THE EMPLOYMENT APPEALS TRIBUNAL ANNUAL REPORT IN A NUTSHELL

Since 2007 there has been an ever increasing number of employment disputes referred to the Employment Appeals Tribunal. According to the Employment Appeal Tribunal’s most recent report which was published in December 2013, the number of cases disposed of has risen from 2,807 in 2007 to 7,624 in 2012, an increase of 172% in the period. 

Interestingly there has been a notable decrease in the number of cases referred to the Tribunal in 2012 compared with previous years. Between the years 2004 and 2007 the number of cases referred to the Tribunal averaged 3,500 per year. According to the report, in 2008 the first major increase occurred when 5,457 cases were referred to the Tribunal. An average of 8,800 was received in the years 2009-2011 with a high of 9,458 in 2009. The first major decrease in the number of cases referred occurred in 2012 when the drop was from 8,458 in 2011 to 5,623 in 2012 (a 34% decrease). 

The unprecedented growth in the referral of cases has had a knock on affect on the waiting period for a case to be heard. In Dublin the average waiting period is 77 weeks and 82 weeks in provincial areas. 

In 2012 the top 6 categories of case referred to the Employment Appeals Tribunal in 2012 were:

1. Unfair dismissal 31%

2. Redundancy 22%

3. Minimum Notice & Terms of Employment 17%

4. Payment of Wages Act, 1991 14%

5. Organisation of Working Time Act, 1997 7%

6. Terms of Employment (Information) Acts 5%.

Unfair Dismissals Acts 1977 to 2007

According to the report, in 2012 the Tribunal disposed of 1,791 unfair dismissal cases and awarded compensation amounting to €6,981,979.49 in 377 cases. The average amount of compensation awarded by the Tribunal was €18,519.84. In addition to compensation the Tribunal ordered re-instatement in 4 cases and re-engagement in 10 cases.

Other Claims

In addition to the cases referred above there were 11 cases referred under the Maternity Protection Acts 1994 and 2004 compared with only 2 referrals in 2011; 2 under the Parental Leave Acts 1998 and 2006; 72 cases under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (TUPE); and 28 cases under European Communities (Protection of Employment) Regulations 2000. 

929 cases were referred under the Minimum Notice and Terms of Employment Acts 1973 to 2005 and it is notable that 844 of these were allowed.

Representation 

There is no requirement for representation in order to bring a case before the Tribunal.

In 2012 1,917 employees had representation at their hearings. Of these, 397 cases representation was by Trade Unions; 1,196 employees were represented by legal professionals; and 342 were represented by “other persons”.

In the same period employers had representation in 1,116 cases with 659 by legal representatives, 390 by other persons, and 67 by employers’ associations.

The highest level of representation according to the report was in unfair dismissal cases.

If you would like further information or have an employment query please contact catriona(at)brophysolicitors.ie

Constructive Dismissal – am I entitled to bring a claim for constructive dismissal?

Constructive Dismissal is defined in section 2 of the Unfair Dismissals Act 1977 as:-

“The termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee to terminate the contract of employment without giving prior notice of termination to the employer”.

I am regularly meeting with clients who tell me that they are being bullied and harassed at work, sometimes by their employer, other times by a work colleague. A complaint is made against the aggressor in question, but no adequate or any steps are taken by the employer to resolve the situation and nothing is done about the allegations. This serious failure on the part of the employer, who has a duty of care towards their employees, only serves to diminish the mutual bond of trust and confidence between an employer and an employee and the employee is left with no option but to resign. Other circumstances giving rise to constructive dismissal include a unilateral reduction in pay, a deterioration in the working environment, change of job functions, change in working hours, unwarranted warnings, change of location of the job, lack of a pay rise, sexual harassment in the employment. An employer’s failure to pay tax and PRSI contributions on behalf of an employee has also been held to be sufficient grounds to entitle an employee to succeed in a claim of constructive dismissal.

However, with constructive dismissal the burden of proof is on the employee as he/she needs to prove that his/her resignation was justified and the burden of proof is a very high one. This can be contrasted with a case of unfair dismissal where the employer must prove that the dismissal was fair and justified. An employee must be able to show that their decision to terminate their employment was reasonable.

Where an employee has a difficulty in the workplace, before resorting to a claim of constructive dismissal, it is crucial that his/her employer is on “notice” of the difficulty and has been given an opportunity to resolve the matter internally. If an employer has a Grievance Procedure in place, then is must be utilised by an employee in an attempt to remedy his/her complaint before embarking on a claim for constructive dismissal.

This high burden of proof on the employee is illustrated in the recent January 2013 decision of the Employment Appeals Tribunal in the case of Daniel O’Gorman v Glen Tyre Company Limited.

In this case the claimant, Mr. O’Gorman, was a mechanic who had gone on sick leave in May, 2010 and did not return to work. He resigned from his position in September, 2010 and brought a case for constructive dismissal. The Employment Appeals Tribunal (EAT) in its decision referred to the burden of proof on the employee as being a ‘very high one’. It held that the employee must prove that his resignation was not voluntary.

The EAT must look at the contract and decide whether there has been a significant breach of the employment contract going to the root of the contract. If there has not been a breach by the employer, the EAT will then look at the conduct of the employer and employee and decide on the ‘reasonableness’ of the decision of the employee to resign.

The claim by the claimant for constructive dismissal fell under three headings:

1. The excessive workload placed on him;
2. Exclusion in the workplace, for example at lunch breaks; and
3. Being bullied and harassed in the workplace

He left work in May, 2010 and did not return due to work related stress. However, the employer stated that he did not know this until he received the second medical certificate.

The EAT held that it is crucial in a constructive dismissal case that the employee fully informs the employer of the complaints being made against him and gives the employer the opportunity to resolve the problems. Accordingly, the EAT found no significant breach of contract going to the root of the contract which would have prevented the employee from carrying out his duties as per the contract. The EAT then examined the conduct of both parties and found that the decision of the employee to resign was not a reasonable one and accordingly, the claimant’s claim failed.

If you would like further information or advice on constructive dismissal please contact Catriona Sharkey at catriona@brophysolicitors.ie

Catriona Sharkey

Brophy Solicitors