EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Tony Whyte
(claimant) UD685/2015
Against
Phonewatch Limited
(respondent)
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr C. Corcoran B.L.
Members: Mr M. Carr
Ms. E. Brezina
heard this claim at Dublin on 9th September 2016
Representation:
Claimant(s) : Kiwana Ennis B.L. instructed by Ms Mary Flanagan, Flanagan & Co ,
Solicitors, The Stoneworks, Ballyedmonduff Road, Stepaside, Dublin 18
Respondent(s) : Clare Bruton B.L. instructed by Ronan Daly Jermyn, Aengus House Dock Street, Galway
Determination on Preliminary Issue:
BACKGROUND
This is a case in which the claimant lodged a claim to the tribunal for constructive dismissal and at the same time lodged a claim for personal injuries against his employer. The claim for constructive dismissal was received by the tribunal on the 12th of June 2015. The claim for personal injuries against his employer was issued on the 7th of April 2016 in the Circuit Court.
On the 9th of September 2016 application was made to this tribunal for a postponement of the tribunal hearing pending the outcome of the claim to the Circuit Court.
This was based on the following principles:
1/ That the facts of the claims were inextricably linked and that the hearing in the inferior forum ( i.e. this tribunal) should be adjourned pending the hearing in Circuit Court.
2/ That there should be finality and certainty in contested legal proceedings and allowing two forums to deal with and adjudicate on similar or highly similar facts in two different forums is not conducive to this.
3/ That if the tribunal was allowed to proceed before the court hearing certain facts may be established by the tribunal which could be prejudicial to the respondent.
This was rebutted by counsel for the claimant on the basis that:
1/ While they were similar facts in both sets of proceedings, these similarities were not to the extent, that they were inextricably linked so that it would be impossible for both forums to deal with them separately.
2/ Pleadings in the Circuit Court were not closed so it would take some considerable time before a hearing date, and to postpone the tribunal hearing which had now come on for hearing would cause a delay which could amount to an injustice.
3/ The Circuit Court action accrued on circa the 18th of April 2014, whereas the claim to the tribunal accrued on circa 20th of March 2015. This in itself would give rise to distinguishing factors.
4/ The tribunal hearing would be focused on loss of earnings and compensation as a remedy, arising from bullying and harassment which forced the claimant to resign from his employment as alleged whereas the Circuit Court hearing would be focused predominantly on general damages arising from the negligence/breach of duty of the employer and where relevant loss of earnings and other expenses, as alleged.
5/ There was a difference between the two forums in assessing loss of earnings with regard to social welfare payments.
GENERAL OUTLINE OF FACTS
The following is a general outline of facts rather than specific findings of facts.
The claimant alleges that he was required to attend a purported disciplinary meeting conducted by the Operations Manager on the 17th of April 2014. During this meeting it was alleged that the said Operations Manager was bullying and belligerent towards the claimant and was required to answer questions based on witness statements not previously furnished to him. Consequently the claimant has remained unfit to work from that date. Despite the fact that he had been told he would receive an outcome in due course he received no communication whatsoever. Following several emails from his wife the HR manager replied on the 28th of October 2014 to the effect that the said Operations Manager had left the company and had not issued a determination.
The Customer Operations Manager needed to review all the documentation in order to become fully informed. On the 27th of November a request was made by claimant’s solicitors that the disciplinary proceedings should be aborted and that all allegations against the claimant should be withdrawn. It further stated that if such request was refused that the claimant would have no option but to treat the claimant’s employment as terminated. Respondent replied to the effect that the company was embarking on a new disciplinary enquiry.
On the basis of such unfair treatment the claimant had no option but treat his employment as terminated. These matters are disputed by the respondent on the basis that he was not dismissed but that he resigned from his employment and that the claimant went out on certified sick leave in the midst of a disciplinary process. The respondent had him medically assessed by their medical practitioner on two occasions and found him unfit to attend meetings. The said medical practitioner offered to discuss the matter with the claimant’s G.P. but the claimant would not give his consent to do this. The respondent further alleged that the claimant failed to mitigate his losses.
THE LAW
Statutory Provisions:
Section 1 of the Unfair Dismissals Act 1977 states as follows:
“ The termination by the employee of her contract of employment with her 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 the termination to the employer “.
Regulation 14 of the Redundancy (Redundancy Appeals) Regulations 1968 (S.I. No.24 of 1968).
“The tribunal may postpone or adjourn the hearing of an appeal from time to time”.
Section 15 of the Unfair Dismissals Act 1977 as amended provides as follows:
“(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 shall relate,” as amended by:
Section 10 the Unfair Dismissals (Amendment) Act 1993 so that subsection 2 and 3 now read :
“(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 a 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”.
Case Law:
Cunningham v Intel Ireland Ltd 2013 IEHC 207:
Mr. Justice Hedigan stated as follows ”Thus all matters and issues arising from the same set of facts or circumstances must be litigated in the same set of proceedings save for special circumstances”.
Parsons v Iarnrod Eireann 1997 2 I.R. 523
Mr. Justice Barrington Supreme Court at page 529- “What the Unfair Dismissals Act 1977 does is to give the worker who feels that he has been unfairly dismissed, an additional remedy which may carry with it the very far reaching relief of reinstatement in his previous employment. It does not limit the worker’s rights it extends them.”
Eastwood v Magnox Electric plc.2004 UKHL 35, 2005.
House of Lords “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 that, in law such a cause of action exists independently of the dismissal.”
“In such cases, the employee has a common law cause of action which precedes, and is independent of, his subsequent dismissal. In respect of his subsequent dismissal he may of course present a claim to an employment tribunal. If he brings proceedings both in court and before a tribunal he cannot recover any overlapping heads of loss twice over.”
Quigley v Complex Tooling and Moulding Ltd. 2005 IEHC 173,
Mr. Justice Lavan:
“Can the plaintiff recover for injuries suffered by him prior to his dismissal or has this already been covered by the decision of the Employment Appeals Tribunal in the Plaintiff’s appeal?”
“I would accept the Plaintiff’s argument that the claim for injuries resulting from harassment in the workplace is a separate and distinct cause of action to his claim for unfair dismissal.
Stephens v Archhaeological Development Services Limited 2010 IEHC 540.
Mr. Justice Mc Menamin:
Financial loss as applicable in the Employment Appeals Tribunal 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”.
“As can be seen from the chronology of events set out earlier, the plenary summons was served before the employment contract was discharged”.
“Importantly, however, the statement of claim omits claim for damages for wrongful dismissal.”
“No wrongful dismissal claim is made here.”
“In Quigley v Complex Tooling and Moulding Ltd. 2009 1 IR 349 Lavan J. found that, where an employee had also acquired a common law cause of action against an employer prior to his dismissal, his cause of action in tort might nonetheless proceed in the High Court as well as a Tribunal claim”.
“ 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. First, 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.”
“I mention in passing that Quigley was successfully appealed: however that appeal did not concern the point at issue here.”
UD 384/2012 Sarah Hickey v Bloomfield House Hotel and Anor.:
“It is worth noting that Mr. Justice Mc Menamin in the Stephens case followed the observations of Mr. Justice Lavan in the earlier High Court case of Quigley v Complex Tooling and Moulding Ltd. 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. Both Learned Judges having approved the decision of the House of Lords decision of Eastwood v Magnox Electric Ltd. 2004 3 WLR 322.”
Gemma O’Doherty v Independent Newspapers Ltd. UD235/2013:
“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.
Determination on Preliminary issue:
Having considered the general facts and circumstances of this case as submitted and the principles of law as enunciated above, this tribunal is of the view that the employment appeals tribunal hearing should proceed accordingly. In making its decision the tribunal is mindful of the following matters.
1 The cause of action for personal injuries accrued before the cause of action for unfair dismissal.
2/ The case in the tribunal is one of constructive dismissal, which places a heavy onus on the claimant and which is different to the onus pertaining in the other forum.
3/ While the facts in both cases are linked, they are nevertheless not inextricably linked, to the extent that they could not be dealt with separately by each forum.
4/ There are different and separate reliefs obtainable in each respective forum.
5/ The sentiments expressed in the Cunningham case are tempered by the fact that it is dealing with the Equality Tribunal. Such forum can award general damages whereas the Employment Tribunal does not have the power to award such damages.
6/ In exercising both forums it is essential that there would be no overlapping or “double recovery” of reliefs.
7/ That in the Personal Injuries Summons there is no claim for damages for wrongful dismissal that would be constrained under section 15 of the Unfair Dismissals Act as amended by section 10 of the Unfair Dismissals (Amendment) Act 1993.
8/ Pleadings in the Circuit Court were still at the “particulars stage” and would take sometime to get on for hearing whereas the tribunal case was ready to proceed.
9/ Adjustments to the Personal Injury Summons may be necessary at a later stage,
but that is not a matter for this tribunal.
10/ While this tribunal is mindful of the desirability of not duplicating proceedings, however it must balance this requirement with the honest and vigilant exercise of its own limited statutory function.
11/ The submission that the respondent may be prejudiced by matters of fact established at the tribunal hearing (if acceptable), is a two-way process and could equally apply to the claimant or to the respondent.
12/ In the interest of justice the tribunal recognises that there are special circumstances which allows it as a matter of practicality and expediency, to refuse the application for postponement as requested.
13/ Such cases where it is contended in court proceedings that the claimant was subjected to harassment and intimidation during the course of his employment amounted to breach of duty and negligence which resulted in psychological consequences are entirely separate and distinct from an Employment Appeals claim concerning the financial loss resulting specifically from the dismissal.
14/ The treatment of loss of earnings in each forum with regard to loss of earnings is different.
15/ There is a different focus and test applicable in each forum.
16/ In such cases by dealing with the varied and separate claims properly applicable to both forums, respectively, ensures finality in the law.
This case should proceed accordingly and a date should be set for the hearing of the substantive matter.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)