A Win for Workplace Safety: Employer’s Victory in Phone Use Dismissal
DMC Foods Limited, a consumer foods business and ready meal manufacturer, successfully defended an Unfair Dismissal claim raised by Daniel Murtagh, a Warehouse Operative who was dismissed after using a mobile phone while operating a forklift. This case highlights the legal backing given to employers who follow clear, reasonable and legally compliant procedures.
Background
An investigation opened after the Production Manager received a complaint that Mr Murtagh was operating a forklift while using a mobile phone. An external party conducted the investigation, which included CCTV evidence and Mr Murtagh admitting to using the phone. Following the investigation, Mr Murtagh was invited to a Disciplinary Hearing, in which he was not apologetic but attempted to justify his actions. The Managing Director decided the seriousness of the health and safety breach, and the employee’s current written warning for a separate conduct incident, justified dismissal.
Mr Murtagh brought a claim of Unfair Dismissal, alleging that he was unfairly singled out and dismissed for using the phone, when it was common practice, and he was not driving ‘at speed’. His evidence included two statements from former colleagues, one of whom admitted to using a phone while their forklift was stationary, and the other who explained he had left the company after being informed of an investigation into his mobile phone use. Mr Murtagh conceded the use of a phone while operating a forklift was a dangerous practice.
Health and Safety Authority guidance to employers confirms that mobile phones should never be used while operating a forklift. The employer defended the claim by describing how the dismissal was procedurally fair, in line with the Code of Practice on Grievance and Disciplinary Procedures, and the dismissal outcome was proportionate with the seriousness of the health and safety breach.
WRC Decision
The WRC Adjudication Officer considered the evidence from both parties then determined that the use of the phone was ‘extremely dangerous’ and therefore justified a dismissal for the reason of conduct, and the procedure followed was reasonable. He concluded that the dismissal was fair.
Takeaways for Employers
Employers should feel confident about following fair and reasonable procedures to address safety concerns. Clear, reliable policies help to protect the best interests of employees and employers.
Bright Contracts provides employers with template HR documents which can be easily tailored to your specific needs. Our resources include comprehensive policies, helpful guidance notes, and useful supporting documents. Visit our website or talk to a member of our team to find out more about the support we offer.
Working Time ‘Fowl Ups’ for Chicken Business
Background
The complainant, Suman Bhurtel, brought 6 claims to the WRC about his former employer Chicken Castle Limited Chicken Club – 5 for violations of Working Time regulations and 1 for National Minimum Wage underpayment. The respondent provided a defence for all 6 claims so the WRC Adjudication Officer needed to determine the validity of each claim.
The complainant’s working time claims referred to: working Sundays but not receiving a Sunday premium; working public holidays but not receiving an extra payment; under payment of annual leave; not receiving rest periods he was entitled to; working an average of 70 hours per week; and being paid an hourly rate below the National Minimum Wage.
The respondent defended these claims using the following arguments: the complainant did not work Sundays; the complainant did not work public holidays; the complainant was paid in cash for annual leave; the complainant worked 39 hours per week; and the hourly rate was not below the National Minimum Wage.
WRC Decision
For each of the claims, the WRC Adjudication Officer concluded that the complainant provided credible and clear evidence. The lack of documentary evidence provided by the respondent was criticised and the excuses, such as the Company Secretary not being able to access the shop where records were kept, were not acceptable.
Each claim was judged to be well founded and therefore the respondent was ordered to pay compensation to the claimant.
Takeaways for Employers
This case confirms the importance of employers following the Working Time and National Minimum Wage legislation and keeping the required records.
Bright Contracts clients have access to a legally compliant Employee Handbook policies, including a template Hours of Work and Rest Periods Policy. Please contact us if you would like more information.
Legal Update: Parent’s Leave Increasing in August 2024
Parent’s Leave entitlement is increasing to 9 weeks.
Key Changes
From 1st August 2024, the statutory entitlement for Parent’s Leave will increase to 9 weeks’ leave.
Parent’s Leave will increase from 7 weeks to 9 weeks for children born or adopted after 1st August 2024. Employees will also be entitled to claim the additional 2 weeks of Parent’s Leave if their child is under the age of 2 years old on 1st August 2024, or if their adopted child has been placed with their family less than 2 years on 1st August 2024.
Parent’s Leave is available during the first 2 years of a child’s life, or in the case of adoption, within 2 years of the placement of the child with the family.
Parent’s Benefit will also increase from 7 weeks to 9 weeks, for employees who qualify for this benefit.
The legislation governing Parent’s Leave is the Parent’s Leave and Benefit Act 2019, as amended.
Other Types of Leave Entitlements for Parents
It is important to remember that Parent’s Leave is a separate entitlement to Parental Leave.
Parental Leave entitles parents to unpaid leave from work for the purpose of looking after their children, for up to 26 weeks. This entitlement applies to: employees who are parents and guardians of children under 12 years of age; employees who adopted children between the age of 10 and 12, these employees can take Parental Leave for up to 2 years after the date of the adoption order; and employees who are parents and guardians of children with a disability or long-term illness, it is possible to take Parental Leave until these children are 16 years of age.
Other types of statutory leave available to parents are: Adoptive Leave, Force Majeure Leave, Maternity Leave, Medical Care Leave, and Paternity Leave.
Compliance
Failure to comply with the legal obligations relating to leave entitlements can lead to serious consequences including: lost trust and confidence, breakdowns in employee relations, WRC claims, financial penalties, and reputational damage.
Takeaways for Employers
It is essential to keep up to date with the statutory requirements for employee leave entitlements.
Bright Contracts clients have access to a comprehensive Employee Handbook, including template policies for Adoptive Leave, Force Majeure Leave, Maternity Leave, Medical Care Leave, Parent’s Leave, Parental Leave, and Paternity Leave. Please contact us if you would like more information.
€1,000 Lesson on Fair Dismissal Procedures
In this recent case, the complainant’s former employer was ordered to pay €1,000 compensation due to the dismissal process followed – and the amount could have been much higher...
Background
The complainant, Mr Grzegorz Grygier, started employment with Ideal Fire Limited in January 2022. He passed his 6-month probation on time and no concerns had been raised about his performance before he was invited to a meeting with Mr Ray Dooley, Company Director, in January 2023. During this meeting, Mr Grygier’s employment was terminated. The reason given was performance, due to an issue with a gas suppression system.
During the WRC hearing, Mr Dooley confirmed that no formal investigation had occurred, or a Disciplinary hearing, and he had not raised any issues with the complainant prior to the dismissal meeting.
Training records appeared to show only a limited amount of training, which may not have included gas suppression systems, and there had been no negative consequences to the company due to the incident.
The company representative confirmed the dismissal was due to the gas suppression system, but later it was suggested that the reason was instead due to an absence incident. No process had been followed regarding this absence, and it had not been referenced during the dismissal meeting.
WRC Decision
The WRC Adjudication Officer concluded that no investigation or Disciplinary process had been followed, the complainant was not given the opportunity to state his case, and he was not afforded the right to representation. Therefore, she found the dismissal to be procedurally unfair. The complainant’s case succeeded.
Following the Unfair Dismissal finding, the Adjudication Officer considered the amount of compensation to be ordered. The complainant had found employment a week after his notice period expired, and this new job included a higher rate of pay. The Adjudication Officer decided that the Respondent should pay €1,000 in compensation. If the complainant had not been so successful in quickly obtaining a better paid role, the compensation ordered could have been considerably higher!
Takeaways for Employers
This case confirms the importance of following fair Disciplinary procedures. If a reasonable process had taken place, the sequence of events could have been very different, potentially avoiding a claim happening at all.
Bright Contracts clients have access to a comprehensive Employee Handbook, including a template Disciplinary Policy. Please contact us if you would like more information.
Case Law: Big Fine for Not Providing Employment Documents!
A Dental Technician was awarded over €13,000 after her claims, of not being provided with written employment terms, Unfair Dismissal, and lack of notice pay, were upheld.
The negative consequences of not providing appropriate employment documents were highlighted in this recent Workplace Relations Commission case (ADJ-00034847).
Background
The complainant, Sarah O’Connor, worked as a Dental Technician for the respondent, Cas Dental.
O’Connor alleged that she had not received a written statement of her terms of employment, or a disciplinary procedure, or an employee handbook.
The complainant also explained that she did not receive a letter inviting her to the dismissal meeting. The dismissal meeting lasted about a minute. She was not given notice pay or the right to appeal.
Defence
Mr Colum Sower, a director of the respondent, explained that he thought he had a period of one year to issue an employment contract and this was his understanding based on advice he had received from the Small Business Association.
Mr Sower gave evidence that he issued the complainant with verbal warnings and a written warning before the dismissal, although there was no final written warning or formal improvement plan.
A notice payment was not made, but the complainant was given a payment for good will.
The respondent accepted the procedure used was not perfect but argued that the complainant had not met the required performance standards and there are serious consequences of not meeting standards in the medical profession.
WRC Decision
The WRC Adjudicator found that the claim of not being issued with written terms of employment was well founded. The respondent was ordered to pay compensation of four weeks’ remuneration to the complainant.
The claim of lack of notice pay was also upheld and the WRC Adjudicator ordered the respondent to pay one week’s remuneration to the complainant.
The WRC Adjudicator concluded that the Unfair Dismissal claim was well founded.
There were breaches of the Code of Practice on Grievance and Disciplinary Procedures, including no opportunity for representation at the dismissal meeting, and serious procedural flaws. The Adjudicator concluded that no reasonable employer would have dismissed the complainant in the circumstances and in this manner. The respondent was ordered to pay €12,000 compensation to the complainant.
Takeaways for Employers
It is essential to comply with the legal requirement to provide employees with written terms and conditions of employment within the required time limits. The excuse of receiving incorrect advice was not accepted by the WRC Adjudicator.
Bright Contracts clients can quickly and easily create legally compliant terms and conditions of employment using the step-by-step instructions in our software.
It is also important to understand legal obligations relating to notice pay.
Bright Contracts includes a legally compliant template contract clause about notice.
Finally, failure to follow reasonable procedures can result in serious consequences. In the O’Connor v Cas Dental Case, the respondent suffered reputational damage and was ordered to pay significant amounts of compensation.
Bright Contracts has a ready to go Employee Handbook which clients can tailor to their requirements. Policies and procedures are reviewed and updated in line with employment law changes and recommended practices.
First WRC Decision under Sick Pay Act
In this case (ADJ-00044889), Ms Karolina Leszczynska (the “Claimant”) had been employed by Musgrave Operating Partners Ireland (the “Respondent”) in its Supervalu store since 2007. During her employment, the Claimant went out on sick leave and a dispute arose.
Facts
The Respondent operated a paid sick leave scheme which entitled its employees to up to 8 weeks of sick leave on full pay once they had more than 6 month's service. Under the company's scheme, the first 3 days of leave were deemed "waiting days" and were unpaid. The Claimant went on sick leave for a period of 4 days, for which she only received 1 days' pay.
She then took a WRC claim on the basis that she was entitled to 3 days paid sick leave under the new statutory sick pay scheme per the Sick Leave Act 2022 (2022 Act).
Defence
The Respondent's case was that the Act permits an employer to use its own sick pay scheme as a substitute for the statutory scheme if it provides more favourable sick leave terms.
The following matters need to be taken into consideration when determining if an employer’s scheme is more favourable:
(a) the period of service of an employee that is required before sick leave is payable;
(b) the number of days that an employee is absent before sick leave is payable;
(c) the period for which sick leave is payable;
(d) the amount of sick leave that is payable;
(e) the reference period of the sick leave scheme.
The Respondent submitted that in all but one of the above aspects (point b), its own sick pay scheme was more favourable than the statutory sick pay scheme.
WRC Decision
The Adjudicator stated that the primary issue was whether the "waiting days" condition in the Respondents scheme made the scheme less favourable "as a whole" than the statutory scheme. The Adjudicator noted that a waiting period is also attached to the payment of Illness Benefit by the Department of Social Protection and that such a measure, aimed at discouraging intermittent absences, is a reasonable one.
The Adjudicator concluded that the disadvantage caused by the waiting period in the Respondent's scheme was outweighed by the advantages of the scheme.
The Respondent's scheme gave its employees full pay as opposed to 70% pay as per the statutory scheme. Further, the Respondent's scheme covered a longer period than the statutory scheme.
This led the Adjudicator to conclude that the Respondent's scheme could be substituted for the statutory scheme.
Conclusion
This decision acts as a helpful clarification for employers in respect of whether a company sick pay scheme may or may not be more favourable than the statutory sick pay scheme. When comparing the two schemes, regard should be had to the criteria set out in the legislation.
Crucially, even if certain elements of the company scheme are less favourable than the statutory sick pay scheme, the overall benefit granted by the company sick pay scheme might still be more favourable.
Domestic Violence Leave
Domestic Violence Leave is part of the Work Life Balance and Miscellaneous Provisions Act 2023.
Any employee who has experienced in the past, or is currently experiencing domestic violence will have an entitlement to take paid leave for the following purposes:
• to seek medical attention
• to obtain services from a victim services organisation
• to obtain psychological or other professional counselling
• to relocate temporarily or permanently
• to obtain an order under the Domestic Violence Act 2018
• to seek advice or assistance from a legal practitioner
• to seek assistance from the Garda Síochána
• to seek or obtain any other relevant services
The entitlement is for employees to take up to five days of full paid domestic violence leave in any 12 consecutive months. Where an employee is absent from work for the purposes of domestic violence leave for part of a day, that will be counted as a full day of domestic violence leave.
Domestic violence leave applies to any person of any age who has entered into or works under a contract of employment, including part-time and fixed-term employees. As there is no service requirement specified in the Act, employees will be entitled to take domestic violence leave from their first day of employment should they need to do so.
The entitlement also extends to employees to take domestic violence leave for the purposes of assisting a ‘relevant person’ in the doing of any of the above listed actions.
A ‘relevant person’ is
• the spouse or civil partner of the employee
• the cohabitant of the employee
• a person with whom the employee is in an intimate relationship
• a child of the employee who has not attained full age
• a dependent person to the employee
Domestic violence is defined broadly under the Act to include violence or threat of violence, including sexual violence and acts of coercive control committed against an employee or a relevant person by another person.
Notification to Employers
Employees who take domestic violence leave must, as soon as reasonably practicable after having taken the leave, notify their employer of the fact that they have taken domestic violence leave and the dates on which it was taken.
The Act does not require employees to provide evidence to support their need to take domestic violence leave.
Case Law - Dismissal of Agency Workers
The employment relationship between an employment agency, the agency worker and the "end user" or "hirer" is an interesting one.
A Workplace Relations Commission (WRC) case (ADJ-00032076) demonstrates the importance of understanding which party is responsible for the potential unfairness of any dismissal of an agency worker.
Here, the agency worker (the "Complainant") was dismissed by the hirer / end user (the "Respondent") for alleged breaches of company policy.
The Complainant brought an Unfair Dismissal claim to the WRC against the Respondent and submitted that the Respondent, as end user / hirer, and not the employment agency was his employer for the purposes of the Unfair Dismissal Acts.
WRC decision – Unfair Dismissal Claim
The WRC Adjudication Officer ("AO") was satisfied that a written contract was in place between the Complainant and the employment agency, who could be considered to be the Complainant’s employer in "general terms". However, the AO referred to Section 13 of the Unfair Dismissals Act 1993 which states that an agency worker shall be deemed to be an employee of the third person under a contract of employment, i.e. the end user / hirer, not the employment agency.
Consequently, the AO found that the Complainant was employed by (and, in the circumstances, unfairly dismissed by) the Respondent in accordance with the Unfair Dismissals Acts.
In relation to the Complainant's efforts to mitigate his losses, the AO found that the Complainant had not made sufficient efforts in this respect. As a consequence, the AO awarded the Complainant just 4 weeks remuneration (€2,494.44) which he found was just and equitable in all the circumstances.
Notice Pay Claim
The Complainant had also brought a claim for notice pay as he was dismissed for gross misconduct and did not receive his notice.
Interestingly, the AO found that, unlike the Unfair Dismissals Act, under the Minimum Notice & Terms of Employment Act, the Respondent was not the Complainant's employer. As a result the Complainant's claim for notice pay was not well-founded.
Conclusion
This is a somewhat unusual provision which may come as a surprise to many employers. Organisations who regularly use agency workers or even those who enter into once-off arrangements with employment agencies are urged to be aware of their obligations and the associated risks when it comes to terminating an agency worker's contract of employment. Such organisations are also advised to consider incorporating relevant indemnities into their commercial agreements with employment agencies for further protections in this regard.
The AO's approach to the Complainant's failure to mitigate his loss is interesting and should also be noted.
Diversity, Equity and Inclusion
DEI stands for diversity, equity and inclusion. As a discipline, DE&I is any policy or practice designed to make people of various backgrounds feel welcome and ensure they have support to perform to the fullest of their abilities in the workplace.
- Diversity refers to differences within a setting; in the workplace, that may mean differences in race, ethnicity, gender, gender identity, sexual orientation, age and socioeconomic background.
- Equity is the act of ensuring that processes and programs are impartial, fair and provide equal possible outcomes for every individual.
- Inclusion is the practice of making people feel a sense of belonging at work.
Combining these three elements, DEI is an ethos that recognizes the value of diverse voices and emphasizes inclusivity and employee well-being as central facets of success. To bring those values to life, companies must implement programs and initiatives that actively make their offices more diverse, equitable and inclusive spaces. DEI issues matter to candidates and employees, and initiatives improve the long term health of companies
Diversity in the workplace is important because with different backgrounds come different points of view, which ultimately leads to better ideas and solutions.
In order to ensure equal circumstances for all individuals across the organization, equity requires that employers recognize barriers and advantages. This is the crucial difference between “equity” and “equality.”
While the workplace does require professionalism and etiquette, an inclusive culture should not bar individuals from being themselves.
So how can employers be compliant in regards to DEI? In general:
- Employers can include DEI in the handbook.
- Employers can provide training/education sessions to their employees.
- Employers can set up a DEI committee where the situation is analysed and goals are set to be improved.
- Employers can make sure they balance all three and focusing on one can cause the other two to suffer.
More specifically diversity can be improved by:
- Employers can use a blind hiring process which will allows the hiring team to focus on qualifications and experience. A blind hiring process involves names and other identification factors to be removing before the CV is sent for review.
Equity can be improved by:
- Employers can work with each employee to identify development opportunities.
- Employers can avoid asking for previous salaries and instead provide salary guidelines with pay bands that offer equitable salaries for various positions.
Inclusion can be improved by:
- Employers creating a policy on inclusion for the company. In this, issues that have been known in the past can be addressed in this.
- Employers can provide benefits that are flexible and compatible for a more diverse workforce such as floating holidays so employees can have time off for the holidays they choose to celebrate or health insurance plans that offers benefits for LGBTQ+ employees.
- Employers can support differences. If employers provide food, perhaps have a separate fridge for Kosher food.
Budget 2024 - What are the changes?
Budget 2024 was announced on Tuesday, 10 October 2023. The Budget sets out an overall package of €12.3 billion. This is made up of a package of once-off measures worth €2.3 billion, a core budget package of €5.2 billion and non-core expenditure of €4.5 billion for 2024.
- It was announced that the minimum wage will increase from 1 January 2024. The national minimum wage for people aged 20 and over will increase by €1.40 to €12.70 per hour.
Age group Minimum wage from 1 January 2024
| Age 20 and over | €12.70 |
| Age 19 | €11.43 |
| Age 18 | €10.16 |
| Under 18 | €8.89 |
- Parents leave will increased from 7 weeks to 9 weeks paid leave from August 2024. Parent’s Benefit is paid in the first 2 years of the child’s birth or adoption. Employees must notify their employer their intent to take parent’s leave and dates no later than 6 weeks before their leave. They apply for Parent’s Benefit at least 4 weeks before the date they start your parent’s leave.
As well as the above, there has been changes to Personal tax, Capital tax, ESG, VAT and VRT.
Further information can be found here.
We linked a budget calculator as well to help see how Budget 2024 can help you! You can find it here.
