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.

15 Things You Should Know About Unfair Dismissal in Ireland

unfair dismissal-1

Are you confused about the law surrounding unfair dismissal in Ireland?

Do you know the difference between unfair dismissal and constructive dismissal?

You should, you know, before embarking on an unfair dismissal claim.

Or, if you are an employer, defending such a claim.

In this piece, I am going to give you 15 things in plain language to help your understanding, and prevent you taking out your metaphorical gun and shooting yourself in not just one foot, but both feet.

Let’s get started, shall we?

  1. The important acts are the Unfair Dismissals Act, 1977, which you can access here, and the Unfair Dismissals (Amendment) Act, 1993.
  2. Unfair dismissal arises when the employer terminates the employee’s employment; constructive dismissal arises when the employee resigns due to the conduct of the employer. In an unfair dismissal case the burden of proof is on the employer. In a constructive dismissal case this burden shifts from the employer to employee; this means the employee must prove he/she left the employment due to the conduct of the employer which he/she could no longer be expected to tolerate.
  3. You must bring your claim to the WRC (Workplace Relations Commission) within 6 months of the dismissal, unless you can show reasonable cause in which case you may be allowed 12 months by the WRC.
  4. Redress possible for the employee, if he/she wins, can be reinstatement, re-engagement, financial compensation.
  5. Financial compensation is financial loss incurred by him and attributable to the dismissal as is just and equitable having regard to all the circumstances, subject to a maximum of 104 weeks remuneration. Receipt of social welfare payments by the employee is disregarded in calculating financial loss.
  6. An employee who is on probation, or who has less than 12 months’ employment is excluded from the rights afforded by the unfair dismissal legislation, although there are some limited exceptions, for example a dismissal arising from a discriminatory ground.
  7. A dismissal shall be deemed to be an unfair dismissal, unless there are substantial grounds for it.
  8. A dismissal will not be an unfair dismissal if it arises from one of the following: conduct, performance, redundancy, the employee being in breach of the law in order to continue in his position (eg loss of driving licence if it was essential to hold one to do the job).
  9. An employer must give an employee a written statement of the procedure to be used in dismissing him within 28 days of commencement of employment.
  10. You can also go to the Civil Courts with a common law claim of wrongful dismissal, but you cannot do both-you must choose between the WRC or the Civil Courts. A wrongful dismissal claim is basically a breach of contract claim, for example your contract of employment provided for 1 month’s notice and you only received 1 week’s notice. This is a clear breach of contract and allows you to go to the Civil Courts and sue for breach of contract/wrongful dismissal.
  11. If an employer is going to dismiss on the grounds of competence he should give the employee clear notice of the shortcomings, and sufficient time to improve. A performance improvement plan (PIP) is recommended, and I would recommend that this lasts for 6 months, or thereabouts.
  12. Even if an employee is to be dismissed he/she should be afforded fair procedures and natural justice prior to termination, unless situation if one of gross misconduct which may justify a summary dismissal. Here are 6 steps which should be taken in any fair disciplinary procedure.
  13. An employee on long term sick leave can be dismissed on the grounds of incapacity, that is, he/she is unable to fulfil the contract of employment. There are recommended procedures, however, before an employer should terminate an employee on long term sick leave.
  14. A decision making body such as the WRC or Labour Court will apply 2 well known tests to decide wither the employee was justified in leaving the employment in a constructive dismissal case.
  15. Being dismissed from your job can seem like the end of the world at the time. But some of the most famous, successful people were fired from their job at one time or another. Here is 10 ultra-successful people who were dismissed from their employment.

“I don’t know whether I have a case or not”

“I don’t know whether I should resign and forget about it”

Get professional advice before you take an action that you might regret later.

My Single Best Tip for Employees

 

stressed employee

Are you an employee?

Are you experiencing difficulties in work?

Employees contact me every day with a wide range of problems.

These can include issues to do with bullying, rest breaks, disputes about statutory leave entitlements, harassment, working extra hours and not getting paid, unfair reprimands, threats-implied or express-of dismissal, not being given a written contract of employment, and so on.

One question I always ask, though, is “when did you commence employment?”

Because the protection that you get from the Unfair Dismissals Act, 1977 requires you to have 12 months’ continuous service:

 

2.—(1) This Act shall not apply in relation to any of the following persons:
(a)    an employee (other than a person referred to in section 4 of this Act) who is dismissed, who, at the date of his dismissal, had less than one year’s continuous service with the employer who dismissed him

There are exceptions to this one year’s continuous service requirement, for example a pregnancy related dismissal, a protected disclosure related dismissal, or a dismissal connected with trade union membership.

Without the required 12 months’ continuous employment you are vulnerable to being dismissed with little or no recourse to bring a claim for unfair dismissal. And quitting and bringing a claim for constructive dismissal is not open to you either.

I have heard some appalling stories from employees, stories of extremely poor or unfair treatment they have suffered.

Stories of people leaving a job to take up employment with another employer on the strength of attractive, but illusory, promises made by a new employer.

But if it does not work out, and the employee does not have 12 months’ continuous service, the options to right the wrong or pursue a claim are exceptionally limited.

My best tip for employees, then?

My single best tip for employees is to do your very best to get 12 months’ service under your belt in the job.

You may have complaints, problems, grievances in the first 10/11 months but you have a choice to make in relation to raising those grievances-do you do it in the first 12 months and raise your head above the parapet?

Or do you bite your tongue and wait until a year has elapsed?

Sometimes, you can win a battle and lose the war.

If you are suffering badly from bullying or harassment in the workplace it will be very difficult to endure that simply to get 12 months’ employment, and I am not recommending you do.

You must look after your health and wellbeing as your first priority. Your health truly is your wealth.

But if you have a minor grievance, or grievances, with aspects of your job, consider whether you can endure until you have 12 months’ employment behind you, and then ventilate your issues through the appropriate channels internally. These policies and procedures should be set out in the staff handbook.

Because if you raise a lot of grievances before the one year mark, you run the risk of the employer deciding you are not “the right fit” for the company, and having your employment terminated without being able to use the Unfair Dismissals Act, 1977, and related legislation to vindicate your rights.

You may also be on probation, which allows the employer to terminate you for good, bad, or no reason.

In fact, there are circumstances where I would advise the employer not to give any reason for a termination.

Don’t get me wrong: there are plenty of employment related acts on the statute books which do not require you to have a minimum period of employment.

For example, the Organisation of Working Time Act, 1997, the Terms of Employment (Information) Act,1994, the Protected Disclosures Act, 2014 etc.

But not being able to use the protection of the Unfair Dismissals Act, 1977 is a huge setback if you have lost your job. Not only does it provide for up to two years’ salary as compensation, it also provides for reinstatement or reengagement in the employment as potential outcomes in a successful claim.

Bonus Tip for Employees

My bonus tip for you is not to resign from your job hastily or without taking legal advice.

If you resign you may be able to bring a claim for constructive dismissal.

But this is a much harder case to win than one for unfair dismissal because the burden of proof to win your case shifts from the employer to you as employee.

If you resign too quickly you are also ruling out the possibility of a negotiated exit and getting a suitable reference. The employer, once he takes advice, may be happy to give you a reference and some form of settlement payment in return for your undertaking, by way of a signed agreement, not to pursue any claims arising from the employment.

Conclusion

Take advice from someone who has a good understanding and knowledge of employment law before you make rash decisions.

Because you do not want to find out after the fact that your legal options are extremely limited.

How to Legally Dismiss an Employee

how to dismiss an employee

Are you an employer?

Are you one of those people who believe that employment law in Ireland is stacked in favour of the employee?

That you can’t win, no matter what you do?

You will regularly hear of, what appear to be, eye watering awards to employees for unfair dismissal.

You may be surprised to hear that you can, in fact, legally terminate the employment of an employee.

Are you an employee who is concerned about losing your job?

Do you want to know what the grounds for a fair dismissal are?

Let’s take a look.

Probation

When an employee is on probation there is little difficulty in terminating the employment contract. The whole purpose of the probationary period is to allow the parties, especially the employer, to see whether the employee is the “right fit” for the organisation.

You can learn more about employees on probation in advice for employees on probation but the bottom line is

  1. The law recognises a common law right for an employer to terminate an employment contract for good, bad, or no reason;
  2. The most powerful protection given to employees is given in legislation such as Unfair Dismissal Acts, 1977-2005, but to be able to avail of this protection the employee must have 12 months’ service done; this will not be the case on probation as the probation period cannot exceed 12 months.

Therefore, it’s critically important that the employer has well drafted contracts in place with a comprehensive probation period.

Fair Dismissals

The law recognises circumstances where a dismissal can be deemed to be a fair dismissal, as opposed to an unfair dismissal.

Section 6 (4) of the Unfair Dismissals Act, 1977 provides:

(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:
(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,
(b) the conduct of the employee,
(c) the redundancy of the employee, and
(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

 

Let’s take a closer look at the grounds for dismissal provided for in legislation.

Capability

Capability covers issues such as

  • Absence from the workplace
  • Absence through Illness
  • Persistently poor time-keeping

A dismissal on any of these grounds, though, should be well supported with documentary evidence justifying the termination.

This evidence would range from time-keeping records to absenteeism records to medical reports.

There is also different approaches to be taken to long term illness versus intermittent short term sick days. How to manage sickness related absence elsewhere on this site should help.

Competence

Competence refers to the standards required of you to do the job you were hired to do.

Before a dismissal on the grounds of lack of competence the employer should

  1. Set out the employee’s shortcomings
  2. Point out the required improvements
  3. Give time to make the necessary improvement
  4. Warn of the possibility of dismissal.

Monitoring the employee’s performance can be time consuming, but this falls under the employee’s general entitlement fair procedures and natural justice before being dismissed.

Learn more about performance management and performance improvement plans.

Conduct

Conduct, or misconduct, covers a wide range of behaviour.

Gross misconduct can justify summary dismissal, while a series of lesser misconducts can justify termination too. But fair procedures and natural justice should be shown to the employee, unless gross misconduct justifies summary (immediate) dismissal.

Qualifications

Dismissal on this ground can arise in 2 ways:

  • The employee has lied at interview or in the application process about his/her qualifications
  • A precondition in the offer of employment has not been complied with.

Redundancy

Redundancy is a defence to a claim for unfair dismissal.

There are 5 different situations defined in the legislation as being instances of redundancy. Learn more about non collective redundancy here.

It’s critical for the employer that the redundancy is a genuine one, that is the role is being eliminated, and this cannot be used as a way of getting rid of someone for reasons unconnected to redundancy.

Employers also need to ensure fair selection procedures in choosing what role will be made redundant.

If the redundancy is not genuine, or the selection for redundancy is unfair, a claim for unfair dismissal may be successful.

Illegality

This can arise if, for example, an employee needs a driving licence to discharge his duties and loses the licence, and their continued employment would lead to a breach of the law.

However, the employer should look to see is there alternative employment that can be offered, before dismissing on this ground.

Other substantial grounds

Section 6(6) of the Unfair Dismissals act, 1977 states:

(6) In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal

It’s not clear what “other substantial grounds” will successfully withstand a claim for unfair dismissal. But if you are an employer and trying to rely on this one, as opposed to the other grounds outlined above, you are scraping the bottom of the barrel.

Conclusion

If you are an employer you can dismiss an employee. But you must have substantial grounds for doing so:

6.—(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal. (Section 6 Unfair Dismissals Act, 1977).

And you generally must afford fair procedures and natural justice to the employee in arriving at the decision.