EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Tomas Krivanec
- claimant RP1221/2012
UD1704/2012
MN958/2012
against
Murraymac Limited - respondent
under
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
REDUNDANCY PAYMENTS ACTS, 1967 TO 2007
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. T. Ryan
Members: Mr D. Peakin
Mr C. Ryan
heard this claim at Dublin on 6th February 2014
and 22nd May 2014
Representation:
_______________
Claimant(s) : Mr Stephen Brady BL instructed by Mr. Eamonn Denieffe, Coonan
Cawley, Solicitors, Wolfe Tone House, Naas Town Centre, Naas,
Co. Kildare
Respondent(s) : In Person (Directors of respondent company)
Preliminary Point
At the commencement of the hearing it was made known to the Tribunal that the claimant has instituted proceedings in the High Court for personal injuries against the named respondent. In that regard a copy of the personal injuries summons was opened to the Tribunal. This personal injuries summons contained a claim for loss of earnings amongst other claims contained in the Personal Injuries summons. However the claimant’s counsel submitted that this claim only related to a period from June 2011 until August 2011 when the claimant was absent from the respondent’s workplace on sick leave. The claimant returned to his employment with the respondent after this period of sickness and he (counsel) was not asking the Tribunal to make any decision regarding the claimant’s loss of earnings. The solicitor representing the claimant in relation to the personal injuries action in the High Court was not present at the Tribunal hearing as the claimant was represented by a different solicitor in regard to the claim before the Tribunal. Counsel for the claimant submitted that the personal injuries action has nothing to do with the claim brought before the Tribunal and the Tribunal should proceed to hear the claim.
The respondent, in a written submission stated that the proceedings instituted by the claimant in the High Court and the claim before the Tribunal are inextricably linked. It was submitted that the cases should not proceed concurrently at two separate judicial bodies and that the case before the Tribunal should be deferred until the High Court case is finalised. It would be appropriate to deal with the claimant’s claim for compensation initially in the High Court.
Determination on Preliminary point
Section 15 of the Unfair Dismissals Act 1977 (as amended) provides:
Section15 (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 commom 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 employeee 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 provide for the 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 noted that the Personal Injury Summons contained a claim for loss of earnings and the division was not satisfied that there was any evidence that the loss of earnings as pleaded in the Personal Injuries summons was confined to a period from June 2011 to August 2011.
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 PC 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 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 also considered an EAT Determination Morgan v Irish Horse Welfare Trust Limited [2014] 25 E.L.R. 41 in which the EAT granted an indefinite injunction of the Unfair Dismissals Claim pending the resolution of the claimant’s separate personal injuries proceedings in the High Court. In its Determination the Tribunal placed considerable reliance on Cunningham v Intel decision and noted the policy of the law in preventing a defendant being vexed twice with two sets of proceedings covering the same alleged wrong. The Tribunal further notes that the Morgan case was unsuccessfully appealed to the Circuit Court.
For the reasons outlined herein the Tribunal has decided to adjourn the claim under the Unfair Dismissals Acts 1977 to 2007 pending the resolution of the High Court case of Thomas Krivanec v Murraymac Limited High Court Reference HC 2014/37P.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)