UD234/2014

EMPLOYMENT APPEALS TRIBUNAL

CLAIM(S) OF: CASE NO.

Gemma O'Doherty – claimant UD235/2014

against

Independent Newspapers (Ireland) Limited – respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman: Mr T. Ryan

Members: Mr B. Kealy

Ms M. Mulcahy

heard this claim at Dublin on 9th May 2014

Representation:

____________

Claimant(s): Ms Cathy Maguire BL instructed by:

Ms Aileen Fleming

Daniel Spring & Co Solicitors

5 Fitzwilliam Square, Dublin 2

Respondent(s): Mr Brian Kennedy SC & Mr Ray Ryan BL instructed by:

Mr Kieran Kelly

Fanning & Kelly Solicitors

2 Hatch Lane, Hatch Street, Dublin 2

Preliminary Issue:

Background Summary and Oral Submissions of Counsel.

At the outset of the proceedings the respondent’s representative outlined that he was applying for an adjournment of the claimant’s unfair dismissal case pending the High Court defamation case that has been brought against the respondent and SR the Group Editor in chief. In addition, on the 15 April 2014 the claimant made an ex-parte application to a Division of the EAT Tribunal so that her case could be prioritised. The claim was lodged in the Tribunal on the 8 February 2014. It was unclear what the basis for the priority was.

The respondent’s solicitor contacted the EAT and sought information regarding the ex parte application and decision. The EAT advised by way of a letter dated 24 April 2014 that any issue concerning an ex-parte hearing could be addressed by the Division on the 9th May 2014.

Counsel for the respondent indicated that there were three phases to the application.

Substance & Procedure

2 Background History. He will endeavour to open the background in an even-handed manner some of which is in dispute. Pleadings regarding defamation were opened and responded to by the claimant last week.

3 Plenary Summons and Statement of claim. He will look at the aspects raised in the proceedings. He will identify factual background, process and appeal and there is a clear overlap in the two sets of proceedings.

The claimant was a journalist with the respondent since 1995 until she (her position) was made redundant in August 2013. An appeal was brought by the claimant for unfair selection for redundancy. The claimant maintained that there was no genuine redundancy in the respondent at the relevant time. This was a surprise to the respondent.

The respondent will have a witness to testify that the newspaper industry was under pressure and that the respondent had huge bank borrowings. During the time of the international global economic crisis the respondent made significant and radical changes. There was a reduction of 29 editorial staff so as to deliver €2.9 million in cost savings. There was a move to digital operation and as a result of restructuring there were far fewer journalists employed. It had to decide if a particular position was essential for business or if someone else could do the claimant’s job, and it looked at outsourcing which would reduce costs. Where vacancies arose none were filled.

Applications for voluntary redundancy were invited. Not everyone who applied for redundancy was given a redundancy package. Staff members were selected for redundancy based on criteria. The claimant was selected on a non voluntary basis. The claimant felt it was unfair. It was explained to the claimant in June 2013 that the redundancy criteria was based on the nature of the service not the quality of the service she provided. The claimant was a features writer and was involved in travel writing. It was decided that travel writing could be outsourced. When one applied the redundancy criteria the claimant fell within the criteria.

The claimant was not happy with the redundancy. She claimed that it was a sham and that it was retribution for an investigation of a story concerning quashing of penalty points which had been applied to the Garda Commissioner (MC). The respondent disputed this and stated that the claimant door-stepped the Commissioner’s home on the 11 April 2013 without notice. The Commissioner was away at the time and his wife answered the door. She was upset as was the Commissioner when he heard about it. The respondent apologised to the Commissioner and there the matter rested. The claimant’s story appeared on the front page of the paper a week later. The claimant maintained that this resulted in a campaign against her by the respondent.

There were exchanges involving the claimant prior to her redundancy and solicitors were involved on her behalf. The claimant instituted High Court proceedings for defamation on the 7 February 2014. On the 8 February 2014 the claimant lodged an appeal with the Employment Appeals Tribunal. There may be a Personal Injuries claim but the respondent does not know the status of these proceedings. There are possibly three claims in train, EAT, Defamation and PI proceedings. Notice for Particulars was instituted by the claimant on the 31st March 2014. The respondent has to provide a defence. An Affidavit of Verification has been served.

The Statement of Claim, in the Defamation proceedings, was delivered on the 28 of February 2014 to the respondent and to SR who is not a party to the EAT process. The key point is that it is an unusual defamation action – a case of defamation by conduct and there is a clear overlap with the HC. A jury will consider issues and there would be an overlap of issues in the various proceedings.

At a meeting on the 18 April 2013 the claimant made an alleged defamatory statement. On Wednesday 19 June 2013 the claimant was informed by DC that she (her position) was being made redundant. The claimant maintained that the redundancy was a sham. Counsel for the respondent maintained that there was an overlap of the issues going to arise before the EAT

The fact that the claimant could have the same parallel issues in three separate fora seems unfair. It is unfair on SR and he is not a party to the proceedings in the EAT.

On the 15 April 2014 the claimant sought to expedite her case in the Employment Appeals Tribunal. The Tribunal acceded to the application. The respondent is not sure what was said to the Tribunal on that day and he is entitled to be heard on that. Having regard to the existence of the defamation and possible PI proceedings this, the respondent believes, is not a case which should have been afforded priority.

He referred to case law in the Matter of the Foreign Tribunals Evidence Act 1856 and In a Civil Matter now in a District Court in the United States for Tarrant County, Texas, 141^st Judicial District. Similar issues arose from similar facts. There are three sets of proceedings where similar issues will be raised.

Counsel also pointed out that the Tribunal has the power to adjourn proceedings.

Defamation proceedings have to be heard by a jury. The respondent has a concern that whatever is said at the Tribunal could have a prejudicial effect on the jury especially in the case of SR. It could be unfair to SR if the case in the EAT went ahead.

Counsel then referred to a number of cases:

In an EAT case of Beverly Morgan v Irish Horse Welfare Trust Limited the representative for the respondent made a preliminary application to have the matter adjourned as the claimant had instituted proceedings in the High Court for personal injuries and the facts were inextricably interlinked. The Tribunal adjourned the matter pending the resolution of the High Court case. This decision was upheld on appeal to the Circuit Court.

Carrie .v. Bus Átha Cliatha UD319/08 the Tribunal postponed the case as it was satisfied that both cases are inextricably interlinked as establishing the date of the commencement of the compensable 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 2007 was therefore postponed pending the resolution for the High Court case.

Cunningham .v. Intel Ireland Ltd {2013) IEHC 207: this was summarised in the Morgan case. 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 Quigley .v. Complex Tooling and Moulding Limited {2009} I I.R 349 the key point was that, when an employee had acquired a common law cause of action prior to his dismissal, this cause of action preceded, and was independent of his subsequent dismissal and the statutory rights following. 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”.

Counsel referred to a case of Katherina Stephens .v. Archaeological Development Services Limited which reiterated that there could be no question of double recovery and it may be necessary for a court to intervene by way of case management in order to identify precisely the case to be made before the Tribunal and that which may ultimately come before this Court.

There is an obvious potential for unfairness to the respondent especially SR. The obvious thing to do is adjourn the matter and await the outcome of HC proceedings. If there is a delay this would not put the claimant in a worse position, and if so, it is a consequence of her own making. The ex-parte application by the claimant was unfair and the respondent was not put on notice of the application. The case should not have been given priority and should be put back to its place on the list. He told the Division of the Tribunal that it had the jurisdiction to say that the ex-parte application was flawed. The case was leap frogged and this should not have happened.

Counsel for the claimant outlined that the claimant had not instructed her solicitor at the time the ex-parte application was made. There is no reason why the claimant’s case should not be dealt with expeditiously. She requested that this Division of the Tribunal retain seisen of the case and the claimant is anxious that the matter be dealt with. If the Division adjourned the case it would be as if today did not happen. If the Tribunal decides on priority then the decision is made.

The claimant was an exemplary award-winning journalist whose work has generated two independent enquiries. It is not accepted that the claimant door stepped MC (former Garda Commissioner). The claimant needed an address for MC.

Several contacts occurred between the claimant and management and the discussions were heated. Within weeks the claimant’s status was reduced and her bi-line and photograph in the travel section of the paper were removed without consultation. She complained about that a couple of weeks prior to the penalty point’s issue. The respondent moved immediately to make her position redundant. When examined it looks as if it is a normal redundancy situation. Normal procedures were in place in the respondent for implementing changes and changes to technology but none of the procedures were followed. The claimant was not told that she was a candidate for redundancy. The procedure in relation to redundancy is to inform employees that they are at risk. The claimant was not told about a matrix and who was going to be affected by redundancy.

The claimant was not offered redeployment or a reduction in pay. The matters that one could see in a normal redundancy were absent. It was true that the matter related to an earlier conflict on penalty points.

The legal questions are set out at Section 6.1. 6.3 and 6.4 of the 1977 Act.

The EAT is not obliged to establish the truth of her claims but rather decide if the burden of proof has shifted to the employee and the dismissal was unfair. The potential of a personal injuries claim does not overlap with this claim or the passage of this claim.

When the Tribunal has all the facts it does not have to hear the thrust of assertions made by the claimant. The question is: has the respondent shifted the burden of proof by reason of redundancy?

While factual matters are the same as gave rise to the defamation process it does not mean that there is an overlap in proceedings

This is not a case where the claimant’s case can be litigated in one forum.

She stated that Counsel for the respondent said that the claimant was looking for compensation for financial loss in the defamation process. The claimant is looking for damages for defamation and this is not a claim for loss arising out of unfair dismissal.

Counsel referred to a number of Authorities such as Quigley .v. Complex Tooling and Moulding Limited; UK Authority Johnson .v. Unisys – which decided that if there is loss for dismissal it must be sought in an Industrial Tribunal as a common law remedy is unavailable. Johnson & Unisys can be relied on to limit the claim before the High Court. In Eastwood & Quigley the facts are different in that it relates to matters which preceded dismissal.

The point is that the Tribunal can adjourn but the question is whether the case should be adjourned. There is an issue between the parties and issue estoppel can deal with the situation. Where there is an issue between the same parties and findings are determined between parties you do not need an adjournment to deal with the matter.

She asked the Tribunal to consider the justice of the situation and the claimant’s case should be allowed proceed.

Pursuing a case for Unfair Dismissal before the EAT was designed as a cheap remedy for financial loss and if the unfair dismissal is adjourned pending other proceedings it causes a hardship to employees who bring other claims and lose the opportunity to be compensated. If PI and defamation arise out of same facts it should not have to choose. The case can be dealt with by issue estoppel.

The Tribunal may decide if the true reason was due to a conflict and if redundancy was not the true reason a dismissal was not justified in the circumstances as fair procedures were not followed.

In Cunningham .v. Intel Ireland Limited there were two claims and the case was heard in the Equality Tribunal first on the 3 December 2008 where Cunningham claimed, that following her return from maternity leave she was discriminated against in relation to access to employment, promotion/re-grading, conditions of employment and harassment. She was unsuccessful and appealed this decision to the Labour Court. The plaintiff issued a personal injury summons on the 22nd September 2009 seeking compensation for the stress and health problems arising from the same incidents. In the claimant’s case compensation for unfair dismissal cannot be recovered elsewhere.

SR is not a defendant in the Tribunal case and there may well be no finding of fact. SR is not bound by any finding of fact and not a party to the proceedings.

Determination:

The Tribunal has been asked to deal with two preliminary matters raised by the Respondent namely:

that the claimant’s unfair dismissals claim ought be adjourned to the date it would have normally been allocated had not the claimant applied for an expedited hearing in circumstances where the respondent was not aware such an application was made, and,
that the unfair dismissals claim before the Tribunal should be adjourned pending the outcome of the claimant’s High Court proceedings Record Number 2014 2332P.

1. That the claimant’s unfair dismissals claim ought be adjourned to the date it would have normally been allocated had not the claimant applied for an expedited hearing in circumstances where the respondent was not aware such an application was made.

The Tribunal has the right to adjourn a hearing under the Regulations made pursuant to the Redundancy Payments Acts 1967 which provides 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".

The claimant applied to the Tribunal for an expedited hearing on the 15^th April 2014. This application was made without notice to the respondent. The respondent stated that had it been aware of the application it would have strenuously opposed the application. While the respondent was not heard on the 15th April its objections and concerns were heard and noted by the Tribunal at the preliminary hearing on the 9^th May 2014. This is significant.

The Tribunal considered relevant case law in this area. In relation to procedures the first principle is that a tribunal cannot adopt procedures which are unfair or which imperil a just result.

As Henchy J. noted in Kiely v Minister for Social Welfare (1977) l.R. 267 at 281:

“Tribunals exercising quasi-judicial functions are frequently allowed to act informally – to receive un-sworn evidence, to act on hearsay, to depart from the rules of evidence, to ignore courtroom procedures and the like – but they may not act in such a way as to imperil a fair hearing or a fair result”.

In East Donegal Cooperative Limited v. Attorney General (1970) I.R. 317 at 341 Walsh J stated:

“The presumption of constitutionality carries with it not only the presumption that the constitutional construction is the one intended by the Oireachtas but also that the Oireachtas intended that proceedings, procedures, discretions and adjudications which are permitted, provided for, or prescribed by an act of the Oireachtas are to be conducted in accordance with the principles of constitutional justice”.

In Eircell v. Leitrim (2002) 1 I.R. 479 at 497, O’Donovan J. made the following observation:

“Where a body is making a decision arising from a statutory power and … is obliged to act judicially, then, in the absence of a procedure laid down by the statute from which the power derives, the body making the decision must supplement that lacuna in such a fashion as to ensure compliance with constitutional justice.”

Accordingly, from the perspective of Irish law, the Employment Appeals Tribunal, like any other quasi-judicial body, is under a constitutional obligation to act fairly. This is a superior obligation to any regulatory or statutory provision regarding procedure, or put another way, any procedure must be exercised in a manner than ensures the proper vindications of constitutional rights.

The Tribunal carefully considered whether the Respondent was prejudiced in any way by the fact that it was not notified of the ex parte application on the 15^th April, and came to the conclusion that it was not. The Tribunal has to balance the rights of the claimant to have her case dealt with by the Tribunal as expeditiously as possible while at the same time not prejudicing the Respondent. The Tribunal is conscious of the fact that the purpose of the unfair dismissals legislation is to provide a speedy and cheap hearing for employees who have been dismissed. While the respondent was not heard on the 15th April its objections and concerns were heard and noted by the Tribunal at the preliminary hearing on the 9^th May 2014. In addition both sides were invited to make written submissions which they did and these were also considered by the Tribunal.

The Tribunal is satisfied that:

it has not acted in a way that would “imperil a fair hearing or trial” as referred to by Henchy J in Kiely;
That the proceedings are being conducted “in accordance with the principles of constitutional justice” referred to by Walsh J in East Donegal;
That the EAT is acting in such a way that ensures “compliance with constitutional justice” O’Donovan J in Eircell.

For the reasons set out herein the Tribunal is therefore satisfied that claimant’s claim ought not to be adjourned to its place in the list had not an application been made for an expedited hearing.

That the unfair dismissals claim before the Tribunal should be adjourned pending the outcome of the claimant’s High Court proceedings Record number 2014 2332P.

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 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'.

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'

The claimant lodged a claim for unfair dismissal with the Tribunal on the 8^th February 2014 asserting that she was unfairly dismissed and chose compensation as her preferred remedy as she is entitled to do, (the other remedies which she could have chosen were reinstatement or re-engagement). The claimant issued High Court proceedings on the 7^th February 2014 claiming damages, including aggravated and exemplary damages, for defamation. The Tribunal has to determine if the High Court proceedings and the Unfair Dismissals claim are separate and distinct or inextricably linked. It is long established that there should be finality to litigation and that a party should not be twice vexed in the same matter. This is addressed below.

In the High Court Plenary Summons the Plaintiff (Claimant) claims:

Damages (including aggravated and or exemplary damages) for defamation;
Interest pursuant to s.22 of the Courts Act, 1981.
Further or other relief
Costs.

The Tribunal then scrutinised the claimant’s High Court Statement of Claim for evidence of overlap of proceedings or inextricable link-ability.

The plaintiff/claimant claims she was defamed by words uttered at a meeting on the 18^th April 2013 (and by the respondents alleged conduct) when she was told her story concerning the Garda Commissioner and the penalty points issue was held back because of the “cack-handed” way in which she had handled the situation. The Statement of Claim goes on to set out several instances of alleged defamatory conduct, such as: [she] “was professionally inept and incompetent at her job”; she was “a liar”, hypocrite”, “untrustworthy”etc.

The Tribunal notes that there are several references in the Statement of Claim to the claimant’s employment:

Paragraph 17 refers to a “concerted campaign by the defendants (respondents) to oust the plaintiff (claimant) from her employment”
Paragraph 18 that the plaintiff (claimant) was being made redundant “whether she liked it or not”.
Paragraph 19 pleads that the redundancy was “a sham” concocted as the most expedient way to remove the claimant from her employment;
Paragraph 23 (iii) “there were grounds to justify the plaintiffs (claimant’s) dismissal from her employment.”
Paragraph 24 refers to “the public mistreatment of the plaintiff (claimant) in her employment”
Paragraph 25 the plaintiff (claimant) pleads “as a result of the foregoing the plaintiff has suffered and continues to suffer loss….”

The Tribunal notes that there is clearly no claim for compensation for loss of earnings, other than a reference to “loss” at paragraph 26 of the Statement of Claim which we will deal with below.

The Tribunal then considered the case law against this background. 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. This Tribunal does not accept that the same matter is being tried before the EAT and the High Court. The claim before the EAT is for compensation for unfair dismissal while the claim before the High Court is for damages for defamation.

In Philip Carrie V Employment Appeals Tribunal and Bus Átha 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 compensable loss for the purposes of the Tribunal and 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 Átha 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 the case now before it the Tribunal does not accept that the cases “intimately interlinked”.

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 the case before this Tribunal it is clear that all matters cannot be litigated in one set of proceedings; the Tribunal cannot make a determination on the defamatory proceedings in the High Court and the High Court cannot make a ruling in relation to the Unfair Dismissals Claim.

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. Subsequently 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 unsuccessfully 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 choose 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 the case before the High Court there is no claim for “wrongful and/or unfair dismissal” in any guise.

In Johnson v Unisys ltd [2001] UKHL [2003] 1 AC518 and Eastwood v Magnox Electric PLC [2004] UKHL35 [2005] 1 AC 503 the English House of Lords made clear that an employee is not entitled to circumvent the statutory unfair dismissal regime and bring a claim at common law for damages where it is alleged that his dismissal breached the implied term of trust and confidence. Such a claim falls within what has become known as the Johnson exclusion area which should be adjudicated in the Employment Tribunals and not the ordinary courts.

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".

In Stephens v Archeological Development Services Limited [2010] IEHC 54 MacMenamin J. opined that an employee might not be precluded from suing in the High Court and also bringing a claim before the Tribunal for unfair dismissal, stating:

“I am satisfied that the observations in Quigley by Lavan J. are illustrative of a distinction the lines of which were fully set out in Eastwood, and which apply in our law. Provided a demarcation line can be similarly drawn, the effect of Quigley should be followed by this court. I say this subject to two caveats. Firstly, clearly, there can be no question of double recovery; second, it may be necessary for a court to intervene by way of case management in order to identify precisely the case to be made before the Tribunal and that which may ultimately come before the court”.

The Tribunal is satisfied that, in the claim before it, a “demarcation line” can be drawn between the case before the High Court and the case before the EAT.

In Stephens MacMenamin J also refers to the so called ‘Johnson exclusion area” thus “Identifying the boundary of the ‘Johnson exclusion area’, as it has been called is comparatively straightforward. The statutory code provides remedies for infringement of statutory rights not to be dismissed unfairly. An employee’s remedy for unfair dismissal, whether actual or constructive, is the remedy provided by statute. If before his dismissal, whether actual or constructive, an employee has acquired a cause of action at law, for breach of contract or otherwise, that cause of action remains unimpaired by his subsequent unfair dismissal and the statutory rights flowing therefrom. By definition in law such a cause of action exists independently of the dismissal”.

Stephens is an interesting example of how the High Court views the ‘Johnson exclusion area’ where two sets of proceedings, one in the High Court and one before the EAT should be dealt with. MacMenamin J illustrated how this should be dealt with thus:

“The High Court damages claim will be stayed until the final determination in the Employment Appeals Tribunal. That Tribunal claim will deal (and deal only) with the issue of financial loss caused by the Plaintiff’s dismissal (if so found). It will be necessary then for the Statement of Claim in these proceedings to be redrafted so as to specifically identify issues ultimately to be placed before this court and ‘sanitised’ so as to preclude the possibility of any overlap of claims. The Plaintiff is not entitled to pursue a wrongful dismissal claim in the High Court in any guise”

The Tribunal finds this particular passage persuasive and a sensible and highly relevant way of dealing with the case before it and feels obliged to follow it. The Tribunal is not “case managing” and accepts it is for the High Court to case manage and not the Tribunal. However the Tribunal is following the path suggested by MacMenamin J in Stephens. The Tribunal finds that this is an appropriate way of dealing with the claim for loss referred to at paragraph 25 of the Statement of Claim. The “sanitisation” referred to by MacMenamin J will ensure that there is no double recovery.

The Tribunal distinguished an earlier EAT determination of Morgan v Irish Horse Welfare Trust Limited [2014] 25 E.L.R. 41 where the Tribunal decided to adjourn the EAT case pending the resolution of separate personal injury proceedings in the High Court. In the High Court proceedings Morgan claimed that she was bullied and among the reliefs claimed sought two years loss of earnings which the Tribunal noted was exactly the same amount of compensation that the claimant could have obtained if she were successful in the EAT hearing. There is no such claim for loss of earnings in the claim now before this Tribunal.

The respondent has argued that because the defamation proceedings will be heard by a jury the respondent (and HR who is not a party to these proceedings) will be prejudiced because of any publicity which may be attracted by the EAT hearing. The Tribunal is not convinced that this is sufficient reason to adjourn the hearing. It is always open to the defendant to apply to the High Court for an adjournment of the defamation proceedings to allow the “fade factor” to kick in, in the event that publicity from the EAT hearing might (and we stress the word “might”) unduly influence a jury.

Conclusion:

Having carefully considered the facts and the relevant case law, and standing back and looking at all the factors, the Tribunal keeps finding itself coming back to the following significant distinction between the two sets of proceedings: the claimant’s claim before the Tribunal is for compensation for unfair dismissal where the burden of proof will be on the respondent to satisfy the Tribunal that the dismissal was fair having regard to all the circumstances, whereas in the High Court the claimant/plaintiff is claiming damages for the alleged defamatory conduct of the respondent where the onus of proof will be on the claimant to satisfy the jury that she was defamed. This is highly significant. Both claims are not the same. In reaching this conclusion the Tribunal is not blind to the fact that the alleged defamatory conduct arose directly from the plaintiff/claimants employment. The Tribunal notes that the High Court has no jurisdiction to consider a claim for unfair dismissal, or to award compensation for financial loss, arising from the dismissal, in the defamation proceedings. Neither does the Tribunal have jurisdiction to consider the claim for defamation.

The Tribunal determines that both cases are not “intimately interlinked” (Carrie). The Tribunal considers that there are "special circumstances" as referred to in 'Cunningham' that would permit the High Court action and the Unfair Dismissals action to proceed simultaneously. The Tribunal accepts that the facts of the High Court case are "independent" of the Unfair Dismissal Claim so that a "claim might be pursued at the Tribunal" as set out in the 'Quigley' case. The Tribunal does not accept that the claimant is attempting “to draw an artificial distinction” (Cunningham) between her High Court case and the claim under the Unfair Dismissals Acts. The Tribunal is satisfied that, in the claim before it, a “demarcation line” [Stephens] can be drawn between the case before the High Court and the case before the EAT. The “sanitisation” referred to by MacMenamin J [Stephens] will ensure that there is no double recovery. The Tribunal is also satisfied that the claimant’s claim does not fall foul of the ‘Johnson Exclusion area’, referred to in Stephens.

The Tribunal accepts the claimant’s submission that it would be unfair to employees to deprive them of the right to a speedy hearing just because they had other claims against the employer.

While mention of a third set of proceedings namely, a Personal Injuries Claim, was made, the Tribunal cannot factor putative Court proceedings into its decision.

For the reasons outlined herein the Tribunal has decided not to adjourn the claim under the Unfair Dismissals Acts 1977 to 2003 pending the resolution of the High Court Case of Gemma O’Doherty v Independent Newspapers Limited and (SR) Record Number 2014/2332P.

Sealed with the Seal of

The Employment Appeals Tribunal

This ________________________

(Sgd.) ________________________

(CHAIRMAN)