Employee who was dismissed after safety complaint awarded €36,050
Mr Richard Doody from Mallow was dismissed from his position with Denis J Downey, a haulage and warehousing firm based in Co. Cork after he made a complaint to the Health and Safety Authority about potentially dangerous conditions at the firm.
The company admitted that the decision to dismiss the employee was directly linked to the complaint he had made about the firm to the HSA. The Managing Director, Denis Downey acknowledged that they had a sense of betrayal and decided to terminate Mr Doody’s employment when they discovered that he had made the complaint. Mr Doody claimed that he had made a number of approaches to the company about his concerns about the manner in which the transport of hazardous cargoes was being documented before making an anonymous complaint to the HSA. He had understood that his identity would not be made known to his employer.
The EAT found that Mr Doody had been unfairly dismissed and awarded him €35,000 in compensation along with €1,050 in respect of his claim under the Minimum Notice and Terms of Employment Acts. In its decision the EAT referred to section 27 (3) (b) of the Safety Health & Welfare at Work Act 2005, which provides that an employer shall not penalise or threaten penalisation against an employee for making a complaint or representation to his or her Safety Representative or employer or the Authority, as regards any matter relating to safety, health and welfare at work.
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Equality Tribunal awards €95,000 to employee for gender discrimination
Ms Claire Keenan worked for Mortgage Cabin as a mortgage consultant since February 2005. In December 2007 she informed her employer that she was pregnant. She was told on the 13th July 2008, whilst pregnant, that she was being made redundant on the grounds that ‘there wasn’t enough business to go around’. The employer had hired an additional employee six weeks before making Ms Keenan redundant. The equality officer found that the hiring of an additional employee shortly before making Ms Keenan redundant was not consistent with the submission of the employer that he was in serious financial difficulty at the time.
It was alleged that the employer had approached Ms Keenan in the weeks and months prior to the redundancy decision regarding not taking the full maternity leave entitlement. The equality officer was satisfied that the employer did take issue with the employee availing of her full maternity leave entitlements and did seek to put pressure on her to reduce her maternity leave or at least to work from home. In conclusion the equality officer found that Ms Keenan’s wish to avail of her full maternity rights was the catalyst for the redundancy and that she was discriminated against on the gender ground
The employer was ordered to pay Ms Keenan the sum of €95,000, the approximate equivalent of 12 months pay, to compensate her for the distress caused to her as a result of the discrimination.
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Employee who did not receive a written contract awarded €1200
This Employment Appeals Tribunal hearing took place in July and was an appeal of a Rights Commissioner recommendation. The employer, a pizza restaurant, hired a delivery driver through an advert in the restaurant window and employed him for just over 2 months. The employee worked in the restaurant carrying out general tasks as well as being a delivery driver. He never received written terms and conditions of employment and sought compensation for this.
At the tribunal hearing, a representative of the restaurant produced a copy of a contract which he said was usually given to delivery drivers but he could not say whether such a contract was given to the individual in this case. He said that these contracts ‘’were always there to be signed but he may not have signed one’’.
The tribunal was satisfied that in this case the individual was employed by the restaurant on a contract of employment and as such was entitled to receive written terms and conditions of employment in accordance with The Terms of Employment (Information) Act 1994. The individual did not receive these and therefore the tribunal upheld the Rights Commissioner recommendation and awarded €1200 to the individual.
This case highlights that employers need to be aware that they are required by law to give their employees written terms and conditions of employment, even for employees with relatively short temporary contracts. Apart from the cost of the award, the employer in this case also had to take time out to attend the hearings and prepare his defence. When you consider how economic and efficient a written contract can now be prepared, all employers are best advised to ensure that they are compliant.
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Sexual Harassment and Harassment at Work
Code of Practice on Sexual Harassment and Harassment at Work
A new code of practice on sexual harassment and harassment at work was approved by the Minister for Justice and Equality this summer. This provides guidance to employers on how to deal with the issue in their workplace and what to include in their policy. Bright Contracts have updated the default policy in the handbook to reflect these changes. The full code of practice is available at www.brightcontracts.ie/docs/codes-of-practice/ but I will take this opportunity to outline some important aspects and key changes.
Overview
The code states that an employer is legally responsible for the sexual harassment and harassment suffered by employees in the course of their work unless he/she took reasonably practicable steps to prevent sexual harassment and harassment from occurring, to reverse the effects of it and to prevent its recurrence. Employers who take the steps set out in the code to prevent sexual harassment or harassment, to reverse the effects of it and to prevent its recurrence, may avoid liability for such acts in any legal proceeding brought against them.
Although the code does not impose any legal obligations in itself, it’s provisions are admissible in evidence and may be taken into account in any criminal or other proceedings before a court and also proceedings before a Labour Court, the Labour Relations Commission, the Employment Appeals Tribunal, the Equality Tribunal and a Rights Commissioner.
Employers are encouraged to follow the recommendations in a way that is appropriate to the size and structure of their organisation.
Discriminatory Grounds
As with the previous code, there are nine discriminatory grounds, but ‘marital status’ has been changed to ‘civil status.’ The nine grounds are:
- Gender
- Civil status
- Family status
- Sexual orientation
- Religious belief or lack of religious belief
- Age
- Disability, lack of disability or the nature of disability
- Race, colour, nationality or ethnic or national origins
- Membership or non-membership of the Traveller community
Definitions
The definitions of harassment and sexual harassment have been updated.
“Harassment is defined in section 14A(7) of the Employment Equality Act as any form of unwanted conduct related to any of the discriminatory grounds which has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.”
“Sexual harassment is defined in section 14A(7) of the Employment Equality Act as any form of unwanted verbal, non-verbal or physical conduct of a sexual nature which has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.”
Non-Employees
The Employment Equality Act protects employees from sexual harassment and harassment by:
- the employee
- fellow employees
- clients
- customers
- other business contacts including any person with whom the employer might reasonably expect the employee to come into contact in the workplace. This may include those who supply or deliver goods/service to the employer, maintenance and other type of professional contractors as well as volunteers.
It is important for employers to consider the application of the code to non-employees. Employers are legally responsible for the sexual harassment and harassment of employees carried out by clients, customers or other business contacts of the employer.
A policy should point out that sexual harassment and harassment by non-employees such as clients, customers and business contacts will not be tolerated and may lead, for example to termination of contract, suspension of services, exclusion from a premises or the imposition of other sanctions.
The scope of the provisions also extend beyond the workplace, for example to conference and training that occur outside the workplace. It may also extend to work-related social events.
Communication
To effectively communicate the policy to employees, the code states that it should be part of the formal induction process and employers should consider an employee handbook to be distributed to all employees as part of the induction process. The handbook would need to be updated regularly to reflect relevant changes.
It states that the policy should include commitments to training staff on issues of sexual harassment and harassment.
The code recognises that the communication of the policy to non-employees is more difficult and has included some measures that the employer could consider.
The code also refers to ensuring the accessibility to policies and procedures, for example the translation of policies and procedures into languages other than English as appropriate or the provision of interpreters.
Defence
It is a defence for an employer to prove that he/she took reasonably practicable steps to prevent:
- the employee from being harassed
- the employee from being treated differently in the workplace or in the course of employment and, if and so far as any such treatment occurred, to reverse the effects of it.
In order to rely on this defence, employers must show that they have comprehensive, accessible, effective policies that focus on prevention, best practice and remedial action, and also effective complaints procedures. The measures taken to put the policies and procedure into practice will also be taken into account by courts and tribunals. Employers will not be able to rely on an excellent policy if it has not been effectively implemented.
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High Court rules exploitation case worker is not entitled to €92,000 award
Muhammad Younis, from Pakistan had been awarded €92,000 by a Rights Commissioner who had found that he had been the victim of exploitation by his employer, the Poppadom restaurant at Newlands Cross in Dublin, by being underpaid and forced to work excessive hours.
The High Court ruled that he is not entitled to this award because his employment contract is substantively illegal. Mr Younis was a non-EU migrant worker and did not have a work permit. Mr Justice Gerald Hogan said he was concerned that the Employment Permits Act 2003 had perhaps produced consequences that were not foreseen or envisaged, because it meant that any employment contract involving a non-EU migrant worker without a work permit was substantively illegal
Siobhán O'Donoghue of the Migrant Rights Centre Ireland has called on the Oireachtas to address the problem with the Employment Permits Act urgently.
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