€20,000 awarded in constructive dismissal case
A recent case before the Employment Appeals Tribunal was one where an employee handed in his resignation due to the uncomfortable and unprofessional environment he felt he was working in because of another member of staff, who happened to be one of the directors’ wives.
After a number of incidents, the employee reported his grievances to the other director who responded with “..its “”’s wife, there’s nothing I can do..” After more incidents involving the director’s wife, where she became verbally abusive towards the employee, he made a formal complaint using the company’s own policies regarding harassment. An external mediator was appointed who in turn said the employee should try his best to get on with the other member of staff and given some time should resolve itself. The employee did this and for a short period things became manageable.
However the husband of the other employee - the director, started to cause problems for the employee by ignoring his emails and becoming aggressive towards him. At this stage the employee felt he had no option but to hand in is notice as it was no longer a comfortable working environment.
The Tribunal adduced that the companies refusal to take the employee’s concerns seriously or to investigate the matters properly and as per their own policies left the employee in a situation where he felt he could no longer work productively, therefore finding his termination of employment, though at his own hand to be unfair. The employee was award €20,000 compensation under the Unfair Dismissals Acts 1977 to 2007.
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Pay Rise for Contract Cleaners
Hourly pay rates for contract cleaners will increase from mid-December to €10.05. Scheduled increases have also been agreed for 2017 and 2018.
- 1 December 2017 - €10.40
- 1 December 2018 - €10.80
The increase comes following changes to the Contract Cleaning Employment Regulation Order (ERO) and were signed by Pat Breen, Minister of State at the Department of Jobs, Enterprise and Innovation on 27 October 2016.
Other significant changes to the ERO include:
Uniforms
All charges for uniforms shall cease, with the exception of new employees who will be charged a once-off fee of €15. If an employee leaves within the first six months, a deduction of €10 can be made by the employer from any outstanding wages. Each employer is to have a procedure on uniforms which will cover the issue of replacement items and return of uniforms when leaving employment.
Rosters
Other than in exceptional circumstances completed rosters will be issued and made available to employees a minimum of 3 days in advance of commencement.
Payment of Wages
Each company shall have an operational procedure in place for dealing with wage shortages and overpayments which should be communicated to employees and unions if applicable.
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Are employees entitled to an extra hour's pay if they are working when the clocks go back?
This Sunday, 30th October, the clocks will go back an hour at 2am, changing from British Summer Time to Greenwich Mean Time. This can cause confusion if staff are required to work overnight.
Generally, it is for employers to decide how they will handle the situation, however in making their decision they will need to take into consideration:
- terms set out in the contract of employment
- the national minimum wage
- working time regulations
The Contract of Employment
Employers should check the wording of the contracts of employees who are working when the clocks go back. For example, a shift could be described as lasting “eight hours’ or it could be “from 10am to 6am.
Employers don’t necessarily have to pay employees for working an hour longer on a particular shift. A salaried employee is more likely than an hourly paid employee to be required to work extra hours without additional pay. However, as long as the employer is paying at least the national minimum wage, entitlement to payment will depend on the employer’s rules on overtime.
Some employers may choose to pay their employees for the extra hour, or to allow employees leave an hour early.
The National Minimum Wage
If an employee who is paid at or near the national minimum wage rate works an extra hour when the clocks go back, the employer must be careful that the extra hour does not take the employee’s pay below the relevant rate.
Check the Rules on Working Time
If additional hours are worked, employers should be sure that it does not lead to a breach of the rules on maximum night working hours.
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Minimum Wage Increase
Budget 2017 has made for interesting reading right across the board. A key point for small employers will be the increase to minimum wage.
From 1st January 2017, the national minimum wage will increase by 10 cent, from €9.15 per hour to €9.25 per hour. This announcement is in-line with the recommendation given by the Low Pay Commission earlier this year.
As of 1st January 2017, the following will be the applicable hourly minimum rates:
- Experienced adult worker: €9.25
- Over 19 with less than 2 years since beginning first job: €8.33
- Over 18 and less than 1 year since beginning first job: €7.40
- Aged under 18: €6.48
Some of the other budget announcements likely to affect small businesses include:
- Changes to USC rates
- Increase to the Earned Income Tax Credit for small business owners
- Entrepreneur Relief: a reduction to 10% in the capital gains tax
- 9% VAT rate for tourism to continue to apply
Thesaurus Software is holding a Free Budget Update Webinar on 18th October. If you are looking for a concise breakdown of how Budget 2017 will affect your business register here.
Bright Contracts - Employment Contracts and Handbooks
How your Company can benefit from staff induction
Many companies spend considerable time and money finding and recruiting the right staff to join their team. Disappointingly however, very few companies take the time to provide proper induction for their new staff.
Induction is about welcoming and introducing a new employee to your company.
A good induction process will boost staff retention rates and productivity levels enabling new recruits to contribute to the bottom line much quicker.
Statistics show that individuals decide whether or not they feel at home in an organisation within the first three weeks in a company. Furthermore, new hires who go through a well planned induction program are 58% more likely to remain with a company for up to three years.
What should be included in induction?
The induction programme should be tailored to suit your organization and the role being hired for.
However, as a guide, the following should be considered:
- Administration: contract of employment, company policies & procedures, health and safety.
- Company overview: your products and services, your history.
- Full office tour and introduction to colleagues and management.
- Job training: specific role training as well as general office / IT training - this may be ongoing over a number of weeks.
- Feedback: regular catch-ups during the probation period to assess how the employee is doing. Positive feedback will help build their confidence, constructive feedback will help them improve.
Bright Contracts - Employment Contracts and Handbooks
Using CCTV in the Workplace – What you need to know
Whilst commonly used across many Irish workplaces, the use of CCTV raises issues regarding data privacy for both the employer and employee. This is particularly true considering the increasing capabilities of CCTV including face recognition and voice recording capabilities.
The Data Protection Commissioner recently issued new guidelines in relation to CCTV which apply to its use in the workplace.
Key features of these guidelines include:
- CCTV use must be justified
- Example: if monitoring for security reasons, CCTV should address specific concerns that arose prior to the installation of the system.
- Images captured must be reasonable
- Example: if using CCTV externally every effort should be taken not to capture passers-by or neighbouring property.
- Detailed assessments should be conducted
- Where CCTV in place in the workplace employers should be able to show that:
- A risk assessment was conducted to justify the need for CCTV,
- A privacy impact assessment was conducted,
- A policy should be in place for staff which includes details on why CCTV is in place, where it is, how it is captured, who has access to the data, and how long it is retained for,
- There is evidence of previous incidents giving rise to security and/or health and safety concerns,
- Clear signage is in place indicating where recording is in operation.
If you use CCTV in your workplace and would like further information, a full guide for Data Controllers is available on the Data Commissioner’s website.
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Do you know the correct procedures for an employee dismissal?
The Workplace Relations Commission has awarded €20,000 for unfair dismissal to a former manager of a fast food outlet.
The WRC found that the employee was denied “natural justice” when dismissed by her employer.
In a submission, the ex-manager admitted that she left the fryer on but stated, “It was the first time that had ever happened to me on a shift.” No damage was caused to the fryer due to being left on overnight.
The un-named owner of the fast food franchise informed the employee on the night he sacked her, that he didn’t think she knew how serious it was as the place could have burned down. But the ex-manager recalled another occasion where electrical items were left on all night, in this instance his response was that it wouldn’t be a bad thing if the place burned down.
Although the ex-manager requested a reason for her dismissal, the franchise owner stated that he didn’t have to give her one and that was the end of it.
The hearing was informed that the relationship between employer and employee was “difficult” since ownership changed in February 2015.
There were no representatives of the company business at the WRC hearing. The WRC adjudication officer stated, “Based on the uncontested evidence, I find that the complainant was unfairly dismissed by the respondent.”
Unfair dismissal legislation dictates that when dismissing an employee fair procedures must be adhered to. Upon starting employment, every employee should be given details of the Company's dismissal procedures in writing. If you do not have a dismissal procedure, putting one in place should be a top priority.
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Top 5 reasons you need to issue contracts of employment
Contracts of employment are the cornerstone upon which the relationship between employers and their employees are built. All employees, whether full-time, part-time, or fixed-term workers should receive a contract of employment. Below are five reasons why employers should have signed contracts of employment.
- A Legal Requirement: within the first 2 months of an employee starting employment an employer must issue them with a written terms and conditions, most commonly done through the contract of employment. Under the Terms of Employment Act, there is certain specific information that should form part of the written terms and conditions.
- Cost of Non-Compliance: if an employer is found not to have issued contracts of employment or is found to have issued contracts that are not fully compliant they could face costly fines of up to 4 weeks’ pay for each employee.
- Employer Protection: In addition to compulsory statutory clauses, employers can include extra terms in the contract which will offer them further protection
e.g. A Confidentiality Clause: prevents employees from publicly disclosing confidential company information. Increased notice of termination: employers commonly set the notice employers are required to give should they wish to leave. Helping the employer ensure they have time to arrange alternative cover. Restrictive Covenant Clauses: place restrictions on ex-employers from setting up competing for business or in some cases, from working with competitors for a specific period of time.
- Reduces Confusion & Helps avoid Costly Tribunal Cases: In the absence of written terms, implied terms and conditions can exist, therefore employers can rely upon custom and practice. Where custom and practice exists problems can occur when the employer and the employee disagree with regards to what the terms are. In the case of New Cityview Press Ltd. -v- Breslin, there was a dispute regarding bonus payments. As no written policies existed outlining bonus payments, the judge stated that in order to establish a “fair, reasonable, just approach” he had to find in favour of the employees.
- Signed Contracts are Best: The employer should keep a copy of the contract, signed by both parties on file. A signed contract acts as proof that the employee has received their terms and conditions. In the case of Kerry Foods -v- Donnegan, the employer argued that contracts of employment existed. However, as there was no evidence that the employee had received the contract the judge found in favour of the employee.
Contracts of employment are very important legal documents, in order to ensure comprehensive protection, it is always advisable that employers seek external assistance. External assistance does not have to mean costly legal fees. Bright Contracts provides fully inclusive, professionally drafted documentation for just €149 + VAT.
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Can Employers Set Compulsory Retirement Ages
There is no statutory retirement age in Ireland. Up until recently the default position for many employers was to retire employees once they turned 65, however this may no longer be possible.
Legislation came into force in Ireland in 2016 which stated that compulsory retirement ages may only be set where they can be objectively justified. This means that employers can compulsorily retire an employee if they are able to justify their course of action.
Failure to have appropriate justification in place could leave employers open to an age discrimination claim.
Setting Objective Justification
What is an objective justification will very much depend on the role and the Company, however as guidance, some of the reasons which have been accepted by the courts in the past include;
- Health & Safety: It may be justifiable to have mandatory retirement ages for employees who work in jobs which are physically demanding.
- Succession Planning and establishing an age balance in the workforce: Employers need to plan for the future in order to ensure that they have the right people in place to support the business into the future. Mandatory retirement ages can promote this.
- Encourage the recruitment and promotion of younger people: It has been successfully argued that mandatory retirement ages encourage employees to stay with, and progress within an organization and to motivate employees by the prospect of being promoted into more senior roles.
Employers may also wish to consider the State Pension age when looking at retirement ages. In January 2014 the State Pension age was increased from 65 to 66. This will be further increased to 67 by 2021 and 68 by 2028. If an employee is retired and is not immediately eligible for the State Pension this could lead to the company’s retirement age being challenged.
Fixed Term Contracts
Fixed term contracts are frequently used where an employee reaches retirement age but wishes to continue working. Under the new legislation, if offering a fixed term contract after retirement employers will also have to show objective justification for the termination of employment at the point of expiry of the fixed term contract.
What do employers need to do?
- Employers are well advised to review their contracts of employment.
- If a retirement age is included employers should ensure that there is objective justification for including that retirement age. Best practice suggests having more than one objective justification for a retirement age, which will help build a strong defence in any age discrimination claims.
- Employers should reserve the right to review and amend the retirement age based on business needs.
Bright Contracts - Employment Contracts and Handbooks
How would you deal with transfer requests from employees?
The Workplace Relations Commission (WRC) has ordered an employer to pay an employee €2,500 for what it called “an undue delay” in dealing with her request for a transfer.
The employee, a paramedic, applied for a transfer 3 months before returning from maternity leave. However, the woman informed the WRC hearing she was upset and shocked by her employer’s handling of her situation. The employee felt her employer denied her fair process by taking almost 7 months to deal with her grievance.
The WRC stated that the delay was unreasonable and unfair and caused the employee undue stress. However, the adjudication officer also stated that he could not recommend granting the paramedic a transfer to her own are as no vacancy currently exists. He recommended the woman accept her place on the transfer panel on the same basis as any other employee.
The officer stated: “In the circumstances where there is no available position, vacancy or work available in the area to which the complainant seeks to transfer, it is not feasible or possible for me to recommend that she be so transferred and I must reject that element of the claim.”
The lesson for employers here is to deal with all employee requests and issues in a timely manner. Even if you are unable to accommodate an employee's request, communicate with the employee and keep them informed at all stages of the process.
Bright Contracts - Employment Contracts and Handbooks
