Waiting Times
Waiting times for an Employment Appeals Tribunal (EAT) hearing are currently around 76 weeks in Dublin. The waiting time is longer (80 weeks plus) in other counties.
Tennis Club Coach's redundancy not bona fide
Donnellan v Castleknock Lawn Tennis Club UD325/2011
The claimant was head coach with the tennis club for over ten
years. His job was to develop junior tennis, make himself
available to give coaching hours to other sections of the club, and
engage in an element of administrative work. Over the course
of ten years the claimant's salary went up to approximately
€13,000 per annum.
In 2010 the claimant went to the chairperson and indicated that
the hours were not being fully used. The chairperson said that he
would take it up at committee level. The claimant's next
contact from the committee was a conversation with the chairman
outlining that they were considering terminating the post. The
committee was anxious to make savings particularly as the head
coach's duties had diminished. Shortly after, the
claimant was made redundant but retained as a contractor alongside
a number of other coaches also available to do coaching for the
club.
Despite the respondent's reliance on the duality of reasons
for the redundancy, a discussion document existed within the club
at committee level stating the long term plan was to retain a
tennis coach at some point in the future. The respondent
denied that this would ever be done and it was purely aspirational.
The Tribunal looked unfavourably on this. It was also
not happy that the committee had not considered some guarantee of
work for a set period after redundancy or that the claimant had had
no voice at committee level to reasonably assess the situation and
perhaps reach an alternative arrangement.
Whilst the claimant still earned a steady income from the work
that the club contracted out to him there was no guarantee of work
into the future. The Tribunal ruled that he be awarded €26,000
less redundancy monies paid, this being two full years'
salary.
This case shows that people in clubs and societies can often
forget that employment law still applies. A club
committee's decision-making process must still adhere to fair
and proper procedures.
Employee's Participation not required for Risk Assessments
Canavan v Bakowsak P7/210
On an employer appeal of a Rights Commissioner decision, the
Tribunal overturned the Rights Commissioner decision regarding a
complaint under the Maternity Protection Acts, 1994 and
2004.
Ms Bakowsak made sandwiches for the company. On confirmation
of her pregnancy, she informed her employer, Mr Canavan, and asked
how her work would now be scheduled as she was concerned about
lifting heavy weights of ingredients and working in a cold
environment. She requested alternative work but there was
none available and asked for a certificate in order to go on health
and safety leave.
Mr Canavan conducted a risk assessment of Ms Bakowsak's job
and work environment. The risk assessment was presented to Ms
Bakowsak with a translator present to ensure she understood the
findings. As there were no extreme temperatures, as defined
by health and safety regulations, and assistance could be given for
any lifting required, Mr Canavan refused to place Ms Bakowsak on
health and safety leave. Ms Bakowsak was unhappy with this. As the
temperature of 12 degrees could not be changed, Mr Canavan
requested that the employee's doctor confirm that she could not
work in that temperature. Confirmation was requested on
numerous occasions but none came. Between the risk assessment
and her maternity leave, Ms Bakowsak only worked for a week, taking
certified and uncertified sick leave. She subsequently made a
complaint against Mr Canavan.
The Tribunal outlined that there is no onus on the employer to
permit an employee's full participation when it is carrying out
a risk assessment of the work station of the employee under section
18 of the Health and Safety Act. The Tribunal found Mr
Canavan complied with the legal requirements placed on an employer
in the circumstances. The complaint was not well founded and
the Rights Commissioner decision was overturned.
Masking a disciplinary issue as redundancy costs €200,000
Mielczarek v Adrian Lee Services Ltd UD2073/2009
The claimant, Mielczarek, was employed by the respondent
company, Adrian Lee Services Limited, an asset management firm, as
a Portfolio Manager and Head of Product Development pursuant to a
contract of employment dated 5 June 2008. A six month
probationary period was provided for under the contract. This was
initially extended by a further month to January 2009 and extended
twice further to March 2009 due to the claimant's
"unsatisfactory performance".
In January, during the extended probationary period the claimant
was informed that the portfolio role was not proving successful and
he was advised to concentrate and continue working on the marketing
side of his role. He was informed in writing that he had been
assigned to the position of Marketing Manager and client Service
Portfolio Manager and that his annual salary was reduced to
€175,000 plus commission. The claimant did not accept
this salary reduction or the new role and pursued a claim for the
deduction under the Payment of Wages Act 1991, which was
upheld.
Between December 2008 to July 2009, the claimant and respondent
engaged in fractious correspondence, and a fraught employment
relationship existed. In July 2009, the claimant was notified
in writing that his position was being made redundant. There
was no prior discussion.
The Tribunal were not satisfied that there was a genuine
redundancy of either the original position or the revised
role. Given the fractious relationship between the parties,
the Tribunal was satisfied that the claimant was dismissed for his
performance under the cloak of redundancy and was awarded
€200,000.
This case illustrates the importance of a genuine redundancy
situation existing if a redundancy defence is to succeed.
Where a performance issue exists it is better to pursue termination
based on disciplinary matters. This also illustrates that
employers need to be mindful of probationary periods and acting on
performance issues quickly and within time prior to a year's
service being obtained.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
