Sexual Harassment at work results in €45,000 payout

It is by no means a surprise to think that sexual harassment at work is common. With the rise of the high profile ‘Me Too’ and ‘Times Up’ movements, sexual harassment at work and female issue’s are at the top of people’s minds. At least that’s what we like to think.

Sexual Harassment at Work

It was in late 2016 that a distressed twenty-something-year-old lady met with Employment-Matters to tell us her story. She had been subject to 6+ months of sexual harassment at work from her then boss and also regular sexually suggestive comments. When our client reported the misconduct to an internal superior, a full investigation was completed but her boss claimed he could not remember making any comments. Prior to the investigation, the man had approached her numerous times and asked her to sit in his car with him, winked at her and directed crude jokes towards her about a tattoo she had.

Our client made a total of five complaints. Of these, two were upheld, one was overturned and a further two could not be substantiated. Some of the complaints made against her boss were of a very serious nature which had clearly left the woman feeling violated. Workplace Relations Commission Adjudicator Mr. Murphy, found our client to be a credible complainant and truly believed that what she had experienced had impacted both her personal and working life.

Due to the employer’s lack of commitment to resolving these complaints internally, they too were responsible said Mr. Murphy. The lack of commitment from the company had been discussed numerous times throughout the case and has helped to identify serious flaws in the business’ internal procedures.

The Award

In the end, our client was awarded an award of €35,000 from her boss for the distress suffered by the complainant. It was instructed that her employer pay our client a further €10,000 for the victimisation and distress of these issues. This gave our client a total award of €45,000.

Have you experienced sexual harassment at work or something similar with a boss or work colleague? If the answer is yes, we want to hear from you! We hear too many cases of women leaving these cases go on too long, or leaving their jobs and missing their 6-month opportunity timeline. Don’t be a victim of time too. Call Employment-Matters on 051 841 641 today for a free consultation with one of our employment law experts.

Tracker Mortgage Scandal; “I’ll get these *ankers said the Governor of the Central Bank…”

Like Not Once, Never…

I can’t tell you how infuriated I am by the recent hand-wringing in Government and high office in relation to the tracker mortgage Scandal.

“I’ll get these *ankers…” said Philip Lane…like NOT.

That’s right a Scandal with a capital ‘S’! (To be distinguished from the Sindo’s view of a scandal this week (with a small s!) of the whatsapp messages emanating from Ballyragget CLG).

Now I’m not one normally for hyperbole or over-reactions but this is really disgraceful and pathetic from both the Minister for Finance and the Governor of the Central Bank.

For the Minister to suggest that the most important thing here is to ensure that those who were deceived be compensated is simply disingenuous.  It’s an attempt to hide from the real issue, to cloak himself in some level of sanctity, like; sure who could argue with that sentiment.

Gene Kerrigan gave an apt description of the whole debacle comparing it to the Gardai going to someone who stole your car and asking them to return it at some stage in the future.  I’m not normally a fan of Gene Kerrigan’s but today he hit the nail on the head.  The *ankers should not just return this money immediately with interest and penalties but they must be held accountable for their actions.

Imagine how the banks (small b) would treat you and I if we decided we were simply not going to pay our mortgage ’til maybe next summer or even next Christmas?  You’ll understand Mr *anker, it’s just while I carry out an internal review of things, get a better handle on our finances and sure, I’m not sure if I have a mortgage at all, or if I should be paying it, it’ll only take a couple of years…Get a grip.  They’d be down your throat so fast…like a ton of bricks.

But that’s exactly what it would appear that they want to do and they expect us to concur.  Brush this all under the carpet, downplay it, sure I’m sure it’s all a big mishtake.

And why would we be surprised about that?  Of course they’ll try and get away with it, haven’t they gotten away with far worse?  And you can’t blame a fella for trying, if you don’t ask, you don’t get…The problem here isn’t just the *ankers, it’s the Central Bank and the Minister.

You see when the Central Bank says that it doesn’t have enforcement powers, it can’t meddle in individual contracts it’s probably right.  That’s a civil matter between the borrower and the *ankers and it is correct for the Minister to say that the individual borrower may not have the resources to take on the deep pockets of the *ankers.  But what he’s neglecting to say is that the Central Bank has a much, much bigger stick, a very very big stick indeed.  For the life of me though I cannot fathom not only why Lane and Donhoe refuse to stand up to the *ankers but why they insist on treating the public with such utter disdain.  Of course they trot out the usual catchphrases, but clearly they have absolutely no intention of intervening.  What is it that the *ankers hold over them?

I ask this metaphorically but also because I would genuinely want to know.  It’s because, as mentioned above, I have first hand knowledge of the wrath of the Central Bank, of the resources that it can bring to measure against a financial services business if it deems it appropriate.  See, as I said above they do have significant powers to bring the *ankers to heal.  They are after all the body who licences *ankers in this country.  Now that’s not just the banks themselves but each and every individual *anker in each bank who carries out certain functions is obliged to hold a type of licence from the Central Bank which says that they are fit and proper people to hold such a licence and that essentially they are fit and proper people to handle people’s money.

Now clearly that is not the case here.  I don’t mean that they don’t hold the licences but clearly some if not a great many of these *ankers are not fit and proper people to either hold such a licence (it’s called a PCF licence) or to be responsible for other people’s money.  You see clearly some of these *ankers are not nice people at all.  Now really, there’s nothing wrong with not being a nice person (well nothing illegal anyway) and in fact it works quite well when you’re a *anker anyway, but when you start throwing dishonesty into the mix then we start getting into the realms of why do these people continue to be licenced by the Central Bank and why is the Central Bank not carrying out a whole host of investigations into each and every one of these *ankers?

I would love to get at the answer to that question.  You see when you call a load of *ankers into a room and start telling them that you’re disappointed in them (again) and that it’s very unfortunate that they haven’t apologised and that you’d like them to do more…then you’re only going to get one answer and you’ve only got yourself to blame for what that is.  If you were tell these fells though on the other hand that sorry lads, it’s like this, you have two weeks to get your cheque books out, and the way it’s going to work is like this…and by the way, we’re also commencing immediate investigations into every single one of ye and what that means is that by the end of this, every single one of ye could be looking for new professions, because if it turns out that any of ye or the people ye’re responsible for acted in a way that was dishonest, if it’s the case that you took advantage of people in their darkest hour, then you are not people who are fit and proper to conduct this type of business.  You are dealing with other people’s money and we must be able to trust you and if we can’t you can sling your hook ‘cos you can no longer work in this game.

You see all *ankers must comply with the Fitness and Probity Standards applicable to their approval issued by the Central Bank pursuant to Section 50 of the Central Bank (Reform) Act 2010 (the “Fitness and Probity Standards”).  All *ankers holding a PCF must agree that agree to abide by such standards.

You see the Central Bank has the power under Section 25 of the Central Bank Reform Act 2010 (as amended) to issue what’s called a Notice of Intention to Commence an Investigation.  The Central Bank can commence an investigation into any of these *ankers under Section 25(1) of the Central Bank Reform Act 2010 (as amended) (“the 2010 Act”).  That would mean that the Central Bank could conduct an investigation into the fitness and probity of any person in any of these banks performing a controlled function, where there is reason to suspect the person’s fitness and probity and that in the circumstances an investigation is warranted.

For example, if there is reason to suspect that the person does not satisfy an applicable standard of fitness and probity or the person has participated in serious misconduct in relation to the business of a regulated financial service provider.

Under Section 45 of the Central Bank (Supervision and Enforcement) Act 2013 (“the 2013 Act”) then the Central Bank may compel a Bank to;

(a) to suspend, for such period not exceeding 12 months as is specified in the direction, any one or more of the following:

(i) the provision of any financial service, or description of financial service, specified in the direction;

(ii) the making of payments to which subparagraph (i) does not relate or any such payments or description of such payments specified in the direction;

(iii) the acquisition or disposal of any assets or liabilities, or description of assets or liabilities, specified in the direction;

(iv) entering into transactions or agreements, or description of transactions or agreements, specified in the direction, or entering into them except in specified circumstances or to a specified extent;

(v) soliciting business from persons of a class specified in the direction;

(vi) carrying on business in a manner specified in the direction or otherwise than in a manner so specified.

(d) to make such modifications to its systems and controls as may be specified in the direction.

(e) to make such modifications to its business practices and dealings with third parties as may be specified in the direction.

So you see, the Central Bank has plenty of power to resolve this Scandal, it or he just doesn’t want to use them it would seem.

In fairness, it seems in this country that you’d be in far more trouble if you took a few steamy pictures at a 21st in Kilkenny than if you stole a person’s hard earned cash and a big part of their life.

Go figure…

Redundancy and unfair selection for redundancy

It is important in considering a redundancy situation and in particular where one or a number of employees is to be selected for redundancy out of a larger group of employees all engaged for the same purpose that a thorough and comprehensive plan and procedure is followed.
There are many practical issues involved such as:
• the appropriate notice period
• the length of service
• contractual redundancy payments vs. Statutory payments
• what written policy or guidelines exist
• whether there is a well recognised custom or practice within the company whereby redundancy packages are automatically paid as additional ex-gratia payments to the statutory redundancy.
As with all unfair dismissal cases the onus rests on the employer to prove that the dismissal is not unfair.
What is unfair selection for redundancy?
Where a genuine redundancy exists and an employee is dismissed wholly or mainly for redundancy, the dismissal may still be unfair in circumstances where an individual has been unfairly selected for redundancy. Consideration must also be given to the manner in which the redundancy was affected and to whether the employer has acted reasonably in the circumstances.
When does a genuine redundancy situation exist?
It is for the employer to prove that a redundancy situation exists that justified the dismissal at the date of the redundancy or that it was likely to arise in the immediate future. A genuine redundancy situation exists where dismissal is wholly or mainly attributable to one of the factors set out in section 7 (2) of the Redundancy Payments Act 1967 (as amended by the redundancy payment act 1971) (“the act”).
In a challenge to a redundancy selection in the Employment Appeals Tribunal “EAT”, the tribunal will consider whether a genuine redundancy existed in the first instance and for example such a redundancy may be considered a genuine reason for redundancy where it accords with section 7 (2)(c) of the act – “work to be done by other employees or otherwise” or equally reliance may be placed on section 7(2)(e) – “work to be done by an employee who is also capable of doing other work”.
However, whether this is in fact the case (that such a situation did or did not pertain at the time to an employee who was made redundant or was likely to arise in the immediate future) will be a matter for the company to prove to the satisfaction of the EAT should proceedings for unfair dismissal be initiated.
Typically in a redundancy situation a company will set about justifying this by providing the relevant accounts and balance sheets that show the impact that the economic slowdown is having on their business that left them with no option other than to seek to make a role or roles redundant.
Therefore financial evidence together with a record of the meetings and discussions that led to the decision to make a role(s) redundant are typically relied on.
It is always important to know if such evidence exists. For example an employee will often cite that the company is in the process of actively recruiting more staff and that what appears to be occurring is more in the nature of a restructuring of the workforce. Thus any specific verifiable information in relation to the filling of these positions would be helpful.
It is also helpful to verify as to whether positions had been advertised. Often at the outset of a case we do not have the necessary information to fully assess whether a genuine redundancy situation did in fact exist. However the onus would rest on the company to prove to the satisfaction of the EAT that it in fact did.
When is an employee unfairly selected for redundancy?
It is important to ascertain if the company had any redundancy policy either that the employee was aware of or that was communicated to him. Such policy may be express or implied by custom and practice.
For example some companies follow the policy of “last in, first out”. In the absence of any stated policy the onus is on the company to apply objective criteria in selecting a person for redundancy.
A crucial aspect of employment law is that the redundancy applies to the role and not the person. It is important therefore to understand the nature and structure of the organisation, the department within which an employee worked and the roles that each employee undertook in the department.
Like discrimination, unfair selection relates to an employee’s treatment in relation to other employees and it cannot arise in isolation. There is an obligation on the company to consider the full range of persons in a specific role and apply criteria that were objective in selecting the individual as the person to be made redundant. Thus if an individual is the only person doing a specific role, unfair selection may not arise.
It is important to remember that redundancy must be the only or main reason for dismissal. If, as a company indicates that the reason for a dismissal was prompted by capacity/capability to perform certain duties, etc, this would be detrimental to their case in that it would show that the real reason was in fact personal to the employee. This can however be avoided by a company where the capability of employees is specifically identified as a criteria in the selection process.
It is important therefore at this stage to establish and confirm whether an employee was ever informed of any dissatisfaction with work performance, capabilities or competence. You might also confirm that there are no other issues of contention or complaint made against the employee during the course of the employment and that there were no allegations or complaints made against the employer or any work colleagues during the course of the employment.
In a redundancy situation, did the employer act reasonably and fairly?
There is no statutory requirement for an employer to have consulted with an individual employee prior to that employee being made redundant. However it is now viewed as good industrial relations practice to do so and failure to do so may be utilized to show the unreasonableness of the employer in the circumstances.
Often a company will arrange meetings with employees and give advance warning of the nature of the meeting or the fact that redundancy was being considered. Only when having consulted with the employees effected and sought their views and suggestions in relation to possible redundancy should a company seek to select individuals for dismissal and confirm that a redundancy situation exists. At this stage notice can be given and is normally set out in writing confirming the selection, the procedure which was followed, the criteria used and setting out the terms of the redundancy.
At the consultation stage, there is a requirement to consider alternative work within the company. The employee if at all possible should be given the opportunity to consider alternative work within the company or put forward any proposals in relation to alternative work or alternative or reduced conditions of employment within the company.
It is important to know whether the company gave any consideration to such matters and, if they did give such consideration, whether such matters are documented. There is a view that if no consideration was given to alternative work within the company that this would be capable of being viewed as unreasonable by the employer.
What are the costs of an application to the EAT?
Unlike many other forums for legal redress the EAT does not have the power to award costs. Therefore each party must bear their own costs. It therefore is advisable to always consider the potential exposure to costs at this stage and the fact that whatever the outcome of the case, although the applicant will not be liable for the employer’s legal costs before the EAT.
Of course this also means that even if an applicant is successful he must bear his own costs. It is often easier to quantify the cost exposure before the EAT than in other legal forums which may be helpful for an employee in considering his options.
If counsel is required to be instructed in relation to the EAT hearing the likely fee could be in the region of €1,500 (to include preparation for hearing, advice on proofs and one consultation and exclusive of vat at 21.5 %). Any additional work would attract extra fees.
An employee’s entitlement to a reference
Often a reference is an important issue which must be considered before seeking legal redress. The employee will have to decide on how important a reference may be given the nature of the industry in which he works. There is no obligation on the company to supply a reference and typically, when legal proceedings have issued, references are often reduced to mere factual statements of the dates of service and the roles and responsibilities carried out.
If a matter is to be ultimately settled a more fulsome reference may be negotiated. It is helpful for a reference to state that his position terminated by reason of redundancy and therefore avoid suspicion of misconduct or incompetence. If the matter goes to hearing the opportunity to acquire a meaningful reference is generally lost.
An employee’s entitlement to a p45
Every employee dismissed or ceasing employment for whatever reason is legally entitled to a p45. If not provided this should be formally requested and stating that in the event that the company fail to furnish his p45 by return contact shall be made with the revenue commissioners to engage their assistance in procuring same.
What compensation or redress is an employee entitled to?
Compensation is the most common remedy awarded by the EAT. If successful in an unfair dismissal action an employee may be awarded a maximum of up to two years salary. However such a high award has only been made on a handful of occasions and should not be expected.
A more realistic result, if the company cannot prove to the satisfaction of the EAT that the dismissal was not unfair, is a sum in the region of 40%-50% of the two years. Therefore one year’s salary would be seen as a very good result in most circumstances. The average award of the EAT currently is €11,000.
However, there are two things that must be considered in trying to quantify any amount that may be awarded:
1. award is only made for actual loss from the date of dismissal to the hearing of the action and for any projected loss into the future. If an employee was to take up another job or to set up business on his own account the actual loss would be the loss of salary up to the start of the new job and the differential, if any, of the rate of remuneration between the old job and the new job. There is an obligation on any claimant to mitigate his loss and it is useful for an applicant to be able to demonstrate the manner in which he attempted to do so and this should be recorded and documented by keeping the details of all applications made etc.
2. traditionally the EAT’s awards are lower in relation to claimants who are younger and have a longer working career ahead of them than older claimants. Regard may also be given to the length of time an applicant has worked with a company.
To find out more about your redundancy rights call Employment Matters on 1890 88 90 90 or if you feel you may have a claim or you are involved in an employment dispute click here.

“Part-time Staff can’t afford to work more than 20 hours per week!”

It is nearly true to say now that Ireland’s social welfare system is in a complete diabolical state. The latest headline to reach the Sunday paper is “Part-time staff ‘can’t afford’ to work more hours” and this proves my opening statement.
The Sunday Independent published this article to raise the issue that part-time workers are actually better off if they don’t increase their working hours above the maximum 20 hours per week. The main reason behind this is the fact that when employees work no more than 20 hours per week they are financially better off! How does this even make economical sense?? The answer to that is very clear. In Ireland if an employee works less than 20 hours per week they can still hold onto all the social welfare payments which they may be entitled to such as lone parent and rent allowance plus their wages for 20 hours per week and actually come out at the end of the week making more than they would if they worked full time hours.
This clearly needs to be addressed before the social welfare bill increases even further. This also has implications on the employer as they find that they have to recruit two people to do a one person job and this can significantly increase any employer’s overhead costs. The serious and long term implication of this really is that people in Ireland simply have no incentive to work anymore. How can an economy which is in such disarray at the moment recover if the Irish people don’t even have an incentive to work anymore??
The Sunday Independent writes a piece quoted from a spokesperson on behalf of the Department of Social Protection who said “the department operates a control measure, whereby a percentage of employers of part time/casual workers are contacted periodically and asked to sign a declaration, confirming details of the days worked by a casual employee over a period of up to seven weeks. The employer is also asked if they have full-time work available for the person or if the person has been offered full-time work” but is this measure working as efficiently as it should?
It is clear that something needs to be done about this soon as the Government is loosing out on much needed PAYE, PRSI and income levy payments. An incentive to go out and obtain full-time employment is badly needed to get people back into work and most importantly to boost our economy!!
To find out more about employment law and your employment rights please log on to www.employment-matters.ie or call 051 850 660.

Have you been the victim of an unfair dismissal or has your employment been terminated in an unfair or unjust manner?

Is your employer treating you in such a way as to make your position untenable which could lead to Constructive dismissal?
Have you been unfairly selected for redundancy while others who arrived to the company after you, or who are less skilled, are kept on?
Are you involved in an employment dispute involving unfair dismissal, redundancy or constructive dismissal?
Do you want to achieve an above average settlement or award in an unfair dismissals case without investing a fortune? What if there was a way to know for sure that you were maximising every Euro of your claim?
You have rights as an employee and you may be entitled to compensation.
Employment law in Ireland is very comprehensive. Your employment relationship is essentially based on a contract of employment and there are certain rights, both express and implied, in that contract as well as employee rights guaranteed to every employee by legislation under the Unfair Dismissals Acts 1977 to 2007.
These rights still apply to you even if you don’t have a contract of employment.
But if you’ve been dismissed how do you enforce these rights and what do you need to do to get redress and to claim any compensation you may be due?
Unfair dismissal cases are dealt with by both the Rights Commissioner service and at the Employment Appeals Tribunal.
The legislation which governs this area of law is the Unfair Dismissals Acts 1977 to 2007 and employee rights and unfair dismissals in particular are dealt with.
Procedure in an Unfair Dismissal Case
Unfair Dismissal Cases must be commenced within six months of your dismissal so if you have been dismissed, it is imperative that you move quickly. To apply to the Employment Appeals Tribunal for redress you simply complete an application form with the Workplace Relations Commission.
It is crucial in an Unfair Dismissal case that when completing this form you correctly identify the employer. Often employers operate under a trading name but have been constituted in the form of a limited company. It is this limited company which must be named on the form, as this is the legal entity that owes you a legal obligation.
How long can the Employment Appeals process take?
The application process in the Employment Appeals Tribunal takes anything from 50 to 80 weeks due to the volume of complaints currently being received. An employee will initially receive an acknowledgement of an application which will be copied to the employer and your employer will have the opportunity to respond in the form of a T2 form.
Need help completing this form?
The Unfair Dismissals case will then be set down for hearing.
The Rights Commissioner Service on the other hand is a quicker process that is however often frowned upon by employment solicitors. The view is usually that because a Rights Commissioner determination is normally not binding and can be appealed to the Employment Appeals Tribunal anyway, it is advisable to go straight to the Employment Appeals Tribunal.
The Unfair Dismissal Hearing
An Employment Appeals Tribunal hearing is constituted by way of a three-person panel, made up of a chairperson (who is usually a barrister) a representative from an the employers group, IBEC, and an employee’s group usually from one of the trade unions.
What happens at the Unfair Dismissal hearing?
The Employment Appeal Tribunal hears the case made by each party. The employer usually goes first as the onus is on the employer to prove that the employee was not unfairly dismissed.
This is extremely important because in employment law there is an automatic presumption that the dismissal has been unfair. It is therefore up to the employer to prove otherwise. The exception to this is constructive dismissal when the onus is on the employee to prove that they have been dismissed unfairly.
The most important aspect of an unfair dismissal case relates to the procedures followed by an employer in terminating or dismissing an employee. In Labour law and in particular in an unfair dismissals case, an employment termination is only deemed fair in certain circumstances and the main issue is often whether a fair procedure was followed and whether an employee was given the opportunity to defend his position and good name.
Each party should prepare five copies of all documents and submissions. These are handed up to the Tribunal through the secretary and can be used as a guide to the case being made by each side. The Applicant in an appeal is the employee while the employer is known as the Respondent.
Need help preparing for a case?
The case is heard in a similar manner to a court case with the witnesses introducing evidence through direct and cross-examination. The normal rules of evidence apply, however, their application is often considered to be quite lax.
Thus initially the employer will be heard and the employee will normally then take the stand and having taken the oath, they will respond to questions from their own legal representative and then will be subject to cross-examination by the legal representatives of their employer.
Each party is normally given the opportunity to make a submission at the end of the hearing, summing up their case and supporting this with relevant case law.
Unfair Dismissal cases will usually be completed in a morning or afternoon but if more complicated could last a full day. Some cases however may take even longer depending on the number of witnesses.
The Decision of an Employment Appeals Tribunal
The Employment Appeals Tribunal will normally take six to eight weeks to deliver their decision which will be in the form of a written summary of the submissions and evidence and the decision of the tribunal.
Decisions can be appealed to the Circuit Court.
If you’d like to find out more about your employment rights in a case of unfair dismissal or about whether you have a Claim please call Employment Matters on 1890 88 90 90 or 086 783 4579.
The Unfair Dismissal Acts 1977 – 2007
The purpose of this Act is to protect employees from being unfairly dismissed from their jobs. The Act enables employees who believe that they have been unfairly dismissed to present a claim as it provides an adjudication system for redress for an employee whose dismissal has been found to be unfair.
This Act applies to people over 16 with at least 12 months continuous service.
However this act does not apply to the following:
1. Employees who have reached the normal retiring age or who on the date of dismissal had not attained the age of 16 years
2. Persons working for a close relative in a private house or farm, provided both also live in the same house or farm
3. Members of the Defence Force and the Gardai
4. Persons undergoing full time training or apprenticeship in FAS establishments
The condition for 12 months service does not apply to an employee whose dismissal results from one or more of the following:
1. The employees pregnancy, giving birth or breastfeeding (or any matters connected therewith)
2. The exercise or proposed exercise by the employee of rights under the Maternity Protection Act
3. The exercise or contemplated exercise by an employees of his/her rights to adoptive leave Act
4. The exercise or proposed exercise by an employee of the right to Parental Leave or Force Majeure under and in accordance with the Parental Leave Act
5. The exercise or proposed exercise by the employee of the right to Carer’s Leave under and in accordance with the Carer’s Leave Act
The good news for employees is that in general the Act provides that every dismissal of an employee will be presumed to have been unfair unless the employer can show substantial ground justifying the dismissal.
If you believe your rights have been breached by an employer you may be entitled to redress. For a free assessment of your case, you can make a claim through Employment Matters or call us on 1890 88 90 90 or complete the form above and we will contact you.
What our clients have to say:
“Thanks Sean, you really helped me out. If it wasn’t for you, I’d have probably had a heart attack from the stress of the whole process…and what a great result, I can’t recommend you highly enough.”
Brian, 26, Tyre fitter, Wexford
“Sean has extensive knowledge and experience in all aspects of employment law. Sean has successfully supported many clients facing legal issues regarding employment relationships. I would be happy to recommend Sean to clients.”
Liam Barton, Insight HR
Important Note: The above procedures are samples only and not intended as legal advice and as such should not be relied upon. The content of this site is not recommended as a substitute for legal advice and as such Employment Matters accepts no responsibility in relation to these and the above does not constitute legal advice.
Employment Matters is committed to providing Clients with the highest levels of service and care. All details submitted to Employment Matters will be held in strictest confidence and in compliance with the terms of the Data Protection Acts. Employment Matters is not a Solicitor’s Practice and therefore does not act in that capacity. In the event that any conflict of interest arises, Employment Matters guarantees to absent itself from dealing with either party and will advise the parties immediately of any such conflict.

Constructive Dismissals – Information & Advice

Constructive dismissal is defined in section 1 of the Unfair Dismissal Act 1977 as:
“the termination by the employee of his contract of employment with his employer whether prior notice of the termination was or was not given to the employer in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled or it was or would have been reasonable for the employee to terminate the contract of employment without giving prior notice of the termination to the employer.”
Notice of termination is one of the fundamentals of employment law and the requirement to give notice by either the employee or the employer may only be dispensed with in very particular circumstances.
In any constructive dismissal action the fact of dismissal is put in dispute as the employer will not accept that there was a dismissal.
The employee, who is claiming to have been constructively dismissed, bears the onus of proving that a dismissal in fact occurred, and further that it was unfair. (In theory if dismissal can be shown to have occurred, the burden should shift to the employer to justify the dismissal as reasonable but this is not what happens in practice.)
Accordingly it is for the employee to prove that there was a dismissal and that it was unreasonable; this is a very heavy onus of proof to bear and a note of caution must always be entered in this regard.
A constructive dismissal can arise in a number of ways. For example an employer may treat an employee in such a way as to make the employee’s position untenable. Examples would include where an employer significantly diminishes an employee’s work or responsibility or treats them in a manner which demeans them or causes them to consider their position and future with the employer.
The most famous recent case is that of journalist Liz Allen taken against Independent Newspapers.
Ms Allen was awarded over €70,000 by the Employment Appeals Tribunal having succeeded in her claim for constructive dismissal against her employer, Independent Newspapers.
Employed as a Crime Correspondent with the Sunday Independent newspaper, it was the EAT’s view that she did not contribute in any way to her dismissal and that she as such had been constructively dismissed.
The Tribunal heard that Ms. Allen had been isolated at work, and that she had had her confidence and health undermined. She had, she believed, been left with no option but to resign.
Attempts had been made by Ms. Allen to have the matters resolved through the internal procedures at the Sunday Independent. The Tribunal heard that two colleagues in particular had been hostile towards Ms Allen.
Any attempt to unilaterally vary the terms of your contract of employment could be considered a significant breach going to the root of the contract, relating for example to remuneration and the type of work to be carried out.
There must therefore be a breach of contract and further that such breach was unreasonable.
The challenge in these types of cases is often the absence of any recorded attempts by the Applicant to formally complain about the inappropriate conduct or to invoke any grievance procedure (if any in fact existed). The employer/respondent will often argue that the employee should have raised their concerns and made a complaint about the conduct and that treating oneself as dismissed was an overreaction.
In such a case it would therefore be argued that any unilateral variations to a contract were so fundamental that the Applicant was entitled to consider himself so dismissed and that the absence of formulating a complaint is not detrimental to the claim.
The position or status of the person against whom the complaint is made is also generally relevant, in that if it is that the person complained against is in a position of authority, and not simply another employee, it would strengthen the claim that this gave rise to the untenable situation.
Usually this action would be taken before the Employment Appeals Tribunal and the Tribunal will usually award damages in a successful case but can only award damages in relation to actual financial loss. It is important to note that no awards in relation to stress or personal injury arising from the employment can be granted in the Employment Appeals Tribunal.
The procedure for claiming constructive dismissal is similar to that of an Unfair Dismissal claim save that the onus of proof is shifted as noted above.
To find out more about your employment rights call us on 1890 88 90 90 or complete the form above.

Mediating Employment Disputes…

In the current economy, more individuals and companies are hoping to reduce costs and increase settlement options while resolving employment disputes. Both employees and employers are looking for ways to keep expenses to a minimum while maintaining the integrity of the process.
Alternative dispute resolution techniques, such as mediation, have become a valuable resource for both employers and employees given the current state of the economy. The unwillingness of both sides of the equation to spend the extra euro on solicitors has lead to an increasing need for mediators trained in employment law.
There are numerous types of employment disputes which can be settled through mediation. Among them include, termination disputes such as unfair dismissals and unfair selection for redundancy, disagreements regarding pay, discrimination claims, disagreements as to leave, disputes concerning non-compete terms, and grievances under a collective bargaining agreement.
Already the Rights Commissioner service put an emphasis on trying to resolve workers’ compensation claims and unemployment compensation claims through a form of informal mediation.
So, why resort to mediation to settle employment disputes?
In some cases the employee may believe that the employer has violated a number of laws. For example in an Unfair Dismissals claim, liability can be significant and it would behoove the employer to find a quick, low-cost method of resolving the dispute. If the dispute should reach the tribunal, a judgment against the employer could be significant, up to twice the employee’s annual salary in damages.
There are other considerations, as well.
A settlement, unlike rolling the dice in court, brings the relationship to an end and creates certainty for all parties involved. In nearly all cases, mediation will be a more time effective and less costly method of resolving a dispute. In mediation, confidentiality is guaranteed, while parties retain their right to representation by a solicitor.
In addition, non-disparagement clauses may be included in mediated agreements. Such clauses are not believed to be within the power of a tribunal or Court to apply to the outcome of a judgment or verdict.
In mediation, a third party neutral attempts to bring the disputants to the common ground of a mutually acceptable resolution. There are numerous upsides for both employers and employees in the meditation process.
The advantages of choosing mediation include;
 The parties select a mediator acceptable to both sides;
 The mediator’s goal is to broker an agreement, not to reach a particular outcome;
 Mediators are ethically prevented from allowing personal bias or opinion to dictate an outcome;
 A mediator will not give legal advice; and,
 Mediation is confidential.
There are of course downsides to choosing mediation, as well. As a general rule, a mediator is less likely to have a breadth of knowledge of employment law. Certainly, a tribunal officer or rights commisioner will have had more exposure to the employment issues involved in a case such as an unfair dismissals case. There may be a wide disparity in the interpretation of current law.
Regardless, mediation allows the parties to seek the advice of a solicitor at any point. There is no reason to be completely naked and unrepresented in the process. Involving a solicitor remains the right and duty of each participant. In preparing to mediate, I typically ask that the parties or their representation to confer with me in advance of the mediation to agree on the ground rules.
At that point, I expect all parties to be ready to agree to time, place, attendees, fees, interested parties, and anticipated duration. I also ask the parties for any pre-mediation submissions, such as any information which the parties think would be helpful for me to review prior to mediation, I do try to keep this to a minimum as I don’t want to be biased in any way before hearing the parties speak.
A position statements should set forth a party’s opening statement. The parties position based on the facts of the case and the applicable statutory and case law can be included.
Mediation is designed to be valuable to both parties in the dispute. It may be especially valuable to the employer with concerns beyond its damages liability. For instance, it may be advantageous to keep a matter confidential through mediation. It may also be advantageous to the employer to settle the matter quickly, rather than wade through the frustrations of the employment appeals process or worse the equality tribunal!
There are times when an employer wishes to preserve a business relationship through a non-adversarial process of mediation. Of course, the employee may have non-monetary concerns which mediation can satisfy. The employee may wish to ensure a positive reference or some other outside-the-box resolution. The actual tone and tenor of the mediation proceeding often dictate the outcome.
Solicitors are more accustomed to zealous adversarial representation of their client. This combative stance, however, is not helpful as a neutral facilitator. Rather, it is more effective to combine advocacy with a cooperative approach.
While I would never ask a lawyer to stop advocating their client’s position, I would request that all parties be conscious of the other participants’ issues and positions. Here, as with so many disputes in life, the old adage applies, “listen to understand, not necessarily to agree.”
During the process, after the opening statements are made and parties understand the rules of mediation, I will begin a series of break-out sessions. Essentially a series of shuttle diplomacy, I have an opportunity to investigate a variety of options and possible resolutions.
No matter how unusual the request or proposal may seem, a mediate should consider them opportunities to craft an acceptable resolution which both parties will embrace. The aim is to attempt to bring the parties to an agreement on the material terms of the settlement which may include non-monetary provisions.
In the event that a resolution is agreed, all parties ahould sign a Memorandum of Understanding agreeing to all material terms of the resolution. Often, the solicitors can use this document to draft the final settlement document. There is often some back and forth between parties before the final document is signed and as such this may take some time after the conclusion of the mediation.
The Memorandum of Understanding gives all parties a document to remind them of the initial agreement. The Memorandum of Understanding should include all aspects of the final agreement, including any provisions as to legal fees, tax ramifications, costs, confidentiality, and non-disparagement clauses.
Finally, we should include a forward-looking provision which addresses the issue of disputes arising out of the settlement agreement. This gives the parties an avenue for settling grievances which arise as a result of a misunderstanding of the agreement or a failure to follow its terms.
At Employment Matters we help both employers and individual employees resolve employment issues where conflict has arisen or where there has been a breakdown in the employment relationship such as described above.
Sean Ormonde is a qualified mediator accredited with the ADR Group in the UK and Friary Law in Ireland, he is a qualified solicitor and an employment law expert and has recently completed the Law Society’s Diploma in Employment Law.
To find out more about how we can help please log on to www.employment-matters.ie or email us at [email protected] We provide an initial free consultation.

Absenteeism Costs small Business €563 million per annum…

A new report just published by the Small Firms Association has shown that absenteeism in Ireland costs small firms some €563 million per annum. The study conducted by the Small Firms Association was conducted throughout Ireland and covered all sectors of Irish Business.
This is a significant figure for any small firm especially in today’s tough economy. The one positive finding for small firms however is the fact that small firms have a lower average rate of absenteeism than larger firms.
The Acting Director of the Small Firms Association (SFA), Avine McNally spoke out about this weeks published report and stated “The national average for absenteeism is 3.6% or 8 working days. For large firms this rises to 4.6% or 10 working days. For small firms the average falls to 2.6% or 5 working days”.
The most interesting point which Ms. McNally raised was the fact that the estimated figure of €563 million per annum “takes no account of other direct costs such as the requirement to replace absent staff with other workers or overtime payments, and the cost of medical referrals, or of the indirect costs such as the effect on productivity and quality, the increased work pressure on other colleagues, and the admin time in managing absence”.
The overall cost in reality could in fact be in closer to €900m.
These figures are both shocking and worrying for small firms who are already struggling to compete with larger firms in such harsh economic times.
The report continues to discuss the possible causes of such high levels of absenteeism in Ireland. Stress and back pain/injury are one of the most popular cited problems on medical certs.
Employers need to be aware that they have a duty of care to all of their employees and they also must realise that workplace stress is a major problem which is emerging during these recessionary times. Stress is a normal part of life; however excessive stress interferes with every employee’s productivity and reduces their physical and emotional health, so it’s important that employers find ways to keep it under control.
Fortunately, there is a lot that employers can do to manage and reduce stress at work and benefit every employee.
All employers should have a workplace stress policy that all employees are educated on. This policy should include information for employees such as the signs and symptoms of stress, common causes of workplace stress, how employees can reduce stress by looking after themselves, time management skills, organisation skills and most importantly suggestions on ways to dispel stress. Employers should also be positive role models for their staff and create a work place environment which encourages open and effective communication, employee involvement, incentives and rewards which recognise work well done and most importantly a friendly social climate in the workplace should be encouraged at all times.
At Employment Matters we believe that if employers educate their employees on workplace stress and create an environment where employees feel they can speak openly if they are feeling stressed, this alone will help to improve the stress rates of employees and hopefully in turn reduce the rate of absenteeism in a firm.
To find out more check us out on www.employment-matters.ie or if you want to find out more about dealing with stress in the workplace then contact us today on 051-850660 now!

Follow your Procedures…

The papers at the weekend reported an Employment Appeals Tribunal (EAT) decision where a hotel worker received over €7,500 in compensation under the Unfair Dismissals legislation.
In this case a hotel worker named Baltzer was dismissed from his position as a hotel porter at a Killarney hotel.
The employee had accessed a room under the instructions of an inebriated guest. Unfortunately it was the wrong room and as this wasn’t the first time this had happened it was a disciplinary matter. In fact, on two previous occasions the employee had done this and had been warned of the consequences that such a further breach could lead to his dismissal.
The employee even admitted in the EAT that he had not in fact checked the guest register on the porter’s list before accessing the room. When he opened the door of the room he found that there were guests asleep inside. The employee apologised and left however the guests complained and refused to pay their charge the following morning.
The hotel explained to the employee that they could not risk a fourth incident as understandably this was impacting on their business.
They terminated the employee who was on a work permit and who as such could not be considered for other positions which may have been available.
The employee sought redress through the EAT.
Now you might think that such a consistent breach by an employee of specific instructions and policies should be grounds for dismissal and even gross misconduct, but, employment law is very strict on procedure.
As such the EAT found that the employer had not followed the correct procedure in their disciplinary action and because they had not advised the employee that he was entitled to representation and an appeal, they had dismissed him unfairly.
This is another strong indication from the EAT of the importance of having and then following procedures. In fact in the eyes of employment law and the EAT, the employee could have murdered the guests and still be entitled to fair procedure before he could be sacked.
To find out more about employment law, unfair dismissals and your rights as an employer or an employee please see www.employment-matters.ie or call Sean on 085 6050569.

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Do you have to accept a Pay Cut?

Glen Dimplex Boss Sean O’ Driscoll – calls for five year pay freeze…
In the news this week, Sean O’ Driscoll the manager of one of Irelands leading manufacturing companies stated that a five year pay freeze is needed in order for Ireland to regain its competiveness.
What do you employees and employers in the manufacturing sector think of that idea?
His reasoning behind this suggestion is the belief that “We pay ourselves too much” and the idea that “a five year pay freeze will replenish the country and allow us to gain our competiveness” and do you know what? He might just be right!!
Pay freezes and reductions can affect employees both financially and mentally. However employees may find themselves in a situation whereby they have no choice but to accept a pay freeze or cut in order to stay in their employment. It works the same on the employer’s side; they may have no choice but to reduce your level of pay in order to ensure the survival of the business in these difficult times.
If you as an employee have been asked by your employer to take a pay cut it is important that you firstly ask your employer what exactly your new wage will be and also how it will affect your other terms of employment.
You do not have to agree to accept the proposed pay cut however your employer can make you redundant as a result. Your employer can only do this if he has strong evidence that a redundancy situation does exist, otherwise you could be eligible to take an unfair dismissals claim against your employer.
If your employer insists on reducing your pay you may also feel that you have no choice but to leave your employment. If this is the case then you may be able to take a case for constructive dismissal against your employer. However it is important to note that cases of constructive dismissal are often hard to be successful in.
If you find yourself in a position whereby your employer is proposing that you accept a pay cut or have previously been given a pay cut without your agreement contact us today or visit our website for more information on your employment rights!!
For more information about your employment rights please email [email protected] or log on to our web site www.employment-matters.ie or call 051 850660 Now.