Employment law solicitor Richard Grogan of Richard Grogan & Associates looks at an interesting unfair dismissal case where an employee raises illegality and is dismissed.

In the case of Swissport Ireland Limited and Pejazyr Cakolli, an issue arose about the employee being requested to drive a vehicle on a roadway to which the public had access where the employee asserted there was no road tax, insurance, NCT or licence issued in the context of driving the respondent’s vehicle on a roadway to which the public had access. In the case an award of €50,000 was awarded. The Court noted that the appellants pay exceed €25,000 per annum and measured the compensation at €50,000.

This case is interesting on its facts but particularly in relation to the issue of the approach of the employer. The Court pointed out that it is not the duty of the Labour Court to establish the legitimacy or otherwise of the employee’s concerns as regards the applicability of road traffic legislation. However, the Court pointed out that the evidence of a sergeant in An Garda Síochána would suggest that there is at a minimum a matter of law underpinning the issue.

The Court pointed out that the employee raised with his employer issues as regards the legality of the instructions. The Court pointed out that the employer took no steps to take qualified advice on such matters and did not make an inquiry of An Garda Síochána or its insurers to establish expert sources on the matter at issue. They instead sought the opinion of two persons who may not have had any knowledge or expertise of road traffic legislation or motor insurance. The Court pointed out that the employee in this case was left with guidance from An Garda Síochána on the one hand and the employer on the other hand which were irreconcilable.

The Court pointed out that it is not the role of the Court to put itself in the place of the employer. Rather the Court properly pointed out that it is for the Court to determine whether the actions of the employer fell within the range of actions which a reasonable employer would take in the circumstances. The Court concluded that the actions of the employer in addressing the concerns raised by the employee were inadequate.

The Court pointed out that where an employee raises a question as regards the legality of instructions being given to him or her, there is a responsibility upon the employer to properly establish the legal facts and, where the concern is unfounded, to provide sufficient information to the employee to allow him to understand that fact.

This is a very important statement of the law by the Court. The Court in this case was critical of the actions of the employer in relation to the entire process relating to dismissal. They found there was no adequate basis for assumptions made by the employer as regards the right to drive on a roadway to which the public have access and that the investigation process was deficient. This is a case where a significant award was made. The employee had sought to minimise his loss but had been unable to obtain other work.

This is an important case for setting out the duty which an employer must undertake where an employee raises issues of illegality as regards instruction he is given.