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Newsletter Article

  • HR Barometer Event - September 2018

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

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

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

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

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

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

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

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

    Dublin Event Details:

    Date:                     Tuesday 18th September 2018

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

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


    Shannon Event Details:

    Date:                     Thursday 27th September 2018

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

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


    To Register

    To confirm your attendance, please contact:

    marketing@adarehrm.ie 

    or call (01) 5613594 

     

    Read more about these events here.

  • Absence Management – What Employers need to be mindful of

    by Hayleigh Ahearne
    Sep 06, 2018

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

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

    Recording Attendance/Absence

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

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

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

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

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

    Absence Triggers

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

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

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

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

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

    The Bradford Factor

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

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

    The Bradford Factor is calculated using the following formula:

    B = S X S X D

    Where:

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

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

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

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

     

    Absence Management Policy

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

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

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

    Sick Pay

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

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

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

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

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

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

    Short Term Absence

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

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

    Long Term Absence

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

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

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

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

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

    Recent Case Law

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

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

    Restricting Sick Pay

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

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

    Promoting Wellbeing

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

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

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

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

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

    Conclusion

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

  • Case Law - Reviewed under the WRC

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

     

    Chef dismissed on probation due to performance not racial discrimination

    Adjudication Reference: ADJ-00010659

    Summary of Complainant’s Case:

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

     Summary of Respondent’s Case:

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

    Legislation:

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

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

    Decision:

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

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

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

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

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

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

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

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

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

    Adare Human Resource Management Commentary

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

    The recommended process should flow as follows:

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

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

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

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

     

     

    ____________________________________________________________________________________________________________

     

    Manager awarded €850 for excessive working hours

    Adjudication Reference: ADJ-00012088

    Summary of Complainant’s Case:

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

    Weekly working hours.

    She states that she worked the following hours:

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

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

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

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

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

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

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

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

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

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

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

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

    Summary of Respondent’s Case:

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

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

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

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

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

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

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

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

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

    Legislation:

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

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

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

    Decision:

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

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

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

                    “15. — (1) An Employer shall not permit an Employee to work, in each period of 7 days, more than an average of 48 hours, that is to say an average of 48 hours calculated over a period (hereafter in this section referred to as a “reference period”) that does not exceed—

                 (a) 4 months, or

                 (b) 6 months—"

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

    36.5 hours in week 1,

    41.55 hours in week 2,

    50 hours in week 3,

    63 hours in week 4.

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

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

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

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

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

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

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

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

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

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

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

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

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

    Adare Human Resource Management Commentary:

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

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

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

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

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

    ____________________________________________________________________________________________________________

     

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

    Adjudication Reference: ADJ-00007968

    Summary of Complainant’s Case:

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

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

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

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

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

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

    Summary of Respondent’s Case:

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

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

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

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

    Legislation:

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

    Decision:

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

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

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

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

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

    Adare Human Resource Management Commentary:

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

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

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

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

    by Hayleigh Ahearne
    Sep 06, 2018

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

    The Act has two main tenets:

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

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

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

    Eligibility for Paternity Leave

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

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

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

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

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

    Entitlement for Paternity Benefit

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

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

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

    Notification Procedure

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

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

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

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

    Commencement & Postponement of Leave

    Commencement

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

    Early Confinement

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

    Postponement

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

    Sickness during Paternity Leave

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

    Abuse of Leave

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

    Employee Rights

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

    Return to Work

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

     

    Maternity Leave V Paternity Leave

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

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

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

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

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

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

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

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

    Claim under Paternity Leave

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

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

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

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

    And

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

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

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

     

    Conclusion

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

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

    by Hayleigh Ahearne
    Aug 22, 2018

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

    Large Majority In Favour

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

    Free Collective Bargaining Nationally

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

  • CCTV Applied In Unfair Dismissal Involving Assault On Customer

    by Hayleigh Ahearne
    Aug 22, 2018

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

    The Case

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

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

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

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

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

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

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

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

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

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

    The Decision

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

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

    ____________________________________________________________________________________________________________

    WRC Issue Notice On Trainees and Interns Rights On Pay

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

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

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

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

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

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

    Comment

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

  • HR Barometer Event - September 2018

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

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

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

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

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

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

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

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

    Dublin Event Details:

    Date:                     Tuesday 18th September 2018

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

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


    Shannon Event Details:

    Date:                     Thursday 27th September 2018

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

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


    To Register

    To confirm your attendance, please contact:

    marketing@adarehrm.ie 

    or call (01) 5613594 


  • Labour Court Recommend Retrospective Pay Hike Totalling 10%

    by Hayleigh Ahearne
    Aug 01, 2018

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

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

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

    Dispute SIPTU Perspective

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

    •3.5% backdated to 1 January 2016;

    •2.5% backdated to 1 January 2017;

    •2.5% backdated to 1 January 2018; and

    •3% with effect from 1 January 2019.

    Counter Offers

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

    •2% with effect from 1 January 2016;

    •2% with effect from 1 January 2017; and

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

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

    Ten Percent Over Four Years 2016 – 2019 Inclusive

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

    •2.5% with effect from 1 January 2016;

    •2.5% with effect from 1 January 2017;

    •2.5% with effect from 1 January 2018;

    •2.5% with effect from 1 January 2019.

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

  • “Without Prejudice” Resolution Procedures Absent in Ryanair Pilot Dispute

    by Hayleigh Ahearne
    Aug 01, 2018

    Earlier this month Pilots at Ryanair voted for industrial action in a dispute reportedly related to their efforts to secure formal union recognition, along with matters concerning protocols on seniority, base transfers and annual leave.  For the Company’s part Ryanair have been at pains to express their frustration in terms of, what Ryanair says is, repeated failures on the Union’s part (IALPA / Forsa) to properly engage in discussions.  In this context the Company have said the Union has failed to meet and or respond to numerous invitations to discuss and progress the issues.  At one point it was widely reported that the two sides had difficulty in even agreeing where to meet.

    Dispute Deepening       

    As matters stand (late July) the Pilots have engaged in a number of one day stoppages the effect of which has seriously inconvenienced and disrupted customers.  This industrial action, at time of writing, is to be escalated into August and comes immediately on foot of Ryanair issuing protective notices to staff.  A Forsa spokesperson is reported to have said that the decision by the Airline on issuing protective notices will only strengthen pilots resolve.  It was further reported on the same day that Ryanair issued an ultimatum to the union, saying that there will be no more negotiations “while strikes by Pilots continue”.  So, it would appear the dispute is spiralling out of any sort of control and with no agreed mechanism to apply the brakes.  Should this situation be left to freewheel to its own end it will result in further escalation of the dispute to the detriment of all sides and Stakeholders.   

    At the time of writing the Airline conceded that it was prepared to meet with the Union in Ryanair offices, “but not if any more strikes are called”.  The Company statement added that plans are being finalised for up to 300 job cuts and that these numbers may be increased if further damage is caused to the business by the ongoing strikes.   

    Absence of IR Resolution Processes

    Few would disagree including perhaps the many Stakeholders that this dispute is becoming more entrenched and bitter by the day and is now escalating in a context in which there are no agreed “without prejudice” dispute resolution procedures in place.  There is of course no onus on the Company to agree to any referral of this dispute to any third party be that under the IR Acts or otherwise and Ryanair are well within their rights to manage this dispute and seek resolution consistent with its culture and corporate values.  That accepted, it would be unprecedented in current circumstances that a resolution to such a dispute would be arrived at in the absence of an agreed “without prejudice” dispute resolution process, unless of course there was to be a capitulation of one of the parties, which is wholly unlikely. 

    From a professional IR standpoint and from a context of business priorities, both in the Company and Union context, it would appear that the substantive issues in dispute be now placed at second priority to seeking agreement on a legitimate without prejudice resolution process that both sides can live with.  This would now appear to be the joint business imperative.

  • Topic - The Protected Disclosures Act – What Organisations should be aware of

    by Hayleigh Ahearne
    Aug 01, 2018

    The purpose of the Act is to provide a statutory framework within which Workers can raise concerns and disclose information regarding potential wrongdoing that has come to their attention in the course of their work in the knowledge that they can avail of significant employment and other protections if they are penalised by their employer or suffer any detriment for doing so.

    What is a Protected Disclosure?

    For the purposes of the Act, a “protected disclosure” means, subject to meeting certain criteria, a disclosure of relevant information (whether before or after the date of the passing of the Act) made by an Employee in a specified manner.

    Relevant wrong doings are broadly defined in the Act and include the following:

    • Commission of an offence — has happened, is happening, or is likely to happen;
    • Failure to comply with any legal obligation (other than one arising under the Worker’s contract of employment);
    • Miscarriage of justice;
    • Health and safety of any individual;
    • Misuse of public money;
    • Gross mismanagement by public body;
    • Damage to the environment;
    • Destruction or concealment of information relating to any of the above.

    It is important to note that a matter is not regarded as a relevant wrongdoing if it is a matter which it is the function of the Worker or the Worker’s Employer to detect, investigate or prosecute and does not consist of or involve an act or omission on the part of the Employer.

    Meaning of Protected Disclosure

    The Act provides that if a disclosure is made by a Worker in line with the channels set out in the legislation, a Worker is protected from penalisation by the Employer. Penalisation is defined in the Act and includes for example:

    • Suspension/Layoff/Dismissal;
    • Demotion;
    • Transfer of duties, change of location, change in working hours, reduction in wages;
    • Imposition of reprimand, discipline or other penalty;
    • Unfair treatment;
    • Discrimination;
    • Harassment, threat of reprisal.

    It should be noted that there are several pieces of legislation, particularly in the financial and medical sectors, where reporting of certain matters is mandatory. The Act protects voluntary reporting and does not absolve any Worker from a pre-existing mandatory reporting obligation. Likewise where additional protections apply these also remain in force.

    The motivation for making a disclosure is irrelevant as to whether or not it is a protected disclosure. What is required is that a Worker has a reasonable belief as to wrongdoing and that this wrongdoing has come to the Worker’s attention in connection with his/her employment.

    It is important to note that in situations where a Worker makes a disclosure not in compliance with the Act, the protections under the Act will not be available to the Worker. It is also important to note that deliberate false disclosure will not be protected and that a Worker could leave him or herself open to disciplinary action in that regard.

    Confidentiality

    All reasonable steps must be taken to protect the identity of the person making the disclosure and to ensure the disclosures are treated in confidence. The exceptions to this are (a) where the Worker making the disclosure has made it clear that he/she has no objection to his/her identity being disclosed and (b) the identity of the person making the disclosure is critical to an investigation of the matter raised. An example of this might be where the Worker making the disclosure is called as a witness in the context of an investigation.

    Stepped Disclosure Regime

    The Act sets out a number of distinct disclosure channels for potential whistleblowers. The Act provides for a tiered disclosure regime with a number of avenues open to Workers. The Act encourages the vast majority of disclosures to be made to the Employer in the first instance. However there may be circumstances where this may not always be appropriate. The channels are as follows:

    1. Internal disclosure to an Employer or other responsible person

    A Worker may make a protected disclosure to his Employer where he/she reasonably believes that the information shows or tends to show wrongdoing or if the Worker reasonably believes that the wrongdoing relates to the conduct of some person other than his/her Employer, or to something for which some other person has legal responsibility, then the disclosure can be made to that person.

    2. Disclosure to a prescribed person

    The Minister for Public Expenditure and Reform may prescribe a wide list of "prescribed persons" (e.g. a regulatory body) whose roles and responsibilities are defined by law and are, in his opinion, appropriate to receive and investigate matters arising from disclosures relating to any of the wrongdoings in relation to which a disclosure may be made. Where a Worker chooses to disclose in this manner he/ she must reasonably believe the information disclosed and any allegation contained in it to be substantially true.

    3. Minister

    A Worker employed in a public body may make a protected disclosure to the sponsoring Department rather than to their Employer.

    4. Legal Advisor

    A disclosure made in the course of obtaining legal advice from a barrister, solicitor, trade union or an official of an excepted body is protected.

    5. Other disclosures

    There is also provision for disclosure in other circumstances i.e. disclosure potentially into the public domain (such as the media) where the standard for reporting is significantly higher. In order for this type of disclosure to be protected the Worker must:-

    • Reasonably believe that the information disclosed is substantially true;
    • That disclosure is not made for personal gain; and
    • The making of the disclosure is in all the circumstances reasonable.

    In addition, one or more of the following conditions must be met:-

    • at the time of making the disclosure the Worker reasonably believes that he/she will be subject to penalisation and detriment by his /her Employer if the disclosure is made to the employer;
    • in a case where there is no prescribed person in relation to the relevant wrongdoing, the Worker reasonably believes that evidence will be destroyed / concealed if a disclosure is made to the employer;
    • the Worker has previously made a disclosure of substantially the same nature to either his Employer or prescribed person and no action was taken; and
    • The relevant wrongdoing is of an exceptionally serious nature.

    In determining whether this disclosure is in all the circumstances reasonable, regard shall be had to a number of factors including the identity of the person to whom the disclosure is made, the seriousness of the relevant wrongdoing, whether the wrongdoing is continuing or likely to occur in the future and whether disclosure is made in breach of a duty of confidentiality.

    Workplace Protected Disclosures Policy

    It is mandatory for all public bodies, and highly recommended for all employments in the private sector, to have in place an agreed Protected Disclosures Policy setting out an accessible procedure for making protected disclosures and underpinning a culture of encouraging Workers to speak out if they have genuine concerns.

    As best practice, a policy should be developed and put in place on foot of agreement with all stakeholders in the Organisation i.e. management, Workers and their representatives. The following elements are given as guidance in regard to matters which should be addressed in a policy:

    1. The policy should make clear that the Organisation is committed to a culture which encourages Workers to make disclosures internally in a responsible and effective manner when they discover information which they believe shows wrongdoing. Essentially the policy should underpin that the Organisational culture is such that Workers will feel comfortable and confident about reporting wrongdoing;
    2. The policy should make clear that the Organisation will not tolerate the penalisation of a Worker who discloses information in line with the policy;
    3. The policy should make clear that the Organisation is committed to addressing concerns raised in an effective and timely manner.

    Case Law

    Case 1: In a recent case [Adjudication Reference: ADJ-00005583], an Employee was awarded €30,000, as he contended that he was penalised or threatened with penalisation by his Employer for having made a protected disclosure under the Protected Disclosures Act 2014.

    “The Protected Disclosure is summarised as follows:

    The assignment of unqualified Staff by the Respondent to perform tasks requiring qualifications when qualified staff were available.

    Following procedures, the Internal Audit Unit investigated the disclosure. The unit found that none of the allegations made by the Complainant were upheld. The Complainant appealed that decision on 19th August 2016 to an External Reviewer as provided for in procedures. The External Reviewer reported on 10th February 2017 and found inter alia that “the discloser was treated unfairly and was isolated for making the disclosures, and that his opportunities for career advancement were deliberately curtailed by the (Respondent)”. The External Reviewer further found that the Respondent “did not comply with its own standards as laid out in its policy and that it did not address with sufficient seriousness the concerns of the discloser, and further penalised him for pursuing his complaints”.

    Another incident was described where in February 2015 the Complainant and his wife considered they were under surveillance and the matter was a serious issue reported to Gardaí and management on 23rd February 2015 and appropriate Protocol was initiated. The Complainant upgraded security on his home. The Complainant asked several times from management if there had been any response from the Gardaí, but was told nothing was heard from them. The Complainant wrote to management on 27th July 2016 outlining in detail the enormous affect the continued threat was having on him and his family’s life. Management replied that it understood that the matter was progressed to HQ. The Complainant subsequently discovered that the Gardaí had advised local management on 1st April 2015 that there was no threat to the Complainant and his family. The local manager thanked the Gardaí for their prompt reply on 8th April 2015 but did not advise the Complainant.

    It is argued that there is a causal link between the Complainants protected disclosure and the adverse treatment he received.

    In relation to the extremely serious issue of the potential security threat to the Complainant and his family the Adjudication Officer noted that the Complainant had been seeking a response from management from 23rd February 2015 to 26th August 2016 as to feedback from the Gardaí. The Adjudication Officer noted that the substantive matter had been resolved and correspondence was exchanged between management and the Gardaí in early April 2015. The Adjudication Officer found that the failure of management to inform the Complainant goes beyond the litany of failures and errors made in relation to the potential disciplinary action and stopping of pay due to excessive sick leave days. The Adjudication Officer found that on the balance of probabilities, the errors made regarding the disciplinary and pay issues were errors and not linked to the protected disclosure. However, when the Complainant wrote to management on 27th July 2016 reminding management that he sought a report on the security matter on 29th February 2016, the response he received was that the matter was progressed to HQ and was awaiting a response. This despite local management having knowledge of the removal of the threat to the Complainant and his family since April 2015. The Adjudication Officer found that the failure of management to inform the Complainant, despite his very clear cogent descriptions of the effects of the matter on his family constituted unfair treatment of the Complainant as provided for in the definition of penalisation. The Adjudication Officer concluded that there was a link to his protected disclosure.” 

    Case 2: Another common case with learnings from Employers is the “Dougan & Clark v. Lifeline Ambulances Ltd”. Two senior managers (the "Plaintiffs") of Lifeline Ambulance Service Limited (the "Defendant") were purportedly made redundant by the Defendant in June 2016.

    They claimed that their dismissal was as a result of having made a protected disclosure to the Revenue Commissioners in January 2016 alleging that the Defendant paid their staff expenses in place of taxable pay.

    The Defendant claimed that the sole purpose of the disclosure was for the Plaintiffs to protect themselves against a threat to their positions.

    The Plaintiffs sought reinstatement to their roles or continuation of their salary until their unfair dismissal claims are heard by the WRC.

    Both Plaintiffs were offered re-instatement but both refused.

    Although no cost of the settlement of the men’s unfair dismissal was revealed in the accounts it was thought to be in the region of €100,000 and included a confidentiality clause.

    Conclusion

    The Protected Disclosure Act 2014 aims to help Employers, Workers and their representatives understand the law in regard to the disclosure of information relating to wrongdoing which comes to the attention of Workers in the workplace. It is important to note that the disclosure of information relating to wrongdoing in the workplace is best dealt with in the first instance at workplace level. However there may be circumstances where this may not be appropriate. It is also in the interests of Employers, Workers and their representatives to have in place clear and agreed procedures providing for “whistleblowing” in the workplace.

  • Case Law - Reviewed under the WRC

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

    Cashier awarded €13,000 for substantial and procedurally unfair dismissal

    Adjudication Reference: ADJ-00010729

    Summary of Complainant’s Case:

    The Complainant is of impeccable character and is trustworthy with a good record with the Respondent.

    The Complainant was involved in an incident at work where a bonus was paid out deliberately to a Customer who had not won the bonus instead of the Customer that won the bonus.

    The Complainant was acting under the direct instructions of the Shift Supervisor to pay out the different customer to the correct customer that won the bonus on the machines.

    The Complainant did not profit or seek to profit from the transaction.

    The Complainant on receipt of the “tip” from the incorrect payee returned the tip to the safe as an asset of a company.

    The Complainant did not try to conceal or falsify any documents in the transaction.

    The Complainant did openly admit what happened to the owner’s son, at his own instigation, when he met the owner’s son soon after the incident.

    While accepting that the disciplinary invite letter did state up to and including dismissal as an outcome the Complainant did nothing wrong and did not feel the need for representation or to be concerned when invited to meetings with the “external” auditor.

    The Complainant was not given any right of appeal.

    The reasons for the disciplinary meeting or dismissal were not set out in the letters concerning both.

    The sanction of dismissal was wholly unjustified in the circumstances and the Complainant was acting under the instruction of his Supervisor and did not profit from the transaction.

    The Complainant did no wrong and acted under instructions and has been unfairly dismissed as a result.

    Procedurally the Complainant was disadvantaged by not having representation, not being really told about how the Respondent was considering dismissal and was give no right of appeal. The Investigation notes were written up afterwards and the Complaint was not asked to sign and agree them.

    Summary of Respondent’s Case:

    The Complainant was involved with another Employee in taking a bonus win from a   machine from one customer and gave it to another customer.

    The Company investigated the issue using CCTV and interviews and found that the Complainant had been jointly involved in the transaction thus denying one correct customer the bonus and giving it to another customer.

    The Complainant was advised of his right to representation. He declined this.

    The Complainant was given adequate notice of all meetings concerning the investigation and disciplinary process.

    The Complainant admitted his involvement in the unauthorised transaction.

    The actions of the Complainant meant the Respondent had to pay out the customer affected and this was a cost to the company.

    The Respondent considered that the only appropriate action having considered all the circumstances was dismissal on the basis it had substantial grounds to do so.

    The Respondent denies that the dismissal was unfair.

    Legislation:

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

    Decision:

    Having considered all the evidence and submissions in this case the Adjudication Officer deemed the dismissal unfair on the following grounds;

    The Respondent did not have substantial reasons to dismiss the Complainant and a lesser sanction, if any, was more appropriate given that the Complainant operated under the instruction/supervision of his Shift Supervisor, did not try and conceal or deny the transaction, did not gain or seek to gain from the transaction, returned the “tip” immediately to the Respondents safe, notified the owners son immediately he met him of the transaction, was not properly notified of the seriousness of how the Respondent was viewing the issue, was not given an internal right of appeal and was “dismissed” by a third party agent of the Respondent, who conducted both the investigation and disciplinary process. No consideration for his prior exemplary record seems to have been considered by the Respondent, the investigation and disciplinary process seemed to be as one, no contemporaneous records of the notes or disciplinary meetings were kept and the Complainant was not given the subsequent notes to review and agree or disagree with.

    The external auditor admitted in evidence that he and the Complainant were in regular chats about different things outside of work issues and had a very good relationship and they got on well and therefore it is clear that from this relationship cited and the fact that Complainant did nothing wrong, in his view, that the Complainant took the view the investigation and disciplinary process was not serious in terms of potential impact on him. Further to that point the Respondent admitted that the Complainant did not steal or attempt to steal any funds and that he had a very honest track record with the Respondent. The Respondent also admitted that the Complainants story, in both the investigation, disciplinary and the WRC Hearing were totally consistent and the Complainant did not at any stage seek to defraud the Respondent.

    Overall, the Adjudication Officer found that this is an unfair dismissal, both the substantive issues involved and procedural faults in the process.

    The Adjudication Officer found the Complainants attempts to clear his name admirable and as this was his primary concern, with no apparent concern on behalf of the Respondent for the Complainants good name or income after the dismissal, justifies his lack of progress in mitigating his loss. The Complainants main interest was in seeking to clear his name of any wrongdoing. The Complainant is entitled to pursue a career in football coaching and this is also relevant to loss mitigation. It is also relevant that the Complainant was entitled to be concerned about what kind of reference, verbal or otherwise, the Respondent would have given to a potential Employer, given they had dismissed the Complainant for alleged gross misconduct, and thus casting doubt on the Complainants character if a negative reference was provided to the potential Employer.

    With regard to the Respondents position that the Complainant and the Shift Supervisor were of equal status and the Complainant should and could have said no to the swop of payee, this does not stack up as the Shift Supervisor, both by title and responsibility, outranked the Complainant.

    The Adjudication Officer found the Complainant was unfairly dismissed, on both the substantive grounds as outlined above and procedural grounds, and he merits the higher end of the award available to me to decide. The Adjudication Officer awarded the Complainant €13,000 compensation for his unfair dismissal.

    Adare Human Resource Management Commentary:

    Organisational procedures are necessary to ensure that while discipline is maintained in the workplace by applying disciplinary measures, but also to ensure that these measures are carried out in a fair and consistent manner.

    Such procedures serve a dual purpose in that they provide a framework which enables management to maintain satisfactory standards and Employees to have access to procedures whereby alleged failures to comply with these standards may be fairly and sensitively addressed. It is important that procedures of this kind exist and that the purpose, function and terms of such procedures are clearly understood by all concerned.

    In the interest of good industrial relations, grievance and disciplinary procedures should be in writing and presented in a format and language that is easily understood. Copies of the procedures should be given to all Employees at the commencement of employment.

    ____________________________________________________________________________________________________________

     

    Adjudication Reference: ADJ-00011604

    Employee found to have no contract of employment in place awarded €2,160.00

    Summary of Complainant’s Case:

    The Complainant did provide the Adjudication Officer with a written submission wherein he states he was employed from at least 2015 to 2017 at which point he was dismissed. The submission outlines certain other issues and Grievances which are quite simply outside the remit of the Terms of Employment (Information) Act 1994 and the Adjudication Officer noted from the paperwork provided that a claim under the Unfair Dismissals legislation might be pending or has been considered.

    The Complainant did not receive a Contract of Employment whilst employed by the Respondent. The required Terms of Employment as outlined in the Act were never made known to him.

    The Complainant’s weekly wage was €540.00.

    Summary of Respondent’s Case:

    The Respondent through its Director made the case that the Complainant was a self-employed Contractor. The evidence was that the Complainant had initially been taken on as an employee and then was engaged as a self-employed Contractor.

    Legislation:

    Section 7 of the Terms of Employment (Information) Act, 1994 in circumstances where a Contract of Service has commenced and where the said Employee employed by an Employer is entitled to be provided (within two months of the commencement of the employment) with a Statement of certain Terms of the employment (as specified in Section 3 of the 1994 Act).

    Decision:

    The Adjudication Officer has carefully considered the evidence adduced. The Respondent herein seeks to eschew obligations it might have as an employer stating that from January 2015 to June of 2017 the Complainant was self-employed. In June of 2017 the Department of Social Protection (having assessed the working environment) found that the Complainant had been an employee for this period of time, and this decision was not appealed. This finding, on the face of it, appears to be a reasonable view of the facts that pertained – there was no evidence to suggest that the Complainant was self-employed or thought he was self-employed. The Adjudication Officer is therefore of the view that the Complainant should have had a Contract of Employment or other written statement stating the terms and conditions of his employment from before January of 2015. This was never forthcoming and the Respondent Company has therefore failed to meet its obligations under the Terms of Employment (Information) Act 1994.

    The Adjudication Officer noted that the Respondent has now engaged the services of an Employment Services provider to assist with the creation of Contracts of Employment for all staff but this has only happened after the fact.

    In the circumstances, the Adjudication Officer considered the complaint to be well founded and directed a payment of compensation up to the value of four week’s remuneration be paid and in the calculating this, the Adjudication Officer award the sum of €2,160.00.

    Adare Human Resource Management Commentary:

    Within this case we see a very topical viewpoint whereby the Complainant is of the view that he is an Employee, whereas the Respondent is of the view the Complainant is self-employed therefore acting as a contractor. This is topic that all Organisations should be mindful of.

    The difference between the contracts of a self-employed contractor and an Employee are that:

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

     

    A self-employed person is not an Employee however, a risk often exists that a self-employed contractor may be deemed an Employee due to the relationship they hold with an Organisation. Care should always be taken to ensure that the lines do not become blurred and that an individual’s status is clearly defined.

    ____________________________________________________________________________________________________________

     

    Export Operative awarded €4800 as no rest breaks received and annual leave pay

    Adjudication Reference: ADJ-00008040

    Summary of Complainant’s Case:

    The Claimant commenced employment with the Respondent on June 13th 2016 and resigned with effect from Jan. 15th 2018. On March 16th 2017, she brought 6 discrete complaints to the Commission. Firstly, she contends that due to the volume of work allocated she was not in a position to take her rest breaks.  She contends that she raised this matter with her supervisor several times (e.g. in the course of ‘daily huddles’). Secondly, she contends that she is due payment for annual leave accruals. This is estimated at 20 days. Thirdly, she is claiming recompense in respect of the hours worked in excess of her contractual arrangement and working time legislation. These extra work hours were necessitated by the volume of work, which she felt was inappropriate for a staff member of her (limited) service. Fourthly and fifthly, she claims unfair dismissal. Though she was not formally dismissed, the dismissal might be categorised as a claim of ‘constructive’ dismissal. Finally, sixthly, she alleges discrimination on the grounds of gender, family status and disability. This claim is associated with the Claimant’s pregnancy. The Claimant’s last day at work was Feb. 20th 2017, when she left on stress related leave and was not due to return until the end of her maternity leave. On Feb. 28th 2017 the Claimant submitted her complaints to the Respondent under the latter’s Grievance Procedure. Further to investigation, the Respondent rejected the Claimant’s grievances as unfounded. The Claimant’s version of events led the Health and Safety Authority to advise her that her stress was work related and that she should ask her Employer about altering her work environment\load\arrangements. The Claimant’s G.P. took a broadly similar view of the scenario and also wrote to the Respondent in respect of same.

    Summary of Respondent’s Case:

    The Respondent categorically and unequivocally rejects all complaints\allegations made by the Claimant and submitted extensive supporting documentation\evidence in respect of their position. With regard to the 6 discrete complaints brought to the Commission firstly, she contends that due to the volume of work allocated she was not in a position to take her rest breaks. She contends that she raised this matter with her supervisor several times (e.g. in the course of ‘daily huddles’). The Respondent contends that they never forbade the Claimant from taking her breaks and that ‘she received her rest breaks in line with those provided for under the Act’. Secondly, she contends that she is due payment for annual leave accruals. This is estimated at 20 days. The Respondent contends that the entitlement stands at 21 days and it is their intention to pay the sum due on return from maternity leave. Thirdly, she is claiming recompense in respect of the hours worked in excess of her statutory legal entitlements (and contractual arrangement) with the Respondent. The extra work hours were necessitated by the volume of work, which she felt was inappropriate for a staff member of her (limited) service. The Respondent contends – and produced supporting evidence to show - that they did not breach working time regulations as ‘the Claimant worked on average less than 40 hours per week’ and in any case (as per the employment contract) they would be under no obligation to pay overtime. Related thereto, the Respondent reviewed the Claimant’s workload and found that it was ‘well within range and capacity’. Fourthly and fifthly, she claims unfair dismissal. The Respondent insists that the Claimant was ‘at no point dismissed’ and that ‘the employment contract has not been severed by either party’. Finally, sixthly, she alleges discrimination on the grounds of gender, family status and disability. This claim is associated with the Claimant’s pregnancy.   The Respondent contends that the Claimant has failed to make a ‘prima facie’ case of discrimination.

    The Claimant’s last day at work was Feb. 20th 2017, when she left on stress\health and safety related leave and was not due to return until the end of her maternity leave. On Feb. 28th 2017 the Claimant submitted her complaints to the Respondent under the latter’s Grievance Procedure. Further to a ‘thorough investigation’, the Respondent rejected the Claimant’s grievances as unfounded. The findings were that the workload was manageable, the handover and support structures were sufficient and the Company had a duty of care … that meant they could not allow her to return to the workplace until she had been classed as fit to do so’. The Claimant’s version of events led the Health and Safety Authority to advise her that her stress was work related and that she should ask her Employer about altering her work environment\load\arrangements. The Claimant’s G.P. took a broadly similar view of the scenario and also wrote to the Respondent in respect of same. However, the Respondent notes that the Claimant enjoyed ‘reasonable accommodation’ in respect of same and presented examples in support of their position (e.g. counselling, support staff, reallocation of load, risk assessment). Furthermore, they point out that on the advice of their retained Occupational Health Physician (OHP), for the protection of the Claimant - who was deemed unfit to work by the OHP – the Claimant was granted (health and safety) leave as her ‘pregnancy would be best served by being out of the workplace’. The Respondent also records that they liaised with the Health and Safety Authority for the purpose of meeting their various obligations.

    Legislation:

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

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

    Section 13 of the Industrial Relations Acts, 1969 requires that the Adjudication Officer makes a recommendation in relation to the dispute.

    Decision:

    CA-00010599-001: Firstly, she contended that due to the volume of work allocated she was not in a position to take her rest breaks. With reference to same, it is notable that pursuant to the Organisation of Working Time Act 1997, an Employer must put in place and notify in writing to each Employee of a procedure whereby an Employee may notify in writing to their Employer the fact that they were unable to take a rest break that they would have otherwise been entitled to. The Employer must keep a record of having notified the Employee of their right to rest breaks and also keep a record of having notified each Employee of the procedure to notify the Employer in the event that they do not take their rest break (regulation 3). The claim is well founded and succeeds. An award of €2,000 to the Claimant is made and must be paid within 42 days of this decision.

    CA-00010599-002: Secondly, she contended that she is due payment for annual leave accruals. This was estimated at 20 days. The Respondent contended that the entitlement stands at 21 days and it is their intention to pay the sum due on the Claimant’s return from maternity leave. The claim is well founded and succeeds. An award of €2,800 to the Claimant is made and must be paid within 42 days of this decision.

    CA-00010599-003: Thirdly, she claimed recompense in respect of the hours worked in excess of her statutory and contractual arrangement with the Respondent. The extra work hours were necessitated by the volume of work, which she felt was inappropriate for a staff member of her (limited) service. The Respondent contends – and produced supporting evidence to show - that they did not breach working time regulations as ‘the Claimant worked on average less than 40 hours per week’ and in any case (as per the employment contract) they are under no obligation to pay overtime. The claim is not well founded and fails.

    CA-00010599-004 and CA-00010599-005 Fourthly and fifthly, she claims unfair dismissal (under 2 enactments). The Claimant submitted her complaint to the Commission on March 16th, 2017. There is no evidence to substantiate the claim that she had been dismissed (constructively or otherwise) on this date. The claim is not well founded and fails.

    CA-00010599-006: Sixthly, the Claimant alleges discrimination on the grounds of gender, family status and disability in respect of harassment and employment conditions. As per the provision at Section 85 A of the Employment Equality Act 1998, in such scenarios it is (and has been) the established practice of the Equality Tribunal, the Workplace Relations Commission and the Labour Court that in the first instance the complainant must present basic facts from which it can be inferred that he\she was treated less favourably than another person is, has been, or would be treated, on the basis of the discriminatory grounds cited. For example, this is apparent from the Labour Court’s reliance on or analysis of the Southern Health Board v Mitchell (DEE011, [2001] ELR 201) case. Arising therefrom, the first requirement is that the Claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. That is, on the balance of probabilities, the Claimant must show from the primary facts upon which they rely that this principle of equal treatment has not been applied to them. It is only if and when those primary facts are established to the satisfaction of the adjudicating third party - and they are regarded by the third party as being of sufficient significance to raise a presumption of discrimination - that the onus shifts to the Respondent to prove that there is no infringement of the principle of equal treatment.

    For example, in the Margetts v Graham Anthony & Company Limited (EDA038) case, the evidential burden which must be discharged by the complainant before a prima facie case of discrimination can be said to have been established was further outlined by the Labour Court, stating that:

    ‘The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.’

    Hence, it is only when the complainant has discharged this burden to the satisfaction of an Adjudication Officer\third party that the burden shifts to the Respondent to rebut any inferences of discrimination. In this instance the Claimant failed to meet this preliminary threshold, as no such instances or evidence of discrimination under the specified grounds in respect of this complaints were presented\raised at the hearing.

    The claim is not well founded and fails.

    Adare Human Resource Management Commentary:

    Employee working patterns are heavily regulated by Irish legislation. An Employee working 4.5 hours or more, but less than 6 hours, must be provided with a minimum unpaid break period of 15 minutes during their working day.

    An Employee working 6 hours or greater must be provided with a 30 minute unpaid break during their working day.  Where an Employee is entitled to this 30 minute break, he/she does not have to be provided with the 15 minute break earned after 4.5 hours work. There is no obligation to pay an Employee in respect of these break periods unless otherwise agreed in the contract of employment.

    Breaks afforded at the end of the working day are not regarded as fulfilling the requirements of the legislation, i.e. allowing an Employee to work through their half hour break in order to finish their working day a half hour earlier is not deemed appropriate. If an Employee is unable to take their breaks, they should advise management and management should ensure that the Employee receives their correct entitlement going forward.

    An Employer should be cognisant that the Organisation of Working Time Act also sets out minimum entitlements to annual leave and public holidays for all Employees. All Employees are automatically entitled to annual leave on commencement of employment. Time spent on annual leave, public holiday leave, maternity leave, adoptive leave, paternity leave, parental leave, jury service leave, certified sick leave or the first 13 weeks of carers leave must be treated as though the Employee was in attendance at work for their normal working hours.

  • Help Desk - Driving for Work Purposes – What Organisations need to know

    by Hayleigh Ahearne
    Aug 01, 2018

    Over 14,000 road collisions between 2008 and 2011 may have been work related. The figures include as many as 4,672 vans, trucks and buses. A further 9,427 collisions involving private cars could also have been work related.

    Driving for work includes any person who is driving on the road as part of their work, either in:

    1. A vehicle provided by their Employer,
    2. Their own vehicle and receives an allowance or payment from their Employer for any distances driven.

    Commuting:

    Commuting to work is not generally classified as driving for work, except where the Employee’s journey starts from their home and they are travelling to a work location that is not their normal place of work.

    In the case of journeys taken in a vehicle (van, jeep, truck or fleet car) provided by an Employer, an Employer has a duty of care to ensure the safety of Employees using the vehicle. Employers should have appropriate policies and procedures in place to ensure safety when Employees drive a work-provided vehicle or drive their own vehicle for work.

    Driving for work involves a risk not only for Employee’s, but also for fellow Workers and members of the public, such as pedestrians and other road users. Every Employer or self-employed person, must, by law, manage the risks that may arise when one or their Employees drive for work. Employers should have systems in place to ensure that Driving for Work activities are road safety compliant. Employers cannot directly control roadway conditions, but they can promote and influence safe driving behaviour and actions by their Employees.

    Why should Employers be concerned with driving for work safety?

    While drivers are responsible for how they drive, an Employer has duties in helping to make driving for work safer.

    Three sets of laws influence driving for work in Ireland:

    1.       Road Traffic Laws: the Road Traffic Act 1961 influences driving on public roads in Ireland. The Gardai, (in collaboration with the Health and Safety Authority [HSA]), are responsible for enforcing road traffic laws and investigating collisions and fatalities.

    2.       Health & Safety Laws: the Safety, Health and Welfare at Work Act 2005 and associated regulations influence driving for work in Ireland. Other legislation may apply, such as Dangerous Goods Transport by Road and Construction regulations.

    An Employer should be aware that directors may be prosecuted for a work-related road collision if it is proven they have not managed safety properly.

    An Employer has obligations in the following areas:

    • Duty of care—An Employer must take measures to assure that work-related journeys are safe, members of staff are able to drive safely, and all vehicles and associated equipment are fit for use. An Employer should also be aware of their duty towards the safety of other road users and pedestrians affected by their drivers.
    • Safe systems of work—An Employer must put in place proper systems of work such as documented safe systems of work for securing vehicle loads. They must have a safety statement that identifies all possible hazards, assesses risks to their Employees, and provides adequate controls to minimise risk.
    • Information, instruction, and training—An Employer should give their Employees proper information and training to protect their safety, health, and welfare.

    3.       EU Rules on Driving say that an Employer must:

    • Not expect Employees to drive under conditions that are unsafe; this means drivers must obey the rules on driving time, breaks and rest periods and that their vehicles should be roadworthy and fit for use.
    • Never put pressure on a driver to complete a journey in a shorter amount of time than is needed or to use a vehicle that is not roadworthy.
    • Not enter into contracts with schedules that could endanger their drivers or other road users.

    A Safe Systems Approach to Managing Driving for Work:

    An Organisation has a legal duty to manage health and safety at work. This is a wide-ranging requirement: it should be part of the everyday work process and part of good management generally.

    1.       Develop a driving for work policy

    Driving for work policy should:

    • outline the aims of safe driving for work policy;
    • emphasise management’s commitment to this policy;
    • refer to the relevant legislation and guidelines;
    • give an overview of the business (nature of business, work locations, Organisational structure, number of Employees);
    • identify to whom the policy applies and to whom it does not apply;
    • explain how Employer will manage driving for work; and
    • Give details of resources and responsibilities.

    Appoint a person to manage driving for work. This person should be clear about their role and responsibilities and have authority to make sure that the policy is put into practice.

    2.       Risk assess driving for work hazards

    Consider all of the ways in which the Employees operate a vehicle. Discuss with the staff and identify the hazards that they routinely encounter and any hazards which it could reasonably be anticipated that they will encounter.

    Employers then need to record all the hazards their Employees face when driving for work and assess the risks involved with each. This will help them to decide on the most effective way to control these risks.

    Employers should consider the risks associated with:

    • intoxicated driving;
    • driving at inappropriate speeds;
    • distracted driving;
    • using safety equipment provided in and for the vehicle;
    • dealing with collisions;
    • dealing with breakdowns and emergencies;
    • vehicle requirements; and
    • Journey planning.

    3.       Put safe systems into practice

    To manage driving for work effectively, Employers need to have systems in place that will:

    • make sure everyone knows their role and responsibilities;
    • make sure that drivers and managers have the right skills and proper training;
    • help Employers keep up to date records on each driver, including:
      • driving licence class and expiry date,
      • driver’s hours and working time,
      • penalty points and motoring convictions,
      • collisions and incidents,
      • mileage for each work year, and
      • training and assessments (date and results); and
      • make sure vehicle checks, inspections and maintenance are regularly carried out so vehicles are kept in a safe and roadworthy condition at all times.

    4.       Measure safety performance

    This involves checking that the aims of driving for work management programme are being met. These checks should include:

    • analysing incident reports,
    • regular driver licence checks,
    • regular checks with the drivers on their penalty point status,
    • review of vehicle tracking and event data recorders,
    • regular driver health checks,
    • checks on driver driving time, breaks and rest periods, and
    • regular review of preventative and planned vehicle maintenance activities.

    Employers should encourage their drivers to report any driving for work incidents, including near misses. This feedback will help Employers to deal with the underlying causes of road collisions and potentially save lives. Employers should also keep records of all collisions and near misses, as well as investigating and following up with safety improvements to prevent similar problems happening again.

    5.       Review safety performance

    It is important that Employers review their driving for work programme on a regular basis. This review should identify any trends and also assess if Employees are following the programme. Employers can then use the results of this review to make regular improvements to their business’s driving for work programme and procedures.

    When setting up a Safe Driving for Work programme, it is useful to look at the experiences of other Employers who have been successful in this area.

    Safe Driver:

    Drivers of Company cars, vans, buses and Heavy Commercial Vehicle (HCVs) are more likely to take risks and to be at fault when a driving incident occurs.

    This is not just due to driving skills and attitudes. Driving for work involves specific risks because of the type of vehicles driven and the amount of time spent behind the wheel. The greater the time spent behind the wheel, the greater the exposure to risks associated with driving for work.

    An Employer should check that drivers always have a valid driving licence, insurance, tax and roadworthiness certificates for each vehicle driven. In addition it is important to check the driver’s health and medical history. Drivers have an individual responsibility for their driving behaviour and must assess their own fitness to drive. They should never drink and drive, drive when tired, or drive under the influence of drugs (either prescribed or over the counter).

    Safe Vehicle:

    Daily vehicle pre-use checks are a simple and effective way to spot potentially dangerous issues or defects before vehicles are used. Employers and self- employed people should have a system of routine daily checks in place to ensure that vehicles are in good working order, safe and fit for purpose.

    Drivers must know their vehicle capabilities and not exceed them. They should familiarise themselves with the correct operation of their vehicle.

    Drivers using their own vehicle for work are responsible for its roadworthiness, motor tax, insurance and condition. The motor insurance policy must include cover for business use. The vehicle must have a valid certificate of roadworthiness (NCT or CVRT) and be serviced according to the manufacturer’s recommendations. An Employer should have a legal duty to check that their Employee’s vehicle is safe and legal when it is being used for work and they may request documentary evidence to confirm this.

    Safe Journey:

    Almost all road collisions involve human error, ranging from simple mistakes to deliberate dangerous and illegal behaviour. Every year people are killed in collisions in which someone was careless, reckless or in a hurry. Speed is the single biggest contributory factor in vehicle collisions.

    There are some straightforward steps drivers can take to make their journey safer:

    • allow plenty of time so the driver is not under pressure to drive at unsafe speed,
    • plan and note the route before setting out,
    • plan for the safest route, avoiding urban and residential areas if possible, particularly schools,
    • try to use dual-carriageways and motorways where possible,
    • check travel and weather information before travel and during the course of journey,
    • slow down or even cancel the journey in severe weather conditions such as heavy rain, fog, high winds, ice or snow,
    • always use daytime running lights,
    • plan when and where the driver will take breaks. Rule of thumb is a 15 minute break for every two hours driven,
    • always drive in a safe and legal manner; and
    • Be courteous and considerate of all other road users when driving for work.

    An Employer should have procedures for emergencies such as accidents or breakdowns. Ensure that drivers have the following in their vehicles:

    • A copy of the emergency procedures,
    • contact details of the person(s) to whom they should report emergencies and incidents,
    • contact details of the breakdown firm and insurers their Organisation uses and any reference numbers that they may need to quote, and
    • A fully-charged mobile phone to call for help if necessary. Do not use the phone while driving.

    When dealing with collisions and emergencies, personal safety and the safety of any passengers should always be the first consideration. Use the hazard warning lights and high visibility clothing to make sure driver and the vehicle can be seen by other road users. Never leave the scene of a collision. Collisions that result in injury while driving for work should be reported to the Gardaí and the line manager immediately. Details should be recorded on a preliminary incident report form.

    Advantages of a well-managed driving for work programme:

    Below are just some of the advantages a well-managed driving for work programme can produce.

    The Organisation:

    • increased Employee loyalty and enhanced public image by showing commitment to Corporate Social Responsibility (CSR);
    • compliance with the to the Safety, Health and Welfare at Work Act and the Rules of the Road;
    • reduced likelihood of employee injury or death and subsequent sickness and dependency costs;
    • increased productivity;
    • savings on fuel, maintenance and repair costs by improving travel planning and driving;
    • avoidance of insurance increases;
    • Improvement of business's legal defence if a claim is made against it.

    The Employees:

    • increased safety;
    • enhanced training;
    • Better insight into the Company.

    The Community:

    • increased safety for road users (drivers, cyclists and pedestrians);
    • increased safety for public and private property;
    • Better connection to your business.

    Conclusion:

    Driving for Work purposes is a task that most Organisations will deal with at one time or another. Therefore, it is extremely important that Organisations make themselves aware of their obligations in this respect. It is best practice that all Organisations seek to be prepared by having policies in place so that all Employees will know what the rules and regulations are prior to having to drive for work purposes.

    For further information in relation to Driving for Work or any Health and Safety issues please contact Tony McDonnell - Health and Safety Consultant of Adare Human Resource Management

    With over 32 years as a Firefighter-Paramedic and Operational Fire Officer, a lot of experience has been acquired in all aspects of fire, rescue and medical emergencies. This has stood to Tony when delivering fire safety training or offering fire safety consultancy and first aid responder (workplace) courses.

    Tony studied Health, Safety and Welfare in UCD. Tony is a Chartered Member status with IOSH. As a result, Tony is now a proficient safety consultant compiling safety statements, risk assessments and control measures.

    Tony is also a trainer in key occupational related courses, including fire safety, first aid responders, manual handling, people handling, abrasive wheels, safety management, risk assessing, fire extinguishers, cardiac first responder, paediatric first aid.

    Tony, Chartered Member of IOSH (CMIOSH) Member of IFE (MIFireE) P.Cert in Env.Man

    Tony can deliver training on a range of topics including but not limited to;

    1. Manual handling
    2. Patient/People handling
    3. First Aid Responder
    4. First Aid Responder Refresher
    5. Cardiac First Responder (AED)
    6. Fire Safety Management
    7. Fire Extinguisher training
    8. Evacuation Chair Training
    9. Abrasive Wheels Training
    10. Workplace Safety Representative Training
    11. Managing Safety Training

    Contact details:

    Phone: 01 561 3594 / 086 011 5026

    Email: tmcdonnell@adarehrm.ie

  • Workplace Mediation – how effective is it?

    by Hayleigh Ahearne
    Jul 03, 2018
    What is Mediation?

    Mediation is a voluntary process of conflict prevention and resolution that allows the parties in dispute the opportunity to address and resolve their issues in a confidential and private environment.

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

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

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

    Mediation can be effective in some of the following situations:

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

    Mediators Role

    The Mediator’s role is to be non-judgmental and non-directive. The Mediator is neither a judge nor an arbitrator and does not adjudicate or give decisions on the rights or wrongs of the actions of the parties. The Mediator helps the parties to identify their issues and needs and to explore how those needs can be addressed.

    Key skills of an Effective Mediator

    In order to increase the likelihood of arriving at a successful outcome for all of the parties concerned, the top 5 key skills of an effective mediator include possessing: 

    1. Strong listening skills – in order to clearly understand what the problem is and recognise possible options for resolution that might be alluded to;
    2. Good questioning skills – to obtain required information, clarify understandings and test for possible areas of agreement and disagreement;
    3. A High level of Emotional Intelligence – remembering that different Employees may have different views of what the issues are and ensuring to understand everyone’s interests;
    4. Summarising skills  – what is said in order to help to concentrate and focus attention on the main points;
    5. Being Pragmatic - looking at the issues under dispute and asking if the proposed solutions will really work? If not, re-addressing concerns with the parties until a satisfactory outcome is reached.

    Stages in the Mediation Process

    In order to increase the likelihood of a successful outcome, participants should be prepared to work towards resolution and have the authority to agree on a solution. The focus of the mediator is to facilitate and broker agreements, remain impartial and make no judgements regarding the parties involved. Mediators assist and enable all parties to work through problems and identify solutions.

    A fundamental element of the mediation process is that the parties to a dispute provide all information in relation to same in good faith, and fully disclose any relevant information which may have a bearing on the process. Any documents containing pertinent information may be shared with the Mediator confidentially, and subsequently may be shared by the Mediator with the consent of the party concerned.

    Mediation should be facilitated by an independent mediator, who is trained in mediation skills. Many Organisations engage the services of a consultant to undertake this work for them, although this is not a requirement.

    It is expected that parties to the mediation are entering into the process with the intention to address and seek resolution of the issues, and accordingly should co-operate with the mediation process to avoid unnecessary delays.

    Stage 1:                Pre-Mediation

    It is usual that the mediator will provide a formal pre-mediation agreement that would outline such items as roles, process and the requirement for confidentiality.  In addition, the mediator will typically meet with each of the parties separately for a pre-mediation meeting. The purpose of this meeting is to: 

    • Obtain a brief outline of the concerns and issues which have been raised by each party; Listen to each parties concerns and ensure they have fully understood their issues; 
    • Explain the process to be followed and terms of engagement; 
    • Explain the ground rules and;  Other alternative approaches available to the parties should mediation  be determined not to be appropriate or is not successful; 
    • Advise on any questions raised.

    Stage 2:                The Mediation Process

    A mediation normally takes place at a neutral venue, with breakout meeting rooms assigned to each party. Joint meeting rooms for facilitated meetings by the Mediator are also designated for this respective use.

    The mediator generally brings the participants together and invites each of them to put their side of the story across during a period of uninterrupted time in order so that the other party may listen to the issues raised and the mediator may ask questions to get clarification or more information.

    Throughout the process, the Mediator may call one or more side-meetings to speak privately with the parties in designated breakout rooms. Similarly, either party may request a break or side-meeting with the Mediator to speak in confidence. Discussions held in side-meetings will not be shared by the Mediator with the other party, unless agreed with the party concerned.

    Each party is expected to show respect for the other person involved. The mediator may seek to help each person understand the disagreement through the eyes of the other participant.  

    At this stage the mediator will begin to summarise the main areas of agreement and disagreement and draw up an agenda with the parties for the rest of the mediation.  

    Having identified the issues to explore, the mediator encourages communication between the parties, promoting understanding and empathy and changing perceptions. The aim of this part of the meeting is to begin to shift the focus from the past to the future and begin to look for constructive solutions.

    There may be some time spent exploring what is said and ensuring that the issues are fully understood by all before moving to the next stage.

    Stage 3:                Agreement

    The mediator will seek to keep the communication flowing smoothly and help the participants solve the dispute themselves. With the parties, the mediator seeks to identify some common values and mutually agreeable behaviours that each would find acceptable with a view to reaching a mutually agreeable solution that builds on some common ground.

    Unlike a more traditional formal process, a mediator will not make decisions for the participants. If the problem cannot be solved during that meeting, a convenient date may be chosen to continue the mediation, if it is not resolved in the interim.

    Where the parties to the mediation reach agreement, a Note of Agreement should be prepared by the parties before the meeting draws to a close. The Mediator may assist in the preparation of the Agreement. Agreement is deemed to have been reached once the parties involved have signed the Note of Agreement.

    This agreement is a confidential, final, binding, and an enforceable agreement between the parties. The agreement represents resolution of all the issues that were raised, or could have been raised, between the parties and that concern or relate to the written issues exchanged between the parties.

    If a mutually acceptable solution is arrived at, the Mediator may also seek to work with the parties to identify any potential future roadblocks which may arise and determine the ways in which any issues which do arise will be resolved.

    The parties may also look to put in place review mechanisms whereby they themselves can monitor progress with the outcomes above. Further assistance may be required from the Mediator in this regard.

    Information arising in mediation is confidential, and may not be used in any subsequent investigation.  No notes should be retained by the mediator, and these should not be placed on the Employee file.

    If mediation is undertaken and is unsuccessful, then consideration should be given to what alternative dispute resolution mechanisms could be utilised, whether these are internal or external to the Organisation.

    Benefits of Mediation

    There are numerous benefits of utilising mediation. Some of the fundamental benefits include the following:

    • Privacy - Mediation is a private process. All discussions, offers, actions or undertakings are shared informally and purely for mediation purposes, which fosters a spirit of openness and leads to a very real agreement in most cases.
    • Relationship Preservation – The parties should be in a position to continue to work together following agreement at mediation.
    • Swift Agreement – A dispute can be discussed, negotiated and solved very quickly in comparison to use of other forums which may endure for long periods of time.
    • Mediation is owned by the parties to the dispute, therefore the parties control the content of the process, and the end result.

    Mediation Act

    The Mediation Act 2017 commenced on the 1st January 2018. The bill was published at the beginning of 2017 and passed both houses of the Oireachtas in September 2017 and was signed into law by the President on 2nd of October 2017. 

    The commencement of the Act is recognition by the State of the contribution mediation will make to the improvement of dispute resolution systems in Ireland. The Act provides a statutory framework for delivery of mediation within the legal system. This framework will make the mediation process even more robust and reliable.

    With this new Act in place, we suspect that parties involved in a dispute will be more likely to opt for mediation before heading to court.

    It is believed that the Act will make mediation more available and deliver better resolutions, at a lower cost, to those who are involved in disputes.

    The Act also means that agreements achieved through mediation are now legally enforceable.

    Conclusion

    When conflict arises in the workplace, a decision has to be taken as to how the issue will be addressed. Mediation is a confidential process which encourages all parties to discuss all elements of the dispute. Mediation can encourage a more swift resolution of differences and aims to find a solution that satisfies all parties. Efficient working relationships can often be restored through the practice of mediation. The restoration of relations is a key function of mediation. It is up to the managers and business owners of Ireland to embrace this form of dispute resolution so that it becomes a culturally acceptable norm.

  • Case Law - Reviewed under the WRC

    by Hayleigh Ahearne
    Jul 03, 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.

     

    Horticulturist awarded €2,461 relating to 'cloak of redundancy' whilst on Paternity Leave

    Adjudication Reference: ADJ-00008251

    Summary of Respondent’s Case:

    The Respondent had made a decision to make the Complainant redundant in October 2016 as a result of a reorganisation of his business and the closure of one of its outlets.

    A new position was being created with broader a general management responsibilities who would not just have responsibility for plant buying but would have overall responsibility for all staff. Previously, these duties had been split between two members of staff.

    He did not consider any other options in terms of the reorganisation as the Complainant’s role was the one that was being made redundant. There was no selection process.

    The Respondent wanted to deal with the change as soon as possible as he was due to travel and was not aware that the Complainant’s being on paternity leave was an issue.

    Summary of Complainant’s Case:

    The Complainant received a text message on January 11th 2017 while he was on paternity leave following a period of sick leave.

    The message was to ask him whether he was free to attend a meeting the following day, January 12th. He did so.

    At the meeting the Respondent congratulated him on the birth of his child eleven days earlier and initially made some reference to an approach made by the Complainant about a wage increase the previous summer.

    The Respondent told him he was going to create a new position of ‘Assistant Manager’ and that he, the Complainant was being made redundant.

    The Complainant asked whether there were any other roles open to him, and was told there were not. He was told to ‘clear out his desk’ and to leave immediately.

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

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

    And

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

    It is not disputed that this happened.

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

     

    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.

    Unfair Dismissals Acts 1977-2015: An Employee who is covered under the Acts and feels that they were unfairly selected for redundancy may take a case of Unfair Dismissal under these Acts.

    Decision:

    Two issues arise in this case; the first is under the Paternity Leave and Benefit Act, 2016.

    The second is whether a genuine redundancy existed in this situation and, if so, were the correct procedures followed to effect it.

    The first of these is straightforward. The Respondent stated in his evidence that he ‘was not aware that paternity leave was an issue’, by which he meant that he was unaware of the legal position in this regard.

    The Respondent’s cavalier attitude to that legislation was also reflected in his approach to his obligations under redundancy procedures.

    It is somewhat incredible that a decision was taken to make the Complainant redundant as early as October, according to the Respondent‘s own evidence, but no conversation took place with him about it, or the fact that he may have been at risk of it.

    Then, in circumstances which could scarcely have been more insensitive, he was given one day’s notice of a meeting at which his employment is terminated and he is told to leave the premises and not to return. However, it is the total absence of any procedures which is of more concern; the lack of proper or any notice, the lack of a selection procedure or consideration of alternatives.

    The Complainant relied on the dicta of Mr Justice Peter Charleton in the leading case of JVC Europe Ltd v Panisi [2012] 23 E.L.R 70 [IEHC] 279 where he states;

    ‘In an unfair dismissal claim, where the answer is asserted to be redundancy, the employer bears the burden of establishing redundancy and of showing what kind of redundancy is apposite. Without that requirement, vagueness would replace the precision necessary to ensure the upholding of Employee rights’.

    The judge went on to refer to a termination under ‘the cloak of redundancy’ as being not a redundancy at all, but a dismissal.

    The credibility of the Respondent is further put in doubt by the fact that the beneficiary of the Complainant’s dismissal was the Respondent‘s son. He may well be qualified for a new role in the business but that does not relieve the Respondent of the need to follow a fair procedure in respect of the Complainant.

    He did not do so, and indeed his conduct was at the extreme edge of unfairness, as well as insensitivity to the Complainant.

    On this latter point, lest it be thought that sensitivity should play no part in the rough and tumble of commercial decision making, the Complainant also referred to the case of O’Driscoll v Siebel Systems Emea Ltd, in an extract from the highly-respected textbook, ‘Employment Law’, Maeve Regan and Ailbhe Murphy, 2nd Edition, 2017 at [19.07], where, in a reference to the O’Driscoll case, the following appears;

    ‘Employers are generally required to treat Employees with consideration and respect in the context of redundancy. For example, in [O’Driscoll] the claimant was informed of her redundancy the day before her return from maternity leave. In finding that a genuine redundancy situation did not exist one of the factors referred to by the EAT was that the manner in which the Respondent had terminated the claimant’s employment was ‘tantamount to summary dismissal’.

    This is fully applicable to the current case and the Complainant’s case succeeds on all the grounds claimed.

    The Unfair Dismissal Act permits compensation in respect of financial losses attributable to the dismissal. Unusually, the Complainant has very limited losses.

    He was without income for a short period; only three weeks from the date of the expiry of his notice on February 12th until, as a result of extremely diligent job seeking of which evidence was provided, he gained new employment on March 3rd and he has no continuing losses and enjoys a somewhat higher wage than he did with the Respondent.

    Accordingly, he has limited, actual losses attributable to the dismissal, other than some additional travel costs. In such circumstances the Act permits an award of four weeks’ pay, which the Adjudication Officer will award having regard to the seriously unacceptable nature of the Respondent’s conduct of the matter.

    In addition, it was clear that the Complainant was motivated by what he considered to be the injustice of the Respondent’s behaviour towards him and a finding that he was unfairly dismissed may be of value to him in this regard and in respect of his curriculum vitae and future career.

    The Complainant was unfairly dismissed and the Adjudication Officer upholds the complaint CA-00010969-001. The Adjudication Officer award four weeks’ compensation in the amount of €2,461.52 subject to the usual statutory deductions.

    Adare Human Resource Management Commentary:

    Redundancy occurs where an employee’s position ceases to exist and the employee is not replaced. Any employee aged 16 or over with 104 weeks’ continuous service with an employer is entitled to a statutory redundancy payment in this situation.

    An Employee cannot be given Notice of Redundancy while on maternity leave, additional maternity leave or paternity leave. The date of an Employee’s notice in a redundancy situation under the Redundancy Payments Acts 1967 to 2012 is deemed to be the date of his/her expected return to work as notified to her Employer under the legislation. An Employer should consider all alternatives and also ensure a fair process is followed.

    ____________________________________________________________________________________________________________

     

    Warehouse Operative awarded 4 weeks’ pay as Respondent had no evidence to support the immediate termination of Employee

    Adjudication Reference: ADJ-00011296

    Summary of Complainant’s Case:

    The Complainant stated that he had been out sick for a number of days and on his return on 21st  August 2017 he attended a “back to work” meeting with the Respondent. He had a letter typed, being his resignation letter, which he presented to the Respondent. He stated this letter gave the Respondent one month’s notice of termination as per his contract of employment. He did not have a copy of this termination letter at the Hearing. He was informed by the Respondent that they would prefer he left on that date and he was not required to work his notice. He was not paid his minimum notice as per his contract. He emailed the Respondent in relation to his outstanding money and he did receive a response from the Respondent. The Complainant did not have copies of these at the Hearing.

    Summary of Respondent’s Case:

    The Complainant was employed from 4th January 2016. On 13th August 2017 a text was received from the Complainant’s partner informing them that the Complainant was unwell. On 14th August 2017 an investigation began due to allegations of falsified company records including clocking in procedures involving a number of Employees. They were placed on suspension pending the outcome of the investigation. The Complainant would also have been suspended if he had shown up to work on that day. He texted the office on 15th August 2017 stating he had a Doctor’s note. There was no contact from the Complainant on both 17th and 18th August 2017. The Respondent issued a letter to the Complainant on 18th August 2017 seeking contact from the Complainant. The Complainant attended work on 21st August 2017 and immediately tendered his resignation letter through the General Manager. His resignation was immediately accepted as he had verbally requested an immediate termination. The Respondent issued a resignation acceptance letter on 25th August.

    The Complainant contacted the Respondent on 29th August 2017 requesting payment of sick pay and minimum notice. The Respondent replied on 31st August 2017 confirming that by agreement the Complainant terminated the employment with immediate effect. He therefore was not entitled to payment in lieu.

    Legislation:

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

    Decision:

    On the basis of the evidence from both Parties plus a written submission from the Respondent with supporting documentation the Adjudication Officer found as follows –

    The written statement of the Complainant’s Terms and Conditions of Employment dated 12th January 2016 provides as follows- “ Length of Service – Successful completion of probationary period or more – 4 weeks. Section 8.4 – Notice of Termination to be given by Employee – “During this period you will be entitled to your full remuneration”.

    The resignation letter dated 21st August 2017 does not specifically give one month’s notice as asserted by the Complainant at the Hearing. The resignation letter states as follows – “…I write this letter giving my notice of my intent to leave. If there is anything I may help with over the transitioning weeks please feel free to come to me…”

    There was a dispute between the Parties at the Hearing with the Complainant stating there was no agreement with the Respondent to immediately terminate the employment on 21st August 2017 and the Respondent stating that the Parties had jointly agreed that the employment would terminate with immediate effect on 21st August 2017. However, the Adjudication Officer noted there is no evidence from the Respondent to support their contention that the employment would terminate with immediate effect. Accordingly, the Contract of Employment must be honoured by the Respondent.

    The Adjudication Officer directed the Respondent to pay the Complainant 4 weeks wages, subject to any lawful deductions, in accordance with his Contract of Employment. This to be paid to the Complainant within 42 days of the date of this Decision.

    Adare Human Resource Management Commentary:

    The Minimum Notice and Terms of Employment Act set out requirements in relation to giving and receiving notice as an Employer. It places obligations on both the Employer and the Employee in relation to notice. If the contract of employment requires a different notice period than the statutory minimum, the greater of the two must be given.

    Many Employers seek to impose longer notice periods by agreement with an Employee, usually through the contract.  Where a longer period of notice is agreed, this must not disadvantage an Employee.

    Organisations should be cognisant of the fact that when they are setting notice periods, that these must be fair and reasonable, in line with custom and practice, and ensuring the correct notice period is paid to an Employee.

     

    ____________________________________________________________________________________________________________

     

    Retail Assistant claim fails as he did not stay in contact with Employer while on Sick Leave

    Adjudication Reference: ADJ-00006465

    Summary of Respondent’s Case:

    The Respondent outlined in detail their interaction with the Claimant due to absence from work due to illness. They refute as entirely incorrect the Claimant’s statement in the complaint form that he was dismissed because he was suffering from an illness. The Respondent held regular meetings with him from the time he initially went on sick leave on 2nd July 2015 to his dismissal over one year later. The Respondent notes the lack of progress made by him in the context of his medical condition which rendered him unfit for work. They submit that they gave him as much time as it could afford to give to have him return to work but that the position became untenable when over one year since commencing long term absence, neither the Claimant nor his doctor was in a position to give the Respondent a return date to work.

    The Respondent submits that it took an adequate assessment of the Claimant’s position and took the view that no amount of reasonable accommodation could enable the Claimant to return to work given the serious and highly limiting nature of his illness.

    Summary of Complainant’s Case:

    The Claimant claimed that his dismissal letter was posted on 10th July 2016 prior to a meeting on 12th July 2016. The fact that meeting was adjourned and when it resumed it was turned into a disciplinary hearing was not a fair hearing. Furthermore, the Claimant received a letter on 5th July 2016 threating him with dismissal. Therefore, the dismissal procedures are flawed as per the Respondent’s Handbook.

    Legislation:

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

    Decision:

    The Adjudication Officer considered the submissions and evidence presented by both parties. In regard to the letter of dismissal, the post mark in so indistinct that it could also be read as 18th July 2016. The Claimant also received a letter dated 5th July before his meeting of 12th July stating “should your position remain the same and you still cannot provide us with any indication of a return to work date, I may be left with no alternative but to terminate your contract”. Therefore, the Claimant was made aware of his situation before the meeting.

    From evidence presented the Claimant did not stay in regular contact with the Respondent and did not submit weekly sick certificates as required. It was reasonable for the Respondent to conclude that he did not intend to return to full time work

    The Respondent did not dismiss him until over a year had passed on long term sick leave, the Adjudication Officer therefore accepted that they behaved in a reasonable manner. The Adjudication Officer does not find the dismissal to be unfair and the claim fails.

    Adare Human Resource Management Commentary:

    Absence management and sick leave absenteeism are complex issues with no simple or instant fixes. 

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

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

    Reasonable accommodation should also be given due consideration by an Employer prior to any final decision being made.

     

  • Breach of Trust and key considerations for Organisations

    by Hayleigh Ahearne
    Jul 03, 2018

    Every contract of employment contains an implied duty that neither the Employer nor the Employee will act so as to breach the duty of mutual trust and confidence that exists between them. If either party does breach the duty, it can entitle the other to take action – a breach by the Employee may entitle the Employer to terminate the contract of employment, a breach by the Employer may entitle the Employee to resign and claim constructive dismissal.

    Arrangements for handling discipline issues can sometimes vary from employment to employment depending on a wide variety of factors including the terms of contracts of employment, locally agreed procedures and the industry agreements, however the principles and procedures of the Code of Practice on Grievance and Disciplinary Procedures should apply unless alternative agreed procedures exist in the workplace which conform to its general provisions for dealing with grievance and disciplinary issues.

    Procedures are necessary to ensure both that while discipline is maintained in the workplace by applying disciplinary measures in a fair and consistent manner, grievances are handled in accordance with the principles of natural justice and fairness. Apart from considerations of equity and natural justice, the maintenance of a good industrial relations atmosphere in the workplace requires that acceptable fair procedures are in place and observed.

    Disciplinary Procedure

    It is a requirement of the Unfair Dismissals Acts that every Employee be provided with a copy of their Employer’s disciplinary procedure not later than 28 days following commencement of employment.  A failure to comply with this requirement will weaken an Employers case where they are required to justify a dismissal.

    An Employer who loses confidence or trust in an Employee is required to establish that trust and confidence has actually broken down due to the conduct of the Employee and will have to demonstrate they have acted reasonably in treating that as a sufficient reason to dismiss.  This is likely to involve going through a process of giving warnings and allowing an opportunity for improvement unless the behaviour is so serious that it amounts to gross misconduct.  

    Stages of the Disciplinary Procedure

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

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

    Dismissal

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

    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.

    Gross Misconduct

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

    • Could the Employee have reasonably known that the conduct would warrant dismissal, for example was this stated in a policy related to the incident, and was that policy communicated to the Employee?
    • Have other Employees been dismissed in the same circumstances?
    • Is there sufficient evidence to demonstrate that, on the balance of probabilities, the Employee committed the offence?
    • Has fair account been taken of the mitigating circumstances, if any that have been presented by the Employee?

    If the answer to any of the above questions is “no”, then dismissal may not be an appropriate sanction to impose on the Employee.

    Case Law demonstrating the impact of ‘Breach of Trust’:

    1.       Structured Finance Management (Ireland) Limited and Vadym Kakinin’ (ADJ0000-155-A)

    The Employee appealed a previous finding of the Workplace Relations Commission (WRC) that he had not been unfairly dismissed to the Labour Court who overturned the decision of the Adjudicator but found that the Complainant contributed 70% to his own dismissal.

    The Labour Court went on to say that the decision to dismiss does not stand in isolation of other events that had taken place in the employment over many years involving the Complainant. The Court finds that the Complainant had become unmanageable and was increasingly occupying management time and resources addressing unfounded and unsubstantiated accusations against other Employees and members of management. This behaviour was having a severe adverse impact on the other members of staff and on the operation of the business. Accordingly an ongoing relationship between the Complainant and the Respondent was at best highly unlikely to succeed. The Court finds that the bond of trust between the Employer and Employee had been fractured if not completely broken.

    It found that the decision to dismiss and the manner in which it was taken cannot but be considered an unfair dismissal but that “the Complainant contributed significantly to this outcome through his unreasonable and indefensible behaviour towards his colleagues and towards management.

    Ultimately the Court considered that the bond of trust between the Complainant and the Respondent is so fractured that it would be futile to restore the Complainant to his previous position or to employment with the Respondent but also that the dismissal had had a severe financial impact on the Complainant and he deserved to be compensated for the adverse impact caused by his dismissal.

    An award of one year’s salary but reduced by 70% (deemed to be the level of contribution by the Complainant to his own dismissal).

    2.        ‘Brendan O’Callaghan v Dunnes Stores’ (UD 54/2012, MN 25/2012, WT 14/2012) 

    The Employment Appeals Tribunal ruled that it could not be said that “having the investigation and disciplinary hearings conducted by the same person was a flawed and unfair procedure”. However, the Tribunal concluded that the sanction of dismissal was fair and noted: Trust and confidence are essential elements in the employment relationship and a particularly high level of trust and confidence is reposed in a manager. Breaching sales and refunds procedure is serious/gross misconduct but instructing subordinates to engage in fraudulent transactions and compromise their trustworthiness is even more serious“.

    3.       A Worker V A Retail Company’ ADJ-00006889

    The Complainant stated that she commenced employment in the legal department of the Respondent. She was fully aware of the confidential nature of the documentation she handled on a day to day basis. She accepts that, in error, she sent two sets of financial information to the wrong accountancy firm. The Complainant was dismissed for gross misconduct, that misconduct being a breach of trust and confidence when she sent confidential information to a third party in error. The Respondent accepts that the Complainant did not deliberately send the information to the wrong accountancy firm, it was gross incompetence. On that basis they did not hold an investigation or a disciplinary hearing. They did not allow the Complainant an opportunity to state her case. They did not allow her appeal that decision.

    The Respondent accepts that it did not engage in a disciplinary process. It did not do so because the facts of this case come within the small number of cases where instant dismissal is warranted. Whilst the Adjudication Officer accepted the error might have eroded the trust the Respondent had in the Complainant, the Adjudication Officer found that the decision to dismiss her summarily was grossly unfair. It was a situation that warranted an investigation, particularly into the instructions the Complainant received from the solicitor and the actual level of sensitivity of the documentation. The Complainant should have been given an opportunity to state her case and should have had the benefit of a full disciplinary process. To dismiss her in the manner the Respondent did was humiliating.

    The Adjudication Officer found that the dismissal of the Complainant was disproportionate and awarded the Complainant €15,000.00 compensation.

    Conclusion

    Implied in every contract of employment is a term that requires both Employers and Employees to avoid behaving in such a way as to destroy the relationship of trust and confidence that should exist between them. Adare Human Resource Management would also suggest that each contract of employment would hold an explicit confidentiality clause, so that it is clear for all Employees what the Organisation deems confidential.

  • HSE CAUTIOUS ON SECTION 39’s PAY RESTORATION

    by Hayleigh Ahearne
    Jun 21, 2018

    In a comprehensive document issued by the HSE to related stakeholders entitled “Pay Restoration Section 39 Funded Organisations” leaked through several sources of the media the HSE have highlighted the significant IR complexities involved in its attempt to rectify pay anomalies within Section 39 organisations when compared to other non S39 health workers and in particular the health care sectors.  The motivation for the HSE to finally recognise the extent of these difficulties and to seek out a solution was on foot of threatened industrial action by SIPTU and FORSA last February, which was averted at the last hour through the intervention of the WRC.  The current conundrum according to the HSE whilst many of these Section 39 organisations are fully funded by the HSE the workers involved are not employed by the State and in that context incremental pay is not funded.  An added complication is that prior to FEMPI these workers were treated the same as their State employed colleagues.  The union argument now is not just one of pay restoration by also pay retrospection.  

    In compiling the report the HSE says that Section 39 agencies were asked to document when, if any restoration of previous pay reductions were implemented and detail the timeline of these events. Twelve agencies have made some form of restoration of pay reductions during the period 2016 to 2018. A number of agencies documented a series of measures that must yet be implemented with many citing funding difficulties being the reason for not restoring to date.

    According to the draft report total pay restoration costs to 2018, as assessed by those agencies amount to €15.449m. This amount does not include other funding requests such as pay related recommendations referred by the Labour Court or retrospective payments for pay restoration payments already made. The report goes on to state that some of these measures are outside the scope of this exercise which is specifically addressing the costs of restoring previous pay reductions that were applied.  In order word “retrospection” does not appear to be in scope but most certainly involves the core basis of the unions claim.

    The agency assessment for total funding expected from all sources amounts to €50.208m of which €39.715m is expected from the HSE. Included in this sum are funding requests for pay restoration up to 2020 by some agencies, retrospective payments towards restoration payments already incurred, Labour Court recommendations and general funding requests for which no specific detail was provided.

    Based on information provided in thirty-eight assessable agency returns, the HSE made an assessment for expected pay restoration costs of €34.439m. A number of assumptions underlie this estimate. Scaling these costs up to include the fifty pilot organisations, the projected cost estimation is €37.735m. Applying the same allocation method to the total 302 agencies which hold service level agreements would amount to €67.881m.

    The context and direction in which the HSE appear to be setting out their stall suggests that on foot of an extensive and formal information gathering exercise with thirty-eight S39 agencies on a self-assessment basis, the HSE will fund restoration in situations whereby the HSE are satisfied the organisation in question does not have the ability to fund such pay restoration.  It appears that those agencies who in the eyes of the HSE can fund restoration won’t get HSE financial assistance to do so.  However, the thorny and critical question of pay retrospection remains silent.  This is likely to be a source of dispute in a context in which it seems the retrospective can has already kicked to the end of the road.

  • EMPLOYER REFUSES TO ATTEND LABOUR COURT IN RECOGNITION DISPUTE

    by Hayleigh Ahearne
    Jun 21, 2018

    This month’s update to the Labour Court’s case website provided some interesting reading in relation to the varying tactics Employers might consider in dealing with disputes involving union recognition.  For those not familiar with some of the complexities of the IR Acts, this case in point was brought by SIPTU under Section 20(i) of the Industrial Relations Act 1969. 

    In short, this particular provision (“Section 20”) is often used by unions in situations whereby the Employer refuses to recognise or engage with the union on behalf of its members in that employment.  The Section 20(i) provision allows the union to submit its grievance to the Labour Court but in a context in which the Court Recommendation is binding on the Claimant (the union) but not binding on the Respondent (in this case the Employer).  Unions often use this approach knowing full well they will get some level of a result from the Court that the “parties should engage and the Employer should recognise the union etc.”.

    In the event that the Employer exercises his / her right not to accept the Court Recommendation then the union from a tactical point of view may consider escalating the dispute to industrial action on the added basis that the Employer has rejected the Court outcome.  The Employer is free to reject such an outcome regardless of whether they attend the Court Hearing or not.  Not attending the Court to outline ones legitimate position means the unions will get a free run to assist them in their goal and from an IR strategic point of view that is a thought often worth considering particular in a context where one is free to reject the Court outcome in any event.                 

    SIPTU’s claim in this case is for formal union recognition on behalf of the process operators employed by the Company in the Beam and Ethylene Oxide areas of the Employer’s Tullamore site.  The Company recognises the Union for negotiation purposes at the Westport site and has a Collective Agreement approved by the Labour Court under section 24 of the Organisation of Working Time Act 1997.

    The Union wrote to the Company on 13th October 2017 seeking a meeting with the Company to formalise trade union recognition. On the 9th November 2017 the Company replied declining the request and so the Union referred the matter to the Workplace Relations Commission. The Company declined the invitation.  On the 27th April 2018, the Union on behalf of the Workers referred the dispute to the Labour Court in accordance with Section 20(1) of the Industrial Relations Act, 1969 and agreed to be bound by the Court's Recommendation.  The union argued that the Tullamore and Westport sites are owned by the same Company.  The Company negotiates through a collective bargaining process with SIPTU on their Westport site and the union’s membership on the Tullamore site is greater than the Union’s membership on the Westport site.

    The Company was not present to make their argument.  In its recommendation the Court said that it was informed by the  Representative of the Employer that the Employer would not be attending the Labour Court hearing and in the absence of the Employer recommended that “the Employer should recognise the Union as the Representative of those Employees who are in membership of the Union and should engage with it in dealing with employment related matters arising within the employment affecting those members”.  In terms of the dispute the ball is now in the union court.

    ____________________________________________________________________________________________________________

     

    PUBLIC HOLIDAY PREMIUM PAID IN “ERROR” RED CIRCLED 

    In a recent case, the outcome shows that an Employer who discovers certain premiums or allowances that were paid in error cannot in all cases be altered back to the contractual norm.  In recent case ref: LCR21721 an apparent error in the calculation of public holiday pay premium was red circled to the individual workers concerned. 

    The case concerns a dispute between the Employer and the Union in relation to pay arrangements for public holidays.  The workers concerned are employed as General Operatives in Wicklow County Council. The Union claimed that prior to the amalgamation of all Wicklow Council Districts, these Claimants received a normal days' pay plus double time payment for hours worked on public holidays. The Union sought the continued application of this previous arrangement to the Claimants in their current employment. The Employer rejected the Union's claim, arguing that it is not in a position to alter its current public holiday pay arrangements as it would be out of line with existing norms within the organisation and throughout the county.

    The specific claim by the Union was for the retention of public holiday overtime payment arrangements for Outdoor Grade Operatives previously employed in Bray Town Council which has since 2013 has been amalgamated into Wicklow Town Council.  The public holiday overtime payment arrangements which existed in Bray Town Council prior to the amalgamation were as follows:- A paid day on the day plus double time for the number of hours worked on the day.  The arrangement which exists in Wicklow County Council is as follows:-  A paid day on the day plus basic pay for the number of hours worked on the day plus time-off-in-lieu for the number of hours worked on the day.

    Wicklow County Council argued that as part of the process leading to the abolition of Bray Town Council, it was discovered that an incorrect payment format for working on public holidays applied in Bray.  The Council sought to change the overtime payment system to bring it into line with that which applies in Wicklow County Council.

    The Union disputed this change saying that the change had been imposed unilaterally and without consultation. It also stated that prior to December 2013 the payment system where Employees were required to work overtime on a public holiday was always payment of double time for the hours worked in addition to the paid day on the day of the public holiday.

    In its Recommendation the Court said that having considered the submissions made by both sides, it is of the view that those Employees employed in Bray Town Council prior to its amalgamation in 2013 who were in receipt of double time payments for public holiday overtime hours worked should have this method of payment “red circled” i.e. they should on a personal basis retain the right to be paid double time for the hours worked if they so wish where they are required by Management to work on a public holiday. Other Employees should continue to receive paid time off in lieu in addition to basic pay for hours worked and the paid day in respect of the statutory entitlement. 

    Certainly an interesting reference case.
  • Topic - Gender Pay Gap – Irish Employers get prepared

    by Hayleigh Ahearne
    Jun 05, 2018

    Draft Legislation with the purpose of reducing the gender pay gap is envisaged to be initiated by the Government in the coming months and is expected to be far stronger than that recently enacted in the UK.

    The difference between Equal Pay and Gender Pay

    Whilst both equal pay and the gender pay gap deal with the difference in pay women receive in the workplace, they are two different issues:

    Equal pay - Means that men and women in the same employment performing equal work must receive equal pay.

    Gender pay gap - Is a measure of the difference between men and women’s average earnings across an Organisation or the Labour Market. It is expressed as a percentage of men’s earnings.

    UK Legislation

    New legislation introduced in the UK, means that any Employer with 250 Employees or more, will need to publish their gender pay gap data annually. From April 2017 Employers had up to 12 months to publish this information. There are two sets of regulations.

    1. The first is mainly for the private and voluntary sectors (which took effect from 5th April 2017).
    2. The second is mainly for the public sector (which took effect from 31st March 2017).

    A larger definition of who counts as an Employee is used (from the Equality Act 2010). This means that workers, as well as some self-employed people are included. Agency workers are included, however they are counted by the agency providing them.

    Necessary Calculations for Gender Pay Gap

    There are six calculations that need to be carried out, and the results must be published on the Employer's website and a government website within 12 months. Where applicable, they must be confirmed by an appropriate person, such as a chief executive.

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

    While the regulations for the public, private and voluntary sectors are near identical, and the calculations are directly comparable, the public sector regulations also take into account the public sector equality duty.

    An Employer must publish six calculations showing their:

    1. average gender pay gap as a mean average
    2. average gender pay gap as a median average
    3. average bonus gender pay gap as a mean average
    4. average bonus gender pay gap as a median average
    5. proportion of males receiving a bonus payment and proportion of females receiving a bonus payment
    6. proportion of males and females when divided into four groups ordered from lowest to highest pay.

    Employers have the option to provide a narrative with their calculations. This should generally explain the reasons for the results and give details about actions that are being taken to reduce or eliminate the gender pay gap.

    1. The narrative can say why the results show challenges. For example, an Employer might explain that their executives get the highest bonuses and most of them are men.
    2. The narrative can say why the results show successes. For example, an Employer might explain that a recent change to their bonus policy has helped provide a much lower bonus gender pay gap.
    3. The narrative can also be used to show plans for long-term results. For example, an Employer might want to tackle the underrepresentation of women in their science and engineering roles by running a recruitment campaign for junior roles that particularly encourages women to apply. In the short-term this means more women will be at the starting salaries, which could make the gender pay gap look higher but it would have a long term goal to balance out the gap and the underrepresentation should be reduced.

    UK gender pay gap figures revealed

    More than 10,000 large firms in the UK provided details of their gender pay gap, with three-quarters of them paying men more than women.

    The information shows that women are being paid a median hourly rate that is, on average, 9.7% less than that of their male colleagues. But there are huge differences within and between sectors.

    Out of all firms, just 14% reported a pay gap in favour of women, while 8% reported no pay gap at all. Men make up the majority of higher-paid jobs, so the gender pay gap doesn't mean that women are being paid less than men for the same work, which would be against the law.

    What the findings do provide are a measure of the differences in men and women in respect of how they fare in different occupations, how they break down in respect of part-time roles (mainly female) and how, there is a shortfall of women in senior roles.

    Ryanair has a pay gap of almost 72% pay gap, which is the largest in this industry. Only eight of Ryanair's 554 pilots are women. Among major banks, JP Morgan has the biggest pay gap, at 54%. Fewer than one in 10 Employees in the bank's highest-paid group are women.

    The causes of the Gender Pay Gap

    The causes of the gender pay gap (GPG) are complex. A number of common cause include;

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

    Steps that Irish Organisations should be taking now to prepare:

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

    Creating the Organisations action plan – As the 2017 reporting in the UK is now over, UK Organisations need to be considering how they are going to close the gender pay gap in their Organisation. For Irish Organisations, they now have an opportunity to learn from the UK in order to begin putting corrective measures in place in order to reduce the gender pay gap. This is a crucial step for Irish Organisations as we are aware that there is currently draft legislation with the Government that we suspect will be passed in the coming months. Having an action plan in place is going to benefit Organisations understand their workforce data and help understand the key identifiers of their gender pay gap. An example here could be that there are a lack of females in senior roles in the Organisation, therefore they must consider how they will improve the landscape in the longer term.

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

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

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

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

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

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

    Conclusion

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

  • Case Law - Reviewed under the WRC

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

    Complainant awarded €5,000 due to bullying and harassment in her Workplace

    Adjudication Reference: ADJ-00011079

    Summary of Complainant’s Case:

    The Complainant commenced employment in August 2000 as a Clerical Assistant. She was promoted to Clerical Officer in 2003 and worked in a number of Garages of the Respondent. She stated that she was the only female Employee working in this Garage on days. The Complainant stated that she had made verbal complaints to her Line Manager over a period of some 10 years concerning how she was being treated by a named individual in the Garage. The Complainant made a formal complaint to the HR Department in January 2016 that she was being bullied and harassed by this named employee.

    Following an extensive 6 month investigation, including the taking of 7 witness statements and five issues were identified in relation to the investigation. The findings from the Investigation was published in June 2016 and they found that the incidents complained of constituted Bullying and Harassment on the gender ground. This was a detailed report of June 2016 in relation to each issue raised by the Complainant. The Recommendations provide as follows – The working and personal relationship between the Complainant (named) and (named) has broken down…The current situation where by (Complainant) feels intimidated and uncomfortable in her place of work can no longer continue. It also recommended that “the findings in this report be reviewed and acted on by (named) Chief Engineer”.

    The outcome is that both the Complainant and the named employee continue to work in the same garage. The Respondent did confirm at the Hearing that the named employee was the subject of a Disciplinary Hearing and that he was suspended and was issued with a Final Written Warning. The Complainant has been offered counselling and mediation and she has also been offered a transfer to another work location. However the Complainant had sought a transfer to the named garage for personal and family reasons in 2006. The Complainant stated that the more appropriate action by the Respondent would be to move the named employee to another location.

    The Complainant’s Legal Representative referenced a number of Codes of Practice in respect to the issue of Bullying and Harassment.

    Summary of Respondent’s Case:

    The Complainant has been employed in the named Garage/Depot looking after payroll for some 17 years. The named Employee is a Supervisor in the same Garage. The Complainant requested a meeting with the Respondent’s Employee Development and Equality Executive (Named) on 25th January 2016 and at their meeting on 27th January 2016 the Complainant informed the Executive that she would be making a complaint of Bullying and harassment against a named employee. She was offered mediation which she declined and she was informed of the informal procedures.

    A complaint was lodged and an investigation was carried out and found that the Complainant had been bullied and harassed by the named Employee – her Supervisor. The employee received a two week suspension without pay. He lodged an appeal and the appeal was heard on 31st August and the appeal was denied. The Complainant was informed in December 2016, through her trade union representative, that the findings of the investigation had been upheld. The Employee received a two week suspension without pay which was considered the appropriate action. A dismissal or a move from the garage was not deemed to be warranted.

    The Complainant lodged a complaint with the WRC on 5th October 2017 and in this complaint she listed a number of incidents in 2016 and 2017 whereby the actions of the named employee whom she had lodged a formal complaint against in January 2016 left her feeling intimidated and uncomfortable in her workplace. However the Respondent stated that the Complainant had made no formal complaint through the procedures and these complaints were not formally investigated.   However, the named employee was spoken to by Management but denied that he had acted in any inappropriate way towards the Complainant but did agree to limit his communication with the Complainant.

    The Respondent had agreed to go to mediation through the WRC and both parties attended but no agreement was reached as the Complainant wished the named employee to be moved from the Depot, which is a Disciplinary Sanction which the Respondent believes is disproportionate and unwarranted.

    The Respondent referenced the decision of the Supreme Court in the Ruffley Decision. The Respondent argued that they had taken all reasonable steps to prevent any harassment or bullying of the Complainant by the named employee and the Complainant has not utilised the Dignity at Work Procedures of the Company to lodge a complaint following the investigation that was completed in June 2016.

    Legislation:

    The Safety, Health and Welfare at Work Act, 2005 places an obligation on Employers to provide safe places of work for their employees where it states that there is a duty on Employers “so far as is reasonably practicable, the safety, health and welfare at work of his or her employees” and to prevent “any improper conduct or behaviour likely to put the safety, health or welfare at work of his or her employees at risk”. The Health and Safety Authority has a Code of Practice as does the Equality Authority have a Code of Practice on Sexual Harassment and Harassment.

    Decision:

    The referral to the WRC concerns the implementation by the Respondent of the Recommendations of June 2016 arising from the Report of the Investigation into the formal complaints lodged by the Complainant against the named employee in January 2016.

    The Investigation Report of June 2016 is very clear when it states as follows – “The investigation team find that both the working and personal relationship between (the Complainant named) and (the employee named) has broken down. The current situation whereby (Complainant) feels intimidated and uncomfortable in her place of work can no longer continue. Based on the facts gathered, the investigation team recommend that the findings in this report be reviewed and acted on by (named) Chief Engineer”.

    It is clear that the Complainant did make verbal complaints of ongoing bullying and harassment against the named employee since June 2016 and she did lodge a complaint with the WRC dated 27th February 2017 in relation to incidents in July 2016 – August 2016 – October 2016 – November 2016 – December 2016 and January 2017. Mediation took place at the WRC but no settlement was possible as the Complainant was seeking the transfer of the named employee to another depot and the Respondent was of the view that this would be a disciplinary sanction that was both disproportionate and unwarranted. The Complainant withdrew her complaint of February 2017 from the WRC. These complaints had been made verbally by the Complainant and she also had lodged a dispute with the WRC yet the Respondent confirmed at the Hearing that although they had a meeting with the Named Employee they did not conduct an investigation.

    The Adjudication Officer found that the Complainant continues to feel intimidated and uncomfortable in her place of work as evidenced by these complaints arising after the Investigation Report was published in June 2016. Yet the investigation report clearly says “The current situation where by (the Complainant named) feels intimidated and uncomfortable in her place of work can no longer continue” (my emphasis). Yet it has continued. The Adjudication Officer found that the Respondent has not acted in the appropriate manner to both implement the investigators report and to protect the Complainant. While the Adjudication Officer has no sanction or jurisdiction to propose that the named employee be moved to a different location to protect the Complainant, as this could be deemed to be a Disciplinary Sanction without due process, The Adjudication Officer recommends that the Respondent review the Investigators Report and it should be acted on by the Respondent as recommended by the Investigator. The Adjudication Officer further recommends that the Respondent pay the Complainant compensation of €5000.00 due to her ongoing situation. This sum to be paid to the Complainant within 42 days of the date of this Recommendation.

    Adare Human Resource Management Commentary

    Bullying is a cost for both Employers and Employees. The cost can be both financial and human. If not sorted out internally, a serious case could bring an Employer before the Workplace Relations Commission (WRC), the Labour Court and/or the civil courts. If destructive behaviour is tolerated and continues, it affects performance and general health and wellbeing of individuals and/or groups. The negative effects can last a long time. Bullying can be carried out by supervisors, managers, subordinates, fellow employees, customers, business contacts or members of the public.

    Bullying at work has been defined as ‘repeated inappropriate behaviour, direct or indirect, whether verbal, physical or otherwise, conducted by one or more persons against another or others, at the place of work and/or in the course of employment, which could reasonably be regarded as undermining the individual’s right to dignity at work’.

    ____________________________________________________________________________________________________________

     

    Till Operator unfairly dismissed for gross misconduct awarded €7,500

    Adjudication Reference: ADJ-00009507

    Summary of Complainant’s Case:

    The complainant repeated the explanations given at workplace level; that she had been unwell, that it was attributable to human error and resulted from the simple mistake of her pressing the wrong button, the amounts were not significant and that the sanction was disproportionate.

    The complainant says that the respondent dismissed the medical claim too lightly and should have taken further steps to have it validated. It was known that she suffered from epilepsy.

    The fact that her medication had side effects including drowsiness was raised, and accepted by the investigator in the course of the investigation but no weight was attached to it. Indeed, they reported that the medical explanation ‘did not satisfy them’ even though they are not medically qualified to reach such a conclusion.

    Also, despite a claim to the contrary it was submitted to the investigation that she had previous discussions with her managers about this.

    This came up again at the disciplinary hearing where the respondent implied that she had not previously advised her managers of the condition but she made it clear that she had.

    Video evidence clearly supported her claim that she pressed the ‘Card’ option on the till in error. The respondent has not been able to justify a claim of theft against the complainant but they have insinuated it.

    The complainant at no stage sought to conceal her errors and all were reported in line with the procedure.

    On one of the days, the discrepancy could be attributed to a power cut.

    In order to justify the termination of employment the case against an employee should be conclusive; it is not in this case.

    The complainant had seven unblemished years’ service. She has never even been reprimanded.

    The sanction of termination is disproportionate in the circumstances.

    Summary of Respondent’s Case:

    The complainant was a till operator and a number of discrepancies in her end-of-day takings were observed.

    The discrepancies came to a total of €220.00, comprising four amounts of on four days in April; €93.50 on the 11th, €78.00 on the 13th, €28.30 on the 16th and €24.00 on the 19th.

    The respondent conducted an investigation which involved two meetings with the complainant.

    It was difficult to get a clear response from her and she gave a number of explanations, such as that she had pressed the wrong button in error, that she had been tired, and that she had been affected by the prescription medication she was then taking.

    The respondent felt that her explanations were unsatisfactory and instigated the disciplinary process, following which a decision was taken to terminate her employment on the grounds of gross misconduct,

    She appealed on the grounds that the sanction was too harsh, that there had been insufficient investigation of other transactions by colleagues and that such mistakes were common.

    The respondent rejects this latter contention.

    She appealed but her appeal failed.

    The respondent took account of the fact that she was an experienced till operator and the cluster of mistakes was not acceptable.

    Legislation:

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

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

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

     

    Decision:

    The three pillars on which an unfair dismissals case is assessed by an adjudicator are; firstly, whether good grounds existed to initiate the disciplinary process. In other words, have the facts been properly investigated and do they represent grounds for a disciplinary process.

    Secondly, consideration is given to the conduct of that process. Is it fair by reference to the well-established principles established by the courts and the employment rights tribunals over the years?

    Finally, there is the issue of whether the sanction is proportionate; i.e. is it within the range of sanctions a reasonable employer would apply, taking all relevant considerations into account.

    There are some grounds for concern in this case under all three of those headings.

    The cluster of incidents, although they gave grounds for legitimate concern to the respondent were not significant in overall terms.

    They were investigated and while it might be said that the complainant made a poor fist of providing an explanation, this may be because the explanation she offered was the best she could and a truthful one. It may not have satisfied the respondent, but that, in itself, will not be enough to justify the actions it took.

    Her explanation relating to the medication was somewhat coldly brushed away on the basis that she had not informed the employer that it might have such side effects. She says she disputed this at several stages in the process. In any event, whether she had or not is a good deal less important than whether it provided a reasonable explanation when the matter arose.

    The fact that she had worked six days in a row was ‘not a reasonable explanation’ either.

    The alleged infractions were relatively minor, proximate in time and nature and there was no suggestion at the hearing that the complainant in any way profited from them (although I accept the complainant’s submission that this was insinuated by the respondent, and without any evidence to support it).

    Turning to the disciplinary process itself the complainant was invited to a disciplinary hearing on May 23rd 2017 as the respondent was ‘not satisfied with your explanation as to why these discrepancies and irregularities occurred and why the cash received is unaccounted for’.

    She was advised of her right to be accompanied and was sent a copy of the disciplinary procedures.

    She was not given any indication of the possible range of sanctions which might ensue in the event of an adverse finding, although, according to the report of the disciplinary meeting, she was told this at the hearing.

    On June 1st, she was sent a letter terminating her employment.

    This stated;

    ‘…it has been concluded that the explanations which you provided in relation to the incidents being investigated lacked credibility and that you deliberately concealed cash transactions by recording them as credit card transactions and the corresponding money was not found at the end of the day’.

    This was deemed to be gross misconduct, warranting her dismissal.

    This was the first occasion that I can find in either the documents of the evidence at the hearing where an allegation giving rise to a suggestion of dishonesty was levelled at the complainant.

    It will be recalled that she was invited to attend the disciplinary hearing to discuss ‘discrepancies and irregularities’.

    There is no evidence in the report of the disciplinary hearing that this escalation of the charges against the complainant was put to her at the hearing, or that she was given an opportunity to rebut them, specifically.

    Indeed, the complainant was invited to sign what is admittedly headed ‘Minutes of disciplinary meeting’ but described above her signature as ‘minutes of an investigation meeting’, which they more closely resemble.

    The respondent asserts that the complainant’s explanation ‘lacked credibility’. It has not explained the basis for this conclusion. It is possible after all, that the complainant’s explanation was the truth. The respondent failed to take sufficient steps to verify the medical explanation.

    It certainly did not have a basis for the somewhat massive leap to its conclusion that she ‘deliberately concealed cash transactions by recording them as credit card transactions’ which is no more than supposition. No evidence was offered to support it the allegation that she ‘deliberately concealed’ anything.

    The complainant is put in the quitter extraordinary position of justifying her innocence of charges which were never actually put to her.

    Similarly, the introduction of the charge of ‘gross misconduct’ appears for the first time in the letter of dismissal.

    The respondent’s own sample, non-exhaustive list of ‘offences’ constituting gross misconduct are along the usual lines.

    They include theft, serious damage to property, intoxication or use of illegal drugs, fraud, violent dangerous or intimidatory conduct, criminal conviction, gambling or money lending on the premises etc.

    Just ignoring briefly that the complainant was not put on notice at any time that she was facing a charge of gross misconduct, no reasonable person could conclude that the ‘discrepancies and irregularities’ in the amount of €220 with which she was charged fall into this category, or anywhere remotely near it. This is complete hyperbole.

    The failure of the complainant to provide what was described on appeal as ‘any satisfactory explanation’ undoubtedly give rise to some concern for the respondent. The appeal decision paradoxically notes.

    ‘the fact that there were very few occasions when it was necessary to get back to you regarding discrepancies reconfirms your ability to manage and operate the till to an excellent standard’

    However, it rejected the appeal.

    The Adjudication Officer was very conscious of the well-established constraint on an Adjudicator in such cases as these.

    In Looney and Co v Looney UD 843/194 the Eat stated reflecting the view of Dr Mary Redmond to the same effect that;

    It is not for the EAT to e stablish the guilt or innocence of the claimant nor is it for the EAT to indicate or consider whether we, in the employer’s position, would have acted as it did in its investigation or concluded as it did or decided as it did, as to do so would be to substitute our own mind and decisions for that of the employer. Our responsibility is to consider against the facts what a reasonable employer in his position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s actions and decisions are to be judged’.

    As will be clear from the text this does not entirely rule out intervention by an Adjudicator but sets the standard to be applied as the actions of ‘what a reasonable employer in his position and circumstances at that time would have done…’

    However, this is one of those cases where the handling of the matter by the respondent falls so far on the wrong side of what is required in terms of what ‘a reasonable employer’ in the respondent‘s circumstances would have done that the Adjudication Officer was required to make the exception contemplated by the formulation above and the general principle.

    There are several reasons why.

    The elevation of the ‘discrepancies and irregularities’ to gross misconduct and the failure to put the complainant on notice that she was facing that charge falls far outside the standard required, as does the failure to advise her at all of the likely range of sanctions in advance of the disciplinary hearing.

    Related to this, the implication of deliberate concealment, and therefore dishonesty, theft even, which appears in the letter of termination had not previously been ventilated or put to the complainant. It is a very serious matter to accuse an employee of theft, or to imply she has been and it requires a modicum of evidence to support it. There was none in this case.

    The Respondent had little more than suspicions but they were more informed by speculation (or incredulity) than evidence.

    The description of the disciplinary meeting also as an investigation meeting might be seen as a clerical error but it speaks to a shoddiness with which the respondent conducted a process which was fatally tainted with unfairness and disproportionality throughout.

    The Complainant had a clean disciplinary record, and as the letter rejecting the appeal paradoxically confirms she had a good work record.

    In the circumstances the sanction of dismissal cannot be regarded as having followed a procedure which meets the well-established principles of required fairness and the dismissal is, as a consequence, clearly unfair.

    The sanction is out of all proportion to the alleged offence and is likewise unfair.

    That said, the Complainant’s evidence regarding her attempts to mitigate her losses were not entirely convincing and I take account of that in making my award.

    The Adjudication Officer upheld the complaint CA-0012437-001 and awarded the Complainant €7,500.00 subject to the usual statutory deductions.

    Adare Human Resource Management Commentary:

    While arrangements for handling discipline and grievance issues vary considerably from employment to employment depending on a wide variety of factors including the terms of contracts of employment, locally agreed procedures, industry agreements and whether trade unions are recognised for bargaining purposes, the principles and procedures of the Code of Practice on Grievance and Disciplinary Procedures should apply unless alternative agreed procedures exist in the workplace which conform to its general provisions for dealing with grievance and disciplinary issues.

    Procedures are necessary to ensure both that while discipline is maintained in the workplace by applying disciplinary measures in a fair and consistent manner, grievances are handled in accordance with the principles of natural justice and fairness. Apart from considerations of equity and natural justice, the maintenance of a good industrial relations atmosphere in the workplace requires that acceptable fair procedures are in place and observed.

    ____________________________________________________________________________________________________________


    Employee did not receive lunches and was dismissed is awarded €1,000

    Adjudication Reference: ADJ-00009343

    Summary of Complainant’s Case:

    The Complainant worked as an executive assistant for the CEO of the Respondent. The Complainant started working there on 9th January 2017 and finished on 3rd May 2017. The Complainants contract stated that the Complainants hours were to be 8.30am to 5.50pm with an hour lunch break, finishing at 4pm on Fridays. However, the Complainant did not receive the hour lunch break consistently.  The reason for this was that the Complainant was overworked and the Complainant had to allow 2 Receptionists go to lunch and cover for their work until they returned. However, when they returned there was usually other work for the Complainant to do so the Complainant couldn’t take the break. Sometimes the Complainant did take a lunch break but it was not consistent. The Complainant did not know starting the day whether the Complainant would get a break at lunch time, or not. The Complainant complained to the CEO about this but he did nothing about it.

    Summary of Respondent’s Case:

    The complaint that the Complainant did not receive any lunch breaks is denied by the Respondent. The Complainant’s contract states that she is entitled to an hour lunch break. The company’s grievance procedure was not invoked by the Complainant in relation to the allegation that she did not receive a lunch breaks. The allegation that she made complaints to the CEO cannot be refuted as he has left the Company but the HR director sat across from the Complainant’s desk and stated that she regularly witnessed the Complainant taking a lunch break, although she cannot say whether it was for an hour or not. The Access card records indicate the times at which she entered the business. These records run for the duration of her employment and they indicate that the Complainant entered the premises at lunch times on nearly every day, which is evidence that she left the company premises at this time. However, the Respondent accepts that this card also records any time an employee leaves the premises to use the toilet, which is positioned outside the company security area so evidence of that the Complainant left the secure area it is not evidence that a lunch break is being taken

    The CEO is not present at the hearing as he now is based outside the jurisdiction, however his notes indicate that other complaints were made in relation to the terms of the Complainant’s employment, but there are no records in relation to a complaint about rest periods or lunch breaks.

    Legislation:

    Organisation of Working Time Act, 1997 sets out to protect the health, safety and welfare of Employees by regulating their working patterns.

    Decision:

    In relation to the complaint of insufficient rest periods, the evidence of the Complainant is not disputed by the person to whom was made aware of her grievance, namely her line manager, because he could not attend the hearing. As a result, I find the evidence of the Complainant to be uncontroverted and I find the complaint to be well founded. I award the complainant €1,000.00 in respect of this breach.

    Adare Human Resource Management Commentary:

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

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

    An Employee working 6 hours or greater must be provided with a 30 minute break during their working day.  Where an Employee is entitled to this 30 minute break, he/she does not have to be provided with the 15 minute break earned after 4.5 hours work.

    There is no obligation to pay an Employee in respect of these break periods unless otherwise agreed in the contract of employment. 

    Note that minimum breaks must be taken during the working day.  Breaks afforded at the end of the working day are not regarded as fulfilling the requirements of the legislation, i.e. allowing an Employee to work through their half hour break in order to finish their working day a half hour earlier is not deemed appropriate.

  • Help Desk - Capability, Competence and Conduct – What constitutes a fair dismissal?

    by Hayleigh Ahearne
    Jun 05, 2018

    The following legislation should be considered when looking at what constitutes a fair dismissal;

    1. The Unfair Dismissals Acts, 1977 - 2015
    2. Industrial Relations Act 1990 Code of Practice on Grievance and Disciplinary Procedures (Declaration) Order 2000
    3. Industrial Relations Acts, 1946 - 2015
    4. The Employment Equality Acts, 1998 – 2015

    The Unfair Dismissals Acts, 1977 – 2015 - sets out to provide redress for Employees who are unfairly dismissed from employment. However, as well as establishing automatically unfair grounds for a dismissal, the legislation also sets out fair reasons for dismissal of an Employee. All dismissals are deemed to be unfair unless the Employer can demonstrate otherwise. To do so, the Employer must have paperwork to demonstrate fairness of the procedure during both formal and informal stages leading to dismissal. In order for an Employee to take a claim to the Workplace Relations Commission (WRC) under this act, they must be have one year continuous service with the Organisation.

    In order for an Employee to be protected under the Unfair Dismissals Acts and have the ability to take a claim to the Workplace Relations Commission (WRC), they must meet the following criteria:

    The Acts apply to any person;

    • Working under a contract of employment or apprenticeship,
    • Employed through an employment agency.

    The Acts do not apply to the following;

    • Employees who have reached the normal retiring age in that particular employment or who on that date had not attained the age of 16 years,
    • Persons working for a close relative in a private house or farm, provided both also live in the same house or farm,
    • Member of the Defence Force or Gardaí,
    • Person under full-time training or apprenticeship in FÁS establishments,
    • Officers of the vocation education committees and the Chief Executive Officer of the Health Service Executive,
    • A County Manager or a City Manager.

    Industrial Relations Act 1990 Code of Practice on Grievance and Disciplinary Procedures (Declaration) Order 2000 - The Code of Practice on Grievance and Disciplinary procedures sets out principles which must be adhered to in any disciplinary situation. It sets out the rights of an Employee which must be upheld throughout the disciplinary procedure. A breach of the Code of Practice may lead to any dismissal being deemed to be procedurally unfair.

    The Code of Practice on Grievance and Disciplinary Procedures promotes that an Employees shortcomings, whether they are conduct, attendance or performance related, be brought to the Employee’s attention informally in the first instance, provided that this is appropriate.

    There are a number of general principles that are set out in this Code of Practice which should be adhered to at all times:

    • The procedure must be rational and fair.
    • The basis for any disciplinary action must be clear.
    • There must be an internal appeals mechanism.
    • The principles of natural justice must be adhered to.
    • It may be appropriate to provide written copies of complaints or allegations, revealing the source of same and allowing the Employee to confront and question any witness/es.
    • The consequences of an Employee’s departure from the rules or expectations of the Employer should be explained in policy and procedure, particularly those that may warrant dismissal or suspension.
    • Disciplinary action may include a verbal warning, a 1st written warning, a final written warning, demotion, suspension without pay, transfer, other action short of dismissal and dismissal. The policy should state the length of time that each sanction will remain on the Employee file. Following this time period, the sanction should be removed from the Employee file.
    • Steps in the procedure should generally be progressive, however it is acknowledged that in certain situations an issue may need to be escalated to later stages of the procedure without recourse to the earlier stages of the procedure.
    • An Employee may be suspended on full pay pending the outcome of an investigation.
    • Adequate records must be kept in relation to disciplinary situations.

    Industrial Relations Acts, 1946 – 2015 – In comparison to the Unfair Dismissals Act that is details above, the Employee does not need a specific service requirement in order to take a claim to the WRC under the Industrial Relations Acts. This is a prime piece of legislation that is utilised by Employees who feel they are unfairly dismissed whilst still in their probation period or within the first 12 months of their service.

    The Employment Equality Acts, 1998 – 2015 - Set out that no person should be dismissed due to their gender (including pregnancy), civil status, family status, age, sexual orientation, disability, race, religion, or membership of the Traveller community. Such a dismissal is referred to as a discriminatory dismissal. There is no service requirement for an Employee to be covered by the Employment Equality Acts.

    What Makes a Dismissal Unfair?

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

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

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

    Fair Grounds for Disciplinary Related Dismissal

    The following grounds are set out as fair grounds for a dismissal. Ultimately, any disciplinary sanction must be based on one of the following to be fair and to ensure that the Employer can stand over any subsequent dismissal as having been for a fair reason:

    • Competence: this generally relates to the performance of the Employee in their role.
    • Capability: this refers to the Employee’s ability to fulfil the terms of their contract, such as attending work on a daily basis. 
    • Conduct: this relates to the behaviour of the Employee at work, and may extend beyond the work environment in certain circumstances.

    Where one of the above matters results in the dismissal of an Employee, the Employer must be capable of demonstrating that the dismissal was fair.

    Incompetence in relation to Poor Performance – What are the Employer Obligations?

    The Employer must inform the Employee of their poor performance. A well planned goal setting process enables an Organisation to manage Employee performance in a strategic and effective way and ensure each Employee is focused on the key organisational priorities. If necessary the Employer should roll out a performance improvement plan (PIP) with the Employee. The purpose of this plan is to document the Employee’s shortcomings and expected improvements in performance. The plan must set SMART objectives for the Employee to achieve and review dates should be agreed and documented.

    The Employer should ensure that they have provided proper training for the job in respect of those areas where the Employee’s performance is falling short.

    The Employer should give the Employee a reasonable time within which to improve and a reasonable work situation (opportunity) within which to concentrate on the areas in question. This point can also be linked into the PIP, as the PIP should have a set timeframe around it with regular scheduled meetings planned to check in with the Employee on their performance.

    The Employer should ensure that the Employee is aware of the consequences of failing to meet the requirements within the agreed timeframe.

    Where there is no improvement in the Employees performance, the Employer should provide a final warning outlining the possibility/likelihood of dismissal on this ground and a final opportunity to the Employee to improve.

    Before a final decision to dismiss is taken, an Employer should have an up to date assessment of the Employee performance.

    Absence – Capability

    A significant number of dismissals involve attendance related problems. Reasons for sick leave absenteeism can vary widely dependent on the individual circumstances. The individual circumstances of each instance of sick leave absence should be considered when determining what disciplinary action, if any, to take. Consistency and fairness are key to ensure that any management action taken can be justified. If lateness or absenteeism is an issue, as an Employer / Manager you will be expected to have documentary proof such as timecards, or documented absences on the employees file that are not medically certified.

    Employees who fail to attend work regularly, who are persistently late, or who are absent for long periods may be regarded as being incapable of performing the work they were employed to do

    An Organisational sick leave policy should outline clearly the sick leave reporting procedure an Employee is required to comply with during any instance of sick leave. This usually includes a requirement to provide notification of the absence initially and to keep the Line Manager up to date during the period of sick leave and the provision of medical certificates and other documentation such as illness benefit forms.

    An Organisational sick leave policy should also specify the circumstances in which disciplinary action, including the withholding of sick pay, will apply. In the event of non-adherence to the policy, the Organisation should ensure action is taken on a consistent basis, taking into account the individual circumstances and with full regard to fair procedures.

    Short Term Absences

    In order to justify a dismissal for persistent short term absenteeism, an Employer / Manager will generally be expected to show that:

    • The Employee had a continuing pattern of absence over a protracted period;
    • It was reasonable to conclude that the position would not improve substantially or at all;
    • The continuation of that level of absenteeism was unacceptable;
    • Adequate warnings of the consequences of continuation had been given to the Employee.

    Long Term Absences

    If the Employee is not able to do the work that they were employed to do, the Employer may be expected to consider whether alternative work is available and where in the cases of an Employee with a disability explore reasonable accommodation.

    Where there is no such work, the Employer will not be expected to create such work for the benefit of the Employee.

    Some Employers have Income Continuance / Long Term Disability insurance schemes and the Employee transfers to that scheme with annual assessment of case in terms of any change of prognosis regarding fitness to work

    In a recent reviewed case by the Workplace Relations Commission, it shows how an Employer terminated an Employee who had persistent absences from work; “ADJ-00005550 - Maintenance Technician v Road Maintenance Company” - The Complainant stated the difficulties had started when his partner had become ill and subsequently passed away. The Complainant stated that his mind was clouded by grief. He stated that other Employees in similar circumstances had been granted long-term leave but he was not supported by the Respondent in the way he should have been. Although he utilised the Employee Assistance Programme this only allowed for a small number of counselling sessions.

    The Respondent submits that issues pertaining to the Complainant's poor timekeeping and high levels of absenteeism were becoming serious for a long time before his dismissal. The Company were aware that the Complainant had experienced the death of a close friend around 2013/2014 and so the Company extended support by way of offering access to counselling in addition to allowing the Complainant some scope with regards to his attendance issues.

    However, the Complaint’s poor attendance continued into 2015 and 2016. The Respondent gave evidence to the number of meetings, formal discussions and warnings given to the Complainant because of his attendance and time-keeping offences. The Complainant was warned many times about the consequences of not addressing his attendance and time-keeping record. The Respondent submits that it adhered to its Disciplinary Procedures at all times and afforded the Complainant all his rights throughout the process. A Final Written Warning was issued. The Respondent submits that the required improvements were not forthcoming and it was left with no option other than to dismiss the Complainant, which it did on 7th July 2016.

    That the Complainant's pattern of poor attendance was neither acceptable nor tolerable and rendered him incapable of conducting the job for which he was employed to do.

    The Adjudication Officer found that the Respondent acted with considerable patience and its procedures were fair, the grounds of the dismissal were the incapacity of the Complainant and that therefore the dismissal was fair.

    Conduct

    This relates to the behaviour of the Employee at work, and may extend beyond the work environment in certain circumstances.

    Having a disciplinary procedure in place ensures that Employees are aware of how poor performance, conduct or attendance will be dealt with. Employees are aware of the potential negative consequences of these situations.

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

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

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

    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.

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

    • Could the Employee have reasonably known that the conduct would warrant dismissal, for example was this stated in a policy related to the incident, and was that policy communicated to the Employee?
    • Have other Employees been dismissed in the same circumstances?
    • Is there sufficient evidence to demonstrate that, on the balance of probabilities, the Employee committed the offence?
    • Has fair account been taken of the mitigating circumstances, if any that have been presented by the Employee?

    If the answer to any of the above questions is “no”, then dismissal may not be an appropriate sanction to impose on the Employee.

    Conclusion

    Managing workplace discipline can be a daunting experience for many Employers and / or Managers. It is an area where employment law can leave an Employer feeling as though it is impossible to deal with poor performance, attendance or misconduct by an Employee. However, this need not be the case and any Employer who takes a structured approach to ensure that their disciplinary procedures are applied fairly and consistently should be in a position to confidently address Employee shortcomings at work.

    The aim of the disciplinary procedure should always be to correct a situation. Whether the Employer is addressing poor performance, conduct or attendance, in the majority of cases the purpose of the procedure is to encourage an improvement in the Employee’s behaviour.