Ireland

In Dariusz Kowalski v Nvd Limited (ADJ-00034716) the Complainant claimed that he was unfairly dismissed by the Respondent because of his refusal to sign a new contract that altered the terms and conditions of his employment to his detriment. Facts: The Complainant began working for the Respondent as a driver in 2005 transporting new cars on trucks to various destinations in Ireland, the UK and the EU. In 2009, the Respondent engaged with SIPTU to introduce new terms and conditions including a reduction to the Complainant’s pay without his agreement. The Complainant engaged in prolonged efforts over twelve years to revert to the terms and conditions of his 2005 contract without success. In 2021 he was offered a new contract with non-negotiable terms, including the requirement to serve a probationary period, even though he had been working for the Respondent since 2005. There were other less favourable terms, including relating to the Complainant’s hours of work, the inclusion of a fixed retirement age of 60, higher cash penalties in the event of damage to vehicles, and uncertainty regarding the details relating to his bonus and times of work, which could be changed without his agreement. The 2021 contract also provided that the Respondent could vary terms solely on the basis of business needs whereas the 2005 contract required the agreement of both parties to alter the terms of the contract. The Complainant refused to sign the new contract. The Complainant was dismissed on 19th February 2021, purportedly on the basis of redundancy, and paid eight weeks’ salary in lieu of notice. The Complainant’s position was that the contract was being made “redundant” and not the work/the role. He pointed out that the dismissal letter referred to the contract and argued that a unilateral change in contractual terms does not give rise to a redundancy situation. He also argued that at the time of his dismissal, the market was expanding and there was no reduction in the requirement for drivers on the part of the Respondent. The Complainant contended that his dismissal arose not from a requirement to reduce the number of drivers, but instead as a result of his refusal to sign the new contract. Without prejudice to the Complainant’s position that there was no genuine redundancy, the Complainant also argued that there was no fair redundancy process: the Complainant was not put on notice of redundancy; the Respondent did not follow a fair selection process, but simply selected the Complainant and three of his colleagues who also refused to sign the new contract; and the Complainant was simply informed that he was being made redundant. The Respondent’s position was that the Complainant was not unfairly dismissed, and it was a genuine redundancy. The Complainant refused the offer of suitable alternative employment and therefore was not entitled to receive a statutory redundancy payment. The Respondent provided details of market changes in respect of car importations as a result of the worldwide economic crash in 2008, and those associated with Brexit. Details were provided regarding the Respondent’s engagement with SIPTU in respect of pay restructuring, and a pay cut negotiated with SIPTU in 2009, to be restored when pre-2009 revenue returned. SIPTU sought a return to pre-2009 pay in negotiations with the Respondent between 2010 and 2011. However, the Labour Court ruled against it. In 2013 there were further negotiations between SIPTU and the Respondent, and drivers were given an option to either accept a new contract with €8000 in compensation for changes to conditions and salary reduction, or voluntary redundancy. The Complainant held out for a return to the 2005 contract. Further efforts to get the Complainant to agree to the new 2013 contract (between 2014 and 2018) were unsuccessful. The Complainant lodged a civil bill in the Circuit Court in 2018 for breach of contract when the Respondent amended his terms and conditions in accordance with the terms of the 2009 agreement to which the Complainant never agreed. This was settled in December 2020. Further attempts were made to secure the Complainant’s agreement to the new contract in December 2020 and January 2021, but these efforts were also unsuccessful. The Respondent issued the Complainant with a new contract in 2021 and informed him that he would be made redundant if he did not sign it, and that no statutory redundancy would be paid because suitable alternative employment was offered. The Complainant rejected the contract and was made redundant. Decision: The Adjudicator, Máire Mulcahy, found that the requirement for the transportation of cars had not reduced, and the “manner of doing business” remained unchanged. She noted that the Respondent had not considered anyone else for redundancy except the Complainant and his three colleagues who took legal action against the company. The Adjudicator referred to the dismissal letter which made it clear that the reason for the Complainant’s redundancy was his refusal to accept the new contract. She was satisfied that the Complainant’s dismissal was not due to a genuine redundancy: “The altered terms in the contract put to the complainant in 2021 did not indicate a diminished need for [sic] a reduction in the service to customers as opposed to requiring greater flexibility on his part to meet the needs of those customers. It’s not a redundancy that meets the statutory definition as the requirement for truck drivers had not diminished. That his refusal may have been unreasonable to accept the altered contractual terms is not a matter which fits in with the definition of a redundancy.” The Adjudicator then considered whether or not the Respondent unfairly dismissed the Complainant. In doing so, the Adjudicator identified the Respondent’s failure to dismiss the Complainant through a fair disciplinary process as the “biggest defect” in the Respondent’s conduct. She noted that the Complainant was given an ultimatum, and then the same person who gave him the ultimatum dismissed him a month later. She concluded that the Complainant was unfairly dismissed. However, the Adjudicator acknowledged that the Complainant behaved unreasonably in failing to accept the challenges facing the Respondent and in his dealings with the Respondent, noting that this was “short” of what the Respondent was entitled to expect. She found that his “mistrust in the bone fides” of the Respondent who had engaged in “painstaking efforts to find a resolution and avert dismissal was either misplaced or manufactured”. While she noted that opportunism is not a substantial ground for dismissal, she took the Complainant’s behaviour into account in assessing the amount of compensation to award by way of redress. The Complainant’s loss was €9,173 and the Complainant was awarded €3,500 by way of compensation which the Adjudicator regarded as just and equitable in all the circumstances. Takeaway for Employers: While this case was quite fact-specific, the decision highlights that although redundancy is a fair reason for dismissal, “redundancy” has a specific statutory definition contained in the Redundancy Payments Act 1967. Section 7(2) sets out the various circumstances that may give rise to a redundancy situation. The fact that an employee’s contract of employment may no longer be fit for purpose does not mean that the employee’s role is redundant. Employers that find themselves in this situation should note that the Adjudicator in this case suggested that an employer ought to address an employee’s unreasonable refusal to negotiate necessary amendments to his/her contract of employment through a fair disciplinary process. Careful consideration must be given to the provisions of section 7(2) of the 1967 Act and whether or not a genuine redundancy situation exists before determining the appropriate course of action.   Link: ADJ-00034716 - Workplace Relations Commission   Authors- Abigail Ansell and Jenny Wakely   29th October 2025 AOC Solicitors 19-22 Baggot Street Lower Dublin 2   www.aocsolicitors.ie  

 In Sara Halpin v Robert & F Warren Ltd (ADJ-00058438), one of the claims that the Complainant sought adjudication from the Workplace Relations Commission (“the WRC”) was under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003, commonly referred to as “TUPE Regulations”. Her claim was that she was never notified of the transfer which occurred in 2021. Although the claim was lodged in April 2025, approximately 4 years after the transfer took place, the WRC Adjudicator, Conor Stokes, found that the contravention of the TUPE Regulations was within time for him to hear the claim. Facts: The Complainant held a role in Human Resources within the Respondent company. The Complainant claimed that she was never made aware that a transfer of undertakings had taken place, and that her employment transferred from one employer to another. The Complainant stated that she understood the transfer of undertakings to have taken place in 2021 but only became aware of this fact from communications with the Revenue Commissioners during the 12 months prior to lodging the complaint with the WRC. The Respondent confirmed that it never made the Complainant aware of the existence of a transfer of undertakings. The Respondent confirmed the principals of both entities were the same person. Therefore, the Respondent had not complied with Regulation 8 of the TUPE Regulations in respect of consultation and providing the required information to the Complainant but that was four years ago. Regulation 10 of the TUPE Regulations refers to the time limits within which to make a claim for such breaches and states that: “A rights commissioner shall not entertain a complaint under this Regulation unless it is presented to the commissioner within the period of 6 months beginning on the date of the alleged contravention to which the complaint relates..” The six-month time frame is mirrored in section 41(6) of the Workplace Relations Act 2015. Section 41(8) of the Workplace Relations Act provides for an extension of time: “An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.” Notwithstanding that the Adjudicator appears to have accepted that the transfer of undertakings took place in 2021, the Adjudicator found that the complaint fell within the period envisioned in the Act. The Adjudicator stated: “The respondent confirmed that it never informed the complainant of the change of ownership of the business.  Accordingly, I consider that the date of the contravention to which this complaint refers falls within the period comprehended by the Act and is validly before the WRC.” It is not clear from the written decision why the Adjudicator granted the extension “later than six months after” the expiration of the time limit i.e. beyond the 12-month extended period - was it due to the Respondent never informing the Complainant or was it due to the fact that the Complainant discovered the transfer within 12 months of her lodging her claim. The author of this article was not involved in this case nor present at the hearing. It is possible that the parties are clearer to the basis for this decision. The Adjudicator ordered the Respondent to pay the Complainant four weeks in compensation for the breach of Regulation 8. Takeaway for Employers: While the principles in this decision are straightforward, employers should be aware the laws governing TUPE are complex. The transferring employer must provide TUPE information, including the proposed date of transfer and reasons for the transfer, at least 30 days before the transfer of undertakings takes place, or at the very least, in good time before the transfer. Employers should remember that the purpose of the TUPE Regulations is to protect employees’ rights where a transfer of undertaking occurs. While time limits apply for TUPE related complaints to the WRC, organisations should be aware that they may be exposed to further extensions if they fail to inform the employees at all about the transfer of undertaking and it is better to inform the employees, even if late, to start the time limit to run and limit the exposure.   Link –  ADJ-00058438 - Workplace Relations Commission   Authors- Jane Holian, Anne O’Connell   29th October 2025   AOC Solicitors 19-22 Baggot Street Lower Dublin 2 www.aocsolicitors.ie  

The Labour Court recently issued its decision on an appeal of a Workplace Relations Commission (“WRC”) decision which found that Mr Tom Ronan, a civilian garda driver (the “Complainant”), was discriminated against when he was forced to retire at 70. The WRC Adjudicator, Brian Dalton, ordered re-engagement of the Complainant in his role as a driver and a three-year extension of his employment from the date of re-engagement. We examined the WRC decision in our newsletter article “WRC Orders Re-Engagement of Driver Forced to Retire at 70 – Mandatory Retirement ‘Highly Likely’ to Cause Him Financial Hardship” here. In An Garda Siochana v Tom Ronan (EDA2560) the Labour Court overturned the WRC decision. Facts: The Complainant was a Civil Servant who commenced employment as a driver with the Department of Justice in January 2020, and was subsequently transferred to An Garda Síochána. He was retired from his role when he reached the mandatory retirement age of 70. The Complainant argued that some of his colleagues in comparable roles were permitted to work past 70. He claimed that he was discriminated against on the ground of age and that he needed to keep working due to his personal circumstances, arguing that he would endure financial hardship post-retirement. The Adjudicator in the WRC agreed that he was discriminated against notwithstanding that the retirement age had already been found to be objectively justified, placing significant emphasis on the issue of financial hardship. He decided that on the facts of the case, the mandatory retirement age for the Complainant was unreasonable. The Complainant then sought a High Court injunction to essentially give effect to the WRC Order which was under appeal to the Labour Court. An interim injunction was initially granted, but an interlocutory injunction was refused on the basis that there was a statutory remedy available and the WRC and Labour Court were the most appropriate fora to decide on the matter. Mr Justice Mulcahy pointed out that section 43(3) of the Workplace Relations Act 2015 makes it clear that where a WRC decision is appealed to the Labour Court, the WRC Order cannot be enforced by the District Court and a WRC Order which is under appeal should not be considered as being operative. We wrote an article examining the High Court decision entitled “Leave to Appeal to Supreme Court Sought by Civilian Garda Driver who was Refused Interlocutory Injunction by High Court” here. Labour Court decision: The Labour Court referred to the Supreme Court decision in Mallon v The Minister for Justice, Ireland and the Attorney General [2024] IESC 20 in which, at paragraph 88 of the judgment, Mr Justice Collins emphatically endorsed the State’s decision to apply a mandatory retirement age of 70 to the majority of public servants. The Court referred also to paragraph 92 of the judgment where Collins J pointed out that this is “considerably higher” than the current pensionable age of 66 in respect of the Social Welfare Consolidation Act 2005. The Labour Court noted that it was bound by the Supreme Court’s decision in Mallon and found that the Complainant’s complaint that he was discriminated against by the Respondent when he was compulsorily retired was not well founded. The Court stated that the Respondent’s decision was “nothing more than the implementation of the State’s policy as embodied in the 2018 Act and that Act does not give any discretion to individual public sector employers to extend an individual public servant’s employment beyond his or her seventieth birthday.” Finally, the Labour Court found that the Complainant’s attempt to compare his situation to colleague civilian drivers who were recruited between 2004 and 2012 (and do not have a mandatory retirement age) was inappropriate: “It is a matter of public record that the State decided against retrospectively applying a mandatory retirement age to this cohort of public servants when enacting the 2018 Act as to have done so could have given rise to a perception of unfairness and may have been inconsistent with those workers’ legitimate expectations.” Takeaway for Employers: The area of mandatory retirement and age discrimination is a complex one which has given rise to numerous WRC and Labour Court decisions in recent times. As noted in our article “WRC Orders Re-Engagement of Driver Forced to Retire at 70 – Mandatory Retirement ‘Highly Likely’ to Cause Him Financial Hardship” (link above), employers will not be used to having to consider an employee’s financial situation in making a decision about mandatory retirement in an individual case. The Labour Court decision is welcome clarification on this point and appears to be the right decision, particularly in circumstances where the retirement age had already been found by the Supreme Court to be objectively justified. Link: https://www.workplacerelations.ie/en/cases/2025/august/eda2560.html  Author - Jenny Wakely 19th September 2025 AOC Solicitors 19-22 Baggot Street Lower Dublin 2 www.aocsolicitors.ie

The Supreme Court judgement (of O’Donnell CJ, Dunne J, Hogan J, Murray J and Collins J) in Patrick Dillon v. Irish Life Assurance PLC which was handed down on 24th  July 2025, considered whether claims for emotional distress as a result of a data breach falls within the definition of ‘personal injury’ under the Personal Injuries Assessment Board Act 2003 and whether obtaining PIAB authorisation to initiate proceedings was required. It found that such a claim did not come within the definition of a ‘personal injury’ claim. It will be interesting to see the application of this decision going forward to other potential claims in the employment law area. Facts: The Plaintiff, Patrick Dillon, held a life assurance policy with the Defendant,  Irish Life. The Defendant issued in error six letters in relation to the Plaintiff’s policy containing  his personal and financial data between 2008 and 2020 and sent them to a  third party. The Plaintiff issued proceedings in the Circuit Court alleging that the data breaches were caused by negligence and breach of duty, including breach of statutory duty and caused him “distress, upset, anxiety, inconvenience, loss and damage”. This was due to the alleged breach by the Defendant of the Data Protection legislation. The Defendant argued that the Plaintiff’s claim fell  within the definition of ‘personal injury’ within the meaning of the Civil Liability Act 1961 which requires a pre-authorisation from PIAB, which the Plaintiff had not obtained. Also, it argued  that he should have commenced proceedings by Personal Injuries Civil Bill rather than the Equity Civil Bill in which they were instituted. Both the Circuit Court and the High Court on appeal found that the proceedings sought damages for ‘personal injury’ and that PIAB authorisation should have been obtained before instituting proceedings and therefore they dismissed his claim. The Supreme Court granted Plaintiff the leave to appeal the High Court decision as it considered this case raised issues of general public importance about whether a claim for damages for “distress, upset and anxiety” arising from a data breach could possibly be seen as a claim for damages for personal injury and the compatibility of PIAB authorisation requirement with EU law. Decision: In this decision there was two key issues that fell for consideration . One being whether the non-material damage (distress, upset and anxiety) fell within the statutory definition of ‘personal injury’ as found by the High Court. The second issue being if the Plaintiff’s claim is a form of ‘personal injury’ , whether a requirement to apply to PIAB for pre-authorisation  would render it extensively difficult for the plaintiff to exercise his rights to compensation for non-material damage under the GDPR in breach of the EU Directive. The Supreme Court judgement delves into the statutory and common law definition of the term ‘personal injury’. This judgment highlights that in relation to the various statutory definitions: ‘it is easy to lose sight of the fact that while the definition of ‘personal injury’ used in these statutes is comprehensive, in none of them does it purport to be of general application. It is instead used for various distinct, related but quite specific purposes.’ The Court also refers to the case of Clark v O’Gorman where it was held that a personal injury action is not a claim in which standalone damages are sought to compensate for distress and anxiety. Mr. Justice Brian Murray held that the Plaintiff’s claim in negligence was misconceived as he cannot obtain damages in negligence for mental distress that falls short of a psychiatric injury. However, he held that the Plaintiff had a standalone claim for non-material damage pursuant to the unique claim set out in Section 117 of the Data Protection Acts. He also held that where a plaintiff’s claims are solely for mental distress, upset and anxiety that the plaintiff cannot expect anything other than very, very modest awards. Takeaway for Employers: The Supreme Court’s Decision in Dillon v Irish Life Assurance Plc is important to note where claims for emotional upset, distress, or anxiety without a recognised psychiatric illness do not qualify as personal injury but also illustrates where such claims may still proceed in respect of certain statutory obligations. While this decision specifically related to the breach of GDPR and the remedy provided for in that legislation, it will be interesting to see if the decision will be applied to other statutory remedies where there is non-material damage such as under the Protected Disclosures Acts or under the Safety, Health and Welfare at Work Acts. Link: https://www2.courts.ie/view/judgments/56f5ca9a-b457-4cc2-b47d-430d66ec47d2/94687f75-3845-4430-be87-9699d49b9460/2025_IESC_37.pdf/pdf Authors – Anne O’Connell & Abigail Ansell 18 September 2025 AOC Solicitors 19-22 Baggot Street Lower Dublin 2 www.aocsolicitors.ie