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Newsletter Article

  • Retirement Age in the Workplace - Is it enforceable?

    by Hayleigh Ahearne
    Jul 01, 2019

    Retirement is a topic that is continuing to gain momentum in the employment law sphere. In the past number of years, there has been a surge in case law directly linked to retirement age of Employees, and whether Organisations can stand over compulsorily retiring Employees from work on the attainment of a certain age.

    At the present time, there is no compulsory retirement age for Employees across Ireland, however that is not to say that Organisations cannot enforce retirement age for Employees of the Organisation is it objectively justified and there is a solid business reason. Although, some commentators are predicting that mandatory retirement will be abolished by statute (like it is in UK) soon.

    Nevertheless, as for now a mandatory retirement age can still be set out in an Employee’s Statement of Terms and Conditions of Employment, a retirement age in an Organisation can also be an implied term and/or be a matter of custom and practice in an Organisation.

    The Employment Equality Acts 1998-2015 prohibit any unfavourable treatment by an Employer based on any of the nine grounds, including age. However, Section 34(4) of the Act explicitly provides that fixing a required retirement age does not constitute age discrimination – yet the Employment Equality Acts are inconsistent with the European Council Directive 2000/78 EC which requires any differences in treatment on grounds of age to be objectively justified. Therefore, going forward, Employers need to have strong, justified and objective reasoning for mandatory retirement within their Organisation whilst taking into consideration the Workplace Relations Code of Practice on Longer Working and guidelines established by the Irish Human Rights and Equality Commission Guidelines on Retirement and Fixed-Term Contracts.

    Workplace Relations Code of Practice on Longer Working:

    This Code of Practice aims to guide Employers, Employees and their representatives on the best practice in the run-up to retirement, including responding to requests to work beyond the retirement age in the employment concerned. The Code of Practice requires that compulsory retirement ages must be ‘capable of objective justification both by the existence of a legitimate aim and evidence that the means of achieving that aim is appropriate and necessary’. This could include:

    • Intergenerational fairness (allowing younger workers to progress);
    • Motivation and dynamism through the increased prospect of promotion;
    • Health and Safety (generally in more safety critical occupations);
    • Creation of a balanced age structure in the workforce;
    • Personal and professional dignity (avoiding capability issues with older Employees); or
    • Succession planning.

    Other measures suggested by the Code of Practice include;

    • Providing supports to aid the transition to retirement, e.g. pre-retirement courses, flexible or part-time working or counselling.
    • Providing accessible information on retirement procedures at work, both at induction and at regular occasions throughout an Employee’s career.

    Under the Code, good practice regarding impending retirement involves “an Employer notifying an Employee (in writing) of their intention to retire him/her on the contractual retirement date within 6-12 months of that date”. Written notifications should be followed with a face-to-face meeting which addresses a number of areas. The Code of Practice also provides guidance for Employers in terms of requests for longer working and what to consider in advance of granting or denying any such request.

    The IHREC Guidelines on Retirement and Fixed-Term Contracts:

    The Irish Human Rights and Equality Commission (IHREC) is an independent body that accounts to the Oireachtas. It was established under the Irish Human Rights and Equality Commission Act 2014.

    In 2016, the report of the Interdepartmental Working Group on Fuller Lives was published. In its report, the Working Group recommended that the Department of Justice and Equality ask the Commission to ensure that ‘appropriate guidance material [be] made available for employers on the use of fixed-term contracts beyond normal retirement age’.

    These guidelines issued by the Commission were in response to the recommendation made by the Working Group, and at the request of the Minister for Justice and Equality. The Commission has reserved its position with respect to the issuing of a code of practice in relation to the wider issues arising in the area of retirement and age discrimination.

    These guidelines should be read in conjunction with any relevant statutory code of practice as may be enforced from time to time, including the Workplace Relations Commission’s Code of Practice on Longer Working.

    The purpose of these guidelines is to provide guidance to legal professionals, HR professionals, trade unions, employers and others in relation to the interpretation and application of section 6(3)(c) of the Employment Equality Acts which provides – Offering a fixed term contract to a person over the compulsory retirement age for that employment or to a particular class or description of employees.

    Setting a mandatory Retirement Age:

    It is recommended that Organisations consider a “two-tier approach” when it now comes to retirement within the workplace (i) is it covered in the contract (expressed or implied) and (ii) is it objectively justified?

    (i)                  Is it covered in the contract (expressed or implied):

    • It is important to include an expressed mandatory retirement clause in contracts of employment.
    • The absence of an expressed clause is not necessarily fatal, as it might be an implied term i.e. by way of the pension scheme in place;
    • A mandatory retirement age may also be a well-known within the Organisation and could have easily been found out – does a custom and practice exist?

    (ii)                Is it objectively justified? For example:

    • Intergenerational fairness (allowing younger workers to progress);

    Courts have accepted arguments from Employers that a mandatory retirement age was necessary to encourage Employees to stay with, and progress within an organisation and to motivate Employees by the prospect of being promoted into more senior roles.

    Terminating the employment contracts of employees who have reached retirement age makes it easier for other workers to find work. This justification can be supported by national employment policies such as stimulating the labour market, reducing unemployment and vocational training objectives.

    • Creation of a balanced age structure in the workforce;

    Mandatory retirement ages when used to establish a balanced level of experience in an organisation has been found by courts to be objectively justified as it provides an organisation with a wider mix of skill and experience and allows for the recruitment of people with newer and differing skill sets and experience.

    • The protection of health & safety;

    Courts have found it justifiable to have mandatory retirement ages for employees who work as drivers, pilots and in jobs which are physically demanding. However, not every working environment carries with it the same risks to health and safety. Therefore, an employer would need to be in a position to demonstrate by way of a hazard identification and risk analysis exercise that they have evaluated their particular work environment in setting a mandatory retirement age, rather than simply following a historically established retirement age. This is particularly relevant in places of work where technological innovations might have resulted in work becoming less physically demanding.  

    • Succession planning;

    Employers need to plan for the future in order to ensure that they have the right people in place with the requisite skill sets and experience to support the activity of the Organisation at a future point in time.

    Mandatory retirement ages have been held to promote this aim by facilitating the retirement of older Employees in order to opens up opportunities for younger Employees who may have differing skill sets and experience.

    Recent Case Law:

    A recent case (ADJ-00010222) saw Louth County Council ordered to compensate a former clerical officer €20,000 for the effects of age discrimination, after it unsuccessfully appealed a WRC adjudication decision from 2018.

    A WRC Adjudicator awarded the Complainant €13,000 for discriminatory treatment, when she was retired on her 65th birthday, against her wish. This was the award the Complainant had sought.

    One week later, the Council appealed to the Labour Court, maintaining the retirement of the clerical officer was in line with the particulars of office for her grade when she entered into employment with the Council, and that her retirement was necessary, reasonable and proportionate for the efficient planning of departure and recruitment of staff.

    The Complainant wished to stay in her job to her 66th birthday and emailed the HR department before her 65th birthday approached. She got no response, however, and further follow-up by her went unanswered until two days before her retirement. She had 16 years of service with the Council.

    The Council said her requests for an extension to her retirement “fell through the cracks.” Entrants to her grade since the complainant joined the Council have a different retirement arrangement (according to circular letter 4 of 2017). The Council said this did not apply to the Complainant, who retired six months before the change came into effect.

    The Respondent employer told the Court that to keep the Complainant on in employment would affect its workforce planning and financial management, but it could not explain to the Court why. Having retired the Complainant, the Council saved €10,000 (the difference between the start and the top of the clerical officer incremental scale).

    The Court said the Council did not set out any ground that objectively justified the selection of retirement age based on when employees joined the Council. The employer’s reasons were “not justified by a legitimate aim” and therefore the respondent breached section 34(4) of the Employment Equality Acts. Having considered all aspects of the case, the Court set a new compensation award of €20,000 for the Complainant.

    Another interesting case to note on this topic is Transdev v Chrzanowski (DEC-E2016-070) where a WRC adjudication decision was appealed to the Labour Court and the Respondent Employer was successful in defending the equality claim after retiring the Complainant.

    The Complainant was employed as a tram driver from 6th March 2007 until the termination of his employment on 3rd October 2014, on his 65th birthday. He claimed that by retiring him at age 65 he was subjected to discriminatory treatment by the Respondent. He submitted that there was no retirement age in his written contract of employment and furthermore, there were precedents in the Company for workers to be retained. He referred to the fact that two persons were retained in employment by the Respondent beyond age 65 years. Therefore, he submitted that the Respondent had exercised discretion in their case and in its engagement with the Respondent sought similar treatment for the Complainant. It was submitted that in both cases the workers concerned were “safety critical workers”.

    The Complainant disputes the Respondent’s contention that health and safety concerns prevented the Complainant from being retained. The Complainant had a very good attendance record, he requested a fixed term contract for a maximum of two years and he was willing to be medically assessed on an ongoing basis. The Complainant also questioned the Respondent’s assertion that it was appropriate and necessary to have a retirement age in order to promote good workforce planning and to allow access to employment by means of better distribution of work between generations of workers.

    The Respondent stated that 65 is the established retirement age for all employees in the Company. This practice has been consistently applied and is an implied term in the Complainant’s contract of employment, as reflected in the Respondent’s pension scheme, of which he is a member. It has been expressly contained in all tram drivers’ contract of employment since 2007. The Respondent also outlined for the Court details of available medical evidence which evidence indicates that the age of 65 is an appropriate age to have set as a retirement age for tram drivers.

    It was found that taking account of the medical opinions advanced coupled with the workforce planning requirements and the collectively agreed pension scheme, the Court is satisfied that a compulsory retirement age of 65 for tram drivers was reasonable and appropriate in the circumstances. Furthermore, it accepts that it constituted a legitimate aim of employment and labour market policy in order to prevent possible disputes concerning tram driver’s fitness to work beyond a certain age.

    Conclusion:

    It is best still practice to specify a retirement age in contracts of employment so as to ensure that a compulsory retirement age forms a part of the Employees terms and conditions. It is important for the Organisation to be consistent in enforcing their retirement age to correspond with the contract. If an Organisation deviates from this contractual condition, it may set precedence for the future. 
  • Case Law Reviewed under the WRC

    by Hayleigh Ahearne
    Jul 01, 2019
    In this month’s newsletter the team at Adare Human Resource Management consider in detail a number of cases as adjudicated under the Workplace Relations Commission.

     

    Complainant fails in claim of discrimination at job interview stage

    Adjudication Reference: ADJ-00018064

    Background:

    The Complainant lodged a complaint form with the WRC claiming that he had been discriminated against by the Respondent, a Telecoms Company.  He claimed by reason of his gender and age that he did not get a job.

    Summary of Complainants Case:

    The Complainant submitted that he had applied for employment as a Customer Care Agent with the Respondent, through a Recruitment Agency. Having attended an Assessment Centre and in his own opinion, having performed well, the Complainant was subsequently informed that he was not a "suitable candidate for the company."

    In regards the allegation that he had been discriminated on the age ground, the Complainant submitted that he believed, having spoken to another younger, successful candidate, that he had been discriminated against because of his age. The Complainant stated that he had no actual evidence to support this view other than the conversation he had had with the younger candidate.

    In regards the allegation that he had been discriminated on the gender ground, the Complainant submitted that call centres are by their nature more oriented for females.  He submitted that more women than men work in call centres and the Respondent knew he was a man when he was turned down for the job.

     

    Summary of Respondent’s Case:

    The Respondent denied that it had discriminated against the Complainant on the grounds of age or gender. The Respondent submitted that the Complainant, in his complaint form, has not identified or particularised any discriminatory conduct by the Respondent.

    In regards the recruitment process, the Respondent submitted that 15 candidates were called to be assessed at an Assessment Centre. The Respondent submitted that a fair and non-discriminatory merit-based marking system was used to assess the candidates.

    From this 15 who were called to attend, only 12 turned up. From these 12 candidates, nine were hired.   Of the nine hired, five were male and four were female.

    During the assessment the Complainant indicated that his skill set was better suited to a social media role, whereas the role applied for was entirely telephone based. The Complainant was invited to apply for a social media post.

    Regarding the allegation of discrimination on the age ground, the Respondent submitted that Applicants were not obliged to provide their age or date of birth as part of the assessment process and that the age profile throughout the Respondent's employees is mixed, particularly in the geographic area in question.

    Findings:

    Section 85A (1) of the Employment Equality Acts, 1998 – 2007 states: “Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.” This means that the Complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the respondent.

    In this case it was found that the Complainant has not established primary facts to ground a claim of discrimination.  Therefore, the complaint must fail.

     

    Decision:

    Section 79 of the Employment Equality Acts, 1998 – 2015 requires that a decision made in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

    It is found that the complaint is not well founded.

    Adare Human Resource Management Commentary:

    Although the Respondent in this instance was successful in defending the discrimination claim(s), this shows that having clear and concise recruitment documentation is critical in defending such claims which are taken to the Workplace Relations Commission. The Respondent was in a position to give clear and concise figures on the grounds of gender who attended the Assessment Centre and those who were also offered the roles too. Furthermore, the Respondent was in a position to show evidence that the application process never requested the age and/or date of birth of applicants.

     

    ____________________________________________________________________________________________________________

     

    Claimant awarded 1 day of Force Majeure Leave

    Adjudication Reference: ADJ-00013738

    Background:

    The complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998.

    The Complainant commenced work with the Respondent on 11th November 1997 as a Process Operative. The Complainant has sought and been approved for Force Majeure Leave on 4 occasions between 2004 and 2016.

    This case revolves around a claim for Force Majeure Leave in respect of the 3rd November 2017, which was not approved by the Respondent.

    Summary of Complainants Case:

    The Complainant submits that he rang in to work on the 3rd November 2017 @ approx. 17.30pm.  He explained to the Team Leader on shift, that he wouldn’t be coming to work due to his mother falling ill whilst in Cork city.  She had to be rushed to hospital; she has an existing heart problem. The Complainant states that he informed the Team Leader that that he only finished work that morning and had been woken at 11am with the news of his mother falling ill and had to go to the hospital.

    The Complainant also states that he informed the Team Leader that he would be looking to claim Force Majeure Leave for that night. On the 9th November 2017, the Complainant lodged his claim for Force Majeure Leave, however the Respondent denied the claim because it didn’t have a medical certificate or a letter from the hospital concerned.

     

    Summary of Respondent’s Case:

    The Respondents’ position is one that entails details of policy change on 14th April 2016, due to concerns about potential abuse of Force Majeure Leave. This amendment included that “all requests for Force Majeure Leave, where appropriate, must be accompanied by evidence of the illness certified by the medical practitioner, or a letter from the hospital where the immediate family member attended”, as a note “this section was included as some managers were not comfortable probing staff members in detail about individual family members’ health circumstances”.

    The Respondent states that the Complainant was not co-operative with his Team Leader when asked for further details regarding the claim for Force Majeure Leave. It was also stated that the Complainants claim for Force Majeure Leave was not in accordance with the company policy or the legislation. The Respondent also submitted that under the Act, Force Majeure Leave is a qualified entitlement which only exists provided factual circumstances exist. It is clear under the Act that the onus is on the employee to demonstrate that he/she qualifies for the Leave and that the Complainant refused to do so on this occasion.

    Findings:

    Both parties made written and verbal submissions at the hearing. Section 13 of the Act states:

    1.       An employee shall be entitled to leave with pay from his or her employment, to be known and referred to in this Act as “force majeure leave”, where, for urgent family reasons, owing to an injury to or the illness of a person specified in subsection (2), the immediate presence of the employee at the place where the person is, whether at his or her home or elsewhere, is indispensable.

    2.       The persons referred to in subsection (1) are—

    • a person of whom the employee is the parent or adoptive parent,
    • the spouse of the employee or a person with whom the employee is living as husband or wife,
    • a person to whom the employee is in loco parentis,
    • a brother or sister of the employee,
    • a parent or grandparent of the employee, and
    • persons of such other (if any) class or classes as may be prescribed.

    3.       When an employee takes force majeure leave, he or she shall, as soon as reasonably practicable thereafter, by notice in the prescribed form given to his or her employer, confirm that he or she has taken such leave and the notice shall specify the dates on which it was taken and contain a statement of the facts entitling the employee to force majeure leave.

    4.       Force majeure leave shall consist of one or more days on which, but for the leave, the employee would be working in the employment concerned but shall not exceed 3 days in any period of 12 consecutive months or 5 days in any period of 36 consecutive months.

    5.       A day on which an employee is absent from work on force majeure leave in employment for part only of the period during which he or she is required to work in the employment on that day shall be deemed, for the purposes of subsection (4), to be one day of force majeure leave.

    It is found that the facts of the case are not in dispute.  It is found that the Complainant was on a night shift, he went to bed and at 11am received a call that his mother was taken to the hospital.  The Complainant went to the hospital as he is his mothers’ sole carer.  At approximately 17.30pm the Complainant telephoned the Team Leader on duty to inform him that as he was due to work that evening but that he would not be in because his mother was taken to the hospital. 

    It was found that the Complainant would be applying for Force Majeure Leave for that day.  The claim was made on the 9th November 2017, which is within the time frame as given by the Act.  It was found that the Complainant could have been more open in the Force Majeure Leave form details of the emergency that occurred. 

    It was found that this issue should have been resolved at the local level and that the Team Leader who received the phoned call should have passed the message onto this counterpart on the following shift.

     

    Decision:

    In the interest of better communication, and based on the circumstances of this case the Complainant was awarded 1 day as Force Majeure Leave in accordance with the legislation.

    Adare Human Resource Management Commentary:

    Such Employee issues really should try to be dealt with internally and at local level in order to avoid a potential claim being taken to the Workplace Relations Commission. In this instance, there was a change in the Respondent’s policy in relation to Force Majeure Leave where the change clearly noted that medical evidence is required in order to grant such Leave, which is in accordance with the Act. Such changes should be clearly explained to all Employees at the time of the change, and again if a particular matter is to arise to ensure Employee(s) are fully aware of their obligations under the policy.

     

    ____________________________________________________________________________________________________________

    Shop Worker awarded €500 for excess working hours

    Adjudication Reference: ADJ-00016119

    Background:

    The Complaint is seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997.  The Complainant claimed he worked in excess of 48 hours during his employment.

    Summary of Complainants Case:

    The Complainant commenced employment approximately 20th March 2014 and his employment ceased on 27th July 2018.  The Complainant claimed that he had worked in excess of the required hours under the legislation.

    He submitted that he used to fill in a log-in sheet detailing his start and end time but that the Head of Finance changed the process and it was no longer possible to detail when employees finished their shift.  He also detailed that the log in sheet would not reflect hours actually worked.

     

    Summary of Respondent’s Case:

    The Respondent disputed the claim and provided details of hours worked. The Respondent accepted that the method for recording hours changed. The Respondent detailed that the Complainant would not complete the sheet with the required hours that he worked.

    Findings:

    The Complainant found it at times difficult to articulate how many hours he actually worked but detailed that he would have, at times, worked more than the 48 hours as prescribed in the Act.  While the Respondent had records of the Complainant’ ‘roster’, the Respondent did not have complete records of the Complainant’s working time.

    Section 15 provides that an employer shall not permit an employee to work, in each period of 7 days, more than an average of 48 hours, that is to say an average of 48 hours calculated over a reference period that does not exceed 4 months.

    Section 25 (4) of the Act provides that where an employer fails to keep records the onus of proof that the provision of the Act has been complied with lies with the employer. In this instant case, it was found the burden of proof has not been discharged by the Respondent.  

     

    Decision:

    Section 41 of the Workplace Relations Act 2015 requires a decision to be made in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act. Due to the lack of complete evidence from the Respondent, I find that the Complainant’s complaint is found to be well founded. The Respondent is required to pay to the Complainant the sum of €500.00 compensation.

    Adare Human Resource Management Commentary:

    It is imperative that all Employers keep detailed and accurate records of Employee’s working times, break/rest periods, annual leave and public holidays in order to be compliant with the Organisation of Working Time Act, 1997. In such cases, the burden of proof will lie with the Respondent so the onus will be on the Employer to prove otherwise.

  • TUPE – What is it?

    by Hayleigh Ahearne
    Jul 01, 2019

    Transfer of Undertakings regulations apply where a business, or part of a business (including the assignment or forfeiture of a lease) transfers from one owner to another. They are designed to safeguard Employee rights in the event of such a transfer, and establish the responsibilities of both the previous and new owners of a business.

    The legislation that should be considered when looking at transfer of undertakings is the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 which implement an EU Directive aimed at safeguarding the rights of Employees in the event of a transfer of an undertaking, business or part of a business to another Employer as a result of a legal transfer or merger.

     

    Principle Aims:

    The principle aims of the regulations are:

    • Protection of conditions of employment and contracts of employment of individual Employees involved in a transfer.
    • Under limited circumstances, making provisions for the protection of employment in a transfer.
    • Ordinarily prohibiting the dismissal of an Employee by reason of a transfer of undertakings.
    • Requiring the transferor/transferee to inform the representatives of the Employees affected by the transfer of the legal, social and economic implications of the transfer and consult with them regarding any proposed measures.
    • Ensuring that the primary responsibility for an Employee’s employment rights are passed from transferor to transferee.
    • Ensuring that any collective agreement that was in place before the transfer is honoured.
    • Protecting continuity of representative rights.

    Who do the Regulations apply to?

    In general, the Regulations apply to any person;

    • Working under a contract of employment, including apprenticeship;
    • Employed through an employment agency or;
    • Holding office under, or in the service of, the State (including a civil servant within the meaning of the Civil Service Regulation Act, 1956), an officer or servant of a harbour authority, health board or vocational education committee, and a member of the Garda Siochana or of the Defence Forces.
    • In the case of agency workers, the party who is liable to pay the wages is the Employer for the purposes of these Regulations.

    When do the Regulations Apply?

    The Regulations may apply where almost any kind of business is sold or transferred as a going concern e.g.

    • Where a hotel is purchased;
    • Where the IT function is out-sourced to a third party;
    • Where a business division is transferred from one subsidiary within a group to another;
    • Where part of a business is transferred into a new joint venture company;
    • Where a new contractor takes over the performance of a contract to provide particular services;
    • Where the lease of a business premises is assigned.

    The business or part of the business being transferred must constitute an economic entity i.e. an identifiable grouping of resources or people that performs a particular function, whether operating for gain or not. There must be a legal transfer of that business to another party, and the business must retain its identity after the transfer.

    The Regulations apply equally to transfers of state or semi-state bodies and to transfers by businesses in the private sector.

    Employer’s insolvency:

    The contractual rights of the Employees do not, however, transfer where the original Employer is subject to proceedings whereby, he may be adjudicated bankrupt, or wound up for reasons of insolvency, by order of the High Court.

    However, if the sole or main reason for the institution of bankruptcy or insolvency proceedings is the evasion of an Employer’s legal obligations under the Regulations, then the Regulations apply to a transfer affected by that Employer.

    Protection of Employment:

    All the rights and obligations of an Employer under a contract of employment (including terms inserted by collective agreements) other than pension rights, existing on the date of transfer, are transferred to the new Employer on the transfer of the business or part thereof.

    The new Employer must continue to observe the terms and conditions of the collective agreement until it expires or is replaced.

    An Employee may not be dismissed solely by reason of the transfer. However, dismissals may take place for economic, technical or organisational reasons involving changes in the work-force. If an employment is terminated because a transfer involves a substantial deterioration in the working conditions of the Employee, the Employer concerned is regarded as having been responsible for the termination by way of redundancy.

    In this regard, it should be noted that an Employee who is dismissed within the meaning of the Unfair Dismissals Acts 1973 to 2015 with –

    • Less than one year’s service may refer a case to a Workplace Relations Commission (WRC) under the Industrial Relations Act 2015.
    • More than one year’s service may refer a complaint to a Workplace Relations Commission (WRC) under the Unfair Dismissals Acts 1973 to 2015.

    Planning Consultation with Employees where TUPE applies:

    The transferor and the transferee must inform Employee representatives of their respective Employees of the following at least 30 days before the transfer takes place:

    1. The date or proposed date of transfer
    2. The reasons for the transfer
    3. The legal implications of the transfer for the relevant Employees and a summary of any relevant, economic and social implications of the transfer for them
    4. Any measures envisaged in relation to the Employee.

    Employee Representative may refer to a trade union, staff association or other body the Employer has conducted collective bargaining with in the past. Alternatively it can be a person chosen by Employees, from among their numbers, to represent them.

    If there are no Employees’ representatives in the undertaking through no fault of the Employees, the Employees concerned must be notified in writing, where reasonably practicable, not later than 30 days before the transfer. 

    These obligations apply whether the decision resulting in the transfer is taken by the Employer or another undertaking controlling the Employer. The fact that the information concerned was not provided to the Employer by the controlling undertaking will not release the Employer from those obligations.

    Conclusion:

    Employment issues may factor into a number of the provisions in any transfer agreement, because employment liabilities transfer in a TUPE situation to the new Employer. In order to discuss this matter in more details please contact a member of our team at info@adarehrm.ie

  • Did you miss our latest Webinar?

    by Hayleigh Ahearne
    Jul 01, 2019

    Adare Human Resource Management recently conducted a webinar entitled "Review of key 2019 WRC and Labour Court Claims" which forms part of the webinar series "The Evolving Human Resource, Industrial Relations and Employment Law Landscape".

    If you missed this webinar you are watch it by clicking here.

  • Contractors V Employees – What is the difference?

    by Hayleigh Ahearne
    May 30, 2019

    The terms ‘employed’ and ‘self-employed’ are not defined law. The decision as to which category an individual fall into must be arrived at by looking at what an individual actually does, the way they do it and the terms and conditions under which they are engaged, through a written agreement or verbal agreement or implied. It is not simply a matter of the Employer or the individual calling themselves ‘employed’ or ‘self-employed’.

    It is important that Organisations are cognisant of the differences between Contractors / Self – Employed person and Employees, and how these arrangements may be interpreted by a third party, namely the Workplace Relations Commission (WRC), the Labour Court and Revenue. There are a number of considerations that should be taken into account to ensure that the Contractor / Self – Employed person is not in fact an Employee, does not abide by the actions of the Organisation or that the individual unknowingly strays into that employment relationship. The difference between the contracts of a Self-Employed Contractor and an Employee are that:

    • An Employee is employed under what is referred to as a contract of service.
    • A Self-Employed Contractor works under a contract for services.

    Entitlements of an Employee:

    A Self-Employed Contractor does not enjoy many of the rights bestowed upon Employees, e.g. protection from unfair dismissal, paid annual leave etc. However, a risk often exists that a Self-Employed Contractor may be deemed an Employee due to the relationship they hold with an Organisation. Care should always be taken to ensure that the lines do not become blurred and that an individual’s status is clearly defined. The key rights of an Employee include entitlements to:

    • Minimum wage,
    • Annual Leave,
    • Benefit for Public Holidays,
    • Minimum rest periods,
    • Employment Equality,
    • Fairness in terms of dismissal including redundancy,
    • Right to Maternity, Paternity, Adoptive, Parental, Force Majeure, Carer’s and Jury Service Leave.

    Criteria for an Employee:

    If the lines are unclear in terms of employment status, the person whom the Organisation is deeming to be a Contractor may be entitled to the rights of an Employee outlined above due to the fact that the Organisation has been inadvertently treating them as an Employee. There is a Code of Practice in place in order to assist in determining Employment status. It outlines the criteria for whether an individual is an Employee or a Contractor / Self – Employed individual.

    While all of the following factors may not apply, an individual would normally be an Employee if he or she:

    • Is the person under the control of another person who directs how, when and where work is to be carried out;
    • Supplies labour only;
    • Receives a fixed hourly / weekly / monthly wage;
    • Cannot sub-contract the work;
    • Does not provide equipment or materials for the job other than small tools of the trade;
    • Is not exposed to personal financial risk in carrying out the work;
    • Does not assume responsibility for investment and management in the business;
    • Does not have the opportunity to profit from sound management in the scheduling of engagements or in the performance of tasks arising from the engagements;
    • Works set hours or a given number of hours per week or month;
    • Works for one person or for one business;
    • Receives expense payments to cover subsistence and / or travel expenses;
    • Wears a uniform;
    • Is entitled to extra pay or time off for overtime.

    Criteria for Self – Employed / Contractor:

    While all of the following factors may not apply to the job, an individual would usually be Self-Employed if he or she:

    • Owns his or her own business;
    • Is exposed to financial risk, by having to bear the cost of making good faulty or substandard work carried out under the contract;
    • Assumes responsibility for investment and management in the enterprise;
    • Has the opportunity to profit from sound management in the scheduling and performance of engagements and tasks;
    • Has control over what is done, how it is done, when and where it is done and whether he or she does it personally;
    • Is free to hire other people, on his or her terms, to do the work which has been agreed to be undertaken;
    • Can provide the same services to more than one person or business at the same time;
    • Provides the materials for the job;
    • Provides his or her own insurance cover e.g. public liability cover, etc.;
    • Controls the hours of work in fulfilling the job obligations;
    • Provides equipment and machinery necessary for the job, other than the small tools of the trade or equipment which in an overall context would not be an indicator of a person in business on their own account;
    • Has a fixed place of business where materials equipment etc. can be stored;
    • Costs and agrees a price for the job.

    Factors which impact decision of Workplace Relations Commission

    Some of the important factors which may influence the Workplace Relations Commission (WRC) or The Labour Court in making a decision as regards whether an individual is an Employee or not include whether the person pays their own tax or whether their Employer deducts tax, whether the individual provides their own tools and equipment, the degree of control exercised by the Employer or service user, and other issues related to this such as whether the individual wears a company uniform or not. These are all referred to as “tests” but it is important to note that each case will be considered on its own merits.

    An excellent example of these tests can be seen in a recent case (ADJ-00017340) found that a Merchandiser was not deemed to be an Employee after a number of years working for a Promotions Company.

    In this case, the Complainant alleged that “he was employed as a Merchandiser from 1st August 2002 to 9th July 2018. His rate of pay varied based on the type of work performed. He claimed that he was not compensated for annual leave, Public Holidays and he did not receive a premium for Sunday working.”

    At the Hearing, the Respondent stated that this was not an employer / employee relationship and therefore the Workplace Relations Commission does not have jurisdiction to deal with this case.

    The Complainant furthermore alleged that “this was indeed an employer/employee relationship.” He had worked there since 2002. It was an informal relationship; this was not a regular Monday to Friday job; it was dictated by the number of shows/performances available. The Complainant was paid for the work done and the Employer even stated at the Hearing that “his Accountant advised the WRC in writing that his pay included an all-inclusive rate to take account of holiday pay, bank holiday pay and Sunday premium. Statutory deductions were made from his gross pay and the Complainant received P60s since 2002.” This clearly shows that he was an Employee and treated as one. He was given a level of freedom because he was a long-standing Employee and work was often declined because of overlapping of shows. “This was an employer/employee relationship and the Adjudication Officer has jurisdiction to hear this case.”

    However, the Respondent refuted the Complainants submission and alleged “the Company only employs two people directly, all others form part of a pool of freelance causal workers who are available to work both here and abroad. The Complainant and the Respondent entered into a contract for service in or around 2002 and he was engaged as a merchandise vendor on a casual basis as and when shows and he were available. The Complainant did not carry out work on a continuous basis. He was abroad in Australia for a period of time and he acted as a courier for a period of time. This was not an employer-employee relationship, it lacked control, integration and mutuality of obligation. The Complainant was not integral to the business. The business always managed each show themselves or hired an experienced manager.”

    The Hearing was advised that the Respondent “managed in excess of 180 shows and the Complainant worked 56 of them. The Complainant suited himself and was only willing to work when it suited him. He did not make himself available for the biggest venue in the country and the most difficult one. The legal position is that in order for there to be a contract of employment there must be mutuality of obligation: an obligation on the part of the employer to provide work and an obligation on the part of the employee to perform work. They cited Labour Court FTD 0611 and the House of Lords in Carmichael and another v National Power plc [1999] 1 WLR 2042 in support. The case Clark v Oxfordshire Health Authority [1998] IRLR 125 it stated “A contract of employment within the meaning of the statutory definition cannot exist in the absence of mutual obligations subsisting over the entire duration.” The case Minister for Agriculture v Barry was also cited [2009] IR 215. In the case Terry McDonagh v Irish Rail [2015] it placed weight on the right of substitution. In this case the Complainant was a freelance independent contractor. There was no mutuality of obligation. He turned down 53 % of all work offered to him. He was not required to report to the Respondent on a daily basis for the purpose of being allocated work. He was offered work from time to time as it became available and he had the option for whatever reason to decline such work. When he declined work, he was not subjected to any form of disciplinary proceedings. E-mails were shown which confirmed this arrangement. He had the right to find a substitution or replacement without there being any repercussions. One email example he stated, “Grace replacing me tomorrow”. In the absence of mutuality of obligation there cannot be a contract of employment. He did not wear a uniform. He did not have a company email address or mobile phone he used his personal mobile, this was not an employer/employee relationship and the Adjudication Officer does not have jurisdiction to hear this case.”

    In this instance, the Adjudication Officer found that there was considerable conflict of evidence in this case and noted that in the “Kerry Foods” case the Supreme Court decided that each case must be determined in the light of its own particular facts and circumstances.

    “I note that there is an amount of case law on this subject that will require attention in order to arrive at a decision on this matter.

    The Code of Practice for Determining Employment or Self-Employment Status of Individuals issued through the Department of Social & Family Affairs helps to form an understanding of this complex matter. It states “The overriding consideration or test will always be whether the person performing the work does so ‘as a person in business on their own account ‘. Is the person a free agent with an economic independence of the person engaging the service? This economic test is paramount”.

    I note that in the case of McAuliffe v Minister for Social Welfare, Barr J. said it was not possible to devise any hard and fast rule as to what constitutes a contract of service.

    In Sunday Tribune Ltd [1984] I.R. 505 Carroll J. stated: “The Court must look at the realities of the situation in order to determine whether the relationship of employer and employee in fact exists, and it must do so regardless of how the parties describe themselves”.”

    Taking the above into consideration, in this case, the Adjudication Officer considered it necessary to review the evidence under a series of tests as set out in the varying court cases that have dealt with this type of matter in the past.

    “1) Contract of Service / For Service

    I find that no contract was issued so this test is inconclusive.

    2) Pay

    I note that the Complainant submitted a fee note which did not show actual hours worked but it was a show rate. I note that his hourly rate started at €12 per hour and increased to €15 per hour. He was paid fortnightly. He was issued with payslips and received P60s each year.

    I note that the Respondent’s Accountant wrote to the WRC to explain that “it was agreed at the outset that the fairest way to calculate the pay was to include an all-inclusive rate which compensated staff for their full entitlements … minimum wage increased by an amount to cover holiday pay, bank holiday and Sunday premium.

    This would suggest that this was an employer/employee relationship.

    3) Taxation / VAT

    I note in the Henry Denny & Sons (Ireland) Ltd t/a Kerry Foods v The Minister for Social Welfare Kerry Foods case the demonstrator in question submitted an invoice yet it was deemed that she was an employee.

    I also note that in the Phelan case a VAT invoice was submitted and it was also decided that he was an employee.

    Therefore, I find that the submitting of a show fee note does not conclusively prove that the Complainant was self-employed.

    I note that the Respondent made all the statutory deductions from his gross pay, issued payslips each fortnight and issued P60s each year.

    I find that this would suggest that this was an employer/employee relationship.

    4) Mutuality of Obligation

    In order for a contract of service to exist there must be mutual obligations on the employer to provide work for the employee and on the employee to perform work for the employer. So, there is an ongoing duty to provide work and one to accept work.

    In High Court case Minister for Agriculture and Food v Barry & Ors the mutuality test of obligation was endorsed by Edwards J. when he stated “The requirement of mutuality of obligation is the requirement that there must be mutual obligations on the employer to provide work for the employee and on the employee to perform work for the employer. If such a mutuality is not present, then either there is no contract at all or whatever contract there is must be a contract for services or something else, but not a contract of service”.

    I note the Labour Court case FDT 0611 referred to above which states, “One of the essential features of a contract of employment is mutuality of obligation, i.e. the obligation on the employing party to offer work and the obligation on the employed part to accept work”.

    In this case, because of the nature of the business the Respondent was not obliged to provide work except when shows arose.

    I find that the Complainant was not obliged to accept this work. I note instances where it was shown that he declined work or offered it to other people.

    I note the evidence that he declined 53% of all work offered.

    I found that no disciplinary sanctions were applied when he declined the work.

    I found instances where he offered this work to others.

    I did not find that there was an obligation on the Complainant’s part to commit to undertake this work when offered so there was no irreducible minimum of mutuality of obligation.

    I find under this critical test that this was not an employer /employee relationship.

    5) Control

    Under this test the following matters needs to be addressed: deciding the thing to be done, way it is to be done, the means to be employed doing it and the time and place.

    I found that the shows/events were operated under a manager at all times.

    I did not find any evidence of control on how the job was done; however, the task was clearly dictated by the event and I found that it called for little discretion regarding how the job was performed.

    I find that this test is inconclusive.

    6) Integration

    I note that he did not wear a uniform, he did not have a Respondent’s email address and mobile phone. I found that he used his own when carrying out this work.

    I find that he did not have to report to the office each day and operated on a casual basis.

    I find that he was not integrated into this business.

    I find that this was not an employer / employee relationship.

    7) In business on own account

    I found that he used his own phone and email address.

    I found that he had carried out work for other organisations during this time.

    I find that he had the opportunity to replace himself with others.

    I find that he was in business on his own account and declined work when it did not suit him.

    I find that this was not an employer/employee relationship.”

    The Adjudication Officer reflected on all the findings from the above tests carried out and determined that this was not an employer / employee relationship and thus the Adjudication Officer had no jurisdiction to hear the case and therefore the Complaint was not upheld.

    Conclusion

    In most cases it will be clear whether an individual is Employed or Self-Employed. However, it may not always be so obvious, which in turn can lead to misconceptions in relation to the employment status of individuals. The criteria above should help in reaching a conclusion. It is important that the job as a whole is looked at, including working conditions and the reality of the relationship, when considering the guidelines.

  • Case Law Reviewed under the WRC

    by Hayleigh Ahearne
    May 30, 2019

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


    The Respondent failed to follow appropriate procedures in dismissing the Complainant

    Adjudication Reference: ADJ-00013887

     

    Summary of Complainant’s Case:

    The Complainant worked two days per week in a tanning salon until she was dismissed for allegedly closing up too early. Her normal finishing time was 9.30pm and she admits to closing slightly early when the salon was not busy, as do the other Employees after 9.00pm. Accordingly, the dismissal was a disproportionate response by the Respondent. She was not afforded proper disciplinary procedures, and therefore she’s claiming payment for the time she did not worked.

     

    Summary of Respondent’s Case:

    The Respondent stated that the Complainant was dismissed following a list of misdemeanours and breach of contract on 7th and 16th March 2018, whereby she finished work early. A client informed the Respondent that she had been unable to access the premises on 7th March at 9.00pm. The Respondent’s Manager viewed the CCTV and saw that the Complainant closed the gate at 8.41 and the door at 8.50 and she then left at 9.00pm. The Respondent invited the Complainant to meet with the manager on 28th March 2018 and offered to show her the CCTV footage which the Complainant declined.

     

    Legislation:

    Section 1 of the Unfair Dismissals Act 1977 defines a dismissal as follows;

    “dismissal”, in relation to an employee, means—

    (a) the termination by his employer of the employee's contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

    Section 6 (6) of the Act states;

    (6) In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal

    The burden is therefore on the Employer to demonstrate that the dismissal is fair.

    The Code of Practice on Disciplinary Procedures (Declaration) Order 1996 (S.I. No 117 of 1996) includes the following advice on the principles of natural justice to be applied in any disciplinary case;

    • That details of any allegations or complaints are put to the employee concerned
    • That the employee concerned is given the opportunity to respond fully to any such allegations or complaints
    • That the employee concerned is given the opportunity to avail of the right to be represented during the procedure
    • That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors, circumstances.

     

    Decision:

    The Respondent failed to follow proper procedures in dismissing the Complainant.  The Complainant was not advised about the purpose of the meeting nor of her right to representation and so she was not in a position to respond properly to the allegations. The Complainant did not receive an impartial hearing as is evidenced by the fact that the Manager had a pre-prepared letter of dismissal ready to give her and had made up her mind on the issue before the meeting.

    The Adjudication Officer upheld the complaint under the Unfair Dismissals Acts1977 - 2015 and as a result of the breach the Respondent is to pay the Complainant €1,600 in compensation.

     

    Adare Human Resource Management Commentary:

    Generally, disciplinary procedures set out the stages and process the Employer should follow in relation to alleged shortcomings of an Employee. These procedures allow for full and impartial hearings which may result in informal warnings being issued, leading into written warnings and ultimately up to dismissal.

    In the absence of formal disciplinary procedures within an Organisation, the Employer should rely on the Code of Practice established by the Workplace Relations Commission.

     

    ____________________________________________________________________________________________________________

     

    The Respondent to pay the Complainant €1,900.00 in failing to pay wages

    Adjudication Reference: ADJ-00018239

    Summary of Complainant’s Case:

    Around June or July of 2018, the Complainant had started in an Optician unit. His gross wage per month is €1,250.00 but he was not paid for the last six weeks of working at this premises. The Complainant was aware that there had been an argument or a disagreement between the two Directors of this Company. However, he was not advised that his employment was in any way effected by this fact and he turned into work every day. At the end of October 2018, the Complainant submits that one of the Directors did not recognise his obligation to discharge the wage due and owing. The Complainant is making a claim that the failure to pay his wages is an unlawful deduction per the Act.

     

    Summary of Respondent’s Case:

    The Respondent had a long-standing contractual relationship with his Co-Director and a 2016 agreement to purchase the business. The Respondent expressed concern with the Company finances and a need to tighten up on the outgoings to his Co-Director. He was not happy that his Co-Director had placed a number of staffs into the premises at what he perceived to be inflated salaries. He agreed with his Co-Director that they should be removed in early October 2018. There was no agreement as to when this would happen and it took a full month for the Complainant to be re-absorbed into one of the Co-Directors businesses. The Respondent did not believe that he should be obliged to pay the last month’s salary though he did recognise the work have been carried out by the Complainant.

     

    Legislation:

    Section 5 of the Payment of Wages Act, 1991 sets out the instances wherein deductions can and cannot be made.

    Section 5 (1) states that an Employer shall not make a deduction from an Employee unless:

    • The deduction is required by Statute or Instrument
    • The deduction is required by the Contract of Employment
    • The employee has given his prior consent in writing

     

    Decision:

    In the course of the evidence, it is clear that the Company Directors were in the process of falling out in October of 2018, and that the Complainant was ultimately to be the collateral damage.

    The Complainant worked for the Respondent’s Company in September and October. The Complainants full salary for that period of time was withheld and that this amounted to an unlawful deduction as per the Payment of Wages Act as there was no requirement for such a deduction and nor was the Complainant’s consent obtained.

    Thus, the complaint is well founded and the Respondent is to pay to the Complainant the sum of €1,900.00 in compensation.

    Adare Human Resource Management Commentary:

    There are only a few situations, set out in section 5 of the Payment of Wages Act, 1991, where deductions may be made from the Employee’s wages and that may be if the law requires it, if provision is made for the deduction in the contract of employment and where the Employee has given written consent for the deduction.

    Deductions are permitted where they are the result of disciplinary proceedings or to reimburse the Employer for over payment of wages. Where an Employer is going to make a deduction there are notification requirements, in writing, at least one week before the deduction.

     

    ____________________________________________________________________________________________________________

     

    Complainant awarded €15,000 in unfair dismissal

    Adjudication Reference: ADJ-00016163

    Summary of Complainant’s Case:

    The Complainant was employed in a family run business as a Kitchen Manager from, 1st January 2013 to 6th February 2018, earning €770.00 per week. The Complainant is a qualified carpenter and he carried out a lot of work free of charge in the Bar renovation. On 4th February 2018, he attended work with two of his cousins to carryout work in the kitchen. When they had completed the work, he made them a pizza and they consumed two pints of alcohol and played pool. He had an understanding with the Respondent that he could bring others in to help him with the maintenance matters.

    On the night of 4th February 2018, the Employees stayed on the premises until 4.00am or 5.00am and one of them slept there. On 6th February, he was called to the office with a Security Guard present. The Respondent told him that he was dismissing him for drinking on the premises. He was handed his P45 and two weeks wages. The whole dismissal was completely in breach of all fair procedures and natural justice. On 23rd February 2018 the Respondent wrote to the Complainant and made reference to his mental health and his relationship with alcohol. As a result of losing his job and his profit share, he suffered from depression and was unfit to work.

    Summary of Respondent’s Case:

    According to the Respondent on the 4th February 2018, the Complainant engaged in gross misconduct which involved unauthorised access to the business premises outside of normal hours. This placed the Respondent at risk as it was a breach of the insurance terms and conditions and also a breach of statutory requirements in relation to the consumption of alcohol. He allowed the two accompanying adults to remove money from the staff tip jar, therefore stealing from the Employees of this business.

    On 23rd January 2018, an incident arose resulting from an HSE inspection. He was issued with clear instructions in an email dated 23rd January 2018 and failed to adhere to these instructions.

    On 31stOctober 2017, there was the unauthorised removal of stock from the business premises which amounted to theft of stock and this was seen on the CCTV. Following this, a warning was issued and the Respondent was legally justified in dismissing him and the Complainant was aware of the damage that his actions were causing.

    The dismissal meeting took place on 6thFebruary 2018, where he was given an opportunity to respond to the allegations and provide an explanation for the inappropriate misconduct.

     

    Legislation:

    Under the Unfair Dismissals Act, the responsibility rests with the Respondent to discharge the burden of proof and to demonstrate that the dismissal was not unfair.

    Substantive Matter

    The Respondent has failed to provide operational standards and the dismissal was substantively unfair although the Complainant has contributed to his dismissal.

    Procedural Matter

    The Complainant was called to a meeting on the premises on 6th February 2018 and was summarily dismissed. He was unaware of this meeting beforehand and he did not know he would be dismissed. The Respondent had prepared the P45 and two weeks wages in advance and so the decision was pre-determined. The Complainant was not made aware in advance of the allegations against him and was not afforded the right to defend himself nor given the right to representation.

    The Respondent has fundamentally breached all aspect of fair procedure and natural justice; therefore, the dismissal was procedurally unfair.

    Decision:

    The Respondent has referred to a number of acts of misconduct which rendered the working relationship to be breached. This has been fundamentally rejected by the Complainant. There was a total conflict of evidence regarding the practice of drinking on the premises after hours.

    As it was deemed that the dismissal was unfair, the Respondent was to pay the Complainant a compensation of €15,000 within six weeks of the date below.

     

    Adare Human Resource Management Commentary:

    Substantive requirements

    In the case of gross misconduct, the Employer should conduct an investigation to determine whether there are grounds for disciplinary action, up to dismissal. Substantive requirements dictate that the Employer must have prima facie proof of the misconduct. The Employer must provide a proof of the misconduct based on the test of "balance of probabilities".

     

    Procedural requirements

    An investigation or a formal disciplinary hearing should take place as soon as possible. The Employer should then notify the Employee of the allegations using a form and language that the Employee can reasonably understand. This notice should set out the charges and the Employee's rights during the hearing. The charges should be detailed enough for the Employee to determine the charge and to be able to defend himself/herself against it. The Employee is entitled to a representation in providing their side of the argument, and no decision should be pre-determined.

  • Fixed Term / Purpose Contracts of Employment

    by Hayleigh Ahearne
    May 30, 2019

    A fixed term / purpose contract is a contract which is put in place for a temporary period and has a definite duration or purpose.  The end of the contract is determined by an objective condition such as;

    • The arrival of a specific date
    • The completion of a task / project
    • The occurrence of a specific event

    What is the difference between a fixed term and a fixed purpose contract?

    A fixed term contract is for a (fixed) duration / term of work required e.g. an Employee being hired during a busy seasonable time (i.e. Christmas). A fixed purpose contract expires when the specified (fixed) purpose of the role is fulfilled e.g. completion of a project or an Employee returning from long-term sick leave.

    Legislation

    The Protection of Employees (Fixed-Term Work) Act, 2003 is in place to ensure that there is no discrimination in relation to conditions of employment as between a fixed term / purpose worker and a comparable permanent employee. It is also in place to prevent abuse by Employers of the use of successive fixed term contracts. 

    A fixed term / purpose contract must specify the objective condition which brings the contract to a natural end.  As outlined above, this may be a specified date, the completion of a specific task / project, or the occurrence of a specific event.  Once this objective condition is satisfied, the natural expiry of the contract occurs. Objective provisions may include:

    • A fixed term – the contract expires on a particular date;
    • A specified purpose – the contract expires when the specified purpose of the role is fulfilled, e.g. completion of a project;
    • The occurrence of a specific event, e.g. Employee X returning from maternity leave.

    Fixed term / purpose contracts must also include a clause precluding the provisions of the Unfair Dismissals Acts applying to a termination resulting solely from the expiry of the fixed term / purpose contract.  It is important to note that the Unfair Dismissals Acts will still apply to termination for any other reason other than the natural expiry of the contract, e.g. performance, conduct, attendance, redundancy etc.

    Renewals & Extensions

    If an Organisation wishes to renew a fixed term / purpose contract, they must have objective grounds justifying the renewal and failure to offer a contract of indefinite duration (i.e. a permanent contract) at that time.

    The Act provides that where an Employer proposes to renew or extend a fixed term / purpose contract the Employee shall be informed in writing, not later than the date of renewal, of the objective grounds justifying the renewal of the fixed term / purpose contract and the failure to offer a contract of indefinite duration at that time.

    When renewing or extending a fixed term / purpose contract it is a legal requirement that the Employer advises the Employee, in writing prior to the expiry of the current contract, of the fact that the contract is to be renewed.  The legislation requires that the Employer outline the objective reasons for renewing the fixed term / purpose contract and not offering permanent employment at the time.  A failure to provide this will not leave an Employer liable to a fine, however, where an Employee pursues a claim for permanency, the Employer’s case will be severely weakened by their absence.

    Successive Fixed Term Contracts

    Along with the requirement for justifying the renewal of a fixed term / purpose contract, the Act also regulates the length of the successive fixed term contracts in determining the Employee’s right to a contract of indefinite duration.

    Fixed term / purpose contracts may only be used for a specific period of time, otherwise the Employee may become entitled to a contract of indefinite duration.  The entitlement is dependent upon the date of commencement of employment.

    For Employees who commenced on or after 14th July 2003, the Employer is only permitted to employ that person for a period of four years on two or more successive fixed term / purpose contracts.  Following four years of fixed term / purpose employment, the Employee may seek to be made permanent, unless there are objective grounds justifying a further renewal of the contract and not offering a permanent post at that time. 

    However, the above-mentioned rules do not apply where there are objective grounds justifying the renewal of a contract of employment for a fixed term / purpose only.

    Case law indicates that in order for fixed term / purpose contracts to be considered successive, it may not be necessary for them to commence immediately following one another.  The Labour Court has indicated in previous rulings that that short breaks of less than 13 weeks may not, in certain circumstances, be considered adequate to break continuity between successive fixed term / purpose contracts. 

     

  • SAVE THE DATE - Adare Webinar Series - 11th June 2019

    by Hayleigh Ahearne
    May 30, 2019

    SAVE THE DATE

    Adare Human Resource Management are delighted to invite you to our 2019 Webinar series "The Evolving Human Resource, Industrial Relations and Employment Law Landscape". Registration details will be shared with you shortly - ensure to keep the date free!

    Topic: Review of key 2019 WRC and Labour Court Claims

    Presented by: Sarah Fagan, Senior HR and Employment Law Consultant, Adare Human Resource Management

    Date: 11th June 2019

    Time: 12:30pm

     

    Could not attend the previous webinar? You can view it on our website here.

  • Data Protection - 1 year on since the implementation of GDPR

    by Hayleigh Ahearne
    Apr 30, 2019

    This month marks the one-year anniversary (25th May) since the implementation of the General Data Protection Regulations (GDPR) across the EU. The GDPR saw the introduction of 99 Articles which provided for significant reforms to current data protection legislation in Ireland and the introduction of the Data Protection Act, 2018.

    Who does GDPR apply to?

    GDPR applies to all entities established in the EU which process personal data in the EU. As such, GDPR and the Data Protection Act, 2018 will apply to any person or Organisation which processes personal information / data related to an Employee (current or past) or an applicant for employment. However, there are exceptions to same, namely:

    • Household data
    • Deceased persons
    • Criminal offences / safeguarding public security
    • EU common foreign and security policy

    So what exactly is considered personal data? This is defined as “any information relating to an identified or identifiable natural person (‘data subject’); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an indemnification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person;” (Article 4, General Data Protection Regulation, 2018)

    Data can be considered as automated and manual data:

    • Automated data is information that is processed by means of equipment operating automatically in response to instructions given for that purpose, or recorded with the intention that it should be processed by means of such equipment
    • Manual data information that is recorded as part of a relevant filing system, or with the intention that it should form part of a relevant filing system

    Examples of personal data are address, credit card number, PPS Number, CCTV recordings, an online identifier, phone number, a Doctor’s opinion but to name a few.

    It is important to note that the processing of special category data is prohibited, such data is considered to be related to:

    • Racial or ethnic origin
    • Political opinions or religious or philosophical benefits
    • Trade union membership
    • Processing of genetic data
    • Biometric data for the purposes of uniquely identifying an individual
    • Data concerning health
    • Sexual life or orientation

    However, there are exemptions as to when special category data can be processed, these are as follows:

    • Explicit consent
    • Processing necessary carrying out the rights or obligations of controller or data subject in employment, social security, protection
    • Protection vital interests of data subject or other natural person
    • Foundation, association or not not-for-profit
    • Manifestly made public
    • Legal claims
    • Substantial public interest
    • Preventive or occupational medicine
    • Public interest in the area of public health
    • Archiving in the public interest, scientific or historical research or statistical purposes.

    Other common terms used with GDPR and important to note are:

    • Data Subject means the living individual (“natural person”) who is the subject of the personal data.
    • Data Controller means a person (natural or legal) who, either alone or with others, controllers the contents and use of the personal data.
    • Joint Controllers occur where two or more controllers jointly determine the purposes and means of processing. Joint Controllers shall in a transparent manner determine their respective responsibilities for compliance with the obligations under GDPR.
    • Data Processor means a person (natural or legal) who processes personal data on behalf of a data controller but does not include an employee of the data controller who processes such data in the course of employment.
    • Supervisory Authority is the Data Protection Commission in Ireland.
    • Data Protection Officer (DPO) is an appointed individual by a Data Controller to carry out functions in line with relevant Data Protection legislation.

    When does a DPO need to be appointed?

    The GDPR [Article 37 (1)] requires the designation of a Data Protection Officer in three specific areas:

    1. Where the process is carried out by a public authority or body,
    2. Where the core activities of the controller or the processor consist of processing operations, which require regular and systematic monitoring of data subjects on a large scale, or
    3. Where the core activities of the controller or processor consist of processing on a large scale of special categories of data or personal data relating to criminal convictions and offences.

    Taking into consideration the above overview, two key aspects of the GDPR which should be noted are the (a) principles and (b) rights of a data subject.

    (a)      The Principles of GDPR [Article 5, General Data Protection Regulation, 2018]:

    1. Obtain and process Personal Data Information lawfully, fairly and transparently – lawfulness, fairness and transparency
    2. Personal data must be collected for specified, explicit and legitimate purposes and not in ways incompatible with these purposes – purpose limitation
    3. Ensure it is adequate, relevant and limited – data minimisation
    4. Keep it accurate and up-to-date – accuracy
    5. Kept it in a form for no longer than necessary – storage limitation
    6. Keep it safe and secure including protection against unauthorised access – integrity and confidentiality
    7. The controller shall be responsible for, and be able to demonstrate compliant with – accountability

    (b)      Rights of Data Subject [Articles 12 – 22, General Data Protection Regulation, 2018]:

    1. Transparent information, communication and modalities
    2. Information and access to personal data
    3. Information to be provided where personal data have not been obtained from the data subject
    4. Right to access by the data subject
    5. Right to rectification
    6. Right to erasure
    7. Right to restriction and processing
    8. Right to data portability
    9. Right to object
    10. Automated individual decision-making, including profiling

    Storage & Retention:

    A Data Controller is obliged to inform a data subject (by way of a privacy notice / data protection policy for example) with the following information:

    • The purposes for processing the data
    • The categories of personal data concerned
    • To whom the data has been or will be disclosed
    • Whether the data has been or will be transferred outside of the EU
    • The period for which the data will be stored, or the criteria to be used to determine retention
    • periods
    • The right to make a complaint to the Data Protection Commissioner
    • The right to request rectification or deletion of the data
    • Whether the individual has been subject to automated decision making

    Section 71 (7) of the Data Protection Act, 2018 outlines that a Controller “shall ensure, in relation to personal data for which it is responsible, that an appropriate time limit is established for (a) the erasure of the data, or (b) the carrying out of periodic reviews of the need for retention of the data.”

    There are statutory retention periods for some data to be held (further guidance on this is in our Helpdesk section of this month’s newsletter), for example data relating to the Organisation of Working Time Act, 1997 should be retained for 3 years and data relating to the Parental Leave Act 1998-2013 should be retained for 8 years. However, all other data should be retained in line with the data protection principles 3 – 5 as outlined above, a Controller should ensure the data is relevant, up-to-date and kept no longer than necessary.

    Breach Notification:

    Even with the heightened attention of GDPR, personal data breaches are still a regular occurrence and happening across all of the globe.

    A “‘personal data breach’ means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, personal data transmitted, stored or otherwise processed;” (Article 4, General Data Protection Regulation, 2018)

    In the case of a personal data breach, the Controller shall without undue delay and where feasible, not later than 72 hours after having become aware of it, notify the personal data breach to the Supervisory Authority (i.e. the Data Protection Commission in Ireland), unless the personal data breach is unlikely to result in a risk for the rights and freedoms of individuals.

    In the event that the Data Controller does not report the breach to the Supervisory Authority within 72 hours, the notification must be accompanied by a reasoned justification for the delay.

    When the breach is likely to result in a high risk for the rights and freedoms of individuals the Controller shall communicate the personal data breach to the data subject without undue delay.

    Enforcement of the Supervisory Authority:

    The Data Protection Commission monitors the lawfulness of processing personal data, and has the powers to:

    • Facilitation and negotiation
    • Formal notices
    • Audit
    • Entry and inspection
    • Criminal prosecution

    Furthermore, penalties and liabilities can include fines of:

    • Up to €10 million or 2% of global annual turnover (whichever is greater)
    • Up to €20 million or 4% of global annual turnover (whichever is greater)
    • €1 million for public bodies

    Data subjects can also decide to pursue their own legal proceedings against data controllers (unless proven not responsible) for material and non-material damage.

    Subject Access Requests:

    Another change since the implementation of GDPR is that there is no longer a requirement for an Employee to provide their Employer with the administrative fee of €6.35 when lodging a Subject Access Request (SAR). This means that Employees can now make a SAR completely free of charge. While this might not appear to be a significant change, the payment of the fee by cheque or bank draft was an inconvenient administrative burden for Employees which may have dissuaded at least some from making a SAR. However, since 25th May 2018, a SAR can now be simply initiated by an Employee emailing their Employer and requesting a copy of all of their personal data.

    In addition, the timeframe for responding to a data request has been shortened to one month, however this can be extended by two months if there is there is complexity involved in fulfilling the request. Furthermore, if a request is “manifestly unfounded” or “excessive” the employer can refuse the request or charge a fee. Unfortunately, “manifestly unfounded” and “excessive” in this context has not been defined so it remains to be seen how this is to be assessed. It therefore remains to be seen under what circumstances, in practice, an Employer can refuse to comply with a SAR.

    Adopting strict data retention policies and deleting older data where possible can help reduce administrative burdens, as there will be less information for Employers to provide to data subjects. That being said, in most cases, it will not be possible to avoid SARs. Employers should therefore analyse their systems and work practices in order to see how they can respond to SARs in the most efficient manner possible.

    Data Protection Commission Annual Report 2018 Findings:

    The Data Protection Commission (DPC) issued its first report since the implementation of GDPR on the 1st of March 2019. This report includes a review from 25th May – 31st December 2018.

    In total, there was 2,864 complaints (1,928 were GDPR complaints, while 936 were complaints handled under the Data Protection Acts 1988 to 2003) received by the DPC in this timeframe, which is an increase from 1,249 complaints received from 1st to 24th May 2018. The below table is evident that as time goes on individuals are becoming more cognizant of their rights and that they indeed appear to pursue avenues in order to protect same.


                                                    (Data Protection Commission Annual Report, 25th May – 31st December 2018)

    Between 25th May and 31st December 2018, the DPC received 3,687 data-breach notifications under Article 33 of the GDPR, of which 145 cases (4%) were classified as non-breaches as they did not meet the definition of a personal-data breach as set out in Article 4 (12) of the GDPR. However, a total of 3,542 valid data protection breaches were recorded, representing an increase of 27% (747) on the numbers reported in 2017.

    Categories of these breaches were as follows:

    • Device lost or stolen (encrypted) – 42
    • Device lost or stolen (unencrypted) – 30
    • Disclosure (unauthorised) – 3,134
    • Hacking – 116
    • Inappropriate disposal of paper – 30
    • Malware – 32
    • Paper lost or stolen – 196
    • Phishing – 107

     

    Conclusion:

    The Data Protection Commission has been in expansion mode for the past four years and appears to be continuing to grow. Following a major recruitment campaign in 2018, 30 new staff members had joined the DPC by December 2018, with a further 20 new staff members having come on board in Q1 of 2019. The DPC currently have approx. 135 staff members in total and expects to recruit an additional 30 staff members throughout 2019 in order to meet the demands of the tasks assigned under the GDPR. Furthermore, in late 2018, the DPC commenced a significant project to develop a new five-year DPC regulatory strategy, which will include extensive external consultation during 2019, which will be central to the analysis, deliberation and conclusions of the DPC that don’t just deliver cosmetic compliance but also meet consumer expectations.

    With the implementation of GDPR and the subsequent growth of the DPC, it has become evident that there has been a considerable increase in SARs being lodged within the workplace. We expect this to be one of the main areas of dispute with Employees going forward, as they challenge the adequacy or validity of responses received to such requests. In summary, SARs will likely give rise to considerable time and cost burdens for Employers, with limited scope to refuse the requests. Thus, it is imperative that Data Controllers are fully aware of their obligations under GDPR and have a defined strategy and approach within their Organisation with regards to same.

  • Case Law Reviewed under the WRC

    by Hayleigh Ahearne
    Apr 30, 2019
    In this month’s newsletter the team at Adare Human Resource Management consider in detail a number of cases as adjudicated under the Workplace Relations Commission.

    The sum of €3,000 is awarded to the Complainant as a result of discrimination in the workplace

    Adjudication Reference: ADJ-00014091

    Summary of Complainant’s Case:

    The Complainant submits he was discriminated against by the Respondent on the grounds of disability. He was employed by the Respondent from 26th of February 2018 to 28th of February 2018. He advised a colleague on the 27th February 2018, that he was too tired to work a roster which required him to work through breakfast, lunch and dinner shifts.

    He was called to a meeting with the Restaurant Manager - Ms. L on the 28th of February 2018, where he notified her that he was too tired to work such shifts and long hours were too difficult for him due to a disability. He further explained to Ms. L that he was unable to take his medication properly and was told that those were the shifts and no exceptions could be made.

    Summary of Respondent’s Case:

    The Respondent submits that the reason Complainant resigned on the 28th of February 2018 was because he was unable for the hours as he finds the shifts too long and early mornings as well as late nights were too difficult for him. The role did not suit him; therefore, he left his employment.

    The Respondent claims that at the end of the meeting, the Complainant stated the hours were affecting his medicine routine and as she was about to exit the room, he stated he was HIV positive.

    Legislation:

    The relevant law in this case is Equality Acts, 1998 to 2015. It is submitted by the Complainant that he is a person with a disability, within the meaning of section 2 of the Employment Equality Acts this is defined as:

    “(a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,

    (b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,

    (c) the malfunction, malformation or disfigurement of a part of a person’s body,

    (d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

    (e) a condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour,

    and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person”.

    Decision:

    Section 16 (3) of the Acts, sets out the obligations and requirements on Employers to take appropriate measures, where needed in a particular case, to enable a person with a disability have access to, participate in or advance in employment. It requires an Employer to make a proper and adequate assessment of the situation before taking a decision which is to the detriment of an Employee with a disability.

    The Respondent, once aware that the Complainant’s reason for resigning was due to his disability was obliged to make further enquiries into the extent of the disability and to ascertain whether he might be able to do the job if he was afforded reasonable accommodation for his disability.  Accordingly, the Complainant was discriminated against by the Respondent in respect of a failure to provide him with reasonable accommodation for his disability.

    Section 79 of the Employment Equality Acts, 1998 – 2015 requires the decision to be made in accordance with the relevant redress provisions under section 82 of the Act. Therefore, the sum of €3,000 is awarded to the Complainant for the distress suffered by him as a result of the discrimination.

    Adare Human Resource Management Commentary:

    The issue for decision was, whether or not, the Respondent discriminated against the Complainant, on grounds of his disability and were reasonable accommodations made for his disability.

    Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the Complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination. If this succeeds, then, it is for the Respondent to prove the contrary.

    An Employer should not decide that a person with a disability is incapable of doing a particular job without considering whether there are appropriate measures which they could take to support the person to carry out the required duties.

    ____________________________________________________________________________________________________________

     

    Complainant successful in constructive dismissal case as her Employer failed to respond

    Adjudication Reference: ADJ-00017087

    Summary of Complainant’s Case:

    The Complainant submits she began employment on the 26th of October 2005 as a Laundry Assistant. On the 14th of November 2017, the Complainant attended a meeting where her and other members of staff were informed that the laundry function had been outsourced and they will be redeployed to other areas of the Hotel. On the same day, the Complainant wrote to the Respondent requesting that she be made redundant.

    On the 29th of December 2017, the Complainant had a meeting with the HR Manager at which she explained she had a bad back and was unfit for the new role. The Complainant was on medically certified sick leave due to stress until the 23rd of January 2018. On the 18th of January 2018, the Complainant’s solicitor wrote to the Respondent stating that the proposed change to the Complainant’s role constituted a fundamental change to her terms of employment. The Respondent acknowledged the letter on 29th of January, stating their legal advisors would be in contact with them but nothing was heard.

    On the 2nd of July 2018, when still nothing had been heard, the Complainant’s solicitor wrote to the Respondent enclosing a medical certificate confirming she was not medically fit for the role. The letter asked the Respondent to confirm whether they intended to offer the Complainant a suitable alternative role or a redundancy package. No reply to this letter was received. The Complainant therefore considered herself dismissed on 12th of July 2018.

    Summary of Respondent’s Case:

    The Respondent submits that the proposed change in the Complainant’s role was not a major change in physicality. The new role offered was a suitable alternative and it was not reasonable for the Complainant to refuse the offer. He claims it was the Complainant who had absented herself from the briefing meetings held to explain the new role. The Respondent also notes that the first time it was indicated that there were medical reasons she could not do the job was July.

    Legislation:

    The relevant law in this case is Section 8 of the Unfair Dismissals Acts, 1977 – 2015. Under the Act, an unfair dismissal can occur where:

    • An Employer terminates the contract of employment, with or without notice.
    • An Employee terminates their own contract of employment, with or without notice, due to the conduct of their Employer. This is known as constructive dismissal.

     

    Decision:

    Between February and July 2018, the Complainant heard nothing from the Respondent regarding the issue of redundancy or alternative role. The Complainant tried to clarify her position with her Employer several times, but despite several emails and letters, attempts to elicit a response from the Respondent were unsuccessful.

    The Complainant’s medical certificate of 30th of May 2018 makes it clear that the Complainant was not physically capable of carrying out the proposed role. The Respondent was made aware of this certificate by way of a letter dated 2nd of July 2018. The matter was ignored and whether this was deliberate is irrelevant, it is unacceptable that an Employee should be left in such a situation for so long by an Employer.

    In the circumstances, it is found the Complainant was entitled to terminate her contract of employment with the Respondent. This was an unfair dismissal and the Complainant is awarded the sum of €13,888.

    Adare Human Resource Management Commentary:

    In a constructive dismissal claim the burden of proof is with the person making the claim initially. The Complainant has to demonstrate that they were justified in their decision and it was reasonable  for them to resign. The Complainant must satisfy the contract and/or the reasonableness tests in terms of the Employers behaviour or actions.

     

    ____________________________________________________________________________________________________________

    Complainant unfairly dismissed for Gross Misconduct awarded €6,500

    Adjudication Reference: ADJ-00017541

    Summary of Complainant’s Case:

    The Complainant was employed by a Sports Club from 18th of November 2016, until he was handed a letter of dismissal on the 20th of July 2018. It was alleged that this was for Gross Misconduct in relation to an incident which had taken place on the 7th July 2018.

    The Complainant submits that the Club’s own Disciplinary/Grievance Policy was not followed. A disciplinary meeting was alleged to have been held on the 13thof July 2018. The Complainant submits he never received any notification of this meeting.

    In relation to the incident of the 7th of July, he had followed correct procedures in attempting to contact the Financial Controller, but to no avail. As a large function was scheduled for that night, he had used his own initiative and had employed a former staff member (Mr. S) to help.

    The Complainant appealed his Dismissal, but no Appeal hearing was ever heard.

    Summary of Respondent’s Case:

    The Respondent submits that the disciplinary meeting of the 13th of July had proceeded in the Complainant’s absence.

    In the early part of 2018, there were issues focused largely on the question of till / stock take shortcomings which were of great concern to the Club. An issue had arisen over the refusal to allow a female staff member serve drinks at the Bar and in relation to the non-use of a Pizza oven. The giving of casual work to Mr. S was not an accidental omission and Mr. S’s status or non-status with the Executive Committee would have been well known to the Complainant. This had influenced the Executive Committee in their decision and the Respondent submits that the Dismissal decision taken was in the light of his generally uncooperative attitude.

    Legislation:

    The relevant law in this case is the Unfair Dismissals Act,1977, SI 146 of 2000 - Statutory Code of Practice on Grievance and Disciplinary Procedures and the rules of Natural Justice as set out in numerous legal precedents.

    Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

    Decision:

    The Complainant was out of work for some 9 weeks at a (gross) loss of €6,120 and had an alleged future loss of earnings due to his taking up a new position in a different industry at a lesser rate of pay. At the date of the Hearing in January this was estimated to be in the order of some €4,117.

    Taking all these factors into account it is found that the Complainant is entitled to redress of the sum of €8,000 but reduced by 20% as his actions regarding the casual shift to Mr. S on the night of the 7th of July were not clear. Accordingly, a final sum of €6,500 Gross Pay is awarded as redress.

    Adare Human Resource Management Commentary:

    Following the correct grievance and disciplinary procedures is a requirement. The guiding principles of a good disciplinary (and/or grievance procedure) include the following:

    -          The procedure is fair

    -          The procedure is clear

    -          The penalties which may be imposed are clear and

    -          There is an internal appeals mechanism.

    In this instance, the Dismissal letter of the 20th of July 2018 was in breach of the Complainant’s rights under Natural Justice and Si 146 of 2000 - Statutory Code of Practice on Grievance and Disciplinary Procedures. Adequate warnings were not given, no proper efforts were made to ensure that the Complainant was fully informed of the meeting on the 13th of July. The non-attendance should have been better followed up prior to any Dismissal decision being taken.

  • The Essentials on Record Keeping

    by Hayleigh Ahearne
    Apr 30, 2019

    Record keeping is a requirement for Employers. A significant amount of information related to Employees is created and gathered during the employment relationship. It is important that Organisation are aware that all information held by them in relation to an Employee must be stored, processed and maintained appropriately. In many cases, retention of records is a legal requirement (for example, working time and pay records). In other cases, it is not a legal requirement, however it may assist the Organisation in defence of any legal claims lodged by Employees, e.g. in the case of an alleged unfair dismissal. 

    Storage of Data:

    It is important to be aware that all information held by an Employer related to an Employee must be stored, processed and maintained in accordance with the General Data Protection Regulations and the Data Protection Act, 2018. Furthermore, Organisations holding public information may be subject to the further requirements of the Freedom of Information Act, 2004.

    Storing data can be done manually, for example in a filing cabinet in the office and/or electronically on a secure system online.

    Retaining Data:

    Information that an Organisation retains may include details of the recruitment process followed to hire an Employee, the written statement of terms and conditions of employment, records of pay including holiday pay and public holiday benefits, medical information, information relating to disciplinary situations, grievances and documentation related to workplace investigations, as well as documentation related to Employee benefits, agreements to deductions from pay and so forth.

    The General Data Protection Regulations have established (seven) principles which Data Controllers must adhere to in relation to the processing of personal data:

    1. Obtain and process Personal Data Information lawfully, fairly and transparently – lawfulness, fairness and transparency
    2. Personal data must be collected for specified, explicit and legitimate purposes and not in ways incompatible with these purposes – purpose limitation
    3. Ensure it is adequate, relevant and limited – data minimisation
    4. Keep it accurate and up-to-date – accuracy
    5. Kept it in a form for no longer than necessary – storage limitation
    6. Keep it safe and secure including protection against unauthorised access – integrity and confidentiality
    7. The controller shall be responsible for, and be able to demonstrate compliant with – accountability

    Legislation regarding record keeping:

    The following legislation should be considered when looking at record keeping and compliance:

    -          Organisation of Working Time Act, 1997-2015 - Retained by the Employer for at least 3 years from the date of their making.

    -          Protection of Young Persons Act, 1996 – Retained by the Employer for at least 3 years since the young person or child is employed.

    -          National Minimum Wage Act, 2000 - Retained by the Employer for at least 3 years from the date of their making.

    -          Protection of Employment Act, 1977 - To be retained for at least 3 years.

    -          Minimum Notice and Terms of Employment Act, 1973 - Retained by the Employer for 1 year (as claims must be brought within 12 months of the date of the offence).

    -          Terms of Employment (Information) Act, 1994 - A copy of the written statement must be held for the duration of the Employee’s employment and for 1 year thereafter.

    -          Payment of Wages Act, 1991 – To be retained for 1 year (as complaints may be presented within 6 months from the date of an unlawful deduction of payment, this may be extended by up to a further 6 months in exceptional circumstances).

    -          Carer’s Leave Act, 2001- Retained by the Employer for 8 years.

    -          Parental Leave Act, 1998 - Parental Leave (and Force Majeure Leave) records must be kept by the Employer for 8 years.

    -          Paternity Leave Act, 2016 - A record of Paternity Leave shall be retained by the Employer for a period of 8 years after the relevant Leave is taken.

    -          Employment Permits Act, 2003 - The records to be retained for 5 years or for the duration of employment.

    -          Safety Health and Welfare at Work Act 2005 - Records containing full details of all accidents or dangerous occurrences must be kept for 10 years and notified to the Health & Safety Authority at the time of the incident.

    Although there are no statutory retention periods under the below pieces of legislation, the timeframes given here are considered “best practice” to consider:

    -          Employment Equality Act, 1998 – To be retained for 1 year (as complaints can be made within 6 months from the date of an alleged discrimination which can be extended to 12 months in exceptional circumstances). Discrimination claims may result in awards in respect of arrears of up to 6 years pay so records should be kept for at least 6 years.

    -          Equal Status Act, 2000 - Complaints may be made within 6 months from the date of the incident which may be extended, so records to be held for 1 year.

    -          Maternity Protection Act, 1994 - Complaint can be made within 6 months from date Employer was notified of dispute which can be extended to 12 months in exceptional circumstances so records should be held for a minimum of 1 year.

    -          Adoptive Leave Act, 1995 - Complaint can be made within 6 months from date Employer was notified of dispute which can be extended to 12 months in exceptional circumstances so records should be held for a minimum of 1 year.

    -          Unfair Dismissals Acts, 1977 - Claims must be made within 6 months from the date of dismissal which can be extended to 12 months in exceptional circumstances so records should be kept for a minimum of 1 year.

    -          Redundancy Payments Act, 1967 – To be retained for a minimum of 1 year.

    -          Protected Disclosures Act, 2014 – To be retained for at least 1 year.

    -          The European Communities (Protection of Employees on Transfer of Undertakings) Regulations, 2003 - To be retained for at least 1 year.

    Conclusion:

    It is essential that all Employers ensure that they are keeping the correct records for all of their Employees. Whilst record keeping can usually be imposed by statute, it can be useful for Organisations from the perspective of monitoring other elements of the employment relationship, for example, records may be maintained in relation to absence levels, training, accidents, incidents, disciplinary investigations and potential warnings.

    The record keeping guidelines outlined above specify the required limits under employment legislation where it is detailed within the statute but also recommended guidelines under best practice where no limit is outlined within the legislation. This does not include timeframes for taking common law or civil proceedings of breach of contract.

  • Workplace Investigations

    by Hayleigh Ahearne
    Apr 02, 2019

    The necessity for workplace investigations is ever increasing and can be at times a complex area where fair procedures and natural justice are paramount. A workplace investigation should be an independent and unbiased investigation into a particular issue in the workplace with the aim of gathering relevant evidence to determine whether or not an Employee has engaged in misconduct, or whether or not a specific incident(s) have occurred, or simply to establish facts.

    The crux of any investigation is that it is conducted in line with agreed Terms of Reference and is representative of impartiality, fair procedures and natural justice.

    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 and / or conduct;
    • A complaint from an Employee / client / customer / third party in respect of the Employee;
    • A complaint of bullying, harassment and / 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 have arose and they should consider the following;

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

    Role of the Investigator

    An Investigator should conduct the investigation with integrity, fairness, impartiality and respect and report their findings to the Organisation, in line with an agreed Terms of Reference. In employment related investigations, the Organisation should be cognisant of seeking to preserve a good working relationship between the parties and maximise 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 experienced 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 positive working relationship.
    • The investigation will be conducted in accordance with the relevant policy and will be governed by terms of reference 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 (if any).
    • Next, the alleged perpetrator(s) should be invited to a meeting to explore their responses to the complaint and to put any relevant evidence to them.  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 witness(es) may also be interviewed with a view to establishing the facts surrounding the allegation(s).
    • The parties of the complaint may also have a right to cross examine other parties involved in the investigation.
    • All parties required to attend investigation meetings should be offered the right to be accompanied or have a representative. Based on precedent case law (which is discussed in more detail below), there may be a further right to legal representation at such meetings too.
    • 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 upheld. Where 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, further training, or another appropriate intervention deemed necessary to prevent a recurrence of the behaviour.

    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 Workplace Investigations

    The risks associated with poor investigation practices are significant, and mistakes can expose Organisations to significant financial, legal and reputational risks. Therefore, incumbent on any Organisation is a responsibility to conduct a thorough and fair investigation. Key mistakes that Organisations often make during the course of an internal workplace investigation include:

    • a lack of pre-investigation planning;
    • a poorly drafted, or the absence of a Terms of Reference;
    • combining the investigation and disciplinary steps;
    • 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

    Recent Case Law - Legal Representation

    Up until recently, the legal principles surrounding the right to legal representation in investigation and/or disciplinary processes were relatively clear. The Code of Practice on Grievance and Disciplinary Procedures commissioned by the Workplace Relations Commission expressly outlined that “any person or body unconnected with the enterprise” would be excluded from acting as an employee representative in a grievance or disciplinary process.

    Precedent case law [Burns and Hartigan v Governor of Castlerea Prison, 2009] then provided that an employee would be entitled to legal representation in disciplinary proceedings in certain “exceptional circumstances”. The Supreme Court stated that the essential point in determining whether or not “exceptional circumstances” existed was whether or not legal representation was needed in the circumstances of the case, and the Court advised that the following factors should be considered:

    • the seriousness of the charge and the proposed penalty;
    • whether any points of law are likely to arise;
    • the capacity of a particular individual to present his / her own case;
    • procedural difficulties;
    • the need for reasonable speed in making the adjudication, that being an important consideration; and
    • the need for fairness as between the parties.

    This precedent case law was then thrown into uncertainty with the High Court’s decision in Michael Lyons v Longford Westmeath, 2017. The Court held that the failure to allow legal representation, on behalf of the Employee, at the meeting was a breach of his constitutional rights and the refusal to allow cross-examination was a breach of fair procedures too. The Court held that the investigation required these as a matter of law and fair procedures as an individual whose job is at stake must be allowed challenge and cross-examine evidence.

    Since this judgement, there has been more recent case law on the matter, namely in Irish Rail v Barry McKelvey, 2018. This case involved an appeal by Irish Rail against an order of the High Court restraining Irish Rail from commencing a disciplinary hearing in relation to an alleged “theft of fuel through the misuse of company fuel cards” by the Employee. Mr McKelvey requested to be represented by a solicitor at the hearing and Irish Rail refused this request and stated that Mr McKelvey already had the right to be represented by a colleague or trade union representative, in line with the Code of Practice on Grievance and Disciplinary Procedures. As a result, Mr McKelvey successfully applied to the High Court for an injunction from commencing the disciplinary proceedings until such a time that he was allowed his legal representation. The High Court decided that the “charges levelled against Mr McKelvey could hardly have been more serious insofar as they put at risk not only his reputation but also his future employment prospects” and “the complexity of the case” too, thus the Court found that he should be allowed his right to a legal representative in this process to ensure he receives fair procerus and natural justice. Subsequent to this High Court decision, Irish Rail appealed the decision to the Court of Appeal and the Court of Appeal implied that the High Court had focused on the first Burns factor (i.e. the seriousness of the charge and the proposed penalty) to the detriment of all others. The Court of Appeal took a broader consideration to the factors and noted that while the allegation(s) in question could have a potential impact on Mr McKelvey’s employment with Irish Rail, reputation and future employment too but there were no factual or legal complexities identified which he would not be in a position to adequately address himself with the assistance of a union representative.

    Implications for Employers

    Taking the above into consideration, Employers should now be cognisant of all three precedent case laws in this area and the effects thereof when considering carrying out an internal investigation, and particularly the right to legal representation throughout. The decision of the most recent case [Irish Rail v Barry McKelvey, 2018] is a strong endorsement of Burns as the leading authority and re-introduces a welcomed level of practicality to an employment investigation process. The Court of Appeal also gave comfort to Employers who will once again be able to confidently respond to such requests in the knowledge that the Burns test will apply, and indicated in this case that such employment processes should not “ape” court proceedings which we believe can be deemed as further reassurance for Employers too.

    Conclusion

    Workplace investigations have always been present and although there have been recent changes in the areas, we know that key factors for such a process is to ensure that the Employee is formally made aware of the allegation(s) made against him / her in advance, is allowed to respond to any allegation(s) being made against him / her before any decision is made, is allowed to be represented, the right to appeal any decision made and throughout for there to be an impartial investigator conducting the process. Paramount to such investigations are also the particular circumstances of each individual case being considered while still exhibiting the essential criteria of fair procedures and natural justice.

    Nonetheless, and more often than not, mistakes made in investigations are the result of a lack of experience and skill on the part of the internal investigator appointed by the Organisation. Any deviation from the requirements under the relevant Codes of Practice or effects from recent case law can call into question the legitimacy of an investigation process which may be to the detriment of an Organisation if it ends up at a Third Party. With that in mind, we strongly recommend that Organisations consider who they appoint as an investigator in such situations and should they feel they do not have an appropriate and experience individual in-house to conduct such a process, then please contact the team at Adare Human Resource Management – info@adarehrm.ie / 01 5613594 to discuss how we can assist you.

  • Case Law Reviewed under the WRC

    by Hayleigh Ahearne
    Apr 02, 2019
    In this month’s newsletter the team at Adare Human Resource Management consider in detail a number of cases as adjudicated under the Workplace Relations Commission.

     

    Complainant awarded €4,000 even though there was a genuine redundancy situation

    Adjudication Reference: ADJ-00015257

    Summary of Complainants Case:

    The Complainant began employment as Holiday Homes Manager in May 2003. On the 15th January 2018, she was informed that she was being made redundant. Various meetings between the parties followed culminating in a final letter of Redundancy on the 30th January 2018.

    The Complainant alleged that the redundancy decision had been taken before the 15th January 2018 and no efforts were made to consider other roles in the Organisation.

    At the time (January 2018) the Complainant was the only Employee to be made redundant. It was alleged that the Complainant’s age (post 60 years of age) and having a permanent contract were major factors mitigating against her.

    Furthermore, other Employees have since been recruited post the Complainant’s redundancy and the job role of the Complainant has been filled by these personnel with little or no consultation with the Complainant.

    Summary of Respondent’s Case:

    The Respondent is a large Midlands based Hotel and Spa Centre. At the time of the redundancy, sixteen homes were supported down from a high of some 60 in the past.

    In January 2018, the Respondent decided that the best operational efficiency to be achieved was to transfer the Holiday Homes operation to the general Accommodation Department of the main Hotel.

    As a result, the position of Holiday Homes Manager was at risk of redundancy. This was communicated to the Complainant at a meeting on the 15th January 2018 and followed up with a letter of the same date. The Complainant was advised to apply for other positions that might be available within the Complex. A meeting took place with the Complainant on the 18th January 2018 attended by the General manger and the HR Manager. Although advised of her representational rights the Complainant attended alone. Details were provided of current vacancies and a draft given of her redundancy entitlements.

    Further meetings took place on the 23rd and the 25th January 2018 where alternatives were considered. The Complainant did not really engage with this stage of the process and the Respondent issued a letter on the 30th January 2018 confirming the redundancy. An offer of a formal appeal against the decision was included in the letter also.

    Legislation:

    Key pieces of law in this case are primarily the Unfair Dismissal Act, 1977, followed by SI 146 of 2000 - Statutory Code of Practice on Grievance and Disciplinary Procedures, the Rules of Natural Justice & Legal Precedents and for guidance the Redundancy Payments Act, 1967.

    The lawful reasons for dismissal are set out in Section 6(4) of the Act of 1977.

    “Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed not to be an unfair dismissal, if it results wholly or mainly from one of more of the following:

    (a) Capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do.

    (b) The conduct of the employee

    (c) Redundancy

    Section 6(7) of the Act permits

    “(7) Without prejudice to the generality of subsection (1) of this section, in determining if a   dismissal is an unfair dismissal, regard may be had, if the rights commissioner, the Tribunal or the Circuit Court, as the case may be, considers it appropriate to do so—

    (a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, 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 referred to in section 14 (1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7 (2) of this Act.”.

    It follows that in order for an employer to justify a redundancy, it must show that there was:

    1. A genuine Redundancy
    2. There was a fair selection.
    3. Employer acted reasonably in all the circumstances.
    4. Fairness and Procedures / Individual Redundancies/ Rights to Consultations

    Decision:

    Having considered all the evidence, it was deemed that there was a genuine redundancy situation on business grounds regarding a full-time permanent Manager role in the Holiday Homes Department.

    The manner of the redundancy for the Complainant was handled by the Respondent and was lacking in the areas of full consultation of all other possible roles in the Complex. The Complainant was a long-standing Employee with a wide range of possible work skills in other areas.

    However, she did not avail of the opportunity to appeal her redundancy despite having legal advice at that time. This was not helpful to her claim.

    To conclude, an Unfair Dismissal is allowed on procedural grounds, but the redress must be of a lesser amount. On purely procedural grounds the claim for Unfair Dismissal is upheld. A redress a sum of €4,000 (being €20,000, less €16,000 already paid as redundancy) is awarded to the Complainant. The proper taxation of this award is to be considered in consultation with the Revenue Commissioners.

    Adare Human Resource Management Commentary:

    Having a genuine reason to instigate redundancies and following a fair process is vital for Employers who want to avoid any potential claims from their Employees.

    Section 7(2)(a) of the Redundancy Payments Acts outlines five grounds under which a redundancy can be deemed as genuine.

    • Employer has ceased or intends to cease to carry on the business.
    • Requirements of the business for the employee to carry out work of a particular kind, has ceased or diminished.
    • Employer decides to carry out the business with fewer or no employees.
    • Employer decides work being done is to be done in a different manner, for which the employee is not qualified or trained to do.
    • Employer decides that the work being done is to be done by a person who is capable of doing other work for which the employee is not sufficiently qualified to do.

    If your Organisation deems to have one of the five grounds outlined above, Employers are still obliged to follow fair procedures when it comes to making Employee(s) redundant.

    In any given case, it is likely to require a valid business case for redundancy which Employees can comment on, fair selection, consideration of alternatives to redundancy, a period of engagement / consultation with the affected Employees and an avenue of appeal.

    ____________________________________________________________________________________________________________

     

    Car Mechanic successfully wins case after Employer failed to repay IOU’s

    Adjudication Reference: ADJ-00015419

    Summary of Complainant’s Case:

    The Complainant was employed from 27th February 2017 to 12th August 2017 as a Car Mechanic. During this time, he was not given any written statement of terms of employment and was paid €600 cash net per week.

    He requested a written contract of employment on a number of occasions. The Complainant says his wages were not paid, and there were deductions made without notice which were not his fault in the last few weeks of his employment.

    He was not paid his wages on 2 occasions, overtime, annual leave and bank holidays. He has an IOU from the Company for €560 cash, and he was owed another €50 which was not included in the IOU also.

    He worked 48 hours per week and regularly completed overtime of 3 or 4 hours. He is currently owed €175 for overtime and was forced to leave due to non-payment.

    There was a dispute with a customer over the price of repairs and the client would not pay for repairs. The quote given was not correct. There was a second incident where the Complainant sent a client off 4 times as he was working on another car.

    The Company gave different reasons for the deductions, including pricing that he priced the job wrong, and that there was no money in the business. The Complainant’s holidays were not paid either and he had to leave employment as he was not paid €900 for his last 2 weeks of work.

    Summary of Respondent’s Case:

    The Respondent requested an adjournment of the hearing which was refused due to his co-owner being abroad.

    He was not aware that he is obliged to furnish a statement of terms of employment in writing. This was not requested from him and he was not aware if this was requested from his co-owner.

    The Respondent says the Complainant was employed on a part-time basis for only 3 half days per week. The Complainant is a personal friend of the other co-owner. As part of the arrangement the Complainant who had his own customers could use the garage, lift and tools, without charge. He worked overtime on his own customers cars not on the Company’s customers cars. Payment of overtime was never agreed.

    The Respondent says it is incorrect that deductions were made due to the incident with the client. The quote given for the work was €130 but €370 was requested. The client only paid €130 as a result. The Complainant was not penalised but received a third warning, and advised that he will be demoted and not allowed use the garage as a result. In addition, the Complainant had an argument with a client on the previous day. The Respondent says an official warning was given, but the Complainant still got his full salary.

    On 6th August 2017 the Respondent said the Complainant did not turn up for work. The client had to be cancelled. No notice of his resignation was given to the Company.

    Legislation:

    Section 3 of the Terms of Employment (Information) Act 1994 requires an Employer to provide a written statement of terms of employment to an Employee within 2 months of employment. This is a continuing duty and there is no evidence of compliance with this duty by the Employer.

    Under Section 6 of the Unfair Dismissals Act 1977-2015, the worker claims he has been constructively dismissed under Section 1 of the Act. This defines “dismissal” in relation to an employee as:

    “the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee 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”.

    In a claim of constructive dismissal, the burden of proof is on the Employee to prove on the balance of probabilities that firstly the Employer has breached his contract and as a result the Employee is entitled to resign, or secondly that it is reasonable for the Employee to resign given the conduct of the Employer.

    Decision:

    In light of the evidence provided, the complaint is well founded and the Respondent is directed to pay a sum of €585.60 euro which is 4 weeks remuneration as compensation for the failure to provide the Complainant with a written statement of terms of employment.

    Furthermore, it was deemed that the Complainant was constructively dismissed, therefore payment of 4 weeks wages of €146.40 (net), total €585.60 euro as compensation for dismissal, together with arrears of wages of €610, unpaid overtime of €175, one bank holiday of €50, and payment in respect of annual leave of €365.20, total sum of €1,785.80 to pay by the Respondent.

    Adare Human Resource Management Commentary:

    Constructive dismissal can be viewed as the equivalent of an Employer unfairly dismissing an Employee. Unlike the rest of the unfair dismissal cases, the burden of proof rests with the Employee. Employees must prove that they had no option but to terminate their contract and that their decision to leave was reasonable.

    Claims for constructive dismissal are generally based upon two tests: the contract test and the reasonableness test.

    The contract test evaluates whether the Employee's resignation arose as a consequence of a breach of contract by the Employer, and the reasonableness test evaluates whether the actions of the Employer were so unreasonable that the Employee was left with no option but to resign.

    In assessing an Employer's conduct, the following are considered:

    • Employers words, actions and responses [if any],
    • The work environment created by the employer
    • Failure to comply with a fundamental term of the contract of employment,
    • Failure to adequately respond to concerns or grievances raised by an employee,
    • Failure to exhaust employers’ own procedures for dealing with an employee's concerns or grievances,
    • Failure to encourage an employee to have recourse to such procedures
    • Whether there was a genuine attempt made to deal with the concerns of the employee.

     

    ____________________________________________________________________________________________________________

     

    Individual successfully deemed to be an Employee and thus wins Payment of Wages case

    Adjudication Reference: ADJ-00016860

    Summary of Complainant’s Case:

    The Complainant commenced employment as a Business Development Manager in November 2017 and was paid €23,500 per annum. He sourced Indian tea and Malaysian fruit based in a warehouse and also worked from home.

    The Complainant said he agreed to a lower salary as he wished to develop a long-term role. During the course of his employment, he asked for an increase in pay. There were delays in paying him and he asked for the money in April 2018. The Respondent provided him with two cheques and dismissed the Complainant. The Respondent paid €2,700 in cash and €3,800 in cheques to the Complainant, but the cheques bounced.

    The Complainant outlined that the Respondent had not stated in an email that the €3,800 was to buy goods. The Respondent did pay him €3,800 in two exact amounts of €1,900. The Complainant said that he was the Respondent’s Employee, pointing to his work email address and his business card as evidence of this relationship. The Respondent also introduced the Complainant as their Business Development Manager at the hearing.

    Summary of Respondent’s Case:

    The Director of the Company, attending for the Respondent, outlined that he met the Complainant via his son. The Respondent employed one or two students at peak times. However, he claims, he never employed the Complainant.

    The Respondent asked the Complainant to do some merchandising work, for example the logo, flyers etc. for which he used his own laptop. While the Director drafted the employment letter, this was never issued as he was not comfortable.

    The Respondent moved to a larger warehouse in October 2017 and the Complainant attended for work there. The Complainant was freelance and did not have an employment contract. He had asked the Respondent to sign the employment contract to assist him in India.

    The Respondent had given the Complainant the cheques to purchase goods. The cheques were stopped as the Respondent had asked for the goods to be sent first. In reply to the Complainant, the Respondent outlined that the Complainant had misrepresented he could blend a tea in India and they sought to match Irish breakfast tea. The Complainant had introduced himself as freelance and charged the Respondent for printing and graphic design work.

    Legislation:

    The relevant law in this instance is the Payment of Wages Act.

    The ‘wages’ within Section 41 of the Workplace Relations Act 2015 requires to consider the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

    The payment of wages in the employment contract is governed by the Payment of Wages Act, 1991 and this piece of legislation stipulates that wages be paid by cheque, cash etc.

    Decision:

    The main question is whether the Complainant was an Employee of the Respondent, such that to entitle him to redress pursuant to the Payment of Wages Act.

    Having considered the evidence, the Complainant was found an Employee of the Respondent. The evidence indicates that, as exhibited by his emails, the Complainant worked for the Respondent in developing import/export ventures and other business opportunities. The Complainant was integrated into the Respondent, i.e. had an email address provided by the Respondent and worked in the Respondent warehouse. It is not disputed that the Respondent gave the Complainant two cheques of €1,900, which bounced.

    The Payment of Wages Act is well founded and the Respondent shall pay to the Complainant a redress of €3,800.

    Adare Human Resource Management Commentary:

    There is a legal difference between what is known as a 'contract of service' and a ‘contract for service’.

    A contract of employment applies to an employee-employer relationship. A contract for service applies in the case of an independent or self-employed contractor engaged in services provided to an Organisation.

    A worker's employment status is not a matter of choice. It depends on the terms and conditions of the job. While all the following factors may not apply, an individual is deemed to be an employee if:

    •     Under control of another person (employer)
    •     Supply their labour only
    •     Cannot subcontract the work
    •     Mutuality of obligation to offer work and perform work
    •     Do not supply equipment/materials for the job
    •     Receive fixed hourly/weekly/monthly wages
    •     Entitled to sick pay/holiday pay etc
    •     Employer provides insurance cover
    •     Work set number of hours per week
    •     Employer deducts tax from wages under PAYE

    An individual is deemed to be self-employed if:

    • Own their own business
    • Are exposed to financial risk
    • Can subcontract the work
    • No mutuality of obligation
    • Supply necessary equipment for the job
    • Cost and agree a price for the job
    • Not entitled to paid leave
    • Provide their own insurance cover
    • Control their own hours in fulfilling job
    • Are registered for Self-Assessment and are required to file their own returns
  • Help Desk - April Fools – What Employers should be mindful of

    by Hayleigh Ahearne
    Apr 02, 2019

    As the month of April is upon us, Employers should be mindful of any possible “April Fools” jokes and / or pranks which may occur on 1st April 2019 within the workplace, and with that in mind all Employees should be fully aware of their obligations under the Organisation’s Dignity at Work Policy and/or Bullying and Harassment Policy.

    In a recent case (Adjudication Reference: ADJ-00010962), a Complainant was awarded €10,000 after he claimed was harassed by a fellow colleague in the workplace on the grounds of race.

    The Complainant [A Shop Worker] referred his complaint against his Employer [A Retailer] under the Employment Equality Acts 1998 – 2015 after a colleague of his played an April Fools prank on him in the workplace and due to the treatment he subsequently received from his Employer as a result of same.

    The Complainant (originally from Kenya) alleged that he was subject to regular racial name calling by a fellow colleague of his. The same colleague, on one occasion, phoned the in-house customer service desk and asked to speak to the Complainant directly. The colleague posed as a GNIB official and told the Complainant that he was living and working in Ireland illegally and that he must report to the Immigration Head Office immediately to answer questions about this.

    The Complainant sought permission from his Line Manager to leave work to attend the meeting in relation to his emigration status and which point this same colleague laughed at him and told him that he had in fact made that call and it was an April Fools prank.

    The Complainant was very distressed as a result of this incident and reported it to his Line Manager, who said there was nothing he could do about it and it was a personal matter made by a colleague on his personal mobile phone. The Complainant felt so upset after this conversation with his Line Manager that he decided to go to his GP. The Line Manager in question advised the Complainant that if this was in relation to the phone call which had occurred that he would not be paid for any time he missed by leaving work early to go to his GP. The Complainant stated that he attended his GP who certified him as being unfit for work on medical grounds due to the stress he was experiencing.

    As a result of these events, the Complainant lodged an official grievance which was investigated by the Personnel Manager in-house. The decision of the investigation, which was communicated in writing to the Complainant, outlined that an extensive investigation was carried out in line with Company procedures and that the colleague who allegedly called the Complainant racially and derogatory comments denied such allegations and explained that there would be “banter” going on between them, and thus the decision was to not uphold the complaint due to a lack of evidence.

    The Court found that the notes taken during the grievance process did not outline that the colleague in question denied these allegations, but that he wished to speak to his solicitor before answering questions in respect of such an allegation. When the Personnel Manager was questioned with regards to same, she stated she was sure, from memory, that the colleague denied the allegation but she conceded that there was no note, or written record of same. Furthermore, the Complainant submitted that the Personnel Manager did not consider whether on balance the racial name calling is likely to have happened given that the same perpetrator of harassment was behind the extremely inappropriate and racist joke played on the Complainant on the 1st of April. The Adjudication Officer outlined it would thus seem to be the case that the Personnel Manager reached a conclusion even though she received no evidence to contradict the allegations. In addition, the Complainant in this grievance also indicated that his Line Managers behaviour after the April Fools prank was inappropriate. The conclusion of this allegation was that the Line Manager agreed he overreacted and apologised for same, and it was not until he became aware of the full facts of the incident did he realise the seriousness of what had happened.

    The Complainant appealed the outcome of this grievance and a Manager from another store concluded the appeal process that the Line Manager should have handled the April Fools situation better but there was no evidence to uphold the racial name calling allegations.

    The Respondent when questioned on its Harassment Policy told the hearing that they did have a Dignity at Work Policy but did not produce one. The Complainant told the hearing that he had received a Handbook containing the Grievance Procedure and Dignity at Work Policy when he started work 9 years ago but he stated that he had received no training in these matters since then.

    The Adjudicator Officer concluded the hearing and outlined that it is clear from the evidence provided by the Complainant that this case was subject to a “prank” which caused him great upset and distress. This prank was clearly designed to upset the Complainant and to give him cause to worry about his immigration status, and with that in mind it was determined to have been racially motivated and the Complainant was singled out for this prank due to the fact the Complainant was a difference race than his colleagues, and compounded by the fact the Line Manager was unsympathetic when the Complainant asked to leave work early and go to his GP which is contrary to the Acts [Employment Equality] which outlines harassment is “any form of unwanted conduct related to any of the discriminatory grounds which has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. Such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.”

    The Adjudicator Officer also concluded that a thorough investigation and appeal process were not conducted into the Complainants allegations and the procedures were in fact flawed which is contrary of the Acts [Employment Equality] which “provides a defence for an employer if it can prove that it took reasonably practicable steps to prevent the person from harassing the victim, or any class of person which includes the victim, and to prevent the victim from being treated differently in the workplace, and, if and so far as any such treatment has occurred, to reverse its effects [my emphasis].”

    As a result, the Adjudication Officer found that the Complainant was harassed by the Respondent on the grounds of race, and that the award should be effective, proportionate and dissuasive and the sum of €10,000 was considered equitable in the case.

    A copy of the full case can be found here from the Workplace Relations Commissions website. For further queries please contact the team at Adare Human Resource Management – info@adarehrm.ie / 01 5613594

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

    by Hayleigh Ahearne
    Apr 02, 2019

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

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

    Date: Monday 8th April 2019

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

    Invitation: Click here to view the full invitation. 

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

     

    Pricing:

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

     

    To find out more about this event, click here.

     


  • Vacancies - HR Consultants (Associate or Contract Basis)

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

    Specialisms Required:

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

    Equality and Diversity Consultants:

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

    Experience Required:

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

    Compensation & Benefits / Rewards & Recognition Consultants:

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

    Experience Required:

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

    Editor:

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

    Experience Required:

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

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

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

    Experience Required:

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

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

    Location: Flexible

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

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

    by Hayleigh Ahearne
    Mar 05, 2019

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

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

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

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

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

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

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

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

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

    Case Law:

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

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

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

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

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

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

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

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

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

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

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

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

    The reasonable test was expressed as:

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

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

    Conclusion:

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

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

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

  • Case Law Reviewed under the WRC

    by Hayleigh Ahearne
    Mar 05, 2019

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

     

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

    Adjudication Reference: ADJ-00012840

    Summary of Complainants Case:

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

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

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

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

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

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

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

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

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

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

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

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

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

    Summary of Respondent’s Case:

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

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

    The Respondent’s Handbook provides:

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

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

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

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

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

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

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

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

    Legislation:

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

    Decision:

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

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

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

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

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

    Adare Human Resource Management Commentary:

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

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

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

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

     

    ____________________________________________________________________________________________________________

     

    Complainant awarded compensation after the Respondent ended Fixed Term Contract

    Adjudication Reference: ADJ-00016404

    Summary of Complainant’s Case:

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

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

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

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

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

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

    Summary of Respondent’s Case:

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

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

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

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

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

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

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

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

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

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

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

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

    Legislation:

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

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

    Natural justice has to be paramount.

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

    Decision:

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

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

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

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

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

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

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

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

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

    Adare Human Resource Management Commentary:

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

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

     

    ____________________________________________________________________________________________________________

    Complainant successful after being dismissed whilst on sick leave

    Adjudication Reference: ADJ-00011266

    Summary of Complainant’s Case:

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

    He claims he was unfairly dismissed.

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

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

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

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

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

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

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

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

    Summary of Respondent’s Case:

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

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

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

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

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

    They detailed that he never provided them with sick certs.

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

    Legislation:

    Pursuant to Section 6 of the Unfair Dismissals Act 1997 as amended, the dismissal of an Employee shall be deemed for the purposes of this Act to be an unfair dismissal unless, having regard to all the circumstances, there are substantial grounds justifying the dismissal. The burden of proof is firmly on the Respondent.

    Decision:

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

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

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

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

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

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

    Adare Human Resource Management Commentary:

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

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

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

    by Hayleigh Ahearne
    Mar 05, 2019

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

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

    a)       A paid day off on that day,

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

    c)       An additional day of annual leave,

    d)      An additional day’s pay.

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

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

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

    Scenario examples:

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

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

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

    by Hayleigh Ahearne
    Mar 05, 2019

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

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

    Date: Monday 8th April 2019

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

    Invitation: Click here to view the full invitation. 

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

     

    Pricing:

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

     

    To find out more about this event, click here.