EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Sarah Hickey UD384/2012
against
Bloomfield House Hotel,
and
Bloomfield Hotel Company Limited,
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. P. McGrath BL
Members: Mr. T. O'Sullivan
Mr. N. Dowling
heard this claim in Mullingar on 30 October 2013 and 18 March 2014
Representation:
_______________
Claimant(s):
Mr. Shane Geraghty BL instructed by
Nooney & Dowdall Solicitors, Mary Street, Mullingar, Co. Westmeath
Respondent(s):
30 October 2013 Hearing: Mr. Michael O'Sullivan, ARRA HRD, Castlelost West,
Rochfortbridge, Co. Westmeath
Subsequent to 30 October 2013: Ms. Claire Bruton BL instructed by Ms. Elaine McDonald, J.A. Shaw & Co., Marlinstown Office Pk., Mullingar, Co. Westmeath
The determination of the Tribunal on Preliminary Issue raised on the 18th of March 2014 was as follows:-
On the 18th of March 2014, an application was made to the division of the Tribunal for the postponement of these proceedings which were first heard before the Tribunal on the 30th of October 2013 and in circumstances where the Claimant is still on Oath having already given a half day of evidence to this Tribunal on that day. The case was adjourned to be resumed on the 18th of March 2014.
The claim herein is one for Constructive dismissal arising out of the Claimant’s employment with the Respondent Hotel wherein she commenced her employment in June of 2008 and resigned her employment in or around the 2nd of February 2011 (per the T1A form).
The Tribunal is bound to note that no application for a postponement was made on the 30th of October 2013 date although the reasons for seeking the postponement on the 18th of March 2014 did pertain on the 30th of October 2013.
In essence, the Respondent Company is seeking a postponement of these proceedings for at least an eighteen month period to allow High Court Personal Injury proceedings to run their course. These High Court proceedings have been initiated by Personal Injury Summons which issued on the 15th of February 2013 (a year after the alleged dismissal) and have been brought by the Claimant against the Respondent. The Summons has been opened to the Tribunal and the claim is one for personal injury arising out of the Respondent’s purported treatment of the Claimant in the workplace.
It has been put to the Tribunal that the pleadings outlined in the Personal Injury Summons are almost the exact same as the evidence given by the Claimant at the oral hearing in October of last year. The Respondent makes the case that at some point in the future the High Court will be asked to hear the exact same evidence and facts which this Tribunal, an “inferior” Tribunal (no offence taken), will have already heard. It has been put to the Tribunal that this Tribunal, in the course of it’s own determination may make findings of fact based on it’s own assessment of the evidence. The Respondent has expressed concern at the prejudicial nature of any findings of fact and in particular, of course, where the Tribunal makes findings of fact against the Respondent. The Tribunal is not a Court of record and the Respondent expressed disquiet at the proposition that the High Court would defer to findings of fact made by the Tribunal.
The Tribunal has been asked to consider the principle set out Henderson -v- Henderson (1843) 3 Hare 100 which supports the proposition that there should be finality in litigation and that a party should not be twice vexed in the same matter. Mr Justice Hedigan in the case of Cunningham -v- Intel Ireland Limited [2013] IEHC 207 accepted this principle when he said “ 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”.
The Tribunal is absolutely mindful of the desirability of not duplicating proceedings, but must balance this requirement with the honest exercise of it’s own limited Statutory function and jurisdiction.
In the context of the within proceedings the Tribunal is being asked by the Claimant to make a finding that the Claimant has terminated her Contract of Employment in circumstances where her Employer’s conduct has made it reasonable for the Claimant to do so (see the definition of Constructive Dismissal – s.1 of the Unfair Dismissals Act, 1977). The Claimant must prove her case as the burden of proof shifts to her. Should the Claimant be successful and the Tribunal finds that there has been an unfair dismissal then the Claimant is entitled to redress where financial loss can be attributed to the dismissal (see s.7 of the Unfair Dismissals Act, 1977).
Financial loss is, in practice limited to the remunerative loss or income loss as experienced by a Claimant who has been found to be unfairly dismissed and where such financial loss is attributable to that dismissal (up to the value of 104 weeks). Financial loss in this context does not:-
“encompass any scope for a claim under any heading in the law of torts, nor for the awarding of punitive or exemplary damages.” Per Mr Justice MacMenamin in the case of Stephens v Archaeological Development Services Limited 2010 IEHC 540.
It is worth noting that Mr. Justice MacMenamin in the Stephens case followed the observations of Mr. Justice Lavan in the earlier High Court case of Quigley –v- Complex Tooling and Moulding Limted [2009] 1 I.R. The two cases create a line of authority for the proposition that where an employee has acquired a common law cause of action against an employer prior to his dismissal, the cause of action in tort might proceed in the High Court and may exist independently of the infringement of the Statutory right not to be dismissed unfairly. The Tribunal notes that both Honourable Judges of the High Court approved the considered House of Lords decision of Eastwood -v- Magnox Electric plc [2004] 3 WLR 322.
It is the established practice, recognised by the parties herein, that redress can only be made in respect of periods of time where a Claimant is available for work and making active efforts to find such employment and indeed the Tribunal makes quite onerous demands of mitigation on the part of Claimants before it. Thus, where a Claimant is found to be unavailable for work by reason of ill-health, the Tribunal is not in a position to compensate for those periods of time. The Tribunal therefore recognises that the question of avoiding “double recovery” should be guarded against at all times. This issue being one raised by Mr. Justice MacMenamin in Stephens as being an important caveat when allowing cases proceed in two distinct fora.
The Claimant’s legal representatives indicated that they recognised that there could be no question of double recovery and that the High Court would not be asked to award damages for periods of time post dismissal where the Plaintiff suffers Financial Loss (as recognised by Statute) attributable to the fact of Dismissal.
It is certainly nuanced, but there is a very real demarcation line to be drawn between the consequential Financial loss suffered by the employee who has been unfairly dismissed and the General damages awarded to the Plaintiff who has suffered personal injury as a result of how she has purportedly been treated at the hands of a Defendant employer. The Tribunal cannot and does not make any assessment in relation to Personal Injury issues – that is the preserve of the Civil Courts. The Tribunal can however, assess Financial loss which is directly attributable to the Unfair Dismissal.
The Respondent further opened the case of Marie Cunningham -v- Intel Ireland Limited [2013] 24 ELR 233 to the Tribunal. The Tribunal finds that a clear distinction may be drawn between that case and the line of authority set up by Mr Justice Lavan and Mr. Justice MacMenamin insofar as the Equality Tribunal and the Labour Court on Appeal can assess compensation in the manner more generally attributable to the way in which the Civil Courts might be expected to assess general damages for personal injury. Indeed, in the case of Ntoko -v- City Bank [2004]ELR 116 the Labour Court observed it would not be inappropriate for it to consider the Plaintiff’s medical reports in assessing the compensation to be awarded. This could certainly give rise to the possibility of the “double recovery” which is to be avoided.
In response to the Respondent’s application for a long term postponement, the Claimant herself gave evidence to the effect that she was anxious to have her Employment Appeals case proceed as expeditiously as possible. The Tribunal division in its own deliberations had some sympathy for the Claimant. This case was started in October of 2013 and the Claimant had given comprehensive evidence in relation to the workplace relationship. As it happens, not much emphasis has been placed on any health issues which may have arisen and the thrust of the evidence already heard was in connection with the Claimant’s need to establish that she had acted reasonably in opting to resign her position. The Tribunal further had to take into consideration the fact that the time for making such an application was back in October 2013 before the Tribunal had engaged with the process of hearing this case. It would be unfair to the Claimant if she was now being asked to put these proceedings on hold for an indefinite and unknowable length of time. It is noted, in this regard, that the Respondent was vague about when the Personal Injury proceedings might be expected to come on and no effort was made inter partes to come to an agreement about pushing the Civil action on as quickly as possible.
The Tribunal thus recognises that there are Special Circumstances which allow this division of the Tribunal, as a matter of practicality and in the interests of justice and expediency, to refuse the application for the postponement as sought.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)