HSE costs to total €400k on conclusion of Constructive Dismissal case
Constructive Dismissal is the term used when an Employee terminates his or her employment based on the conduct of the Employer.Unlike in an Unfair Dismissals case where the dismissal is deemed to be unfair unless proven otherwise and justified by the Employer - in Constructive Dismissal instances the onus is on the Employee to prove that their resignation was based on poor Employer conduct.
If it is found that the Employee has been Unfairly or Constructively Dismissed then he or she could either be awarded compensation for the loss of earnings suffered as a result of the termination of employment or could be placed back in their original role. Reinstatement is not common practice (particularly in Constructive Dismissal cases) due to the expected tension/ strained relationship between the Employer and the former Employee and due to the amount of time that is likely to have lapsed between the termination of the employment and the resolution of the case. Often the Employee has entered in to a new employment contract elsewhere.
It is important for Employers to be aware of everything that occurs in their workplace as even other Employees’ behaviour that goes unchecked by the Employer could contribute to a Constructive Dismissal case. Constructive Dismissal scenarios can be extremely costly to employers as was proven in a recent Health Service Executive (HSE) case. The claimant in this case was the Head of Ambulance Services for the HSE. The claimant, who lives in Derry, inappropriately used a HSE fuel card for private purposes and, while this would likely have seen him disciplined had he remained in employment, the claimant discovered that he had been found guilty at an early stage and, fearing dismissal/a Garda inquiry, he resigned from his position in 2010.
The claimant’s employer (the HSE) found that he was guilty without first giving him the opportunity to defend himself which meant that the process was seriously defective. The HSE exposed itself with this fundamental flaw in its process and, after his resignation in March 2010; the former Head of Ambulance Services claimed that he had been Constructively Dismissed.
The Employment Appeals Tribunal found that the claimant, who resigned from his approximately €100,000 per year role out of anxiety after learning that he was found guilty of the fuel card offence, had in fact been Constructively Dismissed. However, the Tribunal did not award any financial compensation because of the nature of the employee’s actions prior to his departure.
The claimant appealed the decision not to compensate and, in December 2013, the Circuit Civil Court awarded €250,000 (minus €50,000 for the misuse of the HSE fuel card) because of the catastrophic affect that the Constructive Dismissal had on the claimant’s career.
On the 22nd January 2014, the Health Service Executive was dealt a further blow when the Circuit Civil Court ordered it to pay the legal costs. The HSE is liable for an estimated €200,000 in legal costs that built up during the course of the Court and Employment Appeals Tribunal Hearings.
Contracts provided by employers to their employees usually incorporate a mandatory retirement age (Normal Retirement Date/NRD). This tends to make it compulsory for the employee to retire at a certain age, usually this is somewhere between the ages of 60 and 65. Most contracts also include some sort of provision for early retirement on ill-health grounds etc.
Interestingly, employers are allowed to set minimum recruitment ages provided that the minimum age is 18 or under.
Since 2001 The HR Company, B2E Ltd. has been successfully providing a cost-effective HR and advice support service(s) for small to medium sized businesses (SMEs) across Ireland. The HR Company also assists several large corporations and multinationals with their HR operations. With so many pieces of employment legislation in place in Ireland it is a challenge for companies to ensure that they are fully compliant on all counts. The HR Company is an Irish-owned company headed up by Philip Carney, former head of HR for Microsoft’s European Operations Centre, and Angela O’Grady, former Staffing and Recruiting Manager. A team of 20 HR specialists provide peace of mind for Employers by guiding them on all aspects of Irish Employment Law.
The HR Company provides a very affordable 24/7 protection service to those who wish to offload the burdens and risk associated with HR activities. Whether it relates
to disciplinary procedures, annual leave, redundancy or anything in between; a dedicated account manager is at the end of a phone to guide Employers and help insulate companies whenever a query about best practices in HR arises.
Not only does The HR Company provide bespoke employment documentation to ensure companies pass a National Employment Rights Authority (NERA) inspection, tailored disciplinary letters and any other relevant material are prepared by dedicated account managers to ease the load on the Employer. The HR Companyacts as the eyes and ears of the Employer on all HR related issues – protecting companies by keeping them informed on any relevant legislation updates.
In this era of increased employee litigation employees know their rights – companies should shield themselves against the risk of a costly dispute by arming themselves with the best on-call
support.
Employees are protected against discrimination or loss of employment through redundancy or dismissal on grounds relating to pregnancy and Maternity Leave. Employees must give notice of their intention to return from Maternity Leave at least 4 weeks prior to doing so. Employees must return on the same terms and conditions as when they left (unless this in not reasonably
practicable).
There is an obligation on the employer to carry out a specific risk assessment for employees who are pregnant, and for those who are breastfeeding or who have just given birth, in order to assess whether there are any workplace hazards for these employees. Should this risk assessment determine that hazards (that cannot be eliminated) exist the employee will be
moved to alternative work or, if this is not feasible, the employee will be granted health and safety leave. The employee is entitled to payment from the employer in respect of the first 21 days of such health and safety leave and can apply for social welfare benefit for any period thereafter.
So far as is reasonably possible, employers are legally obliged to ensure the safety and welfare at work of all employees. Likewise, employees have a responsibility to themselves and to their colleagues. The use of alcohol and/or unauthorised drugs may disturb the safe and efficient running of a business. It can hinder the health and safety of employees within the organisation as well as the customers and other stakeholders.
Companies should operate a ‘zero tolerance’ policy when it comes to drugs and alcohol and
employees should not be permitted to work while under the influence of drugs or alcohol under any circumstances. Employees must adhere to all medically prescribed drug instructions and if the medication is likely to cause any side effects that could impair the employee’s levels of concentration or ability to carry out his or her work then he or she should communicate this to Management.
If an employee’s performance or attendance at work is affected as a result of alcohol or drugs, or the employer believes the employee has been involved in any drug related action/offence, disciplinary action may be required. Dismissal may be warranted in severe circumstances.
It should be clearly communicated to employees that anyone involved in the unlawful possession, use, sale or manufacture of controlled substances or illicit drugs etc. on Company premises, in Company vehicles/work sites or during working time will be subject to disciplinary action up to and including dismissal. They should also be referred for prosecution.
Companies should also include a drug and alcohol testing policy in their employee handbook to improve their rights in these situations.
Smoking regulations for employees:
In line with statutory provisions companies are obliged to operate a strict smoke-free
workplace policy. Employers should make their employees fully aware that any member of staff who breaches this policy will be subject to disciplinary action up to and including dismissal. It is imperative that employers enforce the law. 
The recommendation, which is binding under the terms of the Haddington Road Agreement, was issued on 18th September, 2013, and will affect the employment terms and conditions of approximately 10,000 workers. It is important to note that this agreement only applies to Home Helps who are employed by the HSE. Individuals employed by private companies or not-for-profit providers are not covered by this Labour Court recommendation.
Services Industrial Professional and Technical Union (SIPTU) has been campaigning since 2009 in a bid to secure adequate contracts and security of earnings for its members. The Union has welcomed the Labour Court decision which brings an end to the extensive system of zero-hour contracts. Paul Bell, SIPTU Health Division Organiser, stated that the agreement put the terms and conditions of Home Helps on a “firm and binding platform for the first time since the community service was established thirty years ago”.
A Zero-hours contract is a type of employment where an employee must be available for work but does not have specified or guaranteed hours or a formal roster. This can cause challenging circumstances for employees where the hours of work as well as earnings are unpredictable.
Bullying or harassment isn’t always obvious – in fact it can come in many shapes and forms – some examples are:
•Social exclusion or isolation
•Damaging someone’s reputation through gossip or rumour
•Any form of intimidation
•Aggressive or obscene language or behaviour
•Repeated requests for unreasonable tasks to be carried out
Employers Beware:
Under current Irish employment legislation (The Employment Equality Acts 1998-2011) companies are accountable when it comes to bullying and harassment in the workplace or workplace disputes. It is vital for employers to be mindful of the legislation as companies are answerable for the actions of employees, suppliers and customers even in cases where the company is not aware that bullying or harassment is taking place.
To defend itself a company must illustrate how it did everything reasonably practicable to prevent bullying and / or harassment from taking place in the workplace. The company must also show that when an instance of bullying or harassment occurred the company took immediate, fair and decisive action.
There is a huge risk of exposure if companies do not adhere to the strict Regulations. Those found in violation of the Act may be liable for fines and in severe circumstances imprisonment on summary conviction. Companies can also end up paying out large sums in compensation.
Bullying creates a very hostile work environment and can negatively affect employee performance – It can lead to disengagement and low levels of morale. It can also cause a company to lose key members of staff. Bullying can affect both the safety and the health of employees – this violates the Safety, Health and Welfare at Work Act 2005.
It is abundantly clear that it is in the best interest of all stakeholders to prevent bullying or harassment of any form in the workplace.
In order to avoid bullying and harassment an employer should include harassment-related policies and procedures in the Employee Handbook – A Dignity at Work Policy should be communicated clearly to employees. This will clarify what is expected of employees and what the protocol/repercussions are if bullying/harassment does occur.
Last week the Immigrant Council of Ireland (ICI) brought our attention to a shocking statistic – The ICI revealed that the number of racist incidents reported in Ireland over the last 12 months had jumped to a staggering figure – They dealt with 120 individual racism cases in the past
year. 52 of these instances were reported in June/July of 2013 alone marking a huge increase when compared to the same period in 2012 when just 3 incidents were reported.
The racism reported related to alleged discrimination, written harassment, verbal harassment and physical violence.
The most commonly reported setting for racism was the workplace – where a massive 20% of reported incidents occurred.
Employers need to be vigilant and need to make more of an effort to consciously crack down on this type of activity.
If it is found that the Employee has been Unfairly or Constructively Dismissed then he or she could either be awarded compensation for the loss of earnings suffered as a result of the termination of employment or could be placed back in their original role. Reinstatement is not common practice (particularly in Constructive Dismissal cases) due to the expected tension/ strained relationship between the Employer and the former Employee and due to the amount of time that is likely to have lapsed between the termination of the employment contract and the resolution of the case. The Employee has often entered in to a new employment contract elsewhere.
It is important for Employers to be aware of everything that occurs in their workplace as even other Employees’ behaviour that goes unchecked by the Employer could contribute to a Constructive Dismissal case. These can be extremely costly.
Here is an example of a case where the Employee (the Claimant) was awarded 
The final occurrence led to the termination of employment for the Claimant. On the Claimant’s final day working for the Respondent the Technical Manager, a physically intimidating individual, entered the shop where the Claimant and his colleague were working. The Technical Manager lifted the Claimant up from his chair by his arm and proceeded to shout at him. The Claimant, who was frightened, attempted to avoid confrontation and turned away. The Technical Manager again grabbed the Claimant, this time by his shoulder, and spun him around while demanding that he not complain. The Claimant said that he didn’t complain, he just answered questions. The Claimant was pulled closer and then told to leave by the Technical Manager.
The Claimant did as he was told but the Technical Manager proceeded to follow him, grabbing him by the neck. At this stage the Claimant was in a state of shock and told the Technical Manager that he was simply working his way through college. The Claimant’s shirt was torn, there were marks on his neck and his hand was bruised after the incident.
After the event, the Claimant called a Senior Manager and told him what had happened. The Claimant returned his keys to the shop and arranged to collect his jacket from his colleague. A series of meetings with the shop Manager and other Senior Managers were arranged. The Claimant was offered a transfer to another shop, however, this other shop was located far
from the Claimant’s home and, therefore, was not a suitable alternative – he could not accept this transfer proposal.
As a result of the meetings the Claimant was given a written warning, however, as no arrangements were made for him to return to a safe workplace he had no option but to resign.
The Claimant established loss for the Tribunal and it was determined that the Claimant was Constructively Dismissed. The Respondent failed in its responsibility to the Claimant by not responding adequately.
Under the Unfair Dismissals Acts, 1977 to 2007, the Claimant was awarded 