Employment Law – Update 2

RE-ENGAGEMENT AND RE-INSTATEMENT IN PRACTICE

Stobart (Ireland) Driver Services Limited -v- Carroll

In the recent decision of Stobart (Ireland) Driver Services Limited -v- Carroll, the President of the High Court upheld a new use of the traditional remedy of re-instatement.

The employee claimed that he had been penalised under Section 27 of the Safety Health and Welfare at Work Act, 2005, when he was dismissed by the Company after he asked his Manager not to schedule him for work as he felt that he had worked excessive hours that week.  The Claimant was informed that he had to report to work and he was told that, if he had a grievance, he could pursue it through the Company’s Grievance Procedure.  He informed his employer that he was too tired to drive but because he felt that his job was at risk he reported for work.  The Company sent him home and the following day provided him with a letter terminating his employment for gross misconduct.

The initial claim was to a Rights Commissioner and the Claimant argued that he was taking reasonable care to protect his safety, health and welfare at work and of any other person who may have been affected by his work in accordance with Section 13 of the 2005 Act.  The Rights Commissioner agreed with the Claimant that his dismissal constituted penalisation under Section 27 of the 2005 Act.  The Rights Commissioner awarded him both compensation and re-instatement.

The Company appealed the matter to the Labour Court and the Labour Court upheld the finding of the Rights Commissioner.  The matter was appealed further to the High Court and the President of the High Court ultimately upheld the earlier decisions in relation to compensation for the Claimant’s loss of earnings and re-instatement.

There are three key points to note from this case, namely:-

  • If an employer dismisses an employee who has not accrued one year’s service, the dismissal can constitute penalisation under the 2005 Act.  This is the case even where the Claimant does not have the required service necessary to make a claim under the Unfair Dismissal Acts.
  • It was not necessary for the Complainant to make a formal complaint on foot of the company’s grievance procedure.
  • Although in many cases reinstatement can be unworkable because the employment relationship has broken down, there are specific circumstances when reinstatement is the appropriate remedy and this will depend on the nature of the work involved.