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Labour Court Finds ‘Re-Instatement’ Not An Appropriate Remedy Where Employee Contributed To The Dismissal

The recent decision of the Labour Court in the case of Kenneth Folman v Bus Eireann, UDD2152, was an appeal by the Respondent of the decision of the WRC which ordered re-instatement. The Labour Court overturned this decision concluding that the Complainant’s return to the workplace was unworkable and instead determined that the appropriate remedy was compensation.

Facts: The Complainant was employed by the Respondent on a full-time basis from the 11th June 2018 until 13th August 2019 when his contract of employment was terminated. At the commencement of the hearing the Respondent informed the Court that they were not contesting the fact that the dismissal was procedurally unfair but wanted the Court to reconsider the appropriate form of redress and the contribution of the Complainant to his dismissal.

The Respondent submitted that the Complainant contributed one hundred percent to his own dismissal. There had been a number of issues with his performance as a Driver since he commenced work which had culminated in the Complainant receiving a final written warning in June 2019. Further issues in respect of the Complainant’s suitability for the position came to the Respondent’s attention in July 2019 when the Complainant was involved in a Court case where he was disqualified from driving which meant he was unable to carry out the job he had been employed to do. It was the Respondent’s submission that at this stage it felt that it had no option but to dismiss the Complainant. The Respondent also submitted that the remedy of re-instatement was not appropriate in this case as the trust between both parties has been irreparably damaged.

The Complainant submitted that while he did get a final written warning the incidents that led to that were not as serious as the Respondent was alleging. The Complainant also submitted that he had successfully appealed the disqualification of his licence. He further submitted that the Respondent was aware at the time that the Complainant intended to appeal the disqualification decision. The Complainant submitted that all new drivers have incidents when they are driving, and they build up experience through driving and that he did not contribute in any way to his dismissal. The Complainant did not believe that re-engagement or compensation are appropriate in this case, and that he had made every effort to mitigate his loss.

Decision: The Court accepted the fact that the dismissal was procedurally unfair and was not in dispute. In determining the appropriate form of redress the Court considered the submissions of both parties and the incidents that led to the final warning and concluded that they did not believe that re-instatement or re-engagement were appropriate in this case. The Court stated that re-instatement is generally granted where the employee is found not to have contributed to the dismissal.

It stated that, in this case there were ongoing issues that would make his return to the workplace unworkable and therefore neither re-instatement or re-engagement were not appropriate remedies. The Court concluded that compensation was the appropriate form of redress making an award of €5,000 taking into account the loss being claimed and all other relevant factors, including the Complainant’s contribution to his dismissal.

Takeaway for the Employers: Employers should ensure that they follow their procedures when disciplining employees for breaches of such policies. In this case, despite the fact that the Complainant was disqualified from driving and therefore unable to carry out his job, it was the procedural flaws that resulted in the Complainant being awarded any compensation. It is interesting to note the Labour Court’s view that re-instatement is not an appropriate remedy where an employee contributed to his/her dismissal and this could relive employers of this fear in certain circumstances.

Link  – https://www.workplacerelations.ie/en/cases/2021/august/udd2152.html

Authors – Eva Lindsay and Anne O’Connell

26th August 2021

Anne O’Connell Solicitors

19-22 Lower Baggot Street, Dublin 2


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