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Newsletter Article

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

    by Hayleigh Ahearne
    Nov 05, 2018

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

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

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

    The causes of the Gender Pay Gap

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

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

    Gender Pay Gap Reporting

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

    National HR Barometer Survey

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

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

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

    Necessary Calculations for Gender Pay Gap

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

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

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

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

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

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

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

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

    Consequences for non-compliance with the reporting

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

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

    Steps that Irish Organisations should be taking now to prepare:

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

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

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

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

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

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

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

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

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

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

    Conclusion

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

    Adare Human Resource Management can help you to:

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

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

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

    Adjudication Reference: ADJ-00014639

    Summary of Complainant’s Case:

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

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

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

    Summary of Respondent’s Case:

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

    Legislation

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

    Decision:

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

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

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

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

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

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

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

    Adare Human Resource Management Commentary:

    The Code of Practice on Grievance and Disciplinary procedures, SI 146/2000, sets out principles which must be adhered to in any disciplinary situation. It sets out the rights of an Employee which must be upheld throughout the disciplinary procedure. A breach of the Code of Practice may lead to any dismissal being deemed to be procedurally unfair.

    General principles set out in the Code:

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

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

    -          The Employee must be afforded an opportunity to respond.

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

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

    • It may be appropriate to provide written copies of complaints or allegations, revealing the source of same and allowing the Employee to confront and question any witness/es.
    • The consequences of an Employee’s departure from the rules or expectations of the Employer should be explained in policy and procedure, particularly those that may warrant dismissal or suspension.
    • Disciplinary action may include a verbal warning, a 1st written warning, a final written warning, demotion, suspension without pay, transfer, other action short of dismissal and dismissal. 
    • Steps in the procedure should generally be progressive, however it is acknowledged that in certain situations an issue may need to be escalated to later stages of the procedure without recourse to the earlier stages of the procedure. 
    • An Employee may be suspended on full pay pending the outcome of an investigation.
    • The procedure should set out levels of responsibility in terms of who will apply various stages of the procedure.
    • Warnings should be removed from the Employee file after a specified period, and the Employee advised of same.
    • Adequate records must be kept in relation to disciplinary situations.

    ____________________________________________________________________________________________________________

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

    Adjudication Reference: ADJ-00012853

    Summary of Complainant’s Case:

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

    Summary of Respondent’s Case:

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

    Legislation:

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

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

    Decision:

    CA-00017087-001 – Unfair Dismissals Act 1977

    Preliminary Argument

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

    Section 1 of the Act defines an employee as:

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

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

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

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

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

    Adare Human Resource Management Commentary:

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

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

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

    ____________________________________________________________________________________________________________

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

    Adjudication Reference: ADJ-00008812

    Summary of Complainant’s Case:

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

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

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

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

    Summary of Respondent’s Case:

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

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

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

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

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

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

    Legislation

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

    Decision

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

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

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

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

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

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

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

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

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

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

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

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

    Subject to the provisions of this section, the dismissal of an Employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the decision.

    Section 6(7) of the Act states:

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

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

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

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

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

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

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

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

    Section 7(2) of the Act states:

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

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

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

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

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

    Adare Human Resource Management Commentary:

    The Code of Practice requires that the disciplinary procedure be applied progressively where appropriate, and that greater sanctions may be imposed over time. Where the situation arises that the Employer wishes to skip steps of the procedure, care must be taken to ensure that a) this is being done consistently with previous situations of a similar nature and b) that the Employee could reasonably have been expected to know that the issue was so serious as to warrant the Employer skipping steps in the procedure.

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

    • Could the Employee have reasonably known that the conduct would warrant dismissal, for example was this stated in a policy related to the incident, and was that policy communicated to the Employee?
    • Have other Employees been dismissed in the same circumstances?
    • Is there sufficient evidence to demonstrate that, on the balance of probabilities, the Employee committed the offence?
    • Has fair account been taken of the mitigating circumstances, if any, that have been presented by the Employee?
    If the answer to any of the above questions is “no”, then dismissal may not be an appropriate sanction to impose on the Employee.
  • Help Desk - The Importance of effectively utilising the Probation Period

    by Hayleigh Ahearne
    Nov 05, 2018

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

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

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

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

    How the probation period / cycle works?

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

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

    The recommended process should follow the below steps:

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

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

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

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

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

    Importance / Benefits of Probationary Period

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

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

    Unfair Dismissals Acts

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

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

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

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

    Disciplinary Procedure

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

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

    This can include:

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

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

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

    Bringing an Employment Claim on Probation

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

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

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

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

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

    Conclusion

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

  • Vacancy - Business Development Executive

    by Hayleigh Ahearne
    Nov 05, 2018

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

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

    View the full details of the Role here.

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

    by Hayleigh Ahearne
    Nov 05, 2018

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

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

    The Parties & The Argument

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

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

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

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

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

    Court Points & Findings

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

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

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

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

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

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

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

    And further commented: -

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

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

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

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

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

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

    by Hayleigh Ahearne
    Nov 05, 2018

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

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

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

    HSE Follow Up

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

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

    Freedom of Information Concerning Pay Restoration Applications

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

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

  • Working Time – Getting and Staying Compliant

    by Hayleigh Ahearne
    Oct 01, 2018

    The Organisation of Working Time Act is an important piece of legislation for Employers. It sets out the main requirements for Employees in the way of rest periods, maximum working time, break times, Sunday working, night workers and holidays. This article will discuss the legislation and what Organisations need to be cognisant of to ensure that they stay or become compliant with the requirements of the Organisation of Working Time Act.

    Break entitlements for all Employees:

    The Act states that Employees who work less than four and a half hours are not entitled to a break, however working between 4.5 to 6 hours entitles Employees to a minimum break of 15 minutes. Working longer than 6 hours at a time entitles Employees to a break of 30 minutes. Organisations should note that these breaks must be taken during the working day, and Employees are not permitted to take these breaks at the end of the working day so that they finish earlier. Organisations should further note there is no obligation to pay for any breaks during the day, unless it is otherwise agreed in the contract of employment.

    Minimum Daily and Weekly Rest Periods:

    All Employees, except those excluded by legislation, are entitled to a minimum daily rest period of 11 hours consecutive rest per 24 hour period during which he/she works.

    In addition to this, an Employee is also entitled to at least one period of 24 hours consecutive rest in any 7 day period. By legislation, this should be preceded by a daily rest period of 11 hours, thereby allowing one uninterrupted 35 hour rest period per week.

    Where it is not possible to provide such a weekly rest period over a 7 day period, then the Employee may be afforded the equivalent of 48 hours rest in a 14 day period. This will again be preceded by a daily rest period, permitting 59 hours consecutive rest.

    Unless stated in the contract of employment, it is assumed that the weekly rest period will be provided on a Sunday. Therefore, where an Employee is required to be available for work on a Sunday, it is necessary to include this requirement in the contract of employment.

    The important exemptions to be aware of in respect of these entitlements relate to shift workers who cannot avail of a rest period due to shift change, or anyone employed in activities consisting of periods of work spread out over the day, e.g. a chef working split shifts over the morning and evening.

    Where a collective agreement applies to your Organisation, then the collective agreement may supersede the legislation.

    Reference periods

    A reference period is a consecutive period of time that does not include the following:

    • any period of statutory annual leave;
    • any period of sick leave;
    • leave granted under the Maternity Protection Acts, the Paternity Leave Acts, the Adoptive Leave Acts, the Parental Leave Acts including Force Majeure Leave.

    Four-month reference period - Weekly working time can be calculated over a basic reference period of four months, this applies to all activities in general.

    Six-month reference period - A six-month reference period can be utilised if the Organisation or Employee is:

    • involved in an activity that is exempted by Ministerial regulation under the General Exemption,
    • where the weekly working hours may vary on a seasonal basis.

    Up to 12-month reference period - The reference period may be extended up to a period of 12-months where this is specified in a registered collective agreement.

    A non-unionised employment cannot average over a period greater than four months, unless covered by an exemption in the General Exemptions, when it then may avail of a six-month averaging period. The 12-month averaging period cannot be applied by non-unionised employments.

    Sunday Working and Premium Payments:

    As referred to above, it is assumed in most Organisations that the weekly rest period will be provided on a Sunday. Therefore, unless agreed otherwise with an Employee in their contract of employment, an Employee may not be required to work on a Sunday without agreement. Where an Employee is to be required to work on a Sunday, either from time to time, or on a regular basis, this should be stated in the contract of employment to ensure that no dispute arises at a later time.

    An Employee who is required to work on a Sunday must be compensated in one of the following manners:

    • payment of a reasonable allowance for the day, and/or
    • payment of an increased rate of pay for the Sunday, and/or
    • granting paid leave in order to compensate for the requirement to work on a Sunday.

    An Employer may incorporate this benefit into the ordinary payment of an Employee who is required to work on a Sunday if they so wish. However, this must be done in such a manner that the Employer can demonstrate that the Sunday worker is being paid an additional rate over other comparable Employees who are not require to work on a Sunday.

    Night Workers:

    Persons working at night are specifically protected under the legislation, and have additional rights over other Employees. A night worker is defined as an Employee who normally works at least 3 hours of their working time between midnight and 7am the following morning, where night work equates to 50% of their annual working time.

    With regard to their maximum working week, night workers cannot be required to work in excess of 48 hours in a 7 day period, averaged over a reference period of 2 months. Where the night worker is involved in work which involves special hazards or a heavy physical or mental strain, then there is an absolute limit on working hours. In such cases, the Employee may only work 8 hours in a 24 hour period during which they perform night work.

    Safety Regulations for Night Workers:

    Health and safety regulations place obligations on Employers employing night workers to carry out a risk assessment, taking account of:

    • the specific effects and hazards of night work; and
    • the risks to the safety and health of the Employee concerned that relate to the work that a night worker is employed to do.

    The assessment should determine whether that work involves special hazards or a heavy physical or mental strain. Before employing a person to work nights an Employer should ensure that a health assessment is carried out. A health assessment should also be carried out at regular intervals during the period the person continues to be a night worker.

    If an Employee who is employed to do night work becomes ill and the illness is connected with the fact that they carry out night work then the Employer shall, wherever possible, assign the Employee to suitable work that does not involve night work. Examples of such ailments that may be caused or exacerbated by night working include chronic depression, insomnia and diabetes.

    Double Employment and The Maximum Working Week:

    The Organisation of Working Time Act sets out that an Employee who holds more than one employment must still adhere to the provisions of the Act related to the maximum working week. Where there is a breach of this requirement, then both the Employer and Employee are guilty of an offence. For example, an Employee who is employed to work in an office for 39 hours a week, and who also works a further 10 hours per week in a pub will breach the Act. Either, or both, Employer(s) could be found guilty of an offence under the Act in permitting the Employee to be employed in excess of the maximum working week.

    In order for an Employer to avoid liability in these circumstances, the Employer must be capable of demonstrating that they either could not reasonably have known that the Employee was working for another Employer, or that they could not have known the hours that the Employee had been working. Therefore, it is recommended that Employers have in place a policy requiring the Employee to seek approval to hold a second employment, and where permission is granted, to record and monitor working hours in the second employment to ensure that no breaches have occurred.

    Working Time Records:

    The Organisation of Working Time Act provides that an Employer should keep records in such a form that shows that the provisions of the Act are being complied with in relation to the Employee, and those records must be retained by the Employer for 3 years from the date of their making. These records must be kept at the premises where the Employee works, or if the Employee works at two or more locations, the premises or place from which the activities that the Employee is employed to carry on are principally directed or controlled.

    Records which an Employer is obliged to retain:

    • Name of the Employee
    • Address of the Employee
    • Employee PPS numbers
    • Job Descriptions
    • Date of Commencement (If applicable, date of termination)
    • Statement of Terms and Conditions of Employment
    • Record of Annual Leave & Public Holidays taken by Employee 
    • Weekly Hours of work of Employees – Start time and Finish Times
    • Payroll Details – Gross Pay to Net Pay; Rate of pay per hour; Overtime; Deductions; Commission; Bonus & Service Charges and so forth

    General Exemptions

    The Organisation of Working Time (General Exemptions) Regulations, 1998 (S.I. No. 21 of 1998) prescribe, in accordance with Section 4(3) of the Organisation of Working Time Act 1997, that persons employed in the following activities shall be exempt from the application of sections 11, 12 and 13 of the Act which deal respectively with daily rest, rests and intervals at work and weekly rest:

    1. An activity in which the employee is regularly required by the employer to travel distances of significant length, either from his or her home to the workplace or from one workplace to another workplace.
    2. An activity of a security or surveillance nature the purpose of which is to protect persons or property and which requires the continuous presence of the employee at a particular place or places, and, in particular, the activities of a security guard, caretaker or security firm.
    3. An activity falling within a sector of the economy or in the public service;

    a) in which it is foreseeable that the rate at which production or the provision of services, as the case may be, takes place will vary significantly from time to time, or

    b) the nature of which is such that employees are directly involved in ensuring the continuity of production or the provision of services, as the case may be and, in particular, any of the following activities:

    i) the provision of services relating to the reception, treatment or care of persons in a residential institution, hospital or similar establishment

    ii) the provision of services at a harbour or airport

    iii) production in the press, radio, television, cinematographic, postal or telecommunications industries

    iv) the provision of ambulance, fire and civil protection services

    v) the production, transmission or distribution of gas, water or electricity

    vi) the collection of household refuse or the operation of an incineration plant

    vii) any industrial activity in which work cannot, by reason of considerations of a technical nature, be interrupted

    viii) research and development

    ix) agriculture

    x) tourism.

    Conclusion:

    This Organisation of Working Time Act is one that all Employers and Organisation need to be cognisant of. It sets out to protect the health, safety and welfare of Employees and sets out statutory rights for Employees in respect of Rest, Maximum Working Time and Holidays.

    The Act is further supported by regulations requiring an Employer to have in place systems for recording and monitoring employee working time.

    Working time includes any time that the Employee is at his/her Employer’s disposal and carrying on, or performing, the activities of his/her work. It is important to remember that working time is net working hours i.e. exclusive of breaks, on call or stand-by time.

  • Case Law - Reviewed under the WRC

    by Hayleigh Ahearne
    Oct 01, 2018
    In this month’s newsletter the team at Adare Human Resource Management consider in detail a number of cases as adjudicated under the Workplace Relations Commission.

    Employee awarded €2,000 as no process followed for dismissal

    Adjudication Reference: ADJ-00011405

    Summary of Complainant’s Case:

    The Complainant commenced employment on 7th May 2016 with the Respondent, working as a waitress or front of house member of staff in the Respondent’s restaurant. The Respondent did not provide her with a contract.

    Her hours varied from week to week. In the 2 weeks prior to her dismissal she advises that she worked many extra hours as the Respondent was on holidays.

    The Respondent on his return on the 2nd October 2017, having completed a shift together, told her that he was dismissing her with immediate effect, as Tripadvisor had posted a customer’s remark that the” red - haired waitress was abrupt”. She previously had no indication of either customer or management dissatisfaction with her work. She was not given any opportunity to respond or to appeal the decision to dismiss.

    Her P45 was sent to the incorrect address and her social welfare payments were thus delayed until the Respondent corrected this which 3 weeks following her dismissal he had not.

    The Respondent did offer to pay her minimum notice but only if she would sign a statement that she would take no further action. She refused to do this not wishing to compromise the pursuit of redress for the unfair dismissal.

    She believes that the real reason she was dismissed is because of the support she offered the Respondent’s partner in the break- up of that relationship.

    Her gross salary according to her P45 for the year ending 2017 was €6,985.

    The Complainant took up employment on the 12/12/17 as a front of house manager for a wellness Company. Her salary is €30,000.

    She is seeking payment for the notice period.

    Summary of Respondent’s Case:

    The Respondent disputes that her average hours were 30; her average hours were 20 a week or less.

    He accepts that she has no contract. Since the submission of her complaint she has been paid her notice and has been paid for the extra hours worked.

    The Respondent states that the dismissal occurred as set out by the Complainant; he received a complaint via Tripadvisor, 2 other complaints from customers and in addition, received about 20 complaints from other members of staff. He accepts that he did not inform the Complainant of these complaints.

    He states that the Complainant was not happy in the job, that other staff observed this and she also worked part-time with another Company.

    The Respondent has apologised to the Complainant for his behaviour.

    Legislation:

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

    “subject to the provisions of this section the dismissal of an Employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless having regard to all the circumstances there were substantial grounds justifying the dismissal “.

    Section 6(4) of the Act indicates what type of substantial grounds justify a dismissal and states “…………. the dismissal of an Employee shall be deemed for the purposes of the Act, not to be an unfair dismissal if it results wholly or mainly from one of the following

    a) ……………..

    b)     the conduct of the Employee”

    Decision:

    The Vox-pop type comment on trip advisor that “the waitress with the red hair was abrupt” and which the Respondent used as the reason to dismiss the Complainant is very far removed from the concept of “substantial grounds” as required by the Act. The use of this comment plus the alleged complaints by 20 fellow Employees to dismiss the Complainant, offered without the opportunity to examine the truthfulness of them is not far short of mob rule in the workplace.

    The Complainant’s description of how her dismissal occurred is not in dispute. There was no disciplinary procedure in the Respondent’s workplace. There was no process. No advance notice, no examination of the alleged complaints, no opportunity to be accompanied at the meeting which resulted in her dismissal, or right of appeal was afforded to the Complainant.

    The EAT in O ‘Halloran v Ballykisteen Hotel Ltd, UD 625/2013, a case involving a manager dismissed for allegedly interfering with Company property - he had removed a security camera and re-installed it and discussed it with his manger - held that no wrongdoing had taken place on the basis of the evidence submitted. They stated that “the Company had failed on almost every conceivable ground and showed a complete lack of respect for the Complainant as an Employee. Where was the fairness here or indeed the basis for any action at all. Where was the investigation? At what point was the claimant given an opportunity to be heard and defend himself? Where were the principles of natural justice adhered to?”

    Just as in the latter case the Complainant was deprived of any process conforming to the requirements of natural justice.

    The Adjudication Officer found no substantial grounds as set out in section 6(40 of the Act existed to warrant the dismissal. The Adjudication Officer found the dismissal to be also procedurally fair.

    The Respondent has apologised to the Complainant for his behaviour.

    The Complainant secured employment at a higher salary 10 week following her dismissal.

    The Adjudication Officer awarded the Complainant the full loss of 10 weeks salary which based on her P45 for 2017, plus the Respondents estimate of her hours equals €2000.

    The Adjudication Officer decided that the complaint is well founded.

    Comment:

    While arrangements for handling discipline and grievance may at times vary considerably from employment to employment, it is essential that the principles and procedures of the Code of Practice on Grievance and Disciplinary Procedures should apply. We can see from this case, that the Employer did not enter into any disciplinary process with Complainant and as a result, the dismissal was deemed to be unfair and the Employee was awarded compensation.

    ____________________________________________________________________________________________________________

     

    Employee with less than 12 months’ service awarded 2 months’ pay for unfair dismissal

    Adjudication Reference: ADJ-00012762

    Summary of Complainant’s Case:

    The Complainant submits that on the 31st December 2017, while shopping with her daughter she became unwell, collapsed and was taken to hospital. The Complainant’s sister rang the Respondent and told them that the Complainant would not be able attend work the following day.

    The Complainant subsequently attended her own doctor and on 3rd January informed the Respondent that she would return to work on the 4th January. On the 4th January the Complainant says she left a doctor’s note for her absence in her workplace.

    The Complainant attended work on the 6th January and was advised that a Fit to Return to Work Certificate was required. When the Complainant returned to work later that day, a discussion took place with a manager and she was told the discussion was not a disciplinary meeting but that it was just to gather the facts surrounding her absence. The Complainant was sent home.

    The Complainant was subsequently contacted by her Manager and told there would be a meeting on the 9th January. The reason for the meeting was, as told to the Complainant, because management did not believe the information she had given them or the reason she had given for being sick.

    The Complainant submits that the meeting of the 9th January only lasted seven minutes. She says her manager walked in, looked at her and said, “I think it best for us to part our separate ways now”.  The Complainant asked was she being dismissed to which her managed replied, “yes”.  She got no explanation for being dismissed when she asked for one. The Complainant left the meeting and did not hear from her Employer until she received her final pay slip and a letter of dismissal.

    In oral evidence, the Complainant stated that when she met with her managers on the 9th January she was told they did not believe her story about her absence, that they had checked with the shopping centre and the hospital and neither had any record of any incident or that she was a patient.  The managers, she said, kept saying, “I think we should part our ways”.  The meeting ended amicably, with the Complainant saying she enjoyed working with the Respondent and if they needed her in the future they should contact her.

    Summary of Respondent’s Case:

    The Respondent believes the termination of the Complainant’s employment relationship with them was mutually agreed and therefore not a dismissal.

    The Respondent submits that they were first alerted to the Complainant’s illness on Monday 1st January 2018 at 8.15 that day, when the on-duty manager received a phone call from a woman claiming to be the Complainant’s sister, claiming that they were standing around her hospital bed and that the Complainant had “done something stupid.”

    On the 2nd January the Complainant left a voice message with her Duty-manager saying she had been discharged from hospital.  Following this the Respondent decided to arrange a meeting with the Complainant for the 3rd January.

    The Respondent submits that at the meeting of the 3rd January the Complainant was asked to account for her absences in the run up to and post New Year. Regarding the absence of the 1st January, the Complainant told her managers that the shopping centre security had been notified of her collapse and that the emergency services had been called to bring her to hospital.  She continued by saying she had been treated in the hospital and was discharged on 2nd January.

    The Respondent submits that due to the inconsistencies in the Complainant’s explanation they asked her to get a Return to Work Certificate along with a doctor’s note to include certain pieces of information.

    On the 5th January the Complainant submitted a return to work cert dated 4th January, however this did not suffice as in the opinion of the Respondent it did not include the necessary information requested.

    As part of its investigation the Respondent contacted the shopping centre and the hospital and made enquiries about the Complainant. The Respondent contends that the shopping centre had no record of any such incident as described by the Complainant having taken place. The Respondent contends that the hospital also had no record of the Complainant having been a patient on the dates in question.

    A meeting was arranged for the 9th January to discuss the findings of the investigation made by the Respondent. The Complainant was told in advance that she could bring a third party.

    At the outset of this meeting the Respondent reiterated his disappointment at the stress and anxiety caused to staff believing that harm had come to the Complainant.  The Respondent submits that the Complainant did not refute any of the points put to her.  That being the case the Respondent put it to the Complainant “that given the situation that both parties found themselves in that they could both go their separate ways, to which the Complainant verbally agreed.”

    The Respondent at all times believed the Complainant’s employment had been ended by mutual consent.

    In oral evidence a witness for the Respondent stated that he thought the Complainant no longer wanted her job. He also stated that the Complainant had, at the time of the termination of her employment, received a Verbal Warning, with two more in process, for absences.

    The Respondent stated that he did not want to let the Complainant go as they are constantly short of staff; her departure created a problem.

    Regarding the meeting of 9th January, the Respondent stated that the Complainant had been made aware of her right of representation in advance.

    Legislation:

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

    Decision:

    This case is being brought under the Industrial Relations Acts as the Complainant does not have the required 12 months service for the Unfair Dismissals Act 1977. Nonetheless the requirements of Natural Justice apply and S.I. 146 of 2000 Code of Practice on Grievance and Disciplinary Issues can be referenced.

    It is also well accepted law that the role of the Adjudication Officer is not to reinvestigate a Dismissal or Appeal but to ensure that proper procedures were followed and that Natural Justice was paramount throughout. A Dismissal decision has to be seen to be within the range of reasonable decisions that an employer in a similar sector might take.

    In this case the Adjudication Officer found that a dismissal did take place. The Respondent may have had a genuine belief that the termination of the Complainant’s employment was by “mutual consent”, but when an employer says to an employee, “I think we should go our separate ways”, it is tantamount to saying, “you are dismissed”.

    So, two questions need to be answered to decide if this dismissal was unfair or not unfair. Firstly, was it reasonable for the Respondent to dismiss the Complainant based on the evidence it had regarding her absence on 1st January? Secondly, was the Complainant afforded fair procedure in the process leading up to the decision to dismiss her?

    In answer to the first question, the Adjudication Officer found that the Respondent was reasonable in deciding to end the employment of the Complainant due to the inconsistencies in her explanations regarding her absence on 1st January. The Adjudication Officer believed it was reasonable that such inconsistencies could lead to serious doubts about the integrity of the Complainant and were sufficient to break the required bond that must exist between Employer and Employee. At the meeting of the 9th January the Complainant did not refute any of the points made by the Respondent.

    In answer to the second question, the Adjudication Officer found that the Respondent was largely wanting in relation to the procedural aspects of the dismissal process.  The Respondent should have ensured that the Complainant was afforded all her rights, especially when it became clear that the issue could lead to her dismissal.  She was not warned sufficiently about the seriousness of the charge against her, she was not made aware of all her rights in advance of the meeting of 9th January. She was not granted an appeal.

    On account of the lack of proper procedures in this case the Adjudication Officer found overall that this was an unfair dismissal. However, the Complainant, through her own actions, did contribute to her dismissal.

    Given the short-length of service of the Complainant and her own contribution to her dismissal the Adjudication Officer recommend that the Respondent pay the Complainant a sum of €1,830 (approximately two months’ pay) in compensation in full and final settlement of the claim.

    Comment:

    Although this particular case was taken under a different legislation to the case referenced above, a similar issue was addressed, this is the ‘lack of procedure’ followed throughout the case. In both cases we saw that no process was followed by the Organisation prior to dismissing the Employee. This shows us the impact of ensuring that Organisations understand and follow procedures set out by the relevant code of practices prior to any decisions being made about the continuation of an Employees employment.

    ____________________________________________________________________________________________________________

     

    No Contract of Employment, notice of change of T’s and C’s and no public holiday payments made to Employee

    Adjudication Reference: ADJ-00012236

    Summary of Complainant’s Case:

    The Complainant was supposed to receive training in the sales aspect of her role but in fact was given very little training.

    In early August the Complainant’s hours were reduced from 25 hours to 10 hours without her agreement.

    The Complainant had discussions with the Director in relation to her position and was informed of the need to increase sales which involved the recruitment and placement of staff in the Health Service.

    On 19th September 2017 the Director informed the Complainant that her employment was to be terminated.

    The Complainant did not receive any pay for annual leave or Public Holidays.

    Summary of Respondent’s Case:

    The position for which the Complainant was recruited was part administration and part sales.

    After a few weeks the Director concluded that the Complainant was not competent in that role.

    The Director discussed the situation with the Complainant and advised her to look for another job.

    The Complainant was given time to do this and was put on reduced hours.

    Business was difficult and another member of staff was recruited to drive sales.

    After a number of weeks, the Complainant was given notice of the termination of her employment.

    Legislation:

    Terms of Employment (Information) Act, 1994 – 2014 - This legislation should be considered when looking at Terms and Conditions of Employment. In any case, under The Terms of Employment (Information) Act, 1994 – 2001, every Employee commencing employment after 16th May 1994 must be provided with a written statement of terms and conditions of employment within 2 months of their commencement with an Employer.

    Decision:

    The Respondent was operating in a specialised area involving the recruitment and placement of overseas personnel for the Health Service. The position for which the Complainant was recruited was a mixture of sales and administration. The Complainant’s experience was mostly in business administration and it is clear that training would be required to fulfil the specialised sales aspect of the job. The Adjudication Officer accepted that the Complainant’s account that what training was received was unstructured and sporadic.

    The Complainant did not receive a statement of her terms of employment. She did, however, receive a letter offering her the position for a trial period of 3 months. The letter also stated that she would work a 25-hour week at €12.00 per hour. There is disagreement between the parties as to the conversation that occurred at the beginning of August. The Respondent contends that the Complainant was informed that her performance was not of the standard required and that this related not only to her sales but also as regards administration. The Director at the hearing stated that he told the Complainant that she was not suitable and should look for another job. In order to allow her to do that the Director put her on short-time working.  The Complainant said that the conversation was to the effect that business was difficult but that if it picked up her hours could be increased. There was also a discussion on how reduced pricing and other measures might improve matters. There is no conflict on the fact that the Complainant’s hours were reduced to 10 hours per week. The Director accepted that no written notice regarding the reduction was issued to the Complainant. It is also accepted that another member of staff was recruited at this time. The Director sent an email to the Complainant on 14th September advising her that her employment would terminate on 29th September but for some reason the Complainant did not receive same and only became aware of this when verbally informed on 19th September. The Complainant told the Director that she was due holiday pay and left an addressed envelope in this regard. It would appear that there was some delay in issuing a cheque in respect of this matter due to that envelope being misplaced.  The cheque subsequently issued in December and the Complainant at the hearing withdrew the complaint regarding this matter.

    Section 3 of the Terms of Employment (Information) Act, 1994, requires that an employer issues a statement of terms of employment to an Employee within 2 months of the commencement of employment. Section 5(1) of the Act states:

    Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under Section 3,4 or 6, the employer shall notify the Employee in writing of the nature and date of the change as soon as may be thereafter, but not later than –

    (a)    1 month after the change takes effect…

    The Respondent failed to issue a statement of employment but there was no specific complaint in that regard before the Adjudication Officer. It is accepted that the Complainant was not given written notice of her change in hours and the failure by the Respondent in regard to their statutory obligation under Section 3 cannot be used as an excuse in regard to their further obligation under Section 5(1) of the Act.

    As regards the other complaint Section 21(1) of the Organisation of Working Time Act, 1997, states:

    Subject to the provisions of this section, an Employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely –

    (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

    Subsection 4 states:

    Subsection 1 shall not apply, as respects of a particular public holiday, to an Employee (not being an Employee who is a whole-time Employee) unless he or she has worked for the employer concerned at least 40 hours during the period of 5 weeks ending on the day before that public holiday.

    The only public holiday in question in this matter is the one that occurs on the first Monday in August and it is clear from the evidence before me that the Complainant qualifies for same and is therefore entitled to payment in that regard.

    Complaint No. CA-00016203-001:

    This is a complaint under the Terms of Employment (Information) Act, 1994. For the reasons stated above the Adjudication Officer found this complaint to be well founded and the Adjudication Officer ordered the Respondent to pay to the Complainant the sum of €475.00 in this regard.

    Complaint No. CA-00016203-002:

    This is a complaint under the Organisation of Working Time Act, 1997, in respect of non-payment of public holiday entitlement. For the reasons stated above the Adjudication Officer found this complaint to be well founded and the Adjudication Officer ordered the Respondent to pay to the Complainant the sum of €60.00.

    Complaint No. CA-00016203-003:

    This is a complaint under the Organisation of Working Time Act, 1997, in respect of payment for annual leave. This complaint was withdrawn at hearing.

    Adare Human Resource Management Commentary:

    The contract of employment is an agreement between the Employee and Employer regarding the terms and conditions applicable to that employment. It is recommended to put in place written terms and conditions of employment. The Terms of Employment (Information) Act, 1994 - 2014 sets out 13 pieces of information which must be provided to an Employee by way of a written statement of terms and conditions of employment.

    When the agreement is in writing there can be certainty of the agreed terms and conditions of employment. This can be invaluable where a dispute arises in relation to terms and conditions. Any terms that may have been agreed verbally can be confirmed in the contract. The contract sets out the Employer’s expectations as regards the Employee, i.e. to attend work for the specified times during the specified days, to perform their function and to conduct themselves appropriately. The Employer can agree terms with an Employee that may otherwise be difficult or illegal to enforce without agreement, e.g. the right to search an Employee or subject him/her to drug or alcohol testing.

    It is important that all Employers are aware that a full-time Employee is automatically entitled to a benefit in respect of a public holiday on commencement of employment. In order for a part-time Employee to be entitled to a benefit in respect of a public holiday, he/she must have worked a total of 40 hours or more over the preceding 5 weeks for their Employer.

  • Help Desk - The role of The WRC and The Labour Court

    by Hayleigh Ahearne
    Oct 01, 2018

    In the Adare Human Resource Management HR Barometer (series 2) National Survey, it was found just over a quarter (28%) of Organisations who experienced a dispute in 2017, had been referred to the Workplace Relations Commission or the Labour Court. It is not uncommon that in conjunction to these third party referrals, other internal less formal routes to resolving disputes were explored also, such as mediation. However, it is not always possible for Employers to resolve a dispute within the workplace or through mediation and it becomes formalised to the extent that it results in a third party referral.

    Workplace Relations Commission:

    The Workplace Relations Commission (WRC) is an independent, statutory body which was established on 1st October 2015 under the Workplace Relations Act 2015. It assumes the roles and functions previously carried out by the National Employment Rights Authority (NERA), Equality Tribunal (ET), Labour Relations Commission (LRC), Rights Commissioners Service (RCS), and the first-instance (Complaints and Referrals) functions of the Employment Appeals Tribunal (EAT).

    The Workplace Relations Commission (WRC) has responsibility for

    • promoting the improvement of workplace relations, and maintenance of good workplace relations,
    • promoting and encouraging compliance with relevant enactments,
    • providing guidance in relation to compliance with codes of practice approved under Section 20 of the Workplace Relations Act 2015,
    • conducting reviews of, and monitor developments as respects, workplace relations,
    • conducting or commissioning research into matters pertaining to workplace relations,
    • providing advice, information and the findings of research conducted by the Commission to joint labour committees and joint industrial councils,
    • advising and apprising the Minister in relation to the application of, and compliance with, relevant enactments, and
    • providing information to members of the public in relation to employment.

    The Commission’s core services include the inspection of employment rights compliance, the provision of information, the processing of employment agency and protection of young persons (employment) licences and the provision of mediation, conciliation, facilitation and advisory services.

    Adjudication Services:

    Adjudication Officers of the Workplace Relations Commission (WRC) are statutorily independent in their decision-making duties as they relate to adjudicating on complaints referred to them by the WRC Director General.

    The Adjudication Officer’s role is to hold a hearing where both parties are given an opportunity to be heard by the Adjudication Officer and to present any evidence relevant to the complaint. Hearings of the Workplace Relations Commission are held in private. However, complaints may, in certain instances, be disposed of by means of written procedure (i.e. without hearing). Parties may be accompanied and represented at hearings by a trade union official, an official of a body that, in the opinion of the Adjudication Officer, represents the interests of Employers, a practicing barrister or practicing solicitor or any other person, if the Adjudication Officer so permits.

    Over the course of 2017, a total 7,317 complaint applications were received by the Adjudication Services. These applications comprised 14,001 specific complaints, i.e., an average of nearly two separate employment legislation issues within each application. This represented a six per cent increase on 2016 overall. A total of 4,370 adjudication hearings were held in 2017. This represented an increase of 24 per cent on the 3,518 held in 2016.

    Advisory Service:

    The Workplace Relations Commission’s Advisory Service promotes good practice in the workplace by assisting and advising Organisations in all aspects of industrial relations in the workplace. It engages with Employers, Employees and their representatives to help them to develop effective industrial relations practices, procedures and structures. Such assistance could include reviewing or developing effective workplace procedures in areas such as grievance, discipline, communications and consultation.

    It facilitates joint management–staff forums to work through issues of mutual concern; for example, workplace change or difficult industrial relations issues.

    During 2017 a total of 9 interventions took place of which three were referred to the Labour Court for resolution.

    Conciliation Services:

    The Workplace Relations Commission’s (WRC) Conciliation Service is there to provide an impartial, fast and effective conciliation service operating to a uniformly high standard in both the public and private sectors.

    Conciliation is seen as a voluntary process. Therefore, the parties in dispute must agree to avail of this service to assist them in resolving their industrial relations differences. The WRC provides a conciliation service by making available Industrial Relations Officers or Conciliation Officers to chair the conciliation process. Participation in the conciliation process is voluntary, and so too are the outcomes. Solutions are reached only by consensus, whether by negotiation and agreements facilitated between the parties themselves, or by the parties agreeing to settlement terms proposed by the Conciliation Officer.

    In the event of a dispute not being resolved at Conciliation the matter may be referred, by agreement of all parties, to a full hearing of the Labour Court for determination.

    The Conciliation Service of the Commission played a key role in the resolution of challenging industrial relations conflict in 2017. Over the year, 942 disputes covering the private, semi-state and public sector were referred to the Service. Some 1,240 conciliation conferences were convened and an overall settlement rate of 84% was achieved.

    Mediation Services:

    The Workplace Relations Commission provides mediation to a range of service users. Mediation is a voluntary process of conflict prevention and resolution that allows the parties in dispute the opportunity to address and resolve their issues in a confidential and private environment.

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

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

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

    Mediation can be effective in some of the following situations:

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

    The delivery of ‘workplace’ mediation services saw an increase in requests for assistance of 50% over 2016 with 70 cases processed and provided. This mediation service is distinct from the complaint mediation service model. It is provided on ad-hoc basis and focuses primarily on assisting parties where issues involving interpersonal differences, difficulties in working together, breakdown in working relationship as well as issues arising from grievance and disciplinary procedure have developed.

    Inspection and Enforcement:

    Inspection and Enforcement Services monitor employment conditions to ensure compliance with and, where necessary, the enforcement of employment rights legislation. This includes redress for the Employees concerned and payment of any unpaid wages arising from breaches of employment rights.

    Over the course of 2017, the Service increasingly targeted its inspection campaigns at sectors and Employers considered to be high risk in terms of statutory employment rights transgressions. The Division carried out a total of 4,747 inspections, of which 2,741 (58%) were unannounced. These inspections related to some 99,259 Employees (an increase of 24,000 on 2016 and an average of almost 21 Employees per Employer inspection). Of the 4,747 Employers inspected, some 2,032 (43%) were found to be in breach of employment legislation to some degree. By far the most common breach was the failure to keep adequate employment records (62%) followed by employment permits irregularities at 404 (17%).

    The sectors that displayed a high degree of non-compliance were Contract Cleaning (78%), Agriculture (75%), Hair and Beauty (61%), Wholesale and Retail (61%), Food and Drink (58%) and Equine (56%).

    A total of €1.77m in unpaid wages was recovered for Employees during 2017 - an increase of €270,000 (18%) on 2016.

    The Labour Court:

    The Labour Court, is an almost unique institution globally in the context of State funded arrangements for the resolution of disputes between Employers and Workers. The Court has, since 1946, provided an industrial relations service whereby disputes which parties have been unable to resolve themselves or with the assistance of the Workplace Relations Commission can be referred to the Court for an ‘opinion’ in the form of a Recommendation of the Court which is not binding on the parties. Separately, since October 2015, the Court is the single appellate body for all complaints made under the body of employment law. That role gives the Court binding decision making functions in law. Such decisions of the Court can be appealed on a point of law to the High Court but otherwise are final and enforceable.

    The Court’s functions can be divided between those relating to industrial relations matters and those relating to the determination of appeals in matters of employment rights.

    Industrial Relations

    • Investigate trade disputes under the Industrial Relations Acts, 1946 to 2015,
    • Investigate, at the request of the Minister for Business, Enterprise and Innovation, trade disputes affecting the public interest, or conduct an enquiry into a trade dispute of special importance and report on its findings,
    • Hear appeals of Adjudication Officer’s recommendations/decisions made under the Industrial Relations Acts,
    • Establish Joint Labour Committees and decide on questions concerning their operation
    • Register Joint Industrial Councils,
    • Investigate complaints of breaches of codes of practice made under the Industrial Relations Act, 1990 (following consideration of the complaint by the Workplace Relations Commission)
    • Give its opinion as to the interpretation of a code of practice made under the Industrial Relations Act, 1990,
    • Investigate disputes (where negotiating arrangements are not in place) under the Industrial Relations (Amendment) Act, 2001 as amended by the Industrial Relations (Miscellaneous Provisions) Act, 2004 and the Industrial Relations (Amendment) Act 2015,
    • Register employment agreements,
    • Examine the terms and conditions of employment in a sector pursuant to Section 14 of the Industrial Relations (Amendment) Act 2015,
    • Grant exemptions from the obligation to pay the remuneration that would otherwise be payable under an Sectoral Employment Order (SEO) pursuant to Section 21 of the Industrial Relations (Amendment) Act 2015.

    Employment Rights

    • Hear all appeals of Adjudication Officer’s decisions under the various Employment Rights and Pension Acts enactments,
    • Issues determinations in regard to certain complaints of the non-implementation of Adjudication Officer’s decisions which were lodged with the Workplace Relations Commission before 1 October 2015,
    • Hear appeals of Non-discrimination Notices and Substantive Notices issued by the Equality Authority,
    • Approve working time agreements under the Organisation of Working Time Act, 1997,
    • Approve collective agreements regarding casual part-time employees under the Protection of Employees (Part-Time Work) Act, 2001.

    Headlines 2017

    In 2017, the Labour Court

    • Received 1,093 referrals;
    • Held 708 hearings;
    • Issued 530 Recommendations / Determinations / Decisions / Orders;
    • Investigated 152 cases that were settled prior to or at a hearing.

    In addition, 202 appeals were withdrawn by parties during 2017 prior to hearing.

    A further 141 cases were on hold at year end and 46 cases during the year were found upon referral to be outside the statutory time-limits for receipt of cases.

    Conclusion:

    Third parties have many benefits at times for both Employers and Employees. As we seen, the use of third parties during 2017 was high and increasing from previous years and seems to be continuing in that way at present. With this, when Organisations are seeking to use third parties, the most critical point is that Organisations are familiar with third party forums (WRC; Labour Court) and have the skills or access to the skills and knowledge to navigate these forums.

  • SIX WEEKS PAY PLUS STATUTORY IN REDUNDANCY DISPUTE

    by Hayleigh Ahearne
    Sep 24, 2018

    In a recent recommendation from the Labour Court involving a dispute between SIPTU and the Coca – Cola Company the Court recommended redundancy terms that on the face of it appear very generous but compared to earlier redundancy terms at the Company are significantly reduced, particularly when compared to 2007 redundancy terms.  Indeed, it is significant that within its recommendation the Court articulated the respective national economic differences comparable to 2007 and 2018, as well as respective expectations between now and then.  The dispute related to a union demand for the 2007 redundancy provisions in a context of the “orderly wind-down” of the Coca-Cola, Athy bottling plant.    

    Union Demand

    SIPTU sought what they said was an overall redundancy package that comprise of a total payment no less than the terms agreed with the union on the closure of the Drogheda plant in 2007, plus additional payments to cater for further education and training, medical cover, service awards and a wind-down payment of €15,000.  In addition SIPTU sought an agreement to include the “red-circling” of terms and conditions of employment for those employees at Athy opting to transfer to Ballina and a three-month “cooling off” period for workers who wish to transfer. The union  state these terms are “modest” and reflect the minimum their members should receive from the Company, citing that the Company is a part of the global business of who have recorded significant profits in 2017 and up to the second quarter of 2018.

    Employer View & Response
    The Company said it offered a redundancy package of six weeks’ pay per year of service, plus the statutory entitlement with an overall cap of 2.5 years of pay. The Company stated the redundancy package offered is at the top end of what is currently available in the market.  The Company insisted that workers who move to the Ballina site will transfer onto the Ballina terms and conditions except for salary which they will maintain, and service, which they will carry and a one-month “cooling-off period” would apply.  The Company concluded that it is not in a position to increase the offer due to structural changes in its global business.

    Considerations
    The union contends that the terms to be made available should mirror or exceed those agreed between the parties eleven years ago upon the closure of the Drogheda plant in 2007. The Employer contends that 80 personnel have been made redundant in the period since 2007 on terms which were different to and lesser than those terms.  The Court noted that neither party submitted that the 2007 terms should be reproduced. The union argues that they should be exceeded and the Company believes that they are in excess of what is justified at this time.

    2007 Terms

    The terms made available in 2007 were agreed directly between the parties. Those terms included but were not confined to an agreed payment of 9 weeks’ pay per year of service inclusive of statutory redundancy and pay in lieu of notice together with one week’s pay per year of service or €10,000 (whichever is the greater) in respect of an orderly ‘wind-down’.

    Court Attempts To Balance The Arguments

    The Court said, that while giving due consideration to the history of agreements between the parties as regards the terms to be paid in the event of redundancy, it must also consider the fact that agreements are concluded within the context of the time that they are reached. The Court stated that the 2007 agreement, while certainly not typical of trends or practice at the time, reflected the circumstances of that time both within the business and in the economy generally and that the parties did not agree in 2007 that the terms agreed would apply at all times in the future.

    The Court therefore, in making its Recommendation, takes due account of the terms made available as a result of the 2007 agreement and of what has happened since. The Court’s Recommendation is intended to set out terms which can be seen to be reasonable in the circumstances of such matters in 2018 while at the same time having due regard to the parties’ history of agreements as regards redundancy terms.  In all circumstances therefore, the Court recommended that the following terms should be made available in the context of the closure of the Athy plant:

    Those being made redundant to receive

    Recommended Redundancy Terms

    6 weeks’ pay per year of service plus statutory redundancy entitlement.  A cap of 2.5 years basic pay, shift and bonus to apply to the ex-gratia portion of this severance payment i.e. statutory redundancy entitlement to be excluded from the cap.

    Noting that in 2007 the Company agreed that the orderly wind-down of the plant justified a payment to each worker of €10,000 at minimum, the Court recommends that this amount should be paid to each worker in return for the orderly wind-down of the Athy plant.

    Also noting that in 2007 the Company agreed that all notice would be unworked and an amount would be paid in lieu of such notice, the Court recommended that payment be made in lieu of all notice on the closure of the Athy plant.

    That VHI, Life Assurance cover and company doctor scheme should extend for one year after redundancy.

    That each Employee made redundant should be entitled to claim an educational grant of €2,500 for vouched education or training undertaken by the employee.

    That service, for calculation of ex-gratia purposes, should be calculated so as to include all service in the direct employment of the Company and that a week’s pay should be calculated to include Basic pay, Shift and Bonus.

    In terms of those moving to the Ballina plant the Court recommended that these employees should retain their existing rate of pay in respect of a 39 hour week with a liability to work 42 hours (the additional three hours to be paid in addition) and should carry all service accrued to Ballina.  All other conditions of employment, including pension, should be as per the terms and conditions applying in the Ballina plant save for the following:  Accrued annual leave entitlement (including service leave) at date of transfer, which exceeds normal leave entitlements in Ballina should be retained by the employee for a period of two years after transfer. At the end of two years the total leave entitlement is to be in accordance with the arrangements applying to employees in Ballina.

    A person transferring to Ballina shall have a ‘cooling off’ period of three months during which he or she may decide to avail of redundancy as opposed to transferring definitively. The Company should apply this time limit flexibly having regard to individual circumstances.

    Collective Representation At The Ballina Plant

    The Court had been asked to make a recommendation as regards collective representation of transferred workers. The Court was also been made aware at the hearing of an impending case before the Court regarding collective representation generally in the Ballina plant. The Court stated that in these circumstances, it considers it inappropriate to make a recommendation on this aspect in advance of the impending hearing.

    In closing that Court noted that the parties have been engaged in discussions for a number of years regarding bonus calculation.  In this aspect of the dispute the Court recommended that because the plant is closing and the payment of bonus on this site will cease on closure, then calculations for 2018 and 2019, which will be the final years of bonus calculation, be executed on an equalised basis between general and other workers in Athy. This Court stressed that this recommendation is made only in the context of the closure of the Athy plant and is not a precedent for any other site or situation.

  • RETIREMENT CORRECT BUT “POORLY MANAGED” LEADS TO AWARD

    by Hayleigh Ahearne
    Sep 24, 2018

    In a recent finding under the Unfair Dismissals Act WRC Adjudication Officer Jim O'Connell found that in the particular circumstance where a termination of employment through retirement actually existed via the application of a collective agreement the manner of the execution of the retirement was such that an unfair dismissal occurred.

    The Issue

    The Respondent Employer submitted  that to be able to defend a compulsory retirement age claim, they must, in the first instance be able to establish that a normal retirement age does in fact exist within the organisation and the Employee was aware or ought to have been aware of its existence. An Employee’s “retirement may arise because of one or more of the following; an express term in the contract of employment, an implied term in a contract of employment, or custom and practice.  According to the Adjudicator web report the Respondent submitted arguments to support a position that the retirement occurred under an express term in the contract of employment, as well as an implied term.

    The workers union representative on the other hand argued that other Employees could work on beyond their normal retirement age and the Claimant was denied this opportunity.  It was submitted that the Claimant commenced employment with the Respondent employer in November 1990 and he retired on the 17th August 2017 as per his contracted of employment and in line with a company union agreement.

    The Union submitted that since that agreement the respondent had allowed employees to work beyond their normal retirement age of 65 and so the claimant had an expectation of working beyond 65 years in accordance with that custom and practice.

    The Respondent submitted that agreement had been reached with the union that normal retirement age would be 65.  However, it was accepted that there were two Employees that continued to work beyond 65 following that agreement

    Finding

    The Adjudicator found that the 2015 collective agreement was applied to all Employees who had, on the date and or year of issuing of the updated terms and conditions, not yet reached the specified age of retirement. The claimant was one of those Employees and in this instance retirement would be at the scheduled age of 65.  However, the Adjudicator went in to state that “I do find that the manner of the Claimant’s retirement was poorly managed and his expectation to stay beyond the collectively agreed retirement age was not adequately dealt with by the Respondent. The sole reliance on written communication close to the date was totally inadequate. I also find that the Claimant was offered the opportunity of returning to work with the Respondent, which he refused”.  In this circumstance the Adjudicator’s decision was that since 2015 it was the practice of the Respondent to retire Employees in accordance with the terms of the collective agreement on reaching their 65th birthday. However, the Adjudicator concluded that “The manner in which this retirement was handled left the claimant in difficulty. Taking in account that he was offered the opportunity of returning to work but he refused it on this basis on a once off without precedence basis I award the claimant the sum of €4,500 compensation”.

    Comment

    This outcome of this case reads like an IR Act claim but it was brought under the Unfair Dismissals Act.  It would appear that in offering the Claimant the opportunity to return to work the Respondent in doing so acknowledged that a custom and practice existed that rendered what should have been a legitimate retirement into an unfair dismissal.  The case shows that agreed procedures and contracts of employment are superseded in employment law by custom and practice.  The other lesson is, timely good communications is not just good practice but a fundamental requirement in matters such as these.       

  • Webinar Series - Employment Risks - The Employment Claim, what to do when a Claim arrives?

    by Hayleigh Ahearne
    Sep 24, 2018

    Adare Human Resource Management are delighted to invite you to our upcoming webinar entitled "The Employment Claim - What to do next?". 

    This upcoming webinar forms part of our webinar series entitled “Employment Risks – what every Employer needs to know” which is a series of 8 webinars in 2018. This series provides participants with updates on employment legislation and best practice in Human Resource Management.

    Details of the webinar are as follows:

    Date: Tuesday 2nd October 2018

    Time: 12.30pm

    Registration: To register for this webinar, click here.

  • HR Barometer Event - September 2018

    by Hayleigh Ahearne
    Sep 06, 2018
    How will you plan for the HR challenges in 2019?

    The HR Barometer Breakfast Briefing is a must-attend event for HR Practitioners who are seeking to inform and empower their HR planning in 2019.

    Key senior consultants from Adare Human Resource Management will share the findings of the recent HR Barometer National Survey and their insight into what this means for HR Practitioners in 2019.

    In-depth information on core HR, Employment Law and IR topics will be covered, such as

    • Average absenteeism rates
    • Levels of Employee turnover
    • Average number of training days per Employee per year
    • Ratios of HR staff to Employees
    • The main causes of Employee disputes amongst Irish businesses
    • Retirement and Pensions
    • Gender Pay Gap
    • Pay
    • HR and Employment Law Trends – Challenges and Priorities for 2019

    Adare Human Resource Management commissioned a national survey covering key areas within HR, Employment Law and Industrial Relations. Carried out by Empathy Research, more than 250 Organisations across the country participated in the survey.

    The survey reached out to Irish owned businesses and multi-national Organisations who have 50+ Employees. The survey findings have captured in-depth information on core HR, Employment Law and IR topics and resulted in a detailed report that acts as a benchmark for HR Practitioners across the country specifically in the areas of:

    • HR Metrics (including Absence Management, Employee Turnover, HR to Staff Ratio and Learning & Development)
    • Conflict and Dispute Management
    • HR Trends and Priorities
    • Retirement and Pensions
    • Gender Pay Gap and Pay

    Dublin Event Details:

    Date:                     Tuesday 18th September 2018

    Time:                    8am – 10am. (Registration and light breakfast from 7.45am)

    Location:             The Morrison Hotel (Ormond Quay Lower, North City, Dublin)


    Shannon Event Details:

    Date:                     Thursday 27th September 2018

    Time:                    8am – 10am. (Registration and light breakfast from 7.45am)

    Location:             Treacys Oakwood Hotel, (Airport Road, Shannon, Co. Clare)


    To Register

    To confirm your attendance, please contact:

    marketing@adarehrm.ie 

    or call (01) 5613594 

     

    Read more about these events here.

  • Absence Management – What Employers need to be mindful of

    by Hayleigh Ahearne
    Sep 06, 2018

    Absence management and sick leave absenteeism can be complex issues with at times, no simple or instant fixes. Sick leave absence can occur as a result of a number of factors which need to be considered when looking to minimise sick leave absenteeism levels and increase attendance levels at work. The reasons for absence can vary and may relate to the Employee concerned, the work carried out by the Employee and the type of working environment in which they operate in.

    Absence is defined as unscheduled disruption of the work process due to days lost as a result of sickness or any other cause not excused through statutory entitlements or company approval.

    Recording Attendance/Absence

    It is essential to understand the dimensions of an absence problem. In order to understand if a problem exists and/or the extent and cost of absence, Organisations will have to put in place measures, to monitor and record absence/attendance. Monitoring absence allows Organisation’s to answer questions such as;

    • Who is absent?
    • Why?
    • When?
    • How often?
    • Is the absence certified by a doctor or uncertified?

    Recording absence data shows Employees that attendance is significant at work and failure to attend work will be noticed. If the attendance data is not recorded, there may be a perception among Employees that any or all level of absence is tolerated within the Organisation. The availability of attendance or absence records further allows an Organisation to benchmark either across divisions, Organisation locations or against rates set either internally or by corporate headquarters.

    Recording absence helps Organisation to benchmark what is or isn’t an acceptable level of absence within the Organisation. Where a standard or target attendance rate is defined for all Employees, it is comparatively easier to identify cases that divert from the standard position. Attendance/absence data can provide an imperative for supervisors or managers to deal with absence abuse, as with an objective measure and analysis tool in place, and taking action against problem absences becomes more easily done.

    Adare Human Resource Management have recently carried out our HR Barometer (series 2) National Survey which has shown that the average absence rates are slightly above expectations for 2017 and are predicted to stay at approximately the same rate for 2018. Minor illnesses continue to be by far the most likely reason for a short-term absence from employment, with over 9 in 10 mentioning as the primary reason this year. 

    Absence Triggers

    Absence triggers are often utilised as a key element of any Organisational sick leave policy as a means to monitor trends in sick leave absence and determine the point at which a more formal review or follow up of an Employee’s attendance level is required.

    Appropriate consideration and review of Organisational sick leave absence data is required to determine what constitutes a ‘reasonable’ level of absence and at what point an absence trigger point(s) is arrived at requiring a formal review of an Employee’s sick leave absence. For fairness and transparency purposes, the point at which an Employee arrives at this trigger point should be agreed at an Organisational level and applied by all line managers consistently.

    Examples of when a trigger point is arrived at resulting in a more formal review of an Employee’s attendance level may include:

    • Exceeding the threshold for the number of sick leave days absence over a specified period of time;
    • Exceeding the threshold for the number of instances of sick leave absences over a given period of time;
    • An identifiable pattern of sick leave absence giving rise to concern e.g. a high proportion of sick leave days being availed of on a Monday and / or Friday only.

    One tool which is used to monitor trends in sick leave absence and provide absence trigger points is the Bradford Factor.

    The Bradford Factor

    The Bradford Factor is a formula that is used to measure Employee absenteeism, specifically focusing on Employees with frequent short-term absences. Employees taking several short-term sick leave absences are often considered to be more disruptive to an Organisation than a single spell of longer term sick leave absence. By their nature, short-term absences are more difficult to predict and their unexpected nature makes them difficult to plan for.

    The Bradford Factor measures the number of absence incidents and the length of time of each incidence to determine an overall ‘score’ for each Employee. An updated score is allocated to the Employee following each period of sick leave absence. The higher the score, the more disruption it is argued the Employee’s absence is causing an Organisation.

    The Bradford Factor is calculated using the following formula:

    B = S X S X D

    Where:

    • B is the Bradford Factor score
    • S is the total number of spells (instances) of sick leave absence of the Employee over a set period
    • D is the total number of days of sick leave absence of the Employee over the same set period

    The 'set period' is typically set as a rolling 52-week period.

    Use of this calculation method identifies those who have taken a number of short spells of sick leave absence and allows for consistency in determining when further action is required. Once an Employee arrives at a certain defined score or trigger point, it can form the basis for further investigation and action.

    Decisions should not be made on the basis of an Employee Bradford Factor score alone. Communication and discussion of concerns with the Employee and consideration of the individual circumstances are key elements as part of the effective management of an individual sick leave absence case.

     

    Absence Management Policy

    An effective absence management policy is one that is well defined and incorporates a number of elements. It allows an Organisation to understand the levels and causes of absence from work and enables those who are sick to return and stay at work on a successful basis. Furthermore, it takes effective action against the typically small number of Employees whose absence is non-health related and seek to gain from any organisational sick pay scheme.

    Line Managers have a critical role to play in supporting Employees whilst out of the workplace and ensuring that appropriate steps are taken to facilitate a successful return. Ongoing training and support is vital in order to equip Line Managers with the necessary skills and knowledge to effectively deal with issues which arise in this area.

    An absence management policy ensures employee absence is consistently and objectively managed. For the Organisation itself, it reduces stress and diminishes employment related claims-for stress and unfair dismissal against the Organisation.

    Sick Pay

    There is no legal entitlement to sick pay while an Employee is absent due to illness or injury. However, contractual sick pay entitlements are common practice in Ireland, in particular in certain sectors.

    Legislation requires Organisations to provide information to Employees on any terms or conditions of work which relate to incapacity for work due to sickness or injury, including any provision for sick leave pay. The terms of eligibility and the extent of the entitlement can vary considerably and should be outlined within an Employee’s contract of employment and/or Sick Pay policy.

    Examples of the provisions which are generally covered with a Sick Leave policy include:

    -          Allowing for an element of discretion in relation to payment for sick leave so as to remind Employees that there is no automatic entitlement to such payments.

    -          The notification requirements an Employee is required to comply with in the event they are unable to attend for work. An Employee will typically be required to speak directly with their Line Manager before a set timeframe on the first day of absence. The consequences of failure to do so, typically non-payment, should be clearly outlined.

    -          The occasions when an Employee will be required to provide a medical certificate. This can vary from a self-certificate for sick leave periods of one or two day’s absence, to a requirement to present a medical certificate for sick leave absences of three days or more. For periods of longer term sick leave absence, follow up certificates are typically required weekly or bi-weekly, with an element of discretion dependent on the individual circumstances.

    Short Term Absence

    An Organisation can create a stepped approach as part of an overall strategy to deal with problematic sick leave absences of a short-term nature:

    • Through the use of absence triggers, such as the Bradford Factor, an Organisation can determine a level of absence which is considered to be unacceptable in line with the internal sick leave policy;
    • The point at which an Employee has arrived at the defined trigger point can be determined through active monitoring;
    • In the event the trigger point is arrived at, a line manager should raise their concerns with the Employee as part of the Return to Work Interview, and if appropriate determine an appropriate course of action to be taken. For example, the Employee may be advised that any future instance of sick leave absence over a specified period of time will result in the non-payment of sick leave pay;
    • Should an unacceptable level of sick leave continue to occur, it may be appropriate to take further disciplinary action, up to and including dismissal.

    Long Term Absence

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

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

    The Employment Equality Acts of 1998 – 2015 has a very important role to play here. The Acts provide for specific protections to an Employee who is deemed to be suffering from a ‘disability’. It may be open to an Employee to claim a discriminatory dismissal if one occurs on the basis of ‘disability’.

    There is no legal obligation on an Organisation to provide alternative work to an Employee in the event it is determined that the individual is no longer capable to carry out the work for which they are employed to do, or it is considered to place a ‘disproportionate burden’ on the Organisation. However, if it is determined that a return to work could be facilitated by the Organisation taking appropriate measures based on a ‘reasonable accommodation’, this should be considered as an alternative to termination of employment. Such steps could include providing light work on a temporary or permanent basis or altering the work hours, duties and workload as part of the Employee’s current role.

    In the event all options have been explored and it is determined the Employee’s role can no longer be kept open, the Employee should be fully consulted with and informed about the risk of dismissal. The Employee should be provided with adequate opportunity to make alternative proposals, which if made, should be considered by an Organisation. In the event no alternative is found, and having given reasonable and careful consideration to all of the information available, and any alternatives suggested by the Employee, an Organisation may decide to proceed with dismissing the Employee on the grounds of incapacity in the manner set out in his/her employment contract and/or Organisation policy.

    Recent Case Law

    A case that Organisations should be mindful of is [DEC-E2016-021]- A Retail Store V an Employee. The Labour Court upheld a decision of a Workplace Relations Commission (WRC) Adjudication Officer which found that an Employer discriminated against an Employee on the ground of disability and failed to provide her with reasonable accommodation to permit her return to work in May 2013. Following a period of certified sick leave, the Employee’s GP certified her as fit to return to work in April 2013, however this was on the basis that the Employee was going to be limited to light work in a different area of the store only. However, Management in the Organisation maintained that the Employee would need to be fit to resume her existing role in the bakery in order to return to work. The Employee did not return to work due to the Organisations refusal to provide alternative duties / reasonable accommodation for the Employee. Following some time, the Store subsequently closed in August 2013 and the Employee was made redundant.

    The Labour Court found that ‘the obligation on an Employer to consider “reasonable accommodation” may involve making adjustments in the allocation of tasks amongst the workforce so as to assign to a person with a disability those tasks that he or she can perform while allocating tasks beyond their capacity to others. The obligation also carries with it a concomitant obligation to make an informed and considered decision on what is or is not possible, reasonable and proportionate. If all of the options that may be available are not adequately considered the employer cannot form a bona fide belief that they are impossible, unreasonable or disproportionate.’

    Restricting Sick Pay

    If there is a sick pay scheme in operation, the Employees are entitled to receive some payment in the event of illness. It is created to provide Employees with some protection in times when they cannot work due to illness. A sick pay scheme can sometimes be considered a contributory factor to short- term absence. It is because of the way the schemes are managed, with Employees feeling entitled to take a certain number of days casual absence per annum. The restriction of sick pay is generally part of the control mechanism built into a scheme and consists of either:

    • Restricting the number of paid days casual absence in a given period of time, or
    • Suspension from benefit where abuse of the scheme has been proven or where the absent Employee has failed to comply with the rules of the Organisation’s sick pay scheme.

    Promoting Wellbeing

    As part of an overall approach to reduce the levels of sick leave absence, Organisations can take steps to enhance and promote the overall levels of health and well-being of their workforce.

    Management support and promotion of such initiatives, particularly in Organisations where high levels of sick leave absence do exist, can provide real and considerable positive outcomes. Evidence would suggest that the availability of such arrangements assist in reducing both the costs and detrimental impact of sick leave, whilst leading to an increase in overall levels of Employee engagement, greater productivity levels, and greater levels of motivation and job satisfaction.

    Better understanding and insight as to the most common causes of short-term and long-term sick leave absence within an Organisation can assist in determining the types of initiatives to focus on as part of an overall Employee health and well-being programme.

    Examples of programmes or benefits which an Organisation may consider include:

    • Onsite health clinics and screening programmes;
    • Stress management workshops;
    • Mental health and well-being seminars;
    • Line management training;
    • Workload management and prioritisation;
    • Promotion of healthy eating;
    • Subsidising gym / fitness facilities;
    • Raising awareness of availability of confidential counselling and other specialist information services under EAP;
    • Focus on Health and Safety standards and regulations, including VDU and work station ergonomics.

    Conclusion

    Effective absence management and the promotion of well-being initiatives should be on every HR department’s agenda. The recording and monitoring of attendance levels is essential in order to measure and evaluate the level and nature of sick leave absence within an Organisation. Analysis of sick leave absence data absence can occur at an Organisational level in order to gain an understanding of the overall rate of sick leave, and an individual level to allow identification of problem absence levels at an Employee level.

  • Case Law - Reviewed under the WRC

    by Hayleigh Ahearne
    Sep 06, 2018
    In this month’s newsletter the team at Adare Human Resource Management consider in detail a number of cases as adjudicated under the Workplace Relations Commission.

     

    Chef dismissed on probation due to performance not racial discrimination

    Adjudication Reference: ADJ-00010659

    Summary of Complainant’s Case:

    The Complainant submits that he was bullied by his manager Mr. P. He was given no support in a job that he was not fully familiar with. The Complainant stated that his work was criticised at performance meetings and that his level of English was criticised. The Complainant stated that he was dismissed from his job. This treatment took place due to the fact that the Complainant is Romanian.

     Summary of Respondent’s Case:

    The Respondent submits that the Complainant was employed by them as a Chef Manager from 14th November 2016 to 11th of August 2017. The Complainant commenced his employment on a six-month probationary basis. On 28th of March 2017 a probationary review meeting took place and many issues were raised in respect of the Complainant’s performance, it was agreed that performance would be reviewed again on 18th April 2017. On 12th May 2017 the claimant probation was extended by 3 months due to performance issues. On 11th July 2017 a further performance improvement plan meeting took place. On 4th of August 2017 the Complainant attended a final probationary review meeting and was advised that his employment was being terminated.

    Legislation:

    Section 6(1) of the Employment Equality Acts, 1998 to 2008 provides that discrimination shall be taken to occur where “a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)…..”

    Section 6(2) (h) of the Acts defines the discriminatory ground of race as follows – “as between any two persons ….. that they are of different race, colour, nationality or ethnic or national origins… “

    Decision:

    The Complainant advised the hearing that he was treated differently on grounds of race by his manager Mr. P. The Complainant stated that the previous manager had been happy with him but that he began to have problems when Mr. P became his manager. The Complainant told the hearing that the client was happy with the food he made so he didn’t know why everyone was not happy with him. The Complainant told the hearing that Mr. P had a number of problems with him and that these issues were raised in his evaluation meetings. The Complainant stated that everyone else was happy with him but added that his English was not very good and also that he was not very good on the computer and stated that he needed help with this. The Complainant told the hearing that his probation was extended for a further three months in March 2017 due to the fact that his manager Mr. P was not happy with him.

    The Complainant during the hearing stated that he needed help with the job and that he was not very good at the part of the job involving a computer.

    The Respondent advised the hearing that the Complainant was employed as a Chef Manager and commenced his employment in November 2016 on a probationary period of six months. The Respondent told the hearing that this role involved significant managerial responsibilities, regular reporting, payroll, revenue rostering and the monitoring of stock levels as well as traditional Chef functions.

    The Respondent told the hearing that a number of issues had arisen with the Complainant’s performance such as reporting deadlines missed or inaccurate, stocktakes had not been made and emails from account technicians had been ignored by the Complainant. These issues were raised at the Complainant’s review meeting on 28th of March 2017. The Complainant’s manager at this meeting identified a number of areas for improvement and the Complainant was advised that he would be provided with refresher training on any areas he felt he needed it.

    The Respondent advised the hearing that it was agreed was agreed that performance would be reviewed again on 18th April 2017. Documentary evidence was provided by the Respondent. The review meeting took place on 18th April as agreed and as the required improvements had not taken place the Complainant was given a performance improvement plan meeting.

    By email dated 2nd May and through a number of conversations on the phone and in person the Complainant was requested to attend refresher training. The Complainant failed to attend the training. The Respondent advised the hearing that on 12th May 2017 the claimant probation was extended by 3 months due to performance issues.

    The Respondent stated that a further performance improvement plan meeting took place on 11th July 2017 and a number of performance issues were still of concern to the Respondent. These were again raised with the Complainant and a follow up email was sent to the Complainant on 12th July urging him to take corrective action before the end of his probationary period. The Respondent told the hearing that improvements were not made and on 4th August the Complainants final probationary review meeting took place where he was advised that his employment was being terminated with one weeks’ notice. The Respondent provided documentary evidence of these performance improvement plans and review meetings. The Complainant at the hearing did not dispute this. On 4th August 2017 the Complainant attended a final probationary review meeting and was advised that his employment was being terminated.

    The Complainant has submitted that he was treated less favourably on grounds of his race. The Respondent has submitted that there were a number of concerns with the Complainant’s performance and that these concerns were raised with the Complainant at his probationary meetings. In addition, it is clear from the evidence adduced that the Respondent raised these issues with the Complainant and gave him an opportunity to improve by preparing and implementing performance improvement plans.  In addition, it is agreed by the parties that the Complainant’s probationary period of 6 months was extended by a further three months in order to give him an opportunity to improve his performance before the Respondent eventually made a decision to dismiss him for performance issues. Based on the totality of evidence adduced the Adjudication Officer found no evidence to support the claim that the Complainant was treated less favourably by the Respondent due to his race. Accordingly, the Adjudication Officer was satisfied that the Complainant was not discriminated against on grounds of race by the Respondent. 

    The Adjudication Officer completed an investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998-2015 the Adjudication Officer issued the following decision that the Complainant was not discriminated against by the Respondent on the ground of race in terms of section 6 and contrary to section 8 of the Employment Equality Acts, 1998 to 2015 in respect of these matters.

    Adare Human Resource Management Commentary

    It is common practice for Organisations to use a probationary period at the commencement of employment in order to assess the suitability of newly appointed Employees, and to assist their integration into their role and the Organisation.  The period is used to ensure that the new hire is performing in their new role, and that they are settling into the Organisation. As we seen in this case, during probation there should be dialogue between the Manager and the Employee with regard to performance, conduct, attendance and any other issues impacting on the new Employee’s ability to settle into the role and the Organisation.  Issues may also be addressed formally by way of probation review meeting(s).

    The recommended process should flow as follows:

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

    Step 2: Mid Review = Structured review meeting(s), highlighting any achievements and any performance or conduct deficits, outlining any improvement plans, if required. Detail any supports available also to assist the Employee achieve the required standards.

    Step 3: End of Period Review = Formal review meeting, between the Employee and their manager, again addressing achievements and failings over the period. A decision at this stage is reached either to (a) confirm the Employee in their employment, (b) confirm with the Employee that they have not successfully completed their probation, the reasons why and confirming that they are not being retained by the Organisation or (c) confirm with the Employee that you are extending their probation detailing the reason(s), the improvements required, timeframes for the extension and supports available. We recommend that at all stages of the probation review process that the Organisation issues and retains the appropriate evidence / documentation to demonstrate the process undertaken.

    There is a common myth that an Employee with less than 12 months service is not afforded protection under employment legislation. Whilst this is true in the main as it relates to the Unfair Dismissals Acts, there are numerous other protections afforded to Employees upon commencement of employment including those provided for under the Employment Equality Acts, Health, Safety and Welfare at Work Acts, the Industrial Relations (IR) Acts and the Protective Disclosures Act.

     

     

    ____________________________________________________________________________________________________________

     

    Manager awarded €850 for excessive working hours

    Adjudication Reference: ADJ-00012088

    Summary of Complainant’s Case:

    The Complainant states that she was contracted to work 7.25 hours per day, 36.2 hours per week, Monday – Friday, exclusive of lunch breaks.

    Weekly working hours.

    She states that she worked the following hours:

    • Monday 28th August, 8.30am-5.55pm
    • Tuesday 29th August, 8.30am- 7.30pm
    • Monday 4th - Friday 8th September,8.30am -7pm
    • Monday 11th - Thursday 14th September, 8.30am- 7pm
    • Friday 15th September, 8.30am -10.20pm
    • Saturday 16th September, 10am-7.30pm.

    From the 2nd to the 16th September, the Complainant advises that she was struggling to keep up with an unrealistic pace of work. The Complainant advises that the Respondent should have anticipated the bulge in the workload as the Respondent was working to meet a deadline of the 30th September- a date notified to the Respondent in June 2017 by the European regulatory agency to whom this report had to be submitted. The Complainant states that she was ‘lumped’ with work that should have been attended to in the period June 2017 – 21st August (her start date). She was advised by her line Manager that she was on probation.

    The Complainant in her third week of employment found that she had to stay until about 7.30pm to complete sections of this report. The Complainant states that she was capable of doing the work which she found to be interesting but not within the deadlines. The Complainant states that the Respondent knew that she had no prior experience or expertise in this area of work.

    Her line Manager had asked her what time she could start on Saturday 16th September. This resulted in her working an estimated 70 hours in, this, her fourth week of employment.

    She was the primary carer for her elderly mother who had numerous health issues.

    The Complainant requested a meeting with her line Manager and a HR executive on 18th September. Her request was ignored. She left the office feeling unwell due to work overload and lengthy hours and went to her GP who placed her on sick leave until the 22nd September. She invoked the grievance procedure on 21st September in an attempt to deal with her excessive workload and lack of rest periods but she received no response.

    The Complainant resigned by email on the 22nd September and submitted a hard copy of her resignation on the 27th September.

    Managers in the Respondent Company did not clock in. The Complainant advised that she did not record all dates but is confident that she worked in excess of 48 hours per week.

    The Complainant states that from Monday 4th - Saturday 16th September she had only a 15-minute break at desk for the entirety of the day and not the statutory 30 minutes.

    On 15th September she had to wait for 6 hours until 2.50 pm, before she could get a break. She asked about food at 9pm on that date and advises that her Manager was disinterested.

    She was required to work until 8pm from Monday 11th September to Thursday 14th, to 10.20 pm on Friday 15th September with only a 15-minute break on each of these dates and from 10am to 7.20 on Saturday 16th September with no break. She was thus prevented from taking her statutory rest periods

    The Complainant advises that after working straight through for 4.5 hours she was immediately and frequently asked to take on another piece of work.

    Summary of Respondent’s Case:

    The Respondent opened by saying that they regretted that the Complainant had resigned and chose not to attempt a resolution of the matter. They advise that upon receipt of her request to invoke the grievance procedure on 21st September, two opportunities were offered and the Complainant declined to confirm her availability for either date. Emails to this effect were submitted in evidence. The Complainant’s resignation was received on 22nd September.

    The Respondent submitted that they did not use clocking in records for Managerial staff such as the Complainant and that they did not possess records.

    The Respondent advises that the Complainant worked normal hours in the first and second week of her employment and probably week 3 as there was no need for staff to work extra hours that week.

    The Respondent’s line Manager gave evidence and estimated that she worked 60 hours in the 4th week, 11th - 16th September. There was no obligation on her to stay and she could have gone home. This project which generated extra hours for all members of staff was confined to one week in September and was not representative of the workload or working hours as a whole. The deadline applied to all staff.

    She was offered a day off on Friday 22nd September.

    The line Manager denied that she ever advised the Complainant that she was on probation. Complainant is not in a position to state that nothing was done on the project from June - September as she was not employed until August.

    The line Manager advised that the Complainant was not prevented from taking her breaks. The Complainant was also told that food could be delivered to the workplace.

    The Respondent submitted an email sent to all staff on the 4th September 2017 advising then that they should avail of statutory breaks and that if unable to do so should immediately inform the line Manager.

    The Respondent disputes that the statement “you are on probation “was made to her.

    Legislation:

    Section 11 of the Organisation of Working Time Act, 1997 provides as follows;

    “(1) An Employer shall not require an Employee to work for a period of more than 4 hours and 30 minutes without allowing him or her to have a break of at least 15 minutes.

    (2) An Employer shall not require an Employee to work for a period of more than 6 hours without allowing him or her a break of at least 30 minutes.”

    Decision:

    The contract signed by the Complainant accepts that work demands may occasionally require a working week more in excess of the 36.25 contracted hours. The Complainant states she was required to work in in excess of 48 hours per week.

    Her written submission attests that “I do not have a record of the 4-week average as I did not record this detail given that I could never have expected the circumstances that would arise……. I am confident that that the average over this period was in excess of 48 hours although I am not able to prove the average amount.”

    The law governing the duty of an Employer in relation to weekly working hours is set out in section 15.1 of the Organisation of Working Time Act, 1997, which prescribes as follows:

                    “15. — (1) 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 period (hereafter in this section referred to as a “reference period”) that does not exceed—

                 (a) 4 months, or

                 (b) 6 months—"

    The Complainant was unable to give particulars for week 1, so her estimated hours, submitted to the hearing and in written evidence for her 4 weeks of employment are as follows:

    36.5 hours in week 1,

    41.55 hours in week 2,

    50 hours in week 3,

    63 hours in week 4.

    This is a total of 191.05 hours which when averaged over the 4 - week period does not exceed 48 hours.

    Based on the evidence tendered and for reasons stated above, the Adjudication Officer did not find that a breach of section 15 (1) of the 1997 Act occurred.

    Section 11 of the Organisation of Working Time Act, 1997 provides as follows;

    “(1) An Employer shall not require an Employee to work for a period of more than 4 hours and 30 minutes without allowing him or her to have a break of at least 15 minutes.

    (2) An Employer shall not require an Employee to work for a period of more than 6 hours without allowing him or her a break of at least 30 minutes.”

    The Respondent is unable to demonstrate that they complied with these provisions. Records were not kept for Employees in Managerial positions. The Respondent cannot confirm if the Complainant took any of the statutory rest periods which she identified in her evidence as having been withheld from her. The Adjudication Officer concluded that the Complainant did not secure these rest periods.

    The Organisation of Working Time (Records Prescribed Form and Exemptions Regulations) 2001 sets out the records which an Employer should maintain. The Respondent in the instant case does not meet the necessary conditions specified in section 5(1) (a) and (b) of the 2001 Regulations for an exemption.

    Where there is no clocking in records or other prescribed documentation, the responsibility lies with the Respondent to prove that they complied with the provisions.

    The Labour Court in the case of IBM V Svoboda, DWT 0818 dealt with the matter of an Employee in a Managerial position denied her rest periods and obliged to work in excess of an average of 48 hours. The facts are somewhat similar to the instant case but in the latter case the Respondent made frequent if ineffective efforts to stop the Employee from working additional hours. The Respondent in this case advanced no evidence of vigilance in discouraging this Complainant from foregoing her rest periods or proactively advising her to take them apart from sending a general email to staff advising them to take their breaks which the Complainant states she did not receive. The Complainant did resign very soon after her experience of the working hours and very soon after activating a grievance procedure.

    Nonetheless because of the responsibility which lies with the Respondent to implement the provisions of the Act and for the reasons stated above, the Adjudication Officer concluded that the Respondent was in breach of section 12 of the 1997 Act. They let it happen without any intervention.

    The Adjudication Officer did not uphold the complaint under section 15 (1) of the Organisation of Working Time Act, 1997.

    The Adjudication Officer upheld the complaint under section 12(1) of the Organisation of Working Time Act, 1997.

    The Adjudication Officer ordered the Respondent to make a payment of €850 in compensation for a breach of the Complainant’s statutory rights.

    Adare Human Resource Management Commentary:

    The Organisation of Working Time Act, 1997 sets out to protect the health, safety and welfare of Employees by regulating their working patterns. The Act sets out statutory rights for Employees in respect of rest, maximum working time and holidays.

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

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

    An Employee working 6 hours or greater must be provided with a 30-minute break during their working day.

    As seen in this case, it is important that the Employer has a record to of the Employees working times and breaks and the responsibility falls with the Employer to prove that the Employee did or didn’t get the required breaks.

    ____________________________________________________________________________________________________________

     

    Complainant awarded €32,200 as a result of an unfair dismissal

    Adjudication Reference: ADJ-00007968

    Summary of Complainant’s Case:

    It is submitted by way of general background that the Respondent is a family business (there were six siblings working in the business including the Complainant, two of whom were directors) which has been bequeathed to the six children of the original owner (their father) in equal part (one sixth shareholding). There are two boys (one is the managing director - MD) and four girls (one of whom is the operations director – OD) in the family. The estate has not been administered at date of hearing. She learned in October 2016 that a significant amount of money may have been paid to the directors without shareholder approval in 2015 and 2014. This was put to the directors of the Respondent on the 20th of October in two separate letters. The first by way of solicitor’s letter in behalf of the Complainant and her sister and the second signed by herself and her sister which also included a request for access to all the Company books and records.

    She became aware in early October (she saw a pay slip) that her weekly net pay had been recorded as €465 net and not the €450 net she received. On enquiry she was informed by the MD that the reason for the same was that it was necessary to keep the cash up. He told her that she would not be receiving the additional amount and that she would regret it if she pursued the matter. He later stated that she had not been put on the books until 2015 although the Company accountants confirmed to her that she was on the books since October 2011. Following her return from 2 weeks of sick leave on the 1st of November 2016 she refused to continue to use the cash till in the shop. She had expressed her reservations in this regard in April 2016 explaining that she did not want to work the till as she “did not want to be responsible for any fraudulent activities the Directors may have been conducting, such as the under declaration of Company funds to the revenue commissioners.” She did not want to work the second or cash till “in her newly appointed position as shareholder”. The Directors said that they would not have a business if she did not work the till. She was subjected to intimidation by other members of the family after she stopped using the till. On the 3rd of November she was locked out of the office. On the 14th of November she received a warning that she would be disciplined up to and including dismissal if she were to continue to refuse instruction (the letter referenced silver soldering).

    Upon her arrival at work on the morning of the 18th of November 2016 she found herself locked out of her employment by her brother in law (the husband of the OD) when he informed her that she was not to work at her usual work station. She received a letter from the Respondent’s solicitor on the same day advising that she would be suspended with pay with effect from that date on the basis that she and three others were attempting to shut down the business based on the events of that morning. It went on to say that an investigation of these matters would follow in due course. She received a further letter which was addressed to herself and her husband and her sister and her husband in relation to the same incident. In responding to the first letter on the 24th inst. the Complainant’s representative pointed out that the real reason for the suspension in this case was that the Complainant “had made a protected disclosure to the Company directors regarding the inappropriate use of Company funds.” No reply was furnished thereto.

    A letter from the Respondent to the Complainant of the 21st of February 2017 encloses the Complainant’s P45 and states that all outstanding payments due to date have been made. It sought to rely on the Complainant’s WRC complaint form to suggest that she was taking it that the date of termination was eh 18th of November 2016 despite, the fact that, the Respondent itself had suspended her on pay on that date pending an investigation which never occurred. The matter was further dealt in correspondence with the Respondent’s current legal representative on the basis that the Respondent was not entitled to treat with the Complainant as if she had dismissed herself on that date as she was suspended by the Respondent itself at that time.

    CA-00010645-001: The Complainant submits that she was unfairly dismissed by Respondent letter of the 21st of February 2017 which included her P45 with a noted cessation date of the 17th of February 2017. The letter noted that the employment was terminated on the 18th of November 2016 citing the date included under the heading “date employment ended (if applicable)” in the Complainant’s original and earlier complaint form received by the WRC on the 12th of December 2016. Her solicitor immediately wrote to the Respondent’s solicitor pointing out that the Complainant was suspended with pay pending investigation by the Respondent on the 18th of November 2016 and it could not now rely upon a WRC form to justify her dismissal.

    CA-00010645-002: The Complainant submits that she was unfairly and summarily dismissed and was not paid her entitlement to statutory minimum notice in the circumstances.

    Summary of Respondent’s Case:

    The Respondent became aware in October 2016 that the Complainant and her sister were becoming disruptive in the workplace to the extent that they were unwilling to take direction from the Respondent’s directors. On the 14th of November 2016 she refused to take instruction from the MD in relation to her principle duty of silver soldering. He wrote to her advising her that as an employee she was obliged to take instruction from the directors of the Company and that further refusal to do so would expose her to the disciplinary procedure up to and including her dismissal. He took the opportunity to remind her of the Company mobile phone policy and the meal and break times. He invited her to a meeting if she wished to discuss the warning.

    On the morning of the 18th inst. the Complainant and her sister together with their respective husbands orchestrated an attack/protest at the workplace targeting in the process the Respondent’s largest customer with whom it does 40% of its business. Entrances to the premises which contain the showroom, factory, tea rooms and visitor centre were blocked. In the ensuing chaos the MD and other members of staff were physically and verbally assaulted. While the MD was assaulted by his sister the Complainant urged her on. The attackers then forced their way onto the premises, continued the physical and verbal abuse, occupied the jewellery showroom and caused damage to merchandise. The police were called for assistance and as a result a tour scheduled for that morning had to be cancelled, the business had to be closed for the day and traumatised staff had to be sent home. A formal undertaking was sought and given by the claimant, her sister and their husbands that they would not attend at the premises or contact the directors directly. The Respondent’s solicitor wrote to the Complainant on the same day suspending her on pay pending an internal investigation of the incident. In response solicitor for the Complainant stated that any such investigation would be vigorously defended. 

    CA-00010645-001: The Respondent submits that the Complainant was not dismissed. She was suspended pending investigation following an incident on the 18th of November 2016 at the Company’s premises. Thereafter she submitted complaints to the WRC (12th of December 2016) in which she stated that her employment had ended on the 18th of November 2016. In those circumstances it was reasonable to assume that the Complainant had voluntarily resigned from her position on that date and it issued her P45 on the 21st of February 2017. It is denied that the complaint was constructively dismissed or that she had to leave her job for exercising her statutory rights. No complaint or grievance was received from either the Complainant or her representative nor was the Respondent on notice that she felt that she had no option but to resign. Furthermore, it is submitted that the herein complaint is at odds with the complaint previously submitted under the Protected Disclosures Act, 2014 (CA-00008739-004) alleging that the Complainant was penalised by way of constructive dismissal.

    CA-00010645-002: The Respondent submits that it was reasonable to assume that the Complainant resigned her position alleging constructive dismissal under the Protected Disclosures Act, 2014 and that in those circumstances no entitlement to the payment of statutory minimum notice arises.

    Legislation:

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

    Decision:

    The Adjudication Officer was satisfied that the earlier complaint under the Protected Disclosure Act, 2014 (CA-00008739-004) is not at odds with the herein complaint as upon clarification that complaint referred to suspension as the relevant penalisation.

    Referring to CA-00010645-001 - while it can be argued that the Complainant’s position was somewhat confusing as it relates to the WRC forms it was not reasonable or legitimate to assume that she had resigned her position as and of the 18th of November 2016 based upon the forms. It was open to or some would say incumbent upon the Respondent from Mid-December onwards to clarify the issue with the Complainant in circumstances where it had committed to an investigation of the incident of the previous 18th of November which resulted in her suspension. The letter of 21st of February 2017 enclosing the P45 amounts to a dismissal in my view. That dismissal was flawed in that it lacked any procedural fairness and therefore it was unfair.

    CA-00010645-001: The complaint is well founded. The appropriate remedy in the circumstances is compensation in the amount of €30,000 (say thirty thousand euro).

    Referring to CA-00010645-002 - it follows that the Complainant is entitled to her statutory minimum notice where she has been unfairly dismissed.

    CA-00010645-002: The complaint is well founded and the Adjudication Officer required that the Respondent pay the Complainant her entitlement to statutory minimum notice in the amount of €2,200 (say two thousand two hundred euro).

    Adare Human Resource Management Commentary:

    The Code of Practice requires that the disciplinary procedure be applied progressively where appropriate, and that greater sanctions may be imposed over time. Where the situation arises that the Employer wishes to skip steps of the procedure, care must be taken to ensure that a) this is being done consistently with previous situations of a similar nature and b) that the Employee could reasonably have been expected to know that the issue was so serious as to warrant the Employer skipping steps in the procedure.

    In some situations, as the case within this case, the Employer may commence the procedure at the final stage, i.e. dismissal.  This would generally only occur in cases of gross misconduct, and a fair disciplinary hearing must always be held before deciding to dismiss for the offence concerned – we can see from this case that a fair investigation or disciplinary hearing did not occur therefore the Adjudication Officer came to the conclusion that this was an unfair dismissal.

    The Minimum Notice and Terms of Employment Act set out requirements in relation to giving and receiving notice as an Employer. It places obligations on both the Employer and the Employee in relation to notice. The issue often arises for Employers that an Employee will, despite a pre-agreed term in their contract, provide less notice than they have committed to providing. In all cases where the Employee refuses to provide adequate notice, the Employer has no right to withhold pay for annual leave, any wages outstanding, or the Employees P45, as these may constitute offences under other legislation. 

  • Paternity Leave & Pay V’s Maternity Leave and Pay – is it discriminatory?

    by Hayleigh Ahearne
    Sep 06, 2018

    Paternity Leave is now in place one year as it came into effect as a statutory leave for Employees in all Organisations last September 2017.

    The Act has two main tenets:

    • To entitle an Employee who is a “relevant parent” to 2 weeks leave from work to enable him or her to provide, or assist in the provision of, care to the child or to provide support to the relevant adopting parent or mother of the child, as the case may be, or both. The Act also entitles a surviving parent to avail of paternity leave on the death of a relevant parent.
    • To provide for the granting of State Paternity Benefit to employees who meet the eligibility criteria for payment.

    Employees on paternity leave may be eligible for Paternity Benefit paid by the Department of Employment Affairs and Social Protection. Paternity Benefit will be paid at the same rate as Maternity Benefit and will be based on the same PRSI contribution requirements. All Employees applying for Paternity Benefit must have their paternity leave certified by their Employer.

    A relevant parent will be entitled to two continuous weeks' paid leave in respect of births from September 2016. Payment will be at the rate of €235 per week from 13th March 2017 (previously €230 per week from 2016 up to 13th March 2017), subject to a person having the appropriate PRSI contributions. This is the same as the current rate of maternity benefit. Similar to maternity leave, Employers can top up paternity benefit if they want.

    Eligibility for Paternity Leave

    Under the Act, a “relevant parent” for the purposes of paternity leave entitlement includes:

    • The father of the child
    • The spouse, civil partner or cohabitant of the mother of the child
    • The parent of a donor-conceived child

    In the case of an adopted child, the relevant parent includes:

    • The nominated parent in the case of a married same-sex couple or
    • The spouse, civil partner or cohabitant of the adopting mother or sole male adopter

    The entitlement to 2 weeks’ paternity leave from employment extends to all Employees (including casual workers), regardless of how long you have been working for the Organisation or the number of hours worked per week. If more than one child is born or adopted at the same time, for example, twins, one is only entitled to a single period of 2 weeks’ paternity leave.

    Entitlement for Paternity Benefit

    Paternity Benefit is a payment for employed and self-employed people who are on paternity leave from work and covered by social insurance (PRSI). It is paid for 2 weeks and is available for any child born or adopted on or after 1 September 2016. An Employee can start paternity leave at any time within the first 6 months following the birth or adoption placement.

    The Employees should apply for the payment 4 weeks before they intend to go on paternity leave (12 weeks if they are self-employed).

    If an Employee is already on certain social welfare payments then they may get half-rate Paternity Benefit.

    Notification Procedure

    Paternity leave can begin at the time of the birth/adoption or within 26 weeks of the birth/placement of the child.

    Entitlement to paternity leave shall be subject to an Employee, who is a relevant parent, notifying his or her Employer in writing of his or her intention to take paternity leave:

    • As soon as reasonably practicable but not later than 4 weeks before the expected week of confinement of the expectant mother concerned;
    • In the case of a child who is / is to be adopted, as soon as reasonably practicable but not later than 4 weeks before the expected day of placement.

    At the time of notification, or as soon as reasonably practicable, an Employee must provide the Employer with a medical certificate confirming the pregnancy of the expectant mother concerned and specifying the expected week of confinement. An Employee who has not given a notification to his or her Employer in line with the requirements set out above, or who revoked such notification, may notify the Employer of his or her intention to take paternity leave not later than 4 weeks before the commencement of such leave.

    Commencement & Postponement of Leave

    Commencement

    The period of paternity leave shall commence on such a day as the relevant parent selects in his or her notification to the Employer of their intention to take paternity leave, being not earlier than the date of confinement or day of placement, and not later than 26 weeks after such date or day.  Where the Employee intends to take paternity leave, the Employee must notify the Employer of the length of leave that the Employee intends to take.

    Early Confinement

    Where the date of confinement occurs in a week that is 4 weeks or more before the expected date of confinement, the relevant parent will be deemed to have complied with the requirements in terms of notification to the Organisation if the notification required is given in the period of 7 days commencing on the date of confinement.

    Postponement

    Where, as the case may be, the day of placement is postponed or the date of confinement occurs after the date selected by a relevant parent in his or her notification, the relevant parent shall be entitled to select another date on which the paternity leave shall commence.

    Sickness during Paternity Leave

    Where a relevant parent who has complied with the notification procedures becomes sick prior to the commencement of his or her paternity leave and wishes to postpone the paternity leave, he or she may, by notice in writing given to his or her employer as soon as reasonably practicable after becoming sick and accompanied by the relevant evidence in respect of the sickness, postpone the taking of the leave to such time as the relevant parent is no longer sick.

    Abuse of Leave

    Where an Employer has a reasonable belief that an Employee who is on paternity leave is not using the leave for the purpose outlined, the Employer may, by provision of notice in writing to the Employee, terminate the leave. The notice shall summarise the grounds for terminating the leave, and the day by which the Employee must return to work.

    Employee Rights

    During a period of paternity leave, an Employee shall be deemed to have been in the employment of the Employer, and be treated as if he or she had not been absent from work. Availing of paternity leave shall not affect any right related to the employment, other than the right to remuneration during the absence. Where an Employee is on probation, undergoing training, or employed under a contract of apprenticeship, the Employer may require that the probation, training or apprenticeship shall stand suspended during the period of leave.

    Return to Work

    Employees are entitled to return to work to the same job and under the same terms and conditions of employment following paternity leave. Where this is not reasonably practicable, the Organisation will provide suitable alternative employment that is no less favourable in terms and conditions.

     

    Maternity Leave V Paternity Leave

    An area for concern for many Organisations is in relation to the difference between Maternity benefit and Paternity benefit and does it result in discrimination if the Organisation tops up the Maternity benefit and not the Paternity benefit?

    The decision of the Workplace Relations Commission (WRC) in the case of An Area Manager v A Transport Company [ADJ-0000577] provides useful guidance in this respect. 

    The Respondent initially operated a scheme whereby it provided three days paid paternity leave. On the commencement of the Paternity Leave and Benefit Act 2016, however, it circulated a memo advising Employees that the legislation had resulted in the termination of the scheme. Staff were advised that those availing of paternity leave under the 2016 Act would receive the statutory paternity benefit only.   

    The Complainant, was not entitled to the statutory paternity benefit due to his D1 PRSI classification. Accordingly, he was not entitled to receive any payment during paternity leave and was therefore unable to take two weeks leave as intended.

    With regard to female Employees, the Respondent's policy provided that eligible staff members were entitled to have the statutory maternity benefit topped-up to meet their basic pay during the first 26 weeks of maternity leave. Female Employees with D1 PRSI classification, who were not eligible for statutory maternity benefit, were entitled to their full salary during the first 26 weeks of maternity leave.

    The Complainant issued a complaint on the basis that he, as a class D1 PRSI contributor, would receive no payment if he were to avail of paternity leave whilst a female Employee, also a Class D1 PRSI contributor, would receive full pay from the Respondent during her maternity leave.  The Complainant alleged he was being treated less favourably as a new male parent compared to a new female parent.

    The Adjudication Officer held that a practice by which an employer topped up employees' salaries to full pay during maternity leave but not during paternity leave did not amount to discrimination on the ground of gender under the Employment Equality Acts 1998-2015.

    The Adjudication Officer concluded that the Respondent was entitled to make special provision for women at the time of maternity leave and was protected in that regard by the Employment Equality Acts. The Complainant, therefore, failed to establish a prima facie case of discrimination on the grounds of gender.

    Claim under Paternity Leave

    A recent that shows great learnings for Organisations in relation to Paternity leave is [ADJ-00008251] - A Horticulturist V A Garden Centre.

    The Respondent had decided to make the complainant redundant in October 2016 as a result of a reorganisation of his business and the closure of one of its outlets. A new position was being created with a broader general management responsibility, who would not just have responsibility for plant buying but would have overall responsibility for all staff. Previously, these duties had been split between two members of staff. The Respondent did not consider any other options in terms of the reorganisation as the Complainant’s role was the one that was being made redundant. There was no selection process. The complainant received a text message on January 11th 2017 while he was on paternity leave following a period of sick leave. The text message was to ask him whether he was free to attend a meeting the following day, January 12th. He did so. At the meeting, the Respondent told the Complainant that he was going to create a new position of ‘Assistant Manager’ and that he, the Complainant was being made redundant. The Complainant asked whether there were any other roles open to him, and was told there were not. He was told to ‘clear out his desk’ and to leave immediately.

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

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

    And

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

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

    The Adjudication Officer found that the Complainant was unfairly dismissed. The Adjudication Officer awarded four weeks’ compensation in the amount of €2461.52 subject to the usual statutory deductions.

     

    Conclusion

    It is essential that an Organisation is aware of paternity leave and the rights that an Employee has whilst on paternity leave. It is important that an Organisation does not treat an Employee differently or discriminate again an Employee because they utilised their entitlement to take paternity leave. Similar to the maternity legislation, the paternity leave legislation contains provisions such as the voidance of termination/notice of termination of a relevant parent while he/she is on paternity leave or the suspension of an Employee while on leave.

  • SIPTU & DAA Agree on 8.5% Pay Hike & Discussions On Profit Share

    by Hayleigh Ahearne
    Aug 22, 2018

    SIPTU members in the Dublin Airport Authority (DAA) have accepted a Workplace Relations Commission proposal (WRC) which includes pay increases of 8.5% over three years.  It is understood that the pay improvements will apply to workers employed by the DAA in Dublin, Cork and in Shared Services based in Limerick.  The agreement was proposed by the WRC upon conclusion of a conciliation conference chaired by an Officer of the Commission.  SIPTU Sector Organiser, Neil McGowan, said: “The acceptance of the proposals by SIPTU members employed by the DAA in Dublin, Cork and in Shared Services based in Limerick, represent a negotiated settlement to a pay claim by the union. The proposals allow for a further increase in pay in second stage discussions in exchange for productivity increases and very importantly it also allows for immediate negotiations on the implementation of a profit share scheme for workers in the DAA”. Mr McGowan added: “The DAA is posting significant profits as a result of restructuring programmes which have been implemented by our members. These have involved major sacrifices as well as pension changes”.  It is understood that this is a reference to the union demand that a process be implemented in order that workers at DAA can get further benefit from the profits of the organisation.

    Large Majority In Favour

    SIPTU say their members at DAA voted by 91% to 9% to accept the offer in a secret ballot. The proposals include an 8.5% increase in pay with 3% backdated to 1st April 2017, 2.75% backdated to 1st April 2018 and a further 2.75% increase to take effect from 1st June 2019. SIPTU organises 1,900 members in DAA at Dublin, Cork Airports and Shared Services in Limerick.

    Free Collective Bargaining Nationally

    The recent DAA agreement is part of an ever-increasing array of pay settlements right across the economy which include settlements at enterprises such as Musgraves, Eason’s and Roadstone.  Related figures taken from Labour Court pay recommendations and other confirmations from trade unions nationally suggest that non-retrospections type wage claims are settling in the region of 2.5% per annum.

  • CCTV Applied In Unfair Dismissal Involving Assault On Customer

    by Hayleigh Ahearne
    Aug 22, 2018

    In a recent appeal to the Labour Court under the Unfair Dismissal Act the Court heard the case of the summary dismissal of a Ticket Inspector who was allegedly involved in an altercation with a Customer.  The case is most interesting in that it includes in some detail the use of CCTV.     

    The Case

    The Worker appealed the decision of the Adjudication Officer to the Labour Court in accordance with Section 8(A) of the Unfair Dismissals Acts 1977 to 2015 and a Labour Court hearing on the matter took place on 10th July last.  In terms of the narrative to events it was submitted that Complainant was employed as a Revenue Protection Officer (RPO) having earlier worked in other roles within the Organisation.  His role as an RPO was to check the tickets of the passengers on the LUAS tram system. In the event that he encountered a passenger without a valid ticket he was required to issue that passenger with a Standard Fare Notice. The Company submitted that RPOs are regularly provided with training on how to manage difficult customers, aggressive behaviour, crowd dynamics and related matters.

    The substantive matter under appeal related to alleged events that occurred on August 24th 2015 and which subsequently gave rise to the process that culminated in the Complainant’s dismissal on 2nd November 2015. The Complainant gave evidence on his own behalf and both sides were legally represented.  It should be noted that Organisation has within its Company policy and procedures the use to CCTV within various areas of what constitutes the workplace and it was such CCTV footage that proved critical to the outcome of this particular case.  

    CCTV
    Two witnesses gave evidence on behalf of Transdev Dublin to the effect that the Respondent was formally presented with CCTV footage of an incident that occurred on 24th of August 2015.  The particular footage in question was retrieved on foot of a Customer complaint.  In the context of related events the Company said it is common case that an incident involving the Complainant and a member of the public took place sometime between 10.00 p.m. and 10.30 p.m. on 24th August 2015 while the Complainant was engaged in his duties on the Green Luas line. The incident occurred at Cowper LUAS stop in the environs of a tram that was heading towards St Stephen’s Green. On the following day, that member of the public complained formally to the Respondent that he had been physically assaulted by a member of the Respondent’s staff on the previous evening. He alleged that he had been punched on the back of his head by a staff member.

    Four members of the Respondent’s staff (including the Complainant) who were present completed a standard Company Incident Report form. The Complainant’s Incident Report contained the following passage describing his recollection of the events that occurred after he started checking passengers’ tickets on an inbound tram between Milltown and Cowper on the evening in question, “I came across a group of young guys age around 18-20 years who had no valid ticket on board the tram. Asked to get their details which they refused and told me to f*** off.  I asked them to step off at Cowper as they were abusive and drunk. Few of them get off at Cowper and some of them run up to another door and we asked driver to hold at the stop, until they get out. They start abusing us, calling me racially (Paki bastard), go back to your country. They decided to walk on tracks towards Beechwood … We get off tram at Harcourt and same group passed by giving us abuse.”

    The Incident Report completed by only one of the Complainant’s colleagues contains a reference to an argument having taken place on the platform in Cowper between a member of the public who had been put off the tram and the RPO’s. Each of the Incident Reports record that the group of youths who are asked to leave the tram in Cowper had been verbally and/or racially abusive to the RPOs on duty that evening.

    The Company Employee tasked with investigating the complaint submitted by the member of public in connection with the alleged incident of 24th August 2015 gave evidence in relation to the role of an RPO, and the extensive and ongoing conflict management training provided by the Respondent to RPOs.  The investigator wrote to the Complainant to inform him that she would be undertaking a formal investigation into the incident and informed the Complainant that he would be invited to a meeting at which he could be accompanied by his trade union representative or other Employee representative and that in advance of that meeting the Complainant and his representative could view relevant CCTV footage.  The Complainant was then placed on paid leave pending the outcome of the investigation.

    At a subsequent meeting on 25th September 2015, the Complainant was accompanied by his Shop Steward and viewed the CCTV footage of the incident of 24th August.  The notes of this meeting were then agreed by the parties present.  They record that when the Complainant was asked about the allegation that he had punched a member of the public in the head, the Complainant replied “No, I have absolutely no recollection of punching anybody.” Nevertheless, his Shop Steward – commenting on the CCTV footage – is recorded as stating: “You can see the punch being thrown but it never landed, it was a wild swipe.”

    Upon completion of the investigation the decision was made by the investigator that the matter should now progress to a disciplinary hearing on alleged grounds of gross misconduct.  A disciplinary meeting was held on 2nd November 2015 and was conducted by the Security and Revenue Protection Coordinator.  The Complainant was advised that the CCTV footage would again be available to him prior to the meeting should he and/or his representative wish to view it. The Complainant was again accompanied by his Shop Steward.   At that meeting it was put it to the Complainant that the CCTV footage shows him “walking up behind the gentleman when he appears to be leaving the situation and you [the Complainant] appear to be swinging what appears to be a radio at him.” In response, the Complainant stated: “I did lift my arm up, I did not hit anyone which I learned following conflict training. I have no memory of hitting anyone. My hand did not touch him, I did not hit him.”

    In witness evidence to the Court it was expressed that chair of the disciplinary proceedings found the CCTV footage compelling. Having viewed it, he concluded that on 24th August 2015 at approximately 22:00 hours at Cowper LUAS stop the Complainant had engaged in actual or threatened physical violence against a LUAS passenger. Although he considered the possibly imposing a final written warning on the Complainant, on balance having considered the CCTV footage and the Incident Reports filed by the Complainant and his colleagues, then the appropriate sanction in all the circumstances was summary dismissal.

    The Complainant recounted his version of events for the Court. He said that on the evening in question, he and his colleagues had dealt with an unrelated issue in Milltown. They then proceeded to take the next inbound tram towards Cowper. There was a group of youths on that tram who did not have tickets. He proceeded to explain to them that he was required, therefore, to issue them with a Standard Fare Notice. Some of the youths made rude finger gestures to him while others pretended to be asleep or were drinking alcohol from cans. The Complainant then asked this group of youths to disembark at the next stop. In response, he says he was verbally abused and called a ‘Paki bastard’. The Complainant admitted he had raised his hand behind one of the youths but denied that he hit, threatened or verbally threatened him.  The Complainant told the Court that he had felt threatened by the gang of youths and was stressed. He also told the Court that he had not instructed his union representative to concede at the investigation meeting that he had thrown a punch on the evening in question.

    The Decision

    In summary noted that the CCTV footage of the incident undoubtedly shows the Complainant acting in a manner that is totally at odds with the conflict management training that he fully accepts he received periodically throughout the course of his employment. Instead of stepping away from a situation of potential conflict in order to de-escalate the situation, as he had been trained to do, the Complainant became aggressive and at the very least attempted to assault a member of the travelling public.  It is not clear from CCTV footage whether or not the Complainant’s fist or the object he held in his clenched fist, connected with the member of the public and it is not for this Court to make any findings of fact in this regard. However, the Court does find that it was reasonable for the Respondent to conclude that the Complainant – by engaging in actual or threatened physical violence against a Luas passenger -seriously misconducted himself such as to warrant the initiation of a disciplinary process. The Court accepts that the Complainant had been taunted by a number of LUAS passengers on the evening in question and may have been the victim of racial abuse. Nevertheless, he was employed in a responsible, customer-facing role. He had accrued considerable experience of working in an undoubtedly, at times, difficult and challenging job. However, he had been provided with regular and comprehensive conflict management training in order to equip him to deal with difficult situations and customers.

    The disciplinary process which the Complainant underwent was, in the Court’s view, conducted substantially in accordance with the procedures collectively agreed between SIPTU and the Respondent and in accordance with fair procedures and natural justice. The Complainant knew at all times what the allegation against him was; he was provided with copies of the Incident Reports submitted by his colleagues and the notes of the interviews with them conducted at the investigatory stage; he was given multiple opportunities to view the CCTV footage; there is no suggestion of any animus or bias against him on the part of those investigating matters; and he was afforded the right to be represented by his trade union representative at all stages of the process.  On that basis the Court found that the complaint of unfair dismissal in this case was not well-founded and the decision of the Adjudication Officer was upheld.

    ____________________________________________________________________________________________________________

    WRC Issue Notice On Trainees and Interns Rights On Pay

    In perhaps a timely manner the WRC have issued a notice that all Employers and HR Practitioners would be well advised to take particular heed of, not least in light of the current time of year and of course the new college year fast approaching. 

    In the notice, issued on the WRC web-site the Commission confirm the following:  The National Minimum Wage Act applies to all individuals engaged under a contract of employment.  The law defines a contract of employment as any contract whereby an individual agrees with another person, to do or to perform personally, any work or service for that person or a third person.

    Apart from the employment of close family relatives and the engagement of registered industrial apprentices, there is no exemption in law from the obligation to pay the national minimum hourly rate of pay. Therefore, national minimum wage rates apply to work experience placements, work trials, internships and any other employment practice involving unpaid work or working for room and board, regardless of the duration of the engagement.

    The right to receive the minimum wage cannot be waived in a contract as any provision in an agreement to do so is void as a matter of law.

    Failure to pay the national minimum hourly rate of pay is a criminal offence, punishable upon summary conviction, by a fine not exceeding €2,500 or imprisonment not exceeding 6 months or both.

    The notice goes on to say; In addition, an Employee not in receipt of the national minimum hourly rate of pay may refer a complaint to a WRC Adjudication Officer who may order payment of the wages unpaid or underpaid.

    Comment

    It would appear the WRC employment rights Inspectorate may now be taking particular notice of these legal provisions and certain practices relating to the training and work trials of individuals who might be subject to such training, trials or work experience.  It is advised that note should be taken.  

  • HR Barometer Event - September 2018

    by Hayleigh Ahearne
    Aug 22, 2018
    How will you plan for the HR challenges in 2019?

    The HR Barometer Breakfast Briefing is a must-attend event for HR Practitioners who are seeking to inform and empower their HR planning in 2019.

    Key senior consultants from Adare Human Resource Management will share the findings of the recent HR Barometer National Survey and their insight into what this means for HR Practitioners in 2019.

    In-depth information on core HR, Employment Law and IR topics will be covered, such as

    • Average absenteeism rates
    • Levels of Employee turnover
    • Average number of training days per Employee per year
    • Ratios of HR staff to Employees
    • The main causes of Employee disputes amongst Irish businesses
    • Retirement and Pensions
    • Gender Pay Gap
    • Pay
    • HR and Employment Law Trends – Challenges and Priorities for 2019

    Adare Human Resource Management commissioned a national survey covering key areas within HR, Employment Law and Industrial Relations. Carried out by Empathy Research, more than 250 Organisations across the country participated in the survey.

    The survey reached out to Irish owned businesses and multi-national Organisations who have 50+ Employees. The survey findings have captured in-depth information on core HR, Employment Law and IR topics and resulted in a detailed report that acts as a benchmark for HR Practitioners across the country specifically in the areas of:

    • HR Metrics (including Absence Management, Employee Turnover, HR to Staff Ratio and Learning & Development)
    • Conflict and Dispute Management
    • HR Trends and Priorities
    • Retirement and Pensions
    • Gender Pay Gap and Pay

    Dublin Event Details:

    Date:                     Tuesday 18th September 2018

    Time:                    8am – 10am. (Registration and light breakfast from 7.45am)

    Location:             The Morrison Hotel (Ormond Quay Lower, North City, Dublin)


    Shannon Event Details:

    Date:                     Thursday 27th September 2018

    Time:                    8am – 10am. (Registration and light breakfast from 7.45am)

    Location:             Treacys Oakwood Hotel, (Airport Road, Shannon, Co. Clare)


    To Register

    To confirm your attendance, please contact:

    marketing@adarehrm.ie 

    or call (01) 5613594 


  • Labour Court Recommend Retrospective Pay Hike Totalling 10%

    by Hayleigh Ahearne
    Aug 01, 2018

    This month the Labour Court issued a recommendation to increase the pay of SIPTU workers employed at the plant construction equipment company Pat O’Donnell & Co.

    The Union had sought an 11.5% cost of living pay increase over the four- year period 2016 to 2019 and was seeking this pay rise without conditions and before it would be willing to engage with the Company on other outstanding matters.  SIPTU argued that their members are very dedicated workers and have always been very co-operative with the Company.

    The Company, who were represented at the Court by the CIF had offered a 6.5% cost of living pay increase over the three - year period from 2016 to 2018.  The Company also insisted that any pay increases would have to include co-operation with normal on-going change and in addition with regard to the introduction of a new IT system ('Navision'), the Company’s Health and Safety requirements and the implementation of the Employee Handbook.  The employer further argued that the workers are currently on a “decent and competitive” rate of pay that is 7.8% higher than the General Construction Sectoral Employment Order.

    Dispute SIPTU Perspective

    This dispute concerns a pay claim on behalf of twenty-four workers at the Company.  Twenty-three of the workers are employed as service technicians.  According to SIPTU the workers were subject to a 3.5% decrease in wages in 2010. The Union further submitted that it subsequently transpired that no decrease had been imposed on non-unionised staff at that time. Nevertheless, two subsequent pay increases (totalling 3.5%) granted by the Company in 2015 were applied to all employees in the Company.  The Union submitted to the Court that it was seeking the following pay increases, without conditions and before it is willing to engage with the Company on other outstanding matters.  The pay demands were:

    •3.5% backdated to 1 January 2016;

    •2.5% backdated to 1 January 2017;

    •2.5% backdated to 1 January 2018; and

    •3% with effect from 1 January 2019.

    Counter Offers

    The Company submitted that the service technicians received pay increases totalling approximately 18% between 2006 and 2008. The average pay increase awarded to other employees in the business at that time was approximately 10%. It further submitted that the 3.5% wage decrease applied to the Workers in 2010 was agreed in order to ensure that the number of service technician positions made redundant at the time could be contained at ten, rather than fourteen.  The Company said it has made a number of counter-offers to the Union, the most recent offer being tabled at WRC Conciliation, was as follows:

    •2% with effect from 1 January 2016;

    •2% with effect from 1 January 2017; and

    •2.5% with effect from 1 January 2018, for the period up until 31 December 2018.

    However, the Company insisted that this proposal was conditional on securing agreement from the Union for co-operation with ‘normal ongoing change’ generally and, in particular, in relation to the introduction and utilisation of a new IT system (‘Navision’); Health and Safety; and revision of the Company / Employee Handbook.

    Ten Percent Over Four Years 2016 – 2019 Inclusive

    The Court recommended that the Workers should receive the following pay increases, but subject to SIPTU agreeing to co-operate with all elements of the change programme proposed by the Company.  The Court’s recommendation was that the workers receive the following subject to the “ongoing change” commitment and cooperation:

    •2.5% with effect from 1 January 2016;

    •2.5% with effect from 1 January 2017;

    •2.5% with effect from 1 January 2018;

    •2.5% with effect from 1 January 2019.

    In its conclusion the Court noted that it had become apparent that there are a number of aspects of the Company’s ‘normal ongoing change’ agenda in respect would benefit from further detailed engagement. In this context the Court further recommended that such engagement should be progressed, if necessary with the assistance of the Workplace Relations Commission, with a view to reaching agreement on all outstanding details within three months of the date of the Recommendation. In default of the Parties reaching final agreement on any of the aforementioned matters within the stated timeframe, they may refer those outstanding issues back to the Court for a definitive Recommendation.  It is perhaps worth noting that notwithstanding the above the parties in this dispute will be back around the table on pay before the end of next year.