Today's article looks at the impact that an offer (or refusal) of mediation can have in an employment dispute.

Brigid Clune v Debenhams (Retail) Ireland Limited UD1541/2008 RP1399/2008 MN 1488/2008 WT632/2008

Facts

The claimant (the employee) worked as a merchandiser for the respondent, the employer from 2005 to early 2008.

The claimant was diagnosed with breast cancer in 2006 and underwent surgery, radiotherapy and chemotherapy. Upon her return to work she felt “that she was being pulled in all directions” and she did not know to which supervisor she was answerable.

In May 2008, the claimant experienced a fit of coughing on the shop floor and was aided by a male employee who was later reprimanded for what a supervisor considered to be inappropriate behaviour.

Upon the request of the claimant an investigation was undertaken by the deputy manager who interviewed all the parties involved in this incident. The claimant was unhappy with the outcome of the investigation and refused the offer of mediation by the employer between her and her supervisor.

The claimant then went on certified sick leave and claimed she was constructively dismissed by her employer.


Determination

The Employment Appeals Tribunal (the "EAT"), which was chaired by Mr E Murray in Cork on 2 September 2009 and 10 and 11 November 2009, found that the claimant was not constructively dismissed by virtue of the Unfair Dismissals Act 1977 to 2007. The EAT noted that the employment contract was never lawfully terminated by either the claimant or the employer and it was open to the claimant to engage in the mediation process offered by the employer.


Legal Review

The decision in this case reiterates the fact that an employer must observe fair procedures to defend a case in the EAT. The EAT determined that the investigation was “fair and balanced” and that the claimant’s treatment at the hands of her employer did not justify her resigning from her employment.

The EAT also had regard to the fact that the employer offered mediation to the claimant between her and her supervisor. Indeed, in its determination, having regard to the facts of the case, the EAT felt that the matter could have been resolved if the claimant had engaged in mediation.

This is not the first time that the Tribunal has expressed an opinion on this matter. In Hickey v Robert J. Frost UD 927/2006, it found the employer had demonstrated it wanted to resolve the problem by engaging in mediation and this contributed to the decision that the claimant’s selection for redundancy was fair.

In Graham v Portroe Stevedores Limited UD574/2006, an employer who refused the offer of mediation had an award of €154,722 made against it.

However, mediation will not be appropriate in all circumstances. Employers will be conscious of their own commercial needs as engaging in mediation can be an additional cost and take up valuable operational time. Notwithstanding this, in cases where a conflict emerges between staff members that could lead to disciplinary action, mediation can be very useful. The EAT decisions show a sympathy towards employers who make genuine attempts to solve the issues at hand and do so in a fair and impartial way.

A recent survey carried out in the UK, the only other common law jurisdiction in Europe, the UK organisation ACAS (Advisory Conciliation and Arbitration Service) found that only 7% of small businesses in the UK had used mediation to solve workplace disputes. Of the 500 decision makers from small business that ACAS surveyed, 52% felt that mediation was only suited to large organisations.

In Ireland, the Labour Relations Commission (“LRC”) offers a “Workplace Mediation Service”. Mediation should not be confused with arbitration as mediation is a non-binding voluntary service. In addition to the LRC’s service, some employers choose to appoint independent mediators to investigate and meet with employees where workplace disputes arise.

The main benefit of mediation for employers is that minor disputes may be resolved at an early stage.

Finally, mediation aims to offer a solution to issues and, as the above EAT case demonstrates, an employer will be credited with attempting to resolve a dispute in this way. However, these benefits have to be weighed against the fact that any mediation outcome is non-binding. Therefore, the issue can end up being litigated in any event.