Employment Claims | Employment Rights Ireland

2 Years’ Salary Awarded to Van Driver in Unfair Dismissal Case

The maximum amount that can be awarded in an unfair dismissal case is 2 years’ remuneration (section 7, Unfair Dismissals Act, 1977).

I had never seen it awarded until this case, DHL Limited and Michael Coughlan, in which Mr. Coughlan was awarded €72,042.88 by way of compensation.

On the 28th July, 2017 the Labour Court handed down its decision in an appeal by the employer of the previous WRC adjudicator decision in the employee’s favour.

Background

The background to this case is an WRC adjudicator decision of 30th January, 2017 to decide that the employee should be reinstated in his job as a DHL driver.

Mr. Coughlan was employed as a van driver for 11 years until his summary dismissal in November, 2015.

Mr. Coughlan brought a claim for unfair dismissal to the WRC and the Adjudicator decided that the sanction imposed on Mr. Coughlan for an accident involving his vehicle was, “disproportionate having regard to all the circumstances.” She ordered reinstatement from September, 2016, when the WRC hearing was held.

Mr. Coughlan had previously accumulated written warnings, with a duration of 12 months each, for a couple of incidents involving his driving, but had no such incidents for 2 years prior to the incident in 19th October, 2015 which led to his dismissal. Mr. Coughlan, at the investigation meeting, admitted that he had misjudged the space available to him while passing another vehicle at the Cork Depot of the employer, and apologised. The damage to the van cost €2,500 to repair.

Following the disciplinary hearing the employer decided to dismiss Mr. Coughlan for gross misconduct involving the incident and damaging of company property. However, the employer’s letter advising him of his summary dismissal made reference to his previous driving problems, even though the last warning he had was expired for some time.

The employer, in its response to Mr. Coughlan’s appeal, relied on his previous record of driving incidents and written warnings, and gave evidence that DHL could not rely on the employee to drive the company vehicles safely and no other option, for example, redeployment, was open to the employer on this occasion.

The head of operations of the employer gave evidence that he felt it appropriate to take the previous driving record of Mr. Coughlan into account when hearing his appeal to the dismissal, notwithstanding that the previous warnings had expired.

Labour Court Findings

The Labour Court found that Mr. Coughlan was confronted with multiple accounts of misconduct at the disciplinary hearing, even though there was no reference to multiple allegations in the letter inviting him to the hearing. The letter only referred to his failure to protect and safeguard company property (the van).

The Labour Court also found that the employer’s decision to dismiss was motivated, partly, by what it saw as its duty of care to the public, and safety grounds; however, this was completely different from the subject matter contained in the letter inviting Mr. Coughlan to the disciplinary hearing as the letter stated he was being invited to meet the allegation of ‘failure to protect and safeguard company property’.

The Labour Court also found that the grounds for summary dismissal without notice are very restricted, as can be seen from established jurisprudence in relation to dismissal, and a reading of Section 8 of the Minimum Notice and Terms of Employment Act 1973, which requires very bad behaviour of such a kind that no reasonable employer could be expected to tolerate the continuance of the relationship for a minute longer.

As the allegation against Mr. Coughlan was that he failed to protect and safeguard company property it was held that this could not constitute gross misconduct justifying summary dismissal, that is, without notice.

The Labour Court also found that the employer did not give due consideration to alternative sanctions short of dismissal, nor did it allow him to offer to pay for the damage to the vehicle.

Furthermore it found that the employer gave too much weight to the previous incidents concerning Mr. Coughlan’s driving, and noted that his previous written warnings had expired by the time of this incident.

The Labour Court, for the reasons set out above, decided Mr. Coughlan was unfairly dismissed.

It took into account Mr. Coughlan’s attempts to mitigate his loss by seeking new employment: He told the Court that in the period since October 2015 he has applied for some 23 or 24 jobs without success. He applied for various roles including that of courier, driver, general operative, cleaner and store person. The Respondent was called to a small number of interviews by named employers but no job offer ensued from any of them.

The Labour Court awarded him €72,042.88 by way of compensation, being the equivalent of 104 weeks’ remuneration, which it viewed was the employee’s financial loss to date attributable to the dismissal.

You can read the full case here.

The 2 Big Problems With Claiming for Bullying in the Workplace

Are you being bullied at work?

No, I mean really being bullied. As in repeated inappropriate behaviour which undermines your dignity as an employee.

Let me explain.

If I got a euro for every time an employee came to me and told me he/she was being bullied in work I would be a wealthy man.

But the vast majority of the time it what is described to me is not bullying, and will not fall within the legal definition of bullying.

For example, often, the employee will tell me she has been subjected to the disciplinary procedure in the workplace. There is two problems with claiming this is bullying:

It is a one off situation, and not part of a repeated pattern of behaviour which undermines the employee’s dignity;
Management is entitled to invoke the disciplinary procedure in the workplace, for obvious reasons.

So, being involved in a disciplinary procedure is not bullying, per se, although if it was part of a concerted campaign of inappropriate behaviour.

On other occasions, an employee will have an issue or complaint in relation to some aspect of their work, or terms and conditions of their employment. They will, correctly, invoke the grievance procedure in the workplace, but disagree with the outcome.

They simply will not accept the decision, as it was not what they wanted or expected. The disappointment is understandable, but bullying it is not.

Remember if you raise a complaint or grievance or bring a claim or legal proceedings there is a number of potential outcomes. One of these is that you will lose. You need to be ready for this, and ready to put it behind you and move on.

The legal definition of bullying was recently affirmed in the Supreme Court decision in the Ruffley v Board of Management of St. Anne’s School. Remember, we are talking about repeated, inappropriate behaviour which undermines the dignity of the employee.

What does this mean?

Firstly, the conduct complained of must be repeated. This probably means a period of at least 6 months. It is not possible to say, with any confidence, that a lesser period will not be considered bullying. But the point you must take from this is: the inappropriate conduct must not be a one off situation, or of short duration.

Secondly, the conduct complained of as bullying behaviour must undermine the dignity of the employee. What does this mean?

According to the Supreme Court decision the type of behaviour you must prove

must be outrageous, unacceptable, and exceeding all bounds tolerated by decent society.

This, clearly, is a pretty high hurdle to clear.

The Court also held that a certain degree of robustness is required of the employee in the workplace. Instruction, direction and even, on occasion, robust management, are all necessary in a workplace to ensure efficiency, that the work gets done, and health and safety in the workplace is maintained.

The treatment you endure at work may make you very annoyed, it may upset you from time to time, you may feel it is personal, you may feel it is bullying.

But from a legal perspective, proving bullying behaviour, according to Justice Charleton in the Supreme Court, must clear a high standard of proof:

“the test for bullying is of necessity to be set very high”.

The reason for this, I presume, is that for workplaces to function management must be able to manage and organise the affairs of the workplace safely, without facing frequent Court proceedings for perceived slights, give necessary direction and instruction, and, occasionally, robust management.

The Legal Redress for Bullying

There are two substantial types of claim (one more substantial than the other) you can bring arising from being a victim of bullying, assuming that you can prove that what you have experienced is bullying, as discussed above.

A Claim in Civil Court

Your claim will be that a tort (civil wrong) has occurred.

You must prove that the employer has been negligent in failing to discharge his duty of care, discharging his duty to provide a safe place of work, that you have suffered a recognised psychiatric or psychological injury as a result of that negligence, and are entitled to recover damages. You would also claim that the employer is in breach of the contract of employment in failing to deal property and promptly with your complaints.

Going to Court is expensive and, in relation to costs, the winner takes all. (Elsewhere on my site I have set out what you need to prove to win your case in Court).

2. A Claim for Constructive Dismissal

This claim is brought to the WRC (Workplace Relations Commission) and involves you quitting your job and claiming that the bullying you have suffered in the workplace has not been dealt with by the employer, and you have had no real choice but to leave your job.

This claim does not have the cost implications of going to Court, but the redress you can be awarded is significantly less, too, as you cannot be awarded damages for pain and suffering.

You can only be awarded financial loss for your loss of employment. The amount of financial loos will depend on how quickly you get a new job.

Conclusion

You will see from the above that the two main options open to you if you are a victim of bullying in the workplace have inherent difficulties.

Going to Court is a high stakes endeavour with potentially high legal costs, a high burden of proof to prove bullying, and you must be able to prove you have suffered a recognised injury of a psychological or psychiatric nature.

Going to the WRC on a constructive dismissal claim will see you losing your job and only being able to recover your financial loss for being out of work between jobs.

The two big problems with commencing some type of claim or redress for bullying in the workplace are:

Satisfying the legal proof required to prove bullying
The difficulties associated with the avenues of redress open to you.

If you suffer from bullying you do not have to suffer in silence. There is action you can take to resolve the difficulty.

But it is probably useful that you are aware of the difficulties at the outset.

A Tale of Discrimination (Vera’s Story)

Vera loved rabbits.

She used to remind me of Lennie in Steinbeck’s short novel, “Of Mice and Men”, although, unlike Lennie, she was sharp as a tack.

Vera started working in retail when she was 15, straight out of school.

She worked her way up in the retail industry-mainly small shops- and found herself as manager of a shop on the northside of Dublin after 35 mostly good years.

She got on great with her employer, Jimmy, who owned the shop, and he, like Vera, was “old school”.

He was a kind man and was happy to generously give Vera time off for family events or hospital appointments, which Vera never took advantage of.

When Jimmy came to tell her that he had sold the shop she was a little bit anxious, because she didn’t know what to expect from the new owner, or how things might change.

Her worst fears were soon realised when she met her.

Geraldine was a go-goeting, ambitious young woman of 25 who had been given a leg up in her aspiring entrepreneurial career by her father. He guaranteed the loan to buy the shop, and gave her the deposit,too.

Soon after taking over the shop Geraldine dropped a few remarks to Vera which Vera thought were inappropriate.

Little remarks like, “we will have to get our costs down, Vera, especially the wages bill”, and “how long do you think you will continue working?”, and “can we manage with less full timers?”

All the little digs worried Vera.

A few months after the change of ownership Vera’s GP recommended that she have some minor surgery carried out as the best way to deal with an ongoing medical issue she had.

Vera eventually bit the bullet and went in for the surgery.

The surgery was successful and her GP was happy with the outcome. However, he recommended Vera take it easy for 3 or 4 weeks when she went back to work-no heavy lifting, no pulling or dragging heavy stock, and to avoid stretching too vigorously.

Vera was fed up at home and was one of those people who had to be at something; she just couldn’t sit still for any longer than an hour.

So she was looking forward to going back to work.

She went to Geraldine to let her know when she would be back and what her GP had recommended by way of an easing back into the more vigorous parts of her job.

Vera was amazed with Geraldine’s reaction.

“Vera, I am not happy to let you back to work until you are fully fit to do your job in its entirety. Why don’t you wait a few more weeks until you are fully recovered?”, she said.

“But I want to go back to work now”, said Vera, “and the doctor said it would be good for me, provided I avoid some tasks for a few weeks”.

The conversation ended on a sour note, and Vera was stunned.

The next day she received an email from Geraldine saying that she could not let her return to work until she was fully fit. In her email she mentioned “health and safety” and “insurance” and “duty of care to employees”.

Vera was not going to take this lying down, she had given 35+ years of service in a job she loved and was not going to be “put out to grass like this”, as she saw it.

Vera came to see me and we had a good chat. Even though she was a small lady, bird like, she had a real steel about her. She told me she was brought up in Cabra, one of a family of 11, and she told me you soon had to learn how to stand up for yourself.

She said when she was 11 or 12 she used to go down to Croke Park on big match days and sell stuff to the crowd going to the GAA matches: apples, oranges, paper hats (the ones which, if it rained, all the colours ran out of), flags, you name it.

I told her about a case I had read about, where a man-I think he worked in a quarry in Galway- who wanted to return to work after brain surgery was dismissed and brought a claim for discrimination on the grounds of disability.

The man could only work for 20 hours per week on his return, on his doctor’s recommendation, but the employer wanted him to return to the full 39 hours.

They could not reach agreement so the employer dismissed him. The employee brought a claim under equality legislation and claimed that he was discriminated against on the grounds of disability, and the employer has failed, contrary to his legal obligation, to make “reasonable accommodation” for his return to work.

The worker was awarded €40,000 by the Equality Tribunal. (You can read more about that case here.)

It struck Vera and me that her situation appeared to be very similar to this man’s. No two cases are the same, of course, but there are certain guiding principles you can draw from cases with similar facts.

So, Vera decided to bring a claim against the employer and her claim was that she was being discriminated against by her employer on the grounds of disability, and the employer has failed, contrary to the Employment Equality Acts to make reasonable accommodation for her return to work.

Vera felt she was being effectively dismissed by the employer’s refusal to let her take it easy for a few weeks in relation to a handful of tasks.

Vera was so angry about the way she was treated that she resigned. Not long afterwards, Vera had a new position in retail, but she was not going to let this lie.

We submitted her claim to the WRC, and felt Vera had a really strong case. Close to the day of the hearing the case settled and Vera accepted a nice settlement in relation to her claim.

She felt vindicated. She was working away in her new job, but felt she had to take a stand in relation to the way she was treated, and the lack of respect shown to her by Geraldine.

Takeaway

There are 9 grounds of discrimination in Irish employment law, and disability is one of them. However, the definition of a “disability” is so broad, that even a runny nose has been held to be one.

A disability can be temporary or permanent, and can include an addiction to alcohol or drugs.

The monetary penalties for discrimination are high: up to 2 years’ remuneration for the employee from the WRC and the Circuit Court can award up to its jurisdictional limit.

And Vera?

She is working away, managing another shop, and happy to be back in full swing having made a full recovery from her surgery and the way she was treated.

How Safe Are You From Making This Costly Mistake?

It’s an easy mistake to make.

I see it all the time, to be honest.

One day recently, I had to say this to a nice young woman who came to me for employment law advice:

“I’m sorry to disappoint you, but I think you are wasting your time with this”.

And to a man a few days before: “I have to tell you that I think you are in danger of digging a big hole for yourself. My advice is that you forget about this and go back to work, keep the head down, and do your best.”

And another: “You asked me for a straight answer and that is what I am about to give you: forget about this. Accept it, and move on, or you are in danger of talking yourself out of a job”.

And “Sometimes, you may be treated unfairly or unprofessionally, but that doesn’t mean there is a legal cause of action or claim”.

It appeared to me that there was a growing number of people who, one way or another, left my office disappointed.

It’s inevitable that you begin to second guess yourself.

I began to question myself.

Was my judgment off: was I too conservative?

Was I overlooking potential causes of action?

Was I expecting too much from employees?

And too little from employers?

But when I thought about it I noticed it was not just in relation to employment law that I’ve had to say these things, either. Family, litigation, personal injury, property, landlord and tenant.

And then I read the Supreme Court decision in the alleged bullying case involving a special needs assistant, Una Ruffley, and the Board of management of the primary school in Kildare where she worked.

And one of the Judges seemed to articulate precisely what I had been saying to the various hopeful employees who came to me.

Mr. Justice Peter Charleton, in his decision, said “Not every wrong, even one which results from unfair or unfortunate circumstances, gives rise to a cause of action.”

Another way of saying this, in plain English, is “shit happens”.

And that is what I was saying to the different people I have referred to above.

I was doing is as diplomatically as I could, but I had to call a spade a spade.

It’s human nature that nobody wants to be the bearer of bad news. And nobody wants to let down or disappoint prospective clients.

But I would be doing them a grave disservice if I did not give my honest opinion about whether each person had a claim, a “cause of action”, or not.

Some people take the bad news well, some take it badly.

But one unfortunate feature that I encounter on a too frequent basis is the person who appears to have become obsessive about their issue, no matter what it is.

They simply won’t let it go, even when staring at the uncomfortable facts.

The big problem in this situation is that the biggest sufferer of an unhealthy obsession is the person who has it.

Because it can lead to their well being and mental health being seriously affected.

Not only have they suffered some distress or hardship or rough treatment at the hands of another, but now they run the risk of compounding the damage and hurt by their refusal to put it behind them and let it go.

It is striking, and sad, how some situations become so personal to the individual that they simply cannot see the damage they will do to themselves if they don’t let it go.

In conclusion, sometimes you need to stand up and fight.

But sometimes you need to retreat and live to fight another day, when the odds in your favour shift to make it worthwhile.

And don’t ever fall into the trap of winning a battle, and losing the war.

Bullying in the Workplace in Ireland-Supreme Court Raises the Bar to Successful Claims?

Has the Supreme Court raised the bar to successful bullying claims with this decision delivered on 26th May, 2017?

Are you being bullied at work? A lot of people complain to me about bullying.

You would not believe the large number of queries I received from people about bullying, and allegations of being bullied in work.

Many of them are, quite frankly, misguided and do a disservice to genuine victims of bullying in the workplace.

I have written quite a few posts about bullying in the workplace, such as

Workplace bullying and non-physical injuries-what you need to prove
The High Court Ruffley case (Una Ruffley v Board of Management of St. Anne’s School).

I also wrote about the Court of Appeal overturning the High Court decision in the Ruffley case.

This case has recently been dealt with by the Supreme Court in May, 2017, and as the Supreme Court is the highest ranking Court in Ireland what it has held in the Ruffley case is well worth taking a look at.

The Court itself has held that “this novel case will set a benchmark for all bullying claims.”

So, if you feel you are being bullied and are considering a claim on the grounds of bullying in the workplace you need to consider carefully what the Supreme Court has to say.

The background to the case is that Una Ruffley was a special needs assistant in a primary school in Kildare, St. Annes. In January, 2010 she was disciplined by her employer, the Board of Management of the School.

Una Ruffley claimed that this disciplinary procedure was part of a bullying campaign against her, and had suffered a personal injury of a psychological nature as a result.

Ms Ruffley commenced a personal injury claim in the High Court and was awarded over €255,000 euros in 2014.

Judge O’Neill in that case held that she had been bullied as she was subjected to repeated inappropriate behaviour which affected her dignity at work, and Judge O’Neill accepted the definition of bullying as set out in para 5 of the Industrial Relations Act 1990 (Code of Practice detailing Procedures for Addressing Bullying in the Workplace) (Declaration) Order 2002 (S.I. No. 17/2002) as follows:

“Workplace Bullying is repeated inappropriate behaviour, direct or indirect, whether verbal, physical or otherwise, conducted by one or more persons against another or others, at the place of work and/or in the course of employment, which could reasonably be regarded as undermining the individual’s right to dignity at work. An isolated incident of the behaviour described in this definition may be an affront to dignity at work but, as a once off incident, is not considered to be bullying.”

Appeal

This decision was appealed to the Court of Appeal and Judge O’Neill’s finding in her favour was overturned by 2 to 1. The reasons for this was the finding that in this particular case the Board of Management had not been guilty of the type of repetitive inappropriate conduct which undermined the right to dignity in the workplace for a period of over one year as was found by the trial judge.

One of the Judges stated that the absence of fair procedures on its own could constitute bullying; another Judge held that the behaviour had to be repeated and reasonably proximate in time.

These are obviously two completely different, contradictory opinions. For this reason, the appeal to the Supreme Court was watched closely by legal professionals because it was hoped that the Supreme Court would clarify the actual test of what constituted repeated, inappropriate behaviour-that is, bullying-from a practical perspective.

Appeal to Supreme Court

The Court agreed that the test for bullying, as set out in Quigley v Complex Tool and Moulding Limited [2008] IESC 44, was still the correct test. This means the conduct complained of must be

Repeated
Inappropriate
Undermining of the dignity of the employee at work.

The Court on this occasion held that each part of this test must be fulfilled on each occasion of behaviour which is argued constitutes a pattern of bullying, and found against Ms Ruffley and held that this case was not one that should have attracted damages.

The Court also distinguishes ordinary management from bullying, and holds that there is a certain degree of robustness expected from employees.

It is clear from this case that the bar over which an employee must jump to prove bullying has been raised.

The Court held:

“Correction and instruction are necessary in the functioning of any workplace and these are required to avoid accidents and to ensure that productive work is engaged in. It may be necessary to point to faults. It may be necessary to bring home a point by requesting engagement in an unusual task or longer or unsocial hours. It is a kindness to attempt to instil a work ethic or to save a job or a career by an early intervention. Bullying is not about being tough on employees. Appropriate interventions may not be pleasant and must simply be taken in the right spirit. Sometimes a disciplinary intervention may be necessary.”

It also clarifies that the conduct required to prove the undermining of the employee’s dignity at work must be outrageous, unacceptable, and exceeding all bounds tolerated by decent society.

Justice Charleton, in his decision, states that “the test for bullying is of necessity to be set very high”.

It appears from the Supreme Court decision in this case that it has succeeded in setting the bar high.

You can read the full decision ( Ruffley -v- The Board of Management of Saint Anne’s School, [2017] IESC 33) of the Supreme Court here-it is well worth a read.

Interestingly, Mr. Justice Peter Charleton states that

“Not every wrong, even one which results from unfair or unfortunate circumstances, gives rise to a cause of action.Given that the test for bullying is of necessity to be set very high, these are not circumstances which can attract damages.”