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Newsletter Article

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

    by Hayleigh Ahearne
    Apr 30, 2019

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

    Who does GDPR apply to?

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

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

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

    Data can be considered as automated and manual data:

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

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

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

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

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

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

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

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

    When does a DPO need to be appointed?

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

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

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

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

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

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

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

    Storage & Retention:

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

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

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

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

    Breach Notification:

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

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

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

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

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

    Enforcement of the Supervisory Authority:

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

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

    Furthermore, penalties and liabilities can include fines of:

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

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

    Subject Access Requests:

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

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

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

    Data Protection Commission Annual Report 2018 Findings:

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

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


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

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

    Categories of these breaches were as follows:

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

     

    Conclusion:

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

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

  • Case Law Reviewed under the WRC

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

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

    Adjudication Reference: ADJ-00014091

    Summary of Complainant’s Case:

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

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

    Summary of Respondent’s Case:

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

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

    Legislation:

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

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

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

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

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

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

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

    Decision:

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

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

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

    Adare Human Resource Management Commentary:

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

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

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

    ____________________________________________________________________________________________________________

     

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

    Adjudication Reference: ADJ-00017087

    Summary of Complainant’s Case:

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

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

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

    Summary of Respondent’s Case:

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

    Legislation:

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

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

     

    Decision:

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

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

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

    Adare Human Resource Management Commentary:

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

     

    ____________________________________________________________________________________________________________

    Complainant unfairly dismissed for Gross Misconduct awarded €6,500

    Adjudication Reference: ADJ-00017541

    Summary of Complainant’s Case:

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

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

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

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

    Summary of Respondent’s Case:

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

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

    Legislation:

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

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

    Decision:

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

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

    Adare Human Resource Management Commentary:

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

    -          The procedure is fair

    -          The procedure is clear

    -          The penalties which may be imposed are clear and

    -          There is an internal appeals mechanism.

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

  • The Essentials on Record Keeping

    by Hayleigh Ahearne
    Apr 30, 2019

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

    Storage of Data:

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

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

    Retaining Data:

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

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

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

    Legislation regarding record keeping:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    Conclusion:

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

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

  • Workplace Investigations

    by Hayleigh Ahearne
    Apr 02, 2019

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

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

    When would an investigation be necessary?

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

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

    Terms of Reference

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

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

    Role of the Investigator

    An Investigator should conduct the investigation with integrity, fairness, impartiality and respect and report their findings to the Organisation, in line with an agreed Terms of Reference. In employment related investigations, the Organisation should be cognisant of seeking to preserve a good working relationship between the parties and maximise their ability to succeed in the future.

    How is an investigation conducted?

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

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

    Benefits of Workplace Investigations

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

    Risks involved with Workplace Investigations

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

    • a lack of pre-investigation planning;
    • a poorly drafted, or the absence of a Terms of Reference;
    • combining the investigation and disciplinary steps;
    • relying on “untested” information and ignoring discrepancies;
    • failing to establish a process that is perceived as independent and non-bias; and
    • delay in undertaking an investigation

    Recent Case Law - Legal Representation

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

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

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

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

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

    Implications for Employers

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

    Conclusion

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

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

  • Case Law Reviewed under the WRC

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

     

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

    Adjudication Reference: ADJ-00015257

    Summary of Complainants Case:

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

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

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

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

    Summary of Respondent’s Case:

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

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

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

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

    Legislation:

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

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

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

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

    (b) The conduct of the employee

    (c) Redundancy

    Section 6(7) of the Act permits

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

    (a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

    (b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14 (1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7 (2) of this Act.”.

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

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

    Decision:

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

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

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

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

    Adare Human Resource Management Commentary:

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

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

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

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

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

    ____________________________________________________________________________________________________________

     

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

    Adjudication Reference: ADJ-00015419

    Summary of Complainant’s Case:

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

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

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

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

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

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

    Summary of Respondent’s Case:

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

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

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

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

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

    Legislation:

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

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

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

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

    Decision:

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

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

    Adare Human Resource Management Commentary:

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

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

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

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

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

     

    ____________________________________________________________________________________________________________

     

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

    Adjudication Reference: ADJ-00016860

    Summary of Complainant’s Case:

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

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

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

    Summary of Respondent’s Case:

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

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

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

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

    Legislation:

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

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

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

    Decision:

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

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

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

    Adare Human Resource Management Commentary:

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

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

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

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

    An individual is deemed to be self-employed if:

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

    by Hayleigh Ahearne
    Apr 02, 2019

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    by Hayleigh Ahearne
    Apr 02, 2019

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

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

    Date: Monday 8th April 2019

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

    Invitation: Click here to view the full invitation. 

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

     

    Pricing:

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

     

    To find out more about this event, click here.

     


  • Vacancies - HR Consultants (Associate or Contract Basis)

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

    Specialisms Required:

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

    Equality and Diversity Consultants:

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

    Experience Required:

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

    Compensation & Benefits / Rewards & Recognition Consultants:

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

    Experience Required:

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

    Editor:

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

    Experience Required:

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

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

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

    Experience Required:

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

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

    Location: Flexible

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

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

    by Hayleigh Ahearne
    Mar 05, 2019

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

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

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

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

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

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

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

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

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

    Case Law:

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

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

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

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

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

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

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

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

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

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

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

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

    The reasonable test was expressed as:

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

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

    Conclusion:

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

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

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

  • Case Law Reviewed under the WRC

    by Hayleigh Ahearne
    Mar 05, 2019

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

     

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

    Adjudication Reference: ADJ-00012840

    Summary of Complainants Case:

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

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

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

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

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

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

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

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

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

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

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

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

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

    Summary of Respondent’s Case:

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

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

    The Respondent’s Handbook provides:

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

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

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

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

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

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

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

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

    Legislation:

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

    Decision:

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

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

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

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

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

    Adare Human Resource Management Commentary:

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

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

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

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

     

    ____________________________________________________________________________________________________________

     

    Complainant awarded compensation after the Respondent ended Fixed Term Contract

    Adjudication Reference: ADJ-00016404

    Summary of Complainant’s Case:

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

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

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

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

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

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

    Summary of Respondent’s Case:

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

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

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

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

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

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

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

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

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

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

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

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

    Legislation:

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

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

    Natural justice has to be paramount.

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

    Decision:

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

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

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

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

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

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

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

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

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

    Adare Human Resource Management Commentary:

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

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

     

    ____________________________________________________________________________________________________________

    Complainant successful after being dismissed whilst on sick leave

    Adjudication Reference: ADJ-00011266

    Summary of Complainant’s Case:

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

    He claims he was unfairly dismissed.

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

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

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

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

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

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

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

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

    Summary of Respondent’s Case:

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

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

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

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

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

    They detailed that he never provided them with sick certs.

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

    Legislation:

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

    Decision:

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

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

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

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

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

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

    Adare Human Resource Management Commentary:

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

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

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

    by Hayleigh Ahearne
    Mar 05, 2019

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

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

    a)       A paid day off on that day,

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

    c)       An additional day of annual leave,

    d)      An additional day’s pay.

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

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

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

    Scenario examples:

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

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

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

    by Hayleigh Ahearne
    Mar 05, 2019

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

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

    Date: Monday 8th April 2019

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

    Invitation: Click here to view the full invitation. 

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

     

    Pricing:

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

     

    To find out more about this event, click here.



  • Gender Balance Forum

    by Hayleigh Ahearne
    Mar 05, 2019

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

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

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

    Read more about this Forum here.

    Read more about Gender Pay Gap here.

  • Gender Balance Forum - 27th February 2019

    by Hayleigh Ahearne
    Jan 31, 2019

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

     

     

     

  • Main - The Employment (Miscellaneous Provisions) Bill

    by Hayleigh Ahearne
    Jan 31, 2019

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

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

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

    a)       Organisation of Working Time Act 1997; and

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

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

    Amendments of the Organisation of Working Time Act 1997

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

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

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

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

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

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

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

     

    Band

     

    From

     

    To

     

    A

     

    3 hours

     

    6 hours

     

    B

     

    6 hours

     

    11 hours

     

    C

     

    11 hours

     

    16 hours

     

    D

     

    16 hours

     

    21 hours

     

    E

     

    21 hours

     

    26 hours

     

    F

     

    26 hours

     

    31 hours

     

    G

     

    31 hours

     

    36 hours

     

    H

     

    36 hours and over

     

    -

     

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

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

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

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

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

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

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

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

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

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

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

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

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

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

     

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

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

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

    These core terms are as follows:

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

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

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

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

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

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

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

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

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

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

    2. Anti-penalisation provision

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

  • Case Law - Reviewed under the LC

    by Hayleigh Ahearne
    Jan 31, 2019

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

    Labour Court Determination Ref: UDD1871

    Case Background

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

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

    Sleeping On Duty

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

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

    Gross Misconduct

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

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

    Mitigating Ones Loss

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

    Court Comment

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

    Deficient Policies & Procedures

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

    Case Outcome

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

    Adare Human Resource Management Commentary:

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

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

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

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

     

    Payment In Lieu Of Notice Ordered As Part Of Dismissal

    Labour Court Determination Ref: PWD1835

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

    Case Background

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

    The Applicable Law (Payment of Wages Act)

    Section 1 of the Act states:

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

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

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

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

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

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

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

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

    (v) any payment in kind or benefit in kind

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

    “Where—

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

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

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

    Case Outcome

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

    Adare Human Resource Management Commentary:

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

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

    ____________________________________________________________________________________________________________

     

    Signed Compromise Agreement Challenged In Unfair Dismissal Case   

    Labour Court Determination Ref: UDD1868

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

    Case Background

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

    Submissions

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

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

    Case Outcome

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

    Adare Human Resource Management Commentary:

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

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

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

    by Hayleigh Ahearne
    Jan 31, 2019

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

    What other legislation provides protection during this period?

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

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

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

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

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

    What does assess the risk mean?

    This means determining:

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

    The main hazards types being:

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

    What do General hazards include?

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

    What are the hazards specific to pregnancy?

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

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

    What are the hazards specific to breastfeeding?

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

    • Lead and lead substances;
    • Underground mine work.

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

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

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

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

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

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

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

    What happens when the risk cannot be removed?

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

    What is Health and Safety Leave?

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

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

    by Hayleigh Ahearne
    Nov 27, 2018

    What is a workplace investigation?

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

    Terms of Reference

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

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

    When would an investigation be necessary?

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

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

    How Organisations get the Investigation Process Wrong?

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

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

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

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

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

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

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

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

    Principles of Natural Justice

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

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

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

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

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

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

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

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

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

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

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

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

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

    Conclusion

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

  • Case Law - Reviewed under the WRC

    by Hayleigh Ahearne
    Nov 27, 2018
    In this month’s newsletter the team at Adare Human Resource Management consider in detail a number of cases as adjudicated under the Workplace Relations Commission.

     

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

    Adjudication Reference: ADJ-00012438

    Summary of Complainant’s Case:

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

    Summary of Respondent’s Case:

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

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

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

    to—

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

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

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

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

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

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

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

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

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

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

    and(d) he has unreasonably refused the offer.

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

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

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

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

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

    and (e) he has unreasonably refused the offer.

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

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

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

    Legislation:

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

    Decision:

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

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

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

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

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

    Date of Commencement:     1 April 1992

    Date of Termination:            22 December 2016

    Gross Weekly Pay                 €300

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

    Adare Human Resource Management Commentary:

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

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

    ____________________________________________________________________________________________________________

     

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

    Adjudication Reference: ADJ-00014267

    Summary of Complainant’s Case:

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

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

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

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

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

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

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

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

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

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

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

    Summary of Respondent’s Case:

    The respondent HR manager gave evidence.

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

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

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

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

    This message was communicated to all staff.

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

    Bonus Scheme.

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

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

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

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

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

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

    Legislation:

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

    Decision:

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

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

    (b) [….]

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

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

    Three issues need to be addressed

    Did the respondent have discretion not to pay any bonus?

    Was the bonus properly payable?

    The claim for a bonus of 10%.

    Did the respondent have discretion not to pay any bonus?

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

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

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

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

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

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

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

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

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

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

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

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

    Was the bonus properly payable?

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

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

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

    The complainant had resigned by that time.

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

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

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

    Claim for a bonus of 10%.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    Adare Human Resource Management Commentary:

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

    ____________________________________________________________________________________________________________

     

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

    Adjudication Reference: ADJ-00013076

    Summary of Complainant’s Case:

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

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

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

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

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

    Summary of Respondent’s Case:

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

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

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

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

    Legislation:

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

    Decision:

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

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

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

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

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

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

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

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

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

    Adare Human Resource Management Commentary:

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

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

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

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

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

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

    by Hayleigh Ahearne
    Nov 27, 2018

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

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

    Practical steps to preventing an incident occurring:

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

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

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

    Considerations when planning a Christmas Party:

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

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

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

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

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

    Email, Internet and Social media:

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

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

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

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

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

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

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

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

     

    Christmas and Public Holidays for 2018

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

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

    Public Holiday Benefits- Full-time Employees:

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

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

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

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

    Public Holiday Benefits- Part-time Employees:

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

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

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

    Carry Over of Statutory Annual Leave:

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

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