Scales of justice in need of balance
IT had been a long two years for Linda Magill. Not until September of this year did she finally get the chance to give her side of the story.
For 20 years she had worked at one of the most famous hotels in the country, The Grand in Tramore, Co Waterford. She had started there in 1992 and worked hard at the venue, which had opened almost 200 years earlier.
The Grand is reputedly Ireland’s oldest continually trading hotel. On August 9, 2012, the hotel company dismissed Linda Magill.
Twenty-five months later, on September 8 of this year, Linda got to tell her story to the Employment Appeals Tribunal sitting in Waterford. Her evidence was uncontested as the hotel company, Tompkins Ltd (in receivership), trading as the Grand Hotel, failed to attend the hearing.
At the time of her dismissal, Linda held the position of head housekeeper. She gave evidence of illness due to work-related stress, following a change in proprietorship. On her return from illness, she felt the dynamic of the workplace had worsened and, after a brief altercation with a member of staff, she found herself accused of bullying.
“There was clearly no investigative process and it seems highly unlikely that there were any grounds for the accusation levied against the claimant [Ms Magill],” the tribunal found.
Ruling she had been unfairly dismissed, the tribunal awarded Linda €20,000 and a further €3,400 under the Minimum Notice and Terms of Employment Acts.
No doubt there was a degree of satisfaction in achieving vindication, but the fact that it took over two years to reach that point has underlined one of the great failings in the current workplace dispute resolution machinery.
“Justice delayed is justice denied”, says Gerry Light, assistant general secretary of the trade union Mandate.
The delay factor is just one of the issues identified in the flawed process by the union which represents 40,000 workers in the retail, bar and administration sectors.
“It can take 18 months or two years for a case to be heard and for a very important body [Unemployment Appeals Tribunal], it is really failing in its remit.
“It is also unsatisfactory in that a case that may take two to three days will very often adjourn after the first day and the resumed hearing may not take place for several months afterwards, instead of the very next day.
“And it has become very legalistic with more and more members of the legal fraternity becoming involved,” Mr Light says.
There is no requirement to be represented at the Employment Appeals Tribunal by a legal professional — or even by a trade union representative. Anyone believing an unfair dismissal has occurred can appear.
The initial step for any employee involved in a dismissal arising from a workplace dispute is to seek a decision from a rights commissioner — if the parties agree. This is a relatively informal approach and involves written submissions.
If either side is unhappy with the commissioner’s decision, then it can be appealed to the Employment Appeals Tribunal.
It is not essential that an unhappy worker would first take a case to a commissioner — anyone has the option of going straight to the Employment Appeals Tribunal. The tribunal disposed of 5,304 cases in 2013. A total of 1,228 employees were legally represented at their hearings; 316 had trade union representation and 257 were represented by other persons.
On the other side of the fence, employers had representation in 1,125 cases. Of these, 647 had legal professionals presenting their case, 77 were represented by employer organisations, such as IBEC, and 401 chose to be represented by other persons.
Mandate’s criticisms of the system are largely shared by others availing of the tribunal service, as well as by Jobs, Enterprise and Innovation Minister Richard Bruton.
Announcing a reform of the workplace resolution procedures in 2012, Mr Bruton described the current system as wasteful, in terms of state resources and those of the users.
His contention was underlined in a decision of the tribunal published earlier last month in the case taken by cash-in-transit operator Grzegorz Zwolinski against his employer, G4S Cash Solutions Ireland Ltd.
The tribunal found Mr Zwolinski had been unfairly dismissed in September 2012 following a string of complaints against him.
In the hearing which took place over two days — in May and October last year — a joint branch manager attached to the company’s facility in Dublin 8 gave evidence that the complaints were received by him between May and July 2012 regarding Mr Zwolinski’s behaviour and attitude.
Nine complaints in all were put to him at an investigation meeting and the joint branch manager said he had concluded afterwards that the matter warranted disciplinary action by management.
At a disciplinary meeting conducted by the other joint branch manager, each complaint was discussed.
The manager concluded that because there had been no improvement in his behaviour and conduct and, along with the combination of nine complaints made since the warning was given to him, there was no alternative but to dismiss him.
Mr Zwolinski told the tribunal he had not received sufficient notice of the meeting in February
where he had received a written warning. He felt he had been dismissed because of a back injury he had incurred while working for the respondent in February.
The tribunal said it had carefully considered the sworn evidence and submissions over the two days of the hearing. It found that Mr Zwolinski was unfairly dismissed and awarded him €7,500. But it did not provide any details of the reasons for its decision.
Last year the tribunal awarded compensation amounting to €5,072,741 in 304 unfair dismissal cases.
The average compensation awarded was €16,686 and, many observers would contend, such payouts are a significant factor in either or both sides to a dispute opting for the services of the legal profession.
Acknowledging the “universal acceptance of the need for major reform of the current processes”, Mr Bruton moved earlier this year to shake up Ireland’s workplace relations system.
On July 30, he published the Workplace Relations Bill which he said would result in reform of the state’s complex workplace relations systems.
The bill completed its Second Stage on October 8 and the committee stage on November 6 in the Dáil. The report stage of the bill began in the Dáil on November 12 and is due to be resumed at a later date.
The minister said he aims to have the bill enacted during the first quarter of 2015 with a view to having the new workplace relations structures in place at the earliest possible juncture after that.
Four workplace relations bodies; the Labour Relations Commission (including the Rights Commissioner Service), the National Employment Rights Authority, the Equality Tribunal and the Employment Appeals Tribunal are to be abolished and their functions will be taken over by two bodies: a new Workplace Relations Commission and an expanded version of the Labour Court.
The bill places much emphasis on the early resolution of disputes as close as possible to the workplace without the need for formal intervention.
But where the preference is for a formal hearing, the dispute can be referred to an adjudication officer (replacing the role of the rights commissioner). A panel of 30 additional adjudicators will also be appointed to help deal with the workload.
The Workplace Relations Commission will be the principal body dealing with unfair dismissal claims, effectively replacing the Employment Appeals Tribunal under the new regime. Any appeals from either the adjudication officer or the commission will now be to the Labour Court.
Currently, a decision of the tribunal can be appealed to the circuit court, but under the new legislation, a decision of the Labour Court may be appealed to the High Court, but only on a point of law.
“I’m hopeful it will work more effectively than the current situation,” says Gerry Light.
“We’ll reserve judgment until we see how the new system works. The acid test for us is that people get a fair and speedy hearing and that justice will be dispensed. Certainly, the present system could be more efficient,” he says.
Employers’ organisation IBEC, which appears regularly to represent its members in unfair dismissal cases, says while the new legislation promises many welcome reforms to the existing institutions, it also raises “some serious concerns” for employers.
IBEC says it fears that the proposed expansion of the Labour Court, to facilitate its wider remit, will not be sufficient to meet the expected demand. It is also concerned about the ending of the right to appeal a decision of the tribunal to the circuit court under the new regime.
“The only available appeal will be appeal on a narrow point of law to the High Court. Given the extra expense and narrow basis of such an appeal, in most cases the effect of this change will be employers will no longer have any meaningful avenue of appeal to the courts under the Unfair Dismissals Acts,” IBEC says.
The employers’ body says it has long argued people who lodge employment- in-law claims should pay a modest fee — a similar amount to that charged by the Small Claims Court.
“This would be an appropriate way of discouraging claimants who lodge claims but who have no serious intention of pursuing them, causing significant cost to the taxpayer.
“Unfortunately, Minister Bruton has indicated that he does not intend to introduce a charge of lodging claims, but the introduction of a power to levy fees would be a valuable first step towards this necessary reform,” it contends.
But much of IBEC’s criticism concerns the National Employment Rights Authority.
“One concern is the bill will place the inspection authority within the same structure as the adjudication officers and will bring inspectors operationally closer to the Labour Court,” says IBEC.
“This gives rise to serious concerns about fair procedures.
“In circumstances where employers disagree with the views of authority inspectors, they will have to argue their case in front of people who work within the same organisation as the inspectors.”
The employers’ body also expresses unease about the proposed power for rights authority inspectors to levy on-the-spot fines of up to €2,000 on employers for alleged breaches of employment law.
“Although the list of offences which will be made subject to on-the-spot fines is short, employers will have legitimate concern that the list will grow longer if on-the-spot fines begin to produce revenue for the State.”
The distinctly separate agendas of employee and employer will undoubtedly continue to evoke differing sentiment. But sometimes, no matter what the view, or the circumstances, nobody wins.
Clifden, Co Galway, bank manager, Declan Maher was dismissed in 2011 as a result of a letter he wrote in respect of the availability of a facility of $60m (€49m) to a property partnership in which he was involved.
His tribunal hearing in Galway earlier this year was told that AIB regarded the letter as a letter of sanction in principle and had determined he had used his position to advance his personal interests and exposed the bank to a risk of damage, as well as undermining trust and confidence.
Mr Maher, who had sanction only for loans up to €160,000, denied it was anything other than a marketing letter to drum up business for the bank.
The tribunal found, while the letter was entirely inappropriate, it had not been persuaded it constituted a letter of sanction. It said it was satisfied the breach of trust and “the clear conflict of interest” warranted a serious sanction, but not dismissal.
Ruling he had been unfairly dismissed, the tribunal decided to award Mr Maher €25,000, but said his behaviour had been so egregious and such a contributing factor as to warrant a significant reduction in the level of compensation payable.
-
Derek Beglan went to the Employment Appeals Tribunal alleging constructive dismissal by Scanomat Ireland Ltd, of Maple House, Rosemount Business Park, Ballycoolin Road, Co Dublin. It is engaged in coffee dispensing equipment and coffee sales.
Mr Beglan had worked for the company since 1999 and his employment ended in March 2012. His job entailed sales, working on new deals at head office, dealing with key customers, and managing the firm’s van drivers.
In 2009, his managing director was absent due to illness and subsequently died in 2010. Mr Beglan then began to suffer from work-related stress.
Corrado Morelli Carroll, son of his old boss, was appointed MD in 2011, and “everything began to change”, Mr Beglan said.
Mr Beglan was later presented with new targets, which meant he would have to increase sales by 1,250 per day.
The tribunal found that Scanomat appeared to have set unrealistic targets for Mr Beglan “which by any standards would be impossible to achieve”. He was awarded €70,000.
—
zAn employee of a car hire company suspected of involvement in the theft of a company car won his case for unfair dismissal, and was awarded €17,500 compensation.
Darren Gorman brought his case alleging constructive dismissal against Evergrey, trading as Avis Rent A Car, to the Employment Appeals Tribunal.
He told the hearing, in Dublin, no investigation into the theft had been carried out. Nobody, neither the depot manager nor the gardaí, had contacted him about the matter, Mr Gorman said.
The theft of the company car in late July 2012 was the final issue for him.
He had been suspended for suspected involvement and while he later received a letter to say he could resume duty, it did not exonerate him.
There had also been previous issues and he subsequently resigned.
The tribunal found the company erred when it did not investigate for itself the circumstances surrounding the theft of a car.
-
The Employment Appeals Tribunal ordered the airline catering firm to pay sacked supervisor Joe Smith €50,899 after ruling he was unfairly dismissed.
Gate Gourmet, based in Dublin Airport, sacked Mr Smith following a probe sparked by the gone-off snack. Mr Smith had an unblemished 19-year service record.
The investigation began after a customer complained in April 2012 that Gate Gourmet supplied it with a wrap that was out of date since February 2012.
The probe found Mr Smith failed to follow standard operating procedures and Gate Gourmet’s production manager fired him.
The EAT found there was a failure of stock control procedures. However, it found “it was unfair and unreasonable to conclude the claimant was solely and exclusively responsible”.
—
-
Vladomir Okuril took his case against Stephen Colhoun Ltd of Gortnavilly, Lifford, Co Donegal, to the Employment Appeals Tribunal after he was fired along with two others for alleged fraud, theft and dumping of the trees.
The company had a contract to replant trees for the National Forestry Board, at various sites.
In May 2011, 30 bags of new trees — 3,000 in all and worth €6,500 — were discovered dumped 3-5km from a planting site where Mr Okuril and the other two members of his team had been working.
The tribunal ruled the company bore the onus to justify the dismissal and had failed to do so. “There was an assumption of collective guilt which should not have occurred and the circumstances that existed did not justify a summary dismissal.”
The Employment Appeals Tribunal has ordered George Jackson and James Quinn, trading as Dellchem Chemist Deliveries, to pay €35,000 to Noel Duggan after finding that the firm had unfairly dismissed the van driver.
Mr Duggan was involved in a road crash on November 23, 2010, and was hospitalised for a week and was unfit for work for 13 weeks.
The tribunal recorded that when Mr Duggan informed his operations director he was ready to return to work on February 14, 2011, the director told him there had been a restructuring.
The tribunal found that “as there were no grounds to justify the claimant’s dismissal, the tribunal finds that the dismissal was unfair”.
zA worker at a major dairy manufacturing company, who a tribunal was told was bullied, given menial tasks, and told he was “a fat tub of shit” by his supervisor, was awarded €25,000.
John O’Connor eventually resigned his position as a general operative with Dairymaster, a global leader in dairy innovation and technology. The company, based in Causeway, Co Kerry, employs 300 and exports to 40 countries.
Because of his treatment at the hands of his supervisor, Mr O’Connor had to give up what he believed would be a job for life. He became unwell, was under medical care, and had to undergo counselling when he quit after 12 years there.
He took a case against Dairymaster for constructive dismissal, telling the Employment Appeals Tribunal that he was repeatedly given dirty and unpleasant tasks not allocated to other workers.
The tribunal found Dairymaster had acted unreasonably and it was reasonable for Mr O’Connor to resign.
CONNECT WITH US TODAY
Be the first to know the latest news and updates
