A seemingly straightforward case of Unfair Dismissal has seen a most unusual set of circumstances brought together in a recent decision by the EAT. The case is based around an employee of the Operative Plasterers and Allied Trades Society of Ireland (OPATSI) who Was dismissed by means of redundancy in 2010, and where the procedures used by the employer were not in keeping with those recommended.
The case at hand is that of Personal Representative of James Duffy -v- OPATSI UD1385/10. This case becomes complicated by two very unusual factors, one being the misappropriation of over one million euro in union funds, and the second being the unfortunate death of the claimant prior to the case being heard.
The first matter that had to be resolved was the hearing of the case, as the claimant had died there was still a right for the case to be heard. This was complicated further by the withdrawal of the claim upon the death of the claimant, and then the reinstatement of this claim. the argument was made that the solicitor had acted without instructions from the client and the tribunal determined that it would be a great disservice to the widow of the claimant for this claim not to proceed. The second matter concerned the missing one million euro in funds which remained unaccounted for and was subject of a police investigation. The employer was at pains to state the claimant was not implicated in this in any way however this was to signify the financial difficulty the employer found themselves in.
The case at hand was a relatively straightforward redundancy matter where the employee was made redundant on a Last In First Out (LIFO) basis, however the unfair dismissal arose due to a lack of fair procedures and no consultation with the employees concerned. A number of witnesses were called to the hearing to testify to the fairness or otherwise of the procedures used, and those called by the employee confirmed the lack of a consultation process with those affected.
The tribunal determined that the employer had failed to utilise fair procedures in making the employees redundant and that they had not responded to queries regarding the method or procedure adopted in deciding to dismiss the employee. The Tribunal awarded €28,000 in compensation for the unfair dismissal, however they did say had the employee been retained his employment would have continued no longer than 1st June 2011 due to the financial position of the Union. this is somewhat strange as no further information was provided, such as if this mitigated the amount awarded?
What is surprising about this case is the blatant lack of fair procedures by a Union, who normally advocate for fair and transparent procedures in cases such as redundancy and dismissal. The numerous witness testimonies emphasise thew lack of proper procedures and the lack of an open consultation process with employees, which as mentioned is normally one of the main issues unions campaign for. It seems to have been very much a case of "Do as I say, not as I do"...
