In recent weeks there have been many cases in the Irish courts surrounding the issue of dismissal. This week we have decided to provide readers with an update of recent unfair dismissal case law. More reviews will follow in our fortnightly review of developments on Friday.

We have four cases in today's email, three of which are from the EAT and one from the Labour Court.

The cases cover the following issues:

1. The first case looks at unfair dismissal and the failure of the employer to provide the employee with details of allegations against him
2. The second addresses the need for an employer to ensure and prove that it complies with the Employment Equality Acts, as well as the Unfair Dismissal Acts when dismissing an employee
3. The third looks at an employer's decision to dismiss an employee automatically, following the employees breach of health and safety
4. The final case looks at an employer who "manufactured" circumstances in order to lay off an employee

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1. Jonathan Costello v Absolute Drain Services Limited T/a Greenday Environmental [2014] IREAT UD646/2012

Unfair Dismissals Acts, 1977 to 2007

Keywords: Unfair Dismissal

The claimant case surrounded an employee who worked as a truck driver for the respondent company.

The claimant said the problems began when he returned from sick leave, when the respondent accused the claimant of breaking the truck by driving it with the PTO engaged. The claimant denied this accusation and claimed he was not given information surrounding when this was alleged to have happened.

The claimant claimed that the managing director did not invite him to a disciplinary hearing but rather told the claimant that "he could accept 4 weeks' pay or he could walk.". The claimant subsequently left that day.

The respondent, on the other hand, claimed that on being presented with the written report showing that the damage to the truck had been caused by driving with the PTO engaged, the claimant refused to engage in a disciplinary meeting the following day but rather wanted it settled then and there. As a result the claimant, according to the respondent, proceeded to throw down the papers and walk out.

The tribunal stated that it appeared from the evidence that following the breakdown of the truck the managing director had formed the view that he no longer wanted to employ the claimant. The tribunal noted how the managing director failed to invoke any disciplinary procedure against the claimant and failed to provide the claimant with details of the allegation against him. It was on this basis that the tribunal found the dismissal to be unfair and consequently awarded the claimant €40,000.
http://bit.ly/1foP4RY


Practical Lessons from this case:

This case demonstrates the importance of ensuring that as an employer you notify employees of any allegations and the details of those allegations being made against them which could result in disciplinary proceedings. It further demonstrates that failure to follow any disciplinary procedure could result in the employer being found to have unfairly dismissed the employee.


2. D.S.G. Packaging Limited v Krystian Matuszak [2014] EDA1413 IRLC

Industrial Relations Acts, 1946 to 1990
Section 83, Employment Equality Acts, 1998 to 2011

Keywords: Discriminatory treatment; harassment and discriminatory dismissal

Unfair dismissal is, of course, not the only jurisdiction of which employers need to be aware if dismissing employees. The complainant in this case, Mr Matuszak, submitted a complaint to the Equality Tribunal in which he stated that he had been subjected to discriminatory treatment, harassment and discriminatory dismissal by the Respondent on the ground of race. These claims were investigated by an Equality Officer who decided that the claims were not well-founded. Subsequently the complainant appealed this decision.

The complainant is a Polish national and worked for the respondent. The claimant claimed that he raised an issue with the respondent with regards to the production line on which he was working and the respondent subsequently summarily dismissed him from employment. The respondent didn’t deny that proper procedures were not followed in this dismissal. However, the respondent did note that it had dismissed other employees in the same fashion, regardless of the employees nationality.

Section 85(a) places the burden of proof in cases of discrimination upon the complainant. The complainant held that whilst the respondent had fired other employees in the same fashion, Irish workers that had infringed the company policy were treated in a more lenient way; he presented evidence to the court of three cases of Irish employees who were treated in a less harsh manner.

The Court held, therefore, that from the evidence that had been presented to the Court the complainant had succeeded in establishing facts from which an inference could be drawn.

The Court held that "the respondent failed to discharge the burden of proving it complied with the Acts when it dismissed the complainant'. On the basis of this conclusion the Court ordered the respondent to pay the complainant compensation of €15,000 for the breach of his rights under the Equality Acts.
http://bit.ly/1jVitWx


Practical lessons from this case:

This case reminds us that once the complainant has succeeded in establishing a prima facie case, the burden of proof then transfers to the Employer to prove that they comply with the Acts. Arguing equally bad treatment of all employees can be a defence but it failed in this case because the complainant could should inconsistent behaviour in relation to other nationalities.


3. Tomasz Burczy v Tesco Ireland Limited [2014] IREAT UD618/2012

Unfair Dismissals Acts, 1977 to 2007

Keywords: unfair dismissal; breaching health and safety policy

The claimant was employed as a warehouse operative for 4 years before being dismissed for breaching a health and safety rule. This breach of health and safety surrounded the claimant using his mobile phone whilst driving and operating mechanical handling equipment vehicle in the warehouse.

This breach was despite the claimant and other staff recently being briefed on the use of mobile phones whilst operating equipment. The section manager was ordered to investigate the allegation of the breach of the health and safety rule. Upon investigation the claimant stated that he did look at his phone but only to check the time and that he was sorry for his actions.

The claimant was subsequently suspended with full pay pending investigation.

The respondent noted that the issue of use of mobile phones whilst driving a mechanical vehicle had caused problems prior to this and as such the company had changed the policy on sanction for such actions to mean that instant dismissal could be a consequence. This was communicated to the employees.

The operations manager was of the view that, "the purpose of using the mobile was not relevant at all as using, holding and/or checking a mobile phone use was not permitted while operating a vehicle". Without further checking evidence or interviewing the depot manager, the operations manager decided to dismiss the claimant. The claimant appealed this decision but the project manager upheld the decision of the operations manager.

The claimant argued that he was shocked by the decision to dismiss him as other employees had breached the policy previously and had received final warnings. Therefore, he argued that this policy was inconsistent.

The tribunal held that "there were any number of lesser sanctions the respondent could have imposed on the claimant." On this basis the tribunal found that the claimant was unfairly dismissed but the tribunal recognised that the claimant significantly contributed to his dismissal considering the extensive training the claimant received surrounding the use of their mobile telephone whilst operating the vehicles. It was on this basis that the claimant was awarded a lump sum of €20,000.
http://bit.ly/1q9IgBK


Practical Lessons from this case:

It is important to note the Tribunal viewed the respondent's decision to sack the employee in this case as rather rash and extreme. It is important that as an employer you consider other disciplinary measures that could be taken rather than automatically dismissing an employee for breach of a company policy.


4. Sheila Campbell v Our World Montessori Limited [2014] IREAT UD298/2013

Unfair Dismissals Acts, 1977 to 2007

Keywords: unfair dismissal; constructive dismissal

The relationship between the parties was fraught. Indeed, the tribunal noted that there was no rapport between the employee and employer. The tribunal accepted that the employer was minded to allow the pre-Montessori class to become redundant; the class for which the claimant was responsible.

The respondent subsequently informed the claimant that there had been an unprecedented downturn in business, calling for a need for voluntary redundancies; the claimant was of the impression that this was to allow the "natural severing" of the employer/employee relationship.

The tribunal held that the respondent had "manufactured" circumstances to allow them to lay off the claimant. For this reason the tribunal found that the layoff was not genuine and did not qualify under the definition under Redundancy Payments Acts.

The tribunal noted that, "Also the employer has to have a reasonable belief that the situation was temporary. The employer never believed this was a temporary situation as by doing nothing to fill the pre-Montessori class the employer was in fact ensuring its demise."

The Tribunal "very firmly recognises that the Respondent employer behaved in such a way so as to orchestrate the demise of the pre-/Montessori class and the consequent obliteration of the claimant's post." The claimant had little option but to leave.

The claimant got what she could out a bad situation, in the tribunal's opinion, by seeking a redundancy payment. The tribunal took into consideration this payment of €7, 000 that the claimant received as a redundancy package and awarded her a further €10, 000 for the unfair dismissal.
http://bit.ly/1fPdqdw


Practical lessons from this case:

This case demonstrates that "manufacturing" circumstances in order to justify dismissing an employee is dangerous and will result in an unfair dismissal finding if the tribunal finds evidence of same.