JVC Europe Ltd v Panisi

• Jurisdiction: Ireland
• Judge: Mr. Justice Charleton
• Judgment Date: 27 July 2011
• Neutral Citation: [2011] IEHC 279
• Docket Number: No. 125CA/[2010]
• Court: High Court
• Date: 27 July 2011

[2011] IEHC 279

THE HIGH COURT

No. 125CA/[2010]

JVC Europe Ltd v Panisi

DUBLIN CIRCUIT

COUNTY OF THE CITY OF DUBLIN

BETWEEN

JVC EUROPE LIMITED

PLAINTIFF/APPELLANT

AND

JEROME PANISI

DEFENDANT/RESPONDENT

UNFAIR DISMISSALS ACT 1977 S6(1)

UNFAIR DISMISSALS ACT 1977 S6(2)

UNFAIR DISMISSALS ACT 1977 S6(4)

REDUNDANCY PAYMENTS ACT 1967 S7(2)

REDUNDANCY PAYMENTS ACT 1971 S4

REDUNDANCY PAYMENTS ACT 2003 S5

REDUNDANCY PAYMENTS ACT 1967 S2(A)

ST LEGER v FRONTLINE DISTRIBUTORS IRELAND LTD 1995 ELR 160

STEWART & DUNLEAVY COMPENSATION ON DISMISSAL 2007 PARA 19.8.6

UNFAIR DISMISSALS ACT 1977 S6

UNFAIR DISMISSALS ACT 1977 S6(3)

CAMPBELL v MGN LTD 2004 2 AC 457

EMPLOYMENT LAW

Dismissal

Unfair dismissal - Redundancy - Burden of proof - Redress - Quantum of damage - Whether genuine redundancy - Whether dismissal disguised as redundancy - Whether procedures followed - St Ledger v Frontline Distribution Ireland Ltd [1995] ELR 160; Campbell v MGN Ltd [2004] UKHL 22, [2004] 2 AC 457 and MGN Ltd v UK [2011] ECHR 66 considered - Unfair Dismissals Act 1977 (No 10), ss 6 and 7 - Redundancy Payments Act 1967 (No 21) - Redundancy Payments Act 1971 (No 20), s 4 - Redundancy Payments Act 2003 (No 14), s 5 - Damages awarded (2010/125CA - Charleton J - 27/7/2011) [2011] IEHC 279

JVC Europe v Pasini

Mr. Justice Charleton

1 Redundancy can be a devastating blow. Where economic conditions are difficult, or where the employee who is let go has aged or is experiencing health difficulties, finding alternative employment may be impossible. Years of devotion to an employer count for nothing where technology overtakes the workforce, rendering the labour of those displaced unnecessary; where new methods of work are demanded from those who do not have the skills to respond; or where a product is rendered obsolete. All these are examples of genuine redundancy. As ordinarily understood, redundancy means that a worker is no longer needed. The legal definition, as stated in the legislation which I quote later, mirrors common comprehension. Because redundancy is inevitable if there is no work for workers to do and the workers cease to be needed, it is also lawful. The Redundancy Payments Act1967, as amended, establishes a floor of rights in compensation for redundancy; circumscribes the use to which dismissal by reason of redundancy can be put; and provides for minimum payments for qualified employees who are subject to this misfortune. In circumstances of insolvency those payments can be met from the public purse.

2 A contract of employment can involve both personal and impersonal interaction between employer and employee. Redundancy is not, however, a personal choice. It is, in essence, the external or internal economic or technological reorienting of an enterprise whereby the work of employees needs to be shed or to be carried out in an entirely different manner. As such, redundancy is entirely impersonal. Dismissal, on the other hand, is a decision targeted at an individual. Under the Unfair Dismissals Act1977, as amended ("the Act of 1977"), the dismissal of an employee may only take place for substantial reasons that are fair. In effect, the contract of employment is protected in law and it may only be repudiated by the employer for reasons which do not amount to an unfair dismissal. This requires the employer to show substantial grounds which justify the dismissal. The burden of proof, in that regard, is squarely placed upon the employer. Sections 6(1) and (2) of that Act, in their amended form, provide:-

3 2 "(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

4 (2) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal if it results wholly or mainly from one or more of the following:

5 (a) the employee's membership, or proposal that he or another person become a member, of, or his engaging in activities on behalf of, a trade union or excepted body under the Trade Union Acts,1941 and 1971, where the times at which he engages in such activities are outside his hours of work or are times during his hours of work in which he is permitted pursuant to the contract of employment between him and his employer so to engage,

(b) the religious or political opinions of the employee,

6 (c) civil proceedings whether actual, threatened or proposed against the employer to which the employee is or will be a party or in which the employee was or is likely to be a witness,

7 (d) criminal proceedings against the employer, whether actual, threatened or proposed, in relation to which the employee has made, proposed or threatened to make a complaint or statement to the prosecuting authority or to any other authority connected with or involved in the prosecution of the proceedings or in which the employee was or is likely to be a witness,

8 a (dd) the exercise or proposed exercise by the employee of the right to parental leave,force majeure leave under and in accordance with the Parental Leave Act, 1998, or carer's leave under and in accordance with the Carer's Leave Act, 2001,

(e) the race, colour or sexual orientation of the employee,

b (ee) the age of the employee,

c (eee) the employee's membership of the travelling community,

9 (f) the employee's pregnancy, attendance at ante-natal classes, giving birth or breastfeeding or any matters connected therewith,

10 (g) the exercise or proposed exercise by the employee of the right under the Maternity Protection Act1994 to any form of protective leave or natal care absence, within the meaning of Part IV of that Act, or to time off from work to attend ante-natal classes in accordance with section 15A (inserted by section 8 of the Maternity Protection (Amendment) Act 2004), or to time off from work or a reduction of working hours for breastfeeding in accordance with section 15B (inserted by section 9 of the Maternity Protection (Amendment) Act 2004), of the first-mentioned Act,]

11 (h) the exercise or contemplated exercise by an adoptive parent of the parent's right under theAdoptive Leave Acts 1995 and 2005 to adoptive leave or additional adoptive leave or a period of time off to attend certain pre-adoption classes or meetings."

12 3. To condense this and attempt a summary: a dismissal is automatically unfair under s.6 (2) of the Act of 1977 if it results from trade union activity; religious or political opinions; actual or proposed civil or criminal proceedings; bigotry; ageism; or reasons connected with maternity or parental leave due to childbirth or adoption. An employer may nonetheless dismiss an employee, but only if a reason outside of that set of proscribed reasons is the motivation and the reason for dismissal is fair.

13 4. A dismissal is fair, however, only if it results from a reason within the statute. The lawful reasons for dismissal are precisely set out. Section 6(4) of the Act of 1977 provides:-

"Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:"

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute."

14 5.Explanation is hardly necessary of these clear terms. Most unfair dismissal cases revolve around alleged misconduct by an employee. The issue for the tribunal deciding the matter will be whether the circumstances proven to found the dismissal were such that a reasonable employer would have concluded that there was misconduct and that such misconduct constituted substantial grounds to justify the dismissal. An employee may also be dismissed where, by reason of a change in primary or secondary legislation, it becomes unlawful for that employee to continue to work. For instance, in a pharmacy, only a qualified person may dispense controlled medication. Were legislation to provide that a large number of over-the-counter medications are to be restricted to dispensation by pharmaceutical chemists, work will disappear for unqualified assistants. An employee may be discovered not to have the capability, competence or qualifications to do the work for which he or she was employed. Such reasons for ending employment are all personal to the employee, to his or her conduct, to his or her competence or qualifications. It is made abundantly clear by that legislation that redundancy, while it is dismissal, is not unfair. A dismissal, however, can be disguised as redundancy; that is not lawful. Upon dismissal an employer can simply say that the employee was not dismissed for a reason specific to that person but that, instead, his or her services were no longer required, pointing to apparently genuine reasons for dispensing with the services of the employee. In all cases of dismissal, whether by reason of redundancy or for substantial grounds justifying dismissal, the burden of proof rests on the employer to demonstrate that the termination of employment came within a lawful reason. In cases of misconduct, a fair procedure must be followed whereby an employee is given an entitlement to explain what otherwise might amount to a finding of real seriousness...