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Newsletter Article

  • Vacancy - HR and Employment Law Consultant

    by Hayleigh Ahearne
    May 23, 2018

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

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

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

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

    To view the full job description, click here.

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

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

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

    by Hayleigh Ahearne
    May 23, 2018

     

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

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

    Details of the webinar are as follows:

    Date: Wednesday 30th May 2018

    Time: 12.30pm

    Register: To register, click here.

  • Progress But No Solution Yet In Section 39 Pay Dispute

    by Hayleigh Ahearne
    May 23, 2018

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

    Dispute Continues

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

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

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

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

  • Court Decision On Loss Of Earnings Claim Provides Guidance

    by Hayleigh Ahearne
    May 23, 2018

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

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

    Principle Of Calculating Loss

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

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

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

    ____________________________________________________________________________________________________________

    LABOUR COURT REJECTS EMPLOYER APPEAL AND INCREASES COMPENSATION

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

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

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

    The Case     

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

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

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

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

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

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

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

    by Hayleigh Ahearne
    May 10, 2018

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

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

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

    An effective Performance Management Process:

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

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

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

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

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

    Performance Management Appraisal:

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

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

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

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

    Feedback:

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

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

    Performance Ratings and how they should work:

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

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

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

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

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

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

    Managing Poor Performance:

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

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

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

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

    Conclusion:

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

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

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

  • Case Law - Reviewed under the WRC

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

    Recruitment Consultant awarded €11,000 for Victimisation

    Adjudication Reference: ADJ-00008025

    Summary of Complainants Case:

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

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

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

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

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

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

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

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

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

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

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

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

    Summary of Respondent’s Case:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    Legislation:

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

    Decision:

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

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

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

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

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

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

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

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

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

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

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

    Adare Human Resource Management Commentary:

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

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

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

    ____________________________________________________________________________________________________________

     

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

    Adjudication Reference: ADJ-00009695

    Summary of Complainants’ Case:

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

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

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

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

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

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

    Summary of Respondent’s Case:

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

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

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

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

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

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

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

    Legislation:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    Adare Human Resource Management Commentary:

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

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

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

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

    ____________________________________________________________________________________________________________

     

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

    Adjudication Reference: ADJ-00007873

    Summary of Complainant’s Case:

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

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

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

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

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

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

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

    He never saw a medical report.

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

    1. Go back to work, or
    2. Resign

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

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

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

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

    Summary of Respondent’s Case:

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

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

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

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

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

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

    2) That this was a substantial reason

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

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

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

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

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

    Legislation:

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

    Decision:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    Adare Human Resource Management Commentary:

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

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

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

    by Hayleigh Ahearne
    May 10, 2018

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

    Testing

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

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

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

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

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

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

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

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

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

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

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

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

    Policy

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

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

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

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

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

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

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

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

    Rolling out the policy

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

    Conclusion

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

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

    by Hayleigh Ahearne
    Apr 23, 2018

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

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

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

  • Court Says Permanent Overtime Payment Not Pensionable

    by Hayleigh Ahearne
    Apr 23, 2018

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

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

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

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

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

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

    Reckonable Pay

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

  • Unfair Dismissal Upheld After Worker Was Only 7 Weeks Employed

    by Hayleigh Ahearne
    Apr 23, 2018

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

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

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

    Employer Appeal

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

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

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

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

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

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

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

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

    The Claimant

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

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

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

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

    The Law

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

    Conclusions

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

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

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

    Little Mitigation of Claimant Loss

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

     

    ____________________________________________________________________________________________________________

    Congress Urges Government To Support EU Work Life Balance Directive 

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

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

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

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

    by Hayleigh Ahearne
    Apr 05, 2018

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

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

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

    What is the difference between bullying and harassment?

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

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

    The Organisation’s Obligations under Legislation:

    Obligations under the Employment Equality Acts

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

    Obligations under the Health, Safety and Welfare at Work Acts

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

    Obligations under the Codes of Practice

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

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

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

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

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

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

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

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

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

    The Procedure to Follow On Receiving a Complaint

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

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

    The Informal Procedure

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

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

    Mediation

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

    Formal Procedure

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

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

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

    Conclusion

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

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

    by Hayleigh Ahearne
    Apr 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.

    Claim fails as Employee fails to make case of constructive dismissal

    Adjudication Reference: ADJ-00003931

    Summary of Complainant’s Case:

    The Complainant submits that having resumed working for the Respondent in May 2015 and having agreed that he would be employed in his former position as estimator/advisor, matters changed after about one week. The store manager was reassigned to cover a maternity leave and the assistant store manager was required to act up. His position remained unchanged although there was a significant change made in his duties and responsibilities. The store was now being run by three Employees as opposed to two Employees hitherto. He approached the area manager with a request that he be appointed to the position of assistant manager who advised that he would “see what he could do”. He continued with this unsatisfactory situation for some months at which point he approached the area manager again to be told the same thing. He e-mailed the area manager prior to Christmas and was advised that the Respondent as a matter of policy had ceased employing assistant managers in stores with less than €1M annual turnover. The Complainant pointed out that he thought that this was grossly unfair and stated that he would be left with no alternative but to seek alternative employment.

    In March of 2016 he was invited to attend an interview for a new job and requested that he be allowed a day off to attend. This was reluctantly granted on the basis that he would change his day off. During the discussion concerning the job interview with the regional manager the Complainant had expressed the view that he was being treated unfairly and that he should not be required to work in the store alone because of his pay rate and the health and safety implications. The Complainant suspects that “somehow the regional manager appeared to take this as a refusal to work by myself and initiated a disciplinary procedure”. The administration supervisor was then dispatched to the store with a list of questions which the Complainant was required to answer. Later he returned with another list of questions.

    The Complainant felt at this point that he was being bullied by the regional manager and took a grievance against him. The grievance was deemed to be unfounded and the ensuing appeal failed. The process was conducted through conference call but the Complainant was not provided with the notes thereof. He was misquoted on two occasions to suit the conclusion reached. Thereafter he was asked to attend a disciplinary hearing which were noted and he was asked to sign them. He states that he was misquoted and ultimately sanctioned by way of first written warning for failing to carry out a reasonable management request. He appealed the decision which has been ignored to date. He was left with no alternative but to leave.

    Summary of Respondent’s Case:

    The Respondent submits that the Complainant was not constructively dismissed but that he resigned his position based on the unavailability of promotional positions in early 2016. Furthermore, at the point of resignation the Complainant had appealed a disciplinary sanction (first written warning), having submitted a detailed written submission. The sanction was notified by letter of 8th June 2016 advising of the right of appeal and the appeal was received on the 19th inst. The Complainant submitted a letter of resignation (24th inst.) almost immediately thereafter.

    Interim changes were made to accommodate the maternity leave of the regional administrative supervisor on or around the time the Complainant took up the employment. It was made clear that these changes were of a temporary nature to all. The Complainant was of the belief that he had to take up additional duties and approached the regional manager to seek a pay increase. At a later stage, he sought promotion to assistant manager who assured him that he would make the relevant enquiries in the matter. He was never informed that he would be given that position. The regional manager responded in mid-December to the effect that he would not qualify for a promotion as it was the company policy to provide assistant managers in stores with annual turnover greater than €1M only. The Complainant responded by stating that he would have to seek employment elsewhere.

    During the week of 3rd February 2016 the Complainant telephoned the regional manager requesting a day off to attend an interview. Additionally, he noted that cover would be needed from another store as he could not work alone. The regional manager understood this to mean that the Complainant was refusing to work alone in the store during the store manager’s annual leave on that week. He made the necessary arrangements at considerable cost. An investigation into these matters was conducted by the Respondent leading ultimately to a disciplinary sanction.

    The Complainant raised a grievance on the 8th of March 2016 in which he complained of increased duties to the level of assistant manager undermining his capacity to earn commission and that he was subject to investigation concerning his alleged refusal to carry out work which he strongly denied. He was informed by letter of the 30th inst. that his grievance was not upheld, that he had a right of appeal and that additional resource (part-time sales assistant) would be deployed at the store. His subsequent appeal failed.

    On completion of the grievance procedure a disciplinary hearing was conducted with due regard to his rights at natural justice. He received a first written warning on the 8th of June. He appealed the warning and resigned 5 days later.

    The Respondent denies that Complainant was left with no alternative in all the circumstances and that his resignation arose from the issue of the warning. Nor did the Respondent act unreasonably in utilising the disciplinary procedure.

    Legislation:

    This case was heard under the Unfair Dismissals Acts, 1977 – 2015. The Unfair Dismissals Acts, 1977 – 2015 - s. 1. - [(1)] (c) (b) of the Act provides - that dismissal, in relation to an Employee, means - The termination by the Employee of his/her 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 was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the Employer.

    Decision:

    In constructive dismissal cases the claimant must satisfactorily demonstrate that the respondent behaved or acted in a manner, which was so unreasonable as to make it impossible for him/her to continue in the employment and which fundamentally breached his/her trust and confidence in the bona fides of the other party. In so doing the claimant must also show that his/her action/behaviour in resigning his/her position was reasonable in all the circumstances (mirror image concept). The claimant has not succeeded in doing so in the instant case.   Therefore, the Adjudication Officer found that the herein complaint is not well founded.

    Adare Human Resource Management Commentary:

    In certain circumstances, the Employer does not have to actually terminate the relationship for the termination to be deemed a dismissal by the Employer. This concept is referred to as a constructive dismissal.

    The third parties would generally look towards applying the contract and/or reasonableness tests to determine if the Employee as constructively dismissed.

    In the context of the Contract test, the Employee argues entitlement to terminate the contract as the Employer has breached a fundamental condition that goes to the root of the contract. This generally arises where the actions of the Employer demonstrate to the Employee that they no longer intend to be bound by one or more of the essential terms of the contract of employment.

    Within the Reasonableness test the employee argues that while the Employer may have acted within the terms laid down in the contract of employment, their conduct is nonetheless so unreasonable that it entitles the Employee to treat the contract as being at an end. In effect, this means that although the actions of the Employer may not amount to a fundamental breach of contract, they are still classified as so unreasonable as to justify the involuntary resignation of the Employee.

    In a number of previous cases of constructive dismissal and similar to this case, it was noted that the claimant must demonstrate that he/she exhausted internal grievance procedures to bring their concerns to the attention of Management, and to have the issue resolved. However, this is not always necessary, particularly in a situation where the person responsible for the conduct of the Employer is the owner/Manager of the Organisation.  However, an Employer who has internal grievance procedures in place in the Organisation may be considered better protected from claims of constructive dismissal than an Employer who has not.

    A constructive dismissal is a form of unfair dismissal. An Employer found guilty of constructive dismissal is subject to the same sanctions as may be imposed in respect of any other unfair dismissal.

     

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

    ____________________________________________________________________________________________________________

     

    Complainant summarily dismissed by email with no process followed awarded €18,400

    Adjudication Reference: ADJ-00009175

    Summary of Complainant’s Case:

    The Complainant set out her case in the Workplace Relations Complaint Form which discloses that the Complainant was summarily dismissed by her Employer. This was done by email and without any investigation or Disciplinary Procedure being implemented. The Complainant had had an allegation made against her by a Co-Employee. The allegation was not investigated and the Employer moved to summarily dismiss the Complainant. The Complainant was given no opportunity to defend herself or her reputation. 

    Summary of Respondent’s Case:

    The Respondent conceded liability and was making no issue with the respect to the fact that the Complainant was claiming to have been Unfairly Dismissed. The Respondent requested that this matter be dealt on the basis of the assessment of the Remunerative losses borne by the Complainant. 

    Legislation:

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

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

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

    Decision:

    The Complainant did not seek to be re-instated or re-engaged and the matter was one of assessment only. The Complainant had been out of employment for 7 weeks (at a loss of €900.00 per week). The Complainant obtained employment (a short-term Contract) at the end of the first seven weeks and has worked for 8 months at a loss of about €850.00 per month. The Contract the Complainant currently works under is due to end at the end of December 2017 at which time the Complainant will look for alternative employment which might take some weeks to obtain. The Respondent cross-examined the Complainant with respect to mitigating her losses but the Adjudication Officer is satisfied that the Complainant has done everything which could be reasonably be expected of her to obtain both alternative employment and employment that had remuneration commensurate with the remuneration she was being paid by the Respondent. The Adjudication Officer found that the Complainant was Unfairly Dismissed from her Employment and is entitled to be paid €18,400.00 Compensation.

    Adare Human Resource Management Commentary:

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

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

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

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

    Interestingly in this case, the Respondent conceded liability and was making no issue with the respect to the fact that the Complainant was claiming to have been Unfairly Dismissed. Given that the Respondent requested that this matter be dealt on the basis of the assessment of the Remunerative losses borne by the Complainant, it would certainly appear that the more significant concern of the Respondent was the potential risk under the legislation of re-instatement or re-engagement of their former Employee.

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

    ____________________________________________________________________________________________________________


    Claim for Unfair Dismissal succeeds as the Complainant was awarded €9,500

    Adjudication Reference: ADJ-00007065

    Summary of Complainant’s Case:

    The Complainant submitted that he was subject to a disciplinary procedure in May 2016 where he was issued with a final written warning on 12th May 2016. He was advised as part of this disciplinary procedure that he had a right to appeal the sanction and where he received a letter advising of same and that he could submit his appeal to a named manager of the Respondent. The Complainant maintained that he submitted his appeal to the named manager and received an email that an appeal hearing will take place sometime after 7th June 2016. The basis of the Complainant’s appeal at that time was that he was not happy with the harshness of the findings of the disciplinary hearing of May 2016, where he contested the interpretation of some evidence applied in the course of the disciplinary hearing, and that he wished for this to be considered again. Having made his submission to the named manager he was left with the understanding an appeal hearing would be held.

    The Complainant submitted that he heard nothing further from the Respondent in relation to his appeal despite the fact he had been advised the matter would be looked into after 7th June 2016. However, he never was invited to an appeal hearing, and maintained that he never received any notification of the outcome of his appeal. The Complainant denied the evidence provided by the Respondent that he would have received a phone call from the manager to tell him there was to be no appeal hearing. The Complainant maintained that it would be rare in any event for him to receive a phone call from the manager in question, and where he certainly would not have received a call in relation to his appeal.  

    The Complainant advised he was then subject to further disciplinary procedures for alleged offences on 27th October 2016 where allegations were made against him, and two other Employees, with regard to leaving a control room door open, where he was one of three staff in the control room which was contrary to standing orders, and use of personal mobile phone while on duty. The Complainant advised that following the disciplinary hearing into these complaints he was dismissed on 8 November 2016, and after appealing his dismissal he was advised on the 28 November 2016 that the disciplinary sanction was upheld.  

    The Complainant argued that whilst he was dismissed for the offences, one of his colleagues similarly accused did not receive a sanction, and another colleague did receive a sanction but was not dismissed. For his part the Complainant was advised by the Respondent that as he was found guilty of a wrongdoing and as he was on a final written warning that a summary dismissal was deemed appropriate in his case.   The Complainant therefore submitted that he was unfairly dismissed as his appeal to his written warning of May 2016 was not heard by the Respondent, and where at the disciplinary hearing on the 8 November 2016 the Respondent relied upon the earlier warning in deciding to dismiss him. The Complainant and maintained that he was treated less favourably than to other colleagues who were accused of similar offences.

    Summary of Respondent’s Case:

    The Respondent denied that it unfairly dismissed the Complainant. The Respondent submitted that the Complainant had been found guilty of serious misconduct in May 2016 and where the Complainant had acknowledged to his wrongdoing at the time. The Respondent advised that the Complainant had appealed the disciplinary sanction of a final written warning at the time, and following a consideration of the appeal the Respondent upheld the sanction of the final written warning on the basis that the Complainant had in fact admitted to the wrongdoing. The Respondent further contended that the Complainant had not properly submitted the appeal in accordance with the company procedures which advise that appeals are to be submitted to the Managing Director and not to the manager that the Complainant had submitted his appeal to.

    The Respondent advised that following three further serious breaches of procedures in October 2016, which in their own right would amount to serious misconduct, the Complainant was subject to a further disciplinary procedure in early November 2016.   These allegations of wrongdoing referred to the Complainant leaving a security control room door open, where he was one of three staff in the security control room which was contrary to standing orders, and where he was accused of using a personal mobile phone while on duty.

    The Respondent maintained that the Complainant was provided with a fair disciplinary hearing of the allegations, and where the Complainant acknowledged to wrongdoing. As a consequence, and in light of the seriousness of the misconduct, the outcome of the disciplinary hearing amounted to summary dismissal. Accordingly, on the 8 November 2016 the Respondent dismissed the Complainant for serious misconduct, and the fact that he was on a final written warning at that stage. The Respondent acknowledged that two colleagues of the Complainant were also subject to a disciplinary hearing for similar offences, but following a disciplinary procedure they were not dismissed, and where one of the colleagues did not receive any sanction, whereas the other colleague would have received a final written warning. The Respondent justified the dismissal of the Complainant on the basis he was already on a final written warning and that he would have been aware that further offences could lead to his dismissal.   As stated, in light of the seriousness of the offences and the written warning the decision was taken to summarily dismiss the Complainant. The Respondent advised the Complainant appealed the sanction and it heard the appeal, but following consideration of the evidence it maintained that the Complainant had breached its operating procedures, and as a consequence of both the seriousness of the misconduct and the fact he was on a written warning the decision to dismiss was upheld following the appeal hearing.

    In cross-examination, and with regard to the disciplinary procedures of May 2016 where the Complainant was issued with a final written warning, the Respondent maintained that whilst the appeal was not submitted correctly in accordance with its procedures, it was brought to a group of senior managers who discussed the matter. The managers decided as the appeal had not been directed to the correct person, and the fact that the Complainant had acknowledged to his wrongdoing, that it upheld the final written warning. The Respondent confirmed that it did not invite the Complainant to any appeal hearing as it had not been properly submitted, whilst at the same time it acknowledged that a letter was sent to the Complainant advising him that if he wished to appeal the matter it should be submitted in writing to a named manager and where the Complainant had in fact submitted his appeal to that manager. The Respondent also acknowledged that it did not inform the Complainant in writing of the outcome of the appeal but that some weeks later during a telephone conversation with the Complainant that a manager would have advised the Complainant that his appeal was considered and not upheld. The Respondent advised that the Complainant did not pursue the appeal and noted at the disciplinary hearing in November that he acknowledged that he had received a final written warning, and did not raise it in his appeal against his dismissal at that time.

    Legislation:

    In accordance with Section 6(1) the Unfair Dismissals Act, 1977 “the dismissal of an Employee should be deemed, for the purpose of this Act, to be an unfair dismissal unless having regard to all circumstances the substantial grounds for justifying the dismissal”. S6(4) of the Act states the dismissal of an Employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if inter alia it results wholly or mainly from the conduct of the Employee. In addition S6(7) of the Act as amended requires that in determining if a dismissal is an unfair dismissal, regard may be had, if the Adjudication Officer 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, and (b) to the extent (if any) of the compliance or failure to comply by the Employer, in relation to the Employee, with the procedure which the Employer will observe before and for the purpose of dismissing the Employee …or with the provisions of any code of practice.

    Decision:

    The Adjudication Officer considered both the substantive issues leading to the dismissal, and the fairness of the procedures adopted. As to whether there were substantial grounds for the Complainant’s dismissal on the ground of gross misconduct, the applicable legal test is the “band of reasonable responses” test, as comprehensively set out by Mr Justice Noonan in the context of Section 6 of the Unfair Dismissals Act 1977 in the High Court case of The Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241, wherein he stated: “It is thus clear that the onus is on the Employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s. 6(4), which includes the conduct of the Employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the Employer's conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the Employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable Employer to the conduct concerned - see Royal Bank of Scotland -v- Lindsay UKEAT/0506/09/DM.”

    In the case within the Complainant has argued that the action of the Respondent to dismiss him was unfair in that he was denied a right of appeal to a final written warning that ultimately led to his dismissal, and if it was not for this final written warning he would have been treated similarly to his colleagues and would not have been dismissed. It is noted the Respondent has argued that the other colleagues were sanctioned appropriately and where one of the Employees has made a complaint of constructive dismissal against the Respondent in relation to the issues.

    In relation to procedural fairness, the Adjudication Officer was guided not only by the Respondent’s disciplinary policy, but also by the requirement in S.I. No. 146/2000 - Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures) which provides that the procedures for dealing with disciplinary issues (reflecting the varying circumstances of enterprises/organisations), must comply with the general principles of natural justice and fair procedures. The contractual and constitutional rights to fair procedures are also well established (In Re: Haughey [1971] IR 217). Such rights provide for a right of appeal, and to be heard as part of that appeal process. Based on the evidence provided the Adjudication Officer was satisfied that the Complainant may well have breached operating procedures within the organisation, and where such breaches occur the Respondent is entitled to invoke its disciplinary procedures to address same.

    Based on the Respondent’s risk documents some of the breaches the Complainant was found guilty of were deemed to be serious misconduct, particularly in relation the actions of the Complainant in the Respondent’s security control room.

    The Adjudication Officer does not find the Respondent erred in its handling of the initial disciplinary procedures adopted in May 2016, or in its investigation of the issues in November 2016. However, it is clear that once the Complainant exercised his right to appeal the disciplinary sanction in May 2016, and where he followed the instructions provided to him in the disciplinary letter- in that he was told he could make his appeal to a named manager- the Respondent was obliged to provide an opportunity for the Complainant to have his appeal heard in this way.

    It is a matter of fact that the Complainant did lodge an appeal to the manager he was told to make such an appeal to, and where the appeal in effect sought to address the severity of the disciplinary sanction- a final written warning. The Adjudication Officer was also satisfied, in accordance with the Respondent’s procedures, that the Respondent is obliged to ensure the Operations Director would meet with the Employee in an attempt to resolve matters, and where matters remained unresolved and appeal hearing will take place. It further advises that the appeal hearing is not intended to be a repeat of the investigation process but to address specific issues which the Employee feels have received insufficient consideration such as mitigating circumstances, procedural deficiencies, and severity of the sanction imposed. It further advises that the appeal hearing will normally be held within 10 working days of the appeal being lodged and where the Managing Director will hear all appeals and his decision would be final.  

    Based on the evidence provided the Adjudication Officer was satisfied that the Respondent did not adhere to its own procedures, and more specifically in accordance with its letter to the Complainant. The Respondent maintained that as the Complainant had admitted to the wrongdoing it was not appropriate to reinvestigate the case, and equally as the Complainant had not submitted his appeal to the Managing Director it had been incorrectly submitted and therefore failed. The Adjudication Officer found this decision remarkable in light of the fact that the Complainant was advised in writing to submit his appeal to a named manager, which he did. Furthermore, the basis of the appeal was to address the severity of the sanction imposed and some perceived procedural deficiencies, all of which are set out in the Respondent’s appeal procedures. On that basis, the Adjudication Officer found the Complainant was denied his contractual rights to have an appeal he had made in May 2016 heard, and the decision of the Respondent to dismiss the appeal was flawed and clearly contrary to its own policies, and natural justice.

    The Adjudication Officer acknowledged there is a conflict in evidence in relation to whether the Complainant was advised of the outcome of the Respondent’s so-called appeal meeting that was supposedly held by a group of senior managers. This process, if it happened, appears contrary to the Respondents policy, a policy it has argued the Complainant did not adhere to. It seems that whilst on the one hand the Respondent wishes to deny the Complainant a right of appeal because he did not correctly adhere to the procedures, yet on the other hand the Respondent seems happy to rely on its own adaptation of the procedures to suit its argument. Even if its own handling of the appeal did occur as stated, there is a marked absence of any record of its follow-on actions with the Complainant regarding any decision the Respondent made about the appeal, and an absence of any formal record of how it dealt with the appeal or the outcome of same. The Adjudication Officer was satisfied, based on the evidence that the Complainant did not receive sufficient communication, if any, with regard to the handling of his appeal.

    The Adjudication Officer also found the Respondent ignored its own procedures and its specific instruction to the Complainant on how it would handle his appeal. In addition, the Adjudication Officer found that in light of denying the Complainant with a proper appeal process in the first disciplinary hearing in May 2016, that the second disciplinary procedures which led to the Complainant’s dismissal was unfair in that the Respondent relied on a sanction that had been appealed but where it did not allow that appeal to progress. It is clear that the Complainant’s colleagues who were accused of similar offences did not experience a dismissal as they were not on final written warnings, whereas the Respondent having upheld the wrongdoing relied upon its final written warning as the basis for dismissing the Complainant. It is noted that the Complainant did not raise this as an issue at the internal appeal hearing to his dismissal in November 2016, however he has relied on it in his complaint to the WRC, which he is entitled to do. The Adjudication Officer therefore found the Complainant was unfairly dismissed contrary to Section 6(7) of the Act in that the Respondent omitted to provide the Complainant with a fair procedure in May 2016 by denying him a right to appeal its disciplinary decision. The Adjudication Officer was satisfied that the actions the Complainant was accused of do amount to serious safety and security risks, and as such perhaps warrant a significant disciplinary sanction in their own right. However, in light of the sanctions imposed against his colleagues it is unlikely that a dismissal would have occurred had the Complainant not been on a final written warning.

    Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that the Adjudication Officer make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act. For the aforesaid reasons, pursuant to Section 8 of the Unfair Dismissals Act 1977 the Adjudication Officer found this complaint to be well-founded and conclude that the Complainant was unfairly dismissed by the Respondent. Having deliberated on all these factors the Adjudication Officer considered it just and equitable in all the circumstances to award the Complainant €9,500. The Respondent is therefore ordered to pay the Complainant a total of €9,500 in compensation (subject to any lawful deductions).

    Adare Human Resource Management Commentary:

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

    For an Employee to be dismissed, it is essential that the Employer does have a justifying reason to do so, these reason can lie under the term gross misconduct in an Organisations disciplinary policy, such as below:

    Gross Misconduct

    The following behaviours may be considered to be gross misconduct and may result in summary dismissal, depending on the circumstances of the case.  Note that these examples are provided for illustrative purposes only, and this list is not exhaustive.  All cases are considered on their own merits:

    • Serious harassment, sexual harassment, bullying, victimisation or other act of discrimination;
    • Serious abuse of sick leave;
    • Theft or other fraudulent behaviour;
    • Serious breaches of health and safety rules or endangerment of another person in the workplace;
    • Serious breaches of confidentiality;
    • Being under the influence of an intoxicant at work or in the course of employment;
    • Possession, sale or distribution of a controlled substance in the workplace
    • Violent or threatening behaviour;
    • Refusal to participate in a workplace investigation or other action;
    • Serious failure to adhere to an agreed workplace procedure or other agreed terms of employment.

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

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

     

  • Help Desk - To hold an Investigation or to have a Disciplinary Hearing

    by Hayleigh Ahearne
    Apr 05, 2018

    What is the Disciplinary process?

    The Disciplinary Process is a process which allows Organisations to address issues of misconduct, and serious misconduct, in an informal or formal manner. The Disciplinary Process is a staged process, consisting firstly of an informal approach, and should this be ineffective, or inappropriate in a given set of circumstances, the formal process. The Disciplinary policy should aim to be corrective rather than punitive where appropriate. In this month’s newsletter we address some of the considerations for Organisations relating to the carrying out of an investigation prior to carrying out a disciplinary hearing, what Organisations should be aware of, and considerations for them in deciding whether to carry out an investigation or proceed immediately to the disciplinary hearing. An Organisation should always refer to their own Disciplinary policy as this should define what procedure they are committed to follow.

    Prior to entering into the formal stage of a Disciplinary Process an Organisation should always take a step back, and consider if there is anything else which needs to happen prior to summoning an Employee to a disciplinary hearing, or suspending an Employee. In certain instances, the Organisation will need to separate the investigation from the disciplinary hearing process, and establish the facts of an allegation / alleged incident in order to ascertain whether there is the need for a disciplinary hearing. In a lot of cases, an Organisation may need to carry out an investigation into the allegations in order to establish the facts. It is worth to noting that at times, a disciplinary hearing alone may suffice, as long as the principles of natural justice are adhered to, and there is a transparent process followed, such as for the management of issues relating to lateness or absences. Organisations must be cognisant of the fact that an investigation to establish facts, and the potential need to holda disciplinary hearing process, will only be known upon the conclusion / outcome of the investigation. One outcome is that the facts have been established, and there may now be a need to hold a disciplinary hearing, which may lead to a disciplinary sanction. The second is that there is not enough evidence to support an allegation against an Employee and there is no disciplinary hearing required.

    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.

    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

    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(s) which has arisen  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,
    4. Identifying the steps involved and expected outputs (factual report).

    Role of the Investigator

    An Investigator should conduct the investigation with integrity, fairness, impartiality and respect to uncover the cause of the problem and report their findings to the Organisation. In employment related investigations the investigator should also be focused on the possibilities of preserving a good working relationship between the parties and maximising their ability to succeed in the future.

    How is an investigation conducted?

    Workplace investigations need only satisfy the threshold of the ‘balance of probabilities’. An Employer must utilise fair procedures in the investigation otherwise they may be found to have acted unreasonably. Fair procedures are grounded in the concept of natural justice.

    • The Organisation should appoint an Investigator, this may be an internal person from the Organisation, such as a Manager or a Director, to examine the evidence, and conclude with a finding. The Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2012 states that an external investigator may be necessary to deal with complaints in some circumstances so as to ensure impartiality, objectivity and fairness in an investigation. With this, the Organisation would source an external investigator to conduct the investigation on their behalf.
    • All Employees involved in an investigation must respect the need for confidentiality and a failure to do so may result in disciplinary action. Confidentiality is assured in so far as it is reasonably practicable.
    • Both parties may be suspended with pay, without any negative inference, pending the outcome of an investigation, where deemed appropriate by Management. Careful consideration should be given to this action prior to making any decision to suspend. However, where this is not possible, the parties to the complaint will be expected to maintain a professional working relationship.
    • The investigation will be conducted in accordance with the relevant policy and will be governed by terms of reference (detailed above) which will detail the likely time scale for its completion (an indicative timeframe will be outlined) and the scope of the investigation.
    • The investigator should meet with the Complainant in the first instance to learn more regarding the complaint and to put the alleged perpetrator’s responses to the Complainant.
    • Next, the alleged perpetrator should be invited to a meeting to explore their responses to the complaint and to put any relevant evidence to them. All evidence should be provided in advance of the meetings in order to allow the Employee to prepare their response to that evidence.
    • It may be deemed necessary to conduct more than one interview with either or both parties in order to ensure that the investigator is satisfied that all evidence has been collected and all parties have had a fair opportunity to state their case.
    • Relevant witnesses may also be interviewed with a view to establishing the facts surrounding the allegation(s).
    • All parties required to attend investigation meetings should be offered the right to be accompanied by a representative.
    • The Complainant and the alleged perpetrator(s) should be informed in writing of the findings of the investigation, i.e. whether the complaint is upheld or not upheldWhere a complaint is upheld, both parties should be informed of this outcome, and the relevant level of Management will also be advised. 
    • Management should take appropriate action based on the outcome of the investigation. This may include formal disciplinary action in line with the Organisation’s disciplinary procedure, or training, or another appropriate intervention deemed necessary to prevent a recurrence of the behaviour.

    Adapting the terms of reference post ‘Lyons High Court Decision’

    Current employment case law decisions affirm an Employees right to legal representation generally devolves on instances where dismissal is a potential outcome or the alleged misconduct would adversely affect the Employees reputation.

    Hence, every occasion that a disciplinary sanction is being considered for example, warning for lateness, minor transgression will not necessitate the provision of legal representation and cross examination.

    An investigatory hearing that is an information gathering exercise such as one wishes to ascertain whether there may be a basis for instituting the disciplinary process, and the investigation leaves the final decision to a separate decision maker. This type of investigation should not necessitate cross examination and legal representation (unless an organisational/departmental policy says to the contrary).

    A fact finding investigation is one that could result in a final or binding determination incapable of being reversed at a later stage in the process. This type of investigation would require the facility of cross examination and legal representation where dismissal is a potential outcome or the alleged misconduct would adversely affect the Employee’s reputation.

    Consequently, the terms of reference of the Investigation process adopted by an Organisation should be clear as to the intent of the process.

    Benefits of Workplace Investigations

    Well conducted workplace investigations identify the specific details of an incident by determining what happened, how it happened, and when it happened, if in fact it did happen.

    Risks involved with investigations

    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:

    • a lack of pre-investigation planning;
    • 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.

    More often than not, these mistakes are the result of a lack of experience and skill on the part of the internal investigator appointed by the Organisation.

    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 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.

    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 to be utilised. 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 disciplinary hearing, to afford the Employee the opportunity to respond to these during the hearing.

    Conclusion

    The purpose of conducting an investigation is to gather relevant evidence to determine whether or not there is merit to a complaint lodged by an Employee and/or whether an Employee engaged in misconducted. Completing a fair process can be difficult and if there is dissatisfaction with the process, the impact will be felt by all involved.

    Whilst it is not always necessary to separate out the investigation process and the disciplinary hearing process, Organisations must ensure that the Employee, is made aware of the allegations made against him/her, is allowed to respond to any allegations being made against him/her, is allowed be represented and for there to be an impartial investigator conducting the process. However, the absence of any or all these factors may have the opposite effect and in certain circumstances the Workplace Relations Commission (WRC) or Labour Court will have the final say in the matter when making an order in favour of the Employee who is deemed to have been treated unfairly.

    Organisations must be aware of the fact that their disciplinary policy ultimately will dictate how they go about utilising the disciplinary process, and the possibility of utilising an investigation to determine whether disciplinary action is required. The principles of natural justice must be adhered to in every process.

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

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

    by Hayleigh Ahearne
    Apr 05, 2018

    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.

    Details of the event are as follows:

    Date: Tuesday 17th April 2018

    Times:

    1.30pm – Registration and Refreshments

    2.00pm – Welcoming address presentation

    2.15 - 3.30pm – Mock Workplace Relations Adjudication Hearing

    3.30 - 4.00pm – Q & A with Adjudicator, IR and ER Practitioners

    4.00pm – Networking and Refreshments

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


    Pricing:

      Clients: (Adare HRM Current Clients)   For Non-Clients: 
    Full rate    €215  €255
    Charity Rate  €195  €195


    For more information on this event and the associated costs, please click here.

    To book a place at this event please email marketing@adarehrm.ie or call (01) 561 3594


  • Labour Court Recommend 7% Pay Hike At Kostal

    by Hayleigh Ahearne
    Mar 14, 2018

    With what appears to be a consistent flow of union pay claims making their way to the Labour Court these days it seems there is now a clear and concurrent consistency to the outcome of most of these cases.  Indeed with limited exception the Labour Court has established a trend in the resolution of pay disputes by recommending pay increases to workers that in the main amount to between 2% - 2.5% per annum.  In the latest pay claim before it involving SIPTU and manufacturing Company Kostal.    

    The Union had argued that the claim for the pay increase is supported by the financial analysis conducted by both the Company Financial Controller and the Union's own researcher. The Union said its members believe that the Company is in a financially strong position and indicated a willingness to settle its pay claim by accepting a four percent increase per annum for three years or a three percent increase in pay for three years with a further three percent to be added in pension contributions over the three year period.

    For its part the Company stated that they are 'very concerned' about the level of pay increase being sought and argued that if the Court was minded to award the Union's claim, the Company would be incapable of winning new business and sustaining employment levels. Management said it has already awarded approximately 6.4% in pay increases since 2014. Referencing the IBEC and ICTU protocol for the Orderly Conduct of Industrial Relations and Local Bargaining in the Private Sector, the Company informed the Court that the challenge of maximising sustainable employment still remains.

    Court Recommendation

    In its summary the Court noted the specific demands of the Union and also referenced the Company offer of 1% pay increase per year for three years from 2017, plus 0.25% increase in pension contributions for 2017, 0.25% increase in pension contributions for 2018 and 0.50% increase in pension contributions for 2019 and then recommended the following pay increases  2% from 1st July 2017, 2.5% from 1st January 2018 and 2.5% from 1st January 2019 with the deal to expire on 31st December 2019

    ____________________________________________________________________________________________________________


    Significant Redundancy Terms For AXA Insurance Workers

    In a dispute involving AXA Insurance and the Unions SIPTU and Unite over redundancy terms at the Company the Labour Court has recommended the Company make available and the Unions accept “a formula of six weeks per year of service” by way of settling a redundancy terms dispute.

    Dispute

    The case concerns a dispute in relation to redundancies arising from restructuring measures taken by the Company. The Unions claim related to enhanced redundancy terms on behalf of their members employed in the Retail Branch Network and Telesales sections of the Organisation. The Unions asserted that the Employer is in a financial position to concede a claim for enhanced redundancy terms for its members.  The Unions also maintained that the proposals put forward by the Employer is outside of industry norms.

    The Company said its proposals put forward to the Unions are within the industry norms in the general insurance sector and asserted a number of reasons as to why it is not in a position to withstand the additional costs associated with the Unions claim.  The only issue in dispute related to the redundancy terms.

    Management were proposing that the terms of a 2016 Agreement reached with the Unions with a few minor adjustments should apply. The Unions sought enhanced terms based on an assertion they believe there will be compulsory redundancies, which was not the case in earlier circumstances. The Unions were also seeking that the terms should apply to all members in the category including those eligible for early retirement. The Employer produced a chart that showed the proposed package when taken as a whole was not out of sync with the trends in the Insurance sector.

    Six Weeks Per Year of Service

    The Court said that having read the submissions of both parties and listened carefully to the oral submissions made on the day that the terms as set out on an earlier WRC Document of 13th December 2017 be amended to read that “A formula of 6 week’s pay per year of service will apply”.

    It is unclear as to what other provisions existed in the WRC proposal but it is significant the Court concluded by recommending an increased provision that relates or equates to such an enhancement of redundancy terms.   

  • Court Overturn Compensation & Award “Re-Engagement” in UD Case

    by Hayleigh Ahearne
    Mar 14, 2018

    In a recent and most interesting case under the Unfair Dismissals Acts the Labour Court unhelp an appeal by a worker who had already won his case at Adjudication but appealed the quantum of his award.  At adjudication the Claimant had sought reinstatement but was awarded compensation having won his case.  The case in point Ref: UDD1813 was of a most sensitive nature the anonymity of all concerned was preserved by the Court. 

    In the earlier determination the Adjudication Officer held that the complaint was “well-founded” and awarded the sum of €8,000 in compensation.

    The Complainant was employed as a Health Care Assistant with the Respondent from April 2012 until his dismissal in August 2016.  The Respondent is a campus and community based residential and day service for adults and children with intellectual disabilities. According to the Court details on this case a board of directors, comprised of volunteers, was replaced in 2016 by the HSE.

    It was sated in proceedings that on 29th  September, 2015, an allegation of physical abuse towards a resident was made against the Complainant when he was accused of forcefully pulling a service user to his feet and he was immediately suspended with pay.
    Following the drawing up of Terms of Reference under its Trust in Care policy for an investigation into the incident an Independent Investigator was appointed to conduct the investigation. The Complainant accepted that the allegations made against him were true and the investigation concluded in November 2015 with a finding of gross misconduct. On 10th December 2015, the Complainant was informed that he was dismissed with immediate effect.

    Internal Appeal Upheld

    The Complainant appealed the decision to dismiss on the basis of unfair procedures and other recommendations with the report of investigation being ignored.  A new Board of Management was then appointed by the HSE in April 2016. On 12th August 2016 the Claimant was informed that he was not “suitably qualified” for the work and was dismissed with immediate effect.

    Respondent’s Position
    The Respondent asserted that it considered the situation in its entirety and was left with no other option but to dismiss the Complainant in December 2015. In line with its disciplinary process, the Complainant was afforded the opportunity to appeal this decision, which he duly did. The then Chairman of the Board heard the appeal on 8th January 2016 and recommended that the Complainant be reinstated and he was put back on the payroll with effect from 10th December 2015.

    A new Board of Management was appointed by the HSE and held its first meeting in April 2016. Due to there being grave concerns over the safety and welfare of people with disabilities in the Service, and in compliance with an ethos and stated policy of zero tolerance of abuse, the Board considers that the Complainant was not suitably qualified to work with the residents of the Service and determined that he should be removed from the payroll.  This decision was made at the Board meeting on 28th June 2016 and communicated to the Operations Manager on 29th June 2016. The Complainant’s employment was terminated with effect on 12th August 2016.

    It was accepted that prior to this incident there had been no known actions conducted by the Complainant that put service users at risk.  The Respondent’s representative referred to the Investigator Report which found that the Complainant’s actions constituted inappropriate practices within the sphere of major misconduct and that the Respondent should consider an appropriate courses of action. It also recommended that:  "Without prejudice to decisions made by the organisation regarding [the Complainant’s] status, consideration should be given to relocating [the Complainant] to an alternative work location. This location should be one where there are adequate structures in place to ensure an availability of mentoring and supervision for him on an ongoing basis, for a minimum period of six months." In conclusion, the Respondent acknowledged that there were procedural shortcomings in this process.

    Complainant’s Case
    The Trade Union Official on behalf of the Complainant submitted that the dismissal was unfair. Furthermore, he submitted that there was no due process afforded to the Complainant prior to his dismissal.  In summary the Claimant’s representative provided argument and evidence that: The Complainant was not provided with natural justice or due process. The Independent Investigation recommended that the Complainant should work in another unit. The Sub-Committee of the Board that heard the appeal decided that the Complainant should be re-instated and work in another unit. A Psychological Assessment gave assurances and guidance to Management that there was no further risk to service users. The HR Sub-Committee of the new Board outlined that all matters had been satisfactorily dealt with and had no issue with the Complainant being reinstated.
    An investigation by TUSLA Social Workers also confirmed that the Complainant did not pose a risk to service users.  It was further submitted that in cases where an Employer contends that there is a breakdown of trust without adequate justification or evidence to back-up such an assertion this should be reflected in the compensation award. In this case, the Complainant had undertaken extensive training and had a lot of experience to progress further in the Social Care Profession and the way he has been treated has put
    his future career in jeopardy.

    Labour Court Findings
    The Court noted that the Respondent accepted there were procedural shortcomings in the dismissal process and on that basis decided not to appeal the Adjudication Officer’s Decision, as well as the submission that the remedy which the Court should determine in this case was compensation and not a job back remedy.

    The Complainant accepted that by his actions on 29th September 2015, he contributed to the disciplinary action taken against him however, he submitted that his dismissal was unjustified and unfair due to the lack of due process. The Complainant sought his job back, as outlined above.

    Upon consideration of the case presented the Court then determined and ordered that subject to Point ii below that:

    (i)      The Complainant “be re-engaged” in to a position of Healthcare Assistant equivalent to that which he occupied prior to his suspension on 29th September 2015 and subsequent dismissal.

    (ii)    The Complainant be relocated to an alternative work location in accordance with the recommendation contained in the report of the independent external investigator dated November 2015. Suitable and appropriate mentoring and supervision in accordance with the recommendation is to be put in place.      

    (iii)  The Complainant undergo suitable and appropriate training, to be determined by management, with the aim of ensuring that the events of 29th September 2015 are not repeated.     

    (iv)  Re-engagement is to take effect from Monday 5th March 2018. The period between the date of dismissal on 12th August 2016 and 5th March dismissal, the Employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances.                                                 

    (v)    The Complainant is to receive a lump sum payment of €7,500 gross to recognise the loss of premium payments during the period of paid suspension between 29th September 2015 and 12th August 2016. This payment is to be made as soon as is practicable after the Complainant returns to work, but no later than end of March 2018, and is to be accepted by the Complainant in full and final settlement of the loss of premium pay matter.                                     

    (vi)  The Complainant is to be placed on a final written warning in line with Stage 3 of the Respondent’s Human Resources Policies & Procedures. This warning to take effect from 5th March 2018 for an eighteen-month period.

    Comment: Section 7 Unfair Dismissals Acts & Fairness of Procedures

    In the context of redress options within the Unfair Dismissal Acts, Section 7 provides for:

    (a) re-instatement by the Employer of the Employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

    (b) re-engagement by the Employer of the Employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

    (c)  (i) if the Employee incurred any financial loss attributable to the dismissal, payment to him by the Employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances,

    or (ii) if the Employee incurred no such financial loss, payment to the Employee by the Employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances,

    In this case it was a matter for the Court to only consider redress and so in that context the options for determination must be one of the options as prescribed in Section 7 (a) (b) or (c).  Having listened to and digested the views of the parties as to preferred redress in a circumstance whereby there was already an undisputed verdict that the dismissal was unfair due to procedural shortcomings, then any decision by the Court must take account of those “procedural shortcomings”.  Therefore, for the Court to determine that the redress was the conditional re-engagement of the Claimant this itself should be taken as a very clear indicator to Employers that procedural shortcomings or shortcuts may result in the Employee retuning to work by order of the Court.  That scenario is well worth remembering and is a significant lesson for Employers to take from this case.

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

    by Hayleigh Ahearne
    Mar 14, 2018

    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.

    Details of the event are as follows:

    Date: Tuesday 17th April 2018

    Times:

    1.30pm – Registration and Refreshments

    2.00pm – Welcoming address presentation

    2.15 - 3.30pm – Mock Workplace Relations Adjudication Hearing

    3.30 - 4.00pm – Q & A with Adjudicator, IR and ER Practitioners

    4.00pm – Networking and Refreshments

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


    Pricing:

      Clients: (Adare HRM Current Clients)   For Non-Clients: 
    Full rate    €215  €255
    Charity Rate  €195  €195


    For more information on this event and the associated costs, please click here.

    To book a place at this event please email marketing@adarehrm.ie or call (01) 561 3594


  • Topic - Social Media – help or hindrance for Employers

    by Hayleigh Ahearne
    Mar 05, 2018

    The use of the internet and social media has grown substantially in recent years. 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 doubt that social media has strengthened communications between the consumer and the business, allowing for a much greater engagement. 

    The Advantages of Social Media for Organisations:

    Making people known about your existence: If you want to make other people know about your Organisation, then promoting your Organisation on social media may be deemed an effective way to do so.

    Branding: An Organisation can establish their own unique identity by connecting with the customers / clients via social media. There are many brands that have been established just because of heavy advertising and social media. Advertising can be deemed a costly way of connecting with the customers but social media is cheap whilst at the same time it is very effective. 

    Cheap investment: Investing your time and money on social media can be deemed a cost effective investment that any Organisation makes because it is cheap and very effective. Many Organisations spend lot of money on costly methods such as advertising and many more. But social media has made it easier for the Employees to connect and learn easier methods which increases the productivity and also spreads the awareness about their brand.

    The Disadvantages of Social Media for Organisations:

    Major distraction: Facebook, LinkedIn and many more can be a major distraction for Employees as they can shift their focus from the work. Using social media in excess can slow down the productivity and efficiency in the Organisation which can bring loss to the Organisation.

    Technical Risk: Permitting Employees to use social media on the Organisations devices may result in viruses being downloaded onto these devices. Thus permitting social media usage on the Organisations devices may result in the Organisation needing to install an efficient firewall to these devices to prevent them having a large spend on removing the viruses from the devices.

    Reputational Damage: The risks of reputational damage and defamation from posts on Facebook or other such fora made on social networking sites can be significant so too is the ease by which such postings can bring an Employer into disrepute, or destroy a client relationship. 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.

    What should be included within your Social Media and Internet Usage Policy?

    Some key sections which should be covered as part of a Social Media and Internet Usage Policy are outlined below:

    • The monitored usage of Organisation systems and technology;
    • Only appropriate material should be accessed using the Organisations technology and systems;
    • Agreements or comments made via email may be binding on the Organisation – therefore Employees should never put something in writing on emails that they would not be willing to stand over;
    • Respect your audience;
    • Do not use the Organisations trademark or logo without prior approval.

    The Social Media Policy and Internet Usage Policy should also 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.

    Monitoring of Systems and Social Media:

    Management has a right, within the guidelines of Data Protection, to monitor how Employees are using the Organisations systems and devices and this can extend to social media activities if they relate to work purposes.

    Have a clearly documented and well communicated policy in place is key to the prevention of issues in this area and Organisations should be aware that:

    • A balance is required between the legitimate rights of Employers and the personal privacy rights of Employees;
    • Any monitoring activity should be transparent to Employees;
    • Employers should consider whether they would obtain the same results with traditional measures of supervision;
    • Monitoring should be fair and proportionate with prevention being more important than detection.

    Case Law & Learnings for Employers

    We have come across a number of interesting cases over the past number of years relating to the area of systems, social media and usage and there are key learnings for Employers arising out of these cases.

    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.

    In the case of Sarah Rooney / Sarah Murray v Bank of Ireland, the Employment Appeals Tribunal (EAT) awarded a total amount of just over €65,000 for an Employee who distributed pornographic emails. The Tribunal in this case noted that the investigation performed by Bank of Ireland had unfairly targeted junior female workers and failed to investigate many of their superiors who also were involved in the exchange of the offensive emails.

    Conclusion:

    As social media and technology continues to grow in the workplace, Employers should ensure they develop and adapt their current and future polies to reflect this ever changing area of legislation. Ensuring your Organisations policies and procedures are sufficient in dealing with any future claims which may arise.

    For further information on Social Media and Technology Policies please do not hesitate to contact the Adare Human Resource Management team on (01) 561 3594 or info@adarehrm.ie.

  • Case Law - Reviewed under the WRC

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

    Complainant awarded €2,307 as Employer failed to pay for the accrual of annual leave whilst on sick leave

    Adjudication Reference: ADJ-00009834

    Summary of Complainant’s Case:

    The Complainant sustained a workplace injury which caused him to be out sick from September 21st 2015 until March 14th 2017 when he resigned as he was not medically fit to carry out his duties. He claimed twenty-seven days and in the course of discussions with the Respondent he was offered seventeen which he did not accept.  

    Summary of Respondent’s Case:

    The Complainant’s absence on sick leave was not disputed apart from a period of two and a half months where medical certificates were not submitted at the time. It was on this basis that the Respondent offered thirteen days in respect of 2016 and four in respect of 2017.  

    Legislation:

    The Workplace Relations Act 2015 has amended Sections 19, 20 and 23 of the Organisation of Working Time Act 1997. Effective from the 1st August 2015, employees can accrue annual leave entitlement whilst absent from work on certified sick leave. Such accrual is limited to statutory annual leave days and does not entitle an Employee to accrue annual leave days over and above their statutory entitlement.

    Decision:

    Since August 2015 workers have been able to accrue annual leave when they are on long term sick leave. On foot of amendments to the Organisation of Working Time Act 1997, workers were enabled to carryover such accrued annual leave for a period of 15 months after the leave year in question. The new legislation was in response to rulings of the Court of Justice of the European Union on accrual of annual leave entitlements during sick leave. The amendment to the legislation was made by way of section 86(1) of the Workplace Relations Act 2015.

    In summary, it resulted in statutory annual leave entitlement remaining to accrue during a period of certified sick leave. An annual leave carryover period of fifteen months after a leave year will apply to those Employees who could not, due to illness, take annual leave during the relevant leave year or during the normal carryover period of six months. On termination of employment, payment in lieu of untaken accrued annual leave will apply to leave which was untaken as a result of illness in circumstances where the Employee leaves the employment within a period of fifteen months following the end of the leave year during which the statutory leave entitlement accrued.

    The annual leave year runs from April 1st to March 30th. The Complainant terminated his employment on March 14th 2017. He is therefore entitled to annual leave in respect of eleven and a half months for the annual leave year that was his current year at the time of his resignation. As his termination was within fifteen months of the conclusion of the previous annual leave year he is also entitled to annual leave in respect of the period from September 21st 2015 to March 30th 2016; a total of twenty-five weeks. On this basis, his total annual leave entitlement is based on seventy-five weeks’ sick leave absence; an entitlement to just over twenty-eight days, and on the basis of a daily wage rate of €80 this comes to €2307.00.    

    The Adare Human Resource Management Commentary:

    In calculating an entitlement to annual leave due to certified sick leave, an Organisation needs to consider what leave years are relevant. In any given case, the maximum amount of leave years that an employer will need to consider are three leave years, which are as follows:

    a) The current leave year (the leave year in which the employee returns to work),

    b) The last leave year (the leave year immediately before the current leave year), and

    c) The year before the last leave year (depending on the month the employee returns) 

    On termination of employment, payment in lieu of untaken statutory annual leave will apply to leave which was not taken as a result of illness in circumstances where the Employee leaves the employment within a period of 15 months following the end of the leave year during which the leave entitlement accrued.

    Payment in lieu of statutory annual leave may only be made in circumstances where the Employee is leaving the employment.

     

    ____________________________________________________________________________________________________________

     

    Complainant awarded €7,500 for an Unfair Dismissal and €2,196 under the Organisation of Working Time Act

    Adjudication Reference: ADJ-00007413

    Summary of Complainant’s Case:

    The Complainant withdrew complaint CA-00009948-002 under the Redundancy Payments Acts at the hearing. He says he was dismissed following an incident on February 29th 2017 when his Employer became aware that he had been looking for other work. However, he accepts he told the Respondent on January 16th or 17th that following a period of illness he needed time off and the Respondent agreed to this. A few days later the Complainant requested his P45 and this was forwarded to him some days after that, approximately in the last week in January. There were continuing contacts between the parties and on February 26th it was agreed between them that he would ‘return to work’ which he did on February 29th. On that morning when they met the Respondent raised with the Complainant the fact that he was looking for other work and while the precise terms of the exchange were disputed they parted following it. Regarding complaint CA-00009948-001 under the Organisation of Working Time Act 1997, he says that he did not receive any paid annual leave or payment for public holidays.  

    Summary of Respondent’s Case:

    The narrative above is substantially accepted as correct by the Respondent. He confirms that the Complainant came to the business a few days after January 17th 2017 and asked the Respondent’s wife, who acts as an administrator for the business, for his P45 as he needed it to make at claim at the Department of Social Protection. He also confirms that there was renewed contact between them during February and he agreed to take the Complainant on again. However, the business is a very small one and he needed to know that he could rely on the Complainant and, as he had heard he was looking for work, he put this to him. While the Complainant denied it he then told the Respondent that it was none of his business. The Respondent then said if that was the case they should ‘call it a day’ and the Complainant got out of the van and left. The Respondent did not dispute the complaint under the Organisation of Working Time Act.  

    Legislation:

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

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

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

     

    The Organisation of Working Time Act, 1997 sets out to protect the health, safety and welfare of Employees by regulating their working patterns.  The legislation sets out an Employees rights in relation to working time and the provision of rest periods. The Organisation of Working Time Act, 1997 sets out minimum entitlements to annual leave and public holidays for all Employees.  The legislation sets out to regulate how these benefits are awarded, and sets out record keeping requirements in this regard.

    Decision:

    The key question here is whether the Complainant was an Employee at the time of the incident on February 29th when the employment relationship came to an end. From the evidence given at the hearing it is clear that the Complainant initially requested time off work in January as a result of illness or injury and this was agreed. The Complainant asked for his P45 at the end of January. It seems that the Respondent may have taken this to be some form of resignation by the Complainant. However, his application for benefit to the Department of Social Protection required production of a P45. In the absence of some other proof this request alone cannot be taken, and certainly not on these facts, as evidence that the Complainant had resigned his position. Accordingly, when the Complainant and Respondent resumed their relationship on February 29th, the Complainant was basically returning to work after a period of unpaid sick leave.

    In the Complainant’s submission, he stated that he and the Respondent ‘both agreed’ he ‘would return to work’ on February 29th.  The Adjudication Officer found therefore that on February 29th the Complainant was still an Employee and his return to work followed his period of absence on sick leave, as agreed with the Respondent. Then, the dispute arose about the Complainant applying for other work and his availability to the Respondent for future work. The Adjudication Officer found that the Respondent’s comments to the Complainant represented the effective termination of his employment. There was no process of any description meeting the requirements of fair procedure and it was an unfair dismissal. There was no cause either. The Complainant was unfairly dismissed.

    The Adjudication Officer upheld the complaint CA-00009948-001 under the Organisation of Working Time Act, 1997 and awarded the Complainant €1,296.00 in respect of annual leave entitlements and €900.00 in respect of public holidays. Complaint CA-00009948-002 under the Redundancy Payments Act 1967 was withdrawn. Complaint CA-00009948-003 under the Unfair Dismissals Act, 1977 is upheld for the reasons set out above and the Adjudication Officer awarded the Complainant €7,500.00.  

    Adare Human Resource Management Commentary:

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

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

    It is important to note that as per the Organisation of Working Time Act, all Employees are automatically entitled to annual leave on commencement of employment. A full-time Employee is automatically entitled to a benefit in respect of a public holiday on commencement of employment. 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. 

    ____________________________________________________________________________________________________________

     

    Care Worker awarded €10,000 compensation as sanction of dismissal deemed inappropriate

    Adjudication Reference: ADJ-00006660

    Summary of Complainant’s Case:

    The Complainant commenced employment as a Care Worker in April 2014 with responsibility for the delivery and provision of a range of healthcare services to residential service users in a named Unit. The Complainant commenced her shift on 7th September 2016 at 11pm on a 10-hour shift. On the morning of 8th September 2016 the Complainant and another colleague took a break and a short nap. While she was asleep her Line Manager, named, entered the Unit. She awoke but did not arise from the couch where she had been sleeping and her Line Manager did not ask her to do so. He left a short time later without speaking to the Complainant or her colleague. He did make a written statement to Management and an investigation took place, followed by a Disciplinary Hearing and an internal Appeal Hearing but the Complainant was dismissed.

    SIPTU on behalf of the Complainant raised several procedural issues in relation to the dismissal. These related to

    – the investigation which confirmed that the Line Manager and Shift Leaders were aware for some time that the Complainant took naps during her night shift but did not raise the issue until 8th September 2016

    – A number of the Complainant’s colleagues were advised by the Line Manager to give witness statements on the basis of anonymity

    – The Line Manager did not approach the Complainant while she was asleep and witness statements confirmed that the Line Manager had been informed on 22nd August 2016, some two weeks before the incident of 7th September 2016 and another witness confirmed that the Line Manager had been informed on a number of occasions

    – The investigation panel interviewed the Line Manager on 13th September 2016 but two named witnesses had been interviewed prior to the Line Manager

    – The Investigation panel did not question the Line Manager in relation to the statements of two witnesses that he had been informed previously that the Complainant was sleeping while on her shift

    – The Complainant was interviewed on 21st September 2016 during which she admitted she had slept during the shift and on other occasions and she advised the investigation panel that sleeping on shift was common amongst all the night shift and yet none of the Employees interviewed were asked to comment on this

    – If the Line Manager was aware she had been sleeping while on this shift and this constituted a breach of the rules then why did he not approach her until 8th September 2016 and why did he not wake her when he initially entered the Unit

    – Likewise why did the Line Manager not approach the Complainant, having been made aware she had been sleeping on shift and advise her of the rules and give her an opportunity to correct her behaviour

    – The Complainant was not afforded an opportunity to cross examine any of her colleagues who gave statements either at the investigation, disciplinary or appeal process. SIPTU referenced several High Court Decisions in relation to the right to cross examine witnesses. SIPTU also argued that the decision to dismiss was disproportionate to the offence.

    Summary of Respondent’s Case:

    The Complainant had been employed as a healthcare assistant since 2014 and on 7th September 2016 and for the previous few months she had been working the waking night shifts. This means the Employee is required to be awake while on this shift in order to attend to the needs of the residents during the night. Any unavailability of the healthcare assistants, whether asleep or otherwise has serious health and safety implications for the residents. The named Unit the Complainant was assigned to work was one that required the highest level of supervision and care at night time. The residents have either intellectual disabilities, mental health problems and/or physical health problems. The Complainant was found sleeping by a named Person in Charge while on this shift on 7th September 2016. Another assistant was also found asleep. There are four assistants assigned to this Unit on the night shift. The sitting room in which the Complainant and another Employee were found asleep was in darkness while they slept. They awoke and the Person in Charge turned on the lights.

    An Investigation was conducted by the HR person, named and the Regional Manager, named. Detailed statements were taken from witnesses and from the Complainant and all the notes from these interviews were provided to the Complainant. The Complainant attended the Investigation Meeting on 21st September 2016 and she was informed of her right to representation but did not do so. The Complainant admitted that she was asleep on 7th September 2016 and on other nights. She admitted she had done wrong and sought leniency. A Disciplinary Hearing took place on 3rd October 2016. Again, she was informed of her right to representation and again did not do so. The Complainant admitted she had slept while on this shift on several occasions. The outcome communicated to the Complainant on 4th October 2016 informed her she was to be dismissed with a right of appeal. The Appeal Hearing took place on 17th October 2016 and was heard by a named Director of Operations. The Complainant was represented by SIPTU. The outcome was to uphold the decision to dismiss and this was communicated to the Complainant on 6th December 2016. The Respondent submitted a Decision of the Supreme Court in support of their contention that all fair procedures and natural justice had been applied to the dismissal and this judgement also addressed the issue of cross examination which arose at the Hearing on 12th October 2017.  

    Legislation:

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

    In order for an Employee to be protected under the Unfair Dismissals Acts, they must generally meet the following criteria:

    • They must be aged between 16 and normal retirement age.
    • In the majority of cases they are required to have completed 12 months continuous service with their Employer.
    • The Acts do not apply during a period of training or probation not exceeding 12 months.  However, care must always be exercised in situations where an Employee with greater than 12 month’s service is to be dismissed for unsatisfactory completion of probation.

     

    Decision:

    On the basis of the evidence, written submissions from both Parties and questioning by the Adjudication Officer at the Hearing the Adjudication Officer found as follows

    – There was no dispute between the Parties in relation to the admission by the Complainant that she took naps during her night shift.

    – Both Parties also confirmed that the Complainant had not been subject to any other Disciplinary sanction during the course of her employment with the Respondent.

    – The Line Manager confirmed that he had been made aware prior to the night of 7th September 2016 that the Complainant took naps while on her shift. Under questioning at the Hearing, he stated that he had been on annual leave up until 31st August 2016 and confirmed that although he was aware the Complainant was sleeping while at work he did not raise this with Management or with the Complainant. The Line Manager also confirmed at the Hearing that on the morning of 8th September 2016 he did enter the room where the Complainant and another colleague were sleeping but he did not wake them and there was reason given at the Hearing for this. The Adjudication Officer noted that the Line Manager is the designated Person in Charge as required by HIQA

    – The Line Manager also confirmed at the Hearing that he had requested two named Employees to give statements and he also confirmed that he had informed two named Employees that their statements would be anonymous although the Adjudication Officer noted from the Interview with both Employees during the investigation that they were informed their statements would be provided to the Complainant.

    – The Adjudication Officer noted that the Line Manager was not questioned during the investigation process as to why he did not act when he had been informed prior to incident of 7th September 2016 that the Complainant was sleeping while on her shift, this despite the statements of two named witnesses and that this issue was identified as a real health and safety issue in relation to the residents and the issue was so serious to warrant a finding of gross misconduct and dismissal.

    – The Adjudication Officer noted the differing views of the Parties in relation to cross examination of witnesses with the Respondent relying on the decision of the Supreme Court in Rowland v An Post delivered 27th March 2017 and the Complainant relying on the Decision of the High Court in Lyons v Longford Westmeath Education and Training Board.

    – The Adjudication Officer noted the response of the Respondent at the Hearing to the question if they had considered an alternative to dismissal and their statement there was a serious breach of trust. This in circumstances where the Person in Charge, the Line Manager knew at least one week in advance of 7th /8th September 2016 that the Complainant had been sleeping on her shift yet he did nothing until he filed his complaint on 8th September 2016.

    – The Adjudication Officer noted that there are four employees on duty on each night shift and that on the specific night in question two of these Employees, one being the Complainant, were asleep while on duty and the Adjudication Officer found that the Complainant did contribute to her dismissal and she should have been aware that sleeping while having responsibility for residents with varied needs is not acceptable.      

    On the basis of the evidence and my findings above and in accordance with Section 8(1 (c) of the Act, the Adjudication Officer declared the complaint of unfair dismissal is well founded. Disciplinary sanction, short of dismissal, would have been a more appropriate response given the role and lack of action of the Person in Charge who had prior knowledge of the Complainant sleeping yet waited at least over a week before he acted. However, the Adjudication Officer has found that the Complainant by her actions contributed to her dismissal and in all the circumstances the Adjudication Officer directed the Respondent to pay the Complainant compensation of €10,000 (ten thousand euro) within 42 days of the date of this Decision.

    Adare Human Resource Management Commentary:

    It is a requirement of the Unfair Dismissals Acts that every Employee be provided with a written copy of their Employer’s dismissal procedure not later than 28 days following commencement of employment.   It is in the Employers own interest to have a clear and comprehensive set of procedures governing dismissal and ensure that Employees are fully conversant with the procedures.

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

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

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

     

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

     

  • Help Desk - The Adare Human Resource Management Continuum

    by Hayleigh Ahearne
    Mar 05, 2018

    Employment law has become increasingly complex over the past number of years. The need for Organisations to ensure compliance with legislation is greater than ever, as the consequences of non-compliance with Irish Employment Law for Employers can be serious and expensive. These significant increases in employment legislation, is posing major challenges for employers. 

    The Workplace Relations Commission and Compliance:

    The Workplace Relations Commission (WRC) aims to secure compliance with employment rights legislation through inspection and prosecution services. These services were formerly operated by the National Employment Rights Authority (NERA). Under the Workplace Relations Act 2015, which came into effect on 1st October 2015, the WRC monitors employment conditions through its Inspection Services to ensure the compliance and enforcement of employment rights legislation.

    The WRC's Inspection Services have the power to carry out employment rights compliance inspections in relation to all Employment Legislation. Inspectors may enter premises at reasonable times, interview Employers and Employees, take statements, examine and take copies of records and initiate legal proceedings. 

    Inspections are either carried out to investigate a specific complaint, or else a team of inspectors may carry out random or targeted inspections in a particular sector of employment. Where an initial inspection of records finds that that there have been breaches of employment law, the Inspection Services may:

    • Issue a letter asking the Employer to correct this or,
    • Refer the matter to legal services for prosecution or,
    • Carry out a further inspection.

    How to ensure you are compliant with Employment legislation:

    Adare Human Resource Management have developed a process entitled ‘The Adare Human Resource Management Continuum’ which is a phased process which brings Organisations from non-compliance to beyond compliance with employment legislation.

    Phase 1 – Beyond Compliance

    The first step of the process is the development phase. This includes completing key tasks such as gathering all information and data required. We seek to get an understanding of the current compliance levels and the practices that are currently in place. Following a review of all the information available, we then complete a review and / or develop a compliant Employee Handbook and Contract of Employment templates.

    The outcomes of this phase is that we ensure that senior Management of the Organisation have a better understanding of compliance requirements and HR Practice Principles.

    We seek to have identified steps to reduce legal and Financial / non-Financial consequences of non-compliance and risks for the Organisation.

    Phase 2 – The Business Case and HR Best Practice

    The key tasks in this phase include the delivery of a 12 month HR Operational Plan including potential areas such as working on the performance management structure, increasing learning and development, enhancing the Organisations internal communications, and bettering the Organisations reward and remuneration structure.. As required, we will conduct training with management of the Organisation to ensure that they are fully up to date and aware of the fundamentals of Employment law. Once these tasks are put in place their will be a greater understanding by Employees of the employment requirements and expectations of them when working with the Organisation.

    The outcomes of this phase is that we will have aligned the HR practices linked to the business strategy.. Following the management training, manager’s people management skills will have enhanced. The aim also is to have a positive impact on productivity inthe Organisation. All in all it will result in a more transparent, open, empowered, productive and agile working environment.

    Phase 3 – Embedding the ‘New Norm’

    The key tasks in this phase include the development and delivery of a new HR operations plan.. We seek to monitor, review, adapt and refine HR practices in conjunction with Senior Management in the Organisation.

    The output of these key tasks result in the enhanced HR practices, following the implementation of same.

    The outcome of this stage results in a further productivity levels increasing with will have a positive impact on the Organisation. Given the overall improvements it would result in an enhanced culture of workforce accountability and also enhanced employee engagement which results in the Organisation having the ability to attract and retain key talent.

    Overall outcomes

    The overall outcomes from the Adare Human Resource Management Continuum are that from the Employee level to Senior Management level in the Organisation, compliance and best practice are established and embedded throughout.

    Conclusion

    The best way for an Employer to be prepared for an inspection, announced or otherwise, is to ensure that all required employment records are up-to-date and available on the day of the inspection. The Workplace Relations Commission (WRC) recorded a total of 2,398 breaches of employment legislation in 2016, of which the failure to keep adequate employment records accounted for 62% of the breaches noted.

    The object of the WRC in carrying out inspections is to give an Employer the opportunity to demonstrate compliance with employment laws rather than seeking to catch employers out.  If you believe that your Organisation may not be fully compliant with the Employment Legislative requirements then contact a member of the Adare Human Resource Management team today in order to discuss our Continuum approach in more detail and how we could ensure that your Organisation is fully compliant.