EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
EMPLOYEE MN24/2012
- claimant
UD53/2012
WT13/2012
against
EMPLOYER - respondent
under
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
UNFAIR DISMISSALS ACTS, 1977 TO 2007
ORGANISATION OF WORKING TIME ACT, 1997
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. T. Ryan
Members: Mr. N. Ormond
Ms M. Maher
heard this claim at Dublin on 28th August 2013
Representation:
_______________
Claimant(s) :
Respondent(s) :
Determination
At the outset of these proceedings the Respondent's Representative made an application to have the matter adjourned because the Claimant had instituted High Court proceedings for Personal Injuries, loss and damage but which also included a claim for compensation for loss of earnings. The respondent's representative acknowledged that the High Court Personal Injury Summons did not refer to the words 'Wrongful Dismissal' but in reality the claim before the High court and before this Tribunal arose largely from the same set of circumstances. The Respondent's Representative referred the Tribunal to the Personal Injuries Summons which referred to a claim for loss of earnings.
The Claimant's representative opposed the application arguing that there were two separate claims - one for personal injury and one for financial loss and that the two claims were permissible. The claimant was not seeking double compensation. The claim before the Tribunal was in respect of loss of earnings and the claim in the High Court was for damages in respect of personal injuries. The claimant was not asking the High Court to adjudicate on dismissal. The only matter before the Tribunal was for compensation for unfair dismissal. The High Court would be obliged to take into account any award made by the Tribunal and the High Court claim has nothing to do with loss of income.
Section 15 of the Unfair Dismissals Act 1977 (as amended) provides:
“(1) Nothing in this Act, apart from this section, shall prejudice the right of a person to recover damages at common law for wrongful dismissal.
(2) Where a recommendation has been made by a rights commissioner in respect of a claim by an employee for redress under this Act or the hearing of a claim by the Tribunal has commenced, the employee shall not be entitled to recover damages at common law for wrongful dismissal in respect of the dismissal concerned.
(3) Where the hearing by the court of proceedings for damages at common law for wrongful dismissal of an employee has commenced the employee shall not be entitled to redress under this Act in respect of the dismissal to which the proceedings relate.”
That the Tribunal has the right to adjourn a hearing is clear under the Regulations made pursuant to the Redundancy Payments Acts 1967 which deals with procedure at hearings.
S.I. No 24/1967/1968 - Redundancy (Redundancy Appeals Tribunal) Act 1967. Regulation 14 provides "The Tribunal may postpone or adjourn the hearing of an appeal from time to time".
In considering the preliminary application the Tribunal considered Form T1A submitted by the Claimant which details the reasons for her claim as follows:
" I was unfairly dismissed after I made a bullying complaint about [a named person]. No fair procedures were applied". The T1A goes on to state that the claimant was not given statutory or contractual notice, proper breaks or holidays" It is clear to the Tribunal that the claimant's case (in her own words) is that the dismissal flowed from her allegations about being bullied by a [a named person].
The Tribunal then considered the Personal Injuries Summons Record Number: 2013 845 which sets out the claimant's case before the High Court. The Tribunal notes that in the Indorsement of Claim - Paragraph 3 states: "During the course of her employment with the defendant the plaintiff has been subjected to a sustained and on-going campaign of bullying harassment and intimidation.."
Paragraph 5 of the Indorsement of Claim makes a number of allegations against the Defendant/Respondent alleging "workplace bullying", "exposing the Plaintiff to workplace bullying", acting "in breach of its own bullying ...policy"', "Failing..... to reduce the danger posed by workplace bullying".,
Paragraph 6 of the Indorsement of Claim again refers to the bullying which the claimant/plaintiff had to endure.
One of the Reliefs claimed in the Personal Injury Summons is damages for 'breach of contract' which the Claimant's representative confirmed to the Tribunal was a breach of the contract of employment.
Under the heading of Particulars of Items of Special Damage in the Personal Injury Summons the plaintiff/claimant claimed "2 years loss of earnings" which co-incidentally is the maximum award which the Tribunal could award if it decided that the claimant was unfairly dismissed and was entitled to maximum compensation.
In its deliberations the Tribunal considered previous case law, both ancient and recent. It took cognisance of the rule in Henderson V Henderson (1843) 3 Hare 100 which is designed to prevent the duplication of proceedings. The underlying rule in Henderson V Henderson is that there should be finality to litigation (subject to appeal) and that a party should not be twice vexed in the same matter.
In Philip Carrie V Employment Appeals Tribunal and Bus Atha Cliath/Dublin Bus 2008/07749 the applicant brought Judicial Review proceedings in the High Court against a decision of the Employment Appeals (EAT) to adjourn the proceedings before it pending the hearing of proceedings in the High Court on the grounds that:
"The Tribunal is satisfied that both cases are intimately interlinked as establishing the date of the commencement of the compensatable loss for the purposes of the Tribunal would involve making a finding as to the duration of the injury the subject of the High Court claim. For this and other reasons the claim under the Unfair Dismissals Acts 1977 to 2003 is therefore postponed pending the resolution of the High Court case of Philip Carrie V Bus Atha Cliath/Dublin Bus with Record Number 2008/5795P".
In the High Court Sheehan J refused all reliefs sought by the applicant on the grounds that the EAT had acted within jurisdiction in deciding to adjourn the EAT hearing until after the personal injuries action brought by the applicant.
In Cunningham V Intel Ireland Ltd [2013] IEHC 207 Ms Cunningham returned from a combination of sick leave and maternity leave in 2008 and instituted a claim for gender discrimination against her employer on the grounds that Intel failed to allow her to return to her original job as a Workforce Mobility Manager and failed to provide her with a job to match her grade level. In her claim before the Equality Tribunal Ms Cunningham complained that her alleged discrimination affected her "health and wellbeing". Ms Cunningham's claim in the High Court also related the same alleged damage to her "health and wellbeing". Intel brought a motion to strike out Ms Cunningham's personal injury proceedings for abuse of process and/or duplication of her discrimination proceedings in the High Court. In his judgement Hedigan J observed that Ms Cunningham had "attempted to draw an artificial distinction between her Equality Tribunal Complaint and her Personal Injury Proceedings" and ruled in favour of Intel again observing that: "Thus all matters and issues arising from the same set of facts or circumstances must be litigated in the one set of proceedings save for special circumstances".
In Parsons V Iarnrod Eireann [1997] 2 I.R. 523 the High Court heard that the claimant had been dismissed from his employment by the Defendant and brought a claim for unfair dismissal under the Unfair Dismissals Acts. Subsquently he issued proceedings in the High Court seeking a number of reliefs and in particular damages for "wrongful and/or unfair dismissal". In its defence to the High Court proceedings the employer raised a preliminary objection seeking to have the claim struck out as it contravened Section 15 (2) of the Unfair Dismissals Act 1977 (as amended). The High Court allowed the employer's preliminary objection and struck out the proceedings. The plaintiff appealed unsuccessfullly to the Supreme Court. In the course of his judgement, speaking for the Supreme Court, Barrington J set out the statutory boundaries in this way:
"Section 15 of the Unfair Dismissals Act [1977] provides that the worker must chose between suing for damages at common law and claiming relief under the ...Act. Subsection 2 accordingly provides that if he claims relief under the Act of 1977 he is not entitled to recover damages at common law; while subsection 3 provided that where proceedings for damages at common law for wrongful dismissal are initiated by or on behalf of an employee the employee shall not be entitled to redress under the Unfair Dismissals Act 1977 in respect of the same dismissal"
In Quigley V Complex Tooling and Moulding Limited [2009] 1 I.R. 349 Lavan J found that "where the facts of a .. High Court claim were independent of the subsequent dismissal therefore, a claim might be pursued at the Tribunal".
Having considered the facts of the case before it and the relevant case law the Tribunal determines that both cases are inextricably interlinked with bullying being at the centre of both actions. The Tribunal does not consider that there are "special circumstances" as referred to in the 'Cunningham' case that would permit the High Court action and the Unfair Dismissals action to proceed simultaneously. Indeed the the Tribunal takes the view that the claimant is drawing an "artificial distinction" between the two actions. Neither does the Tribunal accept that the facts of the High Court case are "independent" of the Unfair Dismissal claim where a "claim might be pursued at the Tribunal" as set out in the 'Quigley' case.
The Tribunal was conscious of the fact that the words 'wrongful dismissal', were not used in the High Court pleadings but in reality this is what the claimant is claiming while not naming it as such.
For the reasons outlined herein the Tribunal has decided to adjourn this Employment Appeals Tribunal case pending the resolution of the High Court case of Beverly Morgan V Irish Horse Welfare Trust Limited 2013 845op.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)