Employer Resources Newsletter - January 2021
All Employers are obliged to keep certain statutory records to show compliance with Employment Legislation and to demonstrate that employees are receiving their proper entitlements.
WRC Inspections Service carry out inspections at employers’ workplaces to check compliance with employment legislation in areas such as in national minimum wage, working time and rest breaks. They also have powers to investigate compliance with Employment permit obligations.
Inspectors contact employers by phone and visit the workplace and look at these employment records. The process involves interviewing both employers and employees to verify the accuracy of the records. Inspectors work with the employer to achieve compliance during the inspection process.
Where non-compliance is detected, an Inspector can issue on-the-spot fines called fixed payment notices for certain offences. An Inspector can also issue a compliance notice, directing an employer to do something or to refrain from doing something for certain other contraventions. Any failure or refusal to rectify issues of non-compliance detected can result in criminal prosecution before a district court. That said, over 97% of inspections conclude without recourse to the courts.
WRC Inspectors are currently carrying out a programme of workplace inspections to monitor compliance and give guidance to employers regarding obligations under the COVID 19 Return to Work Safely Protocol obligations.
Case 1: Employee awarded 10 weeks pay for unfair dismissal
Background
The Complainant is a truck driver and commenced employment with the Respondent on 26th June 2013. This employment ended on 25th March 2020.
The Complainant worked 55 hours per week and earned €851.93 gross per week.
Summary of Complainant’s Case
The Complainant claimed that he was never issued with a terms of employment or a written contract of employment upon commencement with the Respondent. From the beginning of his employment, the Complainant contends he was asked to carry out tasks which sometimes were not related to the main job of delivering goods.
The Complainant stated that the working days got longer and longer but he never dared to question this as he never received his terms of employment to state the working hours he was expected to do plus any overtime arrangements and so on. In his 7 years at the company, he never received any complaints about his work until after he was dismissed.
There were days in which the Complainant was working 11-12 hours (the digital tachograph can prove this). In his statement, his boss, the Respondent has claimed that he is running a successful business. The Complainant contends that the employees have asked for wage increases on multiple occasions but were turned down each time.
In May 2019, the Respondent agreed to increase the wages but after one week he changed his mind due to the ‘poor financial performance’ of the company. The Complainant feels this doesn't seem right and professional and it emphasises a lack of respect for his employees.
After a while the Complainant started standing up for himself and demanded a contract of employment and a list of duties, he requested this on numerous occasions. Due to this, he feels that he experienced verbal bullying and was called names which he will not repeat.
The Complainant alleges that the Respondent refused to provide any safety equipment whatsoever after being asked on a few occasions. After the August incident, the Complainant kept asking about his contract of employment and a list of duties but was constantly turned down.
On the day of the dismissal, after he finished his deliveries he was asked to go pick up a trailer which was dropped off by his boss at a tyre depot. When the Complainant arrived on the premises he proceeded to turn his truck around in order to park in front of the trailer when an altercation occurred leading to the respondent to allegedly verbally abuse the employee. The complainant stated that the respondent told him to pack his things and never return.
The complainant stated that he sent the respondent an email later that evening. The Complainant stated that he was dismissed unfairly.
Summary of Respondent’s Case
The Respondent outline that the Complainant was asked to collect a trailer that was getting new tyres fitted. When he arrived at the tyre depot he attempted to hitch up to a trailer that the fitter was still working underneath. He hitched the trailer up knocked the trailer off the jack while the tyre fitter was still underneath.
The fitter advised the Respondent to wait and what he had done was dangerous but despite this he attempted to hitch up again while the fitter was still underneath. This resulted in the fitter banging his head and his side pinched by the tyre, the fitter was in shock by this turn of events. The Complainant did not acknowledge what he had done or apologise, and he then proceeded to drive off at speed.
The Complainant arrived back in his own depot and was confronted by the Respondent who was already aware of the incident.
When the Complainant was questioned by the Respondent as to the whereabouts of the trailer he stated that the tyre people had not finished. It was then explained to the Complainant that he was supposed to collect the trailer, proceed to location to pick up a load and return with the trailer to the depot. During this interchange the Complainant did not mention the incident with the tyre fitter.
The Respondent instructed the Complainant to park the truck in its place in the yard, he drove over erratically and aggressively to the parking spot and got out and started shouting at the Respondent and allegedly was verbally abusive.
As the Complainant’s behaviour was becoming more aggressive towards the Respondent he was asked by the Respondent to leave the yard, there had been no mention of the incident in the tyre depot as the Respondent was nervous of the Complainant’s behaviour and did not want to heighten his aggression. The Respondent suffers from Parkinson’s disease and has a bad tremor that gets worse in stressful situations. The Respondent did not want this to happen in front of the Complainant.
The Respondent then went to the tyre depot to check if the tyre fitter was ok and to offer any assistance and an apology.
The Complainant did not return to the yard after this and the Respondent contends that he heard nothing from the Complainant until he received an email asking about back pay plus dates of last working for Social Welfare purposes.
The Respondent is adamant that the Complainant was not dismissed but told to leave the yard that day because of his aggression and behaviour and the serious nature of the incident which could have gravely injured the tyre fitter.
Prior to this incident the Respondent contends that the Complainant’s attitude towards other drivers had been one of intimidation and he had constantly wanted the early jobs, so he could go home early. The Respondent states that he had to “pull him up” on several occasions about this.
The Respondent also alleges that the largest customer informed him that the Complainant s often late arriving and warned the Respondent that if the performance did not improve it could be detrimental to the Respondent’s business. When the Respondent brought this subject up with the Complainant his performance did not improve.
In relation to safety checks on the vehicles which are a standard requirement of the Road Transport Authority the Complainant failed to carry out the check one day and this resulted in in wheel damage to the truck that cost a substantial amount to repair.
The Complainant got so stressed on two occasions that he resigned over the telephone, the cause of the stress was that he was needed to help his wife in the Bed and Breakfast.
The Respondent concluded by stating that he had been in the transport business for over 50 years and that he ran a good company. He depends on employees and feels he treats them well and is fair. He helps employees out as much as he can if they have problems and claims to be very approachable.
Finding and Conclusions
The Adjudicator stated that the Respondent organisation do not have any policies or procedures in relation to employees. The Adjudicator stated that the Complainant was never issued with a statement of the particulars of his employment.
The adjudicator found that there were two different versions of events that took place on25th March 2020. The Adjudicator stated that on the evening of 25th March, the Complainant sent the Respondent an email. This email included the following “Today, you told me to take my things and leave, and that you don’t need my services anymore, implying a dismissal. I will require a written statement or email from you to confirm this. ……..”
The Adjudicator found that not only did the Respondent fail to reply to this email but through his statement claimed that the Complainant did not return to the yard after that and he heard nothing from him until he received an email asking for back pay plus dates of last working day for Social Welfare. The email was sent a few hours after the Complainant left the yard.
The Adjudicator considered the statements from both the Complainant and the Respondent. The Adjudicator found that that the Complainant was a more credible witness than the Respondent and therefore conclude that the complaint as presented under section 8 of the Unfair Dismissals Act, 1977 is well founded.
Decision
The Adjudicator noted that the Complainant was unemployed for a period of two months and order the Respondent to pay the Complainant a gross sum of 10 weeks pay that I calculate to be €8,519.30.
Our Commentary
In accordance with legislation, all dismissals are considered unfair, unless the Employer can demonstrate otherwise. As this case highlights, the Employer must demonstrate that a reasonable decision was made in dismissing an Employee and that a fair procedure was followed.
The Code of Practice requires that the disciplinary procedure be applied progressively where appropriate, and that greater sanctions may be imposed over time.
In deciding whether it is appropriate to dismiss an Employee for gross misconduct, the Employer must always consider:
- Could the Employee have reasonably known that the conduct would warrant dismissal, for example was this stated in a policy related to the incident, and was that policy communicated to the Employee?
- Have other Employees been dismissed in the same circumstances?
- Is there sufficient evidence to demonstrate that, on the balance of probabilities, the Employee committed the offence?
- Has fair account been taken of the mitigating circumstances, if any, that have been presented by the Employee?
If the answer to any of the above questions is “no”, then dismissal may not be an appropriate sanction to impose on the Employee.
Case 2: CE Participant awarded €4,000 for her unfair dismissal
Background
The Complainant contends that he was unfairly dismissed following a dispute with his Supervisor.
Summary of Complainant’s Case
The Complainant stated that he was employed by the Respondent from September 2017 to August 2019 through a Community Employment Scheme. He had a dispute with the Respondent which was subject to an Adjudication Recommendation, issued in July 2019. That Adjudication recommended that the dispute between the parties be referred to an independent mutually agreed third party for investigation into the matters raised by the Complainant. The Complainant however, was dismissed before this recommendation was put into effect.
The Complainant stated that he was entitled to a third year on the C.E. scheme as he had embarked upon a Level 5 Fetac qualification in Security and Operations. The Community Employment Schemes Manual provides: “All eligible C.E. participants can avail of up to one year on the programme. The duration of participation can be extended on approval by the Department by up to 2 more years if the participant is working towards a major award / industry recognised equivalent to support progression in employment.”
The complainant has established through freedom of information process that the Respondent wrote to Ms C in the Department of Employment and Social Protection to inform her that the Complainant would not be offered a third year on the scheme. The Complainant contends that another C.E. participant was brought in to paint and that the Complainant was unfairly dismissed.
Summary of Respondent’s Case
The Respondent contends that the Complainant was not unfairly dismissed or dismissed at all. His contract came to an end on 30th August 2019 and was not renewed as there was no business need to do so. The participants on the scheme were reduced from 2 to 1 at weekends and there was no longer a need for the Complainant and his contract came to a natural end.
Findings and Conclusions
The Complainant was employed on a Community Employment Scheme on yearly contracts for a period of 2 years from September 2017. The Adjudicator notes that the scheme allows for a third year if the participant is embarking on a qualification which would support progression in employment. The Adjudicator noted that the Complainant was studying for a relevant qualification and therefore qualified for a contract for the third year.
The Adjudicator found that despite the Respondent being aware of this, they specifically advised the Liaison person in the Department that they did not intend to offer the Complainant a contract for the third year. The Adjudicator found that in 2018/2019 problems arose with his Supervisor which were subject of a separate adjudication recommendation. The Adjudicator noted that recommendation advised the parties to try and settle their dispute by way of a third party investigation.
This never took place.
The Adjudicator found that on the balance of probability, the Respondent found it expedient to dispense of the services of the Complainant rather than offer him a third and possibly final year contract. The Adjudicator concluded that the termination of the Complainant’s employment was due to the differences and disputes between him and the Respondent, and that his dismissal was unfair. The Adjudicator found that compensation is the appropriate remedy. The Adjudicator stated that he not been presented with evidence of mitigation of loss attempts by the Complainant.
Decision
The Adjudicator upheld the Complainant’s complaint that he was unfairly dismissed and he required the Respondent to pay to the Complainant the sum of €4,000 compensation.
Our Commentary
This case is a reminder to Organisations with CE Participants that although they are not employees they have legislative rights to be treated fairly and in accordance with the terms outlined in the CE Manual. Education and continuous development are some of the key aspects of the CE Scheme and for the Organisation and the failure of the Organisation in this instance to allow the participant to continue to a third year was a direct breach of the scheme core values.
Note on WRC:
The establishment of the Workplace Relations Commission on the 1st October 2015 is the most radical restructuring of employment legislation over the last 30 years. Organisations are encouraged to understand all facets of the WRC, how it now operates and what to expect when required to defend a claim at the third parties.
The establishment of the Workplace Relations Commission has resulted in the combined functions of the Labour Relations Commission, Rights Commissioner Service, the Equality Tribunal, the Employment Appeals Tribunal and the National Employment Rights Authority (NERA).
In addition to this the Labour Court has been reconfigured in order to hear appeals.
The strategic aims of the new Workplace Relations Commission include an independent, effective and impartial workplace relations service, a more workable means of redress within a reasonable timeframe and an overall reduction in costs. The new Workplace Relations Commission is also anticipated to be more centralised, in terms of maintaining a database of case information, the end result bring a better service for both Employers and Employees and a much more streamlined, simplified process.
Adare Human Resource Management is one of Ireland’s leading Employment Law and Human Resource Management Consultancies. Our HR & Employment Law Support Services include:
- Advice on all Employment Law, Industrial Relations and HR queries or issues
- Review, Development and Implementation of Contracts of Employment and Employee Policies and Procedures
- Management and Employee Training - Dignity at Work, Anti-Harassment and Sexual Harassment, Conducting Disciplinary Meetings
- Investigations - independent investigations on behalf of Organisations in line with the relevant legislation and codes of practice
- Organisational Management or Change Management Initiatives – including review / development of Performance Appraisal / Management Systems and Organisational Development
For further information in relation to our services, contact one of our HR & Employment Law Consultants – info@adarehrm.ie / 01 561 3594.
www.adarehrm.ie
Sick Leave and Parental Leave (COVID-19) Bill 2020
The Sick Leave and Parental Leave (Covid-19) Bill 2020 is a newly proposed piece of legislation which if passed, would provide for an entitlement for Employees to paid leave during periods of illness or injury, amend the entitlement to leave on grounds of force majeure for parents whose children are unable to attend school or childcare services by reason of Covid-19 measures.
This Bill is currently before Dáil Éireann, Second Stage. The Government is aiming to enact statutory sick pay legislation in Ireland by the end of 2021.
Working from Home (COVID-19) Bill 2020
The Labour Party published the Working from Home (Covid-19) Bill 2020 on 10th November 2020, which will address the urgent need for legislation as a result of a significant increase in remote working caused by the pandemic.
The Bill if passed, will provide Employees working from home with a right to switch off, a suitable home workstation and flat rate payment to cover the costs now taken up by Employees and disapply subject to conditions certain provisions of the Safety, Health and Welfare at Work Act 2005 in the case of certain Employees working temporarily from home.
This Bill has completed Dáil Éireann, Second Stage.
