There have been a number of decisions recently where the determination made by the tribunal is somewhat inconsistent with current case precedent.
This inconsistency in the decisions can leave an employer in a vicarious position as on the one hand there is a case to say you should act accordingly and on the other hand another case will tell you to go down a different route.
One such case is that of Flattery -v- Athenry Golf Club UD42/2010 where an employee was the club's General Manager, and in the economic downturn it was decided that due to loss of revenue the Company would make the General Manager role redundant. However in doing so the Employer failed to carry our any fair procedures or follow their own internal company procedures for such a process.
In the determination the Tribunal noted that although "the respondent did not follow their own procedures..the Tribunal is satisfied that the respondent had serious financial difficulties when the claimant was made redundant." Ordinarily in a Tribunal this lack of a fair procedure would render a dismissal unfair and in the case of Barton -v- Newsfast Freight Ltd. UD1269/2005 a Tribunal found accordingly. Here the Tribunal found that although a genuine redundancy situation existed as there was a procedural flaw it was appropriate to award compensation to the employee. Another case which demonstrates a lack of fair procedure is that of Fennell -v- Resource Facilities [2011] 22 E.L.R 26 where the employee was awarded €87,000 as the consultation process was flawed.
A further demonstration of inconsistency in determinations is that of O'Brien -v- Compass Catering Supplies Ireland Ltd. UD438/2011 where an employee was deemed to have been unfairly dismissed due to the employers failure to provide witness statements prior to the hearing. This on the face of it would seem to be in keeping with the standard precedent, as in the case of Maughan -v- Janessen Pharmaceutica B.V UD1127/1984 the employee was awarded £38,722 for the employers failure to provide a report in advance of the hearing. However in the O'Brien -v- Compass Catering case the employee was deemed to have contributed to their own dismissal by mishandling money and so no awards of compensation were made in this instance.
This seems to be a very common sense approach to a decision, and one which we entirely agree with. The issue lies in the manner in which an employee can contribute to their own dismissal, in this case they contributed to the extent that no award was made. We have seen previous examples where an employee has clearly contributed to their dismissal but an award was still made for unfair dismissal. In the case of Honeywell International Technologies Ltd v The Rights Commissioner [2007] 1 JIEC 2501 an employee was dismissed for breaching the company smoking policy, which the Tribunal acknowledged the employee should have been aware of and that they contributed to their own dismissal, but yet awarded €11,000 in compensation.
Such inconsistency can leave employers feeling at a loss as to which course of action to follow, and the examples highlighted as merely some of the more recent examples we have seen in determinations. Many more inconsistencies exist and one of the major criticisms of the current industrial Relations framework is that no detail exists in a decision to guide employers on the correct path. Minister Richard Bruton had promised that in his review of Industrial Relations a tribunal determination will be more detailed and a bank of case-law will be available to employers to guide them however we have not yet seen anything on this and certainly not on the scale of the Equality Authority who go to great lengths to explain the rationale behind their decisions and leave all parties very clear on the winning and losing of a particular case.
