We have previously highlighted the importance on employers to attend hearings, as failure to do so will lead to the employees evidence being uncontested, and awards being made without mitigation. In a recent decision by the EAT we again see the importance of an employer attending, as failure to do so cost €150,000.
In the case of Lally v Window and Roofing Concepts Ltd. UD183 [2011]the employee took a number of claims before the EAT, under the Working Time Legislation (for failure to pay annual leave), the Minimum Terms of Notice Act (for failure to receive their proper notice of termination), the Unfair Dismissals Act (for being unfairly dismissed) and the Redundancy Payments Act (for failure to receive their Redundancy pay).
When an employee claims under the Redundancy Payments Act and the Unfair Dismissals Act they will be asked to withdraw one claim as you cannot proceed under both (as you cannot argue you should be paid redundancy when you are arguing you should not have been made redundant), in the Redundancy Payments Act there is a greater burden of proof on the employee and payments are limited by the length of service and the cap of €600 per week. However under the Unfair Dismissals legislation the burden of proof rests on the employer, and payments can be made up to two years wages. If the employer does not attend the hearing it is very easy for the employee to withdraw the Redundancy Payments claim and proceed with the Unfair Dismissals claim, and where the employer fails to attend they cannot dispute the evidence, and thus cannot argue it was a fair dismissal. usually this leads to a large award in favour of the employee.
In this case the employee argued that having brought the Company to profitability, he was dismissed without notice at a meeting with the two other directors and claimed he was offered no right of representation or opportunity to appeal the decision.
The evidence was uncontested in this case and the employee was awarded €140,000 in compensation under the Unfair Dismissals Act, €8,334.36 under the Minimum Terms of Notice Act, and €4,167.18 under the Organisation of Working Time Act.
€152,501.54 awarded without anyone from the employers point of view to contest any element of the evidence...a very high price to pay for not taking the morning to attend a hearing.
