Given the current lengthy waiting period, of between 12 to 18 months, which an employee must now wait before obtaining a hearing date before the Employment Appeals Tribunal ("EAT"), there is a growing temptation amongst Claimants to issue injunctive proceedings in the High Court for wrongful dismissal with the aim of expediting a hearing, or settlement, as opposed to following the more traditional route of bringing a claim before the Employment Appeals Tribunal for unfair dismissal under the Unfair Dismissals Acts 1977-2007.
A recent High Court decision makes it clear that an employee (a "Claimant") should be very wary of bringing a claim in the High Court in circumstances where he or she is challenging the procedural element of the process leading to a dismissal.
While a claim for wrongful dismissal can be heard by the High Court, a claim which centres on the fairness of the procedures adopted prior to a dismissal is likely to get a more sympathetic hearing from the EAT who have a statutory remit to determine if a dismissal was procedurally fair.
The recent judgment of Mr. Justice O'Keeffe in John Higgins v Governor and Company of the Bank of Ireland1 demonstrates the distinct difference between the jurisdiction of the High Court in wrongful dismissal cases and that of the Labour Relations Commission / EAT, when it comes to considering the procedures adopted in dismissal cases under the Unfair Dismissals Acts 1977-2007.
The Plaintiff in this case, a bank manager with Bank of Ireland, argued that the investigation and disciplinary process invoked by Bank of Ireland which ultimately led to his dismissal was in breach of fair procedures and that he had been wrongfully dismissed.
The proceedings continued for 51 days before the High Court during which Mr. Justice O'Keeffe heard extensive evidence from witnesses on both sides.
In rejecting the Plaintiff's claim for wrongful dismissal, Mr. Justice O'Keeffe expressed disquiet at the claim having been brought before the High Court as opposed to the EAT as a claim for unfair dismissal. The Judge highlighted the limits of the High Court's powers to deal with dismissal claims by stating:
"In the instant case the plaintiff determined, as did the plaintiff in Sheey v Ryan, to launch his action at common law rather than taking a claim pursuant to the statutory provisions. By doing so he limited his remedies and in particular he cannot ask this Court to act as some type of employment appeals tribunal to determine the fairness of the substantive grounds justifying his dismissal."
In the instant case, much of what the Plaintiff claims relates to the unfairness of the decision to dismiss and that the finding was "substantively wrong or disproportionate or could have justified a lesser sanction as it was in the nature of a first offence". However the Court found that many, if not all, of these issues are in fact "appropriate to be determined under Unfair Dismissals legislation." which clearly demonstrates the reluctance of the High Court to interfere with disciplinary procedures save where an employee's entitlement to natural justice has been compromised.
1.  IEHC 6
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