What harm can two jam tarts make?
The Employment Appeals Tribunal decided an employee was fairly dismissed when jam tarts were found missing from a packet. The man in question, Moran, worked in the warehouse for Keeling’s Logistics Solutions, who operated as a distribution company for the supply of goods to just one customer.
An investigation was carried out when the security manager saw Moran and a colleague “acting suspiciously” beside an open cage, containing boxes of jam tarts. He claimed to see the cage being moved and that he saw the men eating something and putting their hands inside the cage. The investigation found that Moran had tampered with a packet of jam tarts and two individual tarts were missing. CCTV footage was reviewed and the men claimed that they were sharing a Mars bar and denied eating the jam tarts.
Finding
The employer had a strict policy that no stock would be consumed on the warehouse floor and installed vending machines on the shop floor to prevent staff tampering with and eating their stock. The employer carried out a disciplinary procedure and dismissed Moran, who then appealed the decision but lost. The EAT found that Moran’s evidence was not credible and on the balance of probability that he did tamper with the stock.
“The Tribunal also found that there were no procedural defects which would render the dismissal unfair. The investigation, disciplinary meetings and appeal were thorough, fair and objective.”
Learning Points
The importance of having firm policies and applying procedures when dismissing an employee are prominent in this case. 80% of unfair dismissal cases are lost by employers not because they didn’t have a good reason for dismissing the employee but because they have failed to follow fair procedures. As an employer, you do not want to be subject for a hefty unfair dismissal claim that could have been easily avoided.
Bright Contracts - Employment Contracts and Handbooks
Requiring staff to only speak English at work can be lawful
The WRC recently dismissed a claim brought by a Polish employee that alleged she had been discriminated against on the grounds of race. The Complainant in this case was told she had to speak English when working alongside colleagues who did not speak Polish.
The Company in question employed 838 people from 14 countries. The employee was asked by their supervisor to speak English while working on the factory line. The employee subsequently brought a discrimination claim against the Company. The Company argued that there was a business case for having one official language in the business.
The WRC found in favour of the employer based on evidence that they had provided diversity workshops, and had acted in good faith by asking the employee to speak English so as not to exclude other colleagues.
Learning Points
This is an area where employers need to thread carefully in order to avoid discrimination.
Generally, it is possible to limit the use of languages other than English at work, provided that the policy:
- applies to all nationalities
- there are justifiable (and non-discriminatory) reasons for imposing the policy.
Some possible acceptable reasons may include:
- Health and safety implications
- Security risks
- Impact on workplace effectiveness
It is advisable that requests to speak English should only apply to operational activities. Discussions at break times or in the canteen should be exempt.
Bright Contracts - Employment Contracts and Handbooks
Constitutionality of WRC questioned
Leave has been granted to challenge the constitutionality of the Workplace Relations Commission procedures to determine employment rights disputes.
The actions could have important consequences for the WRC, which was established in 2015. It replaced the previous Employment Appeals Tribunal system of adjudicating claims for unfair dismissals and wages payment disputes.
The current case before the High Court was taken by solicitors on behalf of Tomasz Zalewski, who claims he was unfairly dismissed last December by Buywise Discount Store Ltd., where he was employed as a Store Supervisor and Security Guard.
Mr. Zalewski feels he was not afforded fair procedure and constitutional justice when the adjudication officer upheld the dismissal. Mr Justice Noonan granted Mr Zalewski leave to judicially review the officer’s decision and restrained the WRC from progressing Mr Zalewski’s appeal to the Labour Court until there is further order from the court.
The court was informed that the hearing was extremely brief, lasting around 10 minutes, with the adjudication officer accepting written submissions from both sides, but Mr Zalewski was given no opportunity to cross-examine.
Bright Contracts - Employment Contracts and Handbooks
Sunday Working - what employers need to know
In today’s world, the reality is that many businesses are open on Sundays, requiring employees to work Sundays.
Employers of these businesses need to be aware of the additional responsibilities that apply to Sunday working.
Employment Contracts
Where an employee is required to work on a Sunday it should be specifically stated in their contract of employment, otherwise it may be fairly assumed that Sunday is a rest day, as per the Organisation of Working Time Act.
Compensation
The Act also specifies that employees who work on a Sunday must be compensated with a reasonable allowance, increase in pay, time off, or a combination of these.
Where confusion can occur, and conflict arise, is where the Act does not specify what or how much is considered to be a reasonable allowance or increase in pay. The amount of premium paid will vary between industries and employment. However, for further guidance on what actually is considered as a reasonable premium, case law does provide useful assistance.
Some learnings from previous decisions include:
- If a premium or increased pay is being paid it should be clearly set out, ideally in the contract of employment
- A rate of pay that exceeds the National Minimum wage is not automatically sufficient.
- Full-time and part-time staff may not be treated differently with regard to a Sunday premium.
- Payment in kind is not a premium, for example providing a meal on a Sunday would not be a reasonable allowance
- If an employee is employed to only work Sundays they will still be entitled to a Sunday premium.
A specific code of practice for Sunday working in the retail sector exists, employers within this sector should ensure they are familiar with the code.
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The importance of health and safety in the workplace
A High Court Judge has awarded a Dunnes Stores Deli worker €182,000 in damages after she fell on grease on the floor of her work station. The Judge said the accident was “eminently foreseeable” therefore making the employer negligible for not providing her with a safe place to work.
The Safety, Health and Welfare at Work Acts 2005 & 2010 entail details of specific health and safety laws which apply generally to all employments.
Employer Duties
In order to prevent workplace injuries the employer is required, amongst other things, to:
- Provide & maintain a safe workplace which uses safe plant and machinery
- Prevent risks from use of any article or substance and from exposure to physical agents, noise and vibration
- Prevent any improper conduct or behavior likely to put the safety, health and welfare of employees at risk • Provide instruction and training to employees on health and safety
- Provide protective clothing and equipment to employees
- Appoint a competent person as the organisation’s Safety Officer
Employee Duties
The duties of the employees include the following:
- Take reasonable care to protect the health and safety of themselves and others in the workplace
- Not engage in improper behaviour that could endanger themselves or others
- Not be under the influence of drink or drugs in the workplace
- Undergo any reasonable medical or other assessment if requested by employer
- Report any defects in the place of work or of equipment which may be a danger to the health and safety of those in the workplace
Every employer is required to carry out a Risk Assessment for the workplace under the Act. This should identify any hazards present in the workplace, assess the risks arising from such hazards and identify the steps needed to be taken to deal with the risk. The employer must also prepare a Safety Statement which is based on the Risk Assessment, employees should be given access to the Safety Statement and the employer should review it regularly.
Bright Contracts - Employment Contracts and Handbooks
Lay-Off and Short Time Working
A shortage or work, or a temporary lull in business is not an uncommon feature for many employers. However how to manage such events can be tricky.
Staffing is one of the first concerns that employers will likely need to address, particularly when cost savings need to be made.
Lay-off and short-term working arrangements are therefore popular with employers looking for a solution to a temporary issue, rather than the more permanent option of redundancy.
Lay off: A lay-off situation arises where you are temporarily unable to provide work for your employees. Lay-off could result in work halting and no pay in relevant roles, alternatively it may be a pattern such as one week on, one week off, or working three out of four weeks.
Short-time: A short-time situation arises where, due to a reduction in the amount of work available, you reduce employees pay or hours to less than half their normal weekly amount.
Redundancy
An employee who has been laid-off or placed on short-time for four or more consecutive weeks, or for an aggregate total of 6 weeks in a 13 week period, can give written notice (through the form RP) to their employer indicating their intention to claim redundancy.
Upon receipt of such notice the employer can:
- Accept and pay the redundancy lump sum thereby accepting that there is a termination of employment
- Counter notice within 7 days, confirming that within 4 weeks the employee will be employed for a period of 13 consecutive weeks.
Notifying Employees of Use Lay-off or Short-time Working
As an employer you do not have an automatic right to lay-off employees or place them on short-time working. To do so without having an express term in the contract of employment, or without an established custom and practice, may well be seen as a breach of contract, particularly if agreement is not reached with effected employees. You may also be at risk of constructive dismissal claims or payment of wages claims.
Employers who feel their business is subject to fluctuating workloads are well advised to include a lay-off and short-term clause as standard in their contracts of employment.
Additionally, good communication is highly recommended. Informing staff of the situation will not be pleasant, but they should receive clear and honest communication from management. Failure to do so will more than likely result in an extremely disengaged, unmotivated workforce, particularly when they return to normal working.
There is no minimum notice required for lay-off or short-time, however employees should be given as much notice as possible, to allow them organise their own financial situation.
Once the final decision has been made, employees should be formally notified using the Form RP9.
Bright Contracts - Employment Contracts and Handbooks
Annual Progress Report from WRC: 2015 - 2016
The Workplace Relations Commission (WRC) has recently published a progress report on its first year in operation (October 2015 - Septetmber 2016). The report outlines the statistics and trends of labour law over the 12 month period and gives some insight into the types of cases being dealt with and how the WRC operates in practice.
Customer Support
The WRC Information and Customer Service department received more than 62,000 calls, ranging from queries related to work permits, working hours, payment of wages, etc. 69% of the calls were made by employees working in a range of different industries.
Top most popular queries
- Employment permits
- Working Hours
- Complaint Enquiries
- Terms of Employment
- Payment of Wages
Caller Type Breakdown
- Employees = 69%
- Employers = 21%
- Citizens Information Centres = 4%
- Employee Representatives = 3%
- Employer Representatives = 2%
- Other = 1%
Conciliation Service
The WRC Conciliation Service received a total of 1,124 referrals in the 12 months, of which 163 disputes were then referred to the Labour Court. The Conciliation Service helps employers and their employees resolve disputes when they have failed to reach agreement during their own negotiations by allowing parties avail of a neutral and impartial third party to assist them in resolving their differences. Prior to the restructuring of the WRC all of these disputes would have ended up being referred to the Labour Court - thus demonstrating how effective the new WRC service is in reducing the numbers clogging up the courts unnecessarily.
Inspection and Enforcement Services
The report also showed that the WRC Inspection and Enforcement Services closed 5,221 inspections and out of those 2,050 employers were found to be in breach of employment legislation. 13 fixed-penalty notices were issued in those 12 months relating solely to failure by the employer to provide a written statement of wages and over €1.5 million of unpaid wages were recovered.
Employment Hearings
Finally, the report highlights a significant reduction in waiting times for hearings and determinations, and a substantial reduction in the backlog of cases, with the employment rights cases being reduced by nearly 50%, all very positive signs pointing towards the success of the WRC since its introduction.
Bright Contracts - Employment Contracts and Handbooks
4 Tips to Banish your Employee's January Blues
The third Monday in January has officially been reported as the most depressing day of the year, Blue Monday. Research also shows that the month of January has the highest rate of sick leave.
After the hype and excitement of December, January brings lighter bank balances, tighter waistbands, and overall melancholy that the fun and festivities are over for another her. So it’s not surprising that your employees will catch the “January Blues”, feeling tired, unmotivated, lacking energy and focus. However, the New Year is also a time for fresh starts, a time to plan and to set targets for the months ahead.
Here are our top tips on how to stamp out the January Blues in your workplace:
Generate enthusiasm
To help generate enthusiasm, you need something for staff to look forward to that will be energetic and fun. Why not introduce a team building event or social event? Something that will refocus the team, it’s upbeat and entertaining. Even a team lunch on a Friday afternoon will lighten the mood and enthuse staff to apply themselves.
Set targets
Goal setting in January is a good idea. It allows you to set out plans for the year ahead and let your employees know what the key objectives for the business are – and how they will play a crucial role in achieving that. Along with setting Company goals, set individual goals, and team goals.
Recognition
A key factor in driving motivation amongst employees, is the feeling of being recognised for their work and achievements. Acknowledging employees for a job they have done well, will make them feel valued and encourages them to continue doing what they do effectively.
The impact of simply saying thank you, can go a long way. These two words, can have an overwhelming effect on employee engagement and productivity.
Workplace wellbeing
One of the most popular New Year resolutions people pledge, it to lose weight. The chances are several of your team will be looking to achieve this, as they are feeling sluggish from all the Christmas over-indulgence.
As we know, it’s important as an employer to invest in workplace wellbeing and fruit is a fantastic superfood that can help concentration and productivity levels. So why not show your support to staff and their resolution, by providing complimentary fruit platters for employees to enjoy.
The New Year is an opportunity to start fresh and achieve success. You need a fully focused workforce to accomplish this. Follow these top tips to help refocus employees and make 2017 a prosperous year.
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Minimum Wage Increase from 1 January 2017
The minimum wage will increase to €9.25 per hour from 1 January 2017.
Employers should ensure their payrolls are updated and affected employees are informed of the change. Employers are also advised to review their Sunday rate as this may need to be adjusted to ensure the Sunday premium is complaint with legislation.
Minimum wage rates from 1 January 2017
- Experienced Adult Worker - €9.25
- Aged Under 18 - €6.48
- Over 18 and first year from date of first employment - €7.40
- Over 18 and second year from date of first employment - €8.33
Employees over 18, in structured training during working hours
- 1st one third period - €6.94
- 2nd one third period - €7.40
- 3rd one third period - €8.33
Bright Contracts - Employment Contracts and Handbooks
2016 Employment Round Up
2016 has been another busy year for employment law. We’ve summed up some of the key changes:
- Retirement Ages: January 2016 saw the introduction of the The Equality (Miscellaneous Provisions) Act 2015 which stipulates that employers must objectively justify a mandatory company retirement age. The advice to employers in this regard is to review employment contracts and staff policies, where a mandatory retirement age exists employers should include a robust policy objectively justifying the retirement age. The “Optional Sections” tab within the Handbook of Bright Contracts contains a draft policy which may assist employers set objective justification. Read more
- Paternity Leave: 1 September 2016 saw the introduction of paid paternity leave in Ireland. Fathers / partners are now entitled to two weeks paid paternity leave within the first 26 weeks following the birth of a child / placement of a child for adoption. Read More
- Minimum Wage: As announced in Budget 2017, minimum wage will increase again in January 2017, the new rate being €9.25.
- CCTV in the Workplace: the Data Protection Commission this year released updated guidelines on CCTV use. The guidelines include a requirement for:
- a written CCTV policy to be in place
- a risk assessment to be conducted to justify the use of CCTV
- a privacy impact assessment
- evidence of previous incidents that have led to concerns that may justify the use of CCTV
- clear signage indicating that there is CCTV recording in operation. Read More
Bright Contracts - Employment Contracts and Handbooks
