Our latest review considers two cases where employees were awarded €45,000 and €40,000 respectively in two unfair dismissal cases involving insufficient investigation by the employers. It is also a timely reminder that these difficult economic times make it harder for employees to mitigate loss by finding alternative employment. We’ve asked Anna Broderick of Eversheds to review both cases.


Fleming V National Irish Safety Organisation Limited UD1032/2008

Facts

The claimant (the employee) worked for the respondent organisation (the employer) from April 2006 until her resignation in July 2008. The employer provides advice on health and safety matters.

The employer was beset by internal rivalries and appointed three separate CEO’s during the employee’s employment. One former CEO, who still worked for the employer in a different capacity, sent an email to members of the executive committee accusing the employee of bullying.

The employee was not informed about this email. However, an article appeared in the Sunday Tribune about a senior executive accused of bullying and the employee understood that article was about her. The employee was subsequently shown the email and requested an independent investigation. The employer stated it would check if the complaint was being dealt with as part of an ongoing Labour Relations Commission investigation. If not, it would be dealt with separately.

While the former CEO was suspended for breach of confidentiality, this suspension was lifted and the employer failed to instigate an investigation.

Determination

The Employment Appeals Tribunal (the "EAT"), which was chaired by Mr D Hayes BL in Dublin on 19 January 2009, 20 April 2009, 21 April 2009 and 8 July 2009 found that the employee’s resignation amounted to a dismissal and awarded €45,000 to the employee under the Unfair Dismissals Acts.
http://bit.ly/8mHdTq


Kennedy v Athlone Extrusions Limited UD1235/2008

Facts

The appellant (the employee) who worked for the respondent (the employer) for 20 years was dismissed from his job in August 2007. The employee worked as a team leader with responsibility for quality control, supervision and management.

The employee was dismissed when materials produced were of an allegedly defective nature. The employer did not carry out an investigation into the quality of the materials. Following an initial investigatory meeting, the employee went missing for over a week and the employee subsequently lied to his employer about his whereabouts. Throughout this period the employee was suspended.

The employee eventually attended a disciplinary meeting. Following this meeting, his employment was terminated. The employee appealed the termination but the decision was upheld.

Determination

The EAT, which was chaired by Mr J Fahy BL on 26 February 2009 and 2 September 2009, found that the employee was unfairly dismissed and awarded him €40,000 under the Unfair Dismissals Acts.
http://bit.ly/5MIpEE


Legal Review of Cases

In Fleming, the employee was required to prove that she was constructively dismissed due to the inaction of her employer. The burden of proof in a constructive dismissal case lies with the employee and the employee is required to put his case first before the EAT.

In this case, the employee was required to prove to the Tribunal that her working conditions were so intolerable that she had no choice but to resign. The leading case on constructive dismissal is Byrne v RHM Foods (Ireland) Ltd UD69/79 where an employee was given no work to do, her telephone cut off and filing cabinets removed. Although the employee in Fleming did not have her work taken away from her, a very serious allegation of bullying was published in the paper and her employer failed to investigate this most serious matter.

All employers must have a comprehensive policy in place to deal with complaints of bullying and harassment in the workplace. This policy should set out a non-exhaustible list of what constitutes bullying and define a clear procedure for reporting and investigating all claims of bullying. Employers can also refer to the Health and Safety Authority’s 2007 ‘Code of Practice for Employers and Employees on the Prevention and Resolution of Workplace Bullying’. In this case, the employer’s loss could have been mitigated if a transparent system existed and if the employer had addressed the publicised complaint of bullying.

In Kennedy, the EAT had regard to the employee's long standing service with the employer and found that his position of responsibility was onerous. Despite the fact that the employer held an investigatory meeting, a disciplinary meeting and allowed the employee to appeal the decision, the EAT held that the disciplinary procedures were flawed.

This case is a reminder to employers that fair procedures remain integral to any disciplinary process.

The EAT highlighted the fact that members of the investigatory team also attended the disciplinary hearing and recommended the dismissal of the employee. It also transpired that a member of this team had unresolved issues with the employee. The appeal process was also flawed as the adjudicator had prior knowledge of the allegations. Despite the employees evasive attitude during the proceedings the EAT found that the employer acted in a disproportionate manner.

In Kennedy after his termination the employee was only able to find sporadic work as a gardener. The employee was not able to mitigate his financial loss after his employment was terminated.

Finally, both employees in these cases were given substantial monetary awards by the Tribunal. In all unfair dismissal cases employees have a duty to mitigate their loss. In the current climate employees are finding it more difficult to find alternative employment, so like Kennedy employees are unable to mitigate their loss. However, in advance of any unfair dismissal case employers should seek particulars of financial loss and evidence from the employee that they have tried to mitigate their loss. All financial evidence will be taken into account by the EAT when making its determination.