TOPIC 4: Case Law Flashcards
Carroll v Dublin Bus [2005] 4 IR 184
Fair Procedures
The plaintiff was an employee of the defendant and sought interlocutory injunction orders regarding (1) payment of salary (2) order permitting his return to work (3) order in regard to dismissal procedure. The plaintiff had a chequered history with the defendant, had been off work for weeks due to an accident and when he returned he requested a bus route where he could avoid long periods of being seated.
Held by Mr Justice Clarke ruling that it was inappropriate to make interlocutory orders in regard the payment of salary. He further ruled that the plaintiff had established a case in regard to the disciplinary process and granted relief unless the defendant complied with the laid down terms.
Flanagan v UCD [1988] IR 742
Fair Procedures
decision-maker must be mindful of the consequences of an adverse outcome for the employee.
Burns v The Governor of Castlerea Prison, [2009] IESC 33 -
Fair procedures
“legal representation should be the exception rather than the rule”.
– Geoghegan J adopted the criteria identified in R v Secretary of State for the Home Department, Ex p Tarrant [1985] 1 QB 251 as relevant for establishing whether legal representation is desirable in the interests of a fair hearing:
seriousness of the charge and of the potential penalty;
whether any points of law are likely to arise;
the capacity of a particular person to present his own case;
procedural difficulty;
the need for reasonable speed in making the adjudication;
the need for fairness as between the parties.
Hickey v The Eastern Health Board [1991] 1 I.R. 208
Employer’s Power to Dismiss at Common Law
Supreme Court held that the rules of natural justice regulating dismissal for misconduct had no application where the dismissal was for reasons other than misconduct.
Sheehy v Ryan [2004] ELR 87
Employer’s Power to Dismiss at Common Law
The High Court reaffirmed that an employer was not obliged to have regard to fair procedures in dismissing an employee, other than where there was an issue of misconduct.
Cahill v DCU [2007] IEHC 20
Employer’s Power to Dismiss at Common Law
Clarke, J. held that there had been a breach of fair procedures as Prof Cahill had not been given an opportunity to make representations as to why his contract should not have been terminated & there were no allegations of misconduct in this case.
Maher v Irish Permanent p.l.c [1998] 4 I.R. 302
Dismissal procedures
principles of fair procedure applicable to dismissals of persons in both sectors
Mooney v An Post [1998] 4 IR 288.
Procedures set out in the contract must be followed
Flynn v Great Northern Railways Co 89 I.L.T.R. 46 (1955)
Due notice will not be a proper substitute for the procedures laid down.
Sharon Barry v Newbridge Silverware Limited UD1517/2012
determining the date if dismissal
Bartlett v Kerry C.C. (UD 349/86)
Redundancy Payments Acts do not apply to any person who works less than 8 hours a week.
- firemen on call constituted working hours.
Limerick Health Authority v Ryan [1969] I.R. 194
midwife sought redundancy compensation. Kenny J. held that the then 18 hours minimum “does not apply when the employer does not or cannot specify the hours during which the employee is to do the work and when its nature requires that the person employed has to be available to do it at all times.”
British Leyland v Swift [1981] Eng CA
Band of reasonableness
“It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view: another quite reasonably take a different view. One would quite reasonably dismiss the man. The other would quite reasonably keep him on. Both views may be quite reasonable. If it was quite reasonable to dismiss him, then the dismissal must be upheld as fair: even though some other employers may not have dismissed him”.
Colli v Ryanair (UD193/2010)
dismissed following 3 reports based on ‘mystery passenger’ feedback
Held to be misconduct , however proper procedure should have consisted of the claimant getting a copy of the reports prior to the investigation meeting or at the investigation meeting with an enquiry as to whether the claimant required more time to re-consider.
Frizelle v New Ross Credit Union [1997] IEHC 137
bona fide complaint unrelated to any other agenda
State the complaint, factually, clearly and fairly without any innuendo or hidden inference or conclusion.
Employee should be interviewed and his version noted and furnished to deciding authority (without comment)
Decision on the balance of probabilities (flowing from the factual evidence; in the light of the explanation offered)
Decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee
