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Monthly Archives: November 2013

Force Majeure Leave in the Irish Workplace

There are several types of leave that an employee may be entitled to. Some forms of leave are statutory entitlements and some other forms are not. Maternity Leave, for instance, must be given to employees when they are pregnant. Some forms of leave are paid and others are not. This can depend on statutory obligations and on the terms and conditions set out in the Contract of Employment. Annual Leave is a statutory entitlement and it must be paid by the
employer. Sick Leave, however, is not always paid by the employer (this depends on individual company policies).

Force Majeure

Force Majeure Leave is less commonly discussed. The purpose of Force Majeure Leave is to provide limited, paid leave to enable an employee to deal with family emergencies resulting from injury or illness of a close family member. Force Majeure Leave applies where the immediate presence of the employee is urgent and indispensable (essential).

 

 

A close family member is defined as one of the following:

  • A child or adopted child of the employee
  • The husband/wife/partner (same or opposite sex) of the employee
  • A parent/grandparent of the employee
  • A brother/sister of the employee
  • A person to whom the employee has a duty of care (where he or she is acting in loco parentis)
  • A person in a relationship of domestic dependency with the employee
  • Persons of any other class (if any) as may be prescribed

 

Force Majeure Leave

 

By its nature, an employee will not usually be able to give notice of the need to take Force Majeure Leave. The employee should, however, inform the employer (in writing) of reasons for taking the leave as soon as is reasonable practicable. The employee should provide details regarding the need for the leave and should confirm who the leave was taken in respect of.

Employers are obliged to keep a record of Force Majeure Leave taken by employees.

Employees will be entitled to:

 

          -   up to 3 days paid Force Majeure Leave in any consecutive 12 month period; or     

          -   up to 5 days in a 36 consecutive month period.   

Absence for part of a day is usually counted as a full day of Force Majeure Leave. Employees are entitled to receive pay for this type of leave. Employers can grant employees more than the number of days outlined above; however, they are not obliged to do so.

Employees are protected against Unfair Dismissal for taking Force Majeure Leave or for proposing to take it.

Death is not covered under Force Majeure Leave – Leave taken when a death occurs falls under Compassionate Leave and this tends to depend on employee contracts as well as custom and practice within the workplace.

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How to Conduct an Effective Employee Communication Survey

Surveying employees is an effective first step in fixing communication barriers in an organisation. Even if there are no obvious problems, communication surveys can help get an organisation to the next level of performance.

 

Benefits in conducting an employee communication survey and acting on the results include:

•             improved employee satisfaction

•             lower turnover

•             reduced absenteeism

•             less political infighting

•             greater levels of manager-worker trust

•             reduced defect rates

•             higher customer satisfaction

A well-run communication survey can give you these benefits. However, a poorly conducted communication survey can have the opposite effect. Surveys badly planned, rolled-out and followed-up can actually increase employee cynicism and resistance to change. They can also increase employee turnover and absenteeism. This can negatively impact customer satisfaction and your bottom line.

Employee Communication Survey Tips

So, what do you need to consider before rolling out your survey? Here are some tips.

 

 

Employee Survey

 

 

 

Question types

Include in your survey questions that require limited tick-the-box responses, such as Yes/No and Strongly Agree/Agree/Disagree/Strongly Disagree. Including these questions will allow
you to perform quantitative analyses that you can use to compare results between different demographics and to use as a benchmark for future surveys.

However, equally as important is the provision of free form space which affords employees the opportunity to elaborate on the feedback they have given elsewhere on the form and to discuss in detail anything that has not been covered in the other areas of the survey. A good idea is to run Focus Groups with a random sample of respondents after the survey forms have been
collected and analysed. These discussion groups are invaluable in performing a sanity check on your results so far and in teasing out issues that have surfaced in the written survey.

Anonymity

Guarantee absolute anonymity for the people completing the survey and make this clear in the survey instructions. Some employees will either not complete the survey or give sanitised answers if they believe that their identity will be disclosed with their answers and comments.

 Employee Survey

 

Sample size

Should you survey the whole organisation/department or a select group? Preferably, survey all employees as this gives everyone a sense of being listened to. If the organisation/department is excessively large or budget is tight, draw a random sample from each of the demographic groups that you will be reporting on.

If your selection is not random, the communication survey results will not be representative and you will lose credibility with your employees. If a demographic group comprises 50 people or less, you will need to survey 100 percent of the people within that group.

Mode of delivery

If the people completing the survey are small in number and at a single location, then hardcopy distribution will not be a problem. As the number of respondents increases and the locations become more dispersed, more consideration will need to be given to electronic distribution. Think about putting the survey on a local intranet or internet web server.

To make filling out the employee survey form easy for people, have it so that the form can be completed online. If this is not possible, either send the form by email or put it on an accessible server from which people can download it. If your survey respondents are not comfortable
with technology, then be wary of online options and provide plenty of employee support if you decide to go down that road.

 

Inducements and Reminders

Survey participation rates do not tend to be particularly high, typically ten percent or less. You can dramatically improve on this completion rate by conducting some simple follow-up. As you get closer to the communication survey cut-off date (of course, you will have publicised that
date with your survey), send out an e-mail reminder or arrange for someone to call the respondents personally. Consider advertising a raffle for all survey participants - this will increase the participation rate (especially if it is a good prize).

 

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Distribute results

Once the employee feedback results are in and analysed, distribute your findings first to your managers and then to employees. Withholding results from employees will only breed cynicism and distrust and will make getting a satisfactory response rate from your next survey all that more difficult.

Break down your results into meaningful groups, such as by department or by location/site. The reporting groupings need to be small enough that people can identify with the group enough for a meaningful action plan to be developed.

Be prepared for some kickback from defensive managers. Frank employee feedback is both confronting and jarring, especially for those managers not used to it. Use your best facilitation skills to deliver the key messages, or use a professional facilitator to perform this sensitive task.

Follow-up and Rewards

A survey conducted with no plan for action is not only a waste of resources but will leave employees asking why they bothered to give feedback to managers on how they felt. Work with each manager to construct an action plan that they agree with. Remember, it is the manager that will be implementing the communication plan, not you. Get back with each manager three
or six months later to review how they are progressing with their communication plan and report the results to the organisation. As you see communication practices improve across the organisation, make sure that managers get rewarded.

 

 

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Constructive Dismissal leads to €9,000 Award for Former Employee

Constructive Dismissal is the term used when an Employee terminates his or her employment based on the conduct of the Employer. Unlike in an Unfair Dismissals case where the dismissal is deemed to be unfair unless proven otherwise and justified by the Employer - in Constructive Dismissal instances the onus is on the Employee to prove that their resignation was based on poor Employer conduct.

Constructive Dismissal

If it is found that the Employee has been Unfairly or Constructively Dismissed then he or she could either be awarded compensation for the loss of earnings suffered as a result of the termination of employment or could be placed back in their original role. Reinstatement is not common practice (particularly in Constructive Dismissal cases) due to the expected tension/ strained relationship between the Employer and the former Employee and due to the amount of time that is likely to have lapsed between the termination of the employment contract and the resolution of the case. The Employee has often entered in to a new employment contract elsewhere.

It is important for Employers to be aware of everything that occurs in their workplace as even other Employees’ behaviour that goes unchecked by the Employer could contribute to a Constructive Dismissal case. These can be extremely costly.

Here is an example of a case where the Employee (the Claimant) was awarded €9,000 after the Employment Appeals Tribunal found that he had been Constructively Dismissed.

The Claimant in this case started working for the Respondent in 2007. There were no issues until late 2010 when a Technician was promoted to Technical Manager. This immediately created a hostile environment and relationships became strained. The Claimant experienced problematic scenarios in the workplace as a result of the Technical Manager’s temper on numerous occasions.

Constructive Dismissal

The final occurrence led to the termination of employment for the Claimant. On the Claimant’s final day working for the Respondent the Technical Manager, a physically intimidating individual, entered the shop where the Claimant and his colleague were working. The Technical Manager lifted the Claimant up from his chair by his arm and proceeded to shout at him. The Claimant, who was frightened, attempted to avoid confrontation and turned away. The Technical Manager again grabbed the Claimant, this time by his shoulder, and spun him around while demanding that he not complain. The Claimant said that he didn’t complain, he just answered questions. The Claimant was pulled closer and then told to leave by the Technical Manager.

The Claimant did as he was told but the Technical Manager proceeded to follow him, grabbing him by the neck. At this stage the Claimant was in a state of shock and told the Technical Manager that he was simply working his way through college. The Claimant’s shirt was torn, there were marks on his neck and his hand was bruised after the incident.

After the event, the Claimant called a Senior Manager and told him what had happened. The Claimant returned his keys to the shop and arranged to collect his jacket from his colleague. A series of meetings with the shop Manager and other Senior Managers were arranged. The Claimant was offered a transfer to another shop, however, this other shop was located far
from the Claimant’s home and, therefore, was not a suitable alternative – he could not accept this transfer proposal.

 

Employment Appeals Tribunal

 

As a result of the meetings the Claimant was given a written warning, however, as no arrangements were made for him to return to a safe workplace he had no option but to resign.

The Claimant established loss for the Tribunal and it was determined that the Claimant was Constructively Dismissed. The Respondent failed in its responsibility to the Claimant by not responding adequately.

Under the Unfair Dismissals Acts, 1977 to 2007, the Claimant was awarded €9,000 as compensation for being Constructively Dismissed.

 

The appeal was heard at Dublin on 14th October 2013. Case Number: UD669/2012.

 

 

 

 

 

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Employment Appeals Tribunal Awards €8,500 to Former Employee

Unfair Selection for Redundancy Claim succeeds leading the Employment Appeals Tribunal to award €8,500 in compensation. After hearing statements from the former employee (the claimant) and the respondent (a car dealership), the Tribunal was satisfied that a redundancy situation existed, however, the Tribunal concluded that the process was defective and, therefore, determined that the claimant was entitled to a significant award.

 

Employment Legislation

 

The respondent failed to consult the claimant about his redundancy and did not appear to properly consider alternatives before finalising the decision to make the employee redundant – For instance, the employee could have suggested that he work a shorter working week/reduced hours or that he take a reduction in pay. The respondent is obliged to consider these suggestions over a period of consultation, however, the claimant was not afforded this entitlement and was only told the reasons behind the decision to select him for redundancy after asking for these.

 

Redundancy

 

 

The Tribunal found that the claim under the Unfair Dismissals Acts, 1977 to 2007 was justified which is why the claimant walked away with €8,500. This sum was in addition to the redundancy lump sum that he had received when the redundancy first occurred.

 

 

Details of this case can be found on the Workplace Relations Website (Case No. UD450/2012) - http://www.workplacerelations.ie/en/Cases/2013/November/UD450_2012.html

 

This case stresses the importance of following the approved procedures when it comes to redundancy. Not only do you have to prove that a redundancy is required in order to keep the business viable – you must also be able to justify why you made one employee redundant over another.

 

The employer must be able to show that the redundancy process was not flawed. Employers should use a Selection Matrix so he or she cannot be accused of subjectivity (which is what the employee claimed in the above-mentioned case). The employer is obliged to invite the employee to a meeting making them aware that it concerns redundancy. Employers are obliged to give the employee notice of the redundancy and the reasons why the redundancy scenario came about along with why they were selected.

 

 

Redundancy

The employer should have asked the employee in question if they could think of any alternatives to the redundancy and the employer should have allowed for a period of consultation of at least three days before making their final decision. It is also important to allow employees to be accompanied to meetings like this.

 

Redundancy Procedures

 

 

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The Redundancy Process Explained

Without a doubt redundancies can be required to keep a business viable. Employers need to ensure that they make their decisions based on what is best for the business -
not because they want to get rid of Danny the storeman who they feel hasn't done a tap for years.

Before making people redundant, Employers must look at the overall business and see what areas are suffering a downturn, what areas are picking up, and how best they can react to changed circumstances.

Redundancy

A Selection Matrix will help to clarify the Employee strength and weaknesses and take the personalities out of the decision - and also ensure that no-one can accuse the Employer of
using redundancy simply to remove people the Employer doesn't like from the Company.
As a business owner or manager, the Employer is entitled to make decisions that make business sense. So establishing the logic of any decision before making it is important.

There is a strict redundancy selection process that has to be followed when making job roles redundant. Remember that it is the role that is made redundant rather than the Employee – One cannot make an Employee redundant and then hire a replacement in their role the next day.

Proving that a redundancy was necessary is essential and if the correct process is not followed then this could be very costly for the Company and Labour Court action could follow.

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When making an Employee redundant, you should:

*Invite the Employee in question to a meeting, making them aware of what it is about e.g. the closure of the business/need to downsize etc.

*This meeting should be to inform the Employee that they have been selected for redundancy, or, in other words, it is giving them their notice of redundancy. The Employer should make the Employee aware of the reason(s) for this selection etc. at this stage.

*At the meeting, the Employer should ask the Employee to think about alternatives to this redundancy and these options can be discussed at the second meeting to explore whether any of these alternatives are viable options to save this Employee’s job. The Employee may request a pay cut, to be laid off for a period of time, reduced working hours etc., (all of the options
mentioned should have already been ruled out by the Company in coming to the decision of making a position redundant). If there is a potential transfer situation, this may arise as an alternative to the redundancy.

*The Employer should end the meeting by telling the Employee that he/she will be meeting with them again. The next meeting should be scheduled more than 3 days from the first meeting as the Employer should have ample time to consider all suggestions or alternatives to redundancy that the Employee presents.

*The period between the first and second meeting is known as the 'period of consultation'. It
will be at this second meeting that the Employer will discuss any alternatives to redundancy that the Employee suggests. If none of the suggestions are feasible for the Company the Employer will explain the reasons why they are not feasible. At that point, the Employer will go through the terms of the redundancy i.e. what payment the Employee will receive. In advance of this meeting the Employee should be made aware of their entitlement to bring a representative with them – for instance, the employee could bring a colleague or some other person who has an in-depth knowledge of the Company.

 

Redundancy*The Employer should tell the Employee that, prior to the meeting, he or she should inform the Company if they intend to bring a representative and, if so, who this will be. This is in case the Employee decides to bring:

a) A Solicitor:
The Employee is entitled to bring a solicitor if they wish (if they do, the Employer too will need to bring a solicitor). The solicitor will not be able to speak on behalf of the Employee, but will be entitled to ask questions on behalf of the Employee.

b) A Trade Union Representative:  If the Company does not engage with/negotiate with Trade Unions, the Employer will have to make the Employee aware that they will only recognise this person in a personal capacity, that they do not have a collective agreement with any Trade Union and that they have not, nor will not ever recognise a Trade Union. The Employer should ensure that this is clear to the Employee.

 

*The use of the RP50 hardcopy form is not in place any longer and as there is no longer any Employer rebate, there is no requirement to lodge the RP50 with the Department of Social Protection. However, in line with best practice, it is recommended that the RP50 form is completed online through the following link: https://www.welfare.ie/en/Pages/secure/RedundancyForm.aspx and printed so that the Employee is signing something to confirm they are receiving their payment from the Company.

*If the Company is not in a position to cover the cost of these redundancies, the Employee can claim their redundancy entitlements through the Social Insurance Fund, however, the Company does need to prove its inability to pay the redundancy amounts to the Department of Social Protection. In this case, the Employee will need the RP50 to claim his/her own redundancy payments.

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