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.