Unfair Dismissal and Discriminatory Dismissal Are Parallel Claims-You Must Choose One or the Other

discriminatory dismissal

Did you know that you cannot bring a claim for unfair dismissal and discriminatory dismissal at the same time?

They are considered to be parallel complaints and you will have to choose one or the other.

Let me clarify: section 77 of the Employment Equality Act, 1988 states

77.— F117 [ (1) A person who claims —

( a ) to have been discriminated against or subjected to victimisation,

( b ) to have been dismissed in circumstances amounting to discrimination or victimisation,

( c ) not to be receiving remuneration in accordance with an equal remuneration term, or

( d ) not to be receiving a benefit under an equality clause,

in contravention of this Act may, subject to subsections (3) to (9) , seek redress by referring the case to the F118 [ Director General of the Workplace Relations Commission ] . ]

Thus, you are claiming that you have been dismissed in circumstances amounting to discrimination or victimisation.

You can also bring a claim under the Unfair Dismissals act, 1977 but you will have to choose which of these claims you will ultimately pursue.

Why? Because Section 101(4)(a) of the Employment Equality act, 1998 states:

(4A) (a) Where an employee refers —

(i) a case or claim under section 77 , and

(ii) a claim for redress under the Act of 1977,

to the Director General of the Workplace Relations Commission in respect of a dismissal, then, from the relevant date, the case or claim referred to in subparagraph (i) shall, in so far only as it relates to such dismissal, be deemed to have been withdrawn unless, before the relevant date, the employee withdraws the claim under the Act of 1977.

(b) In this subsection —

‘ Act of 1977 ’ means the Unfair Dismissals Act 1977 ;

‘ dismissal ’ has the same meaning as it has in the Act of 1977;

‘ relevant date ’ means such date as may be prescribed by, or determined in accordance with, regulations made by the Minister for Jobs, Enterprise and Innovation. ]

This means that the discrimination based claim under the Employment Equality act, 1988 will be deemed to be withdrawn unless, 41 days after notification from the WRC, you withdraw the claim under the Unfair Dismissals act, 1977.

Then, if you withdraw the claim under the Unfair Dismissals Act, 1977 your discrimination based claim under the Equality Act 1988 will go ahead.

If you don’t respond to the letter you receive from the WRC your claim under the Equality Act, 1988 will be deemed to be withdrawn and your unfair dismissal claim will be dealt with.

Section 101A of the Employment Equality Act, 1998 also prohibits parallel claims as follows:

101A. — Where the conduct of an employer constitutes both a contravention of Part III or IV and a contravention of either the Protection of Employees (Part-Time Work) Act 2001 or the Protection of Employees (Fixed-Term Work) Act 2003 , relief may not be granted to the employee concerned in respect of the conduct under both this Act and either of the said Acts.

Takeaway

If you bring claims to the Workplace Relations Commission sometimes your case will be straightforward, but sometimes you can easily fall into a technical or legal roadblock that may give you a nasty surprise.

You should always seek legal advice before you bring any claim as it is vital that you choose the correct cause of action. This cannot be remedied later on and I have seen some very silly, basic mistakes made by workers who ultimately make some simple but fatal mistakes and end up with nothing but heartache and disappointment.

Manager Exploits Staff for Sex and Wins Case for Unfair Dismissal

sexual harassment

Did you ever read Oliver Twist by Charles Dickens?

Dickens introduced a great number of unforgettable characters to the world in this novel about the exploitation of orphan children by ‘the Jew’, Fagin to engage in criminality and picking pockets on the streets of London in the 1830s.

In Oliver Twist you had Oliver Twist himself (“please sir, can I have some more?”), John (aka Jack) Dawkins (‘the Artful Dodger’), Nancy, the good hearted lover/prostitute of the evil Bill Sikes, and a lad called Charlie Bates.

Charlie Bates spent a lot of his time on the floor laughing uproariously at the antics of the gang and exclaiming “What a game!” in reference to the criminality and picking of pockets in which the orphaned children were forced to engage.

I thought of Charlie Bates and his stock phrase “what a game!” when I read of a recent decision of the WRC in a case involving a male manager of a store in a restaurant chain who admitted to sexually harassing female staff under his management.

To cut to the chase he offered accomodation to female staff in return for sex.

The employer, on discovering this and after engaging the services of a HR person to carry out an investigation, summarily dismissed him for gross misconduct on the grounds of repeated sexual harassment in the workplace.

The dismissed manager brought a claim to the Workplace Relations Commission (WRC) for unfair dismissal.

And guess what?

He won on the grounds of the absence of fair procedures (“procedures hopelessly flawed”), the WRC Adjudicator having found that his conduct amounted to sexual harassment and the dismissal was substantially fair.

He was awarded €6,500.

As Charlie Bates might have said, “What a game!”

Lack of fair procedures

The grounds for finding that the procedures were “hopelessly flawed” included

  • The company ignored the employee’s direct evidence and relied on hearsay evidence
  • The employer failed to provide witness statements to the manager
  • The employer failed to advise him of the seriousness of the situation and the potential for dismissal
  • The employer failed to allow the manager defend himself or have representation
  • The employer failed to allow him to cross examine his accusers or challenge witness statements
  • The employer did not give him the specifics of the sexual harassment allegations against him.

However, it is reported that the company engaged the services of an external HR advisor to carry out an investigation and the manager “confirmed to the investigator that he offered accommodation to employees in order to have sex with them”.

Moreover, the manager had been involved in a relationship with one of the employees (who broke it off when she discovered he was married) and the report found he “was accused of unwelcome advances and offers of going to the cinema, restaurants or visits to the park. There were accusations of non-verbal conduct of a sexual nature including leering and making sexually suggestive gestures”.

Lessons to be learned

It’s difficult to understand, having read the facts and report of this case, what circumstances will give rise to a safe summary dismissal from an employer’s perspective. Therefore the safest bet appears to be to always afford fair procedures and natural justice no matter what the circumstances.

At the very least ensure the allegations are put to the employee in sufficient details and he has a chance to explain his version of events and side of the story.

This way might ensure you are not indulging in a Charlie Bates’ reaction of rolling around on the floor saying “What a game!” after reading about, or being involved in, an unfair dismissal.

You can read the full case here.

Reinstatement of Dismissed Employee-A Warning for Employers

unfair dismissal-1

Are you an employer?

If you have dismissed an employee you are almost certainly aware that a successful claim against you by your former employee can lead to an award of compensation of up to 2 years’ salary.

But did you know that there are 2 other remedies that can be awarded if the employee’s claim succeeds?

Yes, the Workplace Relations Commission adjudicator, in an unfair dismissal hearing, can also order that the employee be reinstated or reengaged. This can be the worst possible outcome for some employers.

It is not a frequent outcome to an unfair dismissal claim and more often than not the employee will only tick the box on the WRC claim form seeking compensation. If this is the case then the adjudicator has no decision to make once he decides the employee has been unfairly dismissed.

But sometimes an employee will seek reinstatement to their old position. He may do this for tactical reasons-for example, it may encourage the employer to attempt to settle the claim before it goes to a hearing at WRC for fear of losing.

On other occasions, however, by virtue of the nature of the industry or specialised nature of the job, the employment prospects for the dismissed employee may be poor. If this is the case the employee may be perfectly happy to resume his old job, or an alternative position in the same organisation, which can be an equally bad result for the employer, who would be happy to never see the employee again.

This can cause a major headache for the employer who will doubtless argue that the relationship between employer and employee has broken down and there is a lack of trust and confidence between the parties and they should not be forced into resuming the old relationship.

This is a widely used and accepted argument. But it’s not always successful.

A Banker v A Bank Adj ADJ-00001266

The WRC adjudicator, on 28th March, 2018, made an order for re-instatement in this case involving a banker versus his former employer, a bank. The banker, a trader, was dismissed for gross misconduct and brought a claim for unfair dismissal.

Without going into all the details (there is a link below for full details of the decision) the decision of the adjudicator, Mr. Kevin Baneham, was that the unfair dismissal claim was to succeed due to the imperfections and flaws in the bank’s disciplinary procedure which led to the dismissal. The next step to be decided was the appropriate redress for the employee.

The redress sought by the banker, once he succeeded in his claim, was re-instatement. The adjudicator agreed that re-instatement and re-engagement were possible awards as the banker was a popular employee whose performance appraisals were good and was a good team player.

Mutual trust and confidence/disharmony

The bank, however, argued that re-instatement was not appropriate as it could lead to a poor relationship between the parties in the future, there would inevitably be disharmony, and the relationship of mutual trust and confidence between the parties was shattered. The adjudicator did not agree.

The adjudicator had regard for the fact that the banker operated in a strictly regulated environment and industry and a dismissal would possibly be fatal to obtaining alternative employment in such an industry, given the relatively limited options. For this reason the adjudicator ordered that the employee be re-instated as it was ‘just and equitable in this case’.

For the reasons provided in this report, I find that the complaint of unfair dismissal is well founded and, pursuant to section 7(1)(a) of the Unfair Dismissals Acts, I order the re-instatement by the respondent of the complainant in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal.

You can read the full decision in this case here: ADJ-00001266

Lessons for employers and employees

If you are an employer ensure you or your advisor checks the WRC complaint form to see if the redress sought by the employee includes re-instatement or re-engagement.

If you are an employee you may consider nominating those options as redress you are seeking as it may put some pressure on your former employer to settle the case before it goes to hearing, for fear you will win and an order for re-instatement is made.

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

the labour court

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.

A Constructive Dismissal Story (Agnieszka’s Story)

constructive dismissal story

There’s a Polish woman (Agnieszka) from outside Maynooth who came to me one day about 15 months ago.

She told me a story I found hard to believe.

But I can assure you it was true.

She told me she came to Ireland about 12 years ago and got a job in a shop. Agnieszka was excellent at her job, friendly with customers and colleagues, worked hard and did everything that was required of her.

She got on well in the job, so much so that after 27 months she was promoted to manager of the shop. She continued to do a good job, and got great feedback from her bosses and from the shop’s customers, and her colleagues.

Then, approximately 6 weeks before she came to visit me, she was visited in her shop by the company accountant/financial controller (Phillip) and a director (Sinead).

“We need to speak to you urgently Agnieszka”, they said.

“No problem”, Agnieszka responded. “Nothing serious, I hope?”

“Actually, there is a serious problem which we have just uncovered. Can we speak to you in the store room?”

“Sure”.

Agnieszka was puzzled, but not yet overly concerned.

Once they entered the storeroom Phillip and Sinead quickly got down to business.

They told Agnieszka the gross profit margin for the last 6 months in her store was unacceptably low, and had dropped from 23% to 19%, and they concluded there must be a “serious problem” in the shop. As Agnieszka was the manager they were there to get an explanation from her.

Agnieszka was completely flummoxed and taken aback. It was like a bus had hit her. She noticed, too, that the demeanour of Phillip and Sinead was less than the usual friendly tone they adopted with her.

They told her they were going to have a meeting the next day at head office, and Agnieszka was to be there, but she was not told what type of meeting it was.

Agnieszka spent that evening and next morning worrying about the issue raised, and what might have caused the problem of the falling profit margin.

Could it have been an error with the stocktake? Could it have been a mistake in entering a delivery or invoice?

She was also concerned about the change in tone, and the way that Phillip and Sinead had spoken to her when they came to the shop.

The next day Agnieszka waited anxiously in reception at head office at 2.30 pm, waiting for the meeting.

She chatted with Sheila, the receptionist, trying to take her mind off the anxiety she felt in the pit of her stomach.

When Sinead and Phillip arrived, they immediately said to Agnieszka, “you can bring in Sheila to the meeting, as a witness”.

“Why do I need a witness?” Agnieszka asked.

“You might be more comfortable”, Phillip replied.

Agnieszka went in alone as she did not know Sheila very well, and, besides, she could not understand why she would need a witness if they were only going to have a meeting to try to sort out the apparent problem with one profit margin report.

Once inside the office it was clear that Phillip and Sinead had one thing in mind: Agnieszka’s resignation from her job.

They produced a sheet of paper, typed up, with a space at the bottom for Agnieszka’s signature.

It was a resignation letter. Agnieszka was stunned, and became upset.

They quickly pointed out that if she resigned they would give her a reference, and she could get another job easily enough; if she didn’t then there would be no reference and she would have great difficulty getting a job in Ireland again.

Agnieszka was astounded at the turn of events. She could not believe it. It seemed like a bad dream.

She had done nothing wrong, was in the job 12 years, had worked extremely hard and showed great diligence and loyalty, and, finally, it came down to this.

She refused to sign. No way was she signing that letter of resignation, it would look terrible, and she needed this job.

Her husband, Wojciek, had recently lost his job in a warehouse and she was the only breadwinner in her household, and they had two young children.

But the pressure mounted, the afternoon dragged on, the veiled threats became more explicit, and Agnieszka was reduced to tears.

After what seemed like the afternoon, but was probably no more than 1.5 hours, Agnieszka relented in order to have the meeting and the pressure stop, and just get out of there and go home,  and she signed her resignation letter.

Phillip and Sinead shook hands with her, reassured her she had done the “right thing”, and wished her well for the future, told her she would have her P45 and final pay within days.

The next day Agnieszka could not believe what had happened, and had a sick feeling in her stomach for weeks.

She began to do a bit of research online, and Googled terms like “unfair dismissal”, “constructive dismissal”, “forced resignation”, etc. The more she learned, the angrier she got.

Eventually, after some prompting from friends and Wojciek, she made an appointment to see me to see what her rights were, and what redress she may have, if any.

Constructive Dismissal?

It seemed to me that she had a strong case to bring a claim for constructive dismissal. The factors that would support her claim were:

  • The absence of a fair disciplinary procedure,
  • not knowing in advance she was being invited to a disciplinary hearing,
  • not being told she was entitled to representation,
  • not being given the chance to put her side of the story,
  • being pressured into resigning her employment,
  • not being given a letter in advance setting out the allegation in sufficient details that she could challenge it
  • being threatened with no reference if she did not resign and was dismissed.

I submitted a claim to the WRC for constructive dismissal and we were eventually given a hearing date approximately 20 weeks later.

Just before the hearing, a solicitor acting for the employer in this case contacted us and offered a derisory “nuisance” type sum of money to settle the claim.

I had to advise Agnieszka that I could not advise her to accept is, although it was entirely her decision.

She agreed with me, though, and the case went ahead on the scheduled day.

Constructive dismissal cases can be difficult cases to win because the burden of proof of an unfair dismissal shifts from the employer to the employee-remember it is the employee who has terminated the employment in a constructive dismissal case, not the employer.

There are certain required recommendations I would advise any employee contemplating bringing a claim for constructive dismissal. The most important one is that the employee should, if possible, exhaust any internal grievance procedure before resigning.

This did not happen in Agnieszka’s case. So, this was a concern, but not fatal as there is decided case law on this point which supports the proposition that it is not always essential.

Another factor she had to face in the hearing was she was the only witness to support her version of events. On the employer’s side Phillip and Sinead were going to put forward a consistent and different account of what happened at the fateful meeting where Agnieszka resigned.

The case itself was a tough one for Agnieszka because she had no idea whether the WRC adjudicator believed her account or the employer’s, and she was, to a large extent, on her own even though she had me with her to represent her.

She was still the only witness on her side of the dispute, though, and that’s never easy. But she was happy to get a formal forum where she could put her version of events, and describe how she felt about the way she was treated.

She was relieved when the whole ordeal was over, and she said she felt a certain liberation from having the chance to tell her story to an impartial adjudicator, even if she did not win the case.

Thankfully, that adjudicator was sufficiently impressed with her story and the explanations of what had happened, accepted that she was very poorly treated, and that she was constructively dismissed.

He also made a generous award-approximately 9 months’ salary-and was very pleasing to Agnieszka.

She was delighted, and felt vindicated.

She had been badly and unlawfully treated, stood up for herself, put her case before an independent adjudicator at significant personal cost, and the adjudicator had agreed with her.

Conclusion

It is worth repeating that constructive dismissal cases can be difficult to win, and each case will be judged on its particular facts and circumstances.

The facts of Agnieszka’s case were strong enough to support the argument that she was put under significant duress to resign and she was not given fair procedures or natural justice. For those reasons, she won her case.

I hear from people every week, however, who are considering quitting their job and wondering whether they will have a claim for constructive dismissal.

I always tell them the same thing, which is summed up in these two articles on my website: