Richard Grogan is principal of Richard Grogan & Associates
Employment Law
Bringing Claims to the WRC - be Wary Richard Grogan warns that many cases are being dismissed at the Workplace Relations Commission (WRC) where the employee has brought a claim under the wrong legislation
When an employee comes in and says that they have been dismissed, it is important to obtain the background facts instead of rushing into an unfair dismissal claim
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ne such case is ADJ-2456. In this case the employee brought a claim under the Safety, Health and Welfare at Work Act claiming that he had been dismissed for having made complaints under that Act. These related to such issues as oppressive behaviour from a foreman, being moved from site to site, being given demeaning jobs and ultimately being dismissed. The adjudication officer in this case held that none of the issues complained of by the employee including the dismissal, could be related to him having made a complaint. The adjudication officer in this case helpfully quoted the case of Considine -v- Limerick City and County Council HSD165 where the Labour Court set out the law in relation to this issue. The adjudication officer held that the case should fail because the issue complained of did not come within that remit, and the dismissal was not related to having made a complaint under the Safety, Health and Welfare at Work Act. There is an interesting aside in the decision whereby the adjudication officer has held that the termination of the employment could have been handled better as it “lacked fair procedures”. The adjudication officer pointed out that the complaint was under the Safety, Health and Welfare at Work Act and not under the unfair dismissal acts. This issue is going to come up in cases where an employee has contended that they were dismissed for example, for making a complaint under the Protected Disclosures Acts, or having brought a claim under the Organisation of Working Time Act and then was dismissed that this was penalisation, or in the above case a complaint to the Health and Safety Authority and thereafter was dismissed. When acting for employees in such cases it is useful for colleagues to also issue an unfair dismissal claim. Of course you cannot recover under two pieces of legislation for the same event. However, as in this case ADJ-2456, if a complaint had also been made under the
unfair dismissal acts the adjudication officer would then have been entitled also to look at the dismissal under that Act and from the aside in that case may well have awarded compensation. The converse however is also true. When an employee comes in and says that they have been dismissed, it is important to obtain the background facts instead of rushing into an unfair dismissal claim. It may well be that you will issue an unfair dismissal claim but there could also be a claim of penalisation or victimisation having exercised rights under numerous pieces of legislation. It is always better to issue under all possible claims. The matter can then be subsequently narrowed down at a later date. For example, if an employee comes in and states that they issued a complaint under the National Minimum Wage Act and had sought paternity leave under the Paternity Leave and Benefits Act, and was then dismissed, it may be advisable to issue a claim under the unfair dismissal legislation, and also for penalisation under the National Minimum Wage Act and the Paternity Leave and Benefits Act. In an unfair dismissal case compensation is limited to “economic loss” but in a penalisation case, an employee need not show any “economic loss”. If an employee gets a job the week after a dismissal the “economic loss” will be minimal. However, a penalisation case can result in significant compensation. Under the WRC rules the employer where there is a dismissal will have to lodge a statement. This will set out the employer’s grounds. The employee representative will then have an opportunity of looking at those facts and determining whether all claims should proceed, but only seeking compensation under one or alternatively identifying that only one of those claims need proceed. We are consistently seeing cases being lost where claims have been brought under the wrong act. I would caution colleagues to make sure that they sue before the WRC under every possible act which a claim could be made under first instance. P
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28/03/2017 11:32 a.m.