We use cookies to give you the best possible experience on our site. By continuing to use the site you agree to our use of cookies. Find out more.

 

Newsletter Article

  • Workplace Mediation – how effective is it?

    by Hayleigh Ahearne
    Jul 03, 2018
    What is Mediation?

    Mediation is a voluntary process of conflict prevention and resolution that allows the parties in dispute the opportunity to address and resolve their issues in a confidential and private environment.

    Mediation can act as an effective way of creating safe and compassionate dialogue. In doing so, mediation enables the parties to engage in a more emotionally intelligent conversation which is based not on fault or reprisal, but on understanding, empathy, and positive regard.

    Mediation works towards long-term solutions for the parties and it can help the parties to plan how they will engage into the future.

    In workplace mediation, an independent, neutral Mediator assists the parties to come to agreement through a collaborative process.

    Mediation can be effective in some of the following situations:

    • In conflict prevention and management;
    • In single or multi-issue disputes;
    • For conflict of two or more people;
    • For developing innovative and sustainable solutions;
    • Resolving conflict at an early stage.

    Mediators Role

    The Mediator’s role is to be non-judgmental and non-directive. The Mediator is neither a judge nor an arbitrator and does not adjudicate or give decisions on the rights or wrongs of the actions of the parties. The Mediator helps the parties to identify their issues and needs and to explore how those needs can be addressed.

    Key skills of an Effective Mediator

    In order to increase the likelihood of arriving at a successful outcome for all of the parties concerned, the top 5 key skills of an effective mediator include possessing: 

    1. Strong listening skills – in order to clearly understand what the problem is and recognise possible options for resolution that might be alluded to;
    2. Good questioning skills – to obtain required information, clarify understandings and test for possible areas of agreement and disagreement;
    3. A High level of Emotional Intelligence – remembering that different Employees may have different views of what the issues are and ensuring to understand everyone’s interests;
    4. Summarising skills  – what is said in order to help to concentrate and focus attention on the main points;
    5. Being Pragmatic - looking at the issues under dispute and asking if the proposed solutions will really work? If not, re-addressing concerns with the parties until a satisfactory outcome is reached.

    Stages in the Mediation Process

    In order to increase the likelihood of a successful outcome, participants should be prepared to work towards resolution and have the authority to agree on a solution. The focus of the mediator is to facilitate and broker agreements, remain impartial and make no judgements regarding the parties involved. Mediators assist and enable all parties to work through problems and identify solutions.

    A fundamental element of the mediation process is that the parties to a dispute provide all information in relation to same in good faith, and fully disclose any relevant information which may have a bearing on the process. Any documents containing pertinent information may be shared with the Mediator confidentially, and subsequently may be shared by the Mediator with the consent of the party concerned.

    Mediation should be facilitated by an independent mediator, who is trained in mediation skills. Many Organisations engage the services of a consultant to undertake this work for them, although this is not a requirement.

    It is expected that parties to the mediation are entering into the process with the intention to address and seek resolution of the issues, and accordingly should co-operate with the mediation process to avoid unnecessary delays.

    Stage 1:                Pre-Mediation

    It is usual that the mediator will provide a formal pre-mediation agreement that would outline such items as roles, process and the requirement for confidentiality.  In addition, the mediator will typically meet with each of the parties separately for a pre-mediation meeting. The purpose of this meeting is to: 

    • Obtain a brief outline of the concerns and issues which have been raised by each party; Listen to each parties concerns and ensure they have fully understood their issues; 
    • Explain the process to be followed and terms of engagement; 
    • Explain the ground rules and;  Other alternative approaches available to the parties should mediation  be determined not to be appropriate or is not successful; 
    • Advise on any questions raised.

    Stage 2:                The Mediation Process

    A mediation normally takes place at a neutral venue, with breakout meeting rooms assigned to each party. Joint meeting rooms for facilitated meetings by the Mediator are also designated for this respective use.

    The mediator generally brings the participants together and invites each of them to put their side of the story across during a period of uninterrupted time in order so that the other party may listen to the issues raised and the mediator may ask questions to get clarification or more information.

    Throughout the process, the Mediator may call one or more side-meetings to speak privately with the parties in designated breakout rooms. Similarly, either party may request a break or side-meeting with the Mediator to speak in confidence. Discussions held in side-meetings will not be shared by the Mediator with the other party, unless agreed with the party concerned.

    Each party is expected to show respect for the other person involved. The mediator may seek to help each person understand the disagreement through the eyes of the other participant.  

    At this stage the mediator will begin to summarise the main areas of agreement and disagreement and draw up an agenda with the parties for the rest of the mediation.  

    Having identified the issues to explore, the mediator encourages communication between the parties, promoting understanding and empathy and changing perceptions. The aim of this part of the meeting is to begin to shift the focus from the past to the future and begin to look for constructive solutions.

    There may be some time spent exploring what is said and ensuring that the issues are fully understood by all before moving to the next stage.

    Stage 3:                Agreement

    The mediator will seek to keep the communication flowing smoothly and help the participants solve the dispute themselves. With the parties, the mediator seeks to identify some common values and mutually agreeable behaviours that each would find acceptable with a view to reaching a mutually agreeable solution that builds on some common ground.

    Unlike a more traditional formal process, a mediator will not make decisions for the participants. If the problem cannot be solved during that meeting, a convenient date may be chosen to continue the mediation, if it is not resolved in the interim.

    Where the parties to the mediation reach agreement, a Note of Agreement should be prepared by the parties before the meeting draws to a close. The Mediator may assist in the preparation of the Agreement. Agreement is deemed to have been reached once the parties involved have signed the Note of Agreement.

    This agreement is a confidential, final, binding, and an enforceable agreement between the parties. The agreement represents resolution of all the issues that were raised, or could have been raised, between the parties and that concern or relate to the written issues exchanged between the parties.

    If a mutually acceptable solution is arrived at, the Mediator may also seek to work with the parties to identify any potential future roadblocks which may arise and determine the ways in which any issues which do arise will be resolved.

    The parties may also look to put in place review mechanisms whereby they themselves can monitor progress with the outcomes above. Further assistance may be required from the Mediator in this regard.

    Information arising in mediation is confidential, and may not be used in any subsequent investigation.  No notes should be retained by the mediator, and these should not be placed on the Employee file.

    If mediation is undertaken and is unsuccessful, then consideration should be given to what alternative dispute resolution mechanisms could be utilised, whether these are internal or external to the Organisation.

    Benefits of Mediation

    There are numerous benefits of utilising mediation. Some of the fundamental benefits include the following:

    • Privacy - Mediation is a private process. All discussions, offers, actions or undertakings are shared informally and purely for mediation purposes, which fosters a spirit of openness and leads to a very real agreement in most cases.
    • Relationship Preservation – The parties should be in a position to continue to work together following agreement at mediation.
    • Swift Agreement – A dispute can be discussed, negotiated and solved very quickly in comparison to use of other forums which may endure for long periods of time.
    • Mediation is owned by the parties to the dispute, therefore the parties control the content of the process, and the end result.

    Mediation Act

    The Mediation Act 2017 commenced on the 1st January 2018. The bill was published at the beginning of 2017 and passed both houses of the Oireachtas in September 2017 and was signed into law by the President on 2nd of October 2017. 

    The commencement of the Act is recognition by the State of the contribution mediation will make to the improvement of dispute resolution systems in Ireland. The Act provides a statutory framework for delivery of mediation within the legal system. This framework will make the mediation process even more robust and reliable.

    With this new Act in place, we suspect that parties involved in a dispute will be more likely to opt for mediation before heading to court.

    It is believed that the Act will make mediation more available and deliver better resolutions, at a lower cost, to those who are involved in disputes.

    The Act also means that agreements achieved through mediation are now legally enforceable.

    Conclusion

    When conflict arises in the workplace, a decision has to be taken as to how the issue will be addressed. Mediation is a confidential process which encourages all parties to discuss all elements of the dispute. Mediation can encourage a more swift resolution of differences and aims to find a solution that satisfies all parties. Efficient working relationships can often be restored through the practice of mediation. The restoration of relations is a key function of mediation. It is up to the managers and business owners of Ireland to embrace this form of dispute resolution so that it becomes a culturally acceptable norm.

  • Case Law - Reviewed under the WRC

    by Hayleigh Ahearne
    Jul 03, 2018
    In this month’s newsletter the team at Adare Human Resource Management consider in detail a number of cases as adjudicated under the Workplace Relations Commission.

     

    Horticulturist awarded €2,461 relating to 'cloak of redundancy' whilst on Paternity Leave

    Adjudication Reference: ADJ-00008251

    Summary of Respondent’s Case:

    The Respondent had made a decision to make the Complainant redundant in October 2016 as a result of a reorganisation of his business and the closure of one of its outlets.

    A new position was being created with broader a general management responsibilities who would not just have responsibility for plant buying but would have overall responsibility for all staff. Previously, these duties had been split between two members of staff.

    He did not consider any other options in terms of the reorganisation as the Complainant’s role was the one that was being made redundant. There was no selection process.

    The Respondent wanted to deal with the change as soon as possible as he was due to travel and was not aware that the Complainant’s being on paternity leave was an issue.

    Summary of Complainant’s Case:

    The Complainant received a text message on January 11th 2017 while he was on paternity leave following a period of sick leave.

    The message was to ask him whether he was free to attend a meeting the following day, January 12th. He did so.

    At the meeting the Respondent congratulated him on the birth of his child eleven days earlier and initially made some reference to an approach made by the Complainant about a wage increase the previous summer.

    The Respondent told him he was going to create a new position of ‘Assistant Manager’ and that he, the Complainant was being made redundant.

    The Complainant asked whether there were any other roles open to him, and was told there were not. He was told to ‘clear out his desk’ and to leave immediately.

    A dismissal while on paternity leave is automatically unfair on foot of section 20 of the Paternity Leave and Benefit Act, 2016 which defines as void;

    ‘any purported termination of employment while the Employee is absent from work on paternity leave’,

    And

    ‘any notice of termination of the employment of the employment of an Employee while the Employee is absent from work on paternity leave’

    It is not disputed that this happened.

    In addition, the Complainant submits that section 6(3) of the Unfair Dismissal Acts addresses the situation where a termination is effected on the grounds of redundancy but where there have been breaches of procedure, such as unfair selection (sub section 3), or reasons other than genuine redundancy (subsection 3(a)).

     

    Legislation:

    Redundancy Payments Acts 1967-2012: Sets out the notice requirements, the eligibility for payment, the service requirements and all requirements relating to statutory redundancy payments.

    Unfair Dismissals Acts 1977-2015: An Employee who is covered under the Acts and feels that they were unfairly selected for redundancy may take a case of Unfair Dismissal under these Acts.

    Decision:

    Two issues arise in this case; the first is under the Paternity Leave and Benefit Act, 2016.

    The second is whether a genuine redundancy existed in this situation and, if so, were the correct procedures followed to effect it.

    The first of these is straightforward. The Respondent stated in his evidence that he ‘was not aware that paternity leave was an issue’, by which he meant that he was unaware of the legal position in this regard.

    The Respondent’s cavalier attitude to that legislation was also reflected in his approach to his obligations under redundancy procedures.

    It is somewhat incredible that a decision was taken to make the Complainant redundant as early as October, according to the Respondent‘s own evidence, but no conversation took place with him about it, or the fact that he may have been at risk of it.

    Then, in circumstances which could scarcely have been more insensitive, he was given one day’s notice of a meeting at which his employment is terminated and he is told to leave the premises and not to return. However, it is the total absence of any procedures which is of more concern; the lack of proper or any notice, the lack of a selection procedure or consideration of alternatives.

    The Complainant relied on the dicta of Mr Justice Peter Charleton in the leading case of JVC Europe Ltd v Panisi [2012] 23 E.L.R 70 [IEHC] 279 where he states;

    ‘In an unfair dismissal claim, where the answer is asserted to be redundancy, the employer bears the burden of establishing redundancy and of showing what kind of redundancy is apposite. Without that requirement, vagueness would replace the precision necessary to ensure the upholding of Employee rights’.

    The judge went on to refer to a termination under ‘the cloak of redundancy’ as being not a redundancy at all, but a dismissal.

    The credibility of the Respondent is further put in doubt by the fact that the beneficiary of the Complainant’s dismissal was the Respondent‘s son. He may well be qualified for a new role in the business but that does not relieve the Respondent of the need to follow a fair procedure in respect of the Complainant.

    He did not do so, and indeed his conduct was at the extreme edge of unfairness, as well as insensitivity to the Complainant.

    On this latter point, lest it be thought that sensitivity should play no part in the rough and tumble of commercial decision making, the Complainant also referred to the case of O’Driscoll v Siebel Systems Emea Ltd, in an extract from the highly-respected textbook, ‘Employment Law’, Maeve Regan and Ailbhe Murphy, 2nd Edition, 2017 at [19.07], where, in a reference to the O’Driscoll case, the following appears;

    ‘Employers are generally required to treat Employees with consideration and respect in the context of redundancy. For example, in [O’Driscoll] the claimant was informed of her redundancy the day before her return from maternity leave. In finding that a genuine redundancy situation did not exist one of the factors referred to by the EAT was that the manner in which the Respondent had terminated the claimant’s employment was ‘tantamount to summary dismissal’.

    This is fully applicable to the current case and the Complainant’s case succeeds on all the grounds claimed.

    The Unfair Dismissal Act permits compensation in respect of financial losses attributable to the dismissal. Unusually, the Complainant has very limited losses.

    He was without income for a short period; only three weeks from the date of the expiry of his notice on February 12th until, as a result of extremely diligent job seeking of which evidence was provided, he gained new employment on March 3rd and he has no continuing losses and enjoys a somewhat higher wage than he did with the Respondent.

    Accordingly, he has limited, actual losses attributable to the dismissal, other than some additional travel costs. In such circumstances the Act permits an award of four weeks’ pay, which the Adjudication Officer will award having regard to the seriously unacceptable nature of the Respondent’s conduct of the matter.

    In addition, it was clear that the Complainant was motivated by what he considered to be the injustice of the Respondent’s behaviour towards him and a finding that he was unfairly dismissed may be of value to him in this regard and in respect of his curriculum vitae and future career.

    The Complainant was unfairly dismissed and the Adjudication Officer upholds the complaint CA-00010969-001. The Adjudication Officer award four weeks’ compensation in the amount of €2,461.52 subject to the usual statutory deductions.

    Adare Human Resource Management Commentary:

    Redundancy occurs where an employee’s position ceases to exist and the employee is not replaced. Any employee aged 16 or over with 104 weeks’ continuous service with an employer is entitled to a statutory redundancy payment in this situation.

    An Employee cannot be given Notice of Redundancy while on maternity leave, additional maternity leave or paternity leave. The date of an Employee’s notice in a redundancy situation under the Redundancy Payments Acts 1967 to 2012 is deemed to be the date of his/her expected return to work as notified to her Employer under the legislation. An Employer should consider all alternatives and also ensure a fair process is followed.

    ____________________________________________________________________________________________________________

     

    Warehouse Operative awarded 4 weeks’ pay as Respondent had no evidence to support the immediate termination of Employee

    Adjudication Reference: ADJ-00011296

    Summary of Complainant’s Case:

    The Complainant stated that he had been out sick for a number of days and on his return on 21st  August 2017 he attended a “back to work” meeting with the Respondent. He had a letter typed, being his resignation letter, which he presented to the Respondent. He stated this letter gave the Respondent one month’s notice of termination as per his contract of employment. He did not have a copy of this termination letter at the Hearing. He was informed by the Respondent that they would prefer he left on that date and he was not required to work his notice. He was not paid his minimum notice as per his contract. He emailed the Respondent in relation to his outstanding money and he did receive a response from the Respondent. The Complainant did not have copies of these at the Hearing.

    Summary of Respondent’s Case:

    The Complainant was employed from 4th January 2016. On 13th August 2017 a text was received from the Complainant’s partner informing them that the Complainant was unwell. On 14th August 2017 an investigation began due to allegations of falsified company records including clocking in procedures involving a number of Employees. They were placed on suspension pending the outcome of the investigation. The Complainant would also have been suspended if he had shown up to work on that day. He texted the office on 15th August 2017 stating he had a Doctor’s note. There was no contact from the Complainant on both 17th and 18th August 2017. The Respondent issued a letter to the Complainant on 18th August 2017 seeking contact from the Complainant. The Complainant attended work on 21st August 2017 and immediately tendered his resignation letter through the General Manager. His resignation was immediately accepted as he had verbally requested an immediate termination. The Respondent issued a resignation acceptance letter on 25th August.

    The Complainant contacted the Respondent on 29th August 2017 requesting payment of sick pay and minimum notice. The Respondent replied on 31st August 2017 confirming that by agreement the Complainant terminated the employment with immediate effect. He therefore was not entitled to payment in lieu.

    Legislation:

    Minimum Notice and Terms of Employment Acts, 1973 to 2005 - lay down minimum periods of notice to be given by Employers and by Employees when terminating a contract of Employment.

    Decision:

    On the basis of the evidence from both Parties plus a written submission from the Respondent with supporting documentation the Adjudication Officer found as follows –

    The written statement of the Complainant’s Terms and Conditions of Employment dated 12th January 2016 provides as follows- “ Length of Service – Successful completion of probationary period or more – 4 weeks. Section 8.4 – Notice of Termination to be given by Employee – “During this period you will be entitled to your full remuneration”.

    The resignation letter dated 21st August 2017 does not specifically give one month’s notice as asserted by the Complainant at the Hearing. The resignation letter states as follows – “…I write this letter giving my notice of my intent to leave. If there is anything I may help with over the transitioning weeks please feel free to come to me…”

    There was a dispute between the Parties at the Hearing with the Complainant stating there was no agreement with the Respondent to immediately terminate the employment on 21st August 2017 and the Respondent stating that the Parties had jointly agreed that the employment would terminate with immediate effect on 21st August 2017. However, the Adjudication Officer noted there is no evidence from the Respondent to support their contention that the employment would terminate with immediate effect. Accordingly, the Contract of Employment must be honoured by the Respondent.

    The Adjudication Officer directed the Respondent to pay the Complainant 4 weeks wages, subject to any lawful deductions, in accordance with his Contract of Employment. This to be paid to the Complainant within 42 days of the date of this Decision.

    Adare Human Resource Management Commentary:

    The Minimum Notice and Terms of Employment Act set out requirements in relation to giving and receiving notice as an Employer. It places obligations on both the Employer and the Employee in relation to notice. If the contract of employment requires a different notice period than the statutory minimum, the greater of the two must be given.

    Many Employers seek to impose longer notice periods by agreement with an Employee, usually through the contract.  Where a longer period of notice is agreed, this must not disadvantage an Employee.

    Organisations should be cognisant of the fact that when they are setting notice periods, that these must be fair and reasonable, in line with custom and practice, and ensuring the correct notice period is paid to an Employee.

     

    ____________________________________________________________________________________________________________

     

    Retail Assistant claim fails as he did not stay in contact with Employer while on Sick Leave

    Adjudication Reference: ADJ-00006465

    Summary of Respondent’s Case:

    The Respondent outlined in detail their interaction with the Claimant due to absence from work due to illness. They refute as entirely incorrect the Claimant’s statement in the complaint form that he was dismissed because he was suffering from an illness. The Respondent held regular meetings with him from the time he initially went on sick leave on 2nd July 2015 to his dismissal over one year later. The Respondent notes the lack of progress made by him in the context of his medical condition which rendered him unfit for work. They submit that they gave him as much time as it could afford to give to have him return to work but that the position became untenable when over one year since commencing long term absence, neither the Claimant nor his doctor was in a position to give the Respondent a return date to work.

    The Respondent submits that it took an adequate assessment of the Claimant’s position and took the view that no amount of reasonable accommodation could enable the Claimant to return to work given the serious and highly limiting nature of his illness.

    Summary of Complainant’s Case:

    The Claimant claimed that his dismissal letter was posted on 10th July 2016 prior to a meeting on 12th July 2016. The fact that meeting was adjourned and when it resumed it was turned into a disciplinary hearing was not a fair hearing. Furthermore, the Claimant received a letter on 5th July 2016 threating him with dismissal. Therefore, the dismissal procedures are flawed as per the Respondent’s Handbook.

    Legislation:

    The Unfair Dismissals Acts, 1977 – 2015 set out to provide redress for Employees who are unfairly dismissed from employment. 

    Decision:

    The Adjudication Officer considered the submissions and evidence presented by both parties. In regard to the letter of dismissal, the post mark in so indistinct that it could also be read as 18th July 2016. The Claimant also received a letter dated 5th July before his meeting of 12th July stating “should your position remain the same and you still cannot provide us with any indication of a return to work date, I may be left with no alternative but to terminate your contract”. Therefore, the Claimant was made aware of his situation before the meeting.

    From evidence presented the Claimant did not stay in regular contact with the Respondent and did not submit weekly sick certificates as required. It was reasonable for the Respondent to conclude that he did not intend to return to full time work

    The Respondent did not dismiss him until over a year had passed on long term sick leave, the Adjudication Officer therefore accepted that they behaved in a reasonable manner. The Adjudication Officer does not find the dismissal to be unfair and the claim fails.

    Adare Human Resource Management Commentary:

    Absence management and sick leave absenteeism are complex issues with no simple or instant fixes. 

    When an Employee has been absent on long term sick leave, the Organisation’s primary question is to ascertain when the person will be in a position to return to work on a regular basis. In the event it is determined that the Employee will be unlikely to be able to return to work for the foreseeable future, or will be unable to do so on a basis which is felt to be acceptable by the Employer, an Organisation may consider seeking to terminate the Employee’s contract of employment due to their incapacity to fulfil the obligations of their employment contract.

    However, the decision to terminate an Employee’s contract of employment due to incapacity is not one to be taken lightly. Indeed, a decision to terminate an Employee’s contract of employment where the absence is long term in nature should only be considered as a final step. It is recommended that an Organisation obtain all of the relevant information prior to making any decision in this regard. In instances where an Employee has been absent for a considerable period of time, an Organisation should obtain relevant medical information by having the Employee assessed so as to ascertain the possible duration of the sick leave absence and the prognosis for a return to work. In the event the long term prognosis is poor, it may support the case for termination of employment.

    Reasonable accommodation should also be given due consideration by an Employer prior to any final decision being made.

     

  • Breach of Trust and key considerations for Organisations

    by Hayleigh Ahearne
    Jul 03, 2018

    Every contract of employment contains an implied duty that neither the Employer nor the Employee will act so as to breach the duty of mutual trust and confidence that exists between them. If either party does breach the duty, it can entitle the other to take action – a breach by the Employee may entitle the Employer to terminate the contract of employment, a breach by the Employer may entitle the Employee to resign and claim constructive dismissal.

    Arrangements for handling discipline issues can sometimes vary from employment to employment depending on a wide variety of factors including the terms of contracts of employment, locally agreed procedures and the industry agreements, however the principles and procedures of the Code of Practice on Grievance and Disciplinary Procedures should apply unless alternative agreed procedures exist in the workplace which conform to its general provisions for dealing with grievance and disciplinary issues.

    Procedures are necessary to ensure both that while discipline is maintained in the workplace by applying disciplinary measures in a fair and consistent manner, grievances are handled in accordance with the principles of natural justice and fairness. Apart from considerations of equity and natural justice, the maintenance of a good industrial relations atmosphere in the workplace requires that acceptable fair procedures are in place and observed.

    Disciplinary Procedure

    It is a requirement of the Unfair Dismissals Acts that every Employee be provided with a copy of their Employer’s disciplinary procedure not later than 28 days following commencement of employment.  A failure to comply with this requirement will weaken an Employers case where they are required to justify a dismissal.

    An Employer who loses confidence or trust in an Employee is required to establish that trust and confidence has actually broken down due to the conduct of the Employee and will have to demonstrate they have acted reasonably in treating that as a sufficient reason to dismiss.  This is likely to involve going through a process of giving warnings and allowing an opportunity for improvement unless the behaviour is so serious that it amounts to gross misconduct.  

    Stages of the Disciplinary Procedure

    The Code of Practice requires that the disciplinary procedure be applied progressively where appropriate, and that greater sanctions may be imposed over time.  Therefore, every disciplinary procedure is required to have a number of steps, as outlined here:

    • Informal Pre-Disciplinary
    • Verbal Warning (always to be confirmed to the Employee and recorded in writing)
    • First Written Warning
    • Final Written Warning

    Dismissal

    In the majority of cases, these stages should be applied progressively.  Additional sanctions may also be imposed, these should be documented in the disciplinary procedure, e.g. withdrawal of sick pay or demotion of an Employee. 

    Where the situation arises that the Employer wishes to skip steps of the procedure, care must be taken to ensure that a) this is being done consistently with previous situations of a similar nature and b) that the Employee could reasonably have been expected to know that the issue was so serious as to warrant the Employer skipping steps in the procedure.

    In some situations, the Employer may commence the procedure at the final stage, i.e. dismissal.  This would generally only occur in cases of gross misconduct, and a fair disciplinary hearing must always be held before deciding to dismiss for the offence concerned.

    Gross Misconduct

    Gross misconduct is misconduct which is so serious that it warrants dismissal, without recourse to the earlier stages of the disciplinary procedure.  In situations where there is a suspicion of gross misconduct, it is generally recommended that the Employee is suspended on pay, pending the outcome of the disciplinary hearing. In some situations, breach of trust and confidentiality may be considered gross misconduct. In deciding whether it is appropriate to dismiss an Employee for gross misconduct, the Employer must always consider:

    • Could the Employee have reasonably known that the conduct would warrant dismissal, for example was this stated in a policy related to the incident, and was that policy communicated to the Employee?
    • Have other Employees been dismissed in the same circumstances?
    • Is there sufficient evidence to demonstrate that, on the balance of probabilities, the Employee committed the offence?
    • Has fair account been taken of the mitigating circumstances, if any that have been presented by the Employee?

    If the answer to any of the above questions is “no”, then dismissal may not be an appropriate sanction to impose on the Employee.

    Case Law demonstrating the impact of ‘Breach of Trust’:

    1.       Structured Finance Management (Ireland) Limited and Vadym Kakinin’ (ADJ0000-155-A)

    The Employee appealed a previous finding of the Workplace Relations Commission (WRC) that he had not been unfairly dismissed to the Labour Court who overturned the decision of the Adjudicator but found that the Complainant contributed 70% to his own dismissal.

    The Labour Court went on to say that the decision to dismiss does not stand in isolation of other events that had taken place in the employment over many years involving the Complainant. The Court finds that the Complainant had become unmanageable and was increasingly occupying management time and resources addressing unfounded and unsubstantiated accusations against other Employees and members of management. This behaviour was having a severe adverse impact on the other members of staff and on the operation of the business. Accordingly an ongoing relationship between the Complainant and the Respondent was at best highly unlikely to succeed. The Court finds that the bond of trust between the Employer and Employee had been fractured if not completely broken.

    It found that the decision to dismiss and the manner in which it was taken cannot but be considered an unfair dismissal but that “the Complainant contributed significantly to this outcome through his unreasonable and indefensible behaviour towards his colleagues and towards management.

    Ultimately the Court considered that the bond of trust between the Complainant and the Respondent is so fractured that it would be futile to restore the Complainant to his previous position or to employment with the Respondent but also that the dismissal had had a severe financial impact on the Complainant and he deserved to be compensated for the adverse impact caused by his dismissal.

    An award of one year’s salary but reduced by 70% (deemed to be the level of contribution by the Complainant to his own dismissal).

    2.        ‘Brendan O’Callaghan v Dunnes Stores’ (UD 54/2012, MN 25/2012, WT 14/2012) 

    The Employment Appeals Tribunal ruled that it could not be said that “having the investigation and disciplinary hearings conducted by the same person was a flawed and unfair procedure”. However, the Tribunal concluded that the sanction of dismissal was fair and noted: Trust and confidence are essential elements in the employment relationship and a particularly high level of trust and confidence is reposed in a manager. Breaching sales and refunds procedure is serious/gross misconduct but instructing subordinates to engage in fraudulent transactions and compromise their trustworthiness is even more serious“.

    3.       A Worker V A Retail Company’ ADJ-00006889

    The Complainant stated that she commenced employment in the legal department of the Respondent. She was fully aware of the confidential nature of the documentation she handled on a day to day basis. She accepts that, in error, she sent two sets of financial information to the wrong accountancy firm. The Complainant was dismissed for gross misconduct, that misconduct being a breach of trust and confidence when she sent confidential information to a third party in error. The Respondent accepts that the Complainant did not deliberately send the information to the wrong accountancy firm, it was gross incompetence. On that basis they did not hold an investigation or a disciplinary hearing. They did not allow the Complainant an opportunity to state her case. They did not allow her appeal that decision.

    The Respondent accepts that it did not engage in a disciplinary process. It did not do so because the facts of this case come within the small number of cases where instant dismissal is warranted. Whilst the Adjudication Officer accepted the error might have eroded the trust the Respondent had in the Complainant, the Adjudication Officer found that the decision to dismiss her summarily was grossly unfair. It was a situation that warranted an investigation, particularly into the instructions the Complainant received from the solicitor and the actual level of sensitivity of the documentation. The Complainant should have been given an opportunity to state her case and should have had the benefit of a full disciplinary process. To dismiss her in the manner the Respondent did was humiliating.

    The Adjudication Officer found that the dismissal of the Complainant was disproportionate and awarded the Complainant €15,000.00 compensation.

    Conclusion

    Implied in every contract of employment is a term that requires both Employers and Employees to avoid behaving in such a way as to destroy the relationship of trust and confidence that should exist between them. Adare Human Resource Management would also suggest that each contract of employment would hold an explicit confidentiality clause, so that it is clear for all Employees what the Organisation deems confidential.

  • HSE CAUTIOUS ON SECTION 39’s PAY RESTORATION

    by Hayleigh Ahearne
    Jun 21, 2018

    In a comprehensive document issued by the HSE to related stakeholders entitled “Pay Restoration Section 39 Funded Organisations” leaked through several sources of the media the HSE have highlighted the significant IR complexities involved in its attempt to rectify pay anomalies within Section 39 organisations when compared to other non S39 health workers and in particular the health care sectors.  The motivation for the HSE to finally recognise the extent of these difficulties and to seek out a solution was on foot of threatened industrial action by SIPTU and FORSA last February, which was averted at the last hour through the intervention of the WRC.  The current conundrum according to the HSE whilst many of these Section 39 organisations are fully funded by the HSE the workers involved are not employed by the State and in that context incremental pay is not funded.  An added complication is that prior to FEMPI these workers were treated the same as their State employed colleagues.  The union argument now is not just one of pay restoration by also pay retrospection.  

    In compiling the report the HSE says that Section 39 agencies were asked to document when, if any restoration of previous pay reductions were implemented and detail the timeline of these events. Twelve agencies have made some form of restoration of pay reductions during the period 2016 to 2018. A number of agencies documented a series of measures that must yet be implemented with many citing funding difficulties being the reason for not restoring to date.

    According to the draft report total pay restoration costs to 2018, as assessed by those agencies amount to €15.449m. This amount does not include other funding requests such as pay related recommendations referred by the Labour Court or retrospective payments for pay restoration payments already made. The report goes on to state that some of these measures are outside the scope of this exercise which is specifically addressing the costs of restoring previous pay reductions that were applied.  In order word “retrospection” does not appear to be in scope but most certainly involves the core basis of the unions claim.

    The agency assessment for total funding expected from all sources amounts to €50.208m of which €39.715m is expected from the HSE. Included in this sum are funding requests for pay restoration up to 2020 by some agencies, retrospective payments towards restoration payments already incurred, Labour Court recommendations and general funding requests for which no specific detail was provided.

    Based on information provided in thirty-eight assessable agency returns, the HSE made an assessment for expected pay restoration costs of €34.439m. A number of assumptions underlie this estimate. Scaling these costs up to include the fifty pilot organisations, the projected cost estimation is €37.735m. Applying the same allocation method to the total 302 agencies which hold service level agreements would amount to €67.881m.

    The context and direction in which the HSE appear to be setting out their stall suggests that on foot of an extensive and formal information gathering exercise with thirty-eight S39 agencies on a self-assessment basis, the HSE will fund restoration in situations whereby the HSE are satisfied the organisation in question does not have the ability to fund such pay restoration.  It appears that those agencies who in the eyes of the HSE can fund restoration won’t get HSE financial assistance to do so.  However, the thorny and critical question of pay retrospection remains silent.  This is likely to be a source of dispute in a context in which it seems the retrospective can has already kicked to the end of the road.

  • EMPLOYER REFUSES TO ATTEND LABOUR COURT IN RECOGNITION DISPUTE

    by Hayleigh Ahearne
    Jun 21, 2018

    This month’s update to the Labour Court’s case website provided some interesting reading in relation to the varying tactics Employers might consider in dealing with disputes involving union recognition.  For those not familiar with some of the complexities of the IR Acts, this case in point was brought by SIPTU under Section 20(i) of the Industrial Relations Act 1969. 

    In short, this particular provision (“Section 20”) is often used by unions in situations whereby the Employer refuses to recognise or engage with the union on behalf of its members in that employment.  The Section 20(i) provision allows the union to submit its grievance to the Labour Court but in a context in which the Court Recommendation is binding on the Claimant (the union) but not binding on the Respondent (in this case the Employer).  Unions often use this approach knowing full well they will get some level of a result from the Court that the “parties should engage and the Employer should recognise the union etc.”.

    In the event that the Employer exercises his / her right not to accept the Court Recommendation then the union from a tactical point of view may consider escalating the dispute to industrial action on the added basis that the Employer has rejected the Court outcome.  The Employer is free to reject such an outcome regardless of whether they attend the Court Hearing or not.  Not attending the Court to outline ones legitimate position means the unions will get a free run to assist them in their goal and from an IR strategic point of view that is a thought often worth considering particular in a context where one is free to reject the Court outcome in any event.                 

    SIPTU’s claim in this case is for formal union recognition on behalf of the process operators employed by the Company in the Beam and Ethylene Oxide areas of the Employer’s Tullamore site.  The Company recognises the Union for negotiation purposes at the Westport site and has a Collective Agreement approved by the Labour Court under section 24 of the Organisation of Working Time Act 1997.

    The Union wrote to the Company on 13th October 2017 seeking a meeting with the Company to formalise trade union recognition. On the 9th November 2017 the Company replied declining the request and so the Union referred the matter to the Workplace Relations Commission. The Company declined the invitation.  On the 27th April 2018, the Union on behalf of the Workers referred the dispute to the Labour Court in accordance with Section 20(1) of the Industrial Relations Act, 1969 and agreed to be bound by the Court's Recommendation.  The union argued that the Tullamore and Westport sites are owned by the same Company.  The Company negotiates through a collective bargaining process with SIPTU on their Westport site and the union’s membership on the Tullamore site is greater than the Union’s membership on the Westport site.

    The Company was not present to make their argument.  In its recommendation the Court said that it was informed by the  Representative of the Employer that the Employer would not be attending the Labour Court hearing and in the absence of the Employer recommended that “the Employer should recognise the Union as the Representative of those Employees who are in membership of the Union and should engage with it in dealing with employment related matters arising within the employment affecting those members”.  In terms of the dispute the ball is now in the union court.

    ____________________________________________________________________________________________________________

     

    PUBLIC HOLIDAY PREMIUM PAID IN “ERROR” RED CIRCLED 

    In a recent case, the outcome shows that an Employer who discovers certain premiums or allowances that were paid in error cannot in all cases be altered back to the contractual norm.  In recent case ref: LCR21721 an apparent error in the calculation of public holiday pay premium was red circled to the individual workers concerned. 

    The case concerns a dispute between the Employer and the Union in relation to pay arrangements for public holidays.  The workers concerned are employed as General Operatives in Wicklow County Council. The Union claimed that prior to the amalgamation of all Wicklow Council Districts, these Claimants received a normal days' pay plus double time payment for hours worked on public holidays. The Union sought the continued application of this previous arrangement to the Claimants in their current employment. The Employer rejected the Union's claim, arguing that it is not in a position to alter its current public holiday pay arrangements as it would be out of line with existing norms within the organisation and throughout the county.

    The specific claim by the Union was for the retention of public holiday overtime payment arrangements for Outdoor Grade Operatives previously employed in Bray Town Council which has since 2013 has been amalgamated into Wicklow Town Council.  The public holiday overtime payment arrangements which existed in Bray Town Council prior to the amalgamation were as follows:- A paid day on the day plus double time for the number of hours worked on the day.  The arrangement which exists in Wicklow County Council is as follows:-  A paid day on the day plus basic pay for the number of hours worked on the day plus time-off-in-lieu for the number of hours worked on the day.

    Wicklow County Council argued that as part of the process leading to the abolition of Bray Town Council, it was discovered that an incorrect payment format for working on public holidays applied in Bray.  The Council sought to change the overtime payment system to bring it into line with that which applies in Wicklow County Council.

    The Union disputed this change saying that the change had been imposed unilaterally and without consultation. It also stated that prior to December 2013 the payment system where Employees were required to work overtime on a public holiday was always payment of double time for the hours worked in addition to the paid day on the day of the public holiday.

    In its Recommendation the Court said that having considered the submissions made by both sides, it is of the view that those Employees employed in Bray Town Council prior to its amalgamation in 2013 who were in receipt of double time payments for public holiday overtime hours worked should have this method of payment “red circled” i.e. they should on a personal basis retain the right to be paid double time for the hours worked if they so wish where they are required by Management to work on a public holiday. Other Employees should continue to receive paid time off in lieu in addition to basic pay for hours worked and the paid day in respect of the statutory entitlement. 

    Certainly an interesting reference case.
  • Topic - Gender Pay Gap – Irish Employers get prepared

    by Hayleigh Ahearne
    Jun 05, 2018

    Draft Legislation with the purpose of reducing the gender pay gap is envisaged to be initiated by the Government in the coming months and is expected to be far stronger than that recently enacted in the UK.

    The difference between Equal Pay and Gender Pay

    Whilst both equal pay and the gender pay gap deal with the difference in pay women receive in the workplace, they are two different issues:

    Equal pay - Means that men and women in the same employment performing equal work must receive equal pay.

    Gender pay gap - Is a measure of the difference between men and women’s average earnings across an Organisation or the Labour Market. It is expressed as a percentage of men’s earnings.

    UK Legislation

    New legislation introduced in the UK, means that any Employer with 250 Employees or more, will need to publish their gender pay gap data annually. From April 2017 Employers had up to 12 months to publish this information. There are two sets of regulations.

    1. The first is mainly for the private and voluntary sectors (which took effect from 5th April 2017).
    2. The second is mainly for the public sector (which took effect from 31st March 2017).

    A larger definition of who counts as an Employee is used (from the Equality Act 2010). This means that workers, as well as some self-employed people are included. Agency workers are included, however they are counted by the agency providing them.

    Necessary Calculations for Gender Pay Gap

    There are six calculations that need to be carried out, and the results must be published on the Employer's website and a government website within 12 months. Where applicable, they must be confirmed by an appropriate person, such as a chief executive.

    Gender pay reporting is a different requirement to carrying out an equal pay audit.

    While the regulations for the public, private and voluntary sectors are near identical, and the calculations are directly comparable, the public sector regulations also take into account the public sector equality duty.

    An Employer must publish six calculations showing their:

    1. average gender pay gap as a mean average
    2. average gender pay gap as a median average
    3. average bonus gender pay gap as a mean average
    4. average bonus gender pay gap as a median average
    5. proportion of males receiving a bonus payment and proportion of females receiving a bonus payment
    6. proportion of males and females when divided into four groups ordered from lowest to highest pay.

    Employers have the option to provide a narrative with their calculations. This should generally explain the reasons for the results and give details about actions that are being taken to reduce or eliminate the gender pay gap.

    1. The narrative can say why the results show challenges. For example, an Employer might explain that their executives get the highest bonuses and most of them are men.
    2. The narrative can say why the results show successes. For example, an Employer might explain that a recent change to their bonus policy has helped provide a much lower bonus gender pay gap.
    3. The narrative can also be used to show plans for long-term results. For example, an Employer might want to tackle the underrepresentation of women in their science and engineering roles by running a recruitment campaign for junior roles that particularly encourages women to apply. In the short-term this means more women will be at the starting salaries, which could make the gender pay gap look higher but it would have a long term goal to balance out the gap and the underrepresentation should be reduced.

    UK gender pay gap figures revealed

    More than 10,000 large firms in the UK provided details of their gender pay gap, with three-quarters of them paying men more than women.

    The information shows that women are being paid a median hourly rate that is, on average, 9.7% less than that of their male colleagues. But there are huge differences within and between sectors.

    Out of all firms, just 14% reported a pay gap in favour of women, while 8% reported no pay gap at all. Men make up the majority of higher-paid jobs, so the gender pay gap doesn't mean that women are being paid less than men for the same work, which would be against the law.

    What the findings do provide are a measure of the differences in men and women in respect of how they fare in different occupations, how they break down in respect of part-time roles (mainly female) and how, there is a shortfall of women in senior roles.

    Ryanair has a pay gap of almost 72% pay gap, which is the largest in this industry. Only eight of Ryanair's 554 pilots are women. Among major banks, JP Morgan has the biggest pay gap, at 54%. Fewer than one in 10 Employees in the bank's highest-paid group are women.

    The causes of the Gender Pay Gap

    The causes of the gender pay gap (GPG) are complex. A number of common cause include;

    1. Part-time working - Irrespective of whether the Workers are male or female, hourly rates of pay tend to be lower for part-time than for full-time Employees. Women make up the majority of Employees with constantly variable part-time hours and regular part-time hours while a majority of men (77%) work over 35 hours per week compared to 49% of women, according to a University of Limerick report in 2015.
    2. People who work full-time are perceived as accumulating valuable skills and experience, while those who take time out, or who work part-time are considered to acquire less human capital.
    3. Occupational and sectoral segregation has been increasingly identified as contributing to the Gender Pay Gap. Occupational segregation has been described as ‘men getting paid more for working with men, and women getting paid less for working with women’. Many ‘female’ jobs involve tasks that have traditionally been carried out by women in the home, and in consequence the jobs are assumed to call for only low-level skills. The introduction of the National Minimum Wage, provides a wage floor for the lowest paid jobs, but does nothing to challenge the underlying undervaluation of the work.
    4. Discrimination - While evidence of the extent of the contribution made to the gender pay gap by discrimination is contentious the existence of equal pay legislation, and claims, suggests that pay discrimination, or its perception is a risk factor. Discrimination can be both direct – paying a woman less because she is a woman – and indirect – paying a group of workers less because they work part-time.

    Steps that Irish Organisations should be taking now to prepare:

    It remains to be seen what form the final draft of the Irish legislation will take. However, whatever form it may take, what is clear is that the legislation is on its way so Employers must commence preparations.

    Creating the Organisations action plan – As the 2017 reporting in the UK is now over, UK Organisations need to be considering how they are going to close the gender pay gap in their Organisation. For Irish Organisations, they now have an opportunity to learn from the UK in order to begin putting corrective measures in place in order to reduce the gender pay gap. This is a crucial step for Irish Organisations as we are aware that there is currently draft legislation with the Government that we suspect will be passed in the coming months. Having an action plan in place is going to benefit Organisations understand their workforce data and help understand the key identifiers of their gender pay gap. An example here could be that there are a lack of females in senior roles in the Organisation, therefore they must consider how they will improve the landscape in the longer term.

    Improving and enhancing flexible work in the Organisation – One of the main reasons noted for a gender pay gap in Organisations today is a lack of flexible working which is deemed to be causing a conflict between professional and caring responsibilities. The caring responsibilities include when females are required to take time out of work in order to look after their families. As per the above example of a lack of senior females in senior roles, if Organisations enhance their flexible working offering, then this may go hand in hand with getting more female Employees in senior roles.

    Tackling any bias in the Organisation – Spotting and tackling bias in areas such as recruitment, promotion, talent management and reward is an important step in changing the bias that Organisations should be seeking to act on now.

    Transparency – It is important for Organisation to seek to be as transparent as possible in relation to salaries. As a result of the gender pay gap reporting and also the emphasis on equal pay, Organisations now may receive requests for more specific information on salaries within the Organisation. Organisations must be aware that disclosing individual pay is an illegal act and it would be deemed a Data Protection breach. 

    Considering the long term goal now – As gender pay gap reporting is now an annual process in the UK, and soon to be a similar process in Ireland, Organisations need to consider what they wish their long term goal to be. It is not expected that Organisations will have their goal achieved in the first 12 months, however it is important that Organisations avoid creating bad habits resulting in just a short term solution. Organisations should be mindful of the fact that if they implement change in a positive and effective way then Organisation engagement will increase and more gender diverse talent will be attracted to working in the Organisation, hopefully resulting in a reduction in the Organisations gender pay gap.

    Understand the Legal Obligations – Keep an eye on this area as it develops in Ireland over the coming months and take appropriate advice once the final form of the legislation becomes clear.

    Plan your PR and Communications Strategy – If it becomes obvious that the Organisation may face negative publicity arising from a gender pay gap, then the Organisation should now plan how you will address this.  Managing the Organisations messaging, internally and externally, will be very important to ensure that any potential brand damage is minimised. Employers are currently in a war for talent and any potential negative brand publicity can be very damaging for an organisation striving to attract top talent.

    Conclusion

    Given all the information discussed within this article, it is crucial that Irish Organisations now begin preparing for the gender pay gap reporting in Ireland as it is predicted that the legislation that sits currently with the Government will be enacted in the coming months. It is also proposed that this Irish legislation will be a lot stricter that the UK current legislation.

  • Case Law - Reviewed under the WRC

    by Hayleigh Ahearne
    Jun 05, 2018
    In this month’s newsletter the team at Adare Human Resource Management consider in detail a number of cases as adjudicated under the Workplace Relations Commission.

    Complainant awarded €5,000 due to bullying and harassment in her Workplace

    Adjudication Reference: ADJ-00011079

    Summary of Complainant’s Case:

    The Complainant commenced employment in August 2000 as a Clerical Assistant. She was promoted to Clerical Officer in 2003 and worked in a number of Garages of the Respondent. She stated that she was the only female Employee working in this Garage on days. The Complainant stated that she had made verbal complaints to her Line Manager over a period of some 10 years concerning how she was being treated by a named individual in the Garage. The Complainant made a formal complaint to the HR Department in January 2016 that she was being bullied and harassed by this named employee.

    Following an extensive 6 month investigation, including the taking of 7 witness statements and five issues were identified in relation to the investigation. The findings from the Investigation was published in June 2016 and they found that the incidents complained of constituted Bullying and Harassment on the gender ground. This was a detailed report of June 2016 in relation to each issue raised by the Complainant. The Recommendations provide as follows – The working and personal relationship between the Complainant (named) and (named) has broken down…The current situation where by (Complainant) feels intimidated and uncomfortable in her place of work can no longer continue. It also recommended that “the findings in this report be reviewed and acted on by (named) Chief Engineer”.

    The outcome is that both the Complainant and the named employee continue to work in the same garage. The Respondent did confirm at the Hearing that the named employee was the subject of a Disciplinary Hearing and that he was suspended and was issued with a Final Written Warning. The Complainant has been offered counselling and mediation and she has also been offered a transfer to another work location. However the Complainant had sought a transfer to the named garage for personal and family reasons in 2006. The Complainant stated that the more appropriate action by the Respondent would be to move the named employee to another location.

    The Complainant’s Legal Representative referenced a number of Codes of Practice in respect to the issue of Bullying and Harassment.

    Summary of Respondent’s Case:

    The Complainant has been employed in the named Garage/Depot looking after payroll for some 17 years. The named Employee is a Supervisor in the same Garage. The Complainant requested a meeting with the Respondent’s Employee Development and Equality Executive (Named) on 25th January 2016 and at their meeting on 27th January 2016 the Complainant informed the Executive that she would be making a complaint of Bullying and harassment against a named employee. She was offered mediation which she declined and she was informed of the informal procedures.

    A complaint was lodged and an investigation was carried out and found that the Complainant had been bullied and harassed by the named Employee – her Supervisor. The employee received a two week suspension without pay. He lodged an appeal and the appeal was heard on 31st August and the appeal was denied. The Complainant was informed in December 2016, through her trade union representative, that the findings of the investigation had been upheld. The Employee received a two week suspension without pay which was considered the appropriate action. A dismissal or a move from the garage was not deemed to be warranted.

    The Complainant lodged a complaint with the WRC on 5th October 2017 and in this complaint she listed a number of incidents in 2016 and 2017 whereby the actions of the named employee whom she had lodged a formal complaint against in January 2016 left her feeling intimidated and uncomfortable in her workplace. However the Respondent stated that the Complainant had made no formal complaint through the procedures and these complaints were not formally investigated.   However, the named employee was spoken to by Management but denied that he had acted in any inappropriate way towards the Complainant but did agree to limit his communication with the Complainant.

    The Respondent had agreed to go to mediation through the WRC and both parties attended but no agreement was reached as the Complainant wished the named employee to be moved from the Depot, which is a Disciplinary Sanction which the Respondent believes is disproportionate and unwarranted.

    The Respondent referenced the decision of the Supreme Court in the Ruffley Decision. The Respondent argued that they had taken all reasonable steps to prevent any harassment or bullying of the Complainant by the named employee and the Complainant has not utilised the Dignity at Work Procedures of the Company to lodge a complaint following the investigation that was completed in June 2016.

    Legislation:

    The Safety, Health and Welfare at Work Act, 2005 places an obligation on Employers to provide safe places of work for their employees where it states that there is a duty on Employers “so far as is reasonably practicable, the safety, health and welfare at work of his or her employees” and to prevent “any improper conduct or behaviour likely to put the safety, health or welfare at work of his or her employees at risk”. The Health and Safety Authority has a Code of Practice as does the Equality Authority have a Code of Practice on Sexual Harassment and Harassment.

    Decision:

    The referral to the WRC concerns the implementation by the Respondent of the Recommendations of June 2016 arising from the Report of the Investigation into the formal complaints lodged by the Complainant against the named employee in January 2016.

    The Investigation Report of June 2016 is very clear when it states as follows – “The investigation team find that both the working and personal relationship between (the Complainant named) and (the employee named) has broken down. The current situation whereby (Complainant) feels intimidated and uncomfortable in her place of work can no longer continue. Based on the facts gathered, the investigation team recommend that the findings in this report be reviewed and acted on by (named) Chief Engineer”.

    It is clear that the Complainant did make verbal complaints of ongoing bullying and harassment against the named employee since June 2016 and she did lodge a complaint with the WRC dated 27th February 2017 in relation to incidents in July 2016 – August 2016 – October 2016 – November 2016 – December 2016 and January 2017. Mediation took place at the WRC but no settlement was possible as the Complainant was seeking the transfer of the named employee to another depot and the Respondent was of the view that this would be a disciplinary sanction that was both disproportionate and unwarranted. The Complainant withdrew her complaint of February 2017 from the WRC. These complaints had been made verbally by the Complainant and she also had lodged a dispute with the WRC yet the Respondent confirmed at the Hearing that although they had a meeting with the Named Employee they did not conduct an investigation.

    The Adjudication Officer found that the Complainant continues to feel intimidated and uncomfortable in her place of work as evidenced by these complaints arising after the Investigation Report was published in June 2016. Yet the investigation report clearly says “The current situation where by (the Complainant named) feels intimidated and uncomfortable in her place of work can no longer continue” (my emphasis). Yet it has continued. The Adjudication Officer found that the Respondent has not acted in the appropriate manner to both implement the investigators report and to protect the Complainant. While the Adjudication Officer has no sanction or jurisdiction to propose that the named employee be moved to a different location to protect the Complainant, as this could be deemed to be a Disciplinary Sanction without due process, The Adjudication Officer recommends that the Respondent review the Investigators Report and it should be acted on by the Respondent as recommended by the Investigator. The Adjudication Officer further recommends that the Respondent pay the Complainant compensation of €5000.00 due to her ongoing situation. This sum to be paid to the Complainant within 42 days of the date of this Recommendation.

    Adare Human Resource Management Commentary

    Bullying is a cost for both Employers and Employees. The cost can be both financial and human. If not sorted out internally, a serious case could bring an Employer before the Workplace Relations Commission (WRC), the Labour Court and/or the civil courts. If destructive behaviour is tolerated and continues, it affects performance and general health and wellbeing of individuals and/or groups. The negative effects can last a long time. Bullying can be carried out by supervisors, managers, subordinates, fellow employees, customers, business contacts or members of the public.

    Bullying at work has been defined as ‘repeated inappropriate behaviour, direct or indirect, whether verbal, physical or otherwise, conducted by one or more persons against another or others, at the place of work and/or in the course of employment, which could reasonably be regarded as undermining the individual’s right to dignity at work’.

    ____________________________________________________________________________________________________________

     

    Till Operator unfairly dismissed for gross misconduct awarded €7,500

    Adjudication Reference: ADJ-00009507

    Summary of Complainant’s Case:

    The complainant repeated the explanations given at workplace level; that she had been unwell, that it was attributable to human error and resulted from the simple mistake of her pressing the wrong button, the amounts were not significant and that the sanction was disproportionate.

    The complainant says that the respondent dismissed the medical claim too lightly and should have taken further steps to have it validated. It was known that she suffered from epilepsy.

    The fact that her medication had side effects including drowsiness was raised, and accepted by the investigator in the course of the investigation but no weight was attached to it. Indeed, they reported that the medical explanation ‘did not satisfy them’ even though they are not medically qualified to reach such a conclusion.

    Also, despite a claim to the contrary it was submitted to the investigation that she had previous discussions with her managers about this.

    This came up again at the disciplinary hearing where the respondent implied that she had not previously advised her managers of the condition but she made it clear that she had.

    Video evidence clearly supported her claim that she pressed the ‘Card’ option on the till in error. The respondent has not been able to justify a claim of theft against the complainant but they have insinuated it.

    The complainant at no stage sought to conceal her errors and all were reported in line with the procedure.

    On one of the days, the discrepancy could be attributed to a power cut.

    In order to justify the termination of employment the case against an employee should be conclusive; it is not in this case.

    The complainant had seven unblemished years’ service. She has never even been reprimanded.

    The sanction of termination is disproportionate in the circumstances.

    Summary of Respondent’s Case:

    The complainant was a till operator and a number of discrepancies in her end-of-day takings were observed.

    The discrepancies came to a total of €220.00, comprising four amounts of on four days in April; €93.50 on the 11th, €78.00 on the 13th, €28.30 on the 16th and €24.00 on the 19th.

    The respondent conducted an investigation which involved two meetings with the complainant.

    It was difficult to get a clear response from her and she gave a number of explanations, such as that she had pressed the wrong button in error, that she had been tired, and that she had been affected by the prescription medication she was then taking.

    The respondent felt that her explanations were unsatisfactory and instigated the disciplinary process, following which a decision was taken to terminate her employment on the grounds of gross misconduct,

    She appealed on the grounds that the sanction was too harsh, that there had been insufficient investigation of other transactions by colleagues and that such mistakes were common.

    The respondent rejects this latter contention.

    She appealed but her appeal failed.

    The respondent took account of the fact that she was an experienced till operator and the cluster of mistakes was not acceptable.

    Legislation:

    The Unfair Dismissals Acts, 1977 – 2015 set out to provide redress for Employees who are unfairly dismissed from employment. However, as well as establishing automatically unfair grounds for a dismissal, the legislation also sets out fair reasons for dismissal of an Employee.

    To justify a dismissal, an Employer must show that it resulted from one or more of the following cases:

    1. The capability, competence or qualifications of the Employee for the work she/he was employed to do;
    2. The Employee’s conduct;
    3. Redundancy;
    4. The fact that the continuation of the employment would contravene another statutory requirement or that there were other substantial grounds for the dismissal.

     

    Decision:

    The three pillars on which an unfair dismissals case is assessed by an adjudicator are; firstly, whether good grounds existed to initiate the disciplinary process. In other words, have the facts been properly investigated and do they represent grounds for a disciplinary process.

    Secondly, consideration is given to the conduct of that process. Is it fair by reference to the well-established principles established by the courts and the employment rights tribunals over the years?

    Finally, there is the issue of whether the sanction is proportionate; i.e. is it within the range of sanctions a reasonable employer would apply, taking all relevant considerations into account.

    There are some grounds for concern in this case under all three of those headings.

    The cluster of incidents, although they gave grounds for legitimate concern to the respondent were not significant in overall terms.

    They were investigated and while it might be said that the complainant made a poor fist of providing an explanation, this may be because the explanation she offered was the best she could and a truthful one. It may not have satisfied the respondent, but that, in itself, will not be enough to justify the actions it took.

    Her explanation relating to the medication was somewhat coldly brushed away on the basis that she had not informed the employer that it might have such side effects. She says she disputed this at several stages in the process. In any event, whether she had or not is a good deal less important than whether it provided a reasonable explanation when the matter arose.

    The fact that she had worked six days in a row was ‘not a reasonable explanation’ either.

    The alleged infractions were relatively minor, proximate in time and nature and there was no suggestion at the hearing that the complainant in any way profited from them (although I accept the complainant’s submission that this was insinuated by the respondent, and without any evidence to support it).

    Turning to the disciplinary process itself the complainant was invited to a disciplinary hearing on May 23rd 2017 as the respondent was ‘not satisfied with your explanation as to why these discrepancies and irregularities occurred and why the cash received is unaccounted for’.

    She was advised of her right to be accompanied and was sent a copy of the disciplinary procedures.

    She was not given any indication of the possible range of sanctions which might ensue in the event of an adverse finding, although, according to the report of the disciplinary meeting, she was told this at the hearing.

    On June 1st, she was sent a letter terminating her employment.

    This stated;

    ‘…it has been concluded that the explanations which you provided in relation to the incidents being investigated lacked credibility and that you deliberately concealed cash transactions by recording them as credit card transactions and the corresponding money was not found at the end of the day’.

    This was deemed to be gross misconduct, warranting her dismissal.

    This was the first occasion that I can find in either the documents of the evidence at the hearing where an allegation giving rise to a suggestion of dishonesty was levelled at the complainant.

    It will be recalled that she was invited to attend the disciplinary hearing to discuss ‘discrepancies and irregularities’.

    There is no evidence in the report of the disciplinary hearing that this escalation of the charges against the complainant was put to her at the hearing, or that she was given an opportunity to rebut them, specifically.

    Indeed, the complainant was invited to sign what is admittedly headed ‘Minutes of disciplinary meeting’ but described above her signature as ‘minutes of an investigation meeting’, which they more closely resemble.

    The respondent asserts that the complainant’s explanation ‘lacked credibility’. It has not explained the basis for this conclusion. It is possible after all, that the complainant’s explanation was the truth. The respondent failed to take sufficient steps to verify the medical explanation.

    It certainly did not have a basis for the somewhat massive leap to its conclusion that she ‘deliberately concealed cash transactions by recording them as credit card transactions’ which is no more than supposition. No evidence was offered to support it the allegation that she ‘deliberately concealed’ anything.

    The complainant is put in the quitter extraordinary position of justifying her innocence of charges which were never actually put to her.

    Similarly, the introduction of the charge of ‘gross misconduct’ appears for the first time in the letter of dismissal.

    The respondent’s own sample, non-exhaustive list of ‘offences’ constituting gross misconduct are along the usual lines.

    They include theft, serious damage to property, intoxication or use of illegal drugs, fraud, violent dangerous or intimidatory conduct, criminal conviction, gambling or money lending on the premises etc.

    Just ignoring briefly that the complainant was not put on notice at any time that she was facing a charge of gross misconduct, no reasonable person could conclude that the ‘discrepancies and irregularities’ in the amount of €220 with which she was charged fall into this category, or anywhere remotely near it. This is complete hyperbole.

    The failure of the complainant to provide what was described on appeal as ‘any satisfactory explanation’ undoubtedly give rise to some concern for the respondent. The appeal decision paradoxically notes.

    ‘the fact that there were very few occasions when it was necessary to get back to you regarding discrepancies reconfirms your ability to manage and operate the till to an excellent standard’

    However, it rejected the appeal.

    The Adjudication Officer was very conscious of the well-established constraint on an Adjudicator in such cases as these.

    In Looney and Co v Looney UD 843/194 the Eat stated reflecting the view of Dr Mary Redmond to the same effect that;

    It is not for the EAT to e stablish the guilt or innocence of the claimant nor is it for the EAT to indicate or consider whether we, in the employer’s position, would have acted as it did in its investigation or concluded as it did or decided as it did, as to do so would be to substitute our own mind and decisions for that of the employer. Our responsibility is to consider against the facts what a reasonable employer in his position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s actions and decisions are to be judged’.

    As will be clear from the text this does not entirely rule out intervention by an Adjudicator but sets the standard to be applied as the actions of ‘what a reasonable employer in his position and circumstances at that time would have done…’

    However, this is one of those cases where the handling of the matter by the respondent falls so far on the wrong side of what is required in terms of what ‘a reasonable employer’ in the respondent‘s circumstances would have done that the Adjudication Officer was required to make the exception contemplated by the formulation above and the general principle.

    There are several reasons why.

    The elevation of the ‘discrepancies and irregularities’ to gross misconduct and the failure to put the complainant on notice that she was facing that charge falls far outside the standard required, as does the failure to advise her at all of the likely range of sanctions in advance of the disciplinary hearing.

    Related to this, the implication of deliberate concealment, and therefore dishonesty, theft even, which appears in the letter of termination had not previously been ventilated or put to the complainant. It is a very serious matter to accuse an employee of theft, or to imply she has been and it requires a modicum of evidence to support it. There was none in this case.

    The Respondent had little more than suspicions but they were more informed by speculation (or incredulity) than evidence.

    The description of the disciplinary meeting also as an investigation meeting might be seen as a clerical error but it speaks to a shoddiness with which the respondent conducted a process which was fatally tainted with unfairness and disproportionality throughout.

    The Complainant had a clean disciplinary record, and as the letter rejecting the appeal paradoxically confirms she had a good work record.

    In the circumstances the sanction of dismissal cannot be regarded as having followed a procedure which meets the well-established principles of required fairness and the dismissal is, as a consequence, clearly unfair.

    The sanction is out of all proportion to the alleged offence and is likewise unfair.

    That said, the Complainant’s evidence regarding her attempts to mitigate her losses were not entirely convincing and I take account of that in making my award.

    The Adjudication Officer upheld the complaint CA-0012437-001 and awarded the Complainant €7,500.00 subject to the usual statutory deductions.

    Adare Human Resource Management Commentary:

    While arrangements for handling discipline and grievance issues vary considerably from employment to employment depending on a wide variety of factors including the terms of contracts of employment, locally agreed procedures, industry agreements and whether trade unions are recognised for bargaining purposes, the principles and procedures of the Code of Practice on Grievance and Disciplinary Procedures should apply unless alternative agreed procedures exist in the workplace which conform to its general provisions for dealing with grievance and disciplinary issues.

    Procedures are necessary to ensure both that while discipline is maintained in the workplace by applying disciplinary measures in a fair and consistent manner, grievances are handled in accordance with the principles of natural justice and fairness. Apart from considerations of equity and natural justice, the maintenance of a good industrial relations atmosphere in the workplace requires that acceptable fair procedures are in place and observed.

    ____________________________________________________________________________________________________________


    Employee did not receive lunches and was dismissed is awarded €1,000

    Adjudication Reference: ADJ-00009343

    Summary of Complainant’s Case:

    The Complainant worked as an executive assistant for the CEO of the Respondent. The Complainant started working there on 9th January 2017 and finished on 3rd May 2017. The Complainants contract stated that the Complainants hours were to be 8.30am to 5.50pm with an hour lunch break, finishing at 4pm on Fridays. However, the Complainant did not receive the hour lunch break consistently.  The reason for this was that the Complainant was overworked and the Complainant had to allow 2 Receptionists go to lunch and cover for their work until they returned. However, when they returned there was usually other work for the Complainant to do so the Complainant couldn’t take the break. Sometimes the Complainant did take a lunch break but it was not consistent. The Complainant did not know starting the day whether the Complainant would get a break at lunch time, or not. The Complainant complained to the CEO about this but he did nothing about it.

    Summary of Respondent’s Case:

    The complaint that the Complainant did not receive any lunch breaks is denied by the Respondent. The Complainant’s contract states that she is entitled to an hour lunch break. The company’s grievance procedure was not invoked by the Complainant in relation to the allegation that she did not receive a lunch breaks. The allegation that she made complaints to the CEO cannot be refuted as he has left the Company but the HR director sat across from the Complainant’s desk and stated that she regularly witnessed the Complainant taking a lunch break, although she cannot say whether it was for an hour or not. The Access card records indicate the times at which she entered the business. These records run for the duration of her employment and they indicate that the Complainant entered the premises at lunch times on nearly every day, which is evidence that she left the company premises at this time. However, the Respondent accepts that this card also records any time an employee leaves the premises to use the toilet, which is positioned outside the company security area so evidence of that the Complainant left the secure area it is not evidence that a lunch break is being taken

    The CEO is not present at the hearing as he now is based outside the jurisdiction, however his notes indicate that other complaints were made in relation to the terms of the Complainant’s employment, but there are no records in relation to a complaint about rest periods or lunch breaks.

    Legislation:

    Organisation of Working Time Act, 1997 sets out to protect the health, safety and welfare of Employees by regulating their working patterns.

    Decision:

    In relation to the complaint of insufficient rest periods, the evidence of the Complainant is not disputed by the person to whom was made aware of her grievance, namely her line manager, because he could not attend the hearing. As a result, I find the evidence of the Complainant to be uncontroverted and I find the complaint to be well founded. I award the complainant €1,000.00 in respect of this breach.

    Adare Human Resource Management Commentary:

    An Employee working less than 4.5 hours is not entitled to a break, unless agreed as a term of the contract of employment.

    An Employee working 4.5 hours or more, but less than 6 hours, must be provided with a minimum break period of 15 minutes during their working day.

    An Employee working 6 hours or greater must be provided with a 30 minute break during their working day.  Where an Employee is entitled to this 30 minute break, he/she does not have to be provided with the 15 minute break earned after 4.5 hours work.

    There is no obligation to pay an Employee in respect of these break periods unless otherwise agreed in the contract of employment. 

    Note that minimum breaks must be taken during the working day.  Breaks afforded at the end of the working day are not regarded as fulfilling the requirements of the legislation, i.e. allowing an Employee to work through their half hour break in order to finish their working day a half hour earlier is not deemed appropriate.

  • Help Desk - Capability, Competence and Conduct – What constitutes a fair dismissal?

    by Hayleigh Ahearne
    Jun 05, 2018

    The following legislation should be considered when looking at what constitutes a fair dismissal;

    1. The Unfair Dismissals Acts, 1977 - 2015
    2. Industrial Relations Act 1990 Code of Practice on Grievance and Disciplinary Procedures (Declaration) Order 2000
    3. Industrial Relations Acts, 1946 - 2015
    4. The Employment Equality Acts, 1998 – 2015

    The Unfair Dismissals Acts, 1977 – 2015 - sets out to provide redress for Employees who are unfairly dismissed from employment. However, as well as establishing automatically unfair grounds for a dismissal, the legislation also sets out fair reasons for dismissal of an Employee. All dismissals are deemed to be unfair unless the Employer can demonstrate otherwise. To do so, the Employer must have paperwork to demonstrate fairness of the procedure during both formal and informal stages leading to dismissal. In order for an Employee to take a claim to the Workplace Relations Commission (WRC) under this act, they must be have one year continuous service with the Organisation.

    In order for an Employee to be protected under the Unfair Dismissals Acts and have the ability to take a claim to the Workplace Relations Commission (WRC), they must meet the following criteria:

    The Acts apply to any person;

    • Working under a contract of employment or apprenticeship,
    • Employed through an employment agency.

    The Acts do not apply to the following;

    • Employees who have reached the normal retiring age in that particular employment or who on that date had not attained the age of 16 years,
    • Persons working for a close relative in a private house or farm, provided both also live in the same house or farm,
    • Member of the Defence Force or Gardaí,
    • Person under full-time training or apprenticeship in FÁS establishments,
    • Officers of the vocation education committees and the Chief Executive Officer of the Health Service Executive,
    • A County Manager or a City Manager.

    Industrial Relations Act 1990 Code of Practice on Grievance and Disciplinary Procedures (Declaration) Order 2000 - The Code of Practice on Grievance and Disciplinary procedures sets out principles which must be adhered to in any disciplinary situation. It sets out the rights of an Employee which must be upheld throughout the disciplinary procedure. A breach of the Code of Practice may lead to any dismissal being deemed to be procedurally unfair.

    The Code of Practice on Grievance and Disciplinary Procedures promotes that an Employees shortcomings, whether they are conduct, attendance or performance related, be brought to the Employee’s attention informally in the first instance, provided that this is appropriate.

    There are a number of general principles that are set out in this Code of Practice which should be adhered to at all times:

    • The procedure must be rational and fair.
    • The basis for any disciplinary action must be clear.
    • There must be an internal appeals mechanism.
    • The principles of natural justice must be adhered to.
    • It may be appropriate to provide written copies of complaints or allegations, revealing the source of same and allowing the Employee to confront and question any witness/es.
    • The consequences of an Employee’s departure from the rules or expectations of the Employer should be explained in policy and procedure, particularly those that may warrant dismissal or suspension.
    • Disciplinary action may include a verbal warning, a 1st written warning, a final written warning, demotion, suspension without pay, transfer, other action short of dismissal and dismissal. The policy should state the length of time that each sanction will remain on the Employee file. Following this time period, the sanction should be removed from the Employee file.
    • Steps in the procedure should generally be progressive, however it is acknowledged that in certain situations an issue may need to be escalated to later stages of the procedure without recourse to the earlier stages of the procedure.
    • An Employee may be suspended on full pay pending the outcome of an investigation.
    • Adequate records must be kept in relation to disciplinary situations.

    Industrial Relations Acts, 1946 – 2015 – In comparison to the Unfair Dismissals Act that is details above, the Employee does not need a specific service requirement in order to take a claim to the WRC under the Industrial Relations Acts. This is a prime piece of legislation that is utilised by Employees who feel they are unfairly dismissed whilst still in their probation period or within the first 12 months of their service.

    The Employment Equality Acts, 1998 – 2015 - Set out that no person should be dismissed due to their gender (including pregnancy), civil status, family status, age, sexual orientation, disability, race, religion, or membership of the Traveller community. Such a dismissal is referred to as a discriminatory dismissal. There is no service requirement for an Employee to be covered by the Employment Equality Acts.

    What Makes a Dismissal Unfair?

    In determining whether a dismissal is fair or unfair, two factors are generally considered in relation to the dismissal.

    1. Was the reason for the dismissal fair? i.e. was the dismissal related to the conduct, capability, competence, genuine redundancy of the Employee, or a statutory duty or other substantial reason, and was the situation such that dismissal was a reasonable course of action?
    2. Was a fair procedure followed? i.e. were the principles of natural justice followed and was the procedure followed in accordance with the Code of Practice?

    Where the answer to one or both of these questions is no, then the dismissal may be found to have been unfair.  The majority of successful unfair dismissal claims arise due to the Employer following an unfair procedure in implementing disciplinary action.

    Fair Grounds for Disciplinary Related Dismissal

    The following grounds are set out as fair grounds for a dismissal. Ultimately, any disciplinary sanction must be based on one of the following to be fair and to ensure that the Employer can stand over any subsequent dismissal as having been for a fair reason:

    • Competence: this generally relates to the performance of the Employee in their role.
    • Capability: this refers to the Employee’s ability to fulfil the terms of their contract, such as attending work on a daily basis. 
    • Conduct: this relates to the behaviour of the Employee at work, and may extend beyond the work environment in certain circumstances.

    Where one of the above matters results in the dismissal of an Employee, the Employer must be capable of demonstrating that the dismissal was fair.

    Incompetence in relation to Poor Performance – What are the Employer Obligations?

    The Employer must inform the Employee of their poor performance. A well planned goal setting process enables an Organisation to manage Employee performance in a strategic and effective way and ensure each Employee is focused on the key organisational priorities. If necessary the Employer should roll out a performance improvement plan (PIP) with the Employee. The purpose of this plan is to document the Employee’s shortcomings and expected improvements in performance. The plan must set SMART objectives for the Employee to achieve and review dates should be agreed and documented.

    The Employer should ensure that they have provided proper training for the job in respect of those areas where the Employee’s performance is falling short.

    The Employer should give the Employee a reasonable time within which to improve and a reasonable work situation (opportunity) within which to concentrate on the areas in question. This point can also be linked into the PIP, as the PIP should have a set timeframe around it with regular scheduled meetings planned to check in with the Employee on their performance.

    The Employer should ensure that the Employee is aware of the consequences of failing to meet the requirements within the agreed timeframe.

    Where there is no improvement in the Employees performance, the Employer should provide a final warning outlining the possibility/likelihood of dismissal on this ground and a final opportunity to the Employee to improve.

    Before a final decision to dismiss is taken, an Employer should have an up to date assessment of the Employee performance.

    Absence – Capability

    A significant number of dismissals involve attendance related problems. Reasons for sick leave absenteeism can vary widely dependent on the individual circumstances. The individual circumstances of each instance of sick leave absence should be considered when determining what disciplinary action, if any, to take. Consistency and fairness are key to ensure that any management action taken can be justified. If lateness or absenteeism is an issue, as an Employer / Manager you will be expected to have documentary proof such as timecards, or documented absences on the employees file that are not medically certified.

    Employees who fail to attend work regularly, who are persistently late, or who are absent for long periods may be regarded as being incapable of performing the work they were employed to do

    An Organisational sick leave policy should outline clearly the sick leave reporting procedure an Employee is required to comply with during any instance of sick leave. This usually includes a requirement to provide notification of the absence initially and to keep the Line Manager up to date during the period of sick leave and the provision of medical certificates and other documentation such as illness benefit forms.

    An Organisational sick leave policy should also specify the circumstances in which disciplinary action, including the withholding of sick pay, will apply. In the event of non-adherence to the policy, the Organisation should ensure action is taken on a consistent basis, taking into account the individual circumstances and with full regard to fair procedures.

    Short Term Absences

    In order to justify a dismissal for persistent short term absenteeism, an Employer / Manager will generally be expected to show that:

    • The Employee had a continuing pattern of absence over a protracted period;
    • It was reasonable to conclude that the position would not improve substantially or at all;
    • The continuation of that level of absenteeism was unacceptable;
    • Adequate warnings of the consequences of continuation had been given to the Employee.

    Long Term Absences

    If the Employee is not able to do the work that they were employed to do, the Employer may be expected to consider whether alternative work is available and where in the cases of an Employee with a disability explore reasonable accommodation.

    Where there is no such work, the Employer will not be expected to create such work for the benefit of the Employee.

    Some Employers have Income Continuance / Long Term Disability insurance schemes and the Employee transfers to that scheme with annual assessment of case in terms of any change of prognosis regarding fitness to work

    In a recent reviewed case by the Workplace Relations Commission, it shows how an Employer terminated an Employee who had persistent absences from work; “ADJ-00005550 - Maintenance Technician v Road Maintenance Company” - The Complainant stated the difficulties had started when his partner had become ill and subsequently passed away. The Complainant stated that his mind was clouded by grief. He stated that other Employees in similar circumstances had been granted long-term leave but he was not supported by the Respondent in the way he should have been. Although he utilised the Employee Assistance Programme this only allowed for a small number of counselling sessions.

    The Respondent submits that issues pertaining to the Complainant's poor timekeeping and high levels of absenteeism were becoming serious for a long time before his dismissal. The Company were aware that the Complainant had experienced the death of a close friend around 2013/2014 and so the Company extended support by way of offering access to counselling in addition to allowing the Complainant some scope with regards to his attendance issues.

    However, the Complaint’s poor attendance continued into 2015 and 2016. The Respondent gave evidence to the number of meetings, formal discussions and warnings given to the Complainant because of his attendance and time-keeping offences. The Complainant was warned many times about the consequences of not addressing his attendance and time-keeping record. The Respondent submits that it adhered to its Disciplinary Procedures at all times and afforded the Complainant all his rights throughout the process. A Final Written Warning was issued. The Respondent submits that the required improvements were not forthcoming and it was left with no option other than to dismiss the Complainant, which it did on 7th July 2016.

    That the Complainant's pattern of poor attendance was neither acceptable nor tolerable and rendered him incapable of conducting the job for which he was employed to do.

    The Adjudication Officer found that the Respondent acted with considerable patience and its procedures were fair, the grounds of the dismissal were the incapacity of the Complainant and that therefore the dismissal was fair.

    Conduct

    This relates to the behaviour of the Employee at work, and may extend beyond the work environment in certain circumstances.

    Having a disciplinary procedure in place ensures that Employees are aware of how poor performance, conduct or attendance will be dealt with. Employees are aware of the potential negative consequences of these situations.

    The Code of Practice requires that the disciplinary procedure be applied progressively where appropriate, and that greater sanctions may be imposed over time.  Therefore, every disciplinary procedure is required to have a number of steps, as outlined here:

    • Informal Pre-Disciplinary
    • Verbal Warning (always to be confirmed to the Employee and recorded in writing)
    • First Written Warning
    • Final Written Warning
    • Dismissal

    In the majority of cases, these stages should be applied progressively.  Additional sanctions may also be imposed, these should be documented in the disciplinary procedure, e.g. withdrawal of sick pay or demotion of an Employee. 

    Where the situation arises that the Employer wishes to skip steps of the procedure, care must be taken to ensure that a) this is being done consistently with previous situations of a similar nature and b) that the Employee could reasonably have been expected to know that the issue was so serious as to warrant the Employer skipping steps in the procedure.

    In some situations, the Employer may commence the procedure at the final stage, i.e. dismissal.  This would generally only occur in cases of gross misconduct, and a fair disciplinary hearing must always be held before deciding to dismiss for the offence concerned.

    Gross misconduct is misconduct which is so serious that it warrants dismissal, without recourse to the earlier stages of the disciplinary procedure.  In situations where there is a suspicion of gross misconduct, it may be appropriate to suspend the Employee on pay, pending the outcome of the disciplinary hearing. In deciding whether it is appropriate to dismiss an Employee for gross misconduct, the Employer must always consider:

    • Could the Employee have reasonably known that the conduct would warrant dismissal, for example was this stated in a policy related to the incident, and was that policy communicated to the Employee?
    • Have other Employees been dismissed in the same circumstances?
    • Is there sufficient evidence to demonstrate that, on the balance of probabilities, the Employee committed the offence?
    • Has fair account been taken of the mitigating circumstances, if any that have been presented by the Employee?

    If the answer to any of the above questions is “no”, then dismissal may not be an appropriate sanction to impose on the Employee.

    Conclusion

    Managing workplace discipline can be a daunting experience for many Employers and / or Managers. It is an area where employment law can leave an Employer feeling as though it is impossible to deal with poor performance, attendance or misconduct by an Employee. However, this need not be the case and any Employer who takes a structured approach to ensure that their disciplinary procedures are applied fairly and consistently should be in a position to confidently address Employee shortcomings at work.

    The aim of the disciplinary procedure should always be to correct a situation. Whether the Employer is addressing poor performance, conduct or attendance, in the majority of cases the purpose of the procedure is to encourage an improvement in the Employee’s behaviour.

  • Vacancy - HR and Employment Law Consultant

    by Hayleigh Ahearne
    Jun 05, 2018

    We value ambition, client focus and team spirit in order to develop and maintain ongoing relationships and to support innovative Employment Law, Industrial Relations and best practice supports for clients.  At Adare Human Resource Management we look for individuals with these qualities to add value to our team and to our clients businesses.

    Our unique internal culture offers exceptional career opportunities for dynamic and passionate Human Resources and Health and Safety Professionals looking to thrive in an engaging and highly collaborative work environment. We can offer you a career that will help you achieve your personal and professional goals. At Adare Human Resource Management, you will have the opportunity to work autonomously and on your own initiative at the cutting edge of your profession/area of specialism.

    We are always seeking to meet with self-driven and innovative consultants to assist us with our future planned growth.

    Due to our continued expansion, we are looking to recruit an ambitious HR and Employment Law Consultant to join the team and work closely with our clients on a wide range of HR and Employment Law topics.

    To view the full job description, click here.

    Please email in strictest confidence your C.V. and cover letter to Derek McKay, Managing Director, Adare Human Resource Management email: dmckay@adarehrm.ie or telephone:  01 561 3594 / 087 9786427

    CLOSING DATE FOR APPLICATIONS IS 5PM, 8TH JUNE 2018.

  • Vacancy - HR and Employment Law Consultant

    by Hayleigh Ahearne
    May 23, 2018

    We value ambition, client focus and team spirit in order to develop and maintain ongoing relationships and to support innovative Employment Law, Industrial Relations and best practice supports for clients.  At Adare Human Resource Management we look for individuals with these qualities to add value to our team and to our clients businesses.

    Our unique internal culture offers exceptional career opportunities for dynamic and passionate Human Resources and Health and Safety Professionals looking to thrive in an engaging and highly collaborative work environment. We can offer you a career that will help you achieve your personal and professional goals. At Adare Human Resource Management, you will have the opportunity to work autonomously and on your own initiative at the cutting edge of your profession/area of specialism.

    We are always seeking to meet with self-driven and innovative consultants to assist us with our future planned growth.

    Due to our continued expansion, we are looking to recruit an ambitious HR and Employment Law Consultant to join the team and work closely with our clients on a wide range of HR and Employment Law topics.

    To view the full job description, click here.

    Please email in strictest confidence your C.V. and cover letter to Derek McKay, Managing Director, Adare Human Resource Management email: dmckay@adarehrm.ie or telephone:  01 561 3594 / 087 9786427

    CLOSING DATE FOR APPLICATIONS IS 5PM, 6TH JUNE 2018.

  • Webinar Series - Investigating – how easy it is to get wrong

    by Hayleigh Ahearne
    May 23, 2018

     

    Adare Human Resource Management are delighted to invite you to our upcoming webinar which forms part of our webinar series "Employment Risks – what every Employer needs to know" which provides participants with updates on employment legislation and best practice in Human Resource Management.  

    The webinar, entitled "Investigating – how easy it is to get wrong" will be presented by Katie Ridge, Head of Employer Relations. 

    Details of the webinar are as follows:

    Date: Wednesday 30th May 2018

    Time: 12.30pm

    Register: To register, click here.

  • Progress But No Solution Yet In Section 39 Pay Dispute

    by Hayleigh Ahearne
    May 23, 2018

    Information emanating from the HSE and a number of Section 39 (S 39) agencies and organisations suggest that plans on proposals to remedy the pay restoration dispute affecting a large number of S 39 employments are at an advanced stage.  The position being taken by the HSE appears to be that where S 39 organisations have inability to pay or meet whatever final provisions are ultimately agreed with unions the HSE will engage with that organisation with a view to assisting on whatever the nationally agreed outcome might be.  However, any such funding from the HSE in this regard will be subject to detailed financial analysis of the individual S 39 organisation through a HSE format.  This will further include formal submission of the organisation’s financial situation backed up by legal affidavit as to the integrity of such information. The HSE has proposed that each S 39 agency submit a short form application for pay restoration in 2018. This application form will be provided by the HSE and require an affidavit attachment, signed by the chairman and one board member. The submitted application may be subject to audit for verification and validation before any pay restoration is approved.

    Dispute Continues

    Industrial action that was scheduled to take place last February at a number of S 39 employments was averted through agreement that included the HSE initiative outlined above.  As the HSE process of collating all the information from the respective S 39 organisations continues the dispute has not gone away.  Unions remain under pressure from their members to get matters concluded as quickly as possible.  This pressure is further resulting in some industrial relations skirmishes at local level.  In this setting the HSE have asked all S 39 organisations involved to respond to a detailed HSE interim report by the end of May.  This report will then be finalised and will form the basis of any future agreement on the issue. On a brief review of the draft report one or two stats stand out including a finding that applying full restoration to all 302 Section 39 bodies would cost almost €68m and on average S 39 workers had seen salary reductions of 4.66%, but that agencies varied in the extent of both salary cuts and initial restoration.

    While these efforts continue the IR pressure on the ground very much remains and surfaced at the recent Forsa Annual Delegate Conference in Killarney when warnings of industrial action were again made from the rostrum.  Senior Forsa Official Eamon Donnelly said “there was no better campaign than to try to restore pay to a group of people who had their pay reduced because they looked like public servants, but when pay restoration came back, did not have it restored because they were not public servants”. 

    Throughout the entire dispute S 39 agencies have in the main been sympathetic to the merit of the staff and unions’ position in that while they would be keen to restore and  or improve pay and conditions, their funding allocations from the HSE have not been restored to permit this. 

    We will be reporting further once the HSE issue the final report of the S 39 review.

  • Court Decision On Loss Of Earnings Claim Provides Guidance

    by Hayleigh Ahearne
    May 23, 2018

    In a recent case adjudicated at the Labour Court under the Industrial Relations Acts the Court confirmed the principles that should apply in determining how variable earnings, such as in this case overtime might be calculated.  The Union informed the Court that both Workers in this instance were entitled to be paid equal to one and a half times the annual loss under public sector agreements.  It was claimed that the two workers in question suffered a considerable loss in earnings following on from an agreement between the Unions and the Employer regarding a restructure of the Administration function within Ennis General Hospital.  The claim was in effect compensation for what the Unions said was loss of regular overtime.

    From the Employer’s perspective there was no dispute between the parties with regard to the payment of compensation for loss of premium and extra hours.  However, it was argued overtime worked by the two Workers was not regular, rostered or structured therefore, no compensation is payable.

    Principle Of Calculating Loss

    The dispute between the parties is that the employer is of the view that loss of overtime hours should not be included in the calculation as it had not been regular and rostered whereas the Unions are of the view that the formula provided for compensation for the actual losses sustained in the relevant period should be applied to the workers. 

    Within public service agreements there is a formula and definition that provides for compensation of one and a half times the annual cost of the alleged loss, once said loss meets that definition.  An established distinguishing feature between regular and rostered overtime and ad hoc overtime is that the former is mandatory or contractual whereas the latter is voluntary. Where overtime is mandatory or contractual it becomes, in effect, part of a workers normal working hours and should be compensated for if discontinued. Where overtime is not mandatory it is voluntary to both parties, in the sense that the Employee is not obliged to work the overtime and the employer is not obliged to provide it. The Court has consistently held that in such cases compensation is not payable.

    The Court having examined the information furnished by the parties took the view that the overtime worked by the Claimants in the period in question had been worked on an irregular basis and was then satisfied that it could not be classified as contractual overtime.  Therefore the claim does not meet the test of regular and rostered overtime and in this case the Unions’ claim on behalf of the workers concerned was rejected.  For full case and recommendation see LCR21706.

    ____________________________________________________________________________________________________________

    LABOUR COURT REJECTS EMPLOYER APPEAL AND INCREASES COMPENSATION

    Some of the perils of appealing decisions of the Adjudication Officer particularly in the context of Unfair Dismissals’ claims was borne out at a recent employer appeal of an adjudication decision held at the Labour Court (Case Ref UDD1823).  In the context of such an appeal an employer must take full countenance and consideration to that challenge.  Firstly the onus of proof is on the employer.  This means that in the eyes of the law, as it relates to the Unfair Dismissals Act, all dismissal are unfair unless and until the employer can prove that there was “substantial grounds justifying the dismissal”.  This is a statutory burden on the employer, and in this legal setting the employer must show and demonstrate that there was in fact such substantial grounds.  In the simplest of terms, all dismissals is are deemed unfair at the outset.

    It is important to note that when an employer appeals a decision against an adjudication finding it is not just the points the employer says the Adjudicator missed that are up for review.  An employer as the appellant in such cases must also be aware the appeal hearing is “de novo”.  This means that the Court will hear the entire case again from the start, as opposed to just a particular focus relating to whatever the basis of said appeal was. 

    In this reported case, exposures in the employer case were identified by the Court that apparently did not surface at adjudication.  The outcome was that despite the employer bringing the appeal, they lost and the Claimant actually received a larger award of compensation.  Coupled with this is the fact the identity of the parties is made public, as well as the obvious added legal and other costs associated.  The conclusion being; appeals should be considered when the adjudication award is clearly seen to be high or utterly wrong and secondly where there is clear prospect of success, notwithstanding the very high burden of proof bar, as outlined above.      

    The Case     

    Arising out of an incident that occurred around Christmas time in 2015 the respondent terminated the employment of the claimant by way of dismissal on 15th January 2016.

    In summary the Complainant first referred a complaint of unfair dismissal under section 8 of the Unfair Dismissals Act to the Workplace Relations Commission on in May 2016.  In March 2017 the Adjudicator found the claimant had been unfairly dismissed and awarded compensation of €10,000.

    In its hearing on February 8th 2018 the Court re-opened the entire events in keeping with is statutory obligations.  In summary the case related to a Security Supervisor who had applied for Christmas Holidays and understood there was no issue in him taking said leave.  However, the employer said the leave was refused.  Given the Employee concerned had booked flights etc. to visit his family in Poland he took the leave time which he claims he understood had been granted.  The employer was of the view the leave was not sanctioned and that the holiday application form in question was returned to the Employee as unsanctioned by the manager concerned and in that context the Employee went AWOL.  A disciplinary process was instigated in the New Year upon the Employee’s return, which resulted in the dismissal of the Employee.  An internal appeal upheld that decision.     

    In summary the Court found that it could find no evidence of the holiday form being returned by the manager.  The Court also concluded that rationale relied upon for the dismissal was not contained within the minutes of the disciplinary hearing.  In this context the Court found that Manager’s assertion that he returned the form was not contained in minutes of any of those meetings.  The manager told the Court in evidence that he had no subsequent approach from the Complainant regarding the leave request and that this disclosed a secrecy on his part that undermined the bond of trust between them.  However, the Court found no evidence for this conclusion and in such a context the employer’s conclusion that the Complainant should face charges of Gross Misconduct was excessive.  In findings the Court concluded that “furthermore as the manager was possibly culpable for the misunderstanding and as he had an interest in any investigation into the exchange that took place earlier in the year [regarding the holiday request] any recommendation made by him should have been treated with some hesitation, as its objectivity could have been compromised by what would be a natural desire to present himself in the best light he could” at any subsequent investigation. 

    As this exchange is central to any consideration of how reasonably the Complainant reacted to it the Court would expect that the manager would have been interviewed by the disciplinary proceedings decision maker when deciding what version of events she would accept. However the Court was told that the decision maker, did not interview the manager in this regard or at all. However she chose on the basis of the Minutes of the disciplinary Meeting to accept the manager’s version of events over that of the claimant.  The Court in findings said it can find no justification for such a decision.

    The decision maker in her evidence to the Court said that she found that the manager had returned the leave form to the Complainant and that he could have been in no doubt that the request had been refused. However that is not what the minutes disclose, it is not what the Complainant stated to her when she met him and she never tested the Complainant’s version of events with the manager. Indeed she stated in evidence that she never discussed the matter with the manager at any time. And yet she chose to adopt a version of events that are not disclosed in the minutes of the meeting and was never put to her in the course of her investigation into the matter.

    The Court therefore found that the Complainant was not treated fairly, that the disciplinary hearing was not impartial and or sufficiently rigorous and that the conclusions drawn and sanctions imposed by the decision cannot stand.  Accordingly the Court found that the Respondent had failed to meet the statutory burden placed on it to overturn the presumption that the dismissal was unfair.  The Court then increased the adjudication award of €10,000 to €11,500.
  • Topic - Making Performance Management work in the Workplace

    by Hayleigh Ahearne
    May 10, 2018

    Performance management, when implemented correctly and efficiently can help improve the performance of Employees, which contributes to the better operation of the Organisation as a whole. The Adare Human Resource Management team discuss performance management and the strategic approach performance management.

    Adare Human Resource Management conducted a National HR Barometer Survey which stated that performance management was a priority for 1 in 5 Organisations for 2018.

    There are numerous definitions as to what constitutes performance management, and one worth considering is “Performance Management is about all individuals being clear about what they need to do to achieve expected standards, and how that contributes to the overall success of the Organisation; receiving regular, fair, timely, accurate feedback and coaching to stretch and motivate them to achieve”.

    An effective Performance Management Process:

    An effective performance management process is designed to develop and motivate Employees while providing and giving honest and objective feedback regarding performance. Performance management is one of the key activities that, when successfully carried out, enables Employees know that their contributions are recognised and acknowledged.

    An effective process is one which reflects ongoing communication between the Employer and the Employee that occurs throughout the year, in support of achieving the strategic objectives of the Organisation. The communication process includes clarifying expectations, identifying and setting objectives / goals, providing ongoing feedback and evaluating performance.

    An effective performance management approach positively influences employee engagement. An Employee understanding how their work contributes to overall organisational performance, being provided with career growth opportunities, interesting and challenging work contribute toward an engaged employment levels. Contribute towards higher levels of Employee discretionary effort in the workplace.

    An effective performance management process should be built upon a number of basic principles including:

    1. Joint establishment of goals and objectives;
    2. Clarifying expectations – this makes it easier for Employees to be aware of what they are working toward;
    3. Support should be provided in the development of capacity to meet expectations;
    4. Continuous assessment and the provision of honest feedback;
    5. Focus on learning and development.

    Performance Management Appraisal:

    A performance appraisal is one of the most commonly used means of evaluating individual performance as part of an overall performance management strategy. It is essentially a continuous process in which the Employee and appraiser (typically the Line Manager) discuss and set a number of performance goals, the Line Managers provides ongoing support, coaching and feedback, and results in a formal evaluation at year-end of how well the Employee has performed in achieving those expectations. An effective performance appraisal approach is one which not only reviews and evaluates past behaviours and actions, but is also utilised as a mechanism for focusing on individual learning and development needs in order to enhance future Employee and organisational performance. Performance appraisals are typically used alongside and support other decision making events relating to promotions, terminations, training and merit pay increases.

    Carried out well a performance appraisal process serves a number of purposes and helps to:

    • Focus on the achievement of organisational objectives through alignment to individual performance goals;
    • Facilitate two-way communication between the Manager and the Employee concerning how the Employee is performing;
    • Evaluate performance in a transparent and fair manner;
    • Forward plan and identify key individual learning and development objectives and enable development of these competencies over time;
    • Motivate the Employee by setting challenging and stretching assignments;
    • Is an effective and simple tool to use for both the Manager and the Employee, and
    • Reward performance either through pay or some other type of reward.

    The performance appraisal process should not be viewed as a one off event or stand-alone meeting which must take place once or twice a year. In order to be truly successful, it should be characterised as a process of continuous dialogue between manager and Employee, with formal opportunities for ‘check in’ during the year, in order to evaluate past performance, provide further feedback and agree or revise future priorities.

    Feedback:

    Appropriate feedback is the fundamental basis for any appraisal meeting. Employees should be given honest, constructive information about their performance to aid development and improvement in performance. Unfortunately, many managers experience difficulty when it comes to giving feedback which an Employee may not want to hear for fear the Employee will react badly to it or it will damage the working relationship. As an Appraiser, feedback should be:

    • Positive - Try to start and finish on a positive note. It can be helpful for the person receiving the feedback to know what they did well. Feedback is often seen as criticism and we tend to overlook the positive aspects. Identifying the positive will help reinforce constructive behaviour.
    • Facilitative - Encourage self-criticism. People are more willing to accept feedback when they recognise their own strengths and weaknesses. Start by encouraging them to appraise themselves and then build on their own insights.
    • Specific - Focus on and deal clearly with particular instances and behaviour rather than make vague or woolly statements. If we give clear, direct, open and concrete feedback it is more likely to be understood.
    • Descriptive - Use descriptive rather than evaluative terms. By describing your own reaction, it leaves the individual free to change their approach or not.
    • Actionable - Give direct feedback towards behaviour that the individual can do something about. It can be frustrating to remind them of something over which they have no control.
    • Prioritised - It is difficult for people to change everything at once. Concentrate on two or three key areas for improvement, preferably those where the individual can see a quick return. If there is a major problem, try breaking it down into smaller, step-by-step goals.
    • Constructive - Be constructive with your criticism and keep it factual to avoid emotion. In making individuals aware of their shortcomings, do not just criticise but offer suggestions as to what could have been done differently. Try to turn the negative into a positive.
    • Well Timed - The most useful feedback is given when it is sufficiently close to the event to be fresh in their mind. Take care with your timing. Never give critical feedback in front of others or when you consider the Employee is too emotional to take it on board.
    • Discussed - Don't give the feedback and run. Stay to explore the topic in more detail. Have they taken it on board? Do they want to discuss future action plans in more detail?

    Performance Ratings and how they should work:

    A performance rating answers the basic question as to ‘how well the Employee has performed against the agreed goals and objectives during the reference period concerned’. Rating systems are the most commonly used method of evaluating and measuring Employee performance. ‘Obsessing over the rating scale’ can have a negative effect on the performance management process. Different processes can have a different rating scale and still work as effectively as each other.

    As part of the interim and year-end performance review process, individual performance, including results achieved and competencies demonstrated can be rated on a defined scale against the agreed performance goals or objectives. The scale typically involves a descriptor such as ‘Outstanding’, ‘High Performance’, ‘Doing the Job’, ‘Under Performance’, ‘Unacceptable’ and numerical rankings of performance incorporating anything from one (the lowest performance level) to five (highest performance level).

    In order for Employees performance to be evaluated fairly, the assessment measures utilised should be objective, transparent and applied consistently across the Organisation. An Employees performance rating should be determined based solely on actual performance and should not be dictated by other factors such as Employee function, role or seniority.

    Transparency is a key benefit in performance management so that Employees should feel that they have been fairly evaluated. There are two areas in performance management where transparency is most relevant – the objective setting process and the distribution of ratings. Employees should understand where objectives originate and how they will be evaluated. Do objectives flow from a larger set of organisation or departmental objectives? What impact does their achievement have on the department or organisation results? Employees should also understand who has input into their evaluation.

    Accountability is a key driver of performance management success. If an Organisation is not setting objectives, coaching and doing fair evaluations, it is not leveraging a huge driver of performance.

    Calibration is often utilised as a complementary means of promoting greater fairness and accuracy in the determination of each individual performance rating and aims to effectively deal with problems of subjectivity or inconsistency of rating that can occur because of harder and easier individual appraisers for example. Calibration meetings involve review of the different organisational ratings, a discussion of each Employee’s proposed performance rating and the Manager’s reasons for that rating. Through group discussion, agreement is made on the final rating of each Employee in order to accurately reflect individual performance and which is comparable with the performance of others.

    Managing Poor Performance:

    Managing poor performance is an area many Employers and Employees find difficult to navigate. Often the issue may just be avoided in order to steer clear of an awkward conversation, however this is certainly not effective. Although poor performance can be a difficult subject, following appropriate steps and developing plans to improve the issue of poor performance can ensure both the Employee and Organisation deal with this problem effectively. The following steps should be considered when addressing poor performance:

    • Definition of the problem and its effect
    • Linking the problem to the role requirements or behaviour where improvement is required
    • Seeking the Employee’s opinion as to why the problem is occurring
    • Identifying the performance indicators by which performance will be measured
    • Establishing SMART objectives
    • Developing a performance improvement plan (PIP)
    • Monitoring this plan and measurement against performance indicators

    The first meeting discussing poor performance is often the most difficult. The appraiser should aim to keep the meeting as informal as possible and emphasize why the meeting is being held. An Employees opinion is important as well, asking them to identify why their performance has been lacking or any possible causes can help in finding the correct course of action in addressing poor performance.

    Perhaps the most important and beneficial aspect of this meeting is the development of the performance important plan. The PIP should be draw up as soon as possible, this ensures there is traction and an effort immediately after the meeting to improve. The PIP outlines gaps and concerns in the Employees performance, focuses on the identification of the learning and development activities to take place and addresses these problems by setting objectives and targets. Dates and review of this plan should be arranged also. The plan should be reviewed often and the successes or failings during the plan outlined and communicated to the Employee. The PIP should have the end result of the Employee improving within their role with all previous issues if performance addressed.

    Conclusion:

    Performance Management, when executed correctly, contributes significantly to a more engaged and productive workforce. The process promotes active and ongoing communication and support of accomplishing the strategic objectives of the Organisation.

    Completely implemented, performance management is an all-inclusive process bringing together many of the elements that make up successful people management. Learning and development is an integral piece of this process. While review of past performance typically forms a vital piece of the appraisal process, in order to be successful, it should also be used as a basis for reaching agreement on future areas of learning and development

    All in all, successful Performance Management is a vital contribution to the success of an Organisation, and its Employees, and should be treated this way by Appraisers and Appraises alike.

  • Case Law - Reviewed under the WRC

    by Hayleigh Ahearne
    May 10, 2018
    In this month’s newsletter the team at Adare Human Resource Management consider in detail a number of cases as adjudicated under the Workplace Relations Commission.

    Recruitment Consultant awarded €11,000 for Victimisation

    Adjudication Reference: ADJ-00008025

    Summary of Complainants Case:

    The Complainant commenced employment as a medical recruitment consultant with the Respondent on 3rd January 2017. The Complainant was in possession of a Stamp 1G visa, valid until the 22nd May 2017.

    In the first few weeks of her employment, several HSE- run hospitals assigned their recruitment drives and requirements to the Respondent Company. Throughout January and February, she states that she built up a data base from approximately 10 to 100 clients and built the number of hospitals up to 50. The existing data base was rudimentary. She had acquired contacts previously through social media.

    She advised that she secured a placement for a doctor in January even though her target for January was €0.00. The Complainant contends that this placement generated €7,586 being 15% of the annual salary (the agreed rate of commission) of the person and way exceeded her target for January which was €0.00 and is surely evidence that she was achieving what was expected of her particularly in circumstances where she had to build up a data base.

    After approximately 2 weeks in her employment, the Respondent advised her to improve her knowledge of the English language and to alter her accent so as to sound more Irish. When she was on calls to clients he would frequently be standing alongside her. She states that the Respondent MD also advised how to write emails so as to make it appear that an Irish person and not an Indian or foreign person was writing them. The Complainant stated that the Respondent told her she put too much detail in emails.

    In or about the second week of the Complainant’s employment with the Respondent, the MD advised her to adopt the name Ita, stating it sounded more Irish and that it would make the clients think that she was Irish and could help her to develop business. The Complainant advised she only agreed very reluctantly to the Respondent’s suggested name change. He made the administrative changes to the Complainant’s email being the only person who had access to the administrative functions of the Complainant’s email. A copy of this email with the new name was opened at the hearing. It was not possible for her to change the email address as she did not have the password.

    She states that the MD made consistent derogatory remarks about people from the Indian sub-continent. He belittled the Complainant’s heritage and culture. She states that he criticised Indian people frequently. The Complainant advises that this continued daily up to the date of her dismissal on 10th March 2017. When he returned from a holiday in Nepal, he talked on the phone to friends in front of her stating how bad the traffic was and how bad things were in Nepal.

    She did not make a complaint as the MD was the only other person working in the office and she needed his support for her visa application.

    She was summoned to a meeting on 9th February in a coffee shop adjacent to her workplace. She was uncomfortable in this venue and would have been more comfortable in the office even if there was another Employee present in the office on that date. She had no prior notification of this meeting or its purpose, nor was she advised that she could bring a representative with her. The Respondent advised that he was not happy with her performance; raised concerns about her motivation; the need to make more calls and the necessity to drum up more business. The Complainant challenged this; she was well motivated, had sourced jobs for clients and had developed a data base for the Respondent who up until then had only a rudimentary one. The following day on 10th February 2017 she was given a termination letter. This was wholly unexpected. She was forced to sign this letter on 10th February 2017 as she thought to oppose it would jeopardise her visa application.

    That same day the Respondent tried to retrieve a personal diary/ document from her which she would not allow and so he roughly tore a number of pages from this booklet. The MD took 2 pages of medical consultant contacts and 2 pages of registrar contacts out of her diary. This amounted to about 80% of her contacts. The Complainant had sourced these names and contact details before she took up employment with the Respondent.

    In response to the Respondent’s claim that she had omitted one Employer from her CV she stated that she did so because it was an internship. She denies that she described this Company as a `bad Company’.

    She disputes that she was unpunctual. There were no targets to be reached in first month. The claimant asserts that she met targets in previous employments. The Complainant states that she believes she was dismissed because of her race.

    The Complainant’s representative stated that the primary facts of alleged discrimination set out above must lead to the conclusion that the Complainant was discriminated, harassed and victimised by the Respondent. If that conclusion is not reached the adjudicator should turn her attention to the circumstances of the dismissal -the lack of a disciplinary process as provided for in her contract and the failure to notify the Complainant of her right to representation. The Respondent was in breach of fair procedures and in breach of the Complainant’s contract. No time was given to her to improve.

    Summary of Respondent’s Case:

    The Respondent managing director submitted oral and written evidence. The Company is a long-established recruitment agency sourcing staff for hospitals and the hospitality sector. The Respondent estimates that in the 20 years of employing staff, between 50 -70 % were non- Irish and that he knew the Complainant was not Irish when he employed her.

    The former Employee who introduced the Complainant to the Respondent was also Indian. The Respondent contends that it makes no sense for a fellow Indian to recommend the Complainant to an organisation that would racially harass staff. The Respondent had met the Complainant before she commenced employment and so knew her ethnicity. The Respondent’s submission states that hiring someone is an expensive business and it would not make sense to do other than try and motivate an Employee to reach targets and generate revenue for the Respondent.

    The Respondent was given the Complainant’s CV by a former (Indian) Employee. She impressed at interview and was offered the position at a salary of €22,000   with a view to securing a visa subject to performance and market demands.

    Her letter of appointment states that she is required to generate the following revenue:

    • Month 1 €000
    • Month 2 €3,500
    • Month 3 €8,500

    The Respondent MD advised that there were problems with the Complainant’s telephone manner. She came across as overly formal in her dealings with clients. She explained to him that in India telesales were conducted in a very formal manner. The Respondent stated that the problem was that on occasions the Complainant was almost apologetic when speaking to a client on the telephone. Conversely, he gave an example of an aggressive telephone encounter where she said aggressively “are you listening to me Dr”. The MD advised her to say in future” is this a bad line”? She received video training specific to recruitment business, the MD did role play calls and made calls to clients to demonstrate how it might be done.

    The Complainant was hesitant about making business development calls. She put this down to a lack of confidence and poor response to earlier efforts, and that she was not a native English speaker. Three weeks into the employment she was emailing the MD asking him to make business calls. The Respondent repeatedly referred to her inability or limited capacity to make an effective business call; yes, she would make the call, but getting from there to (1) signing up an applicant to (2) getting a job was a different matter and the revenue yield submitted by the Respondent showed this to be correct summation.

    The Respondent described a lack of motivation manifested in lateness and poor performance against targets.

    The Complainant displayed poor attention to detail. Sometimes she sent CVs to a hospital within a geographical area in which the candidate could not work. One such example was submitted to the hearing. The Respondent would then have to cancel the interview with the hospital.

    The Respondent noticed that she had omitted one job from her CV and this was a matter of concern. When asked about it she said that it was a very bad Company and that the management had a bad attitude. She had been unhappy there.

    The Respondent states that he never asked or suggested that the Complainant change her name. On the contrary, his evidence was that the Complainant suggested 3 times in the first 3 weeks of her employment that she would adopt a more Irish sounding name as she expressed fears that clients were prejudiced towards her when they heard her name. She herself specifically mentioned the names Aisling or Aoife; she liked these names. The MD rejected this as ridiculous and inappropriate explaining. On the third request to change her name, the MD suggested that she could shorten it to Ita instead of other names suggested by the Complainant and it was not a deceptive act (it was the last syllable of her first name.) The Complainant was happy with this and asked the Respondent to make the changes on her Outlook account and on the Respondent’s CRM system. The MD made the changes on Outlook on the admin panel. Contrary to what the Complainant states, she changed her own signature on the email. A copy of an email of 2/3/17 illustrating this was opened to the adjudicator.

    The Respondent set up a meeting on 9th March 2017 to convey his concerns and to explore how they might be addressed. He did not view this meeting as any part of a `disciplinary process’. He met her on 9th March 2017 in a local café, confident that they could not be overheard. It was the venue of her initial interview with the Respondent. No private space was available in the office. He advised her that he was concerned about targets not reached, lack of attention to detail and her manner of making phone calls. He stated that she became agitated and disagreed with the Respondent’s statements and analysis. The Respondent stated that he was dumbstruck when the Complainant stated. “J, I changed my name for you. I am very proud of my name and this shows how dedicated I am.” The Respondent states that he replied that she, not he, had asked on 3 occasions if she could change her name and it was only on the third occasion that he agreed. The Respondent states that the Complainant then said that she had been only joking about a name change. He felt now that he had lost all trust and confidence in her. He terminated the meeting and said they would reconvene on 10 March and both could think about matters overnight.

    Overnight he considered the accusation that he coerced her into changing her name, her poor performance and the continued cost to him of employing her. He reflected as to whether he could turn the situation around and concluded no.

    He had also noticed on the 9th March the Complainant transcribing details into a black book.

    On 10th March, he handed her a letter terminating her employment. It appeared to the Respondent that she was transcribing personal details of the Respondent’s clients into this black book – information which was confidential to the client, in breach of GDPR and her contract of employment. He asked her about this. With the complaint’s consent the MD removed 4 pages from this black book. They contained the names of medical consultants and registrars this did not as asserted by the Complainant constitute 80% of her book, nor were the pages taken roughly from her. This was corroborated at the adjudication hearing by a witness for the Respondent, the daughter of the MD, who was present in the office on the day. It also became apparent that she had taken details personal to her previous Employer, specifically a confidential email with details of that Employer’s clients, which she was now using to develop business for the for the Respondent. The Respondent stated that it was difficult to know from which Company the candidates’ details were drawn.

    The Respondent challenged her claim about securing a contract worth €7,586 to the Respondent. She secured a three-month contract for a Doctor to the value of €1,700, realisable only after April. The offer was made on 13th February, but the doctor did not start until April (after she had left). The Complainant’s target for February was €3,500 for revenue invoiced. Revenue secured by her at the date of termination was €0.00. The sum of €1,700 was transferred to the Respondent in April, after she had left.

    The Respondent disputes that he had any racial motives in terminating the Complainant’s employment.

    The Respondent states that the Complainant was never subjected to any racial remarks or taunts. The MD was very interested in her culture and had many conversations with her about her family in India. Undermining someone would be counterproductive.

    Legislation:

    The Employment Equality Acts, 1998-2012 - set out a statutory framework to uphold equality in Irish workplaces.

    Decision:

    The Adjudication Officer must decide on the basis of the evidence, the statutory provisions and the authorities if the complaint of discrimination, harassment and victimisation on race ground is well founded.

    On cross examination by the Respondent’s legal representative, the Complainant accepted that she had mistaken the dates of the meeting in the cafe with the Respondent MD and the date of the dismissal and accepted that these events took place over the 9th-10th March as contended by the Respondent and not the 9th- 10th February as contended by herself.

    The Complainant also accepted that there were inaccuracies in her CV submitted to the hearing and in the periods of employment. She advised that her previous Employer had agreed to extend the period of her employment with them so as to erase from her CV her employment with the Respondent

    The Complainant stated that she did not sign the letter of 10th March 2017 and then corrected herself and stated that she was forced to sign the letter which was an acknowledgement of receipt of letter of termination.

    Having considered the conflict in the evidence and based on the balance of probabilities, the Adjudication Officer did not find that the evidence advanced moves the probative burden to the Respondent. The Adjudication Officer did not uphold the complaint of harassment contrary to section 14 A (7) of the Acts.

    Having considered the conflict of evidence, and on the balance of probabilities, he Adjudication Officer did not find that the facts are sufficiently credible or significant to transfer the probative burden to the Respondent. The Adjudication Officer therefore did not uphold the complaint of discrimination on grounds of race.

    The protected act triggering the dismissal was the Complainant’s statement to the Respondent on the 9th March 2017 that “I changed my name for you”. This constituted the complaint of discrimination to the Employer. The Adjudication Officer did not found that the evidence supports the Complainant’s contention that the Respondent made her change her name to a more Irish sounding name. The Adjudication Officer did not uphold the Complainant of discrimination or harassment based on this and other alleged instances. But proof of the discrimination claimed of is not required to make a complaint of victimisation, merely that the complaint of discrimination has been made to the Employer and it is this statement or protected act which prompted the decision to dismiss.

    The Respondent’s explanation for the dismissal, contained in the letter of dismissal on the 10th March 2017 was that her “performance and motivation levels have fallen fall short of my expectations”. His evidence at the hearing identified her statement to him of the 9th March 2017 and his legitimate concerns about respect for confidentiality of client details, not put to her until the 10th March 2017.

    It is hard to avoid the conclusion that the Complainant’s statement was, if not the trigger, then far more than a “trivial factor” driving the dismissal as the Respondent moved from a non – disciplinary process meeting on the 9th March 2017 to a summary dismissal the next day. One week’s paid notice was given. What changed overnight to move him so swiftly to that stage on the 10th March 2017 with a total absence of fair procedures; no advance notification, right to be represented, no appeal as provided for in the Respondent’s disciplinary procedures. The only significant difference between the 9th and 10th March was her complaint to him.

    Based on the evidence submitted, The Adjudication Officer found that the complaint made to the Respondent on the 9th March 2017- the protected act constituted more than a trivial factor in the decision to dismiss her. The Adjudication Officer found that her dismissal on the 10th March 2017 was an act of victimisation contrary to section 74(2)(a) of the Acts.

    The Adjudication Officer found that the dismissal of the Complainant on the 10th March 2017, the maximum penalty at the disposal of the Respondent, was an act of victimisation and in breach of section 74 (2) of the Acts. Having regard to all the evidence and all of the circumstances the Adjudication Officer awarded the Complainant the sum of €11,000 in compensation which is equal to six months’ salary as redress for this breach.

    Adare Human Resource Management Commentary:

    Employment equality is a rapidly developing and complex area of the employment relationship in Ireland.  As the demographics of the Irish workforce continue to change, this area will continue to present challenges to Employers in Ireland in the future.  However, such diversity in the workforce brings substantial benefits to Employers who promote workplace equality and diversity and tap into these workforces. 

    As a result, this is an area of great importance to Employers, and one which can present great exposure to the risk of claims by both Employees and applicants for employment.  Aside from the compensation that may be awarded where a case arises – as seen in the above case, the negative publicity that is generated by an equality claim can be extremely damaging to an Employer’s reputation.  This is despite the fact that, in many cases, the Organisation did not intentionally discriminate, or was simply unaware of its responsibilities. 

    As a result, it is strongly recommended that all Employers ensure that they are aware of their responsibilities in relation to equality in the workplace.

    ____________________________________________________________________________________________________________

     

    Complainant awarded €6,000 for Unfair Dismissal as Policies and Procedures were not adhered to

    Adjudication Reference: ADJ-00009695

    Summary of Complainants’ Case:

    The Complainant is a Polish National. A Polish Interpreter attended the hearing. He commenced work as a Fridge Mechanic on 1st November 2015 and worked until his dismissal on 23rd May 2017. He worked a 40-hour week in return for net pay of €430 per week. He was represented by the Independent Workers Union who presented the case via written and oral submissions. The Complainant had not attained sufficient contributions to secure a Job Seekers payment post dismissal. The Complainant sought the remedy of compensation.

    The Complainants Representative outlined that he had been employed for the best part of 18 months and had worked at a satisfactory level. He was shocked to learn of his dismissal.

    The Complainant received a letter from the Respondent dated 26th April 2017. He was informed that “a serious allegation had been made in respect of you driving customer vehicle” He was alerted to a forthcoming investigation where his side of the story would be heard. He was asked to refrain from driving any vehicle belonging to any of the Respondents customers.

    The allegation referred a Home Delivery van which had been driven over the speed limit on 8 occasions over the course of 2 hrs and there was no dispute on fact .The allegation also encompassed a reference to aggressive driving, which had been picked up on a vehicle tracking device. The Complainant was denied any chance of natural justice, a fair disciplinary process or appeals procedure. The Incident had occurred on April 21st 2017 and the complainant worked continuously until May 26th 2017. He was not party to the Investigation.

    He learned of the outcome of the investigation at a meeting with the Respondent on May 23rd 2017 and was let go. The Union requested reasons for the dismissal on May 26th 2017.

    The Complainant told the hearing that he received a letter dated April 21st and was informed that an Investigation would follow. He was removed from on call during the investigation. One month later, he was told that the Boss had arrived and wanted to talk to him. He was let go with immediate effect and did not access to appeal. He had no knowledge of grievance or disciplinary procedures. The meeting lasted 5 minutes. He gave evidence of loss and had secured new work on June 26th 2017.

    Summary of Respondent’s Case:

    The Respondent rejected the claim. The Respondent, who had 100 employees was represented by the Head of Service and submitted a written statement in defence of the claim on 14th August 2017. He submitted that on 21st April 2017, the complainant was driving a vehicle belonging to a customer, a home delivery van.

    Over the course of two hours the vehicle was driven over the speed limit 8 times within the ranges of 20 km a 34 km over the speed limit. This was accompanied by harsh cornering, acceleration and braking, which were picked up on the vehicle tracking system. Details were presented at the hearing via an audit report. This record formed the basis of a next day notification. This placed the Respondent in a vulnerable position in their customer’s eyes as driving over the speed limit was both illegal and dangerous and did not constitute acceptable behaviour at the company.

    The Respondent wrote to the complainant on April 26th 2017 and informed of the allegations. The allegations were investigated and concluded that as the customer did not want the complainant driving their vehicles again, the respondent had no option but to dismiss him as it would have been impossible for him to carry out normal duties if he could not drive a customer’s vehicle. On May 26th he was dismissed with immediate effect by the Respondents General manager.

    The Respondents Representative told the hearing that the Tracking system had confirmed that the complainant had 8 speeding events in less than half an hour. The Drivers, including the complainant had been spoken to on safety within the previous month. The Complainant was stood down from driving company vehicles and the investigation ensued.

    The Senior Management Team looked at the material and the facts and the General Manager met with the complainant and informed him of his dismissal. This meeting lasted 10-15 mins. The head of service submitted that the issues complained of were not acceptable to the company.

    The Respondent also submitted that the offence was at a level of gross misconduct and the company had thought long and hard before deciding on the dismissal.

    The customer vehicle was part of a fleet but the respondent had other customers. The Complainant had received an overpayment and the Respondent submitted that his loss was somewhat diminished by this fact.

    Legislation:

    The Unfair Dismissals Acts, 1977 – 2015 set out to provide redress for Employees who are unfairly dismissed from employment. However, as well as establishing automatically unfair grounds for a dismissal, the legislation also sets out fair reasons for dismissal of an Employee.

    To justify a dismissal, an Employer must show that it resulted from one or more of the following cases:

    1. The capability, competence or qualifications of the Employee for the work she/he was employed to do;
    2. The Employee’s conduct;
    3. Redundancy;
    4. The fact that the continuation of the employment would contravene another statutory requirement or that there were other substantial grounds for the dismissal.

    Decision:
    It is important to commence with the back drop of the commercial reality for the respondent. The van at the centre of the allegation was the property of their largest customer and while the respondent had other customers, the largest customer featured as being highly centric to the case. The Adjudication Officer accepted that the Respondent felt obliged to protect their business with the largest customer. However, the Respondent was also obliged to balance this against the right so the employee to access to natural justice and fair procedures in the face of allegations. There is no such thing as an open and shut case. As Walsh J stated in Glover V BLN ltd [1973] IR 388

    The Obligation to give a fair hearing to the guilty is just as great as the obligation to give a fair hearing to the innocent.

    The Complainant did not dispute the facts of the case. Instead, his arguments surrounded a vacuum of natural justice and a breach in terms of fair procedures in relation to how the complaint was dealt with.

    The allegation was first brought to the attention of the complainant by way of letter dated April 26, 2017. A reference to “serious allegation“ was set out but not expanded on. The Adjudication Officer found that the complainant was not appraised of exactly what he was meant to be accused of.

    Neither party presented copies of the company procedures in relation to Disciplinary procedure. The complainant was simultaneously stood down from driving any vehicles. There was no reference to any procedures in this regard. The company then went on to hold an investigation which did not invite a response from the complainant. He was not permitted sight of all the evidence, the right to cross examine his accusers or to rebut the evidence.

    The complainant was entitled to state his case and be heard in own defence with a chosen representative. The unilateral investigation constituted a major omission in this case which goes to the heart of unreasonableness.

    In circumstances, such as these the Code of Practice on Disciplinary Procedures S.I 146/2000 is a very useful document as it sets out a road map of procedures required.

    The Adjudication Officer appreciated that the Complainant was in possession of 5 penalty points at the time of the incidents referred to and this was a cause for concern for the Respondent. The Adjudication Officer accepted the point made by the Complainants Representative that with the exception of the complainants step back from driving, he was permitted to remain at work until the date of the dismissal. It is of particular note that the complainant was a Polish National and best practice would indicate that he should have been treated more sensitively.

    Activation of a Disciplinary procedure is meant to be recognised as corrective rather than punitive and the Adjudication Officer noted that the Complainant had a clean record in that regard at the time of the incident said did not meet the Dismissal decision maker but the Adjudication Officer was clear from the evidence given by the management team that no sanctions short of dismissal were actively considered the respondent did not furnish a response to the Union letter seeking reasons for dismissal dated 26th May.

    The Labour Court in Swiss port Ireland ltd and Pejazyr Cakolli, UDD 1759, determined that the dismissal on grounds of “gross misconduct“ in relation to an alleged failure to carry out reasonable instructions was unfair. In that case, the Court awarded maximum compensation in respect of serious procedural deficits identified in the case. It is of note that the complainant contributed to the investigation, dismissal and appeal process in that case.

    In the instant case, the Adjudication Officer could not establish just when the complainant was placed on notice of being considered for gross misconduct. The Adjudication Officer could only assume that it was at dismissal stage, which is too late.

    Having taken account of all the circumstances advanced, The Adjudication Officer found that the complainant was unfairly dismissed on a substantive and procedural basis. The Adjudication Officer must, however find that he made a 10% contribution to the dismissal.

    The Adjudication Officer found that the Complainant was substantively and procedurally unfairly dismissed. The Adjudication Officer recommended that the Respondent undertakes an immediate review of their policies and procedures on Grievance and Disciplinary procedures to activate them into live and relevant documents.

    The Adjudication Officer order the Respondent to pay the complainant €6,000 euro in compensation in respect of the financial loss associated with his dismissal. This amount is to take account of notice, compensation and an element of prospective loss and takes account of the complainant’s contribution to his dismissal.

    Adare Human Resource Management Commentary:

    In accordance with legislation, all dismissals are considered unfair, unless the Employer can demonstrate otherwise. Therefore, the Employer must demonstrate that a reasonable decision was made in dismissing an Employee and that a fair procedure was followed.  In order to do this, it is important that the Employer retains adequate documentation of the disciplinary process.

    The Code of Practice requires that the disciplinary procedure be applied progressively where appropriate, and that greater sanctions may be imposed over time.  Therefore, every disciplinary procedure is required to have a number of steps, as outlined here:

    1. Informal Pre-Disciplinary
    2. Verbal Warning (always to be confirmed to the Employee and recorded in writing)
    3. First Written Warning
    4. Final Written Warning
    5. Dismissal

    In the majority of cases, these stages should be applied progressively. Additional sanctions may also be imposed, these should be documented in the disciplinary procedure.

    ____________________________________________________________________________________________________________

     

    €2,483.96 awarded to Complainant – frustration of contract argument questioned

    Adjudication Reference: ADJ-00007873

    Summary of Complainant’s Case:

    English was not his first language and he required the assistance of his daughter to translate documents in English.

    At the meetings, sometimes a translator was present and sometimes the translator was located in a different meat factory and would translate over the phone for him as the meeting went on.

    He had received the staff handbook at the commencement of his employment. This was in Portuguese. He confirmed he still had it.

    His role was packing products in the slaughter house and he had been working for the Respondent for sixteen years. His evidence was that he had an accident while working for the Respondent.

    The complainant confirmed that he did meet with the Respondent’s medical experts. He also met with HR when required.

    He gave evidence that there were so many meetings (with HR) that he couldn’t remember what was said at the meeting of the 10th August 2016. He said he could barely remember them.

    He acknowledged receipt of the correspondence 26th August 2017 terminating his employment and agreed that he did not make an appeal. The reason that he didn’t make an appeal was that he couldn’t go back to work and “they” (the Respondent) was pushing him to make a decision. He further gave evidence that his daughter wasn’t around at the time to help him to make an appeal. He believed he would have to make his appeal in English.

    He never saw a medical report.

    He confirmed that he had a general knowledge of what the options were:

    1. Go back to work, or
    2. Resign

    The time limit given to him to make an appeal was too little. It was 5 days.

    He gave evidence that while he went to a solicitor in relation to seeking advice on a potential personal injury claim, but he relied on his daughter to translate.

    He was in receipt of wages of €620.99 per week gross. He had not worked since the termination of his employment and was in receipt of a social welfare invalidity payment.

    His representative submitted that there was no written evidence that alternative roles were considered or that the Respondent had a definitive medical report that he would never return to work as a boner.

    Summary of Respondent’s Case:

    The Respondent’s case was that the Complainant was reviewed on seven occasions by the Respondent’s occupational health physicians between the 8th of May 2015 and the 13th of June 2016.   There was also ongoing correspondence with the Complainant’s GP and the Complainant was also reviewed by a consultant in emergency medicine in January 2015.

    The Complainant did not return to work and his role was held open for him for two years after his absence in March 2014.

    He was met by HR on the 21st of June 2016 and the HR manager explained that his employment was being placed under review. The Complainant advised that he was on the urgent list for surgery. The Complainant was advised that there were no suitable alternative roles on site with his current medical limitations.

    The Respondents representative noted that the Respondent retained hand written minutes of the meeting on the 21st of June 2016. It was confirmed that these minutes were not sent to the Complainant but were read through at the meeting with the translator in the Complainant’s presence.

    Counsel for the Respondent submitted that it was not the Adjudicator’s role to substitute its views for that of the employer, but rather to establish whether or not the decision to dismiss was within the "band of reasonableness”. She referred to the requirements of Section 6(4) of the Unfair Dismissal Act and the four grounds set out in the decision of Lardner J in Bolger -v- Showerings (Ireland) Limited [1990] E.L.R. 184 namely

    1) It was the ill -health which was the reason for his dismissal

    2) That this was a substantial reason

    3) That the employee received fair notice that the question of his dismissal for incapacity was being considered and

    4) That the employee was afforded an opportunity of being heard

    Following numerous meetings and medical assessments, the Respondent wrote to the claimant in his native Portuguese on the 4th of August 2016 asking for submissions as to why his position should remain open. The submissions were required to be lodged with the Respondent on the 10th of August 2016 at 2pm.

    A meeting took place on that date. A translator attended the meeting. The minutes of the meeting were produced to me.

    Ultimately the Respondent issued a letter of termination of employment dated the 25th of August 2016 which was again translated into Portuguese and hand delivered to the Complainant. This letter contained the content “your contract has therefore become inoperable and in the circumstances, I have decided to terminate your employment with [Respondent] on the grounds of frustration”.

    Legislation:

    The Unfair Dismissals Acts, 1977 – 2015 set out to provide redress for Employees who are unfairly dismissed from employment. However, as well as establishing automatically unfair grounds for a dismissal, the legislation also sets out fair reasons for dismissal of an Employee.

    Decision:

    The Adjudication Officer noted that the Respondent has relied on for its defence on the legal principle of frustration of contract and also on the fact that the Complainant did not appeal the decision to terminate his employment. Oral submissions were made in relation to section 6(4) of the Unfair Dismissals Act 1977 as amended. 

    If the application of the principle of frustration is accepted, the contract comes to an end and the Complainant can no longer rely on statutory rights which depend on a dismissal, such as his unfair dismissal claim or minimum notice claim.

    The Adjudication Officer noted in this case the Respondent did pay the Complainant his minimum notice.

    The general principle is that frustration of contract only applies where there has been some extraneous change of situation not foreseen or provided by the parties at the time of entering their contract, which makes it impossible for the contract to be performed or at least renders its performance significantly different from what the parties contemplated when they entered the contract.

    However as with every dismissal, the Respondent must be able to justify the termination and must follow fair procedures in the dismissal process.

    The doctrine of frustration arises by operation of law. Thus, the courts have tended to interpret this doctrine narrowly and are slow to treat a contract of employment as frustrated.

    What struck the Adjudication Officer most particularly at the hearing was that the Complainant seemed to have absolutely no English whatsoever and relied entirely on the translator and on his daughter who was accompanying him to the hearing. The Adjudication Officer noted that he is a boner/butcher and would be aged 60 at his next birthday.

    The Adjudication Officer noted that the Respondent obtained several medical reports over the period of the Complainants absence on sick leave and the evidence given to me was that these were discussed at meetings with the Complainant. It did appear that not all of these medical reports were provided to the Complainant.  The Adjudication Officer noted that there was correspondence with the Complainant’s GP and he provided to the Respondent details of MRI results, orthopaedic letters, pain management clinic letters, and physiotherapy letters. The minutes of the meetings while reviewed with him on the day with benefit of the translator, were never furnished in writing to him.

    The Code of practice on grievance and disciplinary procedures SI 146 of 2000 sets out examples of what procedures should be complied with in accordance with general principles of natural justice and fair procedures.

    The Adjudication Officer noted that that the Respondent did not provide the documents on which the decision to terminate his employment were made to the Complainant himself, on making that decision. The Respondent argued that a number of these documents were provided by the Complainant’s GP to the Respondent.

    The Adjudication Officer also noted the evidence of the Complainant that he barely remembered what was happening in some of the meetings and his comment that there were so many meetings.

    The Adjudication Officer noted that the Complainant continued to send in sick certs after the letter notifying him of the termination of his employment. He sent in a sick cert on the 19th of September 2016.

    The Adjudication Officer was also struck by his comment that he thought he had to make his appeal in English.

    The Adjudication Officer also noted that the Respondent was in a difficult position and the evidence of the HR manager was very credible.

    However, taking all of the above into account, The Adjudication Officer found in the circumstances of this this case that it would have been reasonable for the Respondent to provide all the documents on which it based its decision to the Complainant with its letter of termination. This is an element of procedural fairness and in the circumstances of this case for the Complainant to have an opportunity to be heard - and bring an appeal - he needed to be in physical possession of the information on which the Respondent made its decision.

    For the procedural breach as outlined above the Adjudication Officer found that the Complainant was unfairly dismissed. As he was not in a position to minimise his losses, the Adjudication Officer awarded him a payment of four weeks gross pay amounting to €2,483.96 taxable in accordance with the Revenue rules on termination payments.

    Adare Human Resource Management Commentary:

    In accordance with legislation, all dismissals are considered unfair, unless the Employer can demonstrate otherwise. Therefore, the Employer must demonstrate that a reasonable decision was made in dismissing an Employee and that a fair procedure was followed.  In order to do this, it is important that the Employer retains adequate documentation of the disciplinary process.

    The Code of Practice, S.I. No. 146/2000 - Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures), clearly provides the procedure for dealing with disciplinary issues and all Employers would be strongly advised not only to ensure their respective policy and procedure mirror the requirements under the code, but then the procedure is consistently applied should an issue arise in this area.

  • Help Desk - Drugs and Alcohol in the Workplace – what Employers need to be aware of

    by Hayleigh Ahearne
    May 10, 2018

    It is important that Employers are clear as to what their obligations are if an Employee attends for work under the influence of intoxicants. Being under the influence of an intoxicant in the workplace can lead to accidents, poor performance and behavioural difficulties, and may be dealt with by Employers as a disciplinary issue. All Employees much ensure that he or she are not under the influence of an intoxicant to the extent that he or she is in such a state as to endanger his or her own safety, health or welfare at work or that of any other person. Employers have a statutory obligation to take all reasonable steps to eliminate or reduce risks of unsafe work environments, to include risks created by Employee substance abuse, having a policy and procedure in place to test Employees for intoxicants may be merited.

    Testing

    There is no statutory requirement for Employees to undergo testing in relation to being under the influence of intoxicants; similarly there is no requirement for Employers to test Employees for intoxicants. Employers may carry out drug and alcohol testing only where it has been provided for in either the contract of employment, the Employment Policies and Procedures such as the Employee Handbook, or with the Employee’s express consent. Even then, the testing must be proportionate and reasonable. Where the Employee is consenting to the testing, the Organisation must notify the Employee in advance of the testing occurring, the extent of the testing which is to be carried out, and potential implications should there be a positive result received.

    There are three main types of testing that Organisations can carry out:

    1. Pre-Employment Testing
    2. Random Testing
    3. With-cause Testing.

    Subject to the contractual terms and/or policies outlined above, any Employee suspected of being under the influence of intoxicants or involved in a work related accident may be subject to with-cause testing. This should be conducted in conjunction with an occupational medical advisor. This is to be applied in circumstances where any Employee appears to be under the influence of an intoxicant and therefore would be in breach of the policy within the Organisation.

    The judgement as to whether with-cause testing needs to be applied can be based on a number of factors including the following; apparent disorientation, unsteadiness, slurring of words, smell of alcohol, admitted or observed taking of illegal or non-prescribed drugs or volumes of alcohol which might cause the legal limit for driving to be exceeded.

    It is advisable that in all cases, prior to an Employee being requested to undergo with-cause testing procedures, that more than one person will have submitted an opinion as to the existence of circumstances or conditions sufficient to warrant testing. For example a manager on duty at the time (or staff member) in addition to another manger on duty at this time.

    The below case [ADJ-00006443] shows how when testing is carried out correctly and in line with the Organisation policy it can be deemed fair:

    “The complainant claimed that he was unfairly dismissed by the respondent for gross misconduct for failing a random alcohol breathalyser test. He claimed that he was not at work at the time but rather at an induction training session, his work was not scheduled to start until the following day and the respondent did not take that into consideration in its decision to dismiss him.

    The respondent claimed that for all intended purposes the complainant was at work and was being paid to attend the induction training session. The respondent claimed that the complainant’s failed alcohol breathalyser test was a serious matter due to the nature of the industry that it operates in. It claimed that this could have had serious health and safety implications and constitutes gross misconduct.

    The Adjudication Officer found that the actions of the respondent were within the range of reasonable responses open to it and that substantial grounds did exist to justify the complainant’s dismissal.”

    This is a second case that shows when testing is carried out correctly it can be deemed fair

    ADJ-00003564 - A Complainant v A Meat Processing Plant”. This case involves a worker with 3 years’ service in a meat processing plant. The Employee failed a random drug test on February 22nd 2016 with three times the allowed limits of cannabinoids in his system and was subsequently dismissed. The Employee believed the real reason for his dismissal was due to the complaints he made to the company in relation to occupational injuries he had suffered while working for the Company. The Employer argued that the complainant had been dismissed following a thorough procedure, and also stated that the nature of the Employee’s work means he must use knives which require training and focus. The Adjudication Officer stated that the Employer conducted a drug test which it is allowed to do under its company policy. The consequences of an Employee failing the test were well documented, an investigation followed and the Employee had the right to representation at all times and he choose not to internally appeal the dismissal decision. The Employee’s case for unfair dismissal was determined to be not well founded and as a result the dismissal was upheld.

    Policy

    An Organisation should have a clear and detailed drug and alcohol / intoxicant testing policy in place should this testing be required in the Organisation. Such a policy should include details in relation to intoxicants in the workplace, how an instance where there is a positive case of intoxicant will be dealt with, and the possible consequences of testing positive for such an intoxicant, that this may be considered to be gross misconduct, and will have consequences up to and including dismissal. Like all other policies, this policy should be very clearly worded and easy to comprehend. Organisations should carefully consider whether there is a need to carry out such testing, as the third party forums may not look favourably on random testing of Employees just on a whim. Testing can be viewed upon more favourably in safety critical industries, where being under the influence of such an intoxicant may have huge impact.

    The below recent case shows the impact of an Organisation not abiding to its own policies and procedures;

    The below case [ADJ-00003033] A Former Employee of a regional airport was awarded over €5,000 in the Labour Court over a case of unfair dismissal. The worker had been fired from his role as a search unit officer, with the reasons given for the dismissal including “his support for the use of cannabis for medicinal use” and “his passionate advocacy of an illegal drug and his declared position as a cannabis activist”.

    The worker took a case believing that he had been sacked for his “political beliefs” on cannabis and sought redress.

    The Labour Court did find flaws in how the company approached the dismissal. It said: “Having carefully considered the facts as presented to the court, the court is satisfied that the respondent proceeded to dismiss the complainant without informing him that it had deemed his actions as ‘gross misconduct’ contrary to its disciplinary procedure. Instead it relied on the outcome of the disciplinary hearing to justify summary dismissal. Furthermore, and against the company’s substance abuse policy, no referral was made to the chief medical officer on his behalf.”

    Because of this, a ruling was made that this amounted to unfair dismissal. However, despite the complainant wishing to be reinstated to his job, the Labour Court determined that wasn’t the appropriate course of action, and awarded him compensation instead.

    Before a policy can be implement consideration will need to be given to:

    • How often the tests will need to be conducted?
    • Where will the tests take place?
    • By whom will the tests be carried out by - tests should comply with the European Standard EWDTS and comply with the International Standard for Laboratories (ISO 17025).
    • What tests will be used – hair, blood, urine, breathalyser?
    • Data protection – how this information will be stored?
    • Positive tests – what are the implications of same?
    • If an Employee discloses or it is identified through screening that they have a drug or alcohol dependency how will the company support it.  If it is considered a disability under the Employment Equality Acts, consideration will need to be given to reasonable accommodation and this should be treated in the same way as staff with other health problems.
    • The role of the supervisor and manager in implementing this policy.

    Rolling out the policy

    • Conduct mandatory training with staff in relation to the dangers of intoxicants.
    • Advise Employees on the importance of health and safety – risks associated with operating machinery under the influence of intoxicants.
    • Provide details on how the testing will be carried out, where, by whom, how staff will be selected.
    • Advise of the potential consequences of testing positive and non-cooperation with testing.
    • Send a memo to all staff which requires staff to sign an acknowledgment of reading and understanding the policy.
    • Conduct training with all supervisors and managers on the procedures of dealing with instances where an Employee is or there is a suspicion that they are under the influence of intoxicants.

    Conclusion

    It is clear that while in some circumstances it may be reasonable to dismiss an Employee who attends for work under the influence of alcohol and/or drugs, or who fails an intoxicants test – Employers still need to adhere to their workplace policies. In addition, each case should be assessed on its own particular set of facts to decide what sanction is appropriate in the circumstances. Factors such as risk to safety, the level of responsibility, if the Employee has contact with the public should be taken into account in deciding whether or not the penalty of dismissal is a reasonable and proportionate response in the situation.

  • Workplace Relations Commission Mock Adjudication Hearing - April 17th 2018

    by Hayleigh Ahearne
    Apr 23, 2018

    Adare Human Resource Management leading experts in Employment Law, Industrial Relations and best practice Human Resource Management, recently held a Workplace Relations Commission Mock Adjudication Hearing.

    This event provided attendees with a unique opportunity of first-hand experience from the comfort of their seat to learn directly from an Adjudication Officer and Senior ER/IR Practitioners. It aimed to equip all attendees with the framework needed to navigate the adjudicating process and the confidence to effectively manage claims.

    To view the highlights from the event, and listen to the Podcast from the day, click here.

  • Court Says Permanent Overtime Payment Not Pensionable

    by Hayleigh Ahearne
    Apr 23, 2018

    It is not at all uncommon that, for the purposes of argument, a party to a dispute may argue the logic of one piece of legislation in order to attempt to win an argument on another.  This is often the case in individual IR Act cases.  Such cases from a strict legal point of view are not legally enforceable.  However, they hold significant moral weight, and within a unionised setting, IR Act Section 13 cases are all but binding on the parties particularly once the process has concluded through the appeal process to the Labour Court.

    In a recent case that could have had a profound impact on the employer’s pension scheme the Labour Court overturned an earlier WRC Adjudicator Recommendation that a worker’s overtime payments were reckonable for pension purposes.  The case (CD/18/46), originally brought by SIPTU on behalf on their member at Teagasc (the Agriculture and Food Development Authority) related to a claim by SIPTU to the effect that the worker’s overtime pay was pensionable earnings and the WRC Adjudicator upheld this claim.  The employer, Teagasc, appealed this finding to the Labour Court.  

    The Union said that the worker meets the normal criteria relied upon in the public service for the inclusion of overtime for pension purposes.  The employer said that there is no provision, explicit or implicit, within the Teagasc Superannuation Scheme that provides for overtime in certain circumstances to be deemed as pensionable pay.  The matter was referred to an Adjudication Officer for investigation and Recommendation.  On the 8 January 2018 the Adjudication Officer issued the following Recommendation:-

    “Accordingly, as the overtime in this case was worked on a weekly basis for a period of some 14 years it has to be seen as effectively a part of salary and proper for reckoning as a pensionable payment.  The Employer appealed the Adjudication Officer’s Recommendation to the Labour Court.

    The Court noted the detail supplied as regards the Superannuation Scheme in operation in Teagasc and noted that this scheme has application to 1,200 (approx.) current Employees as well as retired members. The scheme terms contain a provision for the resolution of disputes which was not utilised by the Claimant to address his concerns.  The matter before the Court is a claim for the inclusion of regular and rostered overtime for calculation of pension purposes. The parties are in dispute as regards whether the overtime performed by the Claimant was compulsory or optional.

    The Court took the view that the claim is, effectively, for a “re-design / re-structuring” of the terms of the Teagasc Superannuation Scheme as it applies to the working of overtime and so any concession of such a claim would have implications for the pension arrangements of all members of the scheme. The Court said that in this circumstance it would be inappropriate to deal with such a claim on the basis of a claim from a single individual and therefore cannot recommend concession of the Trade Union’s claim.  The decision of the Adjudication Officer was set aside and the employer appeal succeeds.

    Reckonable Pay

    From a reading of the case it looks pretty certain that the worker’s fixed and regular overtime would constitute reckonable pay for the purposes of holiday pay, redundancy or notice and in this context there is argument as to what is de-facto “base” pay.  Employers are reminded not to take it for granted that because something is noted or headed on a pay-slip as overtime or bonus that this payment is not legally constituted as “base”.  The contract of employment and company policy must make this absolutely clear and likewise there can be no ambiguity that the Employee understands this and has signed his / her contract and received copy of company policy / handbook etc.  In short, had the above dispute related to notice, redundancy or holiday payment under those respective Acts then the likelihood is the Adjudicator finding would have stood in that particular circumstance. 

  • Unfair Dismissal Upheld After Worker Was Only 7 Weeks Employed

    by Hayleigh Ahearne
    Apr 23, 2018

    Very often the incorrect preconception that an Employee must be in employment within the organisation for 12 months in order to qualify for protection under the Unfair Dismissal Acts exists.  Of course HR professionals would be well aware that there are exceptions to this under, for example, trade union, equality and maternity provisions etc.  However, it is fair to say that in general employers are of the mistaken view that once dismissal takes place before 12 months service is reached by an Employee that they are immune from the provisions of the Unfair Dismissals Act – not so.

    In the case under review below an employer was found to have breached the Unfair Dismissal’s Act by terminating the employment of a female worker who was employed by the Company in question for only 35 days from commencing employment to dismissal.  In this case, the Employer appealed the outcome of the WRC Adjudication in the matter to the Labour Court only to see the Court not only uphold the decision of the Adjudicator but to also increase the award of compensation.  There are lessons for Employers in this, not least gaining understanding of the possibility of not only losing an appeal but having an award against one increased and matters then becoming public knowledge via the Labour Court web-site – most important considerations. The case in point (UD/17/12) involved the parties Western Brand Group Limited (respondent) and A. Petrova (claimant).  

    The Claimant was employed by the Respondent Employer from 24th November 2015 until the termination of her employment on December 29th 1015.  The Claimant was advised by phone on 29th December 2015 that she was being dismissed due to her “unavailability to attend work”.  She subsequently received a P45 from the Employer identifying the 18th December 2015 as the date of cessation of employment and the fact of dismissal was not in dispute.

    Employer Appeal

    The Appellant submitted that the Claimant provided a medical certificate of unfitness for work from 17th December 2015 to 28th December 2015. That certificate did not specify the illness of the Claimant. She subsequently received a certificate from Dr. B stating that she was unavailable for work due to illness for one week from 22nd December 2015. That certificate identified her illness as ‘post d/c miscarriage’. The certificate was left into the Appellant’s reception on the afternoon of 23rd December 2015. The offices were closed from 24th December 2015 to 28th December 2015 inclusive. The certificate was not seen by the payroll department until 29th December 2015.

    A further medical certificate was received by the Appellant on 29th December 2015.

    On that same date the Claimant telephoned the payroll administrator Ms G. At the time of that phone call Ms G had not seen the medical certificate which had been left in the reception area on 23rd December. Ms G advised the Claimant that she was dismissing her due to her unavailability to attend work.  Ms G discovered, following her dismissal of the Claimant, that the Claimant had suffered a miscarriage.  Ms G apologised and advised the Claimant that she could re-apply for her job as soon as she had returned to full health.

    On 6th January 2016, the Appellant received a letter from the Claimant’s legal representatives claiming that the Claimant had been dismissed by reason of her pregnancy. By letter of 25th January 2016 the Appellant’s legal representatives advised the Claimant that they had been unaware of the Claimant’s pregnancy at the time of her dismissal. In that letter the Appellant advised the Claimant that she could return to work. That offer was repeated in a letter of 26th February 2016.  The Appellant submitted that it had not breached the Act at Section 6 as it was unaware, at the time of dismissal, of the Claimant’s pregnancy. She had been fairly dismissed by reason of her unavailability for work.

    Ms G worked in the payroll department of the Appellant at the material time.

    Ms G said that she received a phone call from the Claimant on 17th December 2015 at which point she was advised that the Claimant was in the accident and emergency department of a hospital. She was not made aware at that time that the Claimant was pregnant.

    She said that, prior to her dismissal of the Claimant by phone on 29th December 2015, she never saw the certificate identifying the Claimant’s illness as miscarriage. 

    In a summary of evidence Ms G stated that she never dismissed any member of staff without instruction from Ms W. She stated that Ms W, prior to her instruction to dismiss the Claimant, was fully aware of the pregnancy and related illness of the Claimant.  Further evidence was provide by a Ms H who said that the process for tendering such medical certificates was set out clearly but not always followed by staff.

    The Claimant

    The Claimant submitted that she became ill at work on 16th December 2015 but completed her shift. Late that night she was removed by ambulance to hospital where she underwent tests until the afternoon of 17th December 2015. She left a voice message for Ms G on 17th December 2015 advising her of her ill health and also advising that she would be unable to attend work that afternoon.  She was advised by the hospital that she had an ectopic pregnancy and was sent home. She received a medical certificate certifying her as unfit for work for 10 days. That certificate was delivered to the Appellant on the afternoon of 17th December 2015 and handed to the person behind the reception desk at approximately 3.00pm that day.

    A further certificate was given to the Claimant’s partner on 18th December by a local doctor who is also the Appellant’s company doctor. That certificate was delivered to the Appellant’s offices and handed to a person in reception on the 18th December 2015.

    A further medical certificate from Dr B was supplied to the Appellant on 21st December 2015 which confirmed that the Claimant had had a miscarriage. That certificate was delivered to the Appellant’s offices on that day.  The Claimant called to the offices of the Appellant on 29th December 20105 seeking a meeting with Ms G and to deliver a further medical certificate which she had received that day from the hospital. Ms G was unavailable but she left a message asking Ms G to call her.  Ms G subsequently called her by phone and advised her that she was “sick for too long” and that she was "being suspended” and that her P45 would be sent out to her. She received her P45 on 6th January 2016. That P45 identified her date of cessation of employment as 18th December 2015.

    The Claimant submitted that the Appellant was aware of her pregnancy at the time of dismissal and that the reason for her dismissal was her absence from work as a result of her pregnancy-related illness.  The Claimant provided further oral evidence in support of her case.

    The Law

    In summary the Unfair Dismissals Act at Section 6 in relevant part provides that the dismissal of an Employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.  Without prejudice to the generality of subsection (1) the dismissal of an Employee shall be deemed, for the purposes of this Act, to be an unfair dismissal if it results wholly or mainly from one or more of the following including; “the Employee’s pregnancy, attendance at ante-natal classes, giving birth or breastfeeding or any matters connected therewith”.  The effect of this and other sections of the Act is to identify a dismissal which relates wholly or mainly to a person’s pregnancy as unfair and to afford the protection of the Act to a person alleging dismissal for reasons associated with pregnancy notwithstanding that the person might, at the date of dismissal, have less than the twelve months’ service required by the Act at Section 2(1)(a).  The Claimant in this case had less than twelve months’ service at the date of her dismissal but falls within the protection afforded by the Act at Section 6(2A).

    Conclusions

    The Respondent, in its submission to the Court, contended that it was unaware of the pregnancy of the Claimant at the point of dismissal and that the dismissal related to the Claimant’s unavailability to attend work.  However, the Court has heard evidence from the person who, on behalf of the Appellant, dismissed the Claimant on 29th December 2015. That person has stated in evidence that the Appellant was aware at the point of the dismissal of the Claimant’s reasons for her unavailability to attend work, that it was the Claimant’s pregnancy and miscarriage which was the cause of her unavailability to attend work.

    The Court has also heard evidence that medical certification was delivered to the Company offices on various occasions up to 21st December 2015. On the basis of the evidence tendered on behalf of the Claimant the Court was satisfied that a medical certificate was delivered to the Appellant on 21st December 2015. It is common case that this certificate specified the miscarriage suffered by the Claimant as the reason for her unavailability to attend at work.

    In all of the circumstances, the Court concluded that the operative reason for the dismissal of the Claimant was her absence through illness arising from her pregnancy and her miscarriage. The Court was satisfied, having regard to the Act at Section 6(2)(f), that the dismissal resulted wholly or mainly from the pregnancy of the Claimant and was, consequently, by operation of the Act, unfair.

    Little Mitigation of Claimant Loss

    The Court noted that the Claimant had not secured employment in the period since her dismissal. The Court further noted that the Claimant was medically unfit to carry out her job at the Respondent employment from January to June of the year of her dismissal. The Court noted that the Claimant’s earnings at the date of her dismissal were agreed to have been €310 per week on average. Taking account of the lack of detailed evidence of the Claimant’s efforts to secure employment and also the detail of her unavailability for work following her dismissal the Court measures the amount of compensation which is just and equitable in all the circumstances at €17,000.  The Court then determined that the Claimant was unfairly dismissed and ordered that the Appellant should pay the sum of €17,000 in compensation for the loss she suffered as a result of her dismissal.  This was €5,000 more than the award by the WRC Adjudicator.

     

    ____________________________________________________________________________________________________________

    Congress Urges Government To Support EU Work Life Balance Directive 

    The Irish Congress of Trade Unions has joined with trade unions across Europe to demand swift adoption of a new Directive on Work-Life Balance that in particular would enhance women’s work opportunities through provision of better family-related leave and flexible working.  According to EU publications the initiative aims at modernising the existing EU legal framework in the area of family-related leaves and flexible working arrangements. The proposed Directive on Work-Life Balance for Parents and Carers includes:

    The strengthening of parental leave by making the 4 months period compensated at least at sick pay level and non-transferable from a parent to another. Parents will also have the right to request to take leave in a flexible way (part-time or in a piecemeal way) and the age of the child up to which parents can take leave will be increased from 8 to 12 years old. The introduction of paid carers' leave for workers caring for seriously ill or dependent relatives. Working carers will be able to take 5 days per year, compensated at least at sick pay level.

    The extension of the right to request flexible working arrangements (reduced working hours, flexible working hours and flexibility in place of work) to all working parents of children up to 12 and carers with dependent relatives.  In order to complement the legislative proposals, the initiative contains a set of non-legislative measures to support Member States in achieving “common goals”. These include: encouraging a gender-balanced use of family-related leaves and flexible working arrangements; making better use of European funds to improve long-term and childcare services; removing economic disincentives for second earners which prevent women from accessing the labour market or working full-time. “Parents and carers will profit from more work-life balance and the foreseen increase in women employment, their higher earnings and career progression will positively impact their and their families' economic prosperity, social inclusion and health” according to the EU.  Companies will then further benefit from a wider talent pool and a more motivated and productive labour force, as well as less absenteeism. The rise in female employment will also contribute in addressing the challenge of demographic ageing and ensuring Member States' financial stability.  The Irish Government adaptation and position on this Directive will be interesting to observe over the coming months not only from the key employer perspective but also in light of the trade union lobby which already well out of the traps on this issue. 

  • Topic - Bullying, Harassment and Sexual harassment or just banter – Considerations for Employers

    by Hayleigh Ahearne
    Apr 05, 2018

    Bullying, harassment and sexual harassment has become a significant issue for Employers and Employees alike. Bullying, harassment and sexual harassment are words which strike fear into the minds of most Managers. These can be some of the most difficult and distracting Employee relations issues for an Organisation to deal with, and can present exposure to serious liability and bad press for an Organisation where they are not dealt with correctly.

    Bullying, harassment and sexual harassment at work are issues that face almost every Organisation at one time or another.

    From an Employers perspective in particular, it is important that they fully understand the legislation, relevant codes of practice, their obligations and the key differences between bullying, harassment and sexual harassment.

    What is the difference between bullying and harassment?

    There are two important distinctions between bullying and harassment. These are:

    1. Harassment is a form of discrimination related to one or more of the nine grounds mentioned in the definition of harassment in this section. Only if the behaviour is related to one or more of these grounds may it be considered to be harassment.  If there is no relationship to the grounds, then the behaviour may constitute bullying provided it falls within that definition. For example, repeated disparaging remarks regarding an individual’s appearance could constitute bullying. However, if, for example, these comments were related to the person’s disability, colour or race then they would constitute harassment.
    2. In order to be deemed bullying, the inappropriate behaviour must be repeated. However, harassing behaviour may be deemed harassment whether it is a once off or repeated behaviour.

    The Organisation’s Obligations under Legislation:

    Obligations under the Employment Equality Acts

    • Harassment and sexual harassment are forms of illegal discrimination under the Employment Equality Acts, 1998-2015.
    • Employers must take reasonable steps to provide a workplace free from harassment and/or sexual harassment and deal adequately with any occurrences.  The workplace extends to cover any place that the Employee attends in the course of their employment, e.g. off-site training, social events etc.
    • Where harassment or sexual harassment occurs the Employer must take steps to ensure that there is no further recurrence of the behaviour.
    • Employers are required to protect Employees from harassment or sexual harassment which is perpetrated by any person with whom the Employer has a business relationship e.g. other Employees, customers, suppliers, contractors etc.
    • Where an issue arises, the Employer is required to protect the complainant and any witnesses/representatives involved in the processing of the complaint from any form of victimisation. Victimisation is deemed to occur where a person is treated adversely arising from their involvement in the complaints process.
    • A failure to fulfil the requirements of the Employment Equality Acts is deemed an offence, and may leave an Employer exposed to claims for up to 2 years’ salary by an Employee. Where an Employer is found guilty of victimisation, that Employer may be held liable for a further 2 years’ salary in compensation.

    Obligations under the Health, Safety and Welfare at Work Acts

    • Employers must take reasonable measures to prevent incidents of bullying occurring (through awareness raising and training as well as reacting speedily to resolve issues early/progress investigations and/or initiate control measures).
    • When and if bullying occurs, Employers should prevent the risk of injury to the health of Employees worsening by providing and implementing support and assistance throughout the process, and reviewing and monitoring the environment afterwards, as far as is reasonable.
    • Employers have a responsibility to promote dignity in the workplace for all.
    • Employers should be alert to the possibility of bullying behaviour and be familiar with the policies and procedures for dealing with allegations of bullying. Their behaviour may be modelled by others, as it may be considered acceptable. That’s why managers, supervisors and those in authority should be aware of their own behaviour at work and not engage in improper conduct in any form.

    Obligations under the Codes of Practice

    • Although Codes of Practice are presented as guidelines for Employers to follow, a failure to adhere to the terms of a Code of Practice may increase an Organisations risk of being held liable to pay compensation in legal cases relating to bullying, harassment or sexual harassment.
    • Under the relevant Codes of Practice, the Employer is required to take steps to put in place anti-bullying, anti-harassment and anti-sexual harassment policies and complaints procedures.
    • The Codes of Practice set out the format that these policies and procedures should follow in order to best assist an Employer to reduce the risk of bullying, harassment and/or sexual harassment occurring.
    • The Codes of Practice set out that an Employer should provide training to all Employees to ensure that they do not behave inappropriately.
    • The Codes establish procedures for dealing with the issues of workplace bullying, harassment and sexual harassment, including informal and formal complaints procedures.
    • A failure to follow the terms of a Code of Practice is not in itself an offence, however an Employer who is challenged under the health and safety or equality legislation will have their procedures evaluated against the Codes of Practice.
    • A failure to adhere to a Code of Practice will weaken an Employer’s argument that reasonable steps were taken to prevent the occurrence of bullying, harassment and/or sexual harassment.  As a result, the Employer is more likely to be found guilty of an offence and liable to pay compensation to a complainant.

    The Organisation’s Responsibilities in Relation to Bullying, Harassment and Sexual Harassment

    It is in every Organisation’s interest to create and maintain a safe and secure environment in which all Employees can work. Bullying and harassment may, if not stopped or a complaint is ignored or left unresolved, create significant issues for an Organisation including:

    • Legal cases with the possibility of significant Employee compensation
    • Loss productivity
    • Loss of key talent
    • Significant damage to Organisation brand / reputation
    • Employee absence
    • Damaged working relationships

    Organisations have a number of responsibilities towards their Employees in relation to all of the aforementioned areas. The Organisation:

    • Must take reasonable steps to prevent any bullying, harassment or sexual harassment occurring in the workplace.
    • Has an obligation to protect Employees from the behaviours of their colleagues, members of Management as well as other business contacts, e.g. suppliers or customers.

    The Employer’s responsibilities extend beyond the workplace, to include any place that an Employee attends in the course of employment. This means that the Employer is not just obliged to protect Employees from bullying, harassment or sexual harassment occurring in the normal workplace, but also at other locations such as off-site training, meetings with customers at their premises and certain work related social events such as the Christmas Party.

    Where a complaint of harassment or sexual harassment is being dealt with, either in the workplace, or through a third party such as the Workplace Relations Commission (WRC), then the Employer must protect the parties involved in the complaint from any victimisation.

    Intent is not relevant, whether or not the alleged perpetrator meant to bully/ harass, does not matter. The effect on the person is what matters. Intent becomes more important following an investigation into the facts where a decision in relation to the level of disciplinary sanction applicable, if any, must be made.

    The Procedure to Follow On Receiving a Complaint

    Where a complaint of bullying or harassment or sexual harassment does arise, the Organisation must be seen to deal with the issue on a fair and impartial basis. Adherence to procedure is fundamental in the area of employment law, and particular in investigating an allegation into one of the above. A full and fair investigation process should contribute significantly to reducing the potential exposure to any future claim.

    The Codes of Practice on workplace bullying and the Code related to harassment and sexual harassment outline that every Employer should have in place informal and formal procedures for an Employee to follow in the event of a complaint. The informal procedure can entail for example, one individual approaching the other to object to their behaviour. The formal procedure involves a written complaint being submitted to the Employer, which would normally then be investigated. Employers must note that it is at the discretion of the Employee who feels that he/she is a victim of bullying or harassment to decide which approach they feel is appropriate in the given circumstances. There is no obligation on the person to commence with the informal procedure; however this is recommended where possible. The Employer may decide to offer mediation at any stage of the procedure. Mediation is a voluntary process whereby the parties to a complaint attempt to reach an agreement on their future working relationship with the assistance of a trained mediator. Note that participation in mediation must always be voluntary.

    The Informal Procedure

    An informal complaints procedure should be in place to promote local resolution of a complaint between the parties involved. The informal procedure involves one party to the complaint approaching the other and seeking to resolve the problem informally between themselves.

    The first step taken is that an Employee may seek information and guidance on policy from a Manager in the Organisation. The Manager should explain the Organisations policy and procedure relating to bullying, harassment and sexual harassment, and ensure that the Employee knows what their options are. The Manager should keep a record of this meeting and the actions decided upon. The Employee may decide to approach the other party and object to their behaviour. A Manager may provide support in making an approach if necessary. The Manager should ensure that all parties concerned understand that the Manager’s role at this point is to ensure that the meeting between the two runs smoothly. Where the matter has not been resolved then the complainant should be advised of the option to escalate the issue to mediation or through the formal procedure as appropriate.  A record should be kept of this meeting.  If the Employee refuses to escalate the issue, the Manager should follow up regularly to evaluate whether the problem continues to exist.

    Mediation

    Where the informal procedure fails to resolve an issue, or where it is deemed inappropriate, then mediation may be offered as a next option. Mediation involves both parties sitting with a trained mediator with a view to reaching an agreement on their future working relationship, and resolving previous conflict. Mediation is voluntary, and any party may withdraw, or refuse to participate, if they wish to do so.

    Formal Procedure

    Where the earlier stages of the procedure have failed to resolve a complaint, or are deemed inappropriate, then a formal complaint may be submitted to Management.

    A formal investigation of the complaint will be undertaken with a view to determining the facts of the case. In all cases there will be no inference of guilt against the alleged perpetrator and they will be afforded a fair opportunity to respond to the allegation(s). The principles of natural justice will be adhered to throughout the investigation process.

    With regards to the formal procedure, terms of reference should be established prior to starting an investigation defining the matters to be investigated, and the proposed timeframe for the investigation. Only the matters set out in the terms of reference should be investigated.

    Conclusion

    It is important for every Employer to be aware that they are obliged to provide a work environment free from harassment and bullying. Where an Employer fails to do this, they can be held liable for the effects of harassment or bullying on their Employees. In order to reduce the risk of exposure to liability, the Employer must be able to demonstrate that reasonable steps have been taken to eliminate bullying or harassment occurring, and where these issues arise, that appropriate steps are taken to prevent any further recurrence.

    To EXPERIENCE how matters such as these are managed in the Workplace Relations Commission, book your place now at our Mock Workplace Relations Commission (WRC) hearing on 17th April 2018 – click here.