Former McInerney chief’s €1m unfair dismissal claim fails

Tribunal says proceedings started too late

Barry O’Connor took a claim for constructive unfair dismissal to the Employment Appeals Tribunal saying he was pressured out of his role.

Barry O’Connor took a claim for constructive unfair dismissal to the Employment Appeals Tribunal saying he was pressured out of his role.

Tue, Mar 25, 2014, 01:00

Former McInerney Holdings managing director Barry O’Connor has failed in his €1 million unfair dismissal case against the building group on the grounds that he was too late in bringing the claim.

Mr O’Connor, who left the group four years ago, took a claim for constructive unfair dismissal in the Employment Appeals Tribunal (EAT), saying, amongst other things, that he was pressured out of his role at the helm of McInerney.

However, the tribunal has ruled that as Mr O’Connor failed to begin proceedings within the statutory deadline of six months from his dismissal in April 2010. As a result, it did not have jurisdiction to adjudicate on his claim.

Mr O’Connor began proceedings in February 2011. He and his lawyers, barrister Daragh Breen and solicitor Aisling McCarthy of Noel Smyth & Partners, argued that there were exceptional circumstances in the case, which allowed the tribunal to extend the period to 12 months.

These included the fact that he had been in talks with the company in an effort to come to a settlement to avoid taking the claim in the first place.


Exceptional circumstances
The tribunal, chaired by barrister Fiona Crawford, disagreed that these were exceptional circumstances.

It also stated that it was “unfortunate that the objection on the grounds of jurisdiction was not raised at the preliminary stages of the case and thus save much time and expense”.

McInerney Holdings raised the lapse of time at a hearing last December.

When EAT began hearing the claim in September 2012, the initial arguments turned on whether or not Mr O’Connor had been an employee of McInerney Holdings in the first place.

Another company, Gaskan, employed him and invoiced the group for his services. However, the tribunal found that he had been an employee of McInerney Holdings.

Mr O’Connor earned €574,000 in 2009, his last full year as the group’s managing director. The EAT can award up to twice a successful claimant’s annual salary as compensation.

He left the company following a series of board meetings in early 2010.

At the time, it was reported that he had departed to bid for one of the businesses that it owned in Spain, which it was planning to sell as part of a restructuring aimed at tackling its debt. It owed over €110 million to three banks.


Receivership
McInerney’s Irish operating companies were placed in receivership in 2011 after the Supreme Court ruled against a rescue plan drawn up after an examinership that began in late 2010.

At a meeting in July 2011, David Nabarro, who now owns 13.8 per cent of the company, won the support of a majority of its shareholders to take charge of McInerney Holdings plc and defeated a proposal from its previous board to wind it up.

Mr O’Connor, who owns 5.1 per cent of the company, supported Mr Nabarro and returned to the board following that vote.

Two others who took a stake in the company, Kevin Lynch and John Garratt, also joined the board, but they have since resigned.