Sunday, 13th October 2019

HR Topics

Receptionist placed on reduced hours after Maternity Leave awarded €63K

Receptionist placed on reduced hours after Maternity Leave awarded €63K

€63,000 has been awarded to a receptionist by The Equality Tribunal after it found she was discriminated against on the grounds of gender and race, and subsequently victimised. Sylwia Wach, a Polish receptionist began working at the Waterford Travelodge in 2007 where she was initially employed as an accommodation assistant before becoming a receptionist one year later.  Ms Wach went ... Read More »

Ireland’s Whistleblowing Act

Ireland’s Whistleblowing Act

The Protected Disclosures Act, 2014 is now in effect. The Protected Disclosure Bill 2013, commonly known as the ‘Whistleblowers Bill’ was published on July 3rd 2013 by the Minister for Public Expenditure and Reform, Brendan Howlin, T.D. The Bill was drafted to establish a comprehensive legislative framework protecting whistle-blowers in all industries in Ireland. The Bill recently passed through the ... Read More »

Labour Court’s recommendation in Workers v Timber Company Case

Labour Court’s recommendation in Workers v Timber Company Case


SIPTUThe Workers at a timber company brought a case against their Employer to the Labour Court and the Recommendation was very interesting.

 

The Workers, who were represented by Services Industrial Professional Technical Union (SIPTU), wanted a 5% pay increase. However, the Company didn’t feel as though it should be paying such an increase.

 

The National Wage Agreement ceased in 2008 and the Workers in the Company have not received a pay increase since then.  The dispute between the Employees and the Company could not be resolved at local level and became the subject of a Conciliation Conference under the auspices of the Labour Relations Commission (LRC). Agreement was not reached here and so, in November 2013, in accordance with Section 26(1) of the Industrial Relations Act, 1990, the dispute was referred to the Labour Court.

Labour Court

In March of this year a Labour Court Hearing took place. The Union argued that the Workers at the timber company have had to endure the austerity measures introduced in successive budgets over the last number of years. They have also experienced a significant increase in taxation which, combined with the difficult budgets, has resulted in a reduction in the take home pay for the Workers. SIPTU also argued that the increase sought was a modest one and that it would not adversely impact the Company.

 

The Company, on the other hand, argued that it was forced to take certain steps to remain viable and maintain levels of employment in the very competitive recent market conditions.

 

The timber firm also stated that it had always met its commitments under the National Wage Agreements; however, any increase in pay at this stage would inevitably challenge the security of employment within the Company.

Increase in pay

 

 

Mr. Hayes (Chairman), Mr. Murphy (Employer Member) and Mr. Shanahan (Worker Member) considered the Employee and Company arguments and made a decision based on all of the submissions.

 

In the end, the Court met in the middle and Recommended that the Company increase the pay of the workers concerned by 2% for twelve months, effective 1st August 2014.

 

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All Hours Worked by Employees Considered in Annual Leave Calculation

All Hours Worked by Employees Considered in Annual Leave Calculation

Did you know that all hours worked by any employee are taken into account when calculating Annual Leave? This will include any hours worked in addition to normal working hours. Further to this there are additional leave periods that will be included ... Read More »

Carer’s Leave – What Employers need to Know.

Carer’s Leave – What Employers need to Know.

 Carer’s Leave

In accordance with the provisions of the Carer’s Leave Act, 2001, if an employee has completed 12 months’ continuous service with you; he or she is entitled to take unpaid Carer’s Leave in order to care for a person (a ‘Relevant Person’) who requires full-time care and attention. Carer's Leave is protected leave.

Carer's Leave

A ‘Relevant Person’

A ‘Relevant Person’ is a person who is over the age of 16 and is so incapacitated as to require full-time care and attention or a person who is under 16 and in receipt of a Domiciliary Care Allowance. A Deciding Officer of the Department of Social Protection determines whether or not an individual qualifies as a ‘Relevant Person’. Employees may be entitled to receive Carer’s Benefit/Carer’s Allowance whilst on leave. You should inform employees that they should apply to the Carer’s Benefit Section at their local Social Welfare Office so their eligibility can be assessed. There is no statutory obligation on you as an employer to pay employees during Carer’s Leave.

Entitlements

Other than their right to remuneration, you should treat employees as though they have been working during a period of Carer’s Leave. Annual Leave and Public Holidays will accrue as normal for employees during the first 13 weeks of Carer’s Leave. The minimum statutory entitlement is 13 leave weeks and the maximum period is 104 weeks. The 104 weeks (2 years) can be taken in one continuous block or it can be broken up into multiple separate periods of leave – there must be a gap of at least 6 weeks between periods of Carer’s Leave.

Employment LawApplication/Notification

If one of your employees intends to avail of Carer’s Leave then he or she should write to you not less than 6 weeks before the proposed commencement of the leave in order to apply for this leave. The application should include the following details:

             The manner in which the employee intends to take the leave

             The proposed commencement date and, where possible, end date (this won’t always be possible – especially if the ‘Relevant Person’ is terminally ill; for instance)

             That he or she has made an application to the Department of Social Protection for a decision to be made in respect of the person for whom they propose to avail of the leave

A confirmation document should be signed by you and the employee prior to the commencement of Carer’s Leave.

If the employee would like to return to work on a different date than previously agreed (if one was agreed) then he or she should provide you with a ‘Notice of Return to Work’ not less than 4 weeks prior to the intended return date.

Termination of Carer’s Leave

Carer’s Leave may be terminated for several reasons. If it becomes apparent that the person for whom the care is being provided is not in need of full-time care any longer for whatever reason, you may terminate the leave. The Department of Social Protection will make a decision in certain instances.

 

To download our Staff Suggestion Form click the image below ->

Staff Suggestions

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ECJ may find that obesity is a disability – Employers beware.

ObesityLast Thursday, 12th June, the European Court of Justice heard a landmark discrimination case that was brought by Karsten Kaltoft of Denmark. Mr. Kaltoft alleges that he was discriminated against when he was dismissed by his employer because of his weight (approximately 25 stone). The case is the first of its kind to be referred to the EU and could have extensive consequences.

The Danish man was employed by his local authority – Billund local authority - as a child-minder. Kaltoft claims that his weight did not affect his ability to perform his child-minding duties; however, the Court heard that he was unable to do tasks like tying a child’s shoe laces without a colleague’s help.

The question that the European Court of Justice (ECJ) must consider is whether Mr Kaltoft’s obesity falls within the classification of a “disability” under EU law.

The Court’s decision, which is expected in a few weeks, will alter the EU’s Directive on Employment Equality which outlaws discrimination on disability grounds.

The Court’s decision will be binding across all EU member states, including Ireland.

If Kaltoft is successful in his arguments, obesity will be redefined so as to be categorised as a disability.

ECJ


The USA has already seen several individual workers receive compensation from their former employers as a result of being dismissed due to their obese status.

Until now, the UK courts have rejected obesity as a disability in its own right; however, if the ECJ finds that Mr. Kaltoft was, in fact, unfairly dismissed, employers throughout Europe will be bound by the ECJ ruling and will be forced to treat obesity as a disability going forward. Such a decision would, in future, force employers to make ‘reasonable’ adjustments - for instance, they may have to provide preferential access to parking (as is currently the case for disabled drivers). The ECJ ruling could also restrict employers from rejecting job candidates because of their weight.

According to a 2011 Oireachtas Library & Research Service report, ‘Obesity – a growing problem’, a staggering 61% of adults in Ireland are overweight or obese.

Body Mass Index (BMI) is a number calculated based on a person’s weight and height. Anyone with a BMI of 30 or more is classed as clinically obese.

Employers must pay attention to the ECJ decision in the Kaltoft obesity case as it may establish a precedent across all EU member states which could have major implications for employers.

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Employing Young People – Under 18s Register


Under 18 RegisterThe Protection of Young Persons (Employment) Act, 1996 is designed to protect the health of young workers and places restrictions on their employment. The basis for this is to guarantee the protection of young people and to ensure the workload assumed is not jeopardising their education.

The law sets minimum age limits for employment. It also sets rest intervals and maximum working hours, and prohibits employees under the age of 18 from working late at night. Employers must also keep specified records for those workers who are under the age of 18.

During a National Employment Rights Authority (NERA) assessment the inspector will request access to the company’s register of employees under the age of 18 (if the company employs workers in this category). 

 NERA

There are strict rules that employers must adhere to when employing those under the age of 18.

According to the Act employers cannot employ children under the age of 16 in regular full-time jobs. 

Children aged 14 and 15 may be employed on a controlled basis.

Some rules to pay attention to:

•They can do light work during the school holidays – 21 days off must be given during this period.

•They can be employed as part of an approved work experience or educational programme where the work is not harmful to their health, safety or development.

•They can be employed in film, cultural/advertising work or sport under licences issued by the Minister for Jobs, Enterprise and Innovation.

•Children aged 15 may do a maximum of 8 hours of light work per week during the school term. The maximum working week for children outside of the school term is 35 hours (or up to 40 hours if they are on approved work experience).

•The maximum working week for children aged 16 and 17 is 40 hours with a maximum of 8 hours per day.

 Under 18s

There are many obligations on the employer when he or she employs a young person – here is a list of some of the items that employers must be vigilant of:
 

An employer must be provided with a copy of the young person’s birth certificate (or other documentation proving age) prior to the commencement of employment.

Break rules are: 30 minutes break after working 4.5 hours

Before employing a child an employer must obtain the written permission of the parent or guardian of the child.

An employer must maintain a register of employees under 18 containing the following information:

•The full name of the young person or child

•The date of birth of the young person or child

•The time the young person or child commences work each day

•The time the young person or child finishes work each day

•The rate of wages or salary paid to the young person or child for his or her normal working hours each day, week, month or year, as the case may be, and

•The total amount paid to each young person or child by way of wages or salary

Download your copy of our Under 18s Register here:

 

Under 18s Register

 

An employer and parent/guardian who fails to comply with the provisions of the Act shall be guilty of an offence. 

Some other notable rules the employer must adhere to when employing a young person or child are as follows:


•The employer is obliged to ensure that the young person receives a minimum rest period of 12 consecutive hours in each period of 24 hours.

•The employer is obliged to ensure that the young person receives a minimum rest period of 2 days which shall, where possible, be consecutive, in any 7 day period.

•The employer cannot require or permit the young person to do work for any period without a break of at least 30 consecutive minutes.

For a comprehensive guide to employer responsibilities and the rules and regulations governing the employment of young workers please refer to the Protection of Young Persons (Employment) Act, 1996

You must give employees a copy of the Protection of Young Persons (Employment) Act

docs/Protection of Young Persons Employment Act 1996.pdf

 


Under 18 Employees

The national minimum wage for an experienced adult employee is €8.65 per hour.  An experienced adult employee for the purposes of the National Minimum Wage Act is an employee who has an employment of any kind in any 2 years since the age of 18.

The Act also provides the following sub-minimum rates;  

    • An employee who is under 18 is entitled to €6.06 per hour (this is 70% of the minimum wage)
    • An employee who is in the first year of employment since the age of 18 is entitled to €6.92 per hour (80% of minimum wage)
    • An employee who is in the second year of employment since the date of first employment over the age of 18 is entitled to €7.79 per hour (90% of the minimum wage)

 

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Advice for Employers during World Cup 2014


World Cup - Employment IssuesAs  I am sure you are aware, World Cup 2014 is starting today and we want to ensure that you are prepared as an employer, in the event that employee issues arise as a result of this tournament, particularly attendance at work during games and on the day following games.

The World Cup is commencing today, 12th June, and runs until 13th July. Employees should have requested this time off by now or in the coming days if they wish to take annual leave during this time for matches.

The main issues that could arise as a result of World Cup 2014, for employers, is that employees will be seeking additional time off either as annual leave or unscheduled time off. Unauthorised absence/increased sick leave may also be an issue for employers. Most games will be in the evening time - those employers who have evening/night shifts will need to be particularly prepared and pre-empt absence.

You as an employer, will first need to establish what your policy is to be during this period. Once you have decided the stance you wish to take with employees during this period, you will need to ensure this policy is clearly outlined to employees in the coming days to ensure they are clear about what is expected of them.

Sick Leave resized 600

 

In deciding what you want to enforce for employees, you should pay attention to the following:

  • Inform employees that, if they wish to take time off, they must apply for annual leave immediately - and let them know that it will be on a first come, first served basis

  • Perhaps give staff the opportunity to swap shifts with colleagues who may not be interested in the matches - ensure all shifts are adequately covered.

  • Be mindful of your employees who are not football lovers and do not want to take any time off during these games. Ensure there is fair treatment between all staff and ensure football fans are not getting special treatment and additional time off over those who do not follow the game.

  • Make it clear that all employees are expected to be in work as normal, unless they have requested time off etc., during World Cup 2014. Outline that you expect productivity and attendance etc., to remain as it is currently.

  • You could outline that for any absences during this time (within reason), due to illness; employees are required to provide a medical certificate upon their return.

  • Employees may also arrive to work still under the influence of alcohol. If this is discovered, you need to act fast. Send the employee to the company doctor immediately to be checked by the doctor to establish if the employee is under the influence of alcohol. If the employee is found to be under the influence he/she should be sent home.  It may be time to engage a disciplinary process with the employee at this stage.

  • If applicable, you may consider screening the games in house as a goodwill gesture to employees.  

    • Be mindful if there are a number of matches on, you will need to allow employees have their say on which match is shown..

  • Employees may attempt to stream matches online on work computers, the company’s internet usage policy should be outlined to employees and the company’s expectations also outlined to employees here.

The key to avoiding any issues during World Cup 2014 is to make sure you clearly outline to staff (in advance), what is expected of them and that absences etc., will not be tolerated.

The above advice is courtesy of Lorraine Byrne, Senior Account Manager at The HR Company.

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EAT Awards €11.5k To Employee Dismissed After Criminal Conviction

EAT Awards €11.5k To Employee Dismissed After Criminal Conviction

Unfair DismissalIt is crucial to exercise extreme care when dismissing an employee – even if he or she has been convicted of a serious criminal offence and even in instances where your discipline policy permits dismissal on conviction. A former employee of a multinational retailer was recently awarded €11,500.00 in compensation for being unfairly dismissed after being convicted of a serious criminal offence. 

The Employment Appeals Tribunal heard testimony from a large multinational retailer (respondent) and a former employee (claimant) who claimed to have been unfairly dismissed by his employer of 15 years after being convicted of a criminal offence.

According to the Employment Appeals Tribunal Report, at the time the claimant was dismissed, in September 2011, he was working as a charge hand in one of the respondent’s stores. The claimant’s disciplinary record with the respondent, apart from the issue for which he was dismissed, was clean when his employment was terminated.

In 2009 the employee had been charged with the criminal offence of possession of an illegal substance with the intention to sell it. According to the claimant, when he was charged with the criminal offence he informed the then Store Manager and continued as normal in his employment thereafter.

 

According to the claimant, he informed the new Store Manager and the Personnel Manager in April 2011 that he would need time off to attend Court in July of that year. The respondent claimed that he had informed the company of his requirement for time off in July rather than in April.

The Claimant was absent for approximately one month from early July to early August due to an injury. During that month he attended Court and received an eight-month suspended sentence in light of his guilty plea.

On 2nd August 2011, the then Store Manager held a meeting during which the claimant confirmed that he had received a conviction. The claimant was informed that this could have repercussions on his employment status with the company and that it could result in dismissal after investigation. He was suspended with pay while an investigation was carried out.

A number of investigation meetings were held with the claimant. A Union representative was present and a number of issues were raised in the meetings. It came to light that the store’s Personnel Manager had provided a character reference for the claimant in advance of the trial in addition to a standard reference from the company.

Employment Rights

The respondent pointed out that the character reference that was provided by the Personnel Manager was not on company headed paper and therefore was an unofficial letter, however, the Union representative nullified this point by highlighted the fact that numerous letters regarding the meetings between the claimant and the respondent were also on non-headed paper but were considered  official.

*At the Hearing, in February 2014, the respondent confirmed that it stood over the character reference as well as the standard company reference that had been provided to the claimant.

A notable issue raised during the course of the meetings related to the claimant’s conviction bringing the company into disrepute. The Union representative stated that the conviction had not been reported in the news and enquired as to how the company’s name was in disrepute. The Union representative asked how other employees with convictions had been disciplined.

Disciplinary Procedure Chart

 

Due to the nature of the conviction, once the investigation was concluded, the Store Manager decided to invoke the disciplinary procedure. The respondent was concerned about the drug conviction and the impact it would have on customers entering the store if it became public knowledge.

A meeting was held on the 20th September 2011 with a subsequent meeting on the 26th September 2011. At the second meeting, the claimant was informed that he was dismissed on the grounds of serious misconduct under the following headings:

  • Conviction by a Court of law for any serious criminal offence considered damaging to the company or its employees.
  • Conduct which brings the company’s good name into disrepute.

Employment appeals Tribunal, EAT

 

The claimant decided to appeal the decision and his representative wrote a letter detailing the appeal grounds. The Appeal Officer was the Manager of another of the respondent’s stores. The Appeal Officer was asked to hear the appeal but was not provided with the letter setting out the grounds of appeal.

At the appeal meeting the Appeal Officer listened to the claimants grounds of appeal and went on to investigate each one afterwards. The Appeal Officer travelled to the store where the claimant had been employed so that he could review his personnel file. However, he did not speak to the Store Manager, the Personnel Manager or anyone else working at that store in relation to the claimant.

The Appeal Officer considered the issues raised by the claimant including, firstly, the fact that he had kept the company apprised, secondly, the fact that he was provided with a character reference from the Personnel Manager for Court and, finally, that the conviction was not in the public domain.

The Appeal Officer considered the notes from the meetings held with the claimant when considering the appeal. Given the grounds of appeal he did not deem it necessary to speak to anyone other than the claimant. In concluding his consideration of the appeal he upheld the decision to dismiss as he found that the claimant’s conviction could easily bring the company into disrepute. When cross-examined at the Employment Appeals Tribunal Hearing, the Appeal Officer confirmed that he did not find evidence that customers or members of the public were aware of the claimant’s conviction but he did consider how it would be viewed if it came into public domain.

 

EAT, Unfair Dismissal

The Employment Appeals Tribunal found that the dismissal was unfair. It found that the company’s procedures, particularly in relation to the appeal process, were insufficient and it should have considered sanctions other than dismissal. While dismissal was an option open to the respondent under their disciplinary procedure, it should have genuinely considered alternative sanctions in light of the claimant’s otherwise clean employment record and because he had made efforts to keep the company apprised of the situation.

The dismissal of the claimant was deemed by the Tribunal to be procedurally unfair. The Tribunal found that the evidence of the Appeal Officer regarding the appeal procedures fell well short of what is normally accepted as being fair.

While the nature of the complaint against the employee was serious, the employer should have considered the fifteen years of exemplary employment prior to this.

After considering all elements involved in this case, the Tribunal determined that €11,500 should be paid in compensation to the claimant under the Unfair Dismissals Acts, 1977 to 2007.

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Loss of Twilight Hours Premium – UNITE Secures Compensation from HSE

Evening ShiftA dispute arose recently between HSE South – Waterford Regional Hospital and UNITE Trade Union over the payment of a “Twilight Hours” premium.

The evening shift for 22 Catering Attendants employed by the HSE in Waterford Regional Hospital was Outsourced to Agency Workers and, resulting from this, as of the 28th April 2013, the Twilight Hours premium ceased to be paid.

Management’s opinion was that it was unreasonable to expect payment for a shift that was no longer worked by the Catering Attendants, however, UNITE argued that, in accordance with Section 8: Service Delivery Options of the Public Service Agreement (PSA), their members should continue to receive the payment.

As the dispute could not be resolved at local level, it became the subject of a Conciliation Conference under the auspices of the Labour Relations Commission. Agreement was not reached at this stage and, on 18th June 2013, the case was referred to the Labour Court in accordance with Section 26(1) of the Industrial Relations Act, 1990.

Standard HR Services from The HR Company

 

A Labour Court Hearing took place on 15th April, 2014 where UNITE argued that the workers suffered reduced wages due to the outsourcing of the evening shift even though the PSA stated that such procurement would not result in a worsening of pay rates for employees.

The Union also argued that the payment should have continued on a personal-to-holder basis or, at the very least, compensation, calculated on the actual loss over a 12 month period beginning on the 29th April 2013, should be paid as per the PSA.

The HSE argued that it was forced to consider outsourcing as an option because the level of Catering Staff had diminished considerably and there was no alternative to this. The Employer argued that the decision was not taken lightly and its view was that the move did not worsen rates of pay as the “Twilight Hours” payment was a premium payment and the basic pay for the Catering Employees was not affected by the HSE’s decision to outsource the evening shift.

Compensation

 

Management’s view was that the Haddington Road Agreement took precedence over the PSA and that compensation for loss of earnings should be paid to the employees for the 2 months from 29th April (when the payment ceased) to 1st July 2013, rather than 12 months as argued by UNITE.

The Court noted that the premium was no longer paid because the hours were no longer worked due to the decision to outsource. The loss was calculated as €1,430.00 per annum per Claimant and, after considering the submissions of both parties, the Court recommended that the issue be dealt with via the compensation formula provided for under the terms of the PSA 2010-2014. This meant that 50% of the identified loss should be paid with effect from 29th April with the remaining 50% payable 6 months later.

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