Posts Tagged ‘Legal’

News from the Courts – Employee dismissed during probation period

Tuesday, November 13th, 2018

Employee dismissed during probation period awarded €90,000 in compensation

In a recent case before the Labour Court where a well known hotel dismissed an employee during the probation period because they felt it wasn’t working out, were found to have unfairly dismissed the employee in question and the employee was awarded a settlement of €90,000 in full and final settlement.

At the hearing, the claimant said he was headhunted by the Employer to accept a role as General Manager of the Hotel which meant he had moved from Dublin to Kerry to take up the role in January 2018 and that he was dismissed without warning on 27th April 2018 by the Managing Director. While the employer rejected that he had indeed been headhunted, the Managing Director felt he was entitled to dismiss the claimant as the contract of employment unequivocally provides that either party can terminate the contract by giving written notice during the probationary period.

However, when the matter was reviewed by the Court, they noted that the Claimant was furnished with a 36-month fixed term contract, which provided that “All dismissals will be carried out in accordance with the Provisions of Part Two of this Contract”. Part Two of the contract outlined the disciplinary procedures, which included:

  • the carrying out a full investigation before dismissal;
  • being informed of the reasons for the dismissal;
  • the right to reply;
  • the right to be accompanied at meetings and the right to appeal a decision to dismiss.

Having considered the positions of both sides, the Court was of the view that the procedures adopted in the termination of the Claimant’s employment were seriously flawed. He was not afforded fair procedures in accordance with the Code of Practice on Grievance and Disciplinary Procedures S.I. No. 146 of 2000.

Where an employee is considered unsuitable for permanent employment, the Court accepts that an employer has the right, during a probationary period, to decide not to retain that employee in employment. However, the Court takes the view that this can only be carried out where the employer adheres strictly to fair procedures. This requirement of procedural fairness is rooted in the common law concept of natural justice.

The Court was satisfied that the Claimant was not provided with details of any performance issues; no warning was given that his employment was in jeopardy; he was not afforded the right to representation; he was not provided with reasons for his dismissal and he was not afforded an opportunity to reply. Therefore, the Court was satisfied that he was denied natural justice.

Voltedge Management

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News from the Courts – WRC awards €30,000 to employee with epilepsy

Tuesday, October 9th, 2018

A solicitor who requested to work from home one day per week has been awarded €30,000. The employee suffers from epilepsy and had made the case that working one day at home would help her stress and fatigue, the employee’s epilepsy caused seizures at times which were unpredictable.

The employee’s neurologist had also given medical advice that stated that stress and fatigue can cause epileptic attacks, and that reasonable accommodation of her request to work from home should help her condition.

The employer maintained that working from home would be incompatible with the employee’s “frontline” job functions. The employee argued that her work was of a preparatory nature and that she had huge autonomy in her role.

In awarding the sum of €30,000 to the employee, the Adjudicating Officer stated that the company appeared rigid in its approach and did not take into consideration the potential improvement the time at home might have to her health. The Company also did not take into account the neurologist’s report which was received after the initial rejection of the request.

This ruling emphasises an employer’s need to seriously consider employees with disabilities and attempt to facilitate them – where possible and within the constraints of the business. (ADJ-00011821)

Voltedge Management

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Legal updates – Minimum Wage

Monday, January 22nd, 2018

With effect from 1st January 2018 there is a new Minimum Wage. The National Minimum Wage Order 2017 means the minimum hourly rate for an audit has increased by 3.2% to €9.55 per hour.

Overall, it means that the minimum wage in Ireland has increased by 10.5% since 2015 – when the minimum wage was €8.65 per hour and comes on foot of the recommendations from the Low Pay Commission (a statutory body set up in 2015 to make recommendations on the rate of the minimum wage annually).

It is estimated that about 10% of employees in Ireland are on the minimum wage (about 155,000 people).
Minimum Wage

Note: each one-third period must be at least one month and no more than one year

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News from the Courts December 2017

Monday, December 18th, 2017

News from the courts:  Employer ordered to pay employee returning after cancer treatment €25,000 on grounds of disability discrimination

The employee in question had 28 years of impeccable service with the organisation, and following her period of absence for cancer treatment, she requested flexibility on her return to work as she suffered persistent fatigue.

The employee requested flexibility and offered various options for accommodation, including working from home for a few days a week, working from the organisations local offices where she wouldn’t have as far to travel etc.

She was able to provide evidence that other employees had been accommodated with working from home while they recovered from an injury but her manager did not carry out any assessment, trial or review to support his claim that her work could not be carried out from home.

The employee provided her employer with a breakdown of her functions between those which could be carried at home and those requiring her to be in the office but her employer “totally ignored her analysis and the medical advice, too.”

A review by the WRC found that a significant proportion of her work was done on the computer and that a prima facie case of discrimination was established on the grounds of disability, and pointed out that there is a duty on an employer to make adequate enquiries so as to be in possession for all the facts regarding the needs of an employee with a disability to be considered.

It was the view of the WRC that no attempt was made to facilitate the employee and felt her manager had responsibility in that regard.

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News from the Courts

Monday, August 14th, 2017

Ex Employee awarded €4,000 for discrimination claim not investigated by the employer.

In a recent Labour Court hearing, a judgement was made awarding an employee €4,000 on the basis that the employer had not taken sufficient steps to address her claim that she was being discriminated against by her fellow work colleagues. She claimed that she had experienced verbal abuse over a short space of time; after having worked with the organisation for 4.5 years, she left her job less than three weeks after first telling her boss about the abuse she suffered. However her claim that she was constructively dismissed was unsuccessful.

The main points from this case were that while the company did send her a copy of the handbook and asked for her to document the complaint so that they could deal with it as per their policy, they had not investigated the claim and failed to take action.

The judge felt that: “It is not, in the Court’s view, best practice for an employer to seek to deal with alleged infringements of the Employment Equality Act 1998 by directing employees to a basic Grievance Policy or a general Bullying Policy.”

He also added: “It is no defence for an employer who has failed to investigate complaints of the magnitude raised by the complainant in this case to seek to justify their inaction on the basis that the complaints were not presented to them in written format.”

“The Court expects an employer to be proactive and, if necessary, to take a statement of the complaint(s) from the alleged target of the discriminatory behaviour.”

Varying a WRC adjudication officer decision from 2016, the Court did find however that the employer did not have an adequate anti-discrimination policy and associated complaints procedure in place.

 

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Changes likely on how internal investigations are managed

Tuesday, July 18th, 2017

Due to a recent High Court judgement, there may be some change coming in relation to how internal bullying investigations are handled. This judgement suggests that employees who are the subject of an internal bullying investigations have the right to legal representation at the internal employer investigation hearings and a right to “confront” or cross-examine fellow employees who may have made allegations against them, where there is a risk of dismissal.

Another aspect of this judgement is that it appears to suggest that this principle should be observed outside of disciplinary hearings, and could arise in non-disciplinary investigations conducted by employers where those investigations could subsequently lead to dismissal.

To date, the LRC Code of Practice on Grievance and Disciplinary Procedures is based the application of “fair procedures” in relation to the disciplinary processes. Fair procedures is not a prescriptive term and is not defined by statute, however the principles in employment processes are derived from case law and the LRC codes of practice.

This new development suggests that, where investigative procedures are invoked that could lead to dismissal, the respondent employee cannot be deprived of a right to legal representation at investigation hearings or a right to cross-examine those who may have made accusations, even if they are fellow employees. This could mean that employees who are the subject of an investigation now may bring legal representation to investigation meetings or, an employee who is the complainant, could now be subject to cross examination by such lawyers during investigation hearings.

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