Categories
Unfair Dismissal

Persistent Short Term Absences-Labour Court Approves Dismissal

the labour court

This dismissal involved an employee of a waste company.

The employee was employed from 2007 and had received warnings over the years about time-keeping, absenteeism, and abuse of the sick pay scheme in the workplace.

He was dismissed in December 2016 by reason of his sick leave record that year. He had 17 days of sick leave between April and October of 2016.

WRC

The employee brought a claim to the WRC who held that the dismissal was not unfair, given the circumstances and his record.

He appealed the decision to the Labour Court and made a number of arguments:

  1. The decision to fire him was excessive and disproportionate
  2. The procedure followed by the employer was flawed
  3. The employer had not discharged an alleged responsibility to direct him to an employee assistance programme to help investigate any underlying issues that were causing his absences
  4. The employer placed too much weight on prior warnings for absences
  5. All his absences were certified with medical certificates
  6. The employer should have looked at other courses of action short of dismissal
  7. His absence record compared favourably to the record of employees in the public service

The employer’s position was that fair procedure was followed, the employee had trade union representation every step of the way, and the decision to terminate was a reasonable and justified one given his record.

It also pointed out that the employer referred him for independent medical examination and to staff support services. The employee had never indicated any need for support or medical issues that would have caused his poor record.

The employer denied the decision to fire him was based on previous warnings but based on his record between April and October in 2016 and the fact that he had a live written warning on his file at this time.

Moreover, the employer argued that previous warnings, even if they had expired off his file, were relevant as they led the employer to reasonably believe the poor absence record would persist.

Labour Court

The Labour Court pointed out that its job was not to decide whether the decision of the employer was right or wrong; the Labour Court had to decide whether the decision was a reasonable one-that is, did it fall within a band of reasonable responses from an employer.

The Labour Court decided it did fall within this band and therefore the dismissal was upheld.

The factors considered by the Labour Court were:

  • The employee had representation from his trade union representative and had a right to appeal
  • The employee was given many opportunities to remedy his attendance record
  • He received many warnings and was clear that termination could follow if he did not improve
  • The level of absenteeism was unsustainable if replicated across the entire workforce of the employer
  • The disciplinary policy of the employer was clear

The Labour Court held:

The Respondent, having done all that was reasonably possible to explore the reasons for the continued absenteeism and having taken a series of progressive, measured and appropriate steps to reverse it, reasonably formed the view that it had run out of options and that no further action could reasonably have been deployed in the circumstances to secure the Complainant’s regular and efficient service. The fact that he was afforded opportunities to appeal each outcome of the disciplinary process, including the decision to dismiss, strengthens the Court’s view in this regard. Furthermore, in the circumstances of the case, the Court is satisfied that the decision to dismiss falls within the definition of a ‘band of reasonableness’.

Takeaway

There are two things I take away from this decision:

  1. If the employer takes a decision that falls within a band of reasonableness the Labour Court or WRC will not step into the shoes of the employer and decide whether a decision was right or wrong
  2. The disciplinary procedure does not have to be perfect; provided it is fair it will almost certainly be adequate and acceptable.
Categories
Unfair Dismissal

4 Things I Learned at the Employment Law CPD Yesterday

I attended CPD (continuous professional development) organised by Central Law Training yesterday and Marguerite Bolger SC gave an excellent hour-long presentation on dismissals in the employment law module I attended.

Some nuggets which I took away are

WRC or injunction?

One of the most important decisions for the employment law solicitor when advising a client is to decide whether the best course of action will be to go to the Workplace Relations Commission or to the High Court to seek an injunction. Some cases will be suitable for the WRC, some will not.

On the other hand, some cases will not be amenable to High Court injunction proceedings and the factors to consider will be the employee, employer, the circumstances of the case and whether there is a breach of contract or not. If there is no breach of contract or a constitutional right then seeking an injunction would be inadvisable.

Costs in the High Court

Lawyers are most unlikely to have their costs awarded by the High Court in judicial review proceedings. They are, however, likely to be awarded costs in a statutory appeal application. This may explain, in part at least, why some apparently small in value employment cases end up in the High Court on appeal on a point of law.

Reinstatement or reengagement

Reinstatement or reengagement are options as remedies in unfair dismissal cases. I did not know, however, until yesterday that reinstatement will be from the date of dismissal whereas reengagement will be from a specified date, not the date of dismissal.

This has huge implications for the employer and reinstatement, therefore, is possibly the ‘nuclear button’ from a cost perspective if you are the losing employer.

McKelvey Court of Appeal decision

The McKelvey Court of Appeal decision held that there was no general right to legal representation in a disciplinary procedure in the workplace, and this decision was later upheld by the Supreme Court.

But the Court of Appeal held that there was a right to test the evidence, implying a right to cross examine witnesses, and this was not turned over by the Supreme Court. Thus, McKelvey is authority for the proposition that you have, as an employee, the right to test the evidence against you. You will be arguing you have a right, therefore, to cross examine witnesses against you.

Conclusion

The law evolves and changes rapidly, especially in the area of employment law, as a consequence of decisions of the higher courts in various appeals and challenges to decisions of the Labour Court and Workplace Relations Commission.

If I learned only one thing yesterday it would have been worth my time on a Saturday morning coming up to Christmas. Learning four valuable nuggets of employment law wisdom from a senior counsel who specialises in employment law is a true bonus and will allow me to serve my clients better.

Categories
Unfair Dismissal Workplace Relations Commission

How to Make a Decision to Bring an Employment Claim to WRC or Not

Are you torn between bringing a claim to the Workplace Relations Commission (WRC) or walking away from the issue?

I meet employees on a weekly basis who face this decision. On the one hand they feel they have been treated unfairly, and perhaps unlawfully, in the workplace. But they face the tough decision to submit a claim to the WRC or even commence legal proceedings in the civil courts or walking away, forgetting about it, and putting the difficulty behind them.

It is not an easy decision.

Let’s take a look at some of the factors you will need to consider.

Justice

Many employees speak about getting justice and wanting to do something about what they see as the essential unfairness of how they have been treated by the employer. This appears to be a noble, principled position to adopt.

But if it involves a claim which will inevitably involve time, stress, and legal costs and the potential financial payback does not exceed the costs incurred it may be prudent to have a second think about bringing the claim.

Let me give you a simple example.

Let’s assume you have been dismissed from your job and you believe you have a strong case for unfair dismissal and you are anxious to pursue it.

Let’s assume, too, that you have been successful in getting a new job quickly after the termination of the old one and you have only been out of work for 3 weeks.

The Unfair Dismissals Act 1977 provides that if you succeed in your claim to the WRC the compensation you can be awarded is “financial loss”. Financial loss is essentially loss of pay or remuneration as a result of your sacking.

But your financial loss, assuming you start the new job 3 weeks later, is only 3 weeks’ wages.

Now, let’s assume you were taking home €500 per week, then your loss is €1,500. In these circumstances, if you are successful the WRC adjudicator can award you a maximum of 1 month’s salary which is approximately €2,000.

So, you might win €2,000 if you succeed but you will have to pay your own legal costs and it is extremely unlikely that your legal costs will not comfortably exceed €2,000. And then you must consider the stress of putting yourself through the whole process and the possibility that you will lose, in which case you are now out of pocket and your sense of unfairness and injustice has just increased significantly.

Now consider you do win but the employer has deep pockets and appeals the WRC decision to the Labour Court. You will have more legal costs and there is the possibility of your win at the WRC being overturned and you being further out of pocket.

Let me be clear: I am not trying to put you off, you may be perfectly happy to pursue your claim on a point of principle and let the cards fall where they may. There may well be an aspect of clearing or vindicating your good name and that is worth fighting for.

But you do need to think through the process from start to finish and weigh up the pros and cons and look at the potential outcomes.

For example, your case would be a completely different one if you were out of work for 6 months and had tried your best to get a new job. In this situation your financial loss will be 6 months’ wages so the financial analysis of your potential claim is radically different. To put it bluntly, it may well be worth a punt.

Justice v financial reality

You may have to weigh the justice or principle of your case against the financial reality and decide whether to pursue the matter or not. This can only be done by a cold headed analysis of the potential claims you have, the possible outcomes and remedies, and the probability of each outcome.

Conclusion

Bringing a claim to the WRC, Labour Court, or civil courts is an easy thing to do. But before you decided to do so you should consider the overall situation, what the potential outcomes might be, and the various steps along the way to the final conclusion, not just the first, easy step of submitting a claim.

You need to weigh it up like the moves in a chess game. Thinking only 1 move ahead is bound to end in disaster.

To assist with your decision, and to ensure you know what factors to consider, it’s a smart idea to get professional advice.

Categories
Employment Claims Unfair Dismissal

Constitutionality of Workplace Relations Commission (WRC) Challenged in High Court

Labour Court Appeals

The constitutionality of the Workplace Relations Commission (WRC) and Labour Court framework for adjudicating on employment disputes is being challenged in the High Court.

The Supreme Court has decided on 20th March 2019 that the employee, Mr Zalewski, is entitled to have his challenge heard in the High Court which had previously decided he did not have the necessary locus standi.

The outcome of this case in the High Court could be seismic.

Background

Mr. Zalewski had brought claims to the WRC: one for unfair dismissal under the Unfair Dismissals Act 1977 and one for non-payment of wages under Payment of Wages Act 1991. When Mr. Zalewski attended the adjudication hearing the employer-Buywise Discount Store Limited-sought an adjournment as a witness was not available. No evidence was heard.

When Mr. Zalewski attended with his solicitor for the new hearing date on 13th December 2016 he discovered that a decision had been issued by the adjudication officer. This decision was issued on 16th December 2016.

Judicial review in the High Court

Mr. Zalewski and his solicitor were understandably shocked and disappointed and made a protective appeal to the Labour Court and commenced judicial review proceedings in the High Court.

His judicial review application sought declarations that parts of the Workplace Relations Commission Act 2015, the Unfair Dismissals Act 1977, Payment of Wages Act 1991, and the powers and functions granted to adjudication officers in the Workplace Relations  Commission were unconstitutional as these powers constituted the administration of justice and the Constitution provides certain safeguards for the administration of justice in Ireland.

The WRC then, as part of an attempt to settle these proceedings, offered a new date for the hearing of Mr. Zalewski’s claims. He refused this offer and the WRC then asked the High Court to dismiss his application on the basis that he did not have locus standi.

The High Court agreed and dismissed his judicial review. However, he appealed to the Supreme Court who found that he did have the requisite locus standi and sent it back to the High Court to be heard. That is where the case lies now and the outcome has tremendous significance for anyone involved in employment law.

The employee’s case is that his claims will be dealt with by way of a statutory scheme-the WRC system-which is inconsistent with the constitution and the administration of justice in Ireland.

The first part of the challenge is the constitutional obligation for the administration of justice to be dealt with by a court, based on articles 34 and 37 of the Constitution.

Article 34.1 of the Constitution of Ireland provides:

1 Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution, and, save in such special and limited cases as may be prescribed by law, shall be administered in public.

Article 37.1 provides:

1 Nothing in this Constitution shall operate to invalidate the exercise of limited functions and powers of a judicial nature, in matters other than criminal matters, by any person or body of persons duly authorised by law to exercise such functions and powers, notwithstanding that such person or such body of persons is not a judge or a court appointed or established as such under this Constitution.

Article 40.3 provides

3 1° The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.

The second part of his challenge is to do with the appointment of adjudication officers and the powers that are given to them, the fact that the hearings are in private, and that evidence is not taken on oath.

All of these matters go to the heart of a person’s constitutional right to fair procedures and natural/constitutional justice.

The grounds for the challenge also lie in the absence of any legal requirement of a legal qualification for an adjudication officer to be appointed, no requirement for the taking of sworn evidence during WRC hearings, the hearings being held in private, and the appeal going to a body-the Labour Court-which does not include persons required to be legally qualified.

Read the full Supreme Court decision of 20th March 2019 here.

Outcome

The outcome of this challenge has immense significance for the future of the WRC and the Labour Court and will be watched closely and carefully by employers, employees, HR professionals, and lawyers.

Categories
Unfair Dismissal

Part Time Bus Driver Wins Reinstatement and Full Salary Retrospection

Labour Court Appeals

Are you an employer? How would you feel about having to pay a dismissed employee’s salary from the date of dismissal to the date of the hearing? Or even to the date of the decision of the adjudication officer?

And how would you feel about accepting the employee back into his old job?

That is what happened in the case involving a part time school bus driver (ADJ-00013201 An Employee v a Bus Company).

In this case the employee who was dismissed for alleged theft not only won his claim for unfair dismissal, but it was ordered by the adjudicator that he be reinstated in his previous job and paid all his salary from the time of dismissal (August 2017).

Background

The back story to the case is the part time bus driver was accused of theft in the workplace; he allegedly removed used wheel rims from the employer’s premises. The employee’s position was that he had permission from the Garage Foreman.

The employer’s services manager carried out an investigation and following this investigation the employee received a letter telling him that his employment was being terminated.

The Employee’s Case

The employee’s case was the investigation and disciplinary parts of the procedure which led to his dismissal were carried out by the same person, the Services Manager, and this rendered the termination unfair by reason of the absence of fair procedures-that is, the same person carried out the investigation and disciplinary parts of the process.

The employee also relied on the letter he received which stated that “following an investigation” he was being terminated as evidence of the 2 stage (investigation and disciplinary) procedure.

He also argued that his appeal was never heard.

The Employer’s Case

The employer’s case was that the employee was brought to a disciplinary meeting concerning the alleged theft of property-in excess of 20 wheel rims-and admitted taking the property but claimed to have permission. The employer found that this was not the case and decided he would be dismissed within 7 days and given the right to appeal.

The employer did concede that his appeal had not been heard up to the day of the WRC hearing due to the large volume of appeals to be dealt with by the appeals board and the illness of some members.

The Adjudicator’s Decision

The Workplace Relations Commission Adjudicator stated that his job was not to assess the innocence or guilt of the employee in respect of any allegations against him; the job of the adjudicator was to decide whether the decision of the employer was reasonable. In this context he stated the employer must prove the dismissal was fair.

In this regard he held that the involvement of the Services Manager in both the investigation stage and disciplinary/decision making stage of the procedure was lacking in fair procedures.

He stated,

“Having purportedly conducted a preliminary investigation, I find it inappropriate that the Services Manager would have then participated as the disciplining officer, on whose decision the Complainant was dismissed.”

He also referred to a Labour Court finding on this issue of separating the investigative stage from the decision making stage in the case Joseph Brennan Bakeries v Rogers (UDD1821). In that case the Labour Court held:

“The Court considers that the multiplicity of roles undertaken by TG [ the General Manager] in the process calls into question the fairness of the procedure. TG was the person who initiated the investigatory procedure and he oversaw the procedure himself. That procedure resulted in a disciplinary procedure which TG also oversaw. The Court is satisfied that the within enterprise is of a nature which afforded the Respondent the opportunity to ensure a clear separation of investigation and disciplinary processes by selection of available management level personnel to carry out the different stages of the procedure.”

He also found that there was a lack of objectivity and pre-judgment as he accepted the statement of the employee as follows:

“According to the Complainant, the Services manager stated, inter alia, that he (the Complainant) had been “caught stealing rims” and that “they are looking for your head upstairs”.”

The adjudicator also found that there was no written note of he investigation carried out and none had been given to the employee prior to the disciplinary hearing. This was fundamentally lacking in fair procedures.

In summary, the Adjudicator found:

“Taking all of the issues into consideration, I find there to be a distinct lack of objectivity and independence in the carrying out of the investigation and disciplinary processes which ultimately led to the Complainant’s dismissal. In this regard, I find that, in the circumstances, the Respondent’s decision to dismiss the Complainant must be considered as unfair.

This view is further undermined by the fact that the Complainant’s appeal of the dismissal decision has not been heard. While I note the rationale presented by the Respondent in relation to the delays with regard to the conducting of the Appeal Hearing, I find that it has compounded the shortcomings of the disciplinary process up to that point.

I find that the Respondent’s decision to dismiss the Complainant is unfair. In that context and taking into consideration the fact that an Appeal Hearing has not been conducted, I direct that the Complainant be reinstated, with effect from the date of dismissal, 25 August 2017, with full salary retrospection to apply.”

Read the full decision here.

Note: this hearing was held on the 24th July, 2018 and the decision is dated 28th December, 2018. I do not know whether the salary retrospection is from the day of the hearing or the day of the decision. Nor do I know whether the employer has appealed to the Labour Court.