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.
Bright Contracts – Employment contracts and handbooks
BrightPay – Payroll Software
NERA Activity from January to June 2012
NERA carries out workplace inspections to ensure compliance with employment rights legislation. The latest report includes some interesting details on the inspections that have taken place between January and June and the breaches uncovered.
• The amount of unpaid wages recovered over this period was €426,818.
• 45 cases were referred for prosecution.
• 31 convictions were recorded in cases heard by the courts over the period resulting in fines of €77,400 being imposed.
The report breaks down the employers they have inspected by sectors marking each sector with a compliance rate. The Catering sector with 215 has the most inspections by a distance and a compliance rate of 42%. This is followed by Construction with 130 inspections and a compliance rate of 51%, Agriculture with 62 inspections and a compliance rate of 42% and Retail Grocery with 61 inspections and a compliance rate of 48%.
NERA also operates a call centre providing information on employment issues. For the period January to June 2012, they provided information to over 33,900 people. The highest numbers of queries were in the categories of redundancy, working hours, terms of employment, payment of wages and unfair dismissal.
Bright Contracts – Employment contracts and handbooks
BrightPay – Payroll Software
Casino worker awarded €36k for unfair dismissal over pregnancy
The requirement to have a proper disciplinary procedure in place and to follow it, was reinforced by this recent decision from the Employment Appeals Tribunal.
The claimant Ayalamba Chocken claimed that she was dismissed from her job as croupier with the Fitzpatrick Club in Limerick, a few months after informing her manager that she was pregnant.
The EAT found that the employer did not employ fair or satisfactory procedures in the dismissal of the claimant and that gross misconduct had not been proven or satisfactorily established against her. They went on to say that the procedures were defective and could be said to be crude.
The Tribunal was unanimous in finding that the employee’s dismissal was wholly or mainly due to her pregnancy and awarded her €36,000 under the Unfair Dismissals Acts 1977 to 2007.
Bright Contracts – Employment contracts and handbooks
BrightPay – Payroll Software
Read more at www.irishexaminer.com >
Mechanic awarded €30K over age discrimination - No written contract
This case from the Equality Tribunal highlights once again the requirement for employers to use written contracts of employment to specify the retirement age for employees within the organisation.
Mr John O’Neill, a mechanic with Fairview Motors, successfully argued that he was discriminated against by his employer’s decision to unilaterally terminate his employment on reaching the age of 66. He had never been given a written contract.
Mr O’Neill also claimed that his employer discriminated against him on the grounds of age by refusing him permission to attend training courses whilst younger mechanics in the employment had been allowed to attend similar courses.
Bright Contracts – Employment contracts and handbooks
BrightPay – Payroll Software
Read more at www.irishexaminer.com >
Public Holiday Entitlements
Public Holidays
I’ve had some queries recently about what employees are entitled to for public holidays. In particular there seems to be some confusion as to what rules apply to part-time employees and I am aware that some employers are applying the rules incorrectly.
The rules on Public Holiday entitlement are set out in the Organisation of Working Time Act 1997. Employees are entitled to nine official public holidays per year. These days are as follows:
1. New Years Day
2. St Patrick’s Day
3. Easter Monday
4. May Bank Holiday
5. June Bank Holiday
6. August Bank Holiday
7. October Bank Holiday
8. Christmas Day
9. St. Stephen's Day
Employer’s Options
In respect of a public holiday the employee is entitled to whichever of the following the employer determines:
(a) a paid day off on the day in question; or
(b) a paid day off within a month of that day; or
(c) an extra day's annual leave; or
(d) an extra day's pay.
For example, if one of the public holidays listed falls on a day that is not usually worked by employees, such as Saturday or Sunday, the employer may decide on which of options (b) to (d) to apply, depending on the circumstances.
The employee can request, not later than 21 days before the public holiday, that the employer nominate which of the above options will apply to the employee in regard to an upcoming public holiday. If the employer fails to nominate one of the options 14 days prior to the public holiday, then the employee will automatically be entitled to a paid day off on the public holiday.
Determining Entitlement
All full-time employees are automatically entitled to public holiday benefit. Part-time employees qualify for public holiday entitlement provided they have worked at least 40 hours during the five weeks ending on the day before a public holiday. Employees who work or are normally rostered to work on the public holiday are entitled to a day's pay for the public holiday. Employees who are not normally rostered to work on the public holiday are entitled to one fifth of their normal weekly rate of remuneration for the public holiday.
Take, for example a public holiday that occurs on a Monday. An employee who normally works 24 hours a week based on 8 hours each Monday, Tuesday and Wednesday is entitled to 8 hours public holiday entitlement as the public holiday occurs on Monday, one of his/her normal working days. An employee who works 24 hours per week based on working 8 hours each Wednesday, Thursday and Friday will be entitled to 4.8 hours, which is one fifth of his/her normal working week as the public holiday falls on a day that he/she would not normally work.
Absence and Public Holiday Entitlement
Employees absent due to maternity leave, adoptive leave, parental leave, annual leave and jury duty accrue public holiday entitlement as if they were at work. Employees on carer’s leave continue to accrue public holiday entitlement for the first 13 weeks absence on carer’s leave.
The following type of absences occurring immediately before the public holiday will not be entitled to public holiday benefit.
• Absence in excess of 52 weeks due to occupational injury;
• Absence in excess of 26 weeks due to illness or injury;
• Absence in excess of 13 weeks by reason not referred to above authorized by the employer including lay off;
• Absence by reason of strike.
Termination of Employment
Employees who leave the employment during the week ending on the day before a public holiday, having worked the 4 weeks proceeding that week, are entitled to receive benefits for that public holiday.
To book a free online demo of Bright Contracts click here
To download your free Bright Contracts trial click here
Payment in Lieu of Notice
To follow on from last week’s blog about notice periods, I thought I’d throw some light on how paying an employee in lieu of notice operates.
When an employee’s contract is put on notice of termination, be it through redundancy, dismissal or resignation, rather than the employee working for the specified period of notice, employers may prefer, for varying reason, to terminate the contract immediately. This would involve paying the employee up to the end of the specified notice period but terminating the contract with immediate effect i.e. paying in lieu of notice.
Waiving the right of notice
The Minimum Notice and Terms of Employment Acts 1973 to 2005 allows for either party to voluntarily waive their right to notice. For example an employee may want to leave before the notice period has expired and the employer agrees. In that situation the contract ends on the date the employee physically leaves the employment and the employer is not liable for any further payment beyond this date.
What the Contract of Employment states
Under the Minimum Notice and Terms of Employment Acts 1973 to 2005, in order for the employer to have the unilateral right to pay in lieu of notice a clause allowing payment in lieu of notice must be included in the contract of employment. If this clause is not included in the contract, then paying in lieu of notice has to be by agreement between the employer and the employee.
In a situation where an employee accepts an employers offer to pay in lieu of notice, the date the contract ends is the date on which the employee physically leaves the employment. However, the date that the notice would have ended, often referred to as the notional termination date, is the date that the employer must use to calculate normal pay due and to calculate the annual leave entitlement of the employee. In a redundancy situation where payment is made in lieu of notice, statutory redundancy entitlement must also be calculated up to the notional termination date.
There is a further issue to consider. If the clause allowing payment in lieu of notice is included in the contract, then the employee will be liable to pay tax on the notice period payment. If, however it is not included in the contract, but is agreed between the parties, then the payment for the notice period is not taxable.
To book a free online demo of Bright Contracts click here
To download your free Bright Contracts trial click here
Notice Periods
One question that comes up time and time again is how much notice an employee has to give their employer when leaving the employment. The answer is quite simple, one week or whatever it states in the contract of employment.
There is no obligation for an employee to give any more than one week’s notice of their intention to leave a position so employers who don’t have a different period of notice specified in the contract/written terms and conditions of employment could find themselves short staffed at short notice.
There is an assumption amongst many, that the Minimum Notice and Terms of Employment Acts 1973 to 2001 dictate the length of notice, but it is important to remember that this only applies to employers giving notice to their employee. The regulations in this case are as follows:
• Length of Service from 13 weeks to less than 2 years: 1 week’s notice required.
• Length of service from 2 years to less than 5 years: 2 weeks’ notice required.
• Length of service from 5 years to less than 10 years: 4 weeks’ notice required.
• Length of service from 10 years to less than 15 years: 6 weeks’ notice required.
• Length of service of more than 15 years: 8 weeks’ notice required.
The contract of employment may specify a notice period that is different to what is set out in the regulations above. In that situation, the rule is that whichever is the longer is applicable. For example the contract may specify 4 weeks’ notice but if the employee has 10 years’ service the employer is obliged to give him/her 6 weeks’ notice in accordance with the Act. If however, the employee has 2 years’ service, then the length of notice will be 4 weeks as set out in the contract.
Bright Contracts – Employment contracts and handbooks
BrightPay – Payroll Software
Record-keeping Requirements
Employers need to be aware that there are regulations which place a requirement on them to retain certain information in relation to their employees for specific periods of time. The National Employment Rights Authority (NERA) has the authority to attend a company’s premises and conduct an inspection and the company will need to be able to provide them with a number of details.
• Employer’s registration number.
• A list of all employees including full names, addresses and PPS numbers.
• Dates of commencement and if relevant, dates of termination of employments.
• Written terms of employment for employees.
• Employee’s job classification.
• A record of annual leave and public holidays taken by each employee.
• Hours of work for each employee.
• Copies of payslips and payroll details for each employee.
• A register of employees under 18 years of age.
• Details of any board or lodgings provided.
• Employment permits or evidence that a permit is not required for non-EEA nationals.
A NERA inspection can be initiated
a. In response to complaints received of alleged non-compliance with relevant employment rights legislation.
b. As part of NERA’s compliance campaigns which focus on compliance in a specific sector or a specific piece of legislation.
c. Routine inspections.
Apart from the requirements of NERA, there are a number of other documents that employers are required to retain. These include details of Parental Leave, Force Majeure and Carer’s Leave.
Employers should also be mindful that there are other documents that are not covered by regulations that they would be best advised to retain. Documentation relating to recruitment, training and health and safety may prove indispensible in the event of a dispute and should be kept on file for a period of time. For example an employee may dispute that they were not trained on a particular part of his/her role or that they were not informed of a particular policy within the organisation that he/she had contravened. The employer will need to have the records in place to demonstrate that this training/informing did take place.
For a list of some of the main requirements and recommendations. See http://www.brightcontracts.ie/downloads/RecordKeepingRequirements.pdf
Bright Contracts – Employment contracts and handbooks
BrightPay – Payroll Software
Read more at www.workplacerelations.ie >
Restrictions on Bulgarian and Romanian workers removed
The Government has decided to cease restrictions on labour market access in respect of Bulgarian and Romanian nationals, to the Irish labour market. This decision was made on the 17th July 2012 and is effective from the 1st January 2012 and means that all Bulgarian and Romanian nationals can work in Ireland without a requirement for work permits.
What is a work Permit?
A Work Permit is an employment permit issued to the employee, which permits his or her employment in the State by the employer in the occupation specified on the permit. It will be issued for an initial period of two years and can then be renewed for a further three years. After five years, the work permit can be renewed indefinitely.
Guidelines and application forms for work permits can be found on the Bright Contracts website. http://www.brightcontracts.ie/docs/work-permits/
Bright Contracts – Employment contracts and handbooks.
BrightPay – Payroll Software
Dismissal during Probation
Many employers are of the mistaken belief that if an employee is still in his/her probationary period, that they are not obliged to follow their own disciplinary process in dealing with that employee and can dismiss that employee without due process if they so decide.
In a recent case the Labour Court noted that the employer confirmed that it did not follow it's own disciplinary procedures as it was of the belief that it was not obliged to do so as the Claimant had less than one year’s service. In that case the employee was awarded compensation of €5,000 as the dismissal was found to be unfair on both procedural and substantive grounds. This is well trodden ground for employers and numerous Labour Court decisions over time have established that the employer must follow fair procedures within a probationary period.
The Code of Practice on Grievance and Disciplinary Procedures outlines the principles of fair procedures for both employers and employees and can be taken into account by the Court in assessing any case. Employers are obliged to provide all employees with written details of the dismissal process in operation in an organisation within 28 days of commencement, whether through an employee handbook or separate procedures. It is therefore important for employers to ensure that these established procedures follow best practice and comply with the guidelines outlined in this code. It is imperative for the employers to follow these procedures as set out.
The purpose of a probationary period is to evaluate an employee’s performance in doing a job and potential abilities to determine their suitability for the position. The implementation of this evaluation is a process specific to the probationary period, but as with disciplinary procedures the principles of natural justice must apply. Any shortfall in performance should be discussed and documented during the course of the period. In this way the employee is made aware of the issue and is given an opportunity to improve. A formal performance review meeting should be held between the employee and the manager at the end of the period.
The bottom line is that a probationary period does not give the employer a free hand to ignore their own procedures.
Bright Contracts – Employment contracts and handbooks.
BrightPay – Payroll Software
Read more at www.brightcontracts.ie >
