Minister of State Aodhán Ó’Ríordáin has announced, in an interview with RTÉ’s Prime Time programme, that the upcoming Family Leave Bill is likely to include a new entitlement for fathers to two weeks’ of paid paternity leave in the event of the birth of their child. This will be a significant development for Irish employers and employees alike.
Christmas and the holiday season is a time where everyone wishes to take time off and spend it with their family and go through their annual traditions. However, for many businesses there is no time off. Several industries, such as hotels, care homes, etc. work as normal all over the Christmas period whereas other companies may have some employees on call instead. Indeed, in the case of White -v- Balfour Beatty CLG Limited (UD888/2013) the EAT had to consider the fairness of the employer’s decision to dismiss an employee after he had refused to work an on call shift on Christmas Day.
The Budget affects everyone and there is no escaping from it. However, the vast majority of employers are not concerned with discussions on the duty on a 20-pack of cigarettes increasing by €0.40c. Therefore, Peninsula Ireland has put together this short synopsis of the Budget and its impact on ‘employers’.
If there is one thing that employment law has shown over the years it is that gross misconduct can be a rare and elusive thing. Indeed, in the case of Feery -v- Oxigen Environmental T/A Oxigen (UD184/2013) the Employment Appeals Tribunal stated that an employee’s abusive conduct on a phone call was “clearly unacceptable” but still found such conduct to fall short of gross misconduct, awarding the employee €6,500 for unfair dismissal. In this article we look at the lessons that can be learned.
Background & Sickness Absence
The employee in this case worked at a general operative level within the respondent company and had effectively worked at a recycling site in Edenderry since 2006. The employee was dismissed for unacceptable conduct during a telephone conversation between the employee and various members of management.
In and around April or May 2012 it was alleged that the employee had possibly strained his back while maneuvering some goods. The employee stated that the back injury did not improve and he was attending his GP on an on-going basis and to this end had been out sick for a full week for which he had expected to be paid.
The accepted that the employee believed he would be paid for the week he was out on certified sick leave but noted that this expectation may have been unwarranted as the company gave evidence to the effect that such a payment is entirely at the discretion of management. To confuse matters, the employee had actually been paid for two days’ sick leave immediately after the accident which had given rise to his back complaints.
Having taken the issue up with his line manager, the EAT heard that the employee had taken the view that the company were not paying him for the week as they did not a back injury had ever occurred. According to evidence, there was no doubt that the employee over-reacted in this respect and this manifested itself in an unfortunate phone call to the payroll manager. The tone and content of this phone call were clearly unacceptable and the payroll manager was certainly shaken. That said, the employee was advised by the said payroll manager that no accident report form had ever been prepared and/or filed and one would be needed to sanction sick pay for the time off.
The Employer’s Perspective
As it happened, the HR Manager intercepted the phone call and confirmed to the employee that there was no evidence that there had ever been an accident and it seems he had made enquiries about this fact just prior to intercepting the call. The EAT was informed that the employee did not temper his tone when talking to the HR Manager and the conversation ended abruptly when the employee heatedly hung up the phone. The company took the view that the employee lost his temper and behaved in a way that was unacceptable to his work colleagues.
The Employee’s Perspective
On the other hand, the EAT considered the matter from the employee’s point of view and in particular the underlying suggestion that the employee was lying about having had an accident in April 2012. At the time, the employee had gone out on two days’ sick leave for which he was paid. The EAT held that if there was no accident report form then the employee cannot be held responsible as his line manager knew or ought to have known that the employee had hurt himself and was out of work as a result. In short, the employee had an expectation that he would be paid for a week’s sick leave and rather than being told that this would not happen and the reasons that this decision was being made he was left to find out for himself. In addition to the fact of the loss of a much needed week’s wages the employee was made to feel by his line manager, and the payroll manager and the HR manager that he had fabricated his back injury.
Previous Disciplinary Record
The EAT also considered the employee’s employment as a whole and noted that the employee had a clean disciplinary record and that he had worked hard in increasingly adverse economic conditions as evidenced by the fact that wholesale pay cuts were being implemented in the workplace in 2012.
On balance, the Tribunal found that the employee was unfairly dismissed. In awarding compensation, the Tribunal took into account the fact that the employee’s behaviour was still unacceptable and as such reduced his award to €6,500. The important points that we can learn from this case are as follows:
- Always consider any disciplinary matter from the employee’s point of view; don’t fall into the trap of only looking at an incident from a “company policy” or a principled point of view.
- Do consider the employee’s length of service and whether or not they have a clean disciplinary record. If the employee has been working with you for a long time and never put a foot out of line then a tribunal is far less likely to deem gross misconduct to be a reasonable outcome following a once-off incident.
- Remember that there is a high threshold on what constitutes “gross misconduct”.
Don’t readily assume that something is gross misconduct and do seek advices from the Peninsula 24 Hour Advice Service on 01 855 50 50. –
The Minister for Business and Employment, Gerald Nash TD, announced this week that good progress is being made on the drafting new legislation to replace the Registered Employment Agreement system (REAs).
A hot topic at the moment in Irish employment law centres is the question of overnight workers, such as junior doctors, live-in care workers, etc., in the medical/care industry. No doubt the entire country was more than aware of the kerfuffle with the HSE when the junior doctors were alleging that their overnight working and long shifts were in breach of working time and rest break legislation. In a very important development, a recent ruling from the Labour Court has recommended that overnight workers are entitled to receive the National Minimum Wage in circumstances where they may not actually be working (e.g. sleepover) but are nevertheless required to be present at the place of work. Read the rest of this entry »
TUPE has become very much a hot topic in Ireland with more and more cases being presented to the Rights Commissioner and EAT year on year. As such, Irish case law and precedent is still developing and in that respect it was ideal for employers, employees, and legal advisors alike to see the position of service provision contracts comprehensively addressed by the EAT in Cavan Industrial Cleaning Services Limited -v- 8 employees (TU29-TU36/2013).
Salary up to €35,000 – €40,000 depending on experience + Excellent benefits package This is a fantastic opportunity to work for Ireland’s and the UK’s leading provider of Employment Law, HR and Health and Safety Services. Established in 1983 and currently with over 27,000 clients and employing over 1000 people, Peninsula is the number 1 organisation in this field and we continue to grow our customer base year on year.
The role of the Employment Law Advocate is critical to the on-going success and future growth of Peninsula Business Services. You will receive EAT/LRC/Equality Tribunal/Labour Court and ERS cases allocated from the Legal Services Administration team, these cases can be located anywhere within the Republic of Ireland. You will be required to case manage the file fully from client inception stage through to any necessary hearings until the matter subject of the case file is concluded. This role is based in our office in East Point Business Park.
Peninsula are the leading provider of employment law and health & safety services in the UK with over 27,000 clients and have just been awarded the award of top 5 Companies to Work For In the UK. The role of the HR/Employment Law Shared Services Team Leader – ROI is to manage a team of Employment Law Advice Consultants. You will be responsible for identifying training requirements, manage their performance against KPI’s and ensuring that they maintain a high standard of service provision to our clients.
We had previously posted that the European Court of Justice had issued an opinion on a case referred to them, and found that EU law does not require that a mother who has had a baby through a surrogate agreement should be entitled to maternity leave or its equivalent. This case has now been decided upon by the Equality Tribunal here in Ireland.
As featured in the Journal.ie, the Greyhound Recycling Group says it welcomes the decision by Minister of State, Ged Nash, to seek the introduction of legally binding pay rates for workers across the waste industry. Greyhound says it has been seeking an initiative like this for some time. The company is also defending its pay rates, saying that the “Greyhound collection crews are the best paid bin collectors in Europe. Greyhound pay rates are 60% above the industry average” and that even after the proposed reduction, they will still be 10% above the average. Greyhound says it must be allowed to compete with other waste companies and binding pay rates across the industry would allow it to achieve this.
Such a move will see a minimum level of wage rates across the industry and so the ability for cheaper firms to undercut based on pricing will be reduced. It was these such concerns that saw the introduction of the REAs for the Construction industry which were spearheaded by the larger construction firms (who could afford to pay the rates) in an effort to ensure the smaller firms would not be able to undercut them on pricing. the REAs established minimum rates of pay and conditions for workers and were backed by unions, however this put a major financial struggle on small to medium sized employers.
SIPTU workers at Greyhound have been protesting about the cuts since June 17. Last week, the High Court ordered a TD and two councillors to stop blockading Greyhound bin trucks in Dublin. The union representing the Greyhound workers said it will continue to hold peaceful pickets at the company’s depots in Dublin 22 and Dublin 12.
The following case Thomas Marsh T/A Thomas Marsh Plant Hire & Quarry Supplies v David Cunningham UD1524/2010 is especially important for employers who are paying employees a different rate of pay to what is stated on their payslips.
The case highlights that if a Tribunal becomes aware that there are irregularities in the rate of pay received by an employee then the Tribunal will be obligated to report that to Revenue which will have significant ramifications for both the employer and employee.
Death in service benefit is something that a number of employers offer their employees as a part of their overall Pension or Health Insurance packages. This can provide for the partners of the employee anywhere from two times to five times their salary, upon their death if still in employment.
However two recent cases have highlighted some other obligations on an employer towards their employees, should they pass away whilst still in employment.
From time to time we see decisions made at various levels that will confuse rather than enlighten a person as to what is seen as best practice and what is required under the legislation, this can be due to a number of factors – not least of which is a lack of detail in the written determination of the Tribunal.
In a recent case that was appealed to the High Court we can see a situation where a concurring decision was held the entire way through a process, however the level of detail in the initial decision as questioned, and when redrafted the additional detail presented a clear way of thinking and a clear path as to how the Court made their findings, which can only be of benefit to employers and employees alike.
Collective bargaining has been on the agenda since the current Government came into power, and with this year marking the centenary of the 1914 lockout, employee unions were always likely to push to have Collective Bargaining to the fore in 2014. We posted previously on this, and today the Minister for Business & Employment, Ged Nash T.D., – from the Labour party – has said that he is working to have legislation on collective bargaining rights enacted by the end of this year.
Minister Nash said this legislation would significantly strengthen the rights of workers in companies that refuse to engage in collective bargaining while also giving, for the first time, statutory protection to guard against the victimisation of workers in such companies.
Read the rest of this entry »
Equality and discrimination is an area of employment law that can be fraught with difficulty for employers and employees alike. Whilst many employees may feel as though they have been treated unfairly by their employer, these feelings can be heightened significantly where the employee feels they have been treated unfairly on the basis of a discrimination ground (or “protected characteristic”). For this reason, it is very important that employers keep abreast of developments in equality law so that they may ensure they are treating employees fairly whilst concurrently protecting their own business.
As reported in the Irish Examiner the EAT has awarded €47,500 in the case of Matthews -v- Applus Car Testing Services Limited (UD795/2012) where the employee was dismissed on foot of allegations from a whistle-blower that he drove vehicles belonging to other people to the test centre for testing and tested them himself. We have recently published a post on the new protections for Whistleblowers arising out of the Protected Disclosures Act 2014, which protects whistleblowers from penalisation, however an employer must also be careful to ensure there is enough evidence to address any instances of misconduct aside from just a whilstleblowers testimony.
The Protected Disclosures Act 2014 was enacted on the 15th July 2014 and is Ireland’s first overarching statute enabling protected disclosures, better known as whistleblowing, to be made by workers in all sectors of the economy.
The aim of the legislation is to provide much needed protection for workers who make disclosures of wrongdoing or raise concerns about matters of public interest where knowledge of same comes to them through their employment, and to provide protection for Whistleblowers against penalisation i.e. the employer is prohibited from carrying out any act or omission that affects a worker to their detriment including suspension, lay off, demotion etc.
The long running story of reform of the Industrial Relations fora in Ireland has received an update, as on Tuesday 8th July 2014 the Minister for Jobs, Enterprise and Innovation, Richard Bruton TD secured Government approval for the Workplace Relations Bill 2014. The law, when enacted, will replace the current five workplace relations bodies with two. As we have reported the new system will aim to provide a world-class service for employers and employees, while also delivering savings for the taxpayer.
It forms part of a broader reform programme within the Department of Jobs, Enterprise and Innovation which will see the total number of agencies under the responsibility of the Department reduced by 41 by end 2014.
The new workplace relations system will comprise two bodies – the Workplace Relations Commission which will deal with complaints at first instance, and the Labour Court which will deal with appeals. The various responsibilities of the Labour Relations Commission (LRC), the National Employment Rights Authority (NERA), the Equality Tribunal, Employment Appeals Tribunal (EAT) and the Labour Court, which have built up over time, will be subsumed into the two new bodies.
Enactment of this legislation is targeted by the end of 2014, however no timeframes have been set in terms of the transfer of the existing agencies.
The issue of BYOD (Bring Your Own Device) is very topical at the moment with many people having different schools of thought; it’s bad, its good, increases productivity, confidentiality issues, etc. etc. However the other concern with these is the Health and Safety concerns of bringing a device tot he workplace which may not be fit for purpose.
Almost everyone knows that electrical equipment used in the course of work must be manufactured to current standards and be safe for its intended use. To avoid the risk of electric shock fixed and portable electrical equipment must be maintained so that it remains safe and fit for use.
Some may have seen the article in yesterdays Irish Independent which outlined a case being heard where a bus driver broke a red light and crashed into another vehicle. Its seems straightforward and there is not much in this that would surprise, however what was interesting was the outcome where the driver was fined €300, but the Court also said that the driver had been punished by the court and should not be further punished by her employer.
It is reasonable to see why a ban was not imposed as it would affect her ability get a job in future but it is interesting to see a Court raising an opinion on the employers right to take action.
Negative employees or general negativity in the workplace can have a substantially adverse effect on the business, especially when the negativity spreads throughout the workforce. The negativity can lead to a widespread feeling of discontent which can damage morale, job satisfaction and disrupt staff. All of this can lead to reduced productivity, efficiency and ultimately profitability as employees lose energy and focus on their performance and work.
The issue of fixed term workers and NUI Maynooth seem to run side by side when it comes to Contracts of Employment. Perhaps one of the most famous fixed term workers cases relates to a former employee of the University where in the case of Buckley v. NUI Maynooth the tribunal gave very clear instruction as to what must be included in a Fixed Term Contract in order to justify it carrying on longer than the recommended 4 year period.
Every employer will receive an employee request for time off to care for a family member. However, many employers are unsure what an employee’s rights are. We often get requests for information relating to such entitlements, and this post will consider the ‘family friendly’ entitlements of Carer’s, Force Majeure and Parental Leave.
Here at the Peninsula Ireland Blog we often receive queries about continuing to employ a worker who has either been convicted of a crime or accused of a crime. This issue has really come to the fore in recent weeks after Tesco lost an unfair dismissal claim for €11,000 after dismissing an employee after he pleaded guilty to a charge of the possession of drugs with intent to supply.
As such, now is as good a time as any to consider the issue of how criminal convictions might impact upon the employment relationship.
Previously we reported on a case where a Google Senior Manager was dismissed for “under performance” and the case was being heard by the EAT. The determination for this case has now been published and saw €110,000 awarded in compensation to the employee.
As reported in The Irish Times, Rachel Berthold, a former senior manager at Google in Dublin, was awarded the compensation after the tribunal rejected Google’s defence that it had dismissed her on competency grounds. The tribunal said it was “not satisfied that fair procedures were used” and it ruled her dismissal was “procedural unfair”. The tribunal dismissed a claim by Ms Berthold that she was entitled to an award under minimum notice legislation, pointing out that she had received payment in lieu of notice.
The Data Protection Commissioner has just released the annual report for 2013 and in their findings they have seen a rise in the number of data security breach notifications to the office due to employers either being unaware or negligent of their responsibilities concerning data protection. Such breaches may lead to investigations by the Data Commissioner and can lead to various implications for Employers
The Data protection Act stipulates that anyone processing personal data must comply with Eight Principles of good practice. These Principles are legally enforceable, therefor employers should familiarize themselves and be aware of any breach of the act that could be made.
On 23rd April 2014, in an effort to addresses legislative deficiencies identified in the Muhammad Younis case, the Minister for Jobs, Enterprise and Innovation, Richard Bruton TD published the Employment Permits (Amendment) Bill 2014. It is envisaged that the law, when enacted, will reform and modernise Ireland’s employment permits system.
Do any of your staff drive for work? Employees on the road are on average the most at risk group in a organisation, and numerous pieces of legislation have been enacted to protect these workers from hazards associated with their roles, such as the European driving regulations which limits the amount of time a worker can drive for without taking a break.
The latest measure being a national Garda operation targeting motorists using mobile phones, which is becomming one of the biggest causes of accidents on our roads, and a growing concern for employers.