Bank of Ireland
It is often argued by employers in the Employment Appeals Tribunal (EAT) that, in the event that the Tribunal makes a Finding that the Dismissal was unfair, compensation should be awarded rather than reinstatement of the employee to his position due to the length of time which has expired since the Dismissal. This submission has generally been accepted by the Tribunal; that is, until the Decision of Mr Justice Noonan in the High Court case of The Governor & Company of the Bank of Ireland –v- James Reilly [2014, No. 34 CA].
In the Reilly case the employee claimed that he was unfairly dismissed by the plaintiff Bank. The Bank claimed that the employee allegedly breached Bank’s email policy by forwarding offending email images, but none of the emails in question originated with the employee. The issue for the Court was whether the employee`s misconduct constituted gross misconduct, that is, whether there were substantial grounds justifying his dismissal.
The Court`s Decision
High Court, Dublin
Mr Justice Noonan stated that no evidence had been adduced to justify the employee’s suspension in the first instance. He stated that fair procedures had not been complied with. The Bank had failed to discharge the onus of establishing that there were substantial grounds justifying dismissal. The Bank’s conduct in this case was unreasonable and disproportionate. Compensation would fall far short of providing adequate redress and the defendant to be re-instated.
Time expired
Mr Reilly was suspended on the 27th February 2009. Subsequent to the Investigation and Disciplinary process he was dismissed on the 26th May 2009. His case before the EAT took seven days at hearing over a period of about a year. An Appeal was brought from the decision of the EAT to the Circuit Court, which took eight days and in turn, the order of the Circuit Court was appealed to the High Court when the matter was at hearing for ten days.
The Judge`s Reasoning
Termination of Employment
The Judge believed that Mr. Reilly was not treated on a like footing to others in the bank similarly implicated. He believed that Mr Reilly was very badly treated by the Bank. His Dismissal had had a devastating effect on him. He commented that “the manner in which (the Bank) predetermined and manipulated the entire process from the outset reflects little credit on it and visited a very grave injustice on Mr. Reilly”. In the circumstances Mr Justice Noonan concluded that “an award of compensation would fall far short of providing adequate redress in this case and the only appropriate remedy (was) re-instatement”.
Implications of this Decision
Generally Appeal Hearings before the EAT take anything up to 18 months to come on for Hearing and, once heard at the initial first half-day Hearing, can then be adjourned for at least 4 months before more days are assigned for Hearing. Employers should no longer assume that the expiry of time since the Dismissal of an employee should work to its advantage in ensuring that the employee does not succeed in getting re-instated into his former job. This will be even more so, bearing in mind the new procedures anticipated under the Workplace Relations Act 2015, where it is would appear that Appeals before the new Adjudicator will come on for Hearing much earlier than in the soon to be abolished Employment Appeals Tribunal.