A lorry driver who was given two weeks notice and dismissed after asking his manager for the 2.5 hours overtime that he was due, was awarded 20k. The Company had no disciplinary or grievance procedures available to be used.

A non performing sales person who had warnings issued about his level of sales was awarded 15k after being dismissed unfairly on a gross misconduct basis. After being notified about a disciplinary meeting,he rang his manager’s former employer to see if any complaints of bullying and harassment had been made about him. However the tribunal decided that his employer over reacted by dismissing him.

A bar maid was awarded 8K after her employer failed to produce CCTV evidence he relied on to dismiss her for signing in for extra hours every shift, which she believed she was entitled to do in lieu of the pay increase she was looking for.

And there are many more examples ! Employees are afforded a high degree of protection under the Unfair Dismissals legislation and all dismissals must be conducted in line with the Stautory Code of Prctice on Disciplinary & Grievance Proceedings. A clear robust disciplinary procedure incorporating the key elements of a fair hearing, right of representation, right to respond and right to appeal should be strictly adhered to. Otherwise, be prepared to pay the cost in the Employment Appeals Tribunal.

Under the?Safety,Health & Welfare Act, 2005, employers are required to manage work activities to prevent improper conduct and behaviour. In this regard, specific responsibilities exist with regard to the prevention of bullying in the workplace and the HSA Code of Practice for Employers and Employees on the Prevention & Resolution of Bullying at Work, which was published in May 2007 provides useful guidance on how to deal with bullying at work. In summary, employers must ensure that they do the following:

Identify if bullying is a risk in workplace;
Inform & Educate employeees and managers about rights and responsibilities;
Support & Assist employees who wish to make a complaint;and
Investigate and review complaints in a fair and timely manner.

A comprehensive bullying and harassment policy that is issued to employees and proactivley used in the workplace can help employers meet their obligations under Code, which is admissible as evidence in court proceedings. The Code can be downloaded from the HSA web site at http://www.hsa.ie. or contact Carmel Murphy at (071) 9642748 for further advice on implementing a policy in the workplace or how to?investigate bullying complaints.

1) A paid day off on the public holiday;
2) A paid day off within a month of the public holiday;
3) An additional days annual leave; or
4) An additional days pay.

Where a public holiday falls on a day that an employee normally works, one of the above will apply. If a public holiday falls on a day on which an employees does not normally work, they are entitled to one fifth of their normal weekly wage, in respect of the public holiday.

It should also be noted that employees who leave employment in the week before a public holiday falls may also be entitled to receive pay for the public holiday.

Under the Organisation of Working Time Act, employers are required to retain records for a period of 3 years to prove that they have granted employees appropriate public holiday entitlement and can face compensation awards of up to 2 years remuneration for non compliance.

If you require further information about public holiday entitlement, please contact Carmel Murphy on (071)9642748.

Finally,it is important for employers to realise that in respect of breaches under the Working Time Act, a Rights Commissioner has the power to award compensation that is just and equitable, of up to two years remuneration and the onus will be on employers to prove that they are complying with the legislation.

It should be noted in a collective redundancy situation that notice of redundancy may not be issued until the end of the 30 day consultation period.

For further professional advice or information on redundancy matters, please contact Carmel Murphy on 071 9642748.

The first successful case involved a Night Club Manager being awarded 4,000 after he resigned over non payment of a bonus, which was outlined in his contract of employment. He claimed that he was not made aware that payment was linked to reaching targets and that records had been altered to his disadvantage. The Tribunal was satisfied that the non payment of the bonus constituted a fundamental breach of his contract, which allowed him to successfully claim constructive dismissal.
In the second successful case, a former block laying apprentice successfully claimed constructive dismissal and was awarded 27,000 after his employer tried to persuade him to convert to a self employed arrangement, in a procedurally unfair and unprofessional manner,which made his work conditions impossible.

Finally, a garage foreman was unable to prove that he had no choice but to resign after he claimed his manager had cut his hours without notice, was abusive to him when the car wash wasn’t working and had failed to roster him for work after he walked out. The manager claimed that he did not raise his voice and that it was necessary to have the car wash reset a number of times. He had also discussed with the foreman why it was necessary to reduce his hours and could not roster him as he believed he wasnt coming back.

In respect of the first case involving the non payment of the bonus, it shoud be noted that the wording of the employment contract did not clearly link the payment of the bonus to meeting targets and therefore, the employer did not have the right not to make payment. In respect of all variable or performance related payments, it is critical that employers clearly document payment condititions at the outset. In the High Court Case of Finnegan v J&E Davy’s, the plaintiff was successful in claiming that he had not agreed to the unilaterally imposed deferment of significant bonus payments, which the Company were not willing to pay if he went to work for another stockbroker. There were no written agreemnt to support the practice.

However, it is important to know that employees may initiate a claim for redundancy if they have been laid off or put on short time (or a combination of both) for a consecutive period of 4 weeks or a broken period of 6 weeks within a 13 week period. In order to resist a redundancy claim of this nature, an employer must be able to provide 13 weeks normal work within 4 weeks of the redundancy claim.

Whilst there is no minimum notice required for lay off or short time, as much notice as possible should be given to employees.It is also important to communicate regularly with employees and to provide information on business conditions, so that a reduction in working hours does not come as a total surprise. Finally, employment contracts should also provide for the option to lay employees off or put them on short time.

An employee attending her Xmas Party during a period of maternity leave was awarded 25k for constructive dismissal after she was called a floozie and stay at home mum by her manager and was unable to return to work. In another case, a waitress who was asked to go home in a taxi with the General Manager and who was subsequently not taken back on after a period of lay off,was awarded 12k for sexual harassment and victimisation under the Employment Equality Acts.

The Employment Equality Acts are important in that they define workplace harassment and sexual harassment as well as the responsibilities of employers. In particular, that employers may be held responsible for the actions of customers and business contacts (Section 14A) and that anything done in the course of employment by an employee, will be regarded as done also by the employer, regardless of their lack of knowledge or approval (Section 15).

So, whilst its important to recognise the contribution of staff to the business (particularly during difficult times) and the good will and morale boost that can result from social events,employers would be well advised to take a number of precautionary measures to help protect themselves from potential claims:

1. Ensure there is a clear and well communicated bullying and harassment policy in place.

2. Remind all staff that failure to abide by normal standards of behaviour at work related social events will be dealt with under the company disciplinary policy.

3. Follow up on all complaints promptly and fairly. Managers with responsibility in this area should be trained and know how to handle a complaint.

4. Dont discuss pay, promotions and work issues. Leave them until back at work!

5. And finally, encourage moderate alcohol consumption and arrange transport home.

In a high profile case published earlier this year, a Company who provided mulled wine and a free bar until 2:00am at its Xmas Party had an award of over 150k made against it to a manager who had been dismissed for an alercation at the Party. The manner in which the matter was investigated and dealt with was held to be unfair and the tribunal believed the evidence of the dismissed employee, who had worked with the Company for over 30 years. The Tribunal also noted the lack of a contract of employment and personnel file for the dismissed employee, who was earning substantially less as a taxi driver since being dismissed. Hence, the maximum award of two years salary !

Whilst it is acceptable for organisations to implement dress codes and standards of appearance appropriate to the business image they are projecting, it is important that the standards do not unnecessarily or unreasonably impose restrictions on one gender over another. Equally, requirements need to be clear and implemented consistently. This did not happen in the above case where the hotel’s policy was unclear and the waitress was initially given the option of wearing either trousers or skirts.

Indeed, employers need to be aware of direct or indirect discrimination occuring,under any of the nine different groups that are covered under existing equality legislation (age, disability, race, gender, sexual orientation, marital status, family status, religion or membership of the travelling community). For example, the recent publicity surrounding the Sikh Garda Recruit not being allowed to wear his turban whilst on duty or the Muslim teacher not allowed? to wear her veil whilst teaching illustrate the difficulities that can arise. And the case of the Dunnes Stores employee reinsated after being dismissed for not shaving off his beard highlights that it is not necessary that the same standards are applied to everyone but that equal treatment is afforded. In this case, female employees did not have to cover their hair up nor wear face masks and it was held that the requirement for a male employee to be clean shaven was not justified against the standards appplied to other employees.

Some examples of recent cases include an employee being awarded 6k after he was dismissed due to a criminal conviction for theft on a site he had been working on. His employer refused to investigate further or to allow him an appeal against the decision.?In another case, an employee who had been abusing a special leave arrangement in respect of a sick relative and was instead playing golf on company time, was awarded 1k as he was not allowed an appeal against his dismissal.

Furthermore, in order to ensure that an appeal is carried out effectively, it is important that appeals are carried out by someone impartial who had not previously been involved in the case.

1.Whilst employers are not legally bound to givereferences, if references are issued, they must be accurate, fair and factual.Failure to adhere to these guidelines may mean exposure to claims of negligenece, defamation , discrimination or unfair and constructive dismissal. The duty of care extends to both the propsective employer as well as to the employee. Overall, references must be balanced and not be misleading.

2. Equally, propsective employers should pay attention to how they deal with a poor reference. A candidate who had an offer of employment withdrawn on the basis of a poor verbal reference, after she had already resigned was awarded 15,000 by the Labour Court. It was deemed that they had not acted fair or reasonably. It is best practice to check references prior to an offer being confirmed or at the very least to make it clear that any offer issued is conditional upon receipt of satisfactory references.

3. Employers should also be aware that employee may access information contained in references through an access request under Section 4 of the Data Protection Acts, 1988 – 2004.

And finally, verbal references should be treated with the same prudence and care as anything committed to paper.

Other recent pregnancy related awards to employees have included €14k to a pizzeria worker who was dismissed after her employer claimed she had become? lazy since becoming pregnant and €8k to a florist who was told to look for another job after she told her employer on her first day of employment that she was pregnant. It should be noted that in respect of dismissals due to pregnancy, it is not necessary to have 12 months service completed as is required in respect of other unfair dismissal claims.

Furthermore, it is not permissible to discriminate against employees when they return from maternity leave. A hotel worker received €12k in compensation after being treated in a “cruel and callous” manner on her return from maternity leave, which included refusing to let the employee leave work to attend her child in hospital.? A receptionist who was called a ” floozie and stay at home mother” during her maternity leave was awarded €25k due to the unacceptable treatment afforded to her as a result of taking maternity leave. And a part time shop assistant who had her hours of work altered without agreement after returning from adoptive leave was awarded €3k in compensation.

Employers must ensure that all their practices and actions cannot in any way be construed as unfavourable treatment in respect of an employees pregnancy and related leave, in order to avoid dealing with costly unfair dismissal or discrimination claims under the equality legislation. Contact info@hrsolutions.ie if you would like to review any aspect of your employment equality practices or in any other?area.

Firstly, roles are made redundant and not individuals. The reasons for redundancy must be attributable to a genuine redundancy situation, as defined in the Redundancy Payments Acts, 1967 – 2007 or a dismissal due to redundancy will be deemed to be an unfair dismmisal. Such reasons include a business ceasing, a reduction in business , a diminished requirement for a particular product or there is a need for work to be done differently with new skills or qualifications that existing employees dont have.

Secondly, if some staff need to be selected over others, the selection process must be fair and objective and able to withstand scrutiny should it be challenged.  In the absence of an established Company procedure, employers must be able to demonstrate objective reasons for decisions to make staff redundant. Redundancies do not have to be effected on a Last In First Out (LIFO) basis and other factors such as skills, experience and qualifications may be used. Criteira should be applied consistently across the board.

Finally, there are rules of natural justice and fair process that should be followed in all redundancy situations.  Depending on the number of redundancies being effected, it may be necessary to undertake a collective consultation process with staff. However, in all situations, employees should be notified in advance of the pending redundancy and the minimum notice of redundancy requirement of 2 weeks served. Consideration should also be given to alternative roles or other options that may be available.

Employees who feel that their dismissal was not due to a valid redundancy situation or that it was not carried out using fair and objective procedures may claim for unfair dismissal and potentially receive up to two years salary in compensation. And more unusually, in a case earlier this year, the Employment Appeals Tribunal ordered the reinstatement of an engineer to his post, after finding that he had been unfairly selected for redundancy and the Company has not acted fairly and reasonably in dealing with the situation.

A well drafted employment contract issued before employment starts can help ensure that both parties are clear about their rights and obligations in the workplace.  In addition  it will also ensure that you are complying with the Terms of Employment (Information) Acts 1994 & 2001, which requires employers to provide employees with a written statement of certain particulars of their employees terms of employment (such as job title, hours of work, pay, rest breaks, notice entitlement, sick pay arrangements) within 2 months of commencment of employment. Failure to do so can result in 4 weeks pay being awarded as compensation to employees.

A comprehensive contract of employment can be tailored to deal with specific roles or business situations.  Useful additional clauses that may be included in a contract of employment are probationary period conditions,  right of search, lay off and short time,  non compete restrictions, payment terms in relation to bonuses or commission as well as references to any relevant employment policies and procedures.

To save potential disagreements and compensation awards, take some time now to consider whether all relevant terms and conditions are currently documented clearly for all your staff. Or email info@hrsolutions.ie to arrange a free consultation on employment contracts for your business.

All employees (including temporary and part time employees) accrue annual leave based on hours worked, up to a maximum 4 working weeks when at least 1365 hours are worked in a leave year. 

Employers are required to ensure that their employees take their leave and may not pay employees in lieu of taking leave. Unused leave may only be paid for when an employee is leaving employment.

If an employee is certified sick whilst on annual leave, it cannot be regarded as a days leave and may be retained to be taken at a later date.

Annual leave continues to accrue during protected periods of leave such as maternity, adoptive and parental leave.

Annual leave records must be retained for a period of three years to show compliance with the Organisation of Working Time Act, 1997.

Seemingly innocent jokes and pranks can often develop into something more serious and may lead to claims of bullying & harassment, constructive dismissal or even personal injury claims.   What is accepted as a joke by one employee may be considered offensive and unacceptable by another employee. One needs to be particularly mindful of the potential different reaction to jokes or banter by other cultures or  nationalities in our increasingly diverse workforce. All employers need to be aware of their responsibilities in providing a workplace that is free from discrimination and inappropriate behaviour. Jokes and banter have the potential to be construed as discriminatory on a number of grounds inlcuding race, religion and gender and can cost an employer dearly if they do not have the appropriate mechanisms in place to deal with such issues, as the examples above illustrate.  A clear policy that outlines what types of behaviour are unacceptable as well as the procedure to follow if an employees wishes to make a complaint is critical in all workplaces.

A candidate who was asked questions about the ages of her children and how long it took to drop them at school was awarded €1,000 for discrimination on the grounds of gender as similar questions were not asked of a male candidate, despite the fact that the questions were only asked in order to make the candidate feel at ease.

Employers must ensure that their recruitment practices are robust and transparent and that they are not exposed unnecessarily to potential claims of discrimination on any of the nine grounds outlawed under Irish equality law. 

One of the reasons that contributed to the dismissal being declared unfair and the maximum two years salary being awarded was that the investigation process undertaken by the Company after the incident took place was flawed and was carried out by a person who had witnessed events on the night in question. This case once again highlights how critical it is to ensure that all disciplinary matters are handled correctly and with full due process applied, regardless of the substantive nature of the issue. 

Minister Michael Martin stated that he intends to name and shame rogue employers who don’t comply and that:

“compliance with all aspects of employment law will be strictly enforced including in the employment permits area, national minimum wage, registered employment agreements and protection of young persons in employment”

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