuing.

In this case the contract contained this clause,

“The temporary contract will commence on 30 August 2015* 8th October 2015 and will terminate of 31 August 2016 subject to satisfactory service during the probationary period. The temporary contract may be renewed for a continued period in the event that the allocated hours as specified above continue to be available and the demand for these subjects continues.”

The Judge decided that the contingencies set out in this clause meant that it was not a fixed term contract as the termination date was not ascertainable.

Conclusion

The lessons to be extracted from this case are important and of potentially wider application, especially regarding an signing a waiver of their rights and the possibility of employees claiming that they are not, in fact, on fixed term contracts by reason of the contingencies in their contract of employment.

Read the full decision in

The Board of Management of Malahide Community School v Conaty
[2019] IEHC 486

Guidance from the Supreme Court in the ‘Nano Nagle’ Reasonable Accommodation Case

The recent Supreme Court decision in the ‘Nano Nagle’ is worth a closer look by both employers and employees who are concerned with what is expected by way of ‘reasonable accommodation’ for an employee with a disability.

This obligation on an employer to provide ‘reasonable accommodation’ to an employee is set out in section 16 of the Employment Equality Act 1998.

Section 16 of the act provides, inter alia,

F33 [ (3) ( a ) For the purposes of this Act a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as ‘ appropriate measures ’ ) being provided by the person ’ s employer.

( b ) The employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability —

(i) to have access to employment,

(ii) to participate or advance in employment, or

(iii) to undergo training,

unless the measures would impose a disproportionate burden on the employer.

( c ) In determining whether the measures would impose such a burden account shall be taken, in particular, of —

(i) the financial and other costs entailed,

(ii) the scale and financial resources of the employer ’s business, and

(iii) the possibility of obtaining public funding or other assistance.]

(4) In subsection (3)—

F34 [ ‘appropriate measures ’ , in relation to a person with a disability —

( a ) means effective and practical measures, where needed in a particular case, to adapt the employer ’ s place of business to the disability concerned,

( b ) without prejudice to the generality of paragraph (a) , includes the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources, but

( c ) does not include any treatment, facility or thing that the person might ordinarily or reasonably provide for himself or herself; ]

In overturning the Court of Appeal decision in the case the Supreme Court held that there was no reason why providing reasonable accommodation should not involve a redistribution of duties in the workplace, provided this did not place a disproportionate burden on the employer. In making this finding the Supreme Court held that it was not enough for the employer to merely divide up the job between essential duties and non-essential tasks, as the Court of Appeal had decided.

You will note from section 16 above that there is a non-exhaustive list set out in the Employment Equality Act 1998 which includes ‘the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources’.

This Supreme Court decision goes a step further in placing an obligation on the employer.

It has done so by suggesting that the employer must look not only at a redistribution of the tasks of the role but must look at a redistribution of the essential duties and functions of the employee’s job. The Supreme Court arrived at this finding on the basis that the Act in question obliges the employer to consider all appropriate measures to provide reasonable accommodation provided the cost of doing so would not be disproportionate.

The Supreme Court held, in essence, that the ‘test is one of reasonableness and proportionality’ but there was an obligation on the employer to explore whether public funding would be available to assist with the provision of reasonable accommodation.

As for consulting with the employee the Court of Appeal held that there was no obligation for employee participation in the process. The Supreme Court on the other hand held that while there was no statutory obligation to consult with the employee it made sense and would be sensible for the employer to do so.

The Court also reaffirmed the long held position that the employer was not obliged to create a different job for the affected employee.

Rap on the knuckles for the Labour Court

The Supreme Court also gave a slight rap on the knuckles to the Labour Court by finding that it had failed in its duty to consider all relevant evidence in the case and failed to provide reasons for its conclusions based on the evidence and sent the case back to the Labour Court for further consideration on specific points.

The Court also criticised the Labour Court for failing to give any reason for the level of compensation it had awarded on the grounds that fair procedures would dictate that parties are entitled to know the reasoning behind the level of an award.

Read the Supreme Court decision here: Nano Nagle School v Daly [2019] IESC 63

Courts Will Not Intervene When WRC Can Handle Employment Dispute

The Court of Appeal will not interfere in an employment dispute when there is a statutory regime in place to deal with the row.

This was confirmed again recently in a case involving a solicitor who asked the High Court and the Court of Appeal to intervene in his problem concerning his proposed redundancy.

Background

The solicitor, Mr Kearney, was employed by Byrne Wallace solicitors since 2006. Mr Kearney was made redundant in August 2017 and was given his contractual notice period. He disputed this redundancy on a number of grounds including:

The claim that it was not a genuine redundancy
The claim that fair procedures were not followed in carrying out the redundancy

The High Court refused Mr Kearney’s application for an injunction restraining his dismissal and made an important distinction which is worth noting. The High Court found that where the employee is given their contractual entitlements there is no role for the High court to intervene because there was no breach of contract.

Sham redundancy?

The sham redundancy argument is a separate one and one which the High Court found must be brought under Unfair Dismissals legislation before the Workplace Relations Commission in the first instance.

Mr Kearney also argued that there was an implied term in respect of fair procedures in his contract and on this basis there was a breach of contract, which would allow the High Court to intervene. The High Court accepted the argument from Byrne Wallace that there was no specific term of his contract breached and therefore could not get involved, holding that the correct venue for Mr Kearney was the Workplace Relations Commission.

Mr Kearney appealed the case to the Court of appeal and argued that the Courts should not restrict themselves to cases where there was a breach of an express term alone but should hear cases where there was breaches of implied terms such as those of mutual trust and confidence between the parties.

The Court of appeal rejected this argument and relied on the Nolan v Emo Oil case as authority for the proposition that the employer is entitled to terminate a contract of employment provided proper notice is given.

The Court of Appeal did not reject the argument that an employer could be in breach of an implied term of the contract of employment thereby allowing the Court to intervene on the basis of a contractual breach. In this case, however, the Court of appeal held that Mr Kearney had failed to prove breaches by the employer of implied terms of trust and confidence and had failed to prove bad faith by Byrne Wallace.

Conclusion

Unless there is a breach of the contract of employment the Civil courts will not get involved in a redundancy and the employee will be directed to the WRC with any claim or dispute on the basis of an unfair dismissal claim under the Unfair Dismissals Act 1977.

Case Law

Read the High Court decision in Kearney v Byrne Wallace here.

Read the Court of Appeal decision in Kearney v Byrne Wallace here.