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Woman seen teaching belly dancing after calling in sick loses unfair dismissal action against Dunnes Stores

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A Limerick belly dance tutor has failed in her unfair dismissal action against retail giant, Dunnes Stores.

This follows the Labour Court throwing out belly dancer, Ms Kati Kipli’s claim that she was unfair dismissed by the retailer on June 2nd 2016.

The ruling by the Labour Court after a two day hearing in Limerick affirms an earlier ruling by the Workplace Relations Commission (WRC) that Ms Kipli was not unfairly dismissed.

Ms Kipli was employed as a part time sales assistant by Dunnes Stores from December 2007 to June 2016.

The retailer sacked Ms Kipli after mounting a one person ‘snoop operation’ that found that Ms Kipli was giving a belly dance class at a local hotel after she called in sick complaining of a kidney infection earlier that day.

On May 17th 2016, Ms Kipli was rostered to work from 5pm to 9pm.

However, Ms Kipli contacted the Human Resources (HR) Manager at Dunnes Stores’s Harvey’s Quay outlet on Henry Street by telephone at 1pm that day to let her know that she felt unwell with a kidney infection and to advise she would be unable to work her shift.

Ms Kipli telephoned again at 4pm and advised that her condition had not improved and that she was going to bed for the night.

The HR Manager was aware that Ms Kipli was scheduled to run a belly dance class that evening.

The HR Manager telephoned the Strand hotel and and was told that the belly dance class was proceeding that night.

The HR Manager asked a colleague, the store’s Check Out Manager to attend to see if Ms Kipli was present at the hotel and the Check Out Manager witnessed Ms Kipli at the hotel wearing a “a purply-pink outfit” where the belly dance class was to take place at 8.30 pm, along with a group of ladies attending the class.

The following day when Ms Kipli reported for work she was quizzed about the belly dancing class.

Ms Kipli initially denied that she had attended her dance class at the hotel but then admitted that she had been there after the HR Manager stated that that she had been observed in the room immediately prior to the commencement of the class.

As a result, the store’s Grocery Store Manager conducted two meetings to investigate the events of May 16th.

Arising from the meetings, Dunnes Stores fired Ms Kipli on June 2nd 2016.

The dismissal letter told Ms Kipli that she admitted to engaging in other paid employment whilst on sick leave from the company.

The letter stated: “This constitutes misconduct which is a serious breach of the Company Code of Conduct.”

Dunnes told her that it has made the decision “to terminate your contract with immediate effect. We have considered other sanctions but after taking everything into account dismissal is the only appropriate sanction to be taken”.

The Grocery Store Manager told the Labour Court: “The reason she was dismissed was because she attended her belly-dancing class while she should have been at work”.

Dunnes stated that Ms Kipli conducted the class knowing that she would get paid under the company’s sick leave scheme.

Ms Kipli’s solicitor submitted that the entire process – beginning with the back-to-work meeting of May 18th 2016 – that culminated in Ms Kipli’s summary dismissal was unfair and that the decision to dismiss her pre-determined.

The Labour Court found that the deficiencies in Dunnes’s procedures were not of such gravity as to imperil the fairness of the process to dismiss Ms Kipli.

The Labour Court found that Ms Kipli had admitted that she had both attended and taught the dance class having first denied that she had done so.

Online Editors

New device to detect cars being driven without insurance issued

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MIBI believes uninsured drivers accounted for more than 90% of claims received in 2019

An Garda Síochána has begun the roll-out of 2,000 devices that will allow for the detection of cars being driven without tax, insurance or a valid NCT cert.

The Motor Insurers’ Bureau of Ireland (MIBI) is among those bodies that has been seeking the introduction of the technology, stating that uninsured drivers accounted for more than 90 per cent of claims received last year.

After a successful piloting of the new system in Limerick, the Naas Roads Policing Unit was last month one of the first to receive the new Mobile Data Stations, the Garda Press Office said.

“The mobile solution provides a Traffic App containing Driver Lookup and Vehicle Lookup functionality which has been utilised on traffic stops and general policing inquiries by frontline members,” the spokesman said.

“This has improved operational efficiency and effectiveness generally, as it allows gardaí to provide real time updates and access information on the roadside without having to interact with other Garda personnel via radio.”

During the pilot operation, the app “greatly assisted” in the detection of disqualified drivers as well as vehicles that did not have valid tax, insurance or the required NCT approval.

General release
Two thousand gardaí are to receive the device as part of a general release programme, with 544 being allocated in the Dublin region, 484 in the Eastern region, 452 in the North West, and 520 in the South West, the spokesman said.

He was unable to say when it was envisaged that the roll-out would be completed.

Earlier this month MIBI said the high number of claims relating to uninsured drivers they received during 2019 underlined the importance of the automatic number plate recognition system.

The MIBI is a not for profit organisation established to compensate victims of road traffic accidents caused by uninsured and unidentified vehicles.

In 2019 the bureau received 2,540 insurance claims, down 12 from 2,552 in 2018. This represents a change of less than 0.01 per cent.

The number of uninsured claims also remained static with MIBI receiving 1,787 claims relating to uninsured vehicles in 2019, compared to 1,788 in 2018.

The bureau’s chief executive, David Fitzgerald, said the figures indicated that there continues to be a substantial number of uninsured vehicles driving on Irish roads.

“The MIBI hopes that the rollout of the new automatic number plate recognition system will make it easier and more simple for the gardaí to identify uninsured drivers. “

The new app, he said, will make it very difficult for uninsured vehicles to be driven without being detected.

irishtimes.com

Chief Justice calls for significant improvement in legal aid system

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The State’s top judge has said he “feels strongly” that the Irish system of civil legal aid needs to be “significantly improved”.

Chief Justice Frank Clarke said there was a “very powerful argument” in favour of significantly reviewing the income thresholds that apply for people seeking assistance from the Legal Aid Board.

He made his remarks at an event in Dublin held to mark the 40th anniversary of the board, which supplies people on low incomes with civil legal representation.

The chairman of the state body, Philip O’Leary, also called for a review of the entitlement threshold which, he said, has not changed substantially since 2006.

The service is separate to criminal legal aid and is only available to those whose disposable income is below €18,000.

The figure is arrived at after certain allowances are applied to a person’s after tax income.

Given how rent and other costs have increased over recent years, Mr O’Leary said, some people whose income is so low they qualify for an income supplement, are still found not to qualify for civil legal aid.

“Our service is a vital bridge in the access to justice journey and without that bridge a lot of people just can’t get across into the system,” he told The Irish Times.

Mr Justice Clarke said many involved in the legal system, “myself included”, feel strongly that the legal aid system needs significant improvement.

Legal aid, he said, is unlikely to be at the top of any political agenda and is not considered one of the great issues for the electorate in the general election.

“When faced with trolley numbers and homelessness, those priorities are entirely understandable.”

However, he said, the fact was that litigation has grown more complex and it was probable there were rights which were not being vindicated “at all because litigation in certain areas is very difficult to mount without legal aid.”

Higher costs
The increasing complexity of litigation meant higher costs for those who had to pay for it.

“I suggest that this gives a very powerful argument for a significant review of the income thresholds which are applied to determine entitlement to legal aid.”

While someone with a middle range income might be able to afford some types of litigation, he said, that person might not be able to pay for more complex, and therefore more costly, legal actions.

While some argued that the “no foal, no fee” system fed a compensation culture, any reform of the system would have to confront the fact that a great deal of litigation where rights are vindicated and established, could only be brought with the benefit of such an arrangement.

Mr Justice Clarke also noted that the no foal, no fee system only worked in cases where there was a party involved who, if they lost, would be in a position to pay the costs. That was not always the case.

The Bar Council, in an election statement, has also called for increased resources to be allocated to civil legal aid.

irishtimes.com

Family sue HSE for €3.3m after brain-dead woman kept on life support over Eighth Amendment

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The family of a brain-dead pregnant woman who was kept on life support for almost four weeks owing to concerns about the Eighth Amendment are seeking some €3.3m damages from the HSE over her death.

The State Claims Agency, which is managing the case for the HSE, disputes the level of damages sought. More than €3.1m is for future costs of care and appropriate accommodation for 26-year-old Natasha Perie’s two young children, now aged 11 and nine, including the cost of full-time live-in nannies for both until they reach the age of 23, as well as education and counselling.

The remainder is for some €184,000 for Ms Perie’s father, Peter Perie, for loss of dependency. At the time of their mother’s death in late 2014, both children were living with her and widower Mr Perie (67), in his four-bedroom home where they were described as “happy and content”.

The children have different fathers and, after Ms Perie’s death, the children went to live with their respective fathers in accommodation not owned by the fathers. A hearing opened before Ms Justice Deirdre Murphy yesterday for assessment of damages after a mediation failed to secure agreement.

The family had last November received an apology from the Midland Regional Hospital, Mullingar, and the HSE over failings in Ms Perie’s care at the hospital in late 2014.

She was pronounced brain-dead days after her admission there on November 27, 2014 but was afterwards kept on life support, against the family’s wishes, because of doctors’ concerns about the implications of the Eighth Amendment, which has since been repealed.

independent.ie for full story

Soldiers’ €60,000 claim over 2kmh crash thrown out

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Soldiers’ €60,000 claim over 2kmh crash thrown out

Two soldiers who said they suffered neck injuries after a vehicle rear-ended them while travelling at an estimated speed of 2kmh have had their €60,000 claims dismissed.

John Lynch and Eamonn Fitzgerald were involved in an incident on the Old Dublin Road in Galway in October 2014. The pair were in an Army SUV which was stopped at traffic lights when a car behind them accidentally rolled forward.

Mr Lynch and Mr Fitzgerald were doing a cash escort at the time and initially claimed they thought there had been an attack on the SUV.

Peadar Harvey, driver of the Seat Ibiza car, said he didn’t feel an impact.

The two claimants said they felt a “big thud” and were shunted forwards.

Their Army colleague Charles O’Leary, who was a back-seat passenger, gave evidence he felt a very light impact, the SUV was not shunted forwards and he did not move in his seat at all. He said he did not feel any discomfort.

Mr Lynch gave evidence that his neck and shoulder injuries have not really improved and said he was told he “would never be the same again”.

Mr Fitzgerald told the court he had underplayed his injuries so as to secure an overseas assignment.

He was asked why he did not disclose to his doctor and solicitor a previous traffic accident in 2012, in which he sustained a neck injury, and an accident in 1999.

Giving evidence in Galway Circuit Civil Court, engineer Tony Kelly estimated the change of speed as less than 2kmh where at least 8kmh would be required for occupancy movement.

Dr Martin Neary gave evidence that he assessed Mr Fitzgerald on February 26, 2015, around three months after the accident, for the purposes of an overseas assignment to Lebanon.

He noted that Mr Fitzgerald had completed fitness tests on February 16 and 17 which included sit-ups and press-ups and a 10km march with a 14kg weight.

Dismissing the claims, Judge Rory McCabe said he found it very difficult to understand how what he saw as a very minor tip could give rise to any injury.

Rob Smyth, head of Aviva’s investigations unit, welcomed the judge’s decision.

Irish Independent

Record €60m debt write-off for former quarry operator gets High Court approval

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Record €60m debt write-off for former quarry operator gets High Court approval

A former quarry operator has had a €60m debt write-off approved by the High Court – the largest ever under personal insolvency legislation.

Enda Patrick Whelan’s debts included €56.4m owed to Nama, mostly due to personal guarantees given to Anglo Irish Bank in respect of companies in the Whelan Group.

Three of those companies are now in liquidation and one is in receivership.

The businesses got into difficulty due to the collapse of the building industry.

The 46-year-old will retain his family home in Ennis, Co Clare, valued at €230,000, under his personal insolvency arrangement (PIA).

His creditors will receive a lump sum of €56,300 under the arrangement, devised by personal insolvency practitioner (PIP) Jim Stafford.

Creditors will get dividends ranging from just 0.01 cent to 1.37 cent in the euro.

But counsel for the PIP, Keith Farry BL, told Mr Justice Mark Sanfey creditors would receive no return whatsoever if Mr Whelan went into bankruptcy.

The court heard Mr Whelan’s household income was now €2,175 and, after reasonable living expenses were taken into account, he had “no surplus” to make any additional payments to creditors.

Nama originally objected to the arrangement, but its counsel, Eithne Corry BL, said the objections were withdrawn after some changes were made. These included lengthening the three-month arrangement by having an effective supervision period of a year.

The court heard Mr Whelan owed Bank of Ireland just €4,685 on the mortgage of the family home he shares with his wife and young child and that he will continue to make monthly mortgage payments of €716. However, Cabot Asset Management and Bank of Scotland (Ireland) had judgment mortgages valued at €1.4m each over the family home, while Everyday Finance was also owed €905,000.

The judgment mortgages will now be deregistered under the terms of the PIA.

In an affidavit, Mr Whelan said that if the PIA application had failed, he would have petitioned for bankruptcy.

He said his liability to Nama did not relate to money he personally borrowed, but rather a personal guarantee he gave as an additional guarantee for the company borrowings.

“The economic downturn and collapse of the building industry in recent years has resulted in the liquidation of these companies which left substantial borrowings for which I am personally liable.”

Mr Whelan said he became “instantly insolvent” when the guarantee was called in.

The impact of having legacy debts hang over him for almost a decade had been “considerable” and included “great stress” and difficulty getting a proper night’s sleep.

Mr Whelan said he had spent years engaging with creditors with no resolution.

He said he was now self-employed and working three days while providing care for his elderly father and that the job prospects for a 46-year-old quarry machine operator in the mid-west were limited at present.

Irish Independent

Girl (7) awarded €20k after head and neck were trapped in electric gates while playing

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Girl (7) awarded €20k after head and neck were trapped in electric gates while playing

A passer-by, hearing the screams of a seven-year-old girl whose head and neck was trapped in electric gates, helped in forcing them open and freeing her, the Circuit Civil Court heard today.

Barrister Alannah McGurk told Judge Kathryn Hutton that the terrifying incident took place a short distance from Layla O’Neill’s home in an apartment block at Marrsfield Avenue, Clongriffin, Dublin 13.

Ms McGurk, who appeared with Barry Healy Solicitors, said Layla had been playing with friends near an underground car park at the apartments and had gone to retrieve a ball when the electrically operated gates started to close.

“The gates closed on Layla’s neck trapping her by the head,” Ms McGurk told the court. “A workman had heard Layla scream and shouted for help, alerting her father.”

She said that between them the two men had succeeded in forcing the gates open far enough to release Layla who was now aged 14. The incident had occurred on 18th June 2014.

Ms McGurk said Layla had been taken by ambulance under spinal protection to Temple Street Children’s Hospital with a suspected head injury. She had been treated for abrasions to her neck and shoulders and detained overnight for observation and discharged the following day.

She said Layla had afterwards suffered from pain to both sides of her neck and to her left shoulder which had been bruised. A series of x-rays had revealed there had been no bone injuries.

Ms McGurk said Layla’s physical injuries had cleared up after about three weeks. She had continued to suffer psychologically from recurring nightmares but was now fully recovered.

Layla had suffered post-traumatic stress following entrapment that she had perceived as life threatening.

Layla, through her mother Joanne O’Neill, sued Pierse Contracting Ltd (In Receivership) with a registered address at Birmayne House, Mulhuddart, a company responsible for the construction, development, control and operation of the electric gates. Fieldmark Management Company Ltd , Mespil Road, Dublin 4, was a joint defendant.

Ms McGurk said the defendants had offered Layla a settlement of €20,000 which she recommended to the court and which Judge Hutton approved.

Irish Independent

Safety order granted after man threatens to post intimate pictures on Facebook

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Woman tells court she fears for her safety as man constantly rings and texts her.

A judge has granted court protection to a woman whose ex-partner is threatening to post intimate videos and photos of her on Facebook.

At the family law court in Ennis, Judge Patrick Durcan granted the woman a two-year safety order against the man.

The woman told the judge that she is in fear for her safety because of the man.

In a statement to the court, the woman stated the man is constantly sending her text messages and ringing her.

She said that she blocked him on her phone but that he keeps getting a new phone number.

She stated she also found that the man is following her every day.

She stated the man is blackmailing her “and has intimate photos and videos of me and is threatening to put them up on Facebook”.

The man was not in court to contest the application for the safety order and Judge Durcan granted the safety order for two years.

irishtimes.com

Ten-year digitalisation plan for courts could cut case costs by 20%

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Programme costing about €112m would replace lever-arch files with computers

One of the odder sights down the Four Courts is a courtroom packed with barristers in their black gowns, and solicitors in their best suits, waiting their turn for a quick audience with an overburdened judge.

“Is your case ready to go ahead on the assigned date?” the judge will ask a barrister when his or her case is called. “We’re ready,” one barrister might say, only for the man or woman representing the other party to say there is still a problem.

Sometimes there can be three or four parties involved in a case, so there will be three or four barristers waiting in court, for up to an hour or more, for their two- or three-minute slot to discuss the filing of documents or some other procedural issue.

It is not unusual for there to be both solicitors and barristers in court for these brief discussions. Everyone involved will expect to be paid, and it is the client who will do the paying.

Court cases are very stressful for the parties involved. Yet it is not unknown for people to turn up with their legal teams on the morning they’ve been told their case is scheduled to begin, only to be told there is no judge available. Or to turn up to hear a reserved judgment being delivered, only to be told on the morning that it’s not ready. Again it is the client who ends up paying the cost.

A behavioural economist might suggest that if it was the legal profession that ended up out of pocket as a result of such inefficiencies, rather than garnering more fees from them, the system might have been improved a few decades ago.

irishtimes.com for full story

Schoolgirl awarded €40,000 damages after dislocating her knee on cinema cup holder

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Schoolgirl awarded €40,000 damages after dislocating her knee on cinema cup holder

An eight-year-old schoolgirl, who dislocated a knee when she fell in a Dun Laoghaire cinema, has been awarded €40,000 damages in the Circuit Civil Court for personal injuries.

Barrister Siobhan Gaffney told the court that Tori McDermott Ellis had tripped on an uneven floor surface in the IMC Cinema at the Bloomfield Shopping Centre, Dun Laoghaire, on October 2 2016.

Ms Gaffney, who appeared with Murphys Solicitors, said Tori, who is now aged 12, had struck her left knee against a cup holder on a cinema seat and was unable to get up afterwards.

She said Tori had been taken by ambulance to Crumlin Children’s Hospital where an X-ray revealed her left kneecap had been dislocated. The kneecap had been re-located during surgery under sedation.

Ms Gaffney told Judge Francis Comerford that Tori’s left leg had been placed in a cast for several weeks and she had missed school for some of that time. She had undergone a series of physiotherapy treatments.

Counsel said Tori, whose home is in Parc Na Silla Lane, Loughlinstown, Co Dublin, had recovered well and she pointed out to the court that the Injuries Board Book of Quantum valued such an injury between €28,000 and €56,000.

Ms Gaffney said that while liability had not been formally admitted the €40,000 settlement had been agreed in talks prior to today’s court application.

Tori, through her mother Mellissa Ellis, had sued Irish Multiplex Cinemas Limited, Dunlaoghaire, and Judge Comerford approved the settlement together with costs.

Irish Independent