Interesting Employment Appeals Tribunal Case On Duplication of Proceedings

The recent Employment Appeals Tribunal case of Beverley Morgan v Irish Horse Welfare Trust Limited UD53/2012. WT 13/2012, MN 24/2014 is a useful synopsis of the law in respect of both parallel proceedings before the Employment Appeals Tribunal and the High Court and the powers of the Tribunal in this regard.At the outset of the Tribunal hearing, the respondent’s representative made an application to have the case adjourned because the claimant had instituted High Court proceedings for personal injury, loss and damage, but which also included a claim for compensation for loss of earnings. The claimant’s representative opposed the application as he provided that there two separate claims, one for personal injury and one for financial loss and both claims were permissible. He provided that the claimant was not seeking double compensation and the High Court would be obliged to take into account any award made by the Tribunal and the High Court claim was nothing to do with loss of income.The claimant’s representative referred to Section 15 of the Unfair Dismissal Acts 1977 (as amended) concerning proceedings for damages at common law for wrongful dismissal and the right of a Tribunal to adjourn a hearing under Statutory Instrument No. 24/1967/1968. Regulation 14 provides that “The Tribunal may postpone or adjourn the hearing of an appeal from time to time“.The Tribunal considered Form T1A and noted that the claimant’s case (in her own words) was that the dismissal flowed from ger allegations about being bullied by a named person. The tribunal then considered the Personal Injury Summons 2013/845 and the Indorsement of Claim at paragraph 3 which stated “During the course of her employment with the defendant, the plaintiff has been subjected to a sustained and ongoing campaign of bullying, harassment and intimidation“. Paragraph 5 and paragraph 6 also refer to workplace bullying and one of the reliefs claimed was breach of contract which was confirmed by the claimant’s representative as a breach of contract of employment. Under the heading of particulars of items of Special Damage in the Personal Injury Summons, the plaintiff/claimant claimed two years loss of earnings which the Tribunal noted was the maximum that it could award.CaselawThe Tribunal looked at several cases during its deliberations:In Henderson v Henderson (1843) 3 Hare 100 the rule developed which prevented duplication of proceedings and which provided there should be finality to litigation (subject to appeal) and that a party should not be twice vexed in the same manner.In Phillip Carrie v Employment Appeals Tribunal and Bus Atha Cliath/Dublin Bus 2008/07749 the applicant brought Judicial Review proceedings in the High Court against a decision of the Employment Appeals Tribunal to adjourn the proceedings before it pending the hearing of the proceedings in the High Court on the grounds:”The Tribunal is satisfied that both cases are intimately interlinked as establishing the date of the commencement of the compensatible loss for the purposes of the Tribunal would involve making a finding as to the duration of the injury the subject of the High Court claim. For this and other reasons the claim under the Unfair Dismissal Acts 1977 to 2003 is therefore postponed pending the resolution of the High Court case of Phillip Carrie v Bus Atha Cliath/Dublin Bus Record Number 2008/5795p“.In the High Court, Sheehan J had refused all reliefs sought by the applicant on the grounds that the Employment Appeals Tribunal had acted within jurisdiction in deciding to adjourn the Tribunal hearing until after the Personal Injury action was brought by the claimant.In Cunningham v Intel Ireland Limited [2013] IEHC 207 the claimant returned from a combination of sick leave and maternity leave in 2008 and instituted a claim for gender discrimination against her employer on the grounds that Intel had failed to allow her return to her original job as a workforce mobility manager and failed to provide her with a job to match her grade level. In her claim before the Equality Tribunal the claimant alleged the discrimination affected her health and well being. Intel brought a motion to strike out the claimant’s Personal Injury proceedings for abuse of process and/or duplication of proceedings in the High Court. Hedigan J noted that the claimant had “attempted to draw an artificial distinction between her Equality Tribunal complaint and her Personal Injury proceedings” and ruled in favour of Intel again observing that “Thus all matters and issues arising from the same set of circumstances must be litigated in the one set of proceedings save for special circumstances“.In Parsons v Iarnrod Eireann [1997] 2 IR 523 the claimant brought proceedings for unfair dismissal and issued proceedings in the High Court for a number of reliefs and in particular damages for wrongful and/or unfair dismissal. In its defence to the High Court proceedings the employer raised an objection seeking to have the claim struck out as it contravened Section 15 (2) of the Unfair Dismissal Act 1977 (as amended). The High Court allowed the objection and struck out the proceedings. On appeal to the Supreme Court, Barrington J noted:”Section 15 of the Unfair Dismissal Act [1977] provides that the worker must choose between suing for damages at common law and a claim for relief under the…Act. Subsection 2 accordingly provides that if he claims relief under the Act of 1977 he is not entitled to claim damages at common law while subsection 3 provided that where proceedings for damages at common law for wrongful dismissal are initiated by or on behalf of an employee, the employee shall not be entitled to redress under the Unfair Dismissal Act 1977 in respect of the same dismissal“.In Quigley v complex Touling and Moulding Limited [2009] 1 I.R. 349 Lavan J found that “where the facts of a….High Court claim were independent of the subsequent dismissal, therefore a claim might be pursued at the Tribunal“.DecisionThe Tribunal determined that both cases are “inextricably linked with bullying being at the centre of both actions“. The Tribunal did not consider that there were any special circumstances as outlined in the Cunningham case that permitted the High Court and unfair Dismissal action to proceed simultaneously and took the view that the claimant was drawing an artificial distinction between the two actions.”The Tribunal was conscious of the fact that the words “wrongful dismissal” were not used in the High Court pleadings but in reality this is what the claimant is claiming while not naming it as such“.The Tribunal adjourned that case pending the resolution of the High Court case of Beverly Morgan v Irish Horse Welfare Trust Limited 2013/845p.