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Newsletter Article

  • Vacancies - HR Consultants (Associate or Contract Basis)

    by Hayleigh Ahearne
    Mar 05, 2019
    As part of our growth strategy for the business, we are currently looking for experienced, ambitious, self-driven Consultants with a background/knowledge of HR, on an associate or contract basis, to work alongside our core HR team on a diverse range of projects.

    Specialisms Required:

    Equality and Diversity | Compensation and Benefits | Editor | Authors - Contributors – Freelance Writers

    Equality and Diversity Consultants:

    Equality and Diversity Consultants are required to support our clients on key diversity initiatives and programmes, understand and promote gender balance and ensure inclusive leadership within their Organisations through conducting Diversity and Workforce audits, consultancy programmes on organisational development and talent management and training initiatives

    Experience Required:

    Experienced consultants must have 8+ years relevant Equality and Diversity experience, exposure to best practices in this area and insight into the business case and benefits of Gender Balance

    Compensation & Benefits / Rewards & Recognition Consultants:

    Compensation and Benefits / Reward and Recognition Consultants to work on a diverse range of projects including salary and benefits benchmarking, total reward, gender pay reporting, development of salary structures and conducting salary/reward surveys

    Experience Required:

    Experienced consultants must have 8+ years relevant C&B experience and insight into different salary models and reward structures

    Editor:

    Editor to oversee the drafting, quality, accuracy and relevance of all content on our website (www.adarehrm.ie), our online product Linea (http://www.adarehrm.ie/linea-membership/) and information issued via newsletters and online. This role is responsible for preparing and editing copy, planning the content for both online and all publications. The role also requires the development of content ideas, considering reader or market appeal.

    Experience Required:

    Must have previous relevant experience in a similar role, ideally within the HR / IR / Employment Law arena 

    Authors / Contributors - HR/Employment Law/IR/L&D:

    Authors / Contributors - HR/Employment Law/IR/L&D to draft, review, edit HR/Employment Law/IR/L&D content and articles for our website, newsletters, white papers, online publications, trade publications etc

    Experience Required:

    Must have strong technical knowledge within specialist area and ideally have previous experience in drafting and editing content for relevant publications / websites

    All the above opportunities can be explored on an Associate, Contract or Part-Time basis.

    Location: Flexible

    Contact Details: To discuss our Associate and Contract opportunities, please contact in confidence Derek McKay, Managing Director, Adare Human Resource Management email: dmckay@adarehrm.ie or telephone:  087 9786427

  • CCTV Guidelines – The importance of a CCTV policy within the workplace

    by Hayleigh Ahearne
    Mar 05, 2019

    In 2016, the Data Protection Commission issued guidelines in relation to the use of CCTV in the workplace.

    These guidelines included a requirement for a written CCTV Policy to be put in place, and that Employers are required to perform assessments which show that any use of CCTV is justified within their Organisation. 

    Data Controllers should complete the following steps in line with the guidelines issued by the Data Protection Commission:

    • Conduct and evaluate a Risk Assessment process
    • Complete and review a Privacy Impact Assessment
    • Develop a written CCTV Policy covering the following areas:
      • The identity of the data controller;
      • The purposes for which data are processed;
      • Any third parties to whom the data may be supplied.
      • How to make an access request;
      • Retention period for CCTV;
      • Security arrangements for CCTV.
      • Develop a Data Protection Policy dealing with CCTV devices
      • Clearly demonstrate previous incidents that have led to security / health and safety concerns that may justify the use of CCTV within the workplace

    The location of cameras should be a key consideration for all Employers too. The use of CCTV to monitor areas where Employees would have a reasonable expectation of privacy would be difficult to justify, for example in restrooms. To justify use in such an area, a Data Controller would have to demonstrate that a pattern of security breaches had occurred in the area prior to the installation of the system such as would warrant constant electronic surveillance. Where such use can be justified, the CCTV cameras should never be capable of capturing images from cubicles or urinal areas.

    It is important to note that any person (i.e. an Employee, Customer, Client and/or a member of the public) that could be affected by the use of fixed CCTV in must be clearly informed by signs or notices warning of the fact that image recording is in operation in that area. The sign or note should also have contact details of the Controller to whom queries or subject access requests.

    Once the above steps have been completed, the Employer should also assess whether or not CCTV cameras are likely to be used in a disciplinary matter. If so, the Employer should ensure that Employees are aware of the purpose of the collection of the data and clearly indicate this in their Policy.

    In the event that CCTV footage is to be used for a disciplinary matter, Employers should note that the Employee is entitled to be given the opportunity to review the evidence in advance of a disciplinary meeting in order to allow them to prepare their defence.

    A final important note for consideration around CCTV in the workplace is storage limitation. Storage limitation provides that the collected data, be kept in a form which permits identification of data subjects for no longer than is necessary for the purposes for which the personal data are processed. This means that the data cannot be kept for a “just in case”, a problem arises in the future. Article 5(c) of the GDPR states that data must be "adequate, relevant and limited to what is necessary);”" for the purposes for which they were obtained.}  A Data Controller needs to be able to justify this retention period. For a normal security system, it would be difficult to justify retention beyond a month, there are of course exemptions which can apply here however, for example in the case of a criminal or civil investigation.

    Case Law:

    In a recent case (Adjudication Reference: ADJ-00012025), a Complainant was awarded €5,000 after she claimed constructive dismissal after she discovered a hidden camera.

    The Complainant returned to work after a period of annual leave and while left alone in the office, she discovered a hidden camera in a smart lever arch folder placed at the reception desk, taped to the wall and pointed in the direction of her desk with an intermittent flashing light.

    She detected that the lens was positioned behind a hole in the folder. She examined the camera and was concerned it was recording. Neither the folder nor camera were in situ before she left for leave a week previously.

    The Complainant confronted her employers and she was told the camera was installed to see couriers and patients coming in and out. The Complainant told the Hearing that this seemed illogical as the camera was pointed at her desk and not at the entrance. One of the Respondent(s) had called her "a stupid idiot" for getting upset, and the other Respondent disclaimed all knowledge of the camera's installation.

    The Complainant said she was shocked at the Respondents reaction. She worked for the remainder of the day quite upset, stressed and shocked. On returning home and consulting with her family, she felt she could not return to work. Her doctor certified she was suffering from work-related stress, and the Complainant went on sick leave.

    She felt the relationship of trust and confidence with her Employer had been irreparably damaged and she handed her notice to her Employers on advice from her GP and family.

    The Respondent told the Hearing the camera was installed to monitor the comings and goings of strangers as the Employee would be by herself when they were away. He stated he regretted he did not advise her of the installation and apologised to her.

    The Adjudication Officer deemed rejected the Respondent’s argument that the camera was installed to protect the Employee.

    In the case of constructive dismissal, the burden of proof rests with the Complainant. The Unfair Dismissals Act, 1997, section 1 outlines a “dismissal” means:

    “The termination by the employee of his contract of employment with his employer whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee is or would have been entitled, or it was or would have been reasonable for the employee to terminate the contract without giving prior notice of the termination to the employer”.

    So what does reasonable mean? The tests for constructive dismissal were set out by Lord denning, MR in Western Excavating (ECC) v Sharp (1978) IRL322, and repeatedly set out in subsequent complaints of constructive dismissal and described thus:

    “conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract then the employee is entitled to treat himself discharged from any further performance”.

    The reasonable test was expressed as:

    “an employer who conducts himself or his affairs so unreasonably that the employee cannot be fairly be expected to put up with it any longer, the employee is justified in leaving”

    In this instance, the Adjudication Officer decided that the complaint was upheld as the respondent’s actions in intending to operate a concealed surveillance system amounts to a breach of the implied term of trust and confidence, and that there was a fundamental or repudiatory breach going to the root of the contract, entitling the Complainant to resign and claim constructive dismissal.

    Conclusion:

    The above case law is a prime example of the importance of disclosing CCTV cameras to Employees and disclosing the justification for having these cameras in the workplace. Employers are of course permitted to have CCTV cameras on site, however they should consider whether or not the location of the cameras are reasonable. For example, using CCTV to detect intruders, vandals or thieves may be reasonable but using CCTV to constantly monitor employees would be intrusive and would only be justified in special circumstances.

    The above guidelines, particularly a review of internal policies/procedures, risk assessment process and privacy impact assessment, should therefore be conducted and completely thoroughly to ensure, in the event of an issue arising, that as an Employer you can rely on the footage you have and be in a position to take the necessary steps you require.

    The Data Protection Commission are currently in the process of reviewing their CCTV guidelines, amongst other guidelines, but it is strongly recommended that Employer’s adhere to the above whilst always bearing in mind the principles of data protection in line with current legislation.

  • Case Law Reviewed under the WRC

    by Hayleigh Ahearne
    Mar 05, 2019

    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 €3,891.40 as she could no longer work contracted hours

    Adjudication Reference: ADJ-00012840

    Summary of Complainants Case:

    The Complainant worked as a Sales Assistant for the Respondent commencing on the 20th March 2015.

    The Complainant was contracted to work 15 hours per week with occasionally more or less hours.

    The Complainant was never provided with a contract of employment and/or a statement of her terms and conditions of employment.

    In later years, the Complainant started a course at a third level institution in September 2017, and subsequently requested if she could have work rosters to accommodate her course hours and commitments.

    The Management agreed to this request on a “trial” basis and in early December 2017 the Complainant was approached by her Manager where she was asked for her 2nd semester course timetable which she was not due to start until the 22nd January 2018.

    The Complainant explained that her timetable will only be available around this date. She was then told by her Manager that “we would have to keep an eye on the situation and if it doesn't suit the business needs then she would be let go”.

    On the 15th December 2017, the Complainant was informed by her Manager that she was to be let go on the 31st December 2017, and that she was being served with her 2 weeks’ notice.

    She was verbally told the reason for the cessation of employment was that the Company could no longer accommodate the hours rostered to accommodate her course.

    The Complainant was advised by the same Manager that she was not entitled to anything i.e. redundancy.

    The Complainant asked the Manager for the reasons in writing. She was informed that she would receive this written notification but, to date, nothing has been received.

    The Respondent failed to acknowledge that the period from the date of dismissal to when the Complainant was due to start back to college for the 2nd semester (31st December 2017 to 21st January 2018) that the Complainant was not at college and thus was in a position to work any hours the Respondent requested during this period.

    Furthermore, the Complainant and the Respondent willingly entered into an arrangement that for the 1st semester the Respondent would accommodate business needs around the Complainant’s third level course commitments.

    While this was acknowledged by the Complainant as a temporary trial, it remains the case that the Respondent did not offer the Complainant the chance to provide her 2nd semester timetable, and thus determine if she was in a position to meet the Respondent’s business needs and requirements as per the Complainant “contracted” hours.

    Summary of Respondent’s Case:

    The Respondent set out the Complainant’s employment history with the Company and stated that the Complainant’s contract of employment provides:

    “Your minimum hours of work are 15 hours. You are employed on a flexible hours basis and your hours can be changed to suit business requirements and needs at any time in the future. You are asked to take particular note of this requirement”.

    The Respondent’s Handbook provides:

    “Your hours will be subject to change according to the store needs and at any time during the course of your employment as dictated by the business. All employees must work flexible hours and days including late nights, Saturdays, Sundays and Public Holidays as part of your working weeks”.

    It was submitted that from the commencement of her employment to September 2017, the Complainant worked in accordance with her contract.

    Her average weekly hours from March - September 2017 were 26 hours.

    It was submitted that when the Complainant commenced full time education in September 2017, she was advised that while the Respondent would attempt to accommodate her to the 2017 side of Christmas, her limited availability for work posed a difficulty.

    During the period in question (the Complainant’s 2nd semester) the Respondent's store opening hours were 9am to 6pm, Monday to Wednesday, and 9am to 8pm on Thursdays and Fridays.

    As the Respondent operates a policy of rostering employees for a minimum of 3 hours per shift, the Complainant would have had to be in the store at 3pm, at the very latest, during this period in order to work a shift from Monday to Wednesday.

    Given that the Complainant’s classes only finished at 4pm, or later, on Monday to Wednesday, it would not have been possible for her to be in store at 3pm to work shifts on these days.

    At the hearing the Respondent submitted that the ending of the Complainant’s employment was not processed as a disciplinary matter, and consequently the disciplinary procedure was not applied. It was treated as a contractual matter.

    Legislation:

    The Unfair Dismissals Acts, 1977 – 2015 Section 8 sets out that a claim for redress under this Act for unfair dismissal may be brought should an Employee believe they have not been afforded fair procedures and/or their rights under natural justice before being dismissed.

    Decision:

    It was determined that the Complainant had a legitimate expectation that a meeting would take place to discuss options for continuing in employment when the Complainant’s availability for 2018 became clear. This did not happen.

    It is acknowledged that the Respondent’s argument that the ending of the Complainant’s employment was processed as a contractual matter as opposed to a disciplinary matter, the outcome of the process was the ending of the Complainant’s employment. No formal procedures were observed in this regard.

    The Complainant was not given formal notice that her employment was in jeopardy and alternatives to dismissal were not explored.

    The union’s contention is accepted in saying that the Complainant was entitled to her rights under natural justice whether the ending of her employment was processed as a disciplinary or contractual matter.

    The Adjudication Officer decided that the complaint would be upheld and required the Respondent to pay the Complainant €3,891.40 compensation within 4 weeks of the date of this decision.

    Adare Human Resource Management Commentary:

    There is a legal obligation on all employers to supply all employees, not later than 28 days after commencing employment, with written procedures that the employer will observe before dismissing an employee.

    Any changes to the procedure must be notified to the employee within 28 days of the change being made.

    The use of disciplinary procedures is strongly recommended to employers where an employee’s conduct, capability, and competence is of concern. Failure to use or comply with procedures, of itself, may render the dismissal unfair.

    Analysing the above it is very clear that the Respondent has failed to honour its contractual and legislative obligations to the Complainant.

     

    ____________________________________________________________________________________________________________

     

    Complainant awarded compensation after the Respondent ended Fixed Term Contract

    Adjudication Reference: ADJ-00016404

    Summary of Complainant’s Case:

    The Complainant was employed on two successive six-month contracts (from 8th August 2017 to 7th February 2018 and then from 8th February 2018 to 7th August 2018).

    The Respondent maintained these were fixed term, but this was disputed by the Complainant.

    The issue was whether or not the contracts were Specific Purpose with the Complainant being engaged until such time as the National Recruitment Service could fill the catering positions, one of which was occupied by the Complainant, on a permanent basis.

    The Complainant was written to on the 25th June 2018 informing her that her contract was not being renewed.

    The Complainant challenged this by way of letter of 27th June 2018 and pointed out the requirements in Hospital policy documents for Fair Procedures and her rights under both the Unfair Dismissals Act, 1977 and the Protection of Employee (Fixed Term Work Act) 2003.

    The Complainant maintained that she had been denied her rights under natural justice as set out in both pieces of Legislation and the Hospital Policy Guidelines.

    Summary of Respondent’s Case:

    The Complainant was employed on a Fixed Term contract that expired on 7th August 2018. 

    As such she was let go on the termination of the fixed Term and has accordingly no grounds for a case under the Unfair Dismissals Act, 1977.

    Notwithstanding the above basic legal fact, the Hospital had several issues of considerable concern regarding the Complainant during her time with them.

    These were outlined in a letter to the WRC on 6th November 2018 and referenced again during the Oral Hearing. They formed the background to the decision not to renew the Complainant’s contract.

    While a number of informal efforts were made by local managers to address these issues with the Complainant it was felt that as she was on a Fixed Term Contract so the best course of action was to simply wait and let her employment come to an end.

    It was the Hospital’s view that difficulties with the Complainant and other temporary staff necessitated an accelerated process to secure Permanent Staff, outside of the National Recruitment Agency, which was put in put in place afterwards.

    However, the basic fact was that the Complainant had a Fixed Term contract which came to its natural end and the employment of the Complainant ended accordingly. She can have no legal grounds for action under the Unfair Dismissal Act,1977.

    Section 2 (2)b of the UD Act 1977, quoted below, refers.

    2.— (1) F8[Except in so far as any provision of this Act otherwise provides] This Act shall not apply in relation to any of the following persons:

    (2) F16[Subject to subsection (2A), this Act] shall not apply in relation to—

    (a) dismissal where the employment was under a contract of employment for a fixed term made before the 16th day of September, 1976, and the dismissal consisted only of the expiry of the term without its being renewed under the same contract, or

    (b) dismissal where the employment was under a contract of employment for a fixed term or for a specified purpose and the dismissal consisted only of the expiry of the term without it being renewed under the said contract or the cesser of the purpose and the contract is in writing, was signed by or on behalf of the employer and by the employee and provides that this Act shall not apply to a dismissal consisting only of the expiry or cesser aforesaid.

    Legislation:

    The relevant law in this instance is the Unfair Dismissals Act, 1977 supported by SI 146 of 2000 -Statutory Code of Practice on Grievance and Disciplinary Procedures.

    In additional the rules of natural justice have to apply and are set out in a wide range of legal precedents.

    Natural justice has to be paramount.

    Regarding procedural issues / time limits, a key question here is whether or not the Complainant has the required 12 months continuous service to qualify under the Unfair Dismissals Act.

    Decision:

    A key question here is whether or not the Complainant has the required 12 months continuous service to qualify under the Unfair Dismissals Act.

    The Adjudication Officer referred to section 18 of the Interpretation Act 2005 as a guide found that the Complainant had the required 12 months service from the 8th August 2017 to 7th August 2018.

    Taking the view that the Unfair Dismissals Act, 1977 applied, the evidence pointed clearly to the fact that the Complainant was dismissed on performance grounds.

    The ending of the employment under the contract clause was superficially the cause but in reality, the performance issues predominated in the dismissal decision.

    In oral Respondent evidence there was a strong impression given that the contract was available for renewal and a number of the Complainant’s colleagues were given renewed contracts.

    The Complainant indicted at the Oral Hearing that Compensation was her preferred redress as the relationship with the Hospital had now broken down to such an extent as to render re-engagement or reinstatement would be unacceptable. However, this was somewhat ambiguous as the Complainant was on the permanent panel (following the interviews) and while down the list had a reasonable chance to secure a position during the duration of the panel.

    As the Complainant has been on sick leave and maternity related leave since the ending of the employment, she had not been available for work since leaving the Hospital. The actual dismissal itself was largely coloured by procedural failings on the Respondent part.

    The process of permanent recruitment was under way at the time and the filling of the positions on a permanent basis would have shortly ended the contract, as specified in the recruitment contract letters, in any event.

    Accordingly, having considered all the factors above and considered all the evidence, the sum of €2,250.00 as compensation is awarded - this equates to approximately four weeks’ pay.

    Adare Human Resource Management Commentary:

    The vast majority of unfair dismissal cases are lost by employers because they have failed to follow fair procedures. There are steps employers can take to avoid unfair and constructive dismissals when dismissing an employee because of conduct or competence.

    1. The employer should write to the employee inviting him/her to a formal disciplinary meeting. Within this letter, there should be details of why the meeting is being held and that the outcome of this meeting may result in a warning (it may be appropriate to note - up to and including dismissal – depending on the circumstances).
    2. The employee should be told that s/he has the right to representation at this meeting. Generally, a work colleague or trade union representative would be permitted.
    3. The employee should be given the opportunity to respond fully to all allegations/complaints and have their responses fully considered before a decision is made.
    4. The employee should be given a bias free hearing with no pre-determining of the outcome.
    5. Any penalty imposed must be a proportionate response to the allegations/complaints.
    6. The employee should be given the right to appeal the decision.

     

    ____________________________________________________________________________________________________________

    Complainant successful after being dismissed whilst on sick leave

    Adjudication Reference: ADJ-00011266

    Summary of Complainant’s Case:

    The Complainant was engaged as a Chef until his employment ceased on 26th May 2017.

    He claims he was unfairly dismissed.

    The Complainant was in a serious car accident on 8th March 2017 after which he was very unwell with an infection.

    Through his girlfriend he asked the Respondent to provide some documentation to social welfare to secure a medical card.

    The Respondent’s letter on 26th May 2017 referred to him as “previously employed as a chef”.

    He did not contact the Respondent at that time as he was unwell but was surprised at the reference to “previously employed”.

    He only became aware that his employment was terminated on 21st August 2017 when he was advised by the manager Mr A that there were no more hours for him.

    He advised that he was deemed fit to return to work at the end of August 2017.

    Following the hearing he provided letters confirming he had been unsuccessful when he went looking for other employment.

    He also provided copies of illness benefit which he had received and which detailed that he had been in receipt of illness benefit up to April 2018.

    Summary of Respondent’s Case:

    The Respondent outlined that after the Complainant’s accident they were left with no alternative but to find another chef as it was a busy time.

    The Complainant contacted them through his girlfriend as he wanted to get a medical card and needed letters signed.

    It was confirmed that all conversations were through his girlfriend and although they dated the P45 26th May 2017, they omitted to send this P45 until August 2017.

    It was confirmed that there was no contract of employment but that he had been given a handbook but the Respondent was unable to provide evidence of same.

    The Respondent outlined that it was their understanding that the Complainant was unfit to return to work and that they never received a letter stating that he was fit to return to work.

    They detailed that he never provided them with sick certs.

    After the hearing and following receipt of the Complainant’s illness benefit details, the Respondent put forward that the Complainant remained unfit for work.

    Legislation:

    Pursuant to Section 6 of the Unfair Dismissals Act 1997 as amended, 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 are substantial grounds justifying the dismissal. The burden of proof is firmly on the Respondent.

    Decision:

    The Complainant was dismissed by the Respondent without fair procedures followed and therefore this dismissal was unfair.

    With regard to redress, the Complainant seemed unclear at times during his evidence as to whether he was fit for work or not and provided some evidence that he had sought alternative employment.

    However, following the hearing he forwarded details of illness benefit payments which he had received which deemed him unfit for work.

    The Complainant’s weekly pay based on his P45 was €225.50 and the Complainant has been deemed unfit for work, therefore, no loss has accrued under the Act.

    The maximum compensation payable in circumstances where no loss has accrued is four weeks remuneration.

    Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act. The dismissal was an unfair dismissal and the Complainant was awarded 4 weeks gross pay (€902) in compensation.

    Adare Human Resource Management Commentary:

    In accordance with legislation, procedures should normally include a set of graduated steps from verbal and written warnings to potentially / eventually dismissal. Therefore, the Employer must demonstrate that a reasonable decision was made in dismissing an Employee following a fair procedure.

    In this particular case, the Complainant was dismissed by the Respondent without fair procedure as no steps were taken to notify him about the possibility of a dismissal.  Failure to give notification under subsection (1) will result in remedies of re-instatement, re-engagement or compensation for the Employee.

  • Help Desk: St. Patrick’s Day, Sunday, 17th March 2019 – What are employee’s entitlements?

    by Hayleigh Ahearne
    Mar 05, 2019

    This month St. Patrick’s Day, 17th March 2019, falls on a Sunday. As this is a day that many Organisations do not work, queries have come in to see if the public holiday goes directly to the following Monday.

    The answer is no not necessarily, however many Organisations will observe the following Monday as the public holiday as that is when the Bank holiday falls (i.e. the banks close on this day). Although, it is at the discretion of the Organisation to decide what benefit they provide Employees in respect of a public holiday and indeed what day they observe as a day off for the purposes of the holiday (if any). Employer’s can provide any of the following as benefits in respect of the public holiday:

    a)       A paid day off on that day,

    b)      A paid day off within a month of that day,

    c)       An additional day of annual leave,

    d)      An additional day’s pay.

    Full time Employee’s will automatically be entitled to one of the benefits outlined above in respect of the public holiday.

    Part-time Employee’s will need to have worked at least 40 hours in the 5 weeks preceding the public holiday in order to qualify for a public holiday benefit. If part-time Employees have worked 40 hours in the 5 weeks preceding the public and are not required to work on the public holiday, they are entitled to receive one-fifth of their average weekly wage. If their average weekly wage varies from week to week, it is recommended that you seek an average from the previous 13 weeks worked.

    For the purposes of the above, an additional day’s pay is determined as the previous day worked to the public holiday. However, this does not always equate to double time.

    Scenario examples:

    1. Employee A normally works on Sundays, however the Organisation closes on public holidays. Therefore, Employee A is entitled to receive a paid day off on St. Patrick’s Day (i.e. option a above).
    1. Employee B works 5 days a week and is not required to work on St. Patrick’s Day as the Organisation only operates Monday – Friday. The Organisation has elected to close on Monday, 18th March 2019 to mark the Bank holiday instead. Therefore, Employee B will be entitled to receive a paid day off on Monday, 18th March 2019 (i.e. option b above).
    1. Employee C is required to work on St. Patrick’s Day. The Organisation has chosen to remain open on Monday, 18th March 2019 also. Therefore, Employee C is entitled to receive an additional days annual leave for that year (i.e. option c above).
    1. Employee D is required to work on St. Patrick’s Day (17th March 2019) as the Organisation will be open. Employee D is entitled to receive payment for any hours worked on the 17th March 2019, plus an additional days pay (i.e. option d above).

    For queries relating to public holidays or the Organisation of Working Time Act, contact the team at Adare Human Resource Management – info@adarehrm.ie / 01 5613594

  • Workplace Relations Commission Mock Adjudication Hearing - 8th April 2019

    by Hayleigh Ahearne
    Mar 05, 2019

    Adare Human Resource Management leading experts in Employment Law, Industrial Relations and best practice Human Resource Management, are delighted to invite you to our upcoming Workplace Relations Commission Mock Adjudication Hearing.

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

    Date: Monday 8th April 2019

    Location: Chartered Accountants Ireland, 47 - 49 Pearse St, Dublin 2

    Invitation: Click here to view the full invitation. 

    Book Now:
    Limited places available, to book your place email marketing@adarehrm.ie or call (01) 5613594

     

    Pricing:

      Clients: (Adare HRM Current Clients)   For Non-Clients: 
    Full rate    €215  €255
    Early Bird (book by 8th March)  €195  €235
    Charity Rate  €195  €195

     

    To find out more about this event, click here.



  • Gender Balance Forum

    by Hayleigh Ahearne
    Mar 05, 2019

    Adare Human Resource Management recently held a Gender Balance Forum where influential Leaders and HR Professionals shared best practice and thinking around the commercial imperative of addressing gender balance in Organisations. This forum offered the opportunity to learn and understand some of the challenges and importance of moving towards a more diverse and gender balanced workforce.

    The average gender pay gap is about 14 per cent in Ireland, but an even larger gender balance gap lurks at leadership levels in organisations that has yet to be addressed, writes Siobhán Maguire of the Sunday Business Post.

    The average gender pay gap is about 14 per cent in Ireland but that’s just an average, and we know definitively there’s a much larger gender-based gap at the leadership level in many organisations. What we’re really saying is that the gender pay gap gives us a proxy for a general gender imbalance within organisations. We know from reports in the area that this imbalance is not good for business as it limits diversity in thinking and in the way that decisions are made. Research compiled by the management consulting firm McKinsey, found that when more varied diverse decision-making happens, when there’s better balance, you’re more likely to get an uplift in profit and performance.” Catherine Smith McKiernan, Head of HR Consulting in Adare Human Resource Management, said the business benefits of having a gender balanced workplace are far reaching.

    Read more about this Forum here.

    Read more about Gender Pay Gap here.

  • Gender Balance Forum - 27th February 2019

    by Hayleigh Ahearne
    Jan 31, 2019

    We are looking forward to our upcoming Gender Balance Forum. The Gender Balance Forum brings together influential leaders and senior HR professionals to share best practice and thinking in the area of Gender Diversity to support organisational growth and value creation.

     

     

     

  • Main - The Employment (Miscellaneous Provisions) Bill

    by Hayleigh Ahearne
    Jan 31, 2019

    The Department of Employment Affairs and Social Protection has confirmed that the Employment (Miscellaneous Provisions) Bill will come into force from the first week of March 2019. The enactment will be proceeded by a public awareness campaign led by the Workplace Relations Commission (the “WRC”), ahead of its commencement.

    The objective of the Bill is to address issues that arise for workers with unspecified/insecure hours of work by the provision of new statutory protections and rights and the prohibition of the use by employers of zero-hour contracts, save in certain limited circumstances.

    The main provisions in the Bill contain amendments to the following Acts:

    a)       Organisation of Working Time Act 1997; and

    b)      Terms of Employment (Information) Acts 1994 – 2014.

    Key considerations for organisations on the enactment of the Bill will include:

    Amendments of the Organisation of Working Time Act 1997

    Zero Hours Contracts: A zero hours contract of employment is a type of employment contract where the Employee is available for work but does not have specified hours of work.

    Currently, Section 18 of the Organisation of Working Time Act 1997 entitled “Provision in Relation to Zero Hours Working Practices”, governs the legal position regarding zero hour contracts. In effect Section 18 provides that an Employee under a zero-hours contract who works less than 25% of their hours in any week should be compensated. The level of compensation depends on whether the Employee got any work or none at all. If the Employee got no work, then the compensation should be either for 25% of the possible available hours or for 15 hours, whichever is less. If the Employee got some work, they should be compensated to bring them up to 25% of the possible available hours.

    There is no entitlement to such payment under Section 18 of the Act where the Employee is under no obligation to accept work [no mutuality of obligation]. These arrangements are frequently described as ‘Casual’ work or ‘if and when’ work arrangements. Because they operate on an expectation as distinct from an obligation to work, there is no payment entitlement applicable.

    The Employment (Miscellaneous Provisions) Bill amends Section 18 of the Organisation of Working Time Act 1997 Act in five significant respects:

    1. By prohibiting zero hours contracts save in situations of genuine casual employment and where such hours are essential to allow Employers to provide cover in emergency situations or to cover short-term relief work to cover routine absences for the Employer.

    2. By providing minimum payments to Employees who are required to be available to work but are not called into work.  The new section 18 provisions maintain the same payment mechanism as per zero hour contracts, i.e. the lesser of 25% of the contract hours or 15 hours. The additional feature under the Employment (Miscellaneous Provisions) Bill is a new minimum payment of three times the national minimum hourly rate of pay or three times the minimum hourly rate of pay established by an employment regulation order.

    3. Employees enjoy a new right to be placed in a band of hours that more accurately reflects the hours they habitually work over a 12-month reference period as against their contractual hours. The Employee must make a written request to be placed in a band of weekly working hours. The Employer must then place the Employee in the appropriate band not later than four weeks from the date the Employee makes the request. The appropriate band is determined by the Employer on the basis of the average number of hours worked by the Employee per week during the reference period.

     

    Band

     

    From

     

    To

     

    A

     

    3 hours

     

    6 hours

     

    B

     

    6 hours

     

    11 hours

     

    C

     

    11 hours

     

    16 hours

     

    D

     

    16 hours

     

    21 hours

     

    E

     

    21 hours

     

    26 hours

     

    F

     

    26 hours

     

    31 hours

     

    G

     

    31 hours

     

    36 hours

     

    H

     

    36 hours and over

     

    -

     

    4. The requirement that an Employee who is placed in a band is entitled to work such hours the average of which falls within the band for a period of 12 months following placement in the band.

    An Employer may refuse to place an Employee in the band in one of the following circumstances:

    a)       where there is no evidence to support the Employee’s claim;

    b)      where there have been significant adverse changes to the business, profession or occupation carried on by the Employer during or after the reference period;

    c)       due to exceptional circumstances or an emergency, the consequences of which could not have been avoided despite the exercise of all due care, or otherwise due to the occurrence of unusual and unforeseeable circumstances beyond the employer’s control; or

    d)      where the average hours worked by the Employee were affected by a temporary situation that no longer exists.

    The section will not apply to banded hour arrangements entered into by way of a collective bargaining agreement.

    An Employer is not required to offer hours of work to an Employee in a week that the Employee was not expected to work, nor offer hours of work in a week where the Employer’s business is not being carried out.

    An Employee can bring a complaint to the WRC, which can issue a decision placing the Employee in an appropriate band of hours but cannot award compensation.

    5. Prevention of penalisation of Employees for exercising their rights under the 1997 Act. The Bill replaces the penalisation provision in the 1997 Act with a new penalisation provision.

    An Employee who claims to have been penalised for invoking rights under the Act can bring a claim to the WRC and be awarded compensation of up to two years’ remuneration.

    Amendments to the Terms of Employment (Information) Acts 1994 – 2014

    The Terms of Employment (Information) Acts 1994 – 2014 is amended in two significant respects:

    1. by requiring employers to notify Employees in writing of five core terms of employment within five days of the commencement of employment; and
    2. by protecting Employees from penalisation for exercising their rights under the 1994 Act.

     

    1. The requirement to notify Employees in writing of five core terms of employment within five days of commencement of employment

    Presently, an Employer must provide a written statement to an Employee outlining 15 core terms of employment within two months of the commencement of the Employee’s employment. Failure to do so enables an Employee to make a complaint to the WRC which, if successful could result in an award of up to four weeks’ remuneration.

    The Employment (Miscellaneous Provisions) Bill provides that an employer must notify an Employee of five core terms of employment within five days from the commencement of employment.

    These core terms are as follows:

    1. names of employer and Employee;
    2. address of employer;
    3. expected duration of temporary employment or the end date of a fixed-term contract;
    4. the method of calculating pay and pay reference period for the purposes of the National Minimum Wage Act 2000; and
    5. the number of hours which the employer “reasonably expects” the normal length of the Employee’s working day and week will be*.

    This provision supplements, rather than replaces, an Employer’s existing obligations under the 1997 Act.

    *The Bill does not define “reasonably expects”. Where an Employee’s hours of work are not fixed and vary from week to week, it is likely that an Employer will be in compliance if it provides such information as it is able to determine from the outset of the employment relationship. Examples of provisions in statements of employment which might be acceptable are as follows:

    “You will work x hours per day, y hours per week [insert days]” or

    “You will work x hours per day, y hours per week on such days as are determined by the Company from time to time” or

    “You will work x hours per day on such days as will be determined by the Company from time to time” 

    Where the Employer does not comply with the new obligation in the Bill, an Employee can bring a claim to the WRC and/or the Labour Court and be awarded compensation of up to four weeks’ remuneration.

    In order to bring a claim, an Employee must have at least one month’s continuous service.

    Further, failure to provide the required information within one month can give rise to a criminal offence. Sanctions on conviction include a Class A fine, i.e. a fine not exceeding €5,000, or imprisonment of up to twelve months or both.

    Directors, managers, secretaries or other officers of a company can be individually liable, i.e. be prosecuted individually for offences.

    2. Anti-penalisation provision

    The Bill also introduces an anti-penalisation provision whereby an Employer may not penalise an Employee for exercising rights under the 1994 Act. An Employee who is penalised can be awarded compensation of such amount as the WRC considers just and equitable having regard to all of the circumstances, but not exceeding four weeks’ remuneration.

  • Case Law - Reviewed under the LC

    by Hayleigh Ahearne
    Jan 31, 2019

    In this month’s newsletter the team at Adare Human Resource Management consider in detail a number of cases as adjudicated under the Labour Court.

    Labour Court Determination Ref: UDD1871

    Case Background

    This case is one in which a Worker appealed the Decision of the Adjudication Officer to the Labour Court under the Unfair Dismissals Act.  A Labour Court hearing took place on 2nd October 2018 and the following is a summary of what is a very interesting case.

    The Claimant was employed as a Welder at an industrial solutions company from August 2004 up to his dismissal from employment on December 1st, 2015.  On the outcome report the Court referenced that the delay in dealing with the matter was due to a number of adjournments having been granted previously to the Parties.  In evidence it was established that there was no material dispute between the Parties in relation to the facts of the case.  The facts being Claimant was dismissed on grounds of gross misconduct (albeit with payment in lieu of six weeks’ notice).  The Complainant was employed as a skilled General Operative and deployed primarily as a welder.  His rate of pay was €741.12 gross per week.

    Sleeping On Duty

    On 10th October 2015 the Claimant was observed sleeping in a cubicle during and beyond his official break while on night shift, by his Supervisor.  The Supervisor reported the incident which was then investigated by HR.  At the investigation meeting on 13th October 2015, the Claimant stated he had been suffering from back and shoulder pain caused by his having to handle heavy materials at work.  He volunteered that he had initially been taking paracetamol for the pain but had also taken diazepam prescribed for his mother.  The Claimant gave HR to believe that he had consulted with his GP prior to taking the diazepam. He also said that he didn’t intend to sleep beyond the duration of his break but that for some reason the alarm on his phone didn’t ring.  HR referred the Claimant to the Respondent’s Occupational Health Advisor and further advised him that with his permission appropriate contact be made with his GP and this permission was granted.

    On 15th October 2015, the Claimant met with the Occupational Health Advisor (OHA) and repeated his version of events and further reconfirmed permission to the OHA to contact his GP.  On 19th October 2015, the OHA reported to HR that contact with the Claimant’s GP confirmed that at no time did the GP recommend that the Claimant take diazepam, which had been prescribed for his mother.  The OHA completed a report and recommended that matters be progressed through disciplinary processes as follows: “Due to the fact of lying to the company regarding approval to take medication and being asleep on company time, potentially exaggerated by the danger of potentially being under the influence of non-prescribed drugs on-site I believe this matter needs to be referred for disciplinary hearing.”

    Gross Misconduct

    This was done and a disciplinary hearing took place on 27th November 2015. It was conducted by the Operations Manager. The Claimant was accompanied by his Shop Steward.  The Claimant told this meeting that it was the GP’s Receptionist who had said it would be OK for him to take the diazepam prescribed for his mother. The meeting reconvened on 30th November 2015 to advise the Complainant of the outcome.  He was initially verbally informed that he was to be dismissed with immediate effect because falling asleep at work was a fraudulent claim of time, because he had given misleading information to the investigation, and had breached company health and safety guidelines by attending for work under the influence of medication that could induce drowsiness.  Cumulatively – he was advised that his actions had undermined the Respondent’s trust and confidence in him and those actions constituted gross misconduct.

    The Claimant was advised of his right of appeal within seven days to the General Manager.  A dismissal letter confirming the termination of employment was issued on the following day, 1st December 2015.  That letter also advised the Claimant that he would be paid his six weeks’ notice entitlement consistent with his contract of employment.  The Claimant exercised his right of appeal.  The appeal meeting took place on 11th December 2015. On 15th December a letter was issued to the Claimant confirming that the dismissal was upheld.

    Mitigating Ones Loss

    The Claimant gave evidence and was cross-examined in relation to the events that led to his dismissal and further in relation to his subsequent efforts to mitigate his loss.  In the Court summary it states  “somewhat surprisingly, he was unable to find alternative work as a welder so therefore decided to set up his own business selling games and software on-line. His evidence is that he earns approximately €250.00 per week”.

    Court Comment

    The Court said it is evident that the Claimant compounded the already unfortunate situation he found himself in by misleading the Respondent during the course of the investigation. Quite simply he lied about his GP’s alleged role in advising him that it was acceptable to take diazepam before attending for work in a safety critical environment.  As an experienced welder and an employee with some eleven years’ accrued service with the Respondent, he ought to have known of the risks to himself and to the health and safety of others of so doing.  He should not have attempted to lay the blame for that ill-judged decision on somebody else, thereby calling that person’s professional judgement into question.  When the veracity of his original story was questioned the Claimant changed his recollection of material facts on a number of occasions.  This justifiably, in the Court’s view, compounded the Respondent’s loss of trust and confidence in his integrity and led to the decision to terminate his employment.

    Deficient Policies & Procedures

    It became evident to the Court, in the course of the hearing, that the Respondent’s policies and procedures were deficient in a number of respects. For example, there are material differences in the disciplinary procedures outlined in the Claimant’s written contract of employment and those set out in the Respondent’s Employee Handbook. The Claimant was not issued with a copy of the disciplinary procedure to be followed in his case at the commencement of the investigation.  Nevertheless, the Court is satisfied that the process actually followed was not tainted to a degree that renders the dismissal procedurally unfair. The Claimant was fully aware of the issue that prompted the initial investigation. However, he compounded matters himself by telling untruths and changing his version of events throughout the course of the investigation.  Full consideration was given to the issues he raised in mitigation, having regard to the level of credibility that could be attached to them. The Claimant was accompanied at all times by his Shop Steward. He received ample opportunity at a face to face meeting with the Respondent’s General Manager to appeal the decision to terminate his employment.

    Case Outcome

    Having considered the Parties’ submissions and the witnesses’ evidence, the Court found that the dismissal was neither substantively nor procedurally unfair and so reaffirmed the decision of the Adjudication Officer.

    Adare Human Resource Management Commentary:

    The need for the application of fair procedure and the appropriate deployment of OHS, as was the case in the above example is critical to defending for unfair dismissal regardless of the extent or nature of the substantive issue that gave rise to the dismissal.

    • OHS - The benefit of effective Occupational Health service and support proved critical in this case. Indeed, had OHS not been deployed then the necessary evidence to bring about a fair dismissal would most likely not have been realised.  Notwithstanding the merits of the OHS intervention in this particular case, one of the prerequisites for the use of Company Doctors’ or OHS relates to the employer fundamental duty of care to the employee.  In all cases whereby a medical condition or alleged medical condition forms part of a potential disciplinary situation, either directly or indirectly that the requirement for an independent medical report becomes fundamental, both in the context of reasonable steps to establish an employee’s medical condition and or fitness for work, as well as evidence gathering, fair procedure considerations and duty of care.  Without the medical report in the above case it is likely there would have been no case to warrant a dismissal, regardless of the substantive allegation.  

    • Mitigating Loss – Over many years in defending employers in unfair dismissal cases the statutory element of the Unfair Dismissals Act that formally requires a Claimant to seek employment after a dismissal is often overlooked in the context of defending the whole case.  Our experience shows that in a significant number of situations a focus on this requirement can be critical in terms of the case and or indeed in significantly reducing any compensation payable in the event of an employer losing a case.  It is clear from the above case that the Labour Court took a dim view of the Claimant’s effort or lack of effort in seeking to secure alternative employment after dismissal.  This in itself appears to have helped the employer given the integrity of the Claimant had already been undermined in proceedings.  In terms of employer cases under the Unfair Dismissal Act focus should always be made on the need for a claimant to mitigate his / her loss.  Appropriate challenge in this area can sometimes be of significant benefit in defending a case.

    • Policies & Procedures – It would be our view that the Employer in the above case was perhaps a little fortunate that the disciplinary procedures to be followed were not issued to the Claimant at the time of investigation and that the version of disciplinary procedures where different in the contract of employment to that in the company handbook, with no explanation for this.  Normally a lack of written procedure or worse still having a written procedure and applying something else would result in a finding of fair procedure being undermined and thus potentially undermining one’s entire defence.  At all times and in the first instance employers must issue the disciplinary procedures they will be following in the particular case and these procedures must be known to the employee either via the contract of employment or company handbook or preferably both.  If this requirement is not met at the very outset of the process the entire process, regardless of the substantive issue is likely to be seriously undermined.     
    ____________________________________________________________________________________________________________

     

    Payment In Lieu Of Notice Ordered As Part Of Dismissal

    Labour Court Determination Ref: PWD1835

    This case relates to a dismissal, but was actually taken under the provisions of the Payment of Wages Act, 1991.  The case is most unusual in that the Labour Court outcome provided for payment of contractual notice in a circumstance of a dismissal being held as fair.  Normally payments in lieu of notice do not apply to dismissals that are determined not to be unfair.  This case however proves to be a very rare exception to this rule.   

    Case Background

    Notwithstanding his dismissal from employment for misconduct the Adjudication Officer found in favour of the Complainant in relation to his claim and directed that that he be paid 9 weeks’ pay amounting to €6,033 as provided for in his contract of employment.  The Complainant was dismissed by the Respondent on the 20th October 2016 without notice. However, in was argued that the Claimant’s contract provided for nine weeks notice or payment in lieu of same.  The staff handbook indicated that in the case of summary dismissal notice or pay in lieu would not apply.  The Respondent accepted in the course of the hearing that the Complainant’s dismissal was not a “summary dismissal”.

    The Applicable Law (Payment of Wages Act)

    Section 1 of the Act states:

    wages”, in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including—

    ( a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise, and

    ( b) any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice:

    Provided however that the following payments shall not be regarded as wages for the purposes of this definition:

    (i) any payment in respect of expenses incurred by the employee in carrying out his employment,

    (ii) any payment by way of a pension, allowance or gratuity in connection with the death, or the retirement or resignation from his employment, of the employee or as compensation for loss of office,

    (iii) any payment referable to the employee's redundancy,

    (iv) any payment to the employee otherwise than in his capacity as an employee,

    (v) any payment in kind or benefit in kind

    Section 5 of the Payment of Wage Act 1991 deals with regulation of certain deductions made and payments received by employers and in particular section 5(6) states;

    “Where—

    (a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

    (b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

    then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion”.

    Case Outcome

    The Court concluded that it is clear from the definition of wages set out in the Act in Section 1 that payment in lieu of notice falls within the remit of the Act.  It is not disputed that the payment was not made nor is it disputed that their existed a contractual obligation to pay nine weeks’ notice.  In these circumstances the Court found that the failure to pay the appropriate payment in lieu of notice was an “unlawful deduction” in accordance with the Act and so the amount of €6,033 falls to be paid to the Complainant.  Critically, this was in the setting and context in which the Complaint was actually found to have been fairly dismissed.

    Adare Human Resource Management Commentary:

    Summary Dismissal - In simple terms, this case actually centres upon and relates to the single word “Summary” in the context of “Summary Dismissal”.  The Minimum Notice Act provides for no statutory notice or payment in lieu thereof to be afforded or paid by an employer to a dismissed employee in a circumstance of Summary Dismissal and this was also the case in relation to the above Claimant’s contract of employment.  However, in the above proceedings it was accepted by the Respondent (employer) that the dismissal was for “misconduct” as opposed to “gross misconduct” and the word “dismissed” from employment was applied, instead of “summarily dismissed”.  In essence, from a strict legal point of view this meant that payment for notice became a requirement.

    Letters’ of Dismissal – Employers and HR Practitioners are reminded that in cases of unfair dismissal, or related cases comparable to the above then in all such cases the letter of dismissal becomes absolutely critical to the employers’ defence – remember this is in all cases – no exception.  Therefore, there can be no assumptions made that might give rise to even potential legal ambiguity.  In the case of dismissal for gross misconduct the letter of dismissal must include that said dismissal is for the particular act of gross misconduct, with the words “gross misconduct” clearly applied.  The same applies to stating the dismissal as a “summary dismissal”.  In the absence of these clear statements then one runs the risk of paying notice in a circumstance of clear wrongdoing, as appears to have been the case in the above set of proceedings. 

    ____________________________________________________________________________________________________________

     

    Signed Compromise Agreement Challenged In Unfair Dismissal Case   

    Labour Court Determination Ref: UDD1868

    In this case the legitimatise of a “Compromise Agreement” is challenged under the Unfair Dismissals Act.  The Compromise Agreement in question was entered into in the context of a redundancy and covered the application of a related ex-gratia payment over and above the compensation provisions with the Redundancy Act 1977.      

    Case Background

    The Complainant was employed by Starrus Eco Holdings Limited T/A Greenstar (‘the Respondent’) as a Site/Yard Supervisor until the termination of his employment on 30 September 2016 on grounds of redundancy.  In or around that time, the Parties entered into a waiver agreement which was evidenced in writing and which made specific reference, inter alia, to the 1977 Act.  The Complainant received and retained an ex gratia payment in consideration of his entering into the waiver agreement.  The Complainant availed himself of the opportunity to take independent legal advice prior to signing the waiver agreement.

    Submissions

    Counsel for the Complainant urged the Court to go behind the waiver agreement as, in his submission, the Complainant - in signing the agreement - had relied and acted on an alleged  misrepresentation made to him by a representative of the Respondent.  In support of his submission in this regard, Counsel directed the Court to a decision of the UK Employment Appeal Tribunal (Smith and Others v Jackson Lloyd Ltd and Another(2014) UKEAT/0127/13, [2014] All ER (D) 157 (Apr).

    Counsel for the Respondent submitted that this Court does not have jurisdiction to consider the appeal in circumstances where the Parties concluded a legally binding compromise agreement, in which the Complainant has waived his statutory right to pursue a claim under the 1977 Act, and in which he entered into with benefit of independent legal advice.

    Case Outcome

    The Court affirmed that it does not have jurisdiction to go behind the wavier agreement entered into by the Parties and continued that in all the circumstances the appeal fails.

    Adare Human Resource Management Commentary:

    Compromise Agreements / Waivers – The application of “Compromise Agreements” or legal waivers in circumstances relating to an “agreed” termination of employment are obviously critically important and indeed commonplace.  However, what one must always ensure is that it is not good enough in the context of withstanding a subsequent challenge if the agreement has not been reviewed by a Solicitor for the employee in advance of him / her signing.  There was once a general acceptance in the past whereby Trade Union Officials would suffice for this legal purpose, but more recent case law has put paid to this.  It is also not good enough to state on such an agreement that the employee “should get legal advice before signing”.  In all circumstances the employer should do all that is practicable to best ensure the employee in such a setting gets the required legal review of any such waiver document. 

    In the above case, had the Claimant not actually received legal advice arranged for by the Respondent then in all likelihood the claim for unfair dismissal would have been upheld, even in the setting whereby compensation for loss of office / job was provided.  Again, in all such matters leave nothing to hope, chance or someone’s goodwill.

  • Help Desk - Risk Assessments for Pregnant Employees / Risks associated with Pregnant Employees

    by Hayleigh Ahearne
    Jan 31, 2019

    The Safety, Health and Welfare at Work (General Application) Regulations 2007, Part 6, Chapter 2, Protection of Pregnant, Post Natal and Breastfeeding Employees (from now on referred to as The Pregnancy Regulations) apply when an Employee informs her Employer that she is pregnant, has recently given birth or is breastfeeding and provides an appropriate medical certificate.  As the earliest stages of pregnancy are the most critical ones for the developing child it is in the Employee’s best interest to let her Employer know she is pregnant as soon as possible.

    What other legislation provides protection during this period?

    The Safety, Health and Welfare at Work Act, 2005 and the Pregnancy Regulations, 2007 require that a risk assessment be done as part of the Safety Statement.  This is required in all workplaces. The risk assessment should already have identified any hazards, which may present a risk during pregnancy. The risk assessment specifically required by the Pregnancy Regulations should, therefore, be a re-appraisal of these hazards.

    Also, the Maternity Protection Acts 1994 and Amendment Act 2004 give details on

    • Entitlements to maternity leave;
    • Entitlements to clinic visits;
    • Maintenance of job security;
    • Health & Safety Leave;
    • Health & Safety Benefits;
    • Provisions to encourage breastfeeding.

    What should the Employer do when he/she becomes aware that that an Employee is pregnant?

    Once an Employer becomes aware that an Employee is pregnant, they must assess the specific risks from the employment to that Employee and take action to ensure that she is not exposed to anything, which would damage either her health or that of her developing child.

    What does assess the risk mean?

    This means determining:

    • to what hazards the pregnant woman is exposed;
    • how often the exposure occurs and for how long.

    The main hazards types being:

    • General hazards;
    • Hazards specific to pregnancy;
    • Hazards specific to breast feeding.

    What do General hazards include?

    • Physical shocks - including direct blows to the abdomen;
    • Vibration - of whole body, e.g. using vibrating machinery;
    • Handling a load – specific manual handling tasks;
    • Noise – e.g. noisy assembly lines;
    • Excessive heat or cold;
    • Movement and postures which are abrupt or severe or give rise to excessive fatigue;
    • Ionising radiation, e.g. X-Rays in clinics, hospitals etc;
    • Non-ionising radiation, e.g. microwaves;
    • Biological agents – including viruses, bacteria etc;
    • Chemicals – including substances, which cause cancer, mercury, anti-cancer drugs and carbon monoxide;
    • Stress and/or bullying.

    What are the hazards specific to pregnancy?

    Unless the risk assessment indicates that there will be no injury to the Employee or the developing child, pregnant Employees must not work with:

    • Pressurisation chambers;
    • Rubella – unless adequately immunised;
    • Toxoplasma;
    • Lead and lead substances;
    • Underground mine work;
    • Certain physically demanding tasks – heavy lifting, see manual handling above.

    What are the hazards specific to breastfeeding?

    Unless the risk assessment indicates there will be no injury to the Employee or the developing child, Employees who are breastfeeding must not work with:

    • Lead and lead substances;
    • Underground mine work.

    I am breastfeeding – what are my rights in the workplace?

    The Maternity Protection (Amendment) Act 2004 provides that breastfeeding mothers will be entitled, under legislation, to paid time off for the purposes of breastfeeding or expressing milk in the workplace, where facilities are provided by the Employer, or a reduction in working hours (on full pay) to facilitate breastfeeding where facilities are not provided. The Employer will be required to provide facilities where this does not give rise to more than a nominal cost. These are measures to encourage breastfeeding and not health and safety provisions.

    A booklet with information on how to manage combining breastfeeding and work is available from the Health Promotion Unit, HSE National Breast-feeding Coordinator.

    I am pregnant – does my Employer need to provide a rest room?

    Regulation 24 of the Safety, Health and Welfare at Work (General Application) Regulations, 2007 states “an Employer shall ensure that pregnant, post-natal and breastfeeding Employees are able to lie down to rest in appropriate conditions”.

    I work for long periods at a display screen – is this harmful to my unborn child?

    Pregnant women do not need to stop working with display screen equipment (DSE). The provisions of the Safety, Health and Welfare at Work (General Application) Regulations 2007, Part 2, Chapter 4, Display Screen Equipment apply to all regular users of DSE's.

    What happens when the risk cannot be removed?

    1. If after carrying out a risk assessment, a risk is revealed to the pregnant Employee, the unborn or breastfeeding child, and it is not practical to ensure the safety or health of the Employee through protective or preventive measures, your Employer must then adjust the working conditions or the hours of work or both.
    2. If this is not possible, provide suitable alternative work.
    3. If that is not possible – the Employer should facilitate granting the Employee Health and Safety Leave under Section 18 of the Maternity Protection Act, 1994.
    4. If an Employee during pregnancy and the 14 weeks immediately following childbirth is regularly involved in night work for a period of at least 3 hours between 11.00 pm and 6.00 am or at least 25% of their monthly working time is performed in that period, and has a medical certificate stating that this may damage her health, she must be found alternative daytime work. If this is not possible the Employer must grant the Employee leave including Health and Safety Leave or extend the period of maternity leave.

    What is Health and Safety Leave?

    If a risk is identified, the Employer must remove the risk/adjust the work. If the Employer cannot remove the risk, the Employee must be provided with suitable alternative employment.  If the Employer cannot provide suitable alternative employment, the Employee must be granted Health and Safety Leave in accordance with Section 18 of the Maternity Protection Act, 1994. During Health and Safety Leave, Employers must pay Employees their normal wages for the first 3 weeks, after which Health and Safety Benefit will be paid from the Department of Social and Family Affairs.

  • Is your Organisation equipped to carry out a Workplace Investigation?

    by Hayleigh Ahearne
    Nov 27, 2018

    What is a workplace investigation?

    A workplace investigation is an independent and unbiased investigation into a current problem in the workplace. The demand for investigations in the workplace is increasingly growing. The aim of a workplace investigation process is to gather relevant evidence to determine whether or not an Employee has engaged in misconduct.

    Terms of Reference

    The Terms of Reference set out the issues, objectives and scope of the investigation and should be clear and concise. The Terms of Reference should be designed to fit the allegation which has arose and they should consider the following;

    1. Core issues which need to be addressed in the investigation;
    2. The investigator’s role and responsibilities and the procedure to be followed;
    3. Overall timeframe and interim deadlines;
    4. Identifying the task involved and expected outputs (factual report).

    When would an investigation be necessary?

    An Organisation may choose to initiate an investigation when an incident(s) has occurred that the Organisation may deem potentially inappropriate or a potential breach of their policies such as;

    • A complaint against an Employee in relation to performance or conduct
    • A complaint from an Employee / client / third party in respect of the Employee
    • A complaint of bullying, harassment or sexual harassment

    How Organisations get the Investigation Process Wrong?

    When Organisations are carrying out investigations in theory, they are seeking to identify the specific details of an incident by determining what happened, how it happened, and when it happened, if in fact it did happen.

    However, by trying to find out the above, Organisations often find themselves in a difficult position for a number of reasons. Organisations need to be mindful that the risks associated with poor investigation practices are not insignificant, and mistakes can expose Organisations to significant financial, legal and reputational risks.

    Key mistakes that Organisations often make during the course of an internal workplace investigation include:

    • use of a poorly drafted policy;
    • a lack of pre-investigation planning;
    • being unclear as to what policy or procedure is being followed;
    • combining the investigation and disciplinary steps;
    • lack of, or a poorly drafted, terms of reference;
    • relying on “untested” information and ignoring discrepancies;
    • failing to establish a process that is perceived as independent and non-bias; and
    • delay in undertaking an investigation.

    From our experience we see than more often than not, these mistakes are the results of a lack of experience and skill on the part of the internal investigator appointed by the Organisation. Therefore, we suggest that when the need for an investigation arises for an Organisation, they may benefit significantly through reaching out to a third party in order to get an independent view on the situation and the process that should be followed.

    As mentioned above, another common factor for Organisations getting the investigation process wrong that we have seen a lot of over the last 12 months, is the usage of a poorly draft policy. In our view, having an investigative process guided by a poorly drafted policy is setting the Organisation up for a failed or flawed investigation – and this is sometimes only evident to an Organisation when their policy and procedure actually gets used.

    Another risk with an investigation is the absence of an explicit definition of what is and is not deemed to be fair, in the Organisation policies and procedures which can result in some difficulty in deciding what actions must be taken to ensure that fair procedures, are adopted.

    Where the conclusion is reached that the investigatory process was unfair, this will no doubt be to the detriment of one or all the parties involved in the matter. For Organisations, where they are in possession of a report compiled in unfair circumstances, they will most probably be placed in a difficult position with regards to the investigation report and next steps.

    Principles of Natural Justice

    Ultimately, whether it is an investigation, or a disciplinary hearing being carried out, the principles of natural justice must always be adhered to. Employees should always be provided with the specific allegations against them in writing, and given a copy of any evidence that is being relied on. Where there are witness statements, or there is evidence gathered in the Investigation process, this must also be provided to the Employee in advance of the investigation or disciplinary hearing, to afford the Employee the opportunity to respond to these at that time.

    Relevant Case Law that Organisations should be mindful of in this area

    A notable case is Lyons v Longford Westmeath ETB which concerned a workplace investigation, carried out by an external HR company, into allegations of bullying against a school's deputy principal. The outcome of this particular investigation process included "findings" of bullying against the principal. In this case, the principal was subsequently invited to a disciplinary meeting, at which dismissal and/or suspension were expressly set out to be among the possible outcomes. While the principal was afforded the opportunity to submit his written response to the complaints and to attend interviews during the investigation, he was not entitled to cross-examine his accuser nor was he afforded the right to legal representation. He sought to challenge the fairness of the investigation process in the High Court on these two grounds.

    In the course of his decision, Justice Eager held that where the investigative process can lead to dismissal, "cross-examination is a vital safeguard to ensure fair procedure". He also held that, given that the findings of the investigator could impact on the principal's good name, he should have been entitled to legal representation during the investigation process.

    However there has been two subsequent High Court decisions, E.G v Society of Actuaries Ireland and N.M v Limerick and Clare Education and Training Board each confirmed that the full suite of natural justice rights, including an opportunity to cross-examine witnesses, did not need to be conferred on Employees where an investigation essentially amounts to an information gathering exercise. In any event, particular focus is afforded to the necessity to ensure full and fair procedures which may include the right to cross-examine and the right to legal representation – but, crucially, in the context of an investigation that exceeds the parameters of a simple fact-finding investigation.

    There has also been a recent case, named Iarnród Éireann / Irish Rail v Barry McKelvey, the Court of Appeal indicated that Employees who are the matter of internal disciplinary inquiries will not normally be entitled to have legal representation during such inquiries. The Court of Appeal overturned a decision of the High Court in this case.

    The High Court found that it would be contrary to the principles of natural justice and fair procedures to require Mr McKelvey to engage with the proposed disciplinary hearing without the benefit of legal representation.

    Both the High Court and the Court of Appeal agreed that the leading case in relation to legal representation in disciplinary investigations is Burns and Hartigan v Governor of Castlerea Prison [2009] IR 3 IR 682.

    In the McKelvey case, the Court of Appeal found that the circumstances of the case were such that, applying the principles set out in the Burns and Tarrant cases, no entitlement to legal representation arose.

    The Court briefly considered the case of Lyons v Longford Westmeath ETB [2018] 29 ELR 35. In that case the High Court decided that the failure to allow the accused person to be legally represented amounted to a breach of the constitutional right to fair procedures of the accused person.

    In McKelvey, the Court of Appeal has implicitly suggested that the Lyons decision was incorrect in respect of the entitlement to legal representation. The Court of Appeal said that that the correct test is set out in the decision of the Supreme Court in Burns.

    The issue of cross examination was not decided in the McKelvey case as Iarnród Eireann has at all times made clear that Mr McKelvey will be entitled to cross examine the witnesses.

    It remains the case that an accused person always has the right to challenge (in an appropriate manner) the evidence against him or her. It is also certainly the case that there will be some circumstances in which an accused person will be entitled to cross-examine his or her accusers.

    Conclusion

    Workplace investigations have always been present and although we have seen much greater media and public awareness of these matters over the last 12 - 24 months. As we have outlined above, case law in this area is changing and therefore the running of the investigation process in subsequently changing. As there are a large number of risks with running workplace investigations, the benefits for any Organisation liaising with a third party / experienced investigator to ensure that they are following the correct procedure before commencing an investigative process are evident.

  • Case Law - Reviewed under the WRC

    by Hayleigh Ahearne
    Nov 27, 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.

     

    Employee forced to retire at 70 years old awarded redundancy lump sum

    Adjudication Reference: ADJ-00012438

    Summary of Complainant’s Case:

    The Complainant worked as a bus driver for the Respondent commencing in April 1992. In latter years he was solely utilised in driving on school bus runs. Bus Eireann, who subcontract the Respondent to carry out these runs, have a stipulation in their contract that drivers will not be used after they reach 70 years of age. The Complainant was 70 on 23rd December 2016 and left the Company at that stage, as he could no longer do the school bus runs contracted by Bus Eireann, and he was not offered any alternative employment. The owner of the Respondent Company had informed him that he would give him money after Christmas, which the Complainant took to mean, redundancy money. In spite of repeated requests this money was never paid.

    Summary of Respondent’s Case:

    The Complainant, a Bus Driver, commenced his employment on the 1st of April, 1992. His duties included carrying out the school runs, which took place over two hours in the morning and over two hours in the afternoon, five days a week. The Employee's date of birth is 23rd December, 1946. On reaching his seventieth birthday, Employee ceased his employment with the Company as he was no longer able to carry out the school runs due to his age. The Employee left the Company on the 22nd of December, 2016. Prior to departing his employment, the Respondent offered the Employee alternative work in the form of driving alternative bus routes. The Complainant was offered the same amount of hours and at the same rate of pay. The distinguishing factor being that the alternative bus routes took place once in the afternoon and once in the evening. The Employee did not accept this alternative offer, intimating to his Employer that he "likes his school run hours" or words to that effect.

    The definition of redundancy is set out in Section 7(2) of the Redundancy Payments Act 1967, as amended, being as follows:

    “(2) For the purposes of subsection (1), an Employee who is dismissed shall be taken to be dismissed by reason of redundancy if for one or more reasons not related to the Employee concerned the dismissal is attributable wholly or mainly

    to—

    (a) the fact that his Employer has ceased, or intends to cease, to carry on the business for the purposes of which the Employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the Employee was so employed,

    (b) the fact that the requirements of that business for Employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish,

    or(c) the fact that his Employer has decided to carry on the business with fewer or no Employees, whether by requiring the work for which the Employee had been employed (or had been doing before his dismissal) to be done by other Employees or otherwise,

    or (d) the fact that his Employer has decided that the work for which the Employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the Employee is not sufficiently qualified or trained,

    or(e) the fact that his Employer has decided that the work for which the Employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the Employee is not sufficiently qualified...".

    In ensuring fairness an Employer is obliged to examine alternative employment they might offer the Employee, as evident in O'Connor v. Power Securities Ltd UD 344/89. The case of Paisley v. Mc Cormack Dental Ltd UD 1257/2002 provides that an Employee must be aware that he is being considered for redundancy when he is being offered this alternative employment. The Employer must give all the relevant information to the Employee before he/she rejects the offer of the alternative employment, otherwise the dismissal may be considered to be unfair as seen in Modern Injections Moulds Ltd v. Price [1976]. The nature of the information must be sufficient enough so as to provide the Employee with the ability to make a decision.

    Regarding alternative employment Section 15 of the Redundancy Payments Act 1967as amended provides that an Employee will lose his or her entitlement to redundancy-payment where he/she unreasonably refuses an offer of alternative employment, providing -"15.—(1) An Employee who has received the notice required by Section 17 shall not be entitled to a redundancy payment if in the period of two weeks ending on the date of dismissal—

    (a) his Employer has offered to renew that Employee's contract of employment or to re-engage him under a new contract of employment,

    (b) the provisions of the contract as renewed, or of the new contract, as to the capacity and place in which he would be employed and as to the other terms and conditions of his employment would not differ from the corresponding provisions of the contract in force immediately before his dismissal,

    (c) the renewal or re-engagement would take effect on or before the date of dismissal,

    and(d) he has unreasonably refused the offer.

    (2) An Employee who has received the notice required by Section 17 shall not be entitled to a redundancy payment if in the period of two weeks ending on the date of dismissal—

    (a) his Employer has made to him in writing an offer to renew the Employee's contract of employment or to re-engage him under a new contract of employment,

    (b) the provisions of the contract as renewed, or of the new contract, as to the capacity and place in which he would be employed and as to the other terms and conditions of his employment would differ wholly or in part from the corresponding provisions of his contract in force immediately before his dismissal,

    (c) the offer constitutes an offer of suitable employment in relation to the Employee,

    (d) the renewal or re-engagement would take effect not later than four weeks after the date of dismissal,

    and (e) he has unreasonably refused the offer.

    Precedent has also provided authority that an Employee will incur consequences by failing to accept alternative employment.

    It is apparent that the Respondent did identify and explore less drastic measures than redundancy as he was obliged to do. At all times the Employee was aware of the terms of the sub-contract agreement that on reaching 70 years one was no longer able to carry out the school runs. The Employee commenced employment in and around 26 years ago, and we can reasonably argue was aware of this term, having observed fellow Employees leave their employment on reaching seventy. At no time was the Respondent deceptive as to the terms of the sub-contractor agreements. It is clear that the Respondent discussed other options of employment with the Employee, and that the Employee was aware his school run post was no longer viable at the time of these discussions. The Employee was given a proper opportunity to consider the alternative work. It is apparent the Employee chose to take a dismissive stance, and adduced no real reason apart from a personal preference, as to why he would not apply for the alternative positions.

    The Respondent adequately considered other alternatives to redundancy. The Respondent offered a form of alternative employment, which offered the same conditions in terms of remuneration and hours, which were at a slight variant to those previously worked.

    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.

    Decision:

    The Complainant has argued that he was at no stage told that there was alternative work for him and was effectively given to believe that he was being made redundant. The central plank of the Respondent’s case is that there cannot be a redundancy claim as the Complainant unreasonably declined alternative work, namely other routes with the same conditions of employment.

    The Respondent in its written submission has argued that there was an implied term that bus drivers with the Respondent retire at 70. However, in evidence at the hearing, the Respondent stated that there was no retirement age in the Company. There is no contract or terms of employment which specified a retirement age. In the absence of a written contract the Complainant’s employment was open ended and the fact that he was 70 was irrelevant, other than in relation to the contract with Bus Eireann.

    If the Complainant had refused suitable alternative work then this would indeed be a defence to the redundancy claim. It is the Respondent’s position that he did refuse such work. However, the evidence would suggest that the Respondent did not communicate effectively with the Complainant that there was other work available to him. There is nothing in writing to indicate that he adequately communicated this essential information and the Complainant denies that it was ever mentioned.

    The Adjudication Officer also noted that the Respondent did not ask the Complainant about whether or not he had renewed his licence – a requirement on reaching the age of 70. If the Respondent intended to continue the employment relationship this would have been an essential piece of information. The Complainant did in fact renew his licence on 16th December 2016 and went on to secure work with another Company which would indicate that he did not intend to retire which would support his legitimate belief that there was no work with the Respondent.

    The Adjudication Officer was therefore satisfied that this was a redundancy situation and the complaint is well founded. The Adjudication Officer awarded the Complainant a redundancy lump sum payment under the Redundancy Payments Acts 1967 to 2014 based on the following details.

    Date of Commencement:     1 April 1992

    Date of Termination:            22 December 2016

    Gross Weekly Pay                 €300

    This award is made subject to the Complainant having been in insurable employment under the Social Welfare Acts during the relevant period.

    Adare Human Resource Management Commentary:

    The area of redundancy has seen significant growth in recent years, which brings about the need for Organisations to have an increased awareness relating to all aspects of redundancy.

    • A genuine redundancy is taken to exist where one of the following arise:
    • The Employer ceases to carry on the business for which the Employee was employed, or ceases to carry on the business at the same place where the Employee was employed.
    • The work for which the Employee was employed has ceased or the requirement to perform that work has reduced.
    • The Employer has decided to carry on the business with fewer or no Employees. Work may be reallocated to other Employees.
    • The work which the Employee performed is to be performed in a different way and the Employee is no longer qualified to undertake the work.
    • The Employee’s work is to be undertaken by another person who is sufficiently qualified and capable to undertake other work for which the Employee is not sufficiently qualified or trained.

    ____________________________________________________________________________________________________________

     

    Non-payment of an Employees bonus found to be an unlawful deduction

    Adjudication Reference: ADJ-00014267

    Summary of Complainant’s Case:

    The complainant works in the finance department on credit control and credit payments. The respondent sells and provides medical products and services to the health sector.

    The complainant’s understanding is that her contract entitles her to payment of a bonus of 10% of gross salary subject to having met her targets and achieved agreed objectives. Her contract states

    “Participation in the annual bonus scheme. You have the potential to earn up to l0% of your basic gross salary per annum based on successful achievement of agreed objectives. Bonuses are paid bi-annually in June and December each year. On successful completion of your probationary period you will be eligible to begin earning your bonus based on successful achievement of agreed objectives’.

    The target which she must reach to earn the bonus is receipt of payment within 44 days of invoicing a customer. The complainant exceeded her target and receives payment within 36 days. She has scored the top mark which is achieving in excess of expectations in appraisals. She has met her targets and achieved her objectives.

    However, despite making €7.1 million profit this year, the respondent decided that bonuses should not be paid to the ground staff. The bonus payments have been up and down since 2009 but this is the first year since 2009 that she got no bonus.

    She took her complaint through the respondent’s grievance procedure to no avail. She appealed the refusal to grant her the bonus and the appeal was not upheld.

    Her contract indicates that she should have received a full bonus every year. She is seeking the bonus for 2017 only.

    A presentation was delivered to staff in July 2017 indicating that the respondent was not reaching its profit target. She was never previously advised that there was an additional requirement – meeting of company wide targets.

    The first notification to her that bonus would not be paid was in November 2017. Her performance and development review for 2017 does not refer to company wide targets. The company did not reach 90% of its target, was €1.3 m behind their target, and this was cited as a reason to withhold bonuses. Her contract does not specify that her bonus is dependent on organisational -wide meeting of targets. The claimant states that her contract only requires that she meets her own personal targets. She asked why were targets and objectives set for her if no bonus was payable.

    From 2002- 2009 she earned a bonus of 10% each year.

    The complainant understands that sales staff get commission or a bonus. 

    Summary of Respondent’s Case:

    The respondent HR manager gave evidence.

    The claimant is employed as a Credit Controller since 2002. The respondent provides healthcare products and services to the health sector.

    The claimant is eligible to participate in the respondent’s bonus scheme which is applicable to all employees within the support services and management cohort, subject to the achievement of both personal and company objectives for the relevant financial year. Payment of a bonus was always contingent on meeting company/ departmental targets in addition to meeting personal objectives and targets. The respondent’s parent company sets the budgeted operating profit target for them. The respondent states that they have full discretion not to pay any bonus.

    On the 15th November 2017, an announcement was made to all support and management services employees confirming that due to poor financial performance of the Company for the financial year, the respondent would not be in a position to pay annual bonuses for the year 2017. The HR manager referred to a previous meeting held in July 2017 where it was disclosed that the respondent, as a whole, was €1.3m behind its financial targets for the year to date as at the end of June. Meetings with staff were scheduled for November. An email of the 7 November from the Director noted that

    “The division has ended 13% behind our budgeting operating target. Unfortunately, due to A’s poor overall financial performance in FY17, the business will not be able to pay any year-end bonuses this year. This includes all support services and management”.

    This message was communicated to all staff.

    On 4th December 2017, the claimant lodged a formal grievance with the respondent regarding the respondent’s decision not to pay her an annual bonus in 2017 and asserting a contractual entitlement to same. Neither her grievance nor her appeal was upheld. It was conducted in accordance with the agreed procedure

    Bonus Scheme.

    The respondent operates four separate bonus schemes specific to different categories of employees across its business. The complainant is eligible to participate in the Support Services and Management bonus scheme. All of the respondent’s bonus schemes have a company performance element to them

    The respondent submits that the bonus payment sought by the claimant was not properly payable to her on the basis that while the performance objectives of the claimant were achieved, those of the company were not and this was a fundamental element of the bonus scheme. This had been communicated to the claimant earlier in the year. The respondent submitted a framework document in the name of the parent company, dated 19/2/2009, and unsigned, in which it included group / divisional performance as one indicator in a sample score sheet used to calculate the bonus due to the complainant. As the bonus payment was not properly payable, there has been no contravention of the 1991 Act.

    In support of their argument that the bonus is not properly payable they rely on the Labour Court determination in the case of Bord Gáis Energy Limited v Thomas (PWD1729). The court stated that” in order for an employee to claim that monies have been unlawfully deducted, it must be established if those monies were “properly payable” to them under their contract of employment and concluded in that case that:

    “The question that arises is whether, or not the [bonus] payment was properly payable to the complainant. …The Court was satisfied that the Complainant did not meet the criteria to be eligible for a payment under the scheme. Therefore, the bonus arising from the PRA scheme was not “properly payable” and no contravention of the Act occurred”.

    The respondent also submitted the determination in HR Foods and Noel O’ Loughlin, PWD 1815 where there was a dispute about whether the complainant had met the KPIS and his complaint was not upheld.

    The respondent respectfully requests that the claimant’s claim be dismissed. 

    Legislation:

    Payment of Wages Act, 1991 sets out the ways in which an Employer may legally pay an Employee their wages/salary and also regulates situations in which an Employer may make deductions from wages, or require payments from an Employee. 

    Decision:

    The question for determination is whether the respondent in withholding the bonus has infringed section 5 (6) of the Act of 1991 which states

    “the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

    (b) [….]

    then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion”.

    Bonus payments are encompassed within the definition of wages in section 1 (a) of the Act of 1991.

    Three issues need to be addressed

    Did the respondent have discretion not to pay any bonus?

    Was the bonus properly payable?

    The claim for a bonus of 10%.

    Did the respondent have discretion not to pay any bonus?

    What is in dispute in this case is the legitimacy or otherwise of importing into frame a criterion which was not stated in the contract.

    The respondent asserts that he has discretion not to award any bonus based on their assertion that a companywide performance was always an element of the bonus scheme. There was no flexibility clause in the complainant ‘s contract to vary the obligation to pay up to 10%, no statement about the power to introduce different criteria to decide on whether a bonus should be paid at all.

    The matter of discretion to award a bonus was dealt with in the case of Cleary & Others v B&Q Ireland Limited (High Court, 8 January 2016) IEHC 119. This was a judicial review against the decision of the EAT to uphold the employer’s right to withhold a summer bonus from the B and Q employees due to a financial downturn. The High Court, however, stated that while B&Q had wide discretion under the terms of the contract to withdraw the bonus scheme, superimposed on that was the obligation to excise such discretion reasonably even in circumstances where the contact, as in this case, expressly allowed for a withholding of the bonus. The Court did not accept that the terms of the scheme allowed B&Q to withhold the summer bonus, which had already been earned and was due. Mc Dermott J., stated

    “The discretion to withdraw the bonus scheme at any time, in my view, was always intended to apply in futuro and attached to the conferring of bonuses, as yet unaccrued, under the terms of the scheme. The payment of the bonus crystallised as a contractual obligation once it was “earned” in accordance with the terms of the scheme as operated.”

    McDermott J., in Cleary relied on the conclusions of Smyth J., in Finnegan –v- J&E Davy [2007] IEHC 18, a case concerning the withdrawal of a quantifiable bonus which was a unilateral change in the conditions of employment. Smyth J had observed that

    “The plaintiff could reasonably expect as a matter of principle built up from a number of years of consistent conduct in the payment of bonuses and the matter of discretion never having been mentioned to him at any stage that some bonus would be payable – the amount only dependent on the trading activities of the firm and his own performance.”

    Mc Dermott J., held it to be unreasonable to retrospectively withhold a bonus whatever about the possibility of the contract allowing for a future withdrawal of the summer bonus.

    So also, in the instant case, the financial year runs from October to September. It is then that the contractual obligation to pay the bonus is realized- the complainant having met the performance indicators for the financial year 2017. The complainant was only told in November 2017 that the bonus would not be paid in respect of the 2017 financial year which ran from October 2016 – September 2017.

    The respondent requests that consideration be given to the fact that no other employee secured a bonus. He submitted copies of contracts of employees in other divisions of the company after the hearing. The contracts of these other employees differ from the unqualified statement in the complainant’s contract. Those other employees ‘contracts have statements such as “the criteria for payment of the bonus will be decided by the company” ; “bonus payments are conditional on the technical service department achieving their annual financial target”; “targets are agreed by the senior management team each year, 2011”;   Sales department-the terms of the   Scheme may be revised by the company and all bonus payments are contingent on group performance based on successful achievement of agreed objectives “There are statements in these other contracts allowing for a variation .In the instant case the complainant’s contract, a contract different to employees in other divisions, offers a bonus based on agreed objectives which the respondent admits she has exceeded, and on its face permits of no factors external to her own performance to deny her the bonus.

    It is a fact that except for 2009 when the company were seeking extensive redundancies because of the advent of the recession, the complainant secured a bonus each year.

    Her contract on its face does not provide for a zero-bonus. Her contract makes no reference to any other procedures, policies for determining her eligibility for a bonus

    Her contract, the evidence submitted and the decision in Cleary lead me to find that discretion does not lie with the respondent to award no bonus.

    Was the bonus properly payable?

    For a claim of unlawful deduction to succeed, it is necessary to demonstrate that the payments which have been deducted are “properly payable”

    The complainant’s contract allows for a bonus of up to 10% of gross annual salary. The complainant’s contract has no flexibility clause; no power to vary its terms. The contractual guarantee contained in the contract was not linked to the profitability of the company. it’s a stark statement that she has the potential to earn a bonus of up to 10 % subject to meeting agreed objectives. The contract is between the complainant and the respondent and not with the parent company who produce the guidelines and the profit targets necessary for payment of bonuses- an unsigned copy of which was submitted by the respondent. The objectives stated in the contract can only be agreed between the complainant and the respondent. What companywide profit margins will generate a` release of a bonus is not a matter or an objective which the complainant can agree with the respondent let alone influence. As such it is difficult to see how companywide profitability could be an objective to which she could agree in a contract. The operating profit margins are decided by the parent company. Her contract makes no mention of any companywide objectives.

    The cases concerning non- payment of bonuses, cited by the respondent in support of their case that the complainant’s bonus was not a properly payable wage element, are distinguishable from the instant case. In both these cases it was the contractual obligations and entitlements which informed the Court’s determinations. The Court in Bord Gais Energy Ltd v Niall Thomas, PWD 1729, gave considerable weight to the contract which stated, “your eligibility for payment in any year shall be considered and determined in accordance with the criteria established by the company.” The complainant’s contract “sets out the eligibility requirements for payment of the PRA and that the complainant confirmed in evidence that one of the criteria was that he be in employment on the date of the payment”.

    The complainant had resigned by that time.

    The complainant’s contract in HR Foods and Noel O’ Loughlin, PWD 1815 stated “a bonus scheme of up to 30 % of salary is dependent on agreed KPIs.” There was a conflict as to how far if at all the complainant had achieved his agreed KPIs. The Court held that it could not retrospectively assess whether the complainant had met the KPIs, but the issue of what the contract stated was what needed to be looked at to see if it was properly payable.

    On the basis of the complainant’s contract, the evidence and for reasons stated above I find that the bonus was properly payable.

    The Adjudication Officer found the non-payment of the bonus to the complainant to be an unlawful deduction

    Claim for a bonus of 10%.

    It is accepted that the complainant exceeded her targets and objectives- a precondition for payment of a bonus of up to 10%.

    But the table produced by the respondent demonstrates that since 2009 the custom and practice is that the bonus has fluctuated between 2 and 10%, but never sank to zero. The complainant made only one reference to a personal factor (she did not smile enough), which may have depressed her bonus. Otherwise she submitted no evidence to explain why her bonus dipped below 10%.

    The complainant maintains that she questioned the payment every year. The respondent states that she never made a formal complaint until 2017, and neither has any other employee protested. The contracts of other employees allow for a variation on the amount and as to whether they will get a bonus.

    The Adjudication Officer found that she acquiesced in the fluctuating rate of the bonus which was paid to her over a seven-year period.

    The Adjudication Officer did not find that the contract as expressed permits for the non-payment of any bonus based on an absent term in the contract (companywide performance).

    The Adjudication Officer found the non-payment of a bonus to the complainant to be an unlawful deduction.

    The remedy allowable under the Act of 1991 provides in section 6 that;

    “(2) Where a rights commissioner decides, as respects a complaint under this section in relation to a deduction made by an employer from the wages of an employee or the receipt from an employee by an employer of a payment, that the complaint is well-founded in regard to the whole or a part of the deduction or payment, the commissioner shall order the employer to pay to the employee compensation of such amount (if any) as he thinks reasonable in the circumstances not exceeding—

     (a) the net amount of the wages (after the making of any lawful deduction therefrom) that—

     (i) in case the complaint related to a deduction, would have been paid to the employee in respect of the week immediately preceding the date of the deduction if the deduction had not been made, or

     (ii) in case the complaint related to a payment, were paid to the employee in respect of the week immediately preceding the date of payment, 

    Other decisions cited have dealt with a claim for an agreed or quantifiable sum. In this case I accept that the contract allows for discretion on the amount. The complainant has met her objectives.

    In 2011 the respondent states that the company objectives were not met yet they paid the sum of 2% as an incentive to staff.

    The Adjudication Officer decided that the respondent should pay the complainant a bonus of 2% of her salary which equals €750. 

    Adare Human Resource Management Commentary:

    Bonus and incentive programs can effectively incentivize employee results and behaviour. However, if not properly developed and implemented, they can, in fact, present a barrier to business success for Organisations. Organisations are encouraged to look at total reward when considering financial and non-financial reward and recognitions programmes and ensure any such programmes are effectively designed and implemented.

    ____________________________________________________________________________________________________________

     

    Disputed Dismissal – Adjudicator considers that sequence of events holds all the ingredients of a dismissal

    Adjudication Reference: ADJ-00013076

    Summary of Complainant’s Case:

    The Complainant claims that he was employed with the Respondent from 10th June 2015 until 16th December 2017 working in the lounge area of the hotel collecting glasses. He said that he was paid in excess of €70 per week, he worked every Saturday night, for approx. 8 hours work.

    He claims on the night of 16th December 2017 while working in the outside area collecting glasses he came across one of the managers, Mr. A, shouting at another member of staff about broken glass on the floor. He said that the manager then turned and started shouting at him. The Complainant said that he asked the manager to stop shouting at him, as he was embarrassed in front of customers and staff, Mr. A got more aggressive and said, “you’re walking around with your head up your arse”. He said that he asked Mr. A again to stop shouting at him, eventually Mr. A told him to go home. He said that he took his apron off, handed it to another manager Mr. B, clocked out and went home.

    The Complainant said that the next day he checked the ‘group chat app’, which was his communication link to his employer, it was used by Mr. B who sets the weekly roster, and noted that his name was left off the roster for the following week. He said that he went in to the Respondent and met with Mr. B and said that he noted that he had been removed from the roster, he said that he asked for his P45, a reference and a letter explaining why he was dismissed. He said that Mr. B said that he should come in and discuss the issue with Mr. A.

    The Complainant said that he was not due to work on the Sunday 17th December, as was suggested by the Respondent.

    Following cross examination, the Complainant was invited to present evidence including copies of rosters to show that he was not down to work on 17th December and where his name was completely removed from the list of staff.

    Summary of Respondent’s Case:

    The Respondent said that the Complainant had been working Saturday evenings with it for some time. It said that there were no problems with him prior to the evening of 16th December 2017. Mr. A was in attendance at the hearing and said that when he happened to come across the area that the Complainant was responsible for, he noted that it was a mess and there was broken glass all over the floor. He said that the night in question was not particularly busy. He approached the Complainant and told him to do his job when, in return, the Complainant said he would do it when he was ready, to which Mr. A said, “either do your job or go home”. The Respondent said that the Complainant took off his apron and left and they had taken that he had quit of his own volition.

    The Respondent said that the Complainant was due to work the following day on the Sunday evening of the Bank Holiday weekend and he never turned up to work. The Respondent said that Mr. B met with him and asked him to come back in to have a chat to which he said that he would come back in to work with Mr. A.

    One of the Respondent’s directors also attended the hearing and said that Mr. B has since left the business and was not available to explain why the Complainant’s name was removed from the staff roster. He also said that he too met with the Complainant and sought to get a resolution but the Complainant was not willing to look for a solution.

    Following cross examination, the Respondent was invited to send in copies of rosters for that period, which it claims shows that the Complainant was down to work on the Sunday, 17 December 2017.

    Legislation:

    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:

    Firstly, the Adjudication Officer must determine whether there was a dismissal or not, and finally, should the Adjudication Officer find that there was a dismissal, was this unfair in the context of Section 6 the Unfair Dismissals Act 1977.

    The fact of the dismissal was very much in dispute between the parties in the present case. Accordingly, it is a matter for the Complainant to establish that he has been dismissed by the Respondent.

    The Complainant was an Employee with the Respondent for approximately two and a half years. From the evidence adduced, he worked every Saturday evening, and it would appear there were no major issues in that time until the night in question when the Complainant and Mr. A had an altercation. The alternation is not disputed but the parties’ perspective differs significantly. The simple consequence of the situation is that the Complainant has not returned to his employment with the Respondent following that night.

    The Complainant’s evidence is that his connection with his employer was via the ‘group chat app’, he was not due to work the following day and he noted that his name was completely removed from the roster going into the future. He also said that no one from the Respondent contacted him to explain. The Respondent claims that the Complainant left the night in question, failed to return for duty the following evening, and it had taken from this that he had left by his own volition.

    The Adjudication Officer was satisfied that there was an altercation at work and there is a breakdown in communication. However, the Adjudication Officer was satisfied that the onus is with the Respondent to ensure that its employees are fully aware of what is happening as regards their work requirements. The Adjudication Officer noted the only employment interaction that the Complainant has with his employers is via a ‘group chat app’, which shows a roster with his name removed from the list of employees working there. That roster appears to be the catalysis for the case before me for consideration.

    The Adjudication Officer noted that it was the Complainant who approached the Respondent wondering why he had been removed from the roster and dismissed and he met with Mr. B, who is responsible for setting staffing arrangements for the Respondent. Mr. B was not present at the hearing to give evidence. A hand-written note was handed in to me at the hearing signed by Mr. B, but it does not address many of the key points that require examination in this case. The evidence at the hearing is that the Complainant walked out and did not come back for his shift the following day and therefore he was not put on the roster the following day for the following week. The Adjudication Officer asked for evidence of the Sunday night roster to support this from the Respondent at the hearing and none was presented. However, the Adjudication Officer was presented with copies of rosters captured from the Complainant from the ‘group chat app’, which support his oral evidence that he was not down to work the following evening Sunday 17th December and that his name was removed for the list completely after that, having worked there for the past two and a half years without change.

    The Adjudication Officer found that the sequence of events holds all the ingredients of a dismissal. The Adjudication Officer noted that it is the Complainant who seeks clarification after the evening of 16th December, it was he who went into the Respondent the following week and met with Mr. B to seek answers. The Complainant presented in evidence an exchange of correspondence he had with the Respondent stating quite clearly that “he did not leave that he was not rostered to work”. He has sought the reasons why he was dismissed. He was the one who instigated all the contact with the Respondent from that initial stage. The Adjudication Officer noted the Respondent said that it looked to resolve matters some months later, but it appears all too late. The Complainant’s evidence has remained consistent throughout and the Adjudication Officer preferred it over the Respondent’s evidence. The Adjudication Officer deemed that the facts in this case suggest to factors that amounts to a dismissal that was unfair in the circumstances.

    The Adjudication Officer found that re-instatement is not appropriate given the breakdown in the relationship that has occurred and the Complainant has moved on with his life and has chosen a new career path, where he is earning more now than he was when employed with the Respondent. Accordingly, the Adjudication Officer found that compensation is the more appropriate remedy.

    The Adjudication Officer noted that the Complainant said that he took up an apprenticeship at the start of the summer and his overall loss is equivalent to approximately 20 weeks work in all. The Adjudication Officer was satisfied that he is entitled to this. The Complainant’s evidence that he was paid over €70 weekly, whereas the Respondent said it was somewhere between €75 and €85 per week. Based on the higher amount of €85, multiplied by the 20 weeks, the Adjudication Officer deemed that the Complainant is due €1,700 for that period and the Adjudication Officer was satisfied that this is the amount of compensation that is appropriate in this case.

    Adare Human Resource Management Commentary:

    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. 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.

  • Help Desk - It’s the time of year - Christmas Parties and Annual Leave Considerations

    by Hayleigh Ahearne
    Nov 27, 2018

    Given the time of the year, this month we have focused on Dignity at Work and Employee attendance at Company events. The annual Christmas party, whilst a way of the Organisation demonstrating its appreciation for all of the hard work put in by Employees throughout the year, it can become problematic at times from an Organisation’s perspective. The Christmas party can be a great team building opportunity, but it is important to remember that an Employer may be liable for the conduct of its Employees at a Christmas party organised by the Employer, even when a party takes place somewhere other than in the workplace. 

    Employers should ensure that Employees understand the standard of conduct expected of them and that they are expected to observe the provisions of the Dignity at Work and Anti-Bullying, Harassment and Sexual Harassment policies at work related events.

    Practical steps to preventing an incident occurring:

    When organising your Christmas party, or work-related event, there are a number of elements to consider in order to limit the potential issues which may arise after Christmas for the Manager or the HR team. No member of Management of any Organisation will wish to begin the New Year dealing with the potential fallout caused by inappropriate conduct at the Christmas party, or other work-related event.

    It should be made clear to Employees that should there be an incident or a subsequent allegation that these will be dealt with in exactly the same manner as if same had occurred during working hours. It is important that the Organisation takes reasonable steps to ensure that incidents at the Christmas Party or work-related event do not occur. Procedures which should be brought to Employee’s attention prior to the event should be:

    • Dignity at Work – To cover anti-bullying, harassment and sexual harassment;
    • Email, Internet and Social Media – To cover Employees tweeting, using snapchat, or sending pictures of colleague via another medium without permission or consent of their colleagues or Employer;
    • Attendance at Work – To cover the Employees who contemplate not attending for work the day after the Christmas party;
    • Grievance and Disciplinary – If a case arises where there is misconduct, or an Employee has a work related grievance. 

    Considerations when planning a Christmas Party:

    Attendance of Event: If the Christmas party is out of hours, the Employer must understand that some people have family responsibilities that may prevent them attending, therefore Employees should be made aware of the fact that they are not obliged to attend the Christmas Party.

    Food and Drink: If, as is in the cases of a lot of Christmas parties and work-related events, there is alcohol to be served, any free alcoholic beverages should be limited. Giving this, Employers also need to be sensitive to Employees who don't drink alcohol or who don't eat certain foods, and should ensure there are non-alcoholic drinks available and alternative food options.

    Travel Facilities: Despite Christmas parties occurring mostly outside of the workplace, responsibility still lies with the Employer for the protection and safety of their Employees. Therefore, Employees should be provided with the details of public transport routes, or taxi facilities in the area where the event is being held.

    Absence Management: Where the Christmas Party falls on a day whereby Employees will be required to attend work the following day, Employers should communicate to Employees that an Employee should not be at work under the influence of drugs or alcohol so that they do not endanger their own or another person's health and safety at work. Depending on the Organisation and the work they do, it may be preferable to host the Christmas party / social event at the weekend, this would ensure that Employees do not need to attend work the day after the event.

    Inappropriate Discussions: Christmas parties or work-related events are also not the appropriate location for discussions in relation to performance, promotion, salary or career prospects. Words of encouragement and good intentions can be misinterpreted and may cause future issues.

    Email, Internet and Social media:

    The use of the internet and social media has grown substantially in recent years and continues to do so at pace. As a result of this, the impact of its use and misuse are raising more and more questions for Employers and businesses. It is without a doubt that social media has strengthened communications between the consumer and the business, allowing for a much greater engagement.  However, as briefly outlined above, Organisations need to be mindful of the use of social media and the effects, both positive and negative, that it may bring on Organisations. Given the time of year with Christmas Parties being on the agenda for the majority of Organisations - Organisations need to ensure that their Employees are aware of the risks associated with the usage of social media both during and after working hours. 

    The risks of reputational damage and defamation from posts on Facebook or other such fora made on social networking sites can be significant. Employees must understand the risks associated with using social media, and Employers must ensure that Employees actually know what is expected of them and the consequences of misusing social media if it affects or impacts on their work and/or the Organisation. This should be outlined in the Social Media and Internet Usage Policy.

    The Social Media Policy and Internet Usage Policy should state what is deemed to be unacceptable use of social media;

    • disclosure of confidential or proprietary information;
    • comments directed at colleagues – potential bullying or harassment;
    • defamatory or disparaging comments that may bring the Business into disrepute - directed at the Employer, the Employees, competitors or business contacts;
    • excessive use during the working day;
    • allowing personal views to appear to be from or be endorsed by the Organisation;
    • posting photographs taken at social work events without the permission of the Organisation.

    The social media and Internet Usage Policy should always be linked to the disciplinary policy, to ensure that where there is breach or concern that this may be dealt with accordingly.

    Over the past number of years, we have seen many cases where the line between the Employees personal lives and work life has become blurred as a result of their actions online.

    This is especially noteworthy when one considers the case of the dismissal (that was upheld as being fair) of an Employee (Teggart V Tele Tech UK Ltd) after posting inappropriate comments about a female colleague on his own personal social media account and on his own time.

    In the case of Daly V Donnybrook Fair, we saw an award of €5,000 being issued. Mr Daly made comments on Facebook that were described as ‘derogatory, offensive and inappropriate’ relating to his Employer, and whilst the WRC noted that there were satisfied that the claimant contributed significantly to his own dismissal, they also noted flaws in the Company’s policies and procedures that rendered the dismissal unfair. This case highlights the importance of ensuring that the appropriate procedure is followed when managing such issues.

     

    Christmas and Public Holidays for 2018

    This year, with Christmas Day (25th December) falling on a Tuesday and St Stephen’s Day (26th December) on the Wednesday, this means that Employees who normally work on these days will be entitled to a benefit for these public holidays (benefits for full and part time Employees outlined below). New Year’s Day (1st January) also falls on a Tuesday this year, which also then attracts a benefit as outlined below.

    This means that Thursday 27th and Friday 28th December are normal working days for a lot of Organisations and Wednesday 2nd January 2018 being the return to work day in 2018 for most Employees.

    Public Holiday Benefits- Full-time Employees:

    A full-time Employee is automatically entitled to a benefit in respect of a public holiday on commencement of employment. 

    Where the public holiday falls on a working day the benefit for a full-time Employee will be one of the following, as decided by the Employer;

    • a paid days leave on the day which the public holiday falls, or
    • an additional days pay in respect of the day where the day is worked, or
    • an additional day of annual leave where the day is worked, or
    • an additional day of leave to be taken within a month of the public holiday where the day is worked.

    Where the day falls on a day on which the full-time Employee would not normally have been required to work, he/she will be entitled to a benefit equivalent to 1/5th of their normal working week e.g. on a 40 hour week the Employee would be entitled to a benefit equivalent to 40/5 = 8 hours. Alternatively, the public holiday may be carried over until the next working day and awarded as a paid days leave at that time.

    Public Holiday Benefits- Part-time Employees:

    In order for a part-time Employee to be entitled to a benefit in respect of a public holiday, he/she must have worked a total of 40 hours or more over the preceding 5 weeks for their Employer.

    Where the public holiday falls on a normal working day for a part-time Employee, the benefit will be one of those outlined above for full-time Employees, calculated on the basis of the hours that the part-time worker would have worked on that day.

    Where the public holiday falls on a day on which the part time Employee would not normally work, then he/she will be entitled to a benefit equivalent to one-fifth of their normal working week.   In the case of a job sharer the benefit will be equivalent to one tenth of two working weeks where the public holiday falls on a day not normally worked.

    Carry Over of Statutory Annual Leave:

    Where an Employee is unable to avail of their statutory annual leave during the leave year, the Employer is obliged to allow the Employee to carry over their leave and take it during the first six months of the following leave year. Therefore, best practice is to encourage Employees to avail of their annual leave entitlement during the leave year.  Where it becomes apparent that Employees have not taken their leave, it is recommended that the Employer writes to them to confirm that they should take their leave and possibly offer dates when it will be possible to take time off. Organisations in certain sectors insert a term into the statement of main terms and conditions of employment requiring Employees to take annual leave at particular times of the year. Any such requirement should be justifiable on the basis of business requirements, e.g. seasonality of the business cycle.

    For further details on annual leave, public holidays or any statutory leave, please contact one of our experienced HR and Employment Law Consultants in Adare Human Resource Management.

     

  • Vacancy - Business Development Executive

    by Hayleigh Ahearne
    Nov 27, 2018

    As part of our growth strategy for the business, we are currently looking to recruit an ambitious self-driven Business Development Executive to join our consulting practice.

    This role will involve working closely with the Managing Director, Senior HR Consultants and our PR and Web agencies to implement our Business Development, Brand and Marketing Strategy.

    View the full details of the Role here.

  • Topic - Gender Pay Gap – Are you and your Organisation ready?

    by Hayleigh Ahearne
    Nov 05, 2018

    The gender pay gap (GPG) is, at its simplest, the difference between the average pay of men and women, regardless of their seniority.

    Equal pay is about pay differences between men and women for “work of equal value” or “equivalent work”. Even if an Employer does not have an equal pay issue, a gender pay gap may still exist, for example if the majority of lower paid roles are filled by women. According to recent figures from the CSO the gender pay gap in Ireland is 13.9% this compares with an average gender pay gap across Europe of 16.7%.

    A Company that pays men and women equally (i.e. where men and women are doing the same job) could still have a gender pay gap especially where the lower paid roles are done by women. 3 in 5 people say they would not apply to work at a Company where a pay gap exists. This shows that the gender pay gap is more than a social or legal issue. It’s an issue that can affect the ability of Organisations to attract and retain talent.

    The causes of the Gender Pay Gap

    Ireland’s Gender Pay Gap means that women in full time employment are working for free for about one month of every year. The causes of the gender pay gap (GPG) are complex. A number of common causes 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.

    Gender Pay Gap Reporting

    Bringing us a step closer to gender pay gap reporting the Cabinet approved the general scheme of the Gender Pay Gap Information Bill, in June 2018. When implemented the Bill would require all Employers to publish data showing whether there are differences in the pay of male and female Employees. The regulations will apply to Employers with 250 or Employees initially, then to those with 150 or more, and finally those with 50 or more. They will apply to the public as well as private sector. In addition to differences in hourly pay, information on differences in bonus pay, part-time pay and pay of men and women on temporary contracts will be among the data that must be published.

    National HR Barometer Survey

    Adare Human Resource Management recently carried out our HR Barometer (series 2) National Survey, where we asked Organisation’s whether they currently record the Gender Pay Gap in their Organisation.

    As a result of this survey, 10% of people surveyed said they do currently record the gender pay gap and 77% of people said they do not currently record the gender pay gap.

    When we look at the recent UK experience further to the enactment of gender pay reporting legislation there it was interesting to note that of the 10,000 firms that published data, in excess of 1,000 firms reporting on the last day with The Equalities and Human Rights Commission noting that some 1,557 firms had missed the deadline.

    Necessary Calculations for Gender Pay Gap

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

    The General Scheme of the Gender Pay Gap Information Bill provides that the Minister for Justice and Equality will make regulations in respect of:

    • Prescribing the classes of Employer and Employee to which the regulations will relate;
    • How to calculate the number of Employees an Employer has;
    • How to calculate the pay of Employees;
    • The form, manner and frequency with which information is to be published.

    The information to be reported (and published) will include the differences between:

    • The mean and median hourly pay of male and female Employees;
    • The mean and median bonus pay of male and female Employees;
    • The mean and median pay of part-time male and female Employees; and
    • The mean and median pay of Employees on temporary contracts.

    Employers will also be required to publish details of the number of male and female Employees who:

    • Were paid bonus pay;
    • Received benefits in kind; and
    • Are in the lower, lower-middle, upper-middle and upper range pay bands.

    It is also possible that the regulations will require the publication of information by reference to job classifications.

    Consequences for non-compliance with the reporting

    The General Scheme of the draft Gender Pay Gap Information Bill indicates an intention to amend Ireland's employment equality legislation to include bespoke "enforcement powers" in respect of GPG information. Designated officers may be appointed by the Minister to investigate and prepare compliance reports in respect of Employers. These officers would be allowed to enter the Employers premises and require records and other documents to be handed over for inspection/copying. It is envisaged that there will also be scope for the Irish Human Rights and Equality Commission to apply to the Circuit Court for an order requiring an Employer to adhere to the reporting obligations.

    The draft Bill envisages an Employee being able to refer a complaint that his/her Employer has failed to comply with the GPG reporting obligations to the Director General (DG) of the Workplace Relations Commission (WRC).

    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, what is clear is that the legislation is on its way, meaning Employers must commence preparations.

    Irish Employers should start to gather and analyse their payroll data, as well as review their existing HR policies and compensation practices, to determine whether there is any unintentional but identifiable gender bias.

    This "trial run" or "preliminary review" will enable Employers to minimise exposure to any equal pay or discrimination issues and identify any technology supports or staff training that may be needed to ensure compliance with the calculation and reporting requirements when they come into effect.

    Creating the Organisations action plan – 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 is envisaged 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 is 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.

    Adare Human Resource Management can help you to:

    • Calculate the gender pay gap in your Organisation and help you report in line with the legislation;
    • Analyse your pay data to put the numbers for your Organisation in context;
    • Support in developing plans to communicate information on gender pay gap both internally and externally;
    • Review HR and People Strategies to improve your future position among your competitors;
    • Work with you to plan and act on your Organisation’s promotion, remuneration and diversity policies and practices.
  • Case Law - Reviewed under the WRC

    by Hayleigh Ahearne
    Nov 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.

    12-month final written warning reduced to a period of 3 months

    Adjudication Reference: ADJ-00014639

    Summary of Complainant’s Case:

    The Complainant joined the Respondent society in question as a member in 2005. He started to be employed by the Respondent in 2007, to guide tours of the Respondent’s premises in a historic building in central Dublin, and to take care of rentals, organisation of outside events and similar. In October 2017, an Irish news website published a video and article about the society, as a result of which the society attracted unfavourable comment on various online platforms.

    When the Respondent became aware of this, in November 2017, a disciplinary process commenced which the Complainant contends was faulty and unfair, both as against SI 146/2000, or as against the conditions laid down in the Complainant’s own contract of employment.   Specific allegations include notes and minutes not made, witness statements not being made available to the Complainant, and an appeal process not being available to the Complainant in direct violation of his terms and conditions of employment.  The Complainant also argued that he should not have been the only staff member disciplined in this matter, as he insists that other staff members were also involved in approving the visit of the premises by the journalists.

    The Complainant was given a 12-month written warning, which he seeks to have expunged.

    Summary of Respondent’s Case:

    The Respondent accepted the dearth of written records and witness testimonies in terms of the proceedings which led to the disciplining of the Complainant.   It insisted nevertheless that the Complainant had a chance to bring an appeal. The Respondent also argued that the other staff members in question were not senior enough to approve the journalists’ visit, and that only the Respondent’s CEO was in a position to sanction it.

    Legislation

    Section 13, Industrial Relations Acts 1969 is the legislation that is covering this case brought forward to the Workplace Relations Commission (WRC).

    Decision:

    The Respondent is an Organisation with a long history in European culture, and which over the centuries has attracted a considerable amount of unfavourable comment from outsiders, usually not on the basis of any identified wrongdoing, but for the considerable emphasis it places on the privacy of its activities. In other words, the unfavourable online comments which resulted from the article and video, are not the first ones in its corporate history. That said, the Respondent would have as much of a right as any Employer to investigate such negative publicity. The Adjudication Officer cannot accept the argument by the Complainant’s representative that because no formal complaint was made against the Complainant, he should not have been investigated.

    It must also be noted that the Complainant is identified by name in the article and featured in the video.

    That said, the Adjudication Officer agreed that the investigation had many faults: the Complainant was not even aware until the day of the WRC hearing that another staff member had been interviewed, no notes were kept of her interview, and the Complainant was therefore not given any opportunity to comment on her testimony.

    Specifically, as regards the issue of an opportunity to appeal, the Adjudication Officer was satisfied that the Complainant made a written request to have an appeal heard by an appropriately senior member of the Organisation, after being advised that he could do so in his written warning letter. The Adjudication Officer further accepted the Complainant’s direct evidence that he was given no such opportunity, but rather, in his words, “was pulled out of [his] daily duties and denied an appeal within three minutes” by the person he had appealed to.

    Last, whilst the Respondent insisted that the general instruction was that only the Respondent’s CEO could authorise filming, The Adjudication Officer noted that the only written record of the Complainant being so instructed is his actual disciplinary hearing in June 2017.

    All of this reflects very poorly on the Respondent, an Organisation whose corporate values are rooted, inter alia, in the Enlightenment values of justice and fairness. As against that, The Adjudication Officer cannot entirely disregard the fact that the Complainant was himself a member of the Respondent Organisation rather than simply an outside Employee, and therefore ought to have been familiar with its focus on privacy both as a member and in terms of his job title, which may be rendered in modern English as “Head Guardian”. (The Adjudication Officer cannot give the Complainant’s exact title in this recommendation without identifying the parties to the general public.) The point is, the Complainant was employed to be more than a mere buildings manager, who is less familiar with the culture of the Respondent. As such, and given that the Complainant “stars” in the journalist’s piece, the Adjudication cannot accept that the Complainant can devolve responsibility for what transpired entirely to other colleagues who he claims sanctioned the matter. He should have satisfied himself that the matter was sanctioned at an appropriately senior level before getting involved.

    Some sanction of the Complainant is therefore not inappropriate, but certainly, in light of the significant procedural shortcomings on the Respondent’s part as outlined above, a 12-month written warning is way too harsh. The Adjudication Officer therefore recommended that the duration of the warning is reduced to three months, and given that the original warning was issued on 15 March 2018, that it be removed from the Complainant’s personnel file forthwith.

    Adare Human Resource Management Commentary:

    The Code of Practice on Grievance and Disciplinary procedures, SI 146/2000, 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.

    General principles set out in the Code:

    • The procedure must be rational and fair.
    • The basis for any disciplinary action must be clear.
    • The range of penalties must be well defined.
    • There must be an internal appeals mechanism.
    • The procedure should be reviewed in line with current practices.
    • Disciplinary procedures should generally commence with an informal stage where the Employees Manager addresses the issue directly with the Employee before the formal process is commenced.
    • The principles of natural justice must be adhered to:

    -          Details of any allegations must be put to the Employee.

    -          The Employee must be afforded an opportunity to respond.

    -          The Employee should be afforded the opportunity to avail of representation, defined in the Code of Practice as a colleague, or member of a registered Trade Union, but not any other person or body unconnected with the enterprise.

    -          The Employee has a right to a fair and impartial determination of the issues concerned taking account of relevant factors and evidence.

    • 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. 
    • 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.
    • The procedure should set out levels of responsibility in terms of who will apply various stages of the procedure.
    • Warnings should be removed from the Employee file after a specified period, and the Employee advised of same.
    • Adequate records must be kept in relation to disciplinary situations.

    ____________________________________________________________________________________________________________

    Employee awarded compensation as no procedure followed in the termination of its Employment

    Adjudication Reference: ADJ-00012853

    Summary of Complainant’s Case:

    The Complainant contends that he has been employed by the Respondent from 1st October 2010 until 9th October 2017. He worked primarily on the Eircom contract, receiving battery deliveries, battery testing, labelling and general warehouse duties. The Summer months were quiet and in September 2016, after a discussion with the Respondent, the Complainant took up a second job.  It was agreed between the Complainant and the Respondent that the days upon which he would undertake his work duties could be varied. He undertook his duties on Saturday and Sunday and most Fridays. He also covered busy periods mid-week. The Respondent required the Complainant to resign his position in September 2014 to effect these working changes. However, it is argued that the Complainant’s employment was continuous. In May 2016 it was agreed that the Complainant’s hours would be from 9.00am to 2.00pm Monday to Thursday and 9.00am to 1.00pm on Friday. It was also agreed that the Complainant would not be required to work the Summer months of June, July and August 2017. The Complainant took the Summer 2017 period off and as requested contacted the office to find out his starting back date. He was requested by the Respondent to attend a meeting on 25th September 2017 and was taken aback when told his hours going forward would be confined to deliveries only. He contacted the Citizens Advice Office and on foot of this he contacted the Respondent stating that he had been advised to expect the same hours and salary as he had received between the previous September and May. The Complainant then received a registered letter dated 9th October 2017 where he was advised that his employment was terminated. He was terminated without due process. The Respondent sought to allege that the Complainant was not an employee. The Complainant was at all times an employee.

    Summary of Respondent’s Case:

    The Complainant was an employee of the company between 2010 and 2014. He resigned on 19th September 2014 and was provided with a P45.   It is contended that the Complainant approached the Respondent in 2014 seeking hours. The Respondent engaged the Complainant to undertake project work which varied. The Respondent was not obliged to provide work for the Complainant and the Complainant was not obligated to undertake work for the Respondent. In particular, the Complainant was entitled to refuse work without negative consequences. It is argued that relationship was mutually convenient as the Complainant was free to determine his own work patterns and the Respondent was able to cope with fluctuating demand. This pattern worked until May 2017 when the Complainant was unavailable for work and informed the Respondent. It was agreed that the Complainant would approach the Respondent again when he became available for work. In September the Complainant approached the Respondent and the Respondent expected that work would become available in October or November. The Complainant then sent a text message on 2nd October 2017 stating that he was advised to expect the same hours and salary as the previous September/May 2016/2017 and if not, he should expect a redundancy letter. It is argued that as there was no mutuality of obligation (ref Minister for Agriculture and Food v Barry [2009] IR 215), the relationship was not a contract of service and the Complainant does not meet the definition of employee as required to pursue his claim.

    Legislation:

    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. 

    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:

    CA-00017087-001 – Unfair Dismissals Act 1977

    Preliminary Argument

    The Respondent contends that the Complainant cannot avail of the Act as he was not an employee.

    Section 1 of the Act defines an employee as:

    an individual who has entered into or works under (or where the employment has ceased, worked under) a contract of employment” and contract of employment (whether written or implied) is defined as “contract of employment means a contract of service”.

    The difference between a contract of service and a contract for service involves a number of features as well as the mutuality of obligation which the Respondent relies upon in his submission.

    An individual who is on a contract for services is essentially an independent contractor, not subject to the normal controls in an employment relationship. The individual is responsible for paying their own tax, is responsible for ensuring replacement when away from the workplace and is independent from the employer. In this instant case the Adjudication Officer found that the Complainant was subject to the normal employee/employer controls, he received payslips with tax deducted and he worked in the employment availing of the respondent’s equipment and materials. The Adjudication Officer found that he was an employee of the Respondent. The parties had some mutually agreed working arrangements acceptable to both until the Complainant was asserting a right to return after the summer break on the same hours and salary. The Respondent reacted to this and summarily dismissed the Complainant without due process. The Adjudication Officer upheld the Complainant’s complaint that he was unfairly dismissed. The Adjudication Officer found that compensation is the appropriate remedy. The Adjudication Officer required the Respondent to pay to the Complainant the sum of €5,000 compensation.

    CA-00017087-002 Minimum Notice & Terms of Employment Act 1973

    The Complainant’s employment was terminated without notice. In his case the minimum notice period is 4 weeks. The Adjudication Officer found the Complainant’s complaint to be well founded. The Adjudication Officer required the Respondent to pay to the Complainant the net sum of €854.44.

    Adare Human Resource Management Commentary:

    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.

    ____________________________________________________________________________________________________________

    Suspension for 36 weeks to allow for investigation and subsequent dismissal – results in award of €12,500

    Adjudication Reference: ADJ-00008812

    Summary of Complainant’s Case:

    The investigation carried out by the Respondent was flawed and biased.

    The Complainant was accused of gross misconduct but the exact nature of this conduct was never clarified.

    The evidence of a number of witnesses was untrue and this can be proved but the investigator did look into these matters.

    The Complainant was suspended for 36 weeks whilst the investigation was being carried out and suffered consequent stress and anxiety as a result

    Summary of Respondent’s Case:

    As a result of a previous incident the Complainant had received specific training in relation to communication, dignity, bullying and harassment at work.

    Allegations of inappropriate behaviour were again made against the Complainant in September 2016.

    The Complainant was suspended and an investigation carried out. While that investigation was in progress further allegations came to light.

    The investigation found that there were a number of incidents of inappropriate behaviour on the part of the Complainant.

    The report was furnished to the Complainant and a disciplinary hearing took place following which the decision was made to dismiss the Respondent for failure to follow the company’s Dignity in the Workplace Policy.

    The Complainant appealed this decision but the appeal was dismissed and the decision to dismiss upheld.

    Legislation

    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.

    Decision

    Complaints were lodged by two members of the Staff of the Respondent following issues regarding quality control which occurred on a production line in early September 2016. The Complainant, a team leader, had queried the actions of one of those Staff in rejecting some products and had stated that he would approve them himself with the implication that the Staff member concerned was unable to do her job. The threat to approve products by the Complainant was groundless as he did not have the necessary qualification to so do. The main reason for the complaint was the alleged inappropriate language and behaviour of the Complainant during the incidents.   The Production Supervisor held what was termed as an informal meeting with the Complainant regarding these matters and requested that the Complainant consider apologising to the Staff concerned. The Complainant declined this suggestion. The Production Supervisor forwarded the notes of the meeting together with details of the alleged words used to the Staff by the Complainant to the HR Dept. and to the Manufacturing Supervisor.   The Complainant at around the same time made a complaint about one of the Staff concerned to the HR Dept.   The Manufacturing Supervisor sent a letter to the Complainant inviting him to a disciplinary hearing but this was cancelled by the HR Dept. as no investigation into the allegations had taken place. A member of the HR Dept. met with the Complainant on 27th September 2016, advised that an investigation into the complaints would now take place and suspended him with pay. In a letter dated 30th September 2016 the Complainant was informed of three incidents that were to be the subject of the investigation and of the wish to conclude the investigation promptly. The Respondent’s Engineering Manager was delegated to conduct the investigation.

    A series of interviews with the persons involved in the three incidents that were outlined as being the subject of the investigation took place between the 3rd – 5th October 2016. The Adjudication Officer noted that one of the Staff about whom the Complainant was alleged to have made inappropriate remarks did not herself hear these remarks but was told about them shortly afterwards by one of the other interviewees. On 17th October 2016 the HR Dept. received a phone call from a member of Staff who had left the Respondent’s employment without notice on 1st September after just over 3 months’ service and who, until then, had not responded to the various efforts made to contact her. The essence of the call was that the actions of the Complainant, who had been her team leader, had been the cause of her leaving. The Complainant was informed by letter on 28th October that a further allegation of inappropriate behaviour had been received and that this would be included in the overall investigation. He was invited to an investigatory meeting to take place on 7th November. The Complainant, who by this time had received the notes of the earlier interviews, then lodged complaints against the Manufacturing Supervisor and two of the interviewees. The investigator undertook to investigate all issues raised by the Complainant as part of his investigation. The Complainant remained the only Employee on paid suspension.

    The investigator finished his report on 21st April 2017 having held 27 meetings with 22 witnesses.   In his overall conclusion the investigator stated that the Complainant appeared to have engaged in behaviour that appeared to be contrary to the Respondent’s Dignity at Work Policy.   One of the Complainant’s counter complaints was upheld, in that a member of Staff was found to have spoken inappropriately to the Complainant.

    The Complainant received a copy of the report and was subsequently requested to attend a disciplinary hearing to be conducted by the Respondent’s Research and Development Manager. He was advised that he could be represented by a colleague or other appropriate person.   At the disciplinary hearing on 8th May 2017 the Complainant was unaccompanied and stated that this was because he could not have a union rep or solicitor onsite. (At the adjudication hearing the R & D Manager said that there would have been no issue with the attendance of a union rep.)   The Complainant chose to read a statement which he said was from his solicitor and stated that he would not make any further comments on the advice of his solicitor. This statement complained about the fact that the investigation manager had not acceded to requests from the Complainant to view CCTV footage on the grounds that the tapes were only preserved for 30 days. Objections were also raised in regard to many of the conclusions contained in the report. On 18th May 2017 the R & D Manager wrote to the Complainant and in that letter referred to having considered the points raised at the disciplinary hearing and went on to state:

    “I have decided that your conduct in relation to your failure to abide by the company’s Dignity in the Workplace Policy is unacceptable and constitutes gross misconduct. As such I have determined that the appropriate sanction in line with our disciplinary procedure is dismissal with immediate effect.”

    The Complainant was advised of his right of appeal and lodged an appeal the following day. The appeal was heard on 31st May 2017 by the Director of Operations. The Complainant was again unaccompanied at this hearing. The issue of the length of time taken by the investigation was amongst the issues raised by the Complainant. By letter dated 7th June 2017 the Director upheld the decision to dismiss. Reference was made to the length of time taken by the investigation and whilst the Director acknowledged that it was not desirable that investigations would take such a length of time she went on to state that “it was appropriate that the investigation was elongated in order to ensure that all relevant witnesses were interviewed and all appropriate evidence was considered.”

    There are a number of issues which arise from the above process. The Adjudication Officer noted that the Production Supervisor, upon receipt of the complaints, held what was termed as an informal meeting with the Complainant.  There is an option to utilise an informal procedure contained in the Respondent’s Dignity in the Workplace Policy.  This option is open to the person or persons who initiated the grievance. In this case it appears to have been initiated by the Supervisor who afterwards completed written reports and sent them to the HR Dept.  It appears that in fact the Supervisor had carried out an investigation as he had also interviewed the Staff members who had lodged grievances against the Complainant. There is a problem in utilising the contents of an informal meeting, of which an Employee has little notice and no option of representation, as evidence against that Employee.

    The next issue concerns the length of time the Complainant remained on paid suspension whilst the investigatory / disciplinary process was in progress. It is an important principle of any grievance procedure that an investigation should be focused and completed as quickly as possible. The Respondent’s policy contains such a commitment. While it is accepted that a complex investigation with numerous witnesses can and should take time there is a danger that the perception will arise that a long investigation is an excuse for a trawling exercise intent on finding issues detrimental to the subject of the investigation. The fact that an Employee remains on suspension for such a length of time can only lead to gossip and speculation to the detriment of the Employee concerned.

    The Complainant was suspended on 27th September 2016 and dismissed on 18th May 2017, a period of almost 8 months. Most of this time was taken up by the investigation which concluded on 21st April 2017. All the Staff concerned with the initial complaints, where a dispute about quality control gave rise to issues regarding the Complainant’s language and attitude, had been interviewed by 5th October 2016, with the exception of the Complainant himself. The Adjudication Officer noted that two of the interviewees stated that it was the first occasion that they had had an issue with the Complainant. There the matter rested until 17th October 2016 when a former Employee, unconnected with the events under investigation, reportedly contacted the Respondent’s HR Dept. to lodge a grievance against the Complainant alleging that his behaviour was the cause of her walking off the job without notice more than 6 weeks previously. This person had spent 14 weeks in the employment of the Respondent being absent for 3 weeks of those on sick leave. It was decided to include these allegations in the ongoing investigation. This in turn led to other issues being investigated including a possible assault allegation. It was also decided to investigate the allegations made by the Complainant against a number of Staff. At this stage the Adjudication Officer believed that the investigation lost focus. As a result, the investigator continued interviewing people and the Complainant remained on suspension for a period of months.

    In April 2017 a report was produced which distilled all of the above into 12 alleged incidents.  Of these, 3 related to the original complaints, another 5 arose from the ex-Employee’s complaints, 3 were complaints made by the Complainant and one related to evidence given by the Production Supervisor. As stated above the investigator concluded that the appeared to have engaged in behaviour that appeared to be contrary to the Dignity at Work policy.

    The disciplinary manager decided that this behaviour constituted gross misconduct and further decided that the only appropriate sanction was dismissal. The Respondent drew attention to the fact that the Complainant had been the subject of a previous investigation into alleged inappropriate behaviour in October 2015 and, as a result, had been placed on a mentoring / training programme in relation to that behaviour. That investigation concluded that there was a high degree of probability that the Complainant had spoken inappropriately to some operators.  The disciplinary manager dealing with that issue concluded that no disciplinary action would be taken but instead opted for a course of mentoring / training. The issue that arises, therefore, is the application of the disciplinary policy which contains a standard 4 step procedure from verbal warning to dismissal. In this case there was a jump from a decision not to invoke even the Stage 1 procedure (Verbal Warning) up to the application of the Stage 4 (Dismissal) level.

    Section 6(1) of the Unfair Dismissals Act,1977, states:

    Subject to the provisions of this section, 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 decision.

    Section 6(7) of the Act states:

    Without prejudice to the generality of subsection 1 of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so –

    (a)       To the reasonableness or otherwise of the conduct (whether by act or omission) of the Employer in relation to the dismissal…

    The Adjudication Officer noted that there was no evidence as to what disciplinary sanction, if any, was applied to the member of Staff that the investigation found not to have followed manufacturing procedures.

    In summary therefore, in examining the procedures leading to the dismissal of the Complainant the Adjudication Officer had concerns in relation to the following issues: -

    • the use of the contents of what was termed an informal meeting as the basis for evidence against the Complainant,
    • the elongated investigation which diverted from its original brief and which, as a result, appeared to be looking for evidence detrimental to the Complainant,
    • the proportionality of the decision to dismiss particularly in the light of application of the Respondent’s Disciplinary Procedure for similar behaviour on the part of the Complainant on a previous occasion.

    The Respondent’s representative put forward a number of legal precedents in support of their position and among the references was that of Foley v Post Office (2000) ICR1283. The judge in that case said:

    “The Employer, not the tribunal, is the proper person to conduct the investigation into alleged misconduct. The function of the tribunal is to decide whether the investigation is reasonable in the circumstances and whether the decision to dismiss, in the light of the results of that investigation, is a reasonable response.”

    Applying those principles to the instant case the Adjudication Officer cannot accept that the investigation, as it was conducted, was reasonable and the Adjudication Officer cannot find that the decision to dismiss, having regard to all the circumstances, was a reasonable decision. The Adjudication Officer therefore found that the Complainant was unfairly dismissed by the Respondent.

    Section 7(2) of the Act states:

    Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to –

    (a)    The extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the Employer,

    (b)    The extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the Employee…

    The Adjudication Officer believed and indeed it was accepted at the hearing that some of the language used by the Complainant was inappropriate and that his behaviour at times caused problems.   The investigation report contained statements from a number of Employees regarding examples of unacceptable behaviour or language on the part of the Complainant, in particular remarks that reflected negatively on the mental ability of other Employees.   At the time of the issue of quality control on the production line the Complainant was interfering in a process that had nothing to do with him and which was a vital factor in the production of medical equipment. The Complainant, as stated above, had been placed on a mentoring programme dealing with, amongst other matters, dignity in the workplace, harassment awareness and communication skills. It is not therefore a case where the Complainant could have been unaware that his behaviour required improvement and that he should exercise care in how he addressed Staff. The Adjudication Officer therefore found that the actions of the Complainant contributed to his dismissal.

    For the reasons stated above the Adjudication Officer found that the Complainant was unfairly dismissed under the provisions of the Unfair Dismissals Acts, 1977 – 2015. The Complainant has opted for compensation as the means of redress. The Adjudication Officer also found, that the actions of the Complainant contributed significantly to the decision to dismiss. Accordingly, the Adjudication Officer orders the Respondent to pay to the Complainant the sum of €12,500.00 as compensation in this regard.

    Adare Human Resource Management Commentary:

    The Code of Practice requires that the disciplinary procedure be applied progressively where appropriate, and that greater sanctions may be imposed over time. 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.

    Gross misconduct is misconduct which is so serious that it warrants dismissal, without recourse to the earlier stages of the disciplinary procedure.  In all situations where there is a suspicion of gross misconduct, the Employee must be suspended 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.
  • Help Desk - The Importance of effectively utilising the Probation Period

    by Hayleigh Ahearne
    Nov 05, 2018

    A probationary clause being contained within an Employee’s statement of terms and conditions of employment is probably the norm, but in our experience, it is one of the most underused clauses.

    The probation period is a period of time that Organisations use at the beginning on an Employees employment with the aim of assessing the suitability of newly appointed Employees, and to assist their integration into their role and the Organisation.

    During probation there should be dialogue between the Manager and the Employee with regard to performance, conduct, attendance and any other issues impacting on the new Employee’s ability to settle into the role and the Organisation.  Issues may also be addressed formally by way of probation review meeting(s).

    It is important that the probation period length is set out in the Employees Contact of Employment.

    How the probation period / cycle works?

    The probation period is a crucial time in any Employees employment, therefore it is important that the probation cycle is mapped out and explained to each Employee in advance to ensure that they are aware of the cycle and what is expected of them.

    Many Organisations will complete their probation review cycle by using different time periods. Organisations may vary the timeframe of the probation period, with some Organisations in certain sectors opting for a short probation period for example 1 month in comparison to other Organisations having a probation period of 6 or 9 months. Again, specific to each Organisation they choose to have review meetings at different stages with their Employees.

    The recommended process should follow the below steps:

    Step 1: Set Objectives = Meeting between Employee and Manager to set SMART objectives on commencement of employment.

    Step 2: Mid Review = Structured review meeting, highlighting any achievements and any performance or conduct deficits, outlining any improvement plans, if required. 

    Step 3: End of Period Review = Formal review meeting, between the Employee and their Manager, again addressing achievements and failings over the period.

    Where there are issues which affect an Employee’s ability to successfully complete probation, then probation may be extended at the discretion of Management. This should be stated in the Employees Contract of Employment.

    Where there are serious misgivings with an Employee’s fit in the Organisation or their role, then the employment relationship may be terminated at the end of the probation period.

    Importance / Benefits of Probationary Period

    The probationary period lasts for a specific period of time and hence it is essential that an Employer takes any necessary actions during this specific period of time. It provides an opportunity for an Employer to evaluate the performance of the new Employee and guide him/her to help them improve their performance. Some of the benefits of the probationary period include:

    • An Employer can closely evaluate the new Employee’s performance and behaviour as and when they interact with fellow colleagues and others - clients etc.
    • During the probationary period, while following fair procedures and nature justice an Employer can decide to terminate the employment of the new Employee, if their performance is not up to the expected standard.
    • An Employer can decide to continue the Employee’s employment and make them permanent at the end of the probationary period, if the Employer is satisfied with the new Employee’s performance.
    • If an Employer is still unsure on the performance of the new Employee, an Employer can decide to extend the probationary period of the new Employee and put in additional efforts to guide and measure the performance of the new Employee. However, the probationary period in any case cannot extend beyond 11 months in total. The extension beyond the original probationary period needs to be notified to the Employee in writing.

    Unfair Dismissals Acts

    Employees who have less than 12 months continuous service with an Employer, including Employees on probation, are generally not entitled to bring claims under Unfair Dismissals Acts 1977 to 2015. Therefore, the process for dismissal, including the disciplinary process, is generally subject to less scrutiny than in respect of Employees who may be in a position to challenge the fairness of the dismissal under the legislation. However, there may be a contractual obligation to follow the disciplinary process in respect of Employees on probation and furthermore, there is a general entitlement to fair procedures and natural justice for all Employees - regardless of service.

    An Employee dismissed as a consequence of any of the following situations does not need to have 12 months service to be protected by the Act:

    • Dismissal arising from the Employee exercising their rights under the Maternity Protection Acts, the Adoptive Leave Acts, the Parental Leave Acts or the Carer’s Leave Act. 
    • A discriminatory dismissal related to any of the nine grounds in the Employment Equality Acts, i.e. gender (including pregnancy), civil status, family status, age, sexual orientation, disability, race, religion, membership of the Traveller community. 
    • A dismissal arising from an Employee’s membership of a trade union, or as a consequence of him/her engaging in trade union activity.

    If an Employee is dismissed while on a probation period but has at least 12 months’ service (including his/her notice period), he or she would be entitled to bring a claim for unfair dismissal and the Employer would be required to show that they followed their disciplinary process and applied fair procedures when making the decision to dismiss the Employee in similar fashion to the dismissal of an Employee who is not on probation.

    Disciplinary Procedure

    The requirements regarding the dismissal of an Employee on probation generally depend on the terms of the Employee’s contract of employment and applicable policies. If the contract provides that the disciplinary procedure will not apply to Employees on probation, the Company would not be contractually obliged to follow the full disciplinary procedure prior to dismissing an Employee on probation. If, however, the contract provides that the disciplinary procedure will generally be followed in respect of all dismissals and does not make any exception for the dismissal of an Employee on probation, arguably, the Employer may be obliged to follow the disciplinary procedure prior to dismissing the Employee.

    However, even where the disciplinary policy is stated not to apply to Employees on probation, the Employer should still apply fair procedures and natural justice to the Employee.

    This can include:

    • warning the Employee that his/her performance/conduct is not satisfactory,
    • allowing a reasonable chance to improve performance/conduct,
    • assisting the Employee to improve, e.g. providing training or mentoring.

    Therefore, a scaled-back version, but a transparent and fair process following the rules of natural justice should be applied.

    It should be noted that the above is only applicable in circumstances where an Employee has not been employed for more than 12 months. It is recommended that probationary periods should not extend for a period of greater than 12 months. The period of 12 months includes any applicable notice period on termination. If an Employee is dismissed while on a probation period but has at least 12 months’ service (including his/her notice period), he or she would be entitled to bring a claim for unfair dismissal and the Employer would be required to show that they followed their disciplinary process and applied fair procedures when making the decision to dismiss the Employee in similar fashion to the dismissal of an Employee who is not on probation.

    Bringing an Employment Claim on Probation

    It should be noted that Employees (regardless of service) can bring a complaint to the Workplace Relations Commission (WRC) under section 13 of the Industrial Relations Acts 1946 – 2015 if they have a grievance against their Employer about their treatment. Recommendations of this type under the Industrial Relations Acts 1946 – 2015 are not binding on Employers, however, the parties are expected to give serious consideration to any recommendation.

    The Labour Court hears appeals of Adjudication Officer’s recommendations/decisions made under the Industrial Relations Acts. Following considerations of the complaint by the Workplace Relations Commission (WRC) the Labour Court will investigate complaints of breaches of codes of practice made under the Industrial Relations Act, 1990. Once a recommendation/ decision is brought to the Labour Court from the Workplace Relations Commission (WRC) it loses its anonymity as the WRC does not publish the names of the parties involved in the claim. However, the Labour Court will publish the names of the parties involved in the claim.

    In addition, Employees with less than one years’ continuous service are afforded protection arising out of dismissals by reason of one or more of the nine discriminatory grounds as outlined under the Employment Equality Acts 1998 – 2015 and may bring forward a claim to the Workplace Relations Commission.

    A number of noteworthy recent cases arose from claims of unfair dismissals whilst on probation:

    1. Under the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969, a Complainant was awarded €1,500 compensation for being unfairly dismissed - Adjudication Reference: ADJ-00008248. The Complainant attended for work and was immediately summoned, without prior notice, to a meeting with the General Manager and her Manager at which she was informed that her employment was being terminated with immediate effect. The Complainant submits that she was shocked by the abrupt nature of her dismissal and when she sought an explanation from the General Manager. The Complainant contends that she did not receive any prior warning or notice that her position was in jeopardy and claims that she had only been given positive feedback in relation to her performance by her Manager during her period of employment. The Complainant subsequently sought a meeting with the Respondent’s Regional Manager in relation to her dismissal which took place on 6th January 2017. The Regional Manager denied she had been dismissed and indicated her probation period had been terminated because she wasn’t suitable for the role. The Adjudication Officer found that the Complainant was not provided with any fair or reasonable opportunity to address the alleged concerns which the company had in relation to her performance. In particular, the Respondent failed to advise the Complainant that her employment was in jeopardy prior to a decision being taken to dismiss her. In the circumstances, the Adjudication Officer found that there was a manifest failure by the Respondent to adhere to the basic requirements of procedural fairness in reaching the decision to terminate the Complainant’s employment. The Adjudication Officer found that the Complainant’s employment was terminated in a manner which was procedurally flawed and in breach of the Code of Practice on Grievance and Disciplinary Procedures (SI. No. 146 of 2000).
    2. Under Workplace Relations Act, 2015 and the Industrial Relations Acts a Complainant was awarded €8,000 as she was unfairly dismissed - Adjudication Decision Reference: ADJ-00001809. The Complainant was unfairly dismissed from her role and no evidence was provided to her other than a brief letter that could not have justified the manner of the dismissal. The Complainant complainant’s provided evidence that she had exceeded her performance targets or that she had worked well in the team of sales assistants. The Respondent dismissed the Complainant summarily, by summonsing her to a meeting where she was told to leave immediately. Even had the performance issues listed in the letter been true, the Adjudication Officer said that they could not have justified the manner of the dismissal.

    Conclusion

    The probation period in an employment contract serves a specific and important purpose, and all Employers should ensure its effective and appropriate use, being cognisant of the various pieces of employment legislation governing this area.

  • Vacancy - Business Development Executive

    by Hayleigh Ahearne
    Nov 05, 2018

    As part of our growth strategy for the business, we are currently looking to recruit an ambitious self-driven Business Development Executive to join our consulting practice.

    This role will involve working closely with the Managing Director, Senior HR Consultants and our PR and Web agencies to implement our Business Development, Brand and Marketing Strategy.

    View the full details of the Role here.

  • Heavy Criticism by Labour Court & Nil Award In Contract of Employment Case

    by Hayleigh Ahearne
    Nov 05, 2018

    It is often the case that when matters concerning substantial employment law issues such as equality or unfair dismissal cases Claimants often include added claims of breaches of the Terms of Employment Act, where they exist.  In short, if there is an absence of a written statement of employment (contract of employment) in any particular case then the Claimant will get an award of compensation for that breach.  Usually, the compensation awarded is between one and four weeks’ pay, depending of the level of breach and in particular the extent of defence the employer submits.  Any such defence would almost always include the argument that in Claimant suffered no material loss from not having a written statement of employment.  More recently however, Terms of Employment Act claims have been surfacing at the WRC in a context and circumstance whereby a written contract did exist but did not fully comply with the exact provisions of the Act, the Terms of Employment Act (Information) 1994.  In a recent case Ref: TE/17/54 the Labour Court took a very strong view on a claim in which the Court acknowledged there were breaches of the Act but they were such as to be trivial and therefore an inappropriate use of the Court’s time.                

    The case in point was an appeal of an Adjudication Officer's Decision No: ADJ-00006177 taken by the Claimant (employee).  Given the details of the matter at issue the extent of the case was quite extraordinary, if not unprecedented and the case makes for very interesting reading in a context of how the Court clearly expressed a view that in any case submitted to it one should take reasonable countenance and consideration of the cost of such a hearing relative to the claim being made and the Court did not mince their words in this instance.  The case also proved to be quite substantial in terms of the length of time taken to deal with it.  The matter was appealed to the Court by the Claimant in December 2017.  A case management hearing took place in March 2018 and Labour Court hearings took place on 3rd April 2018, 18th July 2018 and 3rd October 2018.

    The Parties & The Argument

    The appeal was taken by Brigid Burns against the Decisions of an Adjudication Officer No. ADJ-00006177, CA-00008417-001, CA-00008417-002 under the Terms of Employment (Information) Acts, 1994 to 2014. Ms Burns claimed that her former employer, Component Distributors (CD Ireland) Limited had breached Sections 3 of the Act. The Adjudication Officer held in her favour and awarded the sum of €200.00 in compensation.  Throughout it was not in dispute that the Complainant had been given a written contract of employment setting out her terms and conditions of employment in 2009.

    Complainant’s Argument
    Solicitor, Richard Grogan on behalf of the Complainant submitted that the Respondent (employer) was in breach of the Act as the name of the company was not set out correctly in the Complainant’s contract of employment. He also claimed that details of breaks were not properly set out and an incorrect leave year was given in the contract that does not comply with the statutory leave year under the Organisation of Working Time Act 1997.  Mr Grogan contended that the alleged breaches were not trivial, technical, peripheral or otherwise. He stated that the Complainant has a fundamental right to the entitlements under the Act as specified by the Oireachtas deriving from EU law.

    Respondent’s Argument
    Mr Brian Dolan, on behalf of the Respondent, submitted that the Complainant’s contract of employment dated 2nd September 2009 sets out the particulars of her terms and conditions of employment. He submitted that if there were any omissions regarding the name of the company, breaks or details of the annual leave year as alleged, then they were minor or technical in nature. He maintained that they had no financial or work consequences for the Complainant and the complaint should be dismissed as trivial or of no consequence.

    Mr Dolan said that there was a minor change in the in the name of the Company, it changed from “Component Distributors (Ireland) Limited” to “Component Distributors (CD Ireland) Limited”.

    It was the Respondent’s position that the contract of employment furnished to the Complainant gave details of annual leave entitlements and stated that the leave years runs from 1st January to 31st December and that complies with section 3(1)(j) of the Act. The Respondent further submitted that the complaint advanced on behalf of the Complainant to the effect that the annual leave year referred to in the contract is not the statutory leave year provided for in the Organisation of Working Time Act 1997 is a matter which falls to be adjudicated under that Act and not under the 1994 (Terms of Employment) Act.

    Court Points & Findings

    The Court was satisfied that the contract of employment provided by the Respondent to the Complainant could properly be regarded as forming a written statement of her terms of employment as required by Section 3 of the Act.  The Court then proceeded to consider whether that statement complied with the Act in terms of the following claims: -

    “Section 3(1) (a) – the statement did not set out the full name of the employer in that the company name omitted the “CD” along with the word Ireland in brackets.  It is clear that the statement provided to the Complainant identified the name of the Respondent as Component Distributors (Ireland) Limited as distinct from Component Distributors (CD Ireland) Limited”.

    “No submission has been made to the Court and the Complainant has not produced any evidence to show that the acts/omissions referred to have had any significance for her or caused her any detriment during the period of her employment. Furthermore, there is no evidence to suggest that the Complainant raised any grievance or concerns about these matters at any time during the course of employment”.

    In conclusion the Court found that the breaches of the 1994 Act complained of in the proceedings were “merely of a technical nature and are without substance and trivial”.

    The Court went on to say that it was “clear to the Court that the within appeal derives from complaints as regards alleged contraventions of the Act which have had no practical impact on the Complainant during her employment with the Respondent”.

    In justification of its decision the Court referenced “Patrick Hall v Irish Water” Determination TED161, and highlighted that this Court gave extensive consideration to the approach which should properly be adopted in cases where some technical contravention of the Act occurred which had no practical consequences for the complainant. Here the Court commented as follows: -

    “As appears from the above, these complaints are wholly devoid of any substantive merit. The State has already incurred the costs associated with providing the Complainant with a hearing of these complaints at first instance and it is now obliged to incur the cost in time and expense of providing him with a full appeal before a division of the Court. That takes no account of the cost incurred by the Respondent in defending this case, both at first instance and now on appeal. The combined associated costs of processing and hearing these complaints is grossly disproportionate to any value that could have accrued to the Complainant if the technical infringements of which he complains had not occurred”.

    And further commented: -

    In the circumstances of this case that represents an unacceptable squandering of public resources. It is a manifest absurdity to suggest, as the Complainant does, that these contraventions, if such they are, could or should be met with an award of monetary compensation. “

    In its conclusions the Court said the Complainant had made it clear to the Court that the only remedy sought was compensation. The Court said it had identified two areas of deficiency in the statements of terms of employment provided to the Complainant. In Patrick Hall v Irish Water this Court dealt with similar facts by application of the rule encapsulated in the maximde minimis non curat lex. Here the Court stated: -

    De Minimis rule:- It is an established principle of the common law that a Court should not squander its resources in dealing with claims that are without substance because the contraventions complained of had no practical consequence for the plaintiff. This principle maxim de minimis non curat lex (the law does not concern itself with trifles). The classic statement of where this principle should be applied is contained in the judgment of Henchy J. in the Supreme Court’s decision in Monaghan UDC v Alf-a-Bet Publications Ltd. [1980] I.L.R.M. 64, at page 69. Henchy J articulated a generally applicable test in the following terms: -

    “In such circumstances, what the Legislature has, either immediately in the Act or immediately in the regulations, nominated as being obligatory may not be depreciated to the level of a mere direction except on the application of the de minimis rule. In other words, what the Legislature has prescribed, or allowed to be prescribed, in such circumstances as necessary should be treated by the courts as nothing short of necessary, and any deviation from the requirements must, before it can be overlooked, be shown, by the person seeking to have it excused, to be so trivial, or so technical, or so peripheral, or otherwise so insubstantial that, on the principle that it is the spirit rather than the letter of the law that matters, the prescribed obligation has been substantially, and therefore adequately, complied with.”

    The Labour Court adopted and applied this reasoning to our reported case above by concluding that “Section 7(1)(d) of the Act provides, in effect, that an Adjudication Officer (and this Court on appeal) may order an employer to pay a complainant compensation of such amount (if any) as is just and equitable having regard to all the circumstances. The purpose of compensation is to provide redress to an aggrieved party for some loss, damage, inconvenience or expense incurred by that party in consequence of some wrongful act or omission by another. On the facts of the instant case, as admitted or as found by the Court, the Complainant herein suffered no adverse consequences of any materiality in consequences of those contraventions upon which her claim to compensation is grounded”.  In consideration of the above and other counter legal considerations the Court upheld the Complainant appeal in part only and determined that “the amount of compensation which is just and equitable in all the circumstances is nil” and so the Recommendation of the Adjudication Officer was varied accordingly.  This case now provides excellent case law for employers in the context of defending frivolous claims made under the Terms of Employment Act.

  • Dept of Health & HSE Combine In Attempt To Resolve Section 39’s Row

    by Hayleigh Ahearne
    Nov 05, 2018

    The long-standing dispute between the HSE and trade unions FORSA and SIPTU concerning the pay of staff working within the Health Sector “Section 39s” organisations came to another head earlier this month.  From the public perception point of view this dispute first came to light in February this year when the WRC intervened to prevent industrial action at a number of S39 heath service organisations.  Although there was some level of agreement back then as to how the dispute might best be resolved the dispute still remained and a threat of further industrial action by the unions was again put on hold with a second WRC intervention on October 2nd.  At that WRC conciliation conference, which significantly included input from the Dept. of Health this time round, along with the HSE a provisional agreement was reached.

    The proposal presented as the “best that can be achieved” included reference relating to an exercise involving 50 Section 39 Organisations that highlighted a variance in terms of what pay restoration had or had not occurred in the sector.  The WRC proposal stated that “the overall ambition in terms of this proposal is to set out the timelines and payment structures that will provide for this restoration in relation to the 50 pilot organisations in the first instance” It was further proposed that cuts will be restored to reflect full restoration and subject to a defined verification and audit process.

    In this setting Pilot organisations will make formal application to the HSE with detailed payroll calculations per individual employee, supported by a CEO and Board members signed statutory declaration.  There will then be a measure of validation process that would include HSE internal audit.  On foot of this organisations’ ability to pay within existing resources will be reviewed.  In the context of a “Restoration Schedule” it was stated that 1. Management have agreed to payment of the first phase of this restoration which will be a €1000 annual increase in salary, effective from 30 April 2019. 2. A further payment will apply from 1 October 2020 equating to 50% of outstanding restoration due and 3 a final payment will apply from 1st October 2021 equating to the remaining balance which will provide for a 100% restoration from this date. It is recognised that some of the remaining Section 39 organisations (estimated 250 approximately) are likely to have pay restoration issues and a process to address these will be agreed and the parties will commence engagement on this issue during 2019.

    HSE Follow Up

    Since publication of the above WRC proposal earlier this month the HSE have since followed up by writing to S39’s organisations advising that agreement has been reached at the Workplace Relations Commission, around the process of restoring previous pay reductions. HSE confirmed that the next phase under this agreement extends to the list of 50 organisations, “who are now invited to make application for restoration of previous pay reductions that were implemented”. It was further recognised that some of the remaining Section 39 organisations are likely to also have pay restoration issues, and a process to address these will be agreed, where parties will commence engagement on this issue in 2019, as was outlined in the latest WRC proposal.

    The HSE advised that “it is important to understand that the WRC agreement, and the departmental approval to funding, specifically addresses the restoration of pay where existing employees can be evidenced as having been impacted by pay reductions. It does not include any provision for pay progression. Such matters fall to be dealt with by individual s.39 employers, as was the case prior to the application of pay reductions”.

    Freedom of Information Concerning Pay Restoration Applications

    As part of the application process the HSE said that a Statutory Declaration must be completed and warned that if the Statutory Declaration is incorrectly or only partially completed, the application for pay restoration will be refused. Also a significant sample of Section 39 organisation applications will be subject to on-site audit by the HSE’s Internal Audit Division and it should be noted that these reports come into the public domain on a 6 monthly basis based on standing arrangements under the Freedom of Information Act.  HSE further advised applicant organisations that by making an application for pay restoration under this process, one’s organisation is accepting the terms of any future onsite audit that may likely follow.  

    In conclusion it is noted that the agreement makes no specific reference to potential retrospective payment claims.  Perhaps in this context the HSE concluded by reiterating that “this agreement, facilitated by the WRC, and supported by the Department of Health, represents the best outcome that could be achieved given all priorities and constraints that need to be balanced in the interests of service users and their families”.