The three cases are recent decisions from the Employment Appeals Tribunal under the Unfair Dismissal Acts:

1. Constructive dismissal claim successfully defended by employer - UD1587/2011

A reservation sales agent for a car hire company was unsuccessful in a recent claim for constructive dismissal. The claimant commenced employment in 2003 and in October 2010, following a request to revert to a four day working week, the employee complained to his team leader about the pressure that he was feeling in his role. After a month’s absence on certified sick leave as a result of stress, the employee submitted a six page grievance which stated that bad management, excessive coaching sessions, micromanagement, insufficient breaks from his computer and excessive and unrealistic targets had led to him developing work related stress.

The Tribunal were satisfied that the company’s HR Manager carried out a very detailed investigation into the complaints. The investigation report noted that the HR Manager had spent 27 hours in carrying out the investigation. The Tribunal also took account of the fact that the lengthy report gave a positive response to 16 or 17 out of the 23 issues raised by the claimant. It certainly assisted the company in defending this claim that the report demonstrated a very measured response to the complaints raised by the employee and, in response to many of the issues, committed to taking further steps. For example, in relation to the computer problems which the employee reported, the investigation report noted that this was being addressed and that it would be arranged for IT to sit with the claimant and address any of his issues.

The report also noted that the HR Manager was concerned that the claimant had said that he hated his job and acknowledged that there were elements of his role that were unlikely to change. Therefore, the HR Manager offered to look into a different role for the claimant, if he wished her to do so. The HR Manager also promised to update the claimant on items that she had promised further review on.

At the conclusion of the investigation, the HR Manager held a meeting with the claimant and presented him with the report on 16 February 2011. The claimant subsequently submitted a sick certificate for a further period of one month. The Tribunal noted that the claimant did not appeal the outcome of the grievance procedure nor did he ask for more time to consider the report. The claimant resigned by email on 2 March 2011.

Interestingly, the Tribunal noted that most of the claimant’s complaints were of a general nature relating to how he was managed rather than specific actions taken against him. The Tribunal commented that usually a constructive dismissal case is based on issues which personally affected the employee concerned. The Tribunal noted that there may be cases where constructive dismissal arises from the general conduct of an employer towards its employees in general, but it is not the usual case. It was also commented that it did not appear that any of the other 800 – 900 employees took claims for constructive dismissal. The Tribunal was satisfied that the employer reacted fairly and thoroughly to address the claimant’s concerns and therefore their conduct was not such as to ground a claim for constructive dismissal.

This decision is a good illustration of a measured and proactive response by an employee to a detailed grievance. A key takeaway point is the measured report that was issued, which did not simply find against all of the employee’s grievances but showed a willingness on the part of the employer to acknowledge any issues that required further review and work on its part, as well as the employees.

Click here to read the full determination:
http://bit.ly/19E2USE


2. Waiver upheld by Tribunal - UD1042/2011

There is a significant amount of case law from the Employment Appeals Tribunal on the issue of waivers or severance agreements entered into by employees upon termination of employment. The Tribunal assesses the particular facts surrounding the execution of the waiver by the employee in order to determine if the waiver prevents the Tribunal from having jurisdiction to hear a claim.

In a recent decision under the Unfair Dismissals Acts, the claimant’s employment had terminated as part of a compulsory redundancy programme which affected a large number of staff. The claimant had been on sick leave during the redundancy process however he was a member of the trade union which had represented the employees during the process. A meeting was held to finalise the claimant’s redundancy and he was asked to sign a waiver document in full and final settlement of the payments arising from his redundancy. The claimant alleged that he was told that if he did not sign the waiver he would not receive his cheque and he further alleged that he was not given an opportunity to seek representation or advice.

The Tribunal found that the claimant had retained representatives, in the form of his union, to negotiate on his behalf in the course of the redundancy process and that they did so with his consent and agreement. The employee understood that the meeting was for the purpose of formalising the conclusion of his employment. Critically, the Tribunal accepted that while the waiver was only given to the employee at the final meeting with the request to execute it, the employee was given the opportunity to consider the document and he availed of this opportunity. Therefore, the Tribunal found that the employee freely and voluntarily executed the document. It was also noted that the waiver given to the employee had a clause safeguarding the employee’s rights in respect of a claim for personal injuries which he had been pursuing against his employer. In all the circumstances, the Tribunal determined that they did not have jurisdiction to hear the claim.

Aside from the fact that the claimant was not put under undue pressure to sign the waiver at the meeting and was given an opportunity to read through the document and consider it, a key point to this case appears to be that his nominated union representatives had engaged with the company in connection with the redundancy package and that there had been protracted engagement between the company, the union and the claimant’s fellow employees regarding the compulsory redundancy.

Case law from the Tribunal and the Labour Court has established that an employee must give full and free consent to any waiver of their statutory rights when receiving an ex-gratia payment in consideration of doing so. The waiver or severance agreement should specifically list the statutory provisions which the employee is waiving and, critically, the employee should always be given the opportunity to seek independent advice on the consequences of his or her signature.

Click here to read the full determination:
http://bit.ly/16CNFHE


3. Interesting decision on the expiry of previous disciplinary sanctions - UD2072/2011

In this recent unfair dismissal case, the Tribunal made an interesting comment on the expiration of prior disciplinary sanctions. The claimant in this case worked on the till in the respondent’s convenience store/fuel outlet. The claimant had previously received a verbal written warning for poor customer service which remained effective for six months and subsequently, during the following six months, the claimant received a final written warning, arising out of a customer complaint. The incident which led to the final written warning occurred on 18 August 2010 however the final written warning itself was not issued until 29 September 2010 and it was stated to be valid for a period of twelve months.

The claimant was ultimately dismissed after an incident which occurred on 23 August 2011. The employer informed the claimant that due to the fact that her final written warning had not expired, the only option open to them was to dismiss her.

The Tribunal stated that the date which should apply to warnings issued under the Company’s Disciplinary Procedure should be the date upon which the impugned conduct occurs. The final written warning related to an incident on 18 August 2010 and the incident which led to the claimant’s dismissal occurred on 23 August 2011. Therefore, the Tribunal was satisfied that the earlier final written warning had been spent. The Tribunal determined that the Company should have considered that the claimant had no current warnings against her at the time of the incident for which she was dismissed. In addition the Tribunal commented that the incident for which the employee was dismissed was not one which could ever have amounted to an offence warranting dismissal.

The lesson from this decision is that employers should be careful to ensure that the dates of any warnings issued are accurate. A second key point arising from this case is that any decision to dismiss should be examined on its own merits and should not simply be arrived at based on the existence of prior warnings.

Click here to read the full determination:
http://bit.ly/1akypAG