The recent set of Employment Appeals Tribunal decisons published last week illustrate once again how employers end up paying dearly for not following due procedures in discipinary situations or for applying a disproportionate sanction. Here are a few examples :

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.

A former hospital worker was recently awarded almost 30k by the Employment Appeals Tribunal when she successfully claimed constructive dismissal,after being bullied and isolated at work by her colleagues over a period of time. The tribunal determined that her employer had failed to properly and proactively investigate the allegations made, which resulted in working conditions becoming intolerable as she continued to be rostered with staff that she complained were bullying her.

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.

As the fifth bank holiday of 2009 approaches, I thought it would be useful to remind you about how public holiday entitlement applies to employees, as determined by the Organisation of Working Time Act, 1997. Full time employees have an immediate entitlement to public holidays from the first day of employment, whilst part-time employees must have worked at least 40 hours in the 5 weeks preceding the public holiday to benefit. There is no automatic right to have the day of a public holiday off and employees may be required to work on public holidays. In terms of compensation, it is up to the employer to decide which of the following should apply:

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.

The Organisation of Working Time Act 1997 is a very important piece of employment legislation that governs a number of the fundamentals of the employment relationship such as leave entitlement, maximum working hours, rest periods and breaks. Generally, employees who work 4.5 hours are entitled to a 15 minute break during their working hours or a total of 30 minutes break if they work 6 hours (which can include the first 15 minutes). Breaks should not take place at the end of the working day and must be scheduled for rest purposes. Rest breaks do not normally have to be paid,but there may be an established practice of providing paid breaks that are relevant in a number of different organisations and industries, or the provision of paid or additional break time may be determined by a legally binding Joint Labour Committee e.g in the retail grocery trade. Also employers who employ young people under the age of 18 should note that they are responsible for providing longer break periods during work hours.

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.

Redundancy payments and RP50′s – An all too familiar issue these days. Apart from ensuring that employees are awarded their correct stautory redundancy payment (use online calculator http://www.redcalc.entemp.ie), under the Redundancy Payments Legislation, employers need to ensure that they issue at least two weeks notice of redundancy if they are making a redundancy payment. However, there may be an entitlement to a longer notice period if provided for in the contract of employment or in respect of statutory notice entitlement, which can entitle employees to up to 8 weeks notice when over 15 years service has been completed. Notice may be paid in lieu (except the two week redundancy notice) and the redundancy notice may run concurrently with any longer notice period. The option to pay notice in lieu should be provided for in the contract of employment and the redundancy payment needs to be calculated on the “notional” end date, as if the employee had worked out their notice.

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.